Category Archives: US Supreme Court

Anti-discrimination Laws Don’t Burden Religious Freedom—They Secure It

Read our amicus brief for Masterpiece Cakeshop v. Colorado Civil Rights Commission here.

In cases around the country, business owners who are religiously opposed to marriage equality are suing for the right not to provide services like flowers, invitations, and cake to same-sex couples celebrating their wedding. Most notably, the Supreme Court will be deciding Masterpiece Cakeshop v. Colorado Civil Rights Commission this session—a case involving Jack Phillips, a Colorado bakery owner who violated that state’s antidiscrimination law by refusing to make a wedding cake for fiancées Charlie Craig and David Mullins.

These cases are framed specifically to pit LGBTQ rights against religious freedom in a way that is both oversimplified and misleading. Phillips’ brief complains that by requiring him to provide a wedding cake to same-sex couples, the state law provides “broader protection to LGBT consumers than to people of faith.” It’s true that in this circumstance, lower courts held that equality norms should take precedence over a business owner’s religious views. The larger reality, however, is that people of faith (some of whom are, of course, LGBTQ or LGBTQ-affirming) depend on rigorous and universal enforcement of antidiscrimination laws to protect and secure their religious freedom.

Religious freedom protections and antidiscrimination laws typically work together to ensure that people of all faiths are able to coexist in the public sphere. The Supreme Court’s most significant early free exercise cases drew a connection between the protection of religious liberty and principles of non-discrimination, grounding the standard of review for religious liberty claims in the standard honed in equal protection cases.  Even as the Court has adjusted the standard of review in constitutional free exercise cases, it has not abandoned the core equality principle that animated its earlier jurisprudence, retaining strict scrutiny for government action that is non-neutral with respect to particular religious beliefs, and describing it as a “nonpersecution principle.”

Allowing business owners to ignore antidiscrimination laws that conflict with their religious beliefs would threaten grave harms to people of faith, and especially to religious minorities. While federal and state civil rights laws law ban discrimination on the basis of religion, it is nevertheless pervasive. Claims of religiously-motivated discrimination—including the denial of public accommodations, employment, and housing as well as perpetration of hate crimes— have risen dramatically over the past decade. Discrimination is particularly severe for minority religious groups, and especially for Muslims. Over the past year, sixty percent of American Muslims have reported some level of religious discrimination. Over twenty percent of the Equal Employment Opportunity Commission’s (EEOC) charges of religious discrimination in 2015 related to Muslims, despite their representing only one percent of the U.S. population.

If business owners were permitted to ignore antidiscrimination laws based on their personal religious beliefs, they could deny a range of goods and services to members of religious groups that they consider objectionable. For example, they might refuse to cater an interfaith or non-Christian wedding or to sell clothing to Muslim or Jewish women that embrace modesty values, based on a religious objection to their practices. This is not a merely theoretical concern: in recent cases, individuals from a hotel owner to a police officer have voiced religious objections to serving those of other faiths. In fact, Phillips’ own brief acknowledges that he would refuse to provide any goods that “promote atheism.”

Furthermore, any ruling for Masterpiece Cakeshop could not be easily contained to the public accommodations context, but would likely lead to religiously-motivated discrimination in employment and housing. Last year, a federal District Court held in EEOC v. R.G. & G.R. Harris Funeral Homes that a funeral home owner who objected on religious grounds to allowing a transgender woman employee to dress in skirts at work should be entitled to an exemption from federal sex discrimination law. This case is on appeal; however, a ruling for Masterpiece Cakeshop would open the door to similar claims against religious minorities. For example, such a ruling could allow employers to violate employment anti-discrimination law by refusing to hire employees who wear hijabs, turbans, yarmulkes, or other religious clothing. The employer could argue that he believes allowing employees to wear such garb at his workplace amounts to an endorsement of their religious practices, and therefore conflicts with his own religious faith.

