VIDEO: “Religious Exemptions 101: It Ain’t About the Cake”

Cross-posted to Medium

On Tuesday, December 5th, Professor Katherine Franke, Faculty Director of the Public Rights/Private Conscience Project at Columbia Law School, and Kira Shepherd, Director of the Public Rights/Private Conscience Project’s Racial Justice Program led a webinar with our project partners at Soulforce titled, “Religious Exemptions 101: It Ain’t About the Cake.

The webinar was presented on the day when oral arguments began in the Supreme Court case of Masterpiece Cakeshop v. Colorado Civil Rights Commission.  In a recent article, Professor Katherine Franke and Johnathan Smith note that “the case as raises the important question of whether businesses can rely on religious justifications in order to avoid compliance with state’s non-discrimination laws.”

Soulforce’s primary goal in hosting the webinar was to create an open “discussion on how the abuse of religious exemption laws by Christian Supremacy culture target all marginalized people – especially People of Color, LGBTQI people, Women, and religious minorities – and will impact all of our civil rights” and to brainstorm ways in which participants could “work [to] untangle the logic of Christian Supremacy – the logic that absolves those who abuse these exemptions of the moral consequences that come with their weaponized religions.”

A video of the webinar is available via Soulforce Media’s channel on Youtube at the link embedded below.  If you have trouble accessing the video at the link below, please paste the following URL into your browser bar to navigate to the video directly:  http://bit.ly/2Ba3NVG.

The Public Rights/Private Conscience Project joins the #OpentoAll Campaign

Cross-posted to Medium and the Center for Gender & Sexuality Law Blog

The Public Rights/Private Conscience Project and the Center for Gender & Sexuality Law at Columbia Law School are pleased to be co-supporters of the Open to All campaign.  Launched by the Movement Advancement Project in November, the Open to All campaign addresses how the engagement of #ReligiousExemptions by service providers to refuse service to persons on the basis of their religious beliefs undermines anti-discrimination laws in the United States.

The Open to All Campaign comes as the Supreme Court of the United States is hearing arguments in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission.  The owner of Masterpiece Cakeshop claims that he has a right to refuse service to persons on the basis of his religious beliefs, and that if he were required to bake and decorate a cake for a same-sex marriage, this would represent a substantial burden of his religious liberty rights.

Masterpiece Cakeshop, however, is about anything but cake: it is about an individual’s desire to be exempted from anti-discrimination laws in the United States, thereby upholding White Christian Supremacy in the United States over minority populations.  On its face, a decision in favor of Masterpiece Cakeshop would be a boon for “religious liberties” in the United States, however, the precedent it would set is the privileging of a white Christian majority’s caprices over the rights of marginalized persons.

Professor Katherine Franke, Director of the Center for Gender & Sexuality Law, and Faculty Director of the Public Rights/Private Conscience Project wrote on this issue with Johnathan Smith of Muslim Advocates in Slate on December 4th, noting, “A victory for Phillips would not only harm people of faith, but also those who value our nation’s commitment to religious pluralism and civic equality.”

The Op-Ed by Franke and Smith follows on the submission of an amicus brief in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission in October of this year by the Public Rights/Private Conscience Project and Muslim Advocates on behalf of 15 community-based organizations.  The amicus argues that:

…non-discrimination laws, such as the Colorado law at issue in this case, often play an indispensable role in protecting the rights of religious communities. These laws serve as a critically important check against discrimination by businesses, employers, landlords, others; without such protections, individuals or groups—especially those outside the mainstream—would not be able to fully participate in civil society, and would be vulnerable to unjust persecution and harassment at every turn.

In following on the Public Rights/Private Conscience Project’s work in this arena, PRPCP and the Center for Gender & Sexuality Law are pleased to be parties to the “Open to All” campaign.  The campaign mission statement notes that:

Open to All is a nationwide campaign to help protect our nation’s nondiscrimination laws. These laws ensure that when businesses open their doors to the public, they serve everyone on the same terms. But these laws are under attack. Those who don’t want to follow nondiscrimination laws are trying to claim that their religious beliefs mean federal and state nondiscrimination laws should not apply to them—and they are also asking the Supreme Court to create a right to discriminate in our nation’s Constitution.

