September 12, 2016
The Public Rights/Private Conscience Project at Columbia Law School’s Center for Gender & Sexuality Law is thrilled to welcome our newest staff member, Ashe McGovern. Ashe joins the PRPCP as Associate Director, filling the role held by the project’s Elizabeth Reiner Platt prior to her appointment as Director of the project in June of this year. Ashe will be working with the PRPCP leading our efforts to analyze the scope and effects of legislative language that seeks to broaden religious liberty rights and will coordinate our work with state Attorneys General.
Before joining Columbia, Ashe was a Policy Analyst at the Center for American Progress (CAP) in Washington, DC, where they engaged in state and federal public policy research, analysis, and advocacy with a focus on LGBTQ poverty and the criminalization of LGBTQ communities. Prior to CAP, Ashe worked as an Equal Justice Works Fellow at New York Legal Assistance Group, where they launched the LGBTQ Health and Economic Justice Initiative to provide direct legal services and advocacy to low-income LGBTQ communities in New York.
While a student at Cornell Law School, Ashe worked at several civil rights organizations including the National Center for Lesbian Rights and Lambda Legal, and was a Holley Law Fellow at the National LGBTQ Task Force. They additionally participated in legal clinics representing clients on a variety of matters, including clients experiencing violence in prison, families seeking lawful immigration status and low wage workers seeking union recognition. Ashe is the author of When Schools Refuse to Say Gay: The Constitutionality of Anti-LGBTQ “No-Promo-Homo” Public School Policies in the United States, 22 CORNELL J.L. & PUB. POLICY 465 (2012), and their work has been published in The Nation, NPR, Huffington Post, The Advocate, and ThinkProgress, among other sites. Prior to law school, Ashe worked as an adult education teacher in Brooklyn.
“Ashe’s experience and leadership working at the intersection of racial, economic, and sexual justice will strengthen the Public Rights/Private Conscience Project’s work illuminating the meaning and stakes of the rise of religious liberty claims in the current civil rights climate,” said Professor Katherine Franke, PRPCP’s Faculty Director.
This week the Public Rights Private Conscience Project (PCPCP) submitted a letter to the Department of Health & Human Services (HHS) in response to their request for information (RFI) regarding an accommodation for religious employers who do not wish to provide their employees with insurance coverage for no-cost contraceptive care, as mandated by the Affordable Care Act (ACA). The request came shortly after the Supreme Court punted a case on this very topic back to the lower courts, leaving religious freedom and women’s health advocates in limbo regarding the mandate’s fate.
The case, Zubik v. Burwell, combined separate challenges from religious non-profits to the ACA’s contraceptive mandate, which requires employers to provide health insurance coverage for birth control to their employees. The religious accommodation to the mandate allowed religious non-profits to file a one-page form with the HHS to opt out, and made health insurance companies or third-party administrators responsible for stepping in to provide this coverage without involvement or funds from the employer. But the non-profits asserted that even this requirement violated their religious beliefs. The government holds that the accommodation complies with relevant laws protecting religious freedom, such as the Religious Freedom and Restoration Act (RFRA), which was enacted in 1993 to protect religious minorities.
In the RFI, the government states that their commitment to religious freedom and desire to find an accommodation that works for all led to the public information request. The government also recognized that the Zubik decision “affect(s) a wide variety of stakeholders, including many who are not parties to the cases that were before the Supreme Court,” which they say increased their desire to find an effective solution to the problem presented in Zubik.
The RFI asks the public to comment on two alternatives to the ACA religious accommodation. The first alternative would allow religious non-profits to contract with insurers for coverage that did not include contraceptives and then the insurer would have to notify employees separately and explain that they would provide no-cost contraceptive coverage independent of the employer’s health plan. Here, the religious employer would only have to verbally notify the insurer of their objection, rather than through a form. The second alternative was for women employees to affirmatively enroll in policies that only covered contraceptives.
