Category Archives: US Supreme Court

Because You’re Not Fooling Anyone: Why Trump Travel Ban 2.0 Still Unconstitutional

Cross-posted with Religion Dispatches, and on Medium, March 14, 2017

Trump’s second attempt at banning travel from certain Muslim-majority countries is clearly written to avoid being struck down under the Establishment Clause. Most notably, it no longer contains provisions that preference entry for religious minorities—language the President himself admitted was intended to prioritize entry for Christian rather than Muslim refugees.

So why isn’t the new EO constitutional, at least with regard to First Amendment claims? Because cutting its most obviously discriminatory provision doesn’t fix the fact that the new EO was passed with the same invalid purpose as the President’s first attempt—to reduce Muslim immigration into the U.S. When a candidate campaigns for nearly two years on the promise of banning, profiling, and even registering Muslims, that is context that a court can—and should—consider in evaluating whether his actions are motivated by religious animus or legitimate security concerns.

In 2005, the Supreme Court issued two decisions on the question of whether displaying the Ten Commandments in or near a courthouse violated the Establishment Clause of the First Amendment. The cases came out split, with one display upheld and the other held unconstitutional. The takeaway? Context and history matter.

These decisions serve as helpful background for why a quick fix to Trump’s Executive Order on Immigration doesn’t resolve all the EO’s constitutional problems.

In one of the cases, McCreary County v. ACLU, the displays at issue were the third in a series of exhibits that had been repeatedly challenged as unconstitutional. The first displays—installed in two Kentucky county courthouses—were large, gold-framed copies of the Ten Commandments, with a citation to the Book of Exodus. In response to a suit by the ACLU, the counties expanded the displays to include additional documents in smaller frames, each with a religious theme, including the “endowed by their Creator” passage from the Declaration of Independence and the national motto, “In God We Trust.”

When a District Court preliminarily enjoined both the original and the expanded displays, the counties installed a third version, this time consisting of nine framed documents including the Ten Commandments, Magna Carta, Declaration of Independence, and Bill of Rights. In explaining its decision to strike down even this seemingly acceptable display, the Supreme Court noted: “the purpose apparent from government action can have an impact more significant than the result expressly decreed” (emphasis added).

In other words, the counties weren’t fooling anyone.

In order to be upheld under the Establishment Clause, a government action must have a valid secular purpose. While courts typically give deference to the secular intent proffered by legislatures, the purpose has to be “genuine, not a sham.” In this case, it was obvious to the Court that the counties’ intent in creating the third round of displays was no different than their intent for the original display: they “were simply reaching for any way to keep a religious document on the walls of courthouses constitutionally required to embody religious neutrality.”

In contrast, the Court in Van Orden v. Perry held that it was permissible for Texas to accept and display a Ten Commandments statue donated by a civic organization on the state capitol grounds, alongside 17 other monuments and 22 historical markers. In this case, there was no history indicating a legislative intent to endorse or advance religion.

The history of Trump’s two Executive Orders recalls the counties’ efforts in McCreary to water down a religious display simply to meet legal approval, without changing its underlying intent. In the years leading up to the EO, President Trump repeatedly pledged to ban Muslims from entering the country. (He also made comments supporting Muslim profiling, the creation of a Muslim registry, and the closure of mosques.) Trump sometimes varied his language, calling his plan “extreme vetting” or emphasizing its application to “terror nations” rather than Muslim-majority nations.

After the issuance of the first order, however, Trump advisor Rudy Giuliani openly admitted that the President intended to craft a Muslim ban that would withstand judicial scrutiny. When the ban was enjoined, Trump stated in a press conference that the administration could “tailor the [new] order to that decision and get just about everything, in some ways more.” White House advisor, Stephen Miller, also stated that the new EO contained “mostly minor, technical differences,” and would “have the same, basic policy outcome for the country.”