Learn more about the Open to All campaign at www.opentoall.org.

Read Professor Franke and Johnathan Smith’s Op-ed at Slate, here.

Read the Public Rights/Private Conscience Project’s amicus brief in Masterpiece Cakeshop v. Colorado Civil Rights Commission here.

Media Advisory: Experts Available for Interviews on Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission

MEDIA ADVISORY

12/5: SCOTUS Hearing – Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission
Religious Freedom or Discrimination?

Experts Available for Interviews on Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission

Columbia Law School Professor Katherine Franke and Elizabeth Platt Filed an Amicus Brief in the Case on Behalf of a Coalition of 15 Civil Rights and Faith Organizations.

* * * * *

Media Contacts:

The Office of Public Affairs, Columbia Law School
212.854.2650
publicaffairs@law.columbia.edu

Elizabeth Boylan, Associate Director, Center for Gender & Sexuality Law
212.854.0167
eboyla@law.columbia.edu

* * * * *

New York, December 1, 2017—Columbia Law School Professor Katherine Franke, a leading expert on law, religion and rights— drawing from feminist, queer, and critical race theory—and Elizabeth Platt, Director of The Public Rights/Private Conscience Project (PRPCP), are available to discuss Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the case in which a baker claims that free speech protects his right to refuse to make a cake for a same-sex wedding.

Oral arguments will be presented Tuesday before the Supreme Court.

In October, under the aegis of The Public Rights/Private Conscience Project, Franke and Platt filed an amicus brief in the case on behalf of a coalition of 15 civil rights and faith organizations. They argued that overly broad accommodations of religious liberty undermine not just LGBT rights but religious liberty itself.

“The Supreme Court’s most significant religious liberty cases have drawn a connection between the protection of religious liberty and principles of non-discrimination,” Franke said about the case. “Masterpiece Cakeshop’s argument throws a wedge between these two fundamental American values, a position that poses a particularly dangerous threat to the rights of people of minority faith traditions.”

The Public Rights/Private Conscience Project is a think tank housed within the Center for Gender and Sexuality Law at Columbia Law School. Its mission is to bring legal, policy, advocacy, and academic expertise to bear on the multiple contexts in which religious liberty rights conflict with or undermine other fundamental rights to equality and liberty.

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Note: The Law School also has a broadcast studio on campus equipped with an ISDN line and TV connectivity through VideoLink. Please contact the Public Affairs Office for bookings.

Media Advisory – Dignity Denied: Religious Exemptions and LGBT Elders

Dignity Denied: Religious Exemptions and LGBT Elders

Media Advisory: The Public Rights/Private Conscience Project joins SAGE and the Movement Advancement Project announce the release of a groundbreaking report entitled, Dignity Denied: Religious Liberties and Elder Care, on the negative impacts Religious exemption laws and policies have on elder LGBT persons in the United States, and how these policies put elder LGBT persons at risk of discrimination.

Date:
Friday, December 15, 2017
12:00 pm – 2:00 pm

Location:
Union Theological Seminary
Columbia University in the City of New York
3041 Broadway (at West 121 Street), Room 207
New York, NY 10027

Press Contact:
Liz Boylan
Associate Director, Center for Gender & Sexuality Law, Columbia Law School
212.854.0167 | eboyla@law.columbia.edu.

[NEW YORK] The Public Rights/Private Conscience Project is thrilled to join SAGE, the nation’s largest and oldest organization dedicated to improving the lives of LGBT elders, and the Movement Advancement Project in announcing the release of a groundbreaking report on how Religious exemption laws and policies have a disproportionately negative impact on elder LGBT persons in the United States.

The report will be launched with a panel discussion and luncheon on Friday, December 15th at Columbia University’s Union Theological Seminary.  The program will detail the increased risks LGBT older adults face as a result of recent religious exemption laws and policies that enable a “right to discriminate.”