In the comment that PRPCP submitted we began by discussing how the existing religious accommodation does not offend RFRA:
“RFRA prohibits the government from substantially burdening the exercise of religion unless doing so is the least restrictive means of furthering a compelling government interest. The current accommodation meets this standard for two reasons: first, it does not impose a burden, much less one that is substantial in nature, on religious exercise and second, it is the least restrictive means of furthering the government’s compelling interests in ensuring access to contraceptives, a necessary part of basic preventative health care, and avoiding violations of the Establishment Clause.”
PRPCP then discusses how the alternative accommodations proposed by the plaintiffs would impose harms on employees and their families and risk violating the Establishment Clause. Here, we noted that a number of Supreme Court cases have held that the Establishment Clauses was violated when a government-created religious accommodation imposed serious harms on other private individuals. We stated:
“Both of the alternative accommodations put forth in the RFI would impose a significant harm on non-beneficiaries, most notably employees and their families. The first alternative, by providing ample opportunity for confusion, misrepresentation, and further RFRA litigation, would make employees susceptible to extensive gaps in necessary contraceptive coverage. Further, by making enforcement of the contraceptive mandate significantly more difficult, it would impose costs on both employees and the government. The second alternative would impose significant burdens on third parties by requiring health plans to create, and employees to seek out and enroll in, contraceptive-only health plans. These plans would likely face substantial administrative and financial difficulties. Furthermore, they would result in fewer employees and families having adequate access to contraceptive health care.”
Lastly, we mentioned how important seamless access to cost-free contraceptive care is for women of color, a conversation that is oftentimes left out of the discussion about religious accommodations to the ACA. PRCPC noted:
“Eliminating disparities in reproductive health care, including high rates of unintended pregnancy, involves increasing access to contraception and family planning resources. Access to contraception allows women of color to plan whether and when they will have a child, which research has shown provides them with greater financial stability and freedom. Many women of color, who on average earn significantly less than white women, cannot afford to pay for quality contraception. For example, the IUD is considered the most effective form of contraception available on the market today and costs between $500.00 and $1,000.00 without insurance. Because of its high cost, among other factors, only six percent of Black women have used IUDs compared with seventy-eight percent who have used birth control pills, which have higher user failure rates. Providing women of color with access to contraceptive coverage at no additional cost will help to reduce the reproductive health disparities that we see in communities of color. This is an important first step in ameliorating the overall health disparities between women of color and white women in the United States.”
We applaud the Department’s commitment to religious freedom as mentioned in the RFI, however hope this commitment does not outweigh its duty to uphold the rights of women seeking cost-free contraceptive coverage. Unfortunately, the Supreme Court dodged making a decision on this important
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. 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.”
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. 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. 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.
 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
 College of New Rochelle v. Nyquist, 326 N.Y.S.2d 765, 765 (1971)
 Rusk v. Crestview Local Schools, 220 F.Supp.2d 854 (6th Cir. 2002)
 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/
Professor Katherine Franke, Faculty Director for the Public Rights/Private Conscience Project, was invited to testify before the Pennsylvania Senate’s Labor and Industry Committee on the need to include greater protections for religious liberty in a bill that would add Sexual Orientation and Gender Identity to Its Human Relations Law. She argues that current language contained in Pennsylvania’s Human Relations Act, the U.S. and Pennsylvania Constitutions, and Pennsylvania’s Religious Freedom Protection Act, provide robust protections for the religious liberty rights of faith-based employers, and as such no additional language is needed in SB 1306 to protect employers’ rights to the free exercise of religion.
Indeed, some of the language contained in amendments to companion bills previously pending before the Pennsylvania legislature risks building into the Commonwealth’s Human Relations Act an overly-solicitous accommodation of religious preferences in a manner that could create a violation of the Establishment Clause. An additional accommodation of religious belief, such as that contained in A08770 offered to SB 1307 in the Senate Housing and Urban Affairs Committee, “A08770,” is therefore unnecessary and, moreover, risks unsettling a well-considered balance set by the Pennsylvania legislature and courts between religious liberty and other equally fundamental rights. By creating a religious accommodation that would meaningfully harm other Pennsylvanians, A08770 conflicts with established First Amendment doctrine.