Thus, despite the elimination of the explicit religious preference, there’s no indication that the new order should be treated any differently from the last one when it comes to determining whether the administration had a valid, secular, non-discriminatory purpose in issuing the EO.

This is certainly not to say that Trump can never pass a law on immigration or national security that won’t violate the Establishment Clause. The McCreary Court explained that it did not hold that the counties’ “past actions forever taint any effort on their part to deal with the subject matter.” However it does mean that Trump cannot avoid the ample and longstanding evidence that his EO is intended to be a Muslim ban simply by removing the language that most clearly identifies it as one.

New York City’s PreK Program’s Church State Problem

upk

New York City’s school system is no stranger to church state problems. Since 2005, the city has rented space for public schools in religious buildings, causing conflicts ranging from lease provisions that require students to be taken off-site for state-mandated sex education classes to students having to walk by crosses and other religious images as they make their way to school. Last year, the City awarded $19.8 million in funds to religious schools to hire security guards. This school year, New York City’s Department of Education will be dealing with another church state issue as the city enrolls the largest number of four year olds ever into its pre-kindergarten program.

In September, tens of thousands of pre-kindergarten students will be attending class for the first time as part of the De Blasio Administration’s hallmark universal full day pre-k (UPK) program, now in its third year.[1] In order to reach its enrollment goals, the city has been urging religious schools and community organizations to host the UPK program, since most public schools have reached capacity. The city is now providing religious schools roughly $10,000 per student, raising potential conflicts with church state laws. More problematically, under a guidance document issued by the De Blasio administration these religious schools are permitted to teach from religious texts, so long as they do so “objectively as part of a secular program of education,” and are allowed to preference hiring teachers that share the school’s religion. While schools must cover religious symbols on their exterior entrance and UPK class rooms, they need not do so where this is “not practicable.” De Blasio also issued a rule allowing UPK programs to hold breaks for optional prayer.

In New York State, citizens are protected from government advancement of religion by both the Establishment Clause of the U.S. Constitution, which prohibits the government from passing any law “respecting an establishment of religion,” and the so-called “Blaine Amendment” of the New York Constitution. New York’s Blaine Amendment is more restrictive than the Establishment Clause, and maintains that the State should not use public money in aid “of any school or institution of learning wholly or in part under the control or direction of any religious denomination, or in which any denominational tenet or doctrine is taught.”[2]

Unfortunately, both of these protections have been substantially watered down over the years by federal and state court decisions that have allowed the government to fund religious schools through various programs. For example, the Supreme Court decision Agostini v. Felton upheld a New York State program that sent public school teachers into parochial schools to teach remedial education. The New York State Supreme Court found in College of New Rochelle v. Nyquist that a college’s affiliation with religion did not make it ineligible for state aid under the Blaine Amendment, unless the “affiliated religious denomination controls or directs the institution towards a religious end” or the college is “controlled or directed to a degree so as to enable the religious authorities to propagate and advance—or at least attempt to do so—their religion.”

Despite this case law, New York’s UPK program poses opportunities for violations of the Establishment Clause and Blaine Amendment. A significant issue is the fact that UPK students are so young. Some courts have placed heightened scrutiny in deciding whether there was an Establishment Clause violation when vulnerable groups, like young students, are involved. In Rusk v. Crestview Local Schools for example, a district court ruled that an elementary school violated the Establishment Clause by distributing flyers advertising community activities sponsored by churches to “impressionable elementary students” who might believe the activities were school-endorsed.[3] This decision was overruled by the Appeals court which found that the parents were the ones who would receive and observe the flyers not the kids, therefore quelling concerns that the flyers would leave an impression on the students. However, the district court’s decision shows that courts sometimes take the age and vulnerability of school students into account when deciding whether an act violates the Establishment Clause.