This program is free and open to the public.  Please RSVP via: utsnyc.edu/SAGE

  • Alex Sheldon, Research Analyst, The Movement Advancement Project
  • Audrey Weiner, President and CEO, The New Jewish Home
  • Carmelyn P. Malalis, Chair and Commissioner, New York City Commission on Human Rights
  • Fred Davie, Executive Vice President, Union Theological Seminary
  • Jonathan Soto, NYC Mayor’s Office: Executive Director of the Center for Faith and Community Partnerships
  • Katherine Franke, Professor of Law and Faculty Director of the Public Rights/Private Conscience Project, Columbia Law School
  • Michael Adams, CEO, SAGE
  • Rose Saxe, Senior Staff Attorney, LGBT & HIV Project, American Civil Liberties Union
  • Sandy Warshaw, SAGE Constituent

“This report, and the amicus brief SAGE filed in the Masterpiece Cake case, clearly demonstrate that personal religious beliefs should never be a license to discriminate against LGBT people or anybody else,” says Michael Adams, CEO of SAGE. “That’s why we are bringing together aging experts, religious leaders, and our elders, to expose the dangers that so-called “religious exemptions” pose for LGBT elders who need care and services. We must not allow the doors of a nursing home or a critical care provider to slam in LGBT elders’ faces just because of who they are and whom they love.”

Columbia Law School Think Tank Files Amicus Brief in SCOTUS Case

In Masterpiece Cakeshop Case, Diverse Organizations Argue Anti-discrimination Laws Protect, Not Burden, Religious Liberty

For Immediate Release: October 31, 2017

Subject: Columbia Law School Think Tank Files Amicus Brief in SCOTUS Case, Masterpiece Cakeshop v. Colorado Civil Rights Commission

From: The Public Rights/Private Conscience Project (PRPCP), Columbia Law School

Contact: Liz Boylan | eboyla@law.columbia.edu | 212.854.0167

Yesterday, Columbia Law School’s Public Rights/Private Conscience Project and Muslim Advocates filed an amicus brief in the U.S. Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission on behalf of a coalition of 15 diverse civil rights and faith organizations. At issue in Masterpiece Cakeshop is whether the owners of a Colorado public establishment may, due to their own private religious beliefs, refuse service to individuals because of their sexual orientation.

The amicus brief argues that overly-broad accommodations of religious liberty, such as that requested by Masterpiece Cakeshop, undermine not just LGBT rights but religious liberty itself.  As the brief explains: “There can be no dispute that anti-discrimination laws have long played a crucial role in protecting the rights of religious minorities. Petitioners’ requested exemption will dramatically limit—if not completely eliminate—that protection.”

Today’s filing also highlights that interconnectedness of religious freedom and robust anti-discrimination laws.  In fact, the brief makes clear that our country’s “constitutional commitment to religious liberty has always entailed a corollary commitment to non-discrimination. Indeed, the integrity of the former has always relied upon the enforcement of the latter. ”

The coalition of civil rights and faith organizations that submitted this amicus brief to the Supreme Court represent the vast diversity within American faith communities.  The signatories include:  Muslim Public Affairs Council, American Humanist Association, DignityUSA, Sikh Coalition, T’ruah: The Rabbinic Call for Human Rights, Capital Area Muslim Bar Association, Advocates for Youth, Muslim Alliance for Sexual and Gender Diversity, National LGBT Bar Association, Interfaith Alliance Foundation, Asian Americans Advancing Justice | AAJC, Sikh American Legal Defense and Education Fund, and New Jersey Muslim Lawyers Association (NJMLA).

“The Supreme Court’s most significant religious liberty cases have drawn a connection between the protection of religious liberty and principles of non-discrimination,” said Katherine Franke, Professor of Law and Faculty Director of the Public Rights/Private Conscience Project at Columbia Law School.  “Masterpiece Cakeshop’s argument throws a wedge between these two fundamental American values, a position that poses a particularly dangerous threat to the rights of people of minority faith traditions.”