Religious liberty and equality in the public sphere are both fundamental American values. In the vast majority of cases, anti-discrimination law protects both religious freedom and equality by ensuring that those of all faiths, including unpopular faiths, are able to work and participate in the public marketplace without facing discrimination from either the government or other citizens. The risks to religious freedom of allowing exemptions from anti-discrimination law would far outweigh any benefit to those with a religious opposition to marriage equality. Such exemptions threaten to decimate the protections for religious minorities that have long offered them some measure of defense from discrimination in their daily lives. As the U.S. becomes more religiously diverse, our commitment to religious plurality has become all the more essential. It should not yield to those who wish to serve, house, or employ only those who share their religious beliefs, on marriage or otherwise.

What’s So Troubling About Funding a Playground? How Trinity Lutheran Undermines the First Amendment

Cross-posted to ReligionDispatches and Medium.

On Monday, the Supreme Court took a dramatically new approach to the First Amendment, though you wouldn’t have known it from reading the brief, oversimplified opinion. In Trinity Lutheran Church of Columbia, Inc. v. Comer the Court held that—at least in some circumstances—the Free Exercise Clause of the First Amendment requires governments to provide taxpayer funds to churches. This newfound requirement is something the dissent argued should, in fact, be prohibited under the First Amendment’s Establishment Clause.

I have previously written about the facts of Trinity Lutheran, as has RD, but they warrant a brief revisiting here. A Missouri state program offered grants for a limited number of nonprofit schools and daycares to purchase rubber playground surfaces made from recycled tires. Prospective grantees were evaluated and selected based on a number of factors, including poverty level of the surrounding area and their willingness to generate media exposure for Missouri. In 2012, Trinity Lutheran, a Missouri Synod congregation, applied for the grant to renovate the playground of a preschool owned and operated by the church. While it ranked highly, Trinity Lutheran was denied the grant because of a department policy that made houses of worship ineligible for funds. Upon learning the reason for their denial, Trinity Lutheran sued, arguing that the department policy violated their religious rights.

Typically, First Amendment cases involving government funding of religious organizations present Establishment Clause questions—with plaintiffs arguing that the state is prohibited from providing taxpayer money to a church. In fact, the Court has long held that it is unconstitutional for governments to directly subsidize religious activities. Trinity Lutheran, in contrast, asked whether the denial of funds to houses of worship may also be unconstitutional.

Shockingly, the court answered in the affirmative, finding that the Missouri policy violated Trinity Lutheran’s free exercise rights by forcing the church to choose between its religious identity and participation in a government benefit program. In an opinion by Chief Justice Roberts, the Court held “the Department’s policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character… such a policy imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny.” The Court further held that Missouri’s stated reason for the policy—to avoid potential Establishment Clause violations—was insufficient.

The Court’s opinion stands in stark opposition to earlier religious funding decisions, and especially its 2004 opinion in Locke v. Davey. In Locke, the Court upheld a state scholarship program that prohibited recipients from using the funds to pursue a degree in devotional theology. The Court attempted to distinguish Trinity Lutheran from Locke by relying on a distinction between religious identity and religious activities. It explained, “Davey was not denied a scholarship because of who he was; he was denied a scholarship because of what he proposed to do—use the funds to prepare for the ministry. Here there is no question that Trinity Lutheran was denied a grant simply because of what it is—a church.”

How government agencies administering grant programs are expected to distinguish between a house of worship’s religious identity and its religious activities is a spectacularly difficult (if not impossible) task that’s entirely ignored by the Court. Making such a distinction is now constitutionally essential, however, as programs must navigate between not funding religious activities, lest they violate the Establishment Clause, and not “discriminating” against religious institutions, lest they violate the Free Exercise Clause. Previously, state programs could safely avoid such perilous questions by simply declining to fund houses of worship. Trinity Lutheran throws such policies into question—although the scope of the ruling is unclear. (More on that later.)