On July 12th, the Public Rights/Private Conscience Project’s Faculty Director Katherine Franke spent a few hours testifying before the House Oversight and Government Reform Committee at a hearing on the First Amendment Defense Act (FADA). This Act would prevent the government from penalizing, fining, or denying tax subsidies, grants, or benefits to individuals or groups because they act in accordance with a religious belief or moral conviction that marriage “is or should be recognized as the union” of two individuals of the opposite sex or two individuals of the same sex, or that “extramarital relations are improper.” In other words, the Act gives religious objectors blanket immunity to discriminate against others in the name of their religious beliefs about sex and marriage.
Unsurprisingly, the harms that FADA would impose on same-sex couples and families were a main focus of the hearing. Professor Franke’s testimony was particularly important, however, because she additionally discussed how the bill would interfere with civil rights protections and impact those who have had sex outside of marriage, including pregnant women and single parents.
The impact that FADA has on those who have had “extramarital relations” is oftentimes left out of the conversation when FADA, which is mostly described as an anti-LGBTQ bill, is discussed in the media. This could be because of the vagueness of the term “extramarital relations” or because it is hard to determine who has had sex outside of marriage and who has not, making the bill’s impact on those involved in “extramarital relations” less clear than its impact on same-sex couples. However, one surefire way to identify someone who has had such a relationship is the presence of a child outside of marriage. This makes the Black community an easy target for religious objectors who find “extramarital relations” morally wrong and objectionable — in 2012, 36% of Blacks over the age of 25 had never married, compared with 16% of whites,  and 70% of Black children are born to non-married parents.
FADA could harm people in non-marital relationships, or who have children while unmarried, by giving religious objectors who want to discriminate the green light to bypass a wide range of laws enforced through fines and litigation by government agencies such as the Equal Employment Opportunity Commission (EEOC), the Department of Labor (DOL), and the Department of Housing and Urban Development (HUD). For example, FADA could prevent the Secretary of Housing and Urban Development from enforcing the Fair Housing Act against a landlord that advertises it will not rent to unmarried parents; prevent the federal government from denying Title X funding to a health clinic that provides family planning care only to married patients; and prevent the federal government from denying a grant to a religiously affiliated shelter that refused to house single mothers. Because of the many health and economic burdens and discriminatory practices that Blacks have faced in this country, it seems unjust that religious objectors would be able to compound these harms and discriminate against Blacks and other people of color in the ways described above.
FADA’s language on “extramarital relations” could also negatively impact domestic partnership laws, such as those in the District of Columbia, which create important property and support rights for individuals who register as domestic partners. These rights are similar to those that married couples have, including inheritance rights, alimony, and equitable division of partnership rights. Under FADA, individuals and groups could discriminate against a same- or opposite-sex couple in a domestic partnership if motivated by religion. For example, FADA could prevent the D.C. government from taking action against a retirement plan that refuses to provide annuity benefits to someone in a domestic partnership, a benefit that D.C. grants to those who are unwed.
FADA gives religious objectors blanket immunity to discriminate against those in extramarital relationships or married to someone of the same sex. If passed, the Act would not only harm those in the LGBTQ community; as a population that is less likely to be married and more likely to have a child while unmarried, FADA’s protections for those opposed to “extramarital relations” would impose a particular harm on Black communities.
 Wendy Wang and Kim Parker, Record Share of Americans Have Never Married, Pew Research Center, (September 24, 2014) http://www.pewsocialtrends.org/2014/09/24/record-share-of-americans-have-never-married/
 Brady E. Hamilton et al., Center for Disease Control and Prevention, National Vital Statistics Reports 41 Volume 64, Number 12 (2015) http://www.cdc.gov/nchs/data/nvsr/nvsr64/nvsr64_12.pdf
Today Professor Franke will deliver testimony on behalf of twenty leading legal scholars providing an in depth analysis of the meaning and likely effects of the First Amendment Defense Act (FADA), were it to become law. We were particularly compelled to provide testimony to the Committee because the first legislative finding set out in FADA declares that: “Leading legal scholars concur that conflicts between same-sex marriage and religious liberty are real and should be addressed through legislation.” As leading legal scholars we must correct this statement: we do not concur that conflicts between same-sex marriage and religious liberty are real, nor do we hold the view that any such conflict should be addressed through legislation. On the contrary, we maintain that religious liberty rights are already well protected in the U.S. Constitution and in existing federal and state legislation, rendering FADA both unnecessary and harmful.