“Religious liberty and non-discrimination are inextricably tied to one another and should not be traded off against each other,” said Johnathan Smith, legal director at Muslim Advocates.  “When robust civil rights protections are undermined, religious groups have no recourse to defend themselves against discrimination.  A ruling in favor of Masterpiece Cakeshop would undercut fundamental civil rights protections that are critical for maintaining this country’s longstanding commitments to religious freedom and religious pluralism.”

The amicus brief was authored by Columbia Law School’s Public Rights/Private Conscience Project, Muslim Advocates, and the law firm Hogan Lovells.  The U.S. Supreme Court is scheduled to hear oral arguments in Masterpiece Cakeshop on Tuesday, December 5.

A copy of the brief is available here.

Muslim Advocates is a national legal advocacy and educational organization that works on the frontlines of civil rights to guarantee freedom and justice for Americans of all faiths.

The Public Rights/Private Conscience Project is a think tank housed within the Center for Gender and Sexuality Law at Columbia Law School. Our mission is to bring legal, policy, advocacy, and academic expertise to bear on the multiple contexts in which religious liberty rights conflict with or undermine other fundamental rights to equality and liberty.

 

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.

Columbia Law Experts Denounce Federal Guidance Allowing Religious and Moral Discrimination in Contraceptive Coverage

Press Statement: October 6, 2017

Liz Boylan, eboyla@law.columbia.edu, 212.854.0167

Columbia Law School’s Public Rights/Private Conscience Project (PRPCP) condemns the Trump administration for issuing sweeping new rules today that roll back the Affordable Care Act (ACA)’s birth control benefit, by broadening exemptions for employers who claim religious or moral objections to offering birth control to their workers. These regulations place the religious and moral views of employers above the health and wellbeing of their workers and gut the contraceptive coverage provision of the ACA by dramatically reducing access to affordable birth control. Rather than protecting religious freedom for all Americans, these regulations are part of the current administration’s ongoing effort to advance a limited set of conservative religious beliefs while limiting the liberty and equality rights of women, LGBTQ people, people of color, and religious minorities.

For over seven years, the religious right has waged a battle to limit the scope of preventive health care services covered by the ACA, including essential reproductive health care. In 2014, they won a significant victory when the Supreme Court ruled in Burwell v. Hobby Lobby that secular for-profit companies could assert religion-based waivers from the duty to include health care coverage for contraceptives in their employee health plans. The Court’s opinion hinged, however, on the fact that women would still have access to such care, which would be covered by their insurance plan rather that their employer. After another three years of litigation and intense lobbying, anti-choice advocates have at long last succeeded in making it possible for employers to entirely cut off their employee’s access to contraceptive coverage, not only because of their religious objections, but now because of their moral objections as well.

In depriving workers and their families of essential health care coverage, the regulation violates both the First Amendment’s Establishment Clause and the Fourteenth Amendment’s Equal Protection Clause. By requiring workers to bear the cost of their employer’s religious beliefs, the regulation conflicts with a clear line of Supreme Court cases which hold that where a government-created religious accommodation imposes serious harms on others, it ceases to be a valid protection of personal faith and instead becomes an unconstitutional establishment of religion.

“With these new rules, the federal government is giving the green light to employers to discriminate against their women workers, and those seeking access to reproductive care, in the name of religious liberty or individual moral belief,” said Katherine Franke, Sulzbacher Professor of Law at Columbia Law School and Faculty Director of the Public Rights/Private Conscience Project. “The fundamental health care needs of working women are now held hostage by right wing interest groups,” Franke concluded.

As PRPCP’s Racial Justice Program (RJP) has noted in the past, these types of rules have an especially devastating impact on women of color. Women of color have higher unintended pregnancy rates than their white counterparts and face increasing difficulties in accessing care. Eliminating these disparities requires increasing access to contraception and family planning resources, which allow women of color to plan whether and when they have a child, which research has shown provides them with greater financial stability and freedom. “Research shows that teen pregnancy rates have dropped to an all-time low in recent years due to increased access to affordable, quality contraception and education about family planning,” said Kira Shepherd, Director of PRPCP’s Racial Justice Program. “Native Americans, Black communities and Latinas, who have the highest teen pregnancy rates of all communities, stand to be harmed the most by these new rules, which limit young women’s and people’s ability to make informed choices about their reproductive health and lives. Here, the Trump administration has once again shown that it cares little about the health and wellbeing of communities of color.”