Both Justice Gorsuch in concurrence and Justice Sotomayor in dissent criticized the majority’s attempt to create a line between religious identity and activities, though they ultimately arrive at opposing conclusions. Gorsuch asked, “Can it really matter whether the restriction in Locke was phrased in terms of use instead of status (for was it a student who wanted a vocational degree in religion? Or was it a religious student who wanted the necessary education for his chosen vocation?).”

Similarly, in her Trinity Lutheran dissent, Sotomayor wrote, “the Church has a religious mission, one that it pursues through the [preschool]. The playground surface cannot be confined to secular use any more than lumber used to frame the Church’s walls, glass stained and used to form its windows, or nails used to build its altar.” But while Gorsuch’s opinion suggests that he would support even direct state subsidization of religious activities, Sotomayor argued that directly subsidizing a house of worship—even for ostensibly non-religious expenses such as playground surfaces—is proscribed by the Establishment Clause.

It’s notable that the Court has previously declined to require religious organizations to distinguish between their religious and secular activities. A 1987 decision, Corporation of the Presiding Bishop v. Amos, involved an Establishment Clause challenge to a religious exemption that permitted religious organizations to hire employees based on their faith, even for secular jobs such as janitorial work. The plaintiff in that case argued that while the exemption was justified for employees with religious duties, it was unconstitutional when applied to employees with purely secular jobs.

The Court disagreed, finding that creating such a constitutional line would be untenable. It held, “It is a significant burden on a religious organization to require it, on pain of substantial liability, to predict which of its activities a secular court will consider religious. The line is hardly a bright one.” Thus, the Amos Court declined to adopt a constitutional bright line between religious and secular activities in order to grant religious organizations advantageous exemptions. However in Trinity Lutheran, it relies on precisely such a distinction in order to permit (indeed, require) state funding of houses of worship.

As a more general matter, it is suspect that the majority opinion decries treating houses of worship as different from secular organizations, when the Court has repeatedly relied on this difference to grant exemptions to faith-based organizations that are unavailable to secular nonprofits. As Justice Sotomayor explains, “the government may draw lines on the basis of religious status to grant a benefit to religious persons or entities but it may not draw lines on that basis when doing so would further the interests the Religion Clauses protect in other ways. Nothing supports this lopsided outcome.”

The only saving grace (so to speak) of the opinion is buried in a footnote, though how lower courts will interpret both its weight and substance is unclear. The footnote states, “this case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.” Two of the six justices who signed the majority opinion—Gorsuch and Thomas—dissented from the footnote, though Justice Breyer, who concurred only in the judgment, appears to support it.

More importantly, it’s far from clear how literally to interpret the footnote’s apparent attempt to confine the decision exclusively to programs involving playground resurfacing. Justice Gorsuch explained in his concurrence that lower courts might (in his view, mistakenly,) “read it to suggest that only ‘playground resurfacing’ cases, or only those with some association with children’s safety or health, or perhaps some other social good we find sufficiently worthy, are governed by the legal rules recounted in . . . the Court’s opinion.” While this narrow reading of the case would limit the damage it inflicts on the Establishment Clause, it seems likely that at least some courts will interpret the decision far more broadly, and sanction a variety of programs providing direct funding to houses of worship.

Regardless of how the footnote is interpreted, the Court’s opinion in Trinity Lutheran demonstrates a fundamental misunderstanding of the purpose of the religion clauses, and effectively ignores the danger of using public coffers to subsidize houses of worship.  The majority describes this as a case about religious discrimination, which demonstrates how successful the religious right has been at rebranding nearly any attempt to enforce the Establishment Clause as a form of religious persecution. Declining to divert public money to churches has long been considered necessary to protect the individual right of conscience of the citizenry. Far from being discriminatory, separation of church and state is intended to ensure that individuals may choose to adhere to any or no religious beliefs free from coercion, and that the church itself is protected from government intrusion. The majority opinion ignores the long history of and important justifications for prohibiting state subsidization of houses of worship. Hopefully, its damage will be confined to the unusually sympathetic facts of this case.

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”.