The potential for coercive indoctrination in the UPK program is real. Publicly-funded UPK programs are supposed be available for all students regardless of religious belief, and there does not appear to be any clear information on the City’s Pre-K Finder to let parents know that a program is housed in a religious institution. Thus, for example, a Muslim or atheist family could apply for a UPK program that is located in a Christian school either because they were not aware of its religious identity, they did not realize that such schools are permitted to teach religious texts, practice coreligionist hiring, and hold prayer breaks, or simply because of a lack of alternative options close to their home. This could leave the four-year-old child in a position where they have to see religious symbols that are in direct conflict with their religious teachings every day, wear a uniform bearing the religious name of their school, read religious materials, watch their fellow students break for prayer, and follow instruction from teachers and an administration that practices a faith different from their own. It is not hard to see how such a scenario could lead to impermissible indoctrination of an impressionable young mind.

Church state issues in education are complicated, especially in a city like New York which is one of the most religiously diverse cities in the nation.[4]   However, law and policy makers have a responsibility to make sure that students are in culturally and religiously sensitive learning environments that respect and pay homage to our city’s religious diversity. Children’s minds are too impressionable to be subjected to religious materials and practices that could potentially indoctrinate them with a particular religion.

[1] Ben Chapman, Mayor De Blasio’s Universal Pre-K Program Still Failing to Reach Some Families, New York Daily News (April 19,2016) http://www.nydailynews.com/news/politics/poor-new-yorkers-left-free-universal-pre-k-article-1.2607773

[2] College of New Rochelle v. Nyquist, 326 N.Y.S.2d 765, 765 (1971)

[3] Rusk v. Crestview Local Schools, 220 F.Supp.2d 854 (6th Cir. 2002)

[4] Jed Kelko, America’s Most Religiously Diverse Cities, Citylab (Dec. 20, 2012) http://www.citylab.com/politics/2012/12/americas-most-religiously-diverse-cities/4227/

Why Zubik is Especially Important for Women of Color

By Elizabeth Reiner Platt and Kira Shepherd

This blog is also available at Religion Dispatches

From the forced breeding of slave women, to the eugenics movement of the 1920s to a relatively recent campaign to sterilize incarcerated women, the institutional denial of women of color’s reproductive freedom has left many mistrustful of medical institutions and the government’s attempts to interfere with their reproductive choices. This has led, in turn, to poor health and political disengagement amongst communities of color. Now, the Supreme Court’s decision in Zubik v. Burwell may effectively strip thousands of women of color of their right to no-cost insurance coverage for contraception.

For those not following the case, Zubik is a challenge to the Affordable Care Act’s contraceptive mandate, which requires certain employer-sponsored health insurance plans to cover contraception with no co-pay. The Obama administration has already created an accommodation for religious non-profits opposed to birth control, which allows them to opt-out of paying for contraceptives while maintaining insurance coverage for their employees. The organizations suing in Zubik, however, want to prevent their employees from receiving coverage through the plans at all. They claim that under the Religious Freedom Restoration Act (RFRA), they are entitled not just to refuse to pay for birth control themselves, but to demand that their insurance providers refuse to offer it.

While religious organizations employ women of all backgrounds, the Zubik case should be particularly concerning to women of color. Lack of access to quality reproductive health care plays a large role in the overall health disparities faced by communities of color today. Women of color have the highest rates of unintended pregnancy, abortion, and maternal mortality, all of which have taken a toll on the psychological, economic, and social vitality of these communities.

Moreover, as abortion clinics across the country close due to the conservative attack on abortion rights, women of color are harmed disproportionately. Clinic closings make it especially hard for low-income women and women of color to get an abortion, since many cannot afford to travel the long distances needed to reach a clinic. A recent New York Times article found that clinic closings appear to be closely linked to the uptick in searches for illegal, self-induced abortion.

In addition, women who have unintended pregnancies are more likely to abuse substances while pregnant and less likely to seek prenatal care, which can negatively impact the health of the fetus. Some unintended pregnancies cost women of color their lives. The United States is now one of only eight countries—including Afghanistan and South Sudan—where the maternal mortality rate is actually increasing. These numbers are even bleaker for women of color in the U.S., where black women are four times more likely than white women to die in childbirth.