Rather, FADA establishes vague and overly broad religious accommodations that would seriously harm other Americans’ legal rights and protections. Instead of protecting the First Amendment, the First Amendment Defense Act likely violates the First Amendment’s Establishment Clause. The Act purports to protect free exercise of religion and prevent discrimination, yet in fact it risks unsettling a well-considered constitutional balance between religious liberty, the prohibition on government endorsement of or entanglement with religion, and other equally fundamental rights.
A live-streamed video of the Congressional hearing is accessible via YouTube, here.
A link to further information about the First Amendment Defense Act may be found here.
by Kira Shepherd
Under the federal government’s watch, refugee girls are being denied access to emergency reproductive health services that they desperately need. This is what the ACLU is arguing in their latest effort to keep overly broad religious exemption claims from infringing upon women’s rights and reproductive freedom. In late June, the civil liberties group filed a complaint charging the U.S. government with violating the First Amendment’s prohibition on establishment of religion by funding faith-based organizations that deny the unaccompanied minors they serve abortion and contraceptive access.
Since 2013, it is estimated that tens of thousands of unaccompanied children from El Salvador, Honduras, and Guatemala have crossed the border fleeing violence and poverty back home, or to be reunited with family members in the U.S. Experts estimate that as many as 60 to 80 percent of women and girls who make this journey are raped on their way to the United States. When unaccompanied minors cross the border, they are more often than not apprehended by federal agents and placed in shelters funded by the federal Office of Refugee and Resettlement (ORR). In 2014, nearly 57,500 unaccompanied minors were apprehended and transferred to ORR shelters.
ORR issues grants to private entities, including a number of religiously affiliated organizations, to care for migrant minors until they are placed with family members in the U.S. The United States Conference of Catholic Bishops (USCCB) is one of ORR’s largest religious-affiliated grantees; it received $10 million in 2014 alone to care for unaccompanied minors. The USCCB and all the organizations that they subcontract with, such as Catholic Charities, explicitly deny their clients access to contraception and abortion – even in cases where the clients were raped or sexually abused
Take for instance the story of one young refugee, mentioned in the ACLU complaint, who was raped by one of her guides on her journey to the U.S. The minor found out she was pregnant while in ORR custody at a Catholic Charities facility in Miami, and became distraught at the possibility that she would not be allowed an abortion. After threatening to kill herself if she could not get an abortion, she was admitted to a hospital for suicidal ideation. After leaving the hospital, she found out that the Catholic Charities she was staying at refused to take her back because she was seeking to terminate her pregnancy. His House, another religious organization that receives federal funding, refused to admit her as well. She was transferred to another facility and ORR eventually approved her request for funding for an abortion.
According to the ACLU, the federal government violated the constitutional guarantee of the separation of church and state by permitting the USCCB and other organizations to impose religiously based restrictions on the services unaccompanied immigrant minors received with taxpayer funds. In addition, the ACLU asserts that the federal government violated a number of statutes— including the Homeland Security Act, which states that government programs must fully protect the interests of unaccompanied immigrant minors — as well as an ORR regulation requiring all ORR-funded providers to provide unaccompanied immigrant minors who are victims of sexual assault with access to reproductive healthcare.
The ACLU started investigating the USCCB’s contraception and abortion refusals after hearing reports from workers at religiously affiliated organizations charged with caring for refugee teens. Workers claimed that some organizations were imposing their beliefs on minors by forcing them to leave the program if they needed reproductive care. After hearing these reports, the civil liberties organization made a Freedom of Information Act (FOIA) request for documents to determine the full scope of the problem and the government’s role. According to the documents they received, the government gave a few religiously affiliated organizations, such as USCCB and its sub grantees across the country, permission to refuse on religious grounds information about, access to, or referrals for contraception and abortion, even if the young person in their care has been raped. The government provides funding to USCCB through Catholic Charities to provide care for undocumented minors in a number of states across the country – including Arizona, California, Florida, New York, Texas, Virginia, and Washington.