“President Trump’s repeated efforts to ban immigration from majority-Muslim countries—which a circuit court said drips ‘with religious intolerance, animus, and discrimination’—demonstrate that the administration is not concerned with protecting religious freedom for everyone,” said Elizabeth Reiner Platt, Director of PRPCP. “These rules are just another demonstration of the ongoing effort to push conservative religious beliefs about sex, marriage, and reproduction onto others who do not share those beliefs.”

Access a .pdf of this statement here: http://tinyurl.com/PRPCP-Release-ACA-10-6

Learn more about PRPCP’s staff here: http://tinyurl.com/PRPCP-Staff

For more information on the PRPCP, visit our website: http://tinyurl.com/PRPCP-Columbia

 

Columbia Law Experts Denounce DOJ Religious Liberty Guidance as Attack on Religious Liberty and Fundamental Equality Rights

Press Statement:
October 6, 2017

Contact:
Liz Boylan,
eboyla@law.columbia.edu, 212.854.0167

Columbia Law School’s Public Rights/Private Conscience Project (PRPCP) denounces the memorandum released today by the Department of Justice (DOJ) entitled the “Federal Memorandum for Religious Liberty Protections.” This document, and its implementation guidance misinterpret the meaning and scope of religious liberty under the Constitution and the federal Religious Freedom Restoration Act (RFRA), demonstrating this administration’s continued commitment to elevating a particular set of religious beliefs over the safety and equality rights of women, LGBTQ people, people of color, and religious minorities.

As we have previously noted, we are concerned that this guidance will lead to the inappropriate and destructive under or non-enforcement of a host of essential health, labor, and antidiscrimination laws and policies. “Today’s DOJ guidance will have tangible consequences for a range of communities, including LGBTQ communities, particularly those who rely on government-funded services and programs to live and survive,” said Ashe McGovern, PRPCP’s Legislative and Policy Director. “This guidance essentially requires all federal agencies to incorporate the Department of Justice’s flawed interpretation of religious liberty law when considering new rules, programs, or guidance, and will undoubtedly lead to discrimination and denial of services, by granting legal impunity to organizations and programs that discriminate with taxpayer funds.”

PRPCP is also concerned that the regulation oversteps the boundaries of DOJ’s power, by improperly encroaching onto the judiciary’s duty to interpret important and sensitive questions regarding the meaning and scope of religious liberty. RFRA was passed by Congress in 1993 as an effort to support and protect religious minorities who experience discrimination, and to ensure that courts carefully balance religious liberty rights with other fundamental rights to equality and justice. “The DOJ has decided to put its thumb down on a scale that Congress carefully designed by enacting RFRA, and that courts have since interpreted as such, in a way that disregards the fundamental rights of those experiencing religious-based discrimination,” says McGovern.

The DOJ’s misinterpretation of RFRA and religious liberty law generally is likely to decrease rather than increase religious plurality. Inappropriately-broad exemptions run the risk of allowing religious objectors to become religious enforcers, permitting employers, health care providers, landlords, and service providers to impose their religious views on others who do not share them. “PRPCP is especially wary that complex questions regarding religious freedom and its limits are being made by cabinet members that appear to oppose the separation of church and state, and have supported discrimination against religious minorities,” said Elizabeth Reiner Platt, Director of the PRPCP. “Jeff Sessions has long sought to narrow the reach of the Establishment Clause, even suggesting in 2016 that states could establish an official religion. He has been an adamant supporter of the President’s anti-Muslim travel ban. This raises questions about his commitment to true religious freedom and plurality.”

“Ultimately,” McGovern says, “the DOJ’s guidance not only enables what advocates are calling a ‘License to Discriminate’ against LGBTQ communities, although that intent is clear. This guidance is also an attack on our Constitution, and the careful balance it strikes between religious liberty and other fundamental rights to equality and justice.”

