Policy Reports, Amicus Briefs and Testimony
The Law, Rights, and Religion Project engages in policy work on a wide range of religious exemption issues. You can find more information about our latest policy projects in the links below.
We have broken out our work here into four core categories, including Reports, Policy Analysis, Amicus Briefs, and Testimony.
For a further understanding of our work, we encourage you to read our About Us page, and review our Frequently Asked Questions.
Reports
The Southern Hospitals Report: Faith, Culture, and Abortion Bans in the U.S. South presents new research that hospitals across the region strictly regulate the provision of abortion, leading to delays and denials of care for patients facing severe pregnancy complications. While such restrictions at Catholic hospitals are well known, the report breaks new ground in uncovering abortion policies at Protestant and secular—including public—facilities.
The result of a two-year investigation including interviews with doctors, hospital administrators, advocates, researchers, and faith leaders, the report contains four key findings:
- Strict limits on abortion care are ubiquitous at Baptist hospitals in the South and are common at other Protestant-affiliated facilities.
- While Protestant hospitals are typically no longer owned by religious institutions, they are not religious "in name only," as some advocates and doctors initially suggested to us. Rather, these systems have retained important connections to their founding denominations.
- Abortion bans have also been instated at many public hospitals in the South, due to a variety of factors including legal prohibitions, anti-choice boards or administrators, fear of losing public or private funding, or community pressure;
- Many hospitals use termination of pregnancy committees or boards to evaluate patients and determine whether a doctor can perform a medically indicated abortion in the facility.
The report contains numerous firsthand accounts from doctors of the impact of abortion restrictions on patients. Among many stories, doctors explained how abortion bans limited their ability to care for patients experiencing early miscarriage, kidney disease, cervical cancer, leukemia, and serious fetal anomalies.
Background
Late on a Friday evening in April 2021, over a year into the COVID-19 crisis, the U.S. Supreme Court issued a brief opinion in Tandon v. Newsom that dramatically transformed constitutional law: it ruled that state and local governments seeking to curb the spread of the novel coronavirus may not restrict in-person religious gatherings more rigorously than any other type of activity, such as shopping for groceries or working at a warehouse.
What does this mean?
According to the Supreme Court, when a law treats any activity more favorably than religious exercise, this now constitutes illicit—and likely unconstitutional—discrimination. Given that nearly all laws and policies contain some limitations (for example, minimum wage laws that exempt restaurants), this standard could have a sweeping impact.
The Supreme Court’s new approach provides religious activity with a level of constitutional protection greater than nearly any other fundamental right, including the right to free speech, abortion, and racial equality.
About the report
The report We The People (of Faith): The Supremacy of Religious Rights in the Shadow of a Pandemic shows that the Supreme Court’s COVID-era opinions have created a hierarchy of constitutional rights, with religious rights at the top. This legal regime will have a resounding impact on U.S. law, affecting policymakers’ ability to protect public health, prevent discrimination, and secure labor rights long after the current COVID-19 crisis has abated.
Key points of the report include:
- The Supreme Court has created an unprecedented “discrimination on steroids” test for finding that a law is unfair to religious practice. This standard is far more sensitive than the test for finding discrimination based on race.
- The Supreme Court has awarded far greater protection to the right to free exercise of religion during the COVID pandemic than other rights, including the right to abortion, voting rights, and the right to be free from cruel and unusual punishment.
- In its COVID/Free Exercise opinions, the Court has declined to award deference to scientific experts, and has even seemed to reject common knowledge about day-to-day activities - such as the many ways in which a religious service differs from a trip to the grocery store, and might therefore be regulated differently.
Download the We The People (of Faith) report here.
All Faiths and None: A Guide to Protecting Religious Liberty for Everyone is a guidance memo for policymakers created