The pervasive health disparities among communities of color can be traced back, in part, to a long legacy of reproductive coercion. In 2003, the Institute of Medicine produced astudy about the causes of racial health disparities in America. It found that many of the disparities are rooted in historic and current racial inequalities, including poor socio-economic conditions as well as implicit biases held within the medical community that lead to subpar treatment.

Eliminating the disparities in reproductive health care, including high rates of unintended pregnancy, involves increasing access to contraception and contraceptive counseling. Access to contraception allows women of color to plan whether and when they have a child, which provides them with greater financial stability and freedom. Women of color, on average, earn significantly less than white women, and many cannot afford to pay for quality contraception.

The IUD, for example, is considered the most effective contraception available on the market today, but because it costs between $500 to $1000 only 6% of black women have used IUDs compared with 78% who have used birth control pills. Providing women of color with access to no-cost contraceptive coverage is an important first step in ameliorating the overall health disparities between women of color and white women in the United States.

It should be no surprise that when the U.S. Department of Health and Human Services asked The Institute of Medicine to come up with a list of women’s health services that should qualify as preventive care and require no co-pay under the Affordable Care Act, the Institute included contraceptive care and counseling in their recommendations, two services that can help right some of the wrongs done to women of color in the area of reproductive justice and liberty. It would be a grave injustice for the Supreme Court to allow the plaintiffs in Zubik—and others who might follow in their wake—to take us one step back.

Religious Freedom for Refugees? Not So Fast…

By Elizabeth Platt, Associate Director, Public Rights/Private Conscience Project

Mere months after a host of prominent conservatives condemned the Supreme Court’s marriage equality ruling as an attack on religious freedom (one particularly colorful character called it “judicial tyranny” that would lead to the criminalization of Christianity), these same politicians seem to have had a change of heart. Not on marriage equality, of course, but on the importance of religious freedom in American society.

From shutting down mosques to barring Muslims from the oval office to demanding a Christianity test for Syrian refugees to the outrageous (albeit unclear) suggestion of creating Muslim registration system, conservatives seem to be caught in a vicious cycle of Islamophobic one-upmanship. The very same voices who clamored for new religious exemption laws and even held rallies for religious freedom featuring “special guests victimized by government persecution,” seem to be leading the charge against Muslims both at home and abroad.

Lest one think these arguments have been taken up only among the most extreme on the right, even the relatively moderate Jeb Bush argued recently that “we should focus our efforts as it relates to refugees on the Christians that are being slaughtered.” And more than half the nation’s Governors are doing all they can to prevent Syrian refugees from being placed in their state.

Perhaps the most explicitly discriminatory suggestion has come from Ted Cruz—host of the aforementioned rally for religious freedom. Rather than Bush’s suggestion of prioritizing Christian refugees, Cruz has stated that only Christians should be permitted to enter the U.S., and Muslim refugees should be kept out, period.

Unsurprisingly, Cruz has not offered a plan on how to determine which refugees are in fact Christian. Bush suggested putting the burden of proof on the refugees themselves— “I mean, you can prove you’re a Christian,” he explained.

In the past, however, conservatives haven’t been so keen on government-imposed tests of religious faith. Hobby Lobby and other religious exemption cases brought under the Religious Freedom Restoration Act (RFRA) require the party requesting an accommodation to demonstrate a substantial burden on their sincerely held religious belief. Conservatives have argued that this should be an extremely weak test—contending that courts have no authority, or ability, to inquire into the sincerity of a religious belief, or to evaluate how closely it correlates with official religious doctrines. So if the Supreme Court shouldn’t be able to question the religious beliefs of a craft store owner, why do conservatives want State Department or Department of Homeland Security agents deciding whether someone is Christian?