Access a .pdf of this statement here: http://tinyurl.com/PRPCP-Release-DOJ-10-6

Learn more about PRPCP’s staff here: http://tinyurl.com/PRPCP-Staff

For more information on the PRPCP, visit our website: http://tinyurl.com/PRPCP-Columbia

Michigan Lawsuit Challenges Constitutionality of Religious-Based Discrimination by Child Welfare Agencies

Cross-posted to Medium.com

Last week, the ACLU filed a lawsuit in Michigan challenging a set of laws passed in 2015 that enable state-funded child welfare organizations to discriminate against prospective parents and children on the basis of the organization’s “sincerely held religious beliefs.” This case is one of the first to challenge a growing number of similar state laws that have passed recently. Specifically, Michigan’s laws state that “a child placing agency shall not be required to provide any services if those services conflict with, or provide any services under circumstances that conflict with, the child placing agency’s sincerely held religious beliefs.” In practice, faith-based service providers have been legally emboldened to deny adoptive and foster care opportunities to same-sex couples, including two sets of plaintiffs in the suit. The laws also seem to allow the child placement organizations to discriminate against other groups whose lives may not comport with the organization’s religious beliefs, including single or unmarried parents, LGBTQ youth under agency care, and those who subscribe to religious tenets that the organization does not support.

Michigan, like many other states, outsources child welfare services to private organizations through contracts and grants using taxpayer money. These organizations have significant responsibilities that the state would otherwise be obligated to undertake—including caring for and finding homes for children currently in state custody. Faith-based organizations make up nearly half of the agencies Michigan contracts with to do this work.

Legal and Constitutional Challenges

While the complaint does not challenge a privately funded agency’s right to place or care for children in accordance with their religious beliefs, the ACLU argues that because Michigan contracts with private agencies to provide services for children in state custody—and pays them with taxpayer funds—those agencies must meet the same legal and constitutional obligations as the state.

 In its complaint, the ACLU raises two important constitutional claims. First, they argue that Michigan’s actions violate the Establishment Clause of the First Amendment, which mandates a separation between church and state and thus bars the state from providing or refusing to provide government services based on religious criteria. They also argue that the Establishment Clause prohibits the state from “delegating a government function to religious organizations and then allowing those organizations to perform that government function pursuant to religious criteria,” which is exactly what these agencies are doing by denying services to same-sex couples based on religious belief. The ACLU also argues that the laws violate the Equal Protection Clause of the Fourteenth Amendment, which prohibits the state from discriminating on the basis of sexual orientation through “instrumentalities of the state.” In this case, because the faith-based organizations receive state funds specifically to provide the services in question, they qualify as instrumentalities of the state. Finally, the complaint alleges that the Michigan Department of Health and Human Services (DHHS), one of two agencies named in the lawsuit, is violating its own nondiscrimination protections by knowingly allowing child placing agencies to discriminate. DHHS’s Adoption Program Statement, also known as Publication 225, dictates that the department “will not discriminate against any individual or group because of race, religion, age, national origin, color, height, weight, marital status, sex, sexual orientation, gender identity or expression, political beliefs or disability.”

National Trends and Significance

The stakes in Michigan, and nationally, are significant. Michigan currently has 13,000 children in the foster care system, many of whom will wait years to find a family or will age out of the system without having been placed with one. This past year, Alabama, South Dakota and Texas passed similar laws, adding to the three states—North Dakota, Virginia, and Mississippi—that have already passed related laws.

Building off momentum in the states, Congress introduced the Child Welfare Provider Inclusion Act of 2017 (CWPIA) this year. Under that law, the federal government could withhold federal child welfare funds to states that choose not to contract with faith-based organizations, even if states terminate those contracts because the organizations have engaged in unlawful discrimination. If passed, CWPIA would put millions of dollars in federal funding at risk and make thousands of vulnerable children in foster and adoptive care even more vulnerable. Beyond the child welfare context, the Trump administration announced earlier this year that it will re-evaluate protocols and obligations for distributing federal funds to faith-based organizations across all federal agencies, likely resulting in significant consequences for a range of marginalized communities.