This lawsuit is asking the court to step in and ensure that all religiously affiliated federal government grantees provide their clients with necessary and required care. If the ACLU wins, it will be a huge blow to religious organizations that have been imposing their religious views on refugee girls, denying them their reproductive rights. These organizations would have to start providing all mandated services to their clients or forgo federal grant funding. If written broadly enough, the suit could even stop religiously affiliated government grantees from practicing other types of discrimination based on their religious beliefs, such as anti-LGBTQ discrimination. The question that the court should answer in this case is whether the government violated the Establishment Clause by advancing and endorsing a particular set of religious beliefs. And the answer appears to be an overwhelming yes. By allowing USCCB to impose its religiously based restrictions on services offered through a federal program, ORR has essentially subsidized USCCB’s religious beliefs. USCCB utilized a government contract to further its religious belief that abortion and contraception are wrong and impermissible. As the ACLU argues, that violates the guarantee of neutrality towards religion enshrined in the Establishment Clause.
 Ester Yu-His Lee, Faith Groups are Trying to Block Emergency Contraceptive from Raped Migrant Children, ThinkProgress (March 5, 2015) http://thinkprogress.org/immigration/2015/03/05/3627571/faith-refugee-contraception/.
 GAO Report, Unaccompanied Children, HHS Can Take Further Actions to Monitor Their Care, available at http://www.gao.gov/assets/680/675256.pdf.
Five Reasons Why People of Color Should be Worried About Religious Exemptions
Yesterday Ebony.com published an article by the Public Rights/Private Conscience’s Associate Director of Racial Justice Kira Shepherd, which discussed five reasons communities of color should be worried about religious exemptions. These reasons included the potential for religious objectors to use religious exemptions to justify race discrimination, the intersectional discrimination faced by LGBTQ people of color in society, and the long-standing history of the religious right using religious liberty to justify racist legislation and policies. To read the full article, see the following link at Ebony.com: http://www.ebony.com/news-views/religious-liberty-discrimination#axzz4BfPXd3N4
We are pleased to announce that we are seeking an Associate Director to work with the Public Rights/Private Conscience Project at the Center for Gender and Sexuality Law at Columbia Law School.
Columbia Law School seeks an Associate Director to serve as part of the project’s onsite team reporting to Elizabeth Reiner Platt, Project Director of the Public Rights/Private Conscience Project at Columbia Law School.
The Public Rights / Private Conscience Project is a unique law and policy think tank based at Columbia Law School. It’s mission is is to conceptualize and operationalize new frames for understanding religious exemptions and their relationship to reproductive and sexual liberty and equality rights, and to disseminate those frames through legal scholarship, public policy interventions, advocacy support, and popular media representation.
- Conduct legal and policy analyses of state and federal proposals that would expand the scope and nature of religious liberty rights.
- Play a key role in formulating and executing a pilot project to engage state attorneys and solicitors general around the tension between sexual and reproductive rights/liberty and religious liberty, with the goal of sparking state-level outcomes from the relevant offices.
- Facilitate participation of academic partners in efforts to publicize the impact of religious exemption laws on PRPCP’s focus issues and communities.
- Work with the PRPCP Director to build our capacity to actively participate in the multiple advocacy coalitions forming around religious exemption work, particularly in the reproductive rights and LGBT rights communities, and to undertake more collaborative work with advocacy organizations.
- Maintain PRPCP’s presence on social media, including Facebook, Twitter, and regular content posting to PRPCP’s blog. (10%).
- Assist in logistical planning for meetings, convenings, and conferences.
Management & Funding
Work with Director to identify potential partners for programs, projects, and initiatives.
- Assist in drafting grant proposals and annual budgets for Program initiatives.
- Assist in preparing grant reports and other compliance documents required by Columbia Law School or Columbia University.