The recent calls for explicit religious discrimination and persecution against Muslims by major political leaders are chilling. They also belie any claims that these politicians are honestly concerned with religious freedom. Rather, they are interested in religious rights only for those who share their views on hot-button political issues like abortion, contraception, and LGBT rights.

For those who disagree… hope you enjoyed the holiday and escaped the stealth halal turkeys.

Will SCOTUS Call the “Bluff” of Religious Liberty Activists?

Originally posted at Religion Dispatches on November 9, 2015.

By Kara Loewentheil

If the announcement that the Supreme Court will hear arguments in a challenge to the Affordable Care Act’s contraceptive coverage requirement (CCR) makes you feel like you’re experiencing deja vu, you’re not exactly wrong.

After Hobby Lobby, the Administration took a slow and leisurely approach to creating new regulations for the accommodation process. Finally released in July, the regulations, among other things, instituted a process for those non-profit religious organizations (NPRO) that objected to the original accommodation.

Under the revised accommodation process, the NPROs do not have to directly inform their insurance provider or third-party administrator (meaning an entity that administers their insurance plan even if the organization pays for it themselves, which is called being “self-insured”) of their objection.

Instead the NRPO can inform the government, and the government will inform the insurance company or the TPA, which then has to provide the contraceptive coverage itself. (That is, unless the TPA is actually exempt, like the TPAs that are a form of an insurance plan called a “church plan”—the federal government lacks the ability to regulate those plans under ERISA and cannot require them to provide the coverage.)

If that seems silly—well, on some level, it kind of is. And here’s why: Inserting the government into the communication process was meant to address the complaint by some NPROs that even informing their insurance company or TPA of their objection to contraception made them complicit in the eventual provision of contraceptive coverage to their employees.

But it was never clear why an NPRO that objected to informing their insurance company or TPA was going to feel just dandy about informing the government so the government could inform the insurance company or the TPA.

In fact, of course, they didn’t—instead, various NPROs that had objected to the original form of the accommodation continued to object to the revised form of the accommodation. Until recently all the circuit courts to consider these claims had ruled against them, but then the 8th Circuit upheld a grant of preliminary relief in one of these cases, and now here we are, with the Supreme Court granting cert to several of the consolidated cases to consider a variety of questions involving NPROs’ objections to contraceptive coverage and RFRA’s requirements.

At bottom though, the question is fairly simple: Is the Supreme Court going to call the objectors’ bluff? I don’t say “bluff” because I think the NPROs are insincere—it’s not about their sincerity at this point. But the “bluff” in all of these developments is that there even exists some way of providing contraceptive coverage that the objecting NPROs would find acceptable.

And it’s been clear for a while now that the only solutions they would find acceptable are factually impossible outcomes in our current system: e.g., single-payer health care, or a government-funded birth control insurance program. Of course those are outcomes that the same organizations would be lobbying heavily against if they were proposed to Congress!

What’s really at issue here is whether the Supreme Court is going to allow religious objectors to completely opt-out of laws by continually re-defining the burden on their religious exercise, regardless of the impact on third parties and the harms done to them. And you can bet if that strategy succeeds here, we’ll see it in use very soon in other contexts, like exemptions to LGBT non-discrimination laws and marriage equality protections. Let’s hope it doesn’t come to that.

 

 

Giving Obergefell the “Roe-Treatment”

Heard in last few days:

1. Texas judge who disagrees with Obergefell makes all marriage applicants sign form acknowledging that he’s opposed to it.  More on this here.

2. Woman in Texas who told the Executive Director of the organization at which she worked that she was getting married to a woman. Came back from honeymoon and was fired.

3. Two guys in Florida who married where told by a pharmacist they had patronized for many years that they couldn’t get their medications from his business any longer because of his religious opposition to same-sex marriage.

The right wing is quite clear that they’re going to treat Obergefell like Roe v. Wade – not real law. These three examples above illustrate the ways in which marriage rights for same-sex couples are getting “Roe-d”.