These child placement laws are part of national strategy adopted by faith-based organizations and national Christian Right organizations, including the Alliance Defending Freedom, to frame standard government oversight and enforcement of nondiscrimination protections as “discrimination”—not only in the child welfare context, but also where individuals and groups seek access to affirming healthcare, social services, education, housing, and employment. It is vital that advocates continue to challenge this problematic frame—in order to ensure that new and decades-old civil rights and nondiscrimination protections are not entirely nullified because legislatures are invested in giving unconstitutional supremacy to individual religious beliefs over all other rights. The Constitution requires that a proper balance be struck between individual religious beliefs and other fundamental guarantees under the Constitution—particularly where the government is instrumental in funding or facilitating discrimination.

Trump’s “Religious Freedom” Guidance Likely Imminent and Harmful to LGBTQ Communities and Others

Cross-posted on Medium.

Last week, Attorney General Jeff Sessions gave a closed-press speech at a summit hosted by the Alliance Defending Freedom (ADF), a group that has notoriously fought to undermine LGBTQ and reproductive rights for years under the guise of protecting religious freedom. Among other concerning statements, Sessions promised that he would soon issue guidance for all federal agencies to implement President Trump’s recently enacted “religious freedom” executive order:

The department is finalizing this guidance, and I will soon issue it. The guidance will also help agencies follow the Religious Freedom Restoration Act. Congress enacted RFRA so that, if the federal government imposes a burden on somebody’s religious practice, it had better have a compelling reason. That is a demanding standard, and it’s the law of the land. We will follow it just as faithfully as we follow every other federal law. If we’re going to ensure that religious liberty is adequately protected and our country remains free, then we must ensure that RFRA is followed.

Given Sessions’ skewed prioritization of some, but not all, “religious liberty” rights over other fundamental equality guarantees under the Constitution, there is good reason to be concerned about the potential impact on LGBTQ and others, particularly Muslim communities, women, people of color, and those seeking access to reproductive healthcare.

As we discussed in our report Church, State and the Trump Administration, before taking office, Sessions made a career fighting against justice and equality for marginalized communities, including LGBTQ communities. While in the Senate, he voted against the Employment Non-Discrimination Act (ENDA), which would have protected workers nationwide from discrimination on the basis of sexual orientation. He called the Supreme Court’s decision in Obergefell v. Hodges, which found that the Fourteenth Amendment guarantees a right to marry for same-sex couples, “unconstitutional,” and “beyond what [he] considers to be the realm of reality.” He has also publicly opposed protecting LGBTQ people in federal hate crimes legislation and the Violence Against Women Act, voting against both bills while in the Senate. And when the reauthorization of the Runaway and Homeless Youth Act came up for a vote, he opposed that too, claiming that explicit protections for vulnerable LGBTQ youth meant it “could have discriminated against faith-based organizations.”

Furthermore, Sessions supported the First Amendment Defense Act (FADA) as an original co-sponsor. FADA would forbid the federal government from enforcing a wide range of health, benefits, and antidiscrimination laws against individuals and businesses who act on “a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.” This could lead to sweeping discrimination against LGBTQ people and anyone who has had sex outside of a different-sex marriage, including unmarried pregnant and parenting women. As we’ve noted in a previous report, these types of exemptions have a serious and disproportionate impact on women and pregnant people of color.

Although no information has been leaked about the pending guidance, Trump’s previously leaked Executive Order, which was significantly longer than the one he ultimately issued, may provide some insight into what the guidance may prioritize. As we discussed in a report focusing on the potential consequences of the leaked Executive Order, this could include a range of harmful outcomes, including broad exemptions that would allow private and nonprofit organizations that contract with the federal government to violate federal civil rights and nondiscrimination laws in providing social services, educational opportunities, healthcare, employment or other services—with impunity.

If Sessions’ actions in the Department of Justice are any indication, the guidance is likely to create broad opportunities for agencies across the federal government to roll back Obama-era civil rights protections and other important constitutional guarantees, using “religious freedom” as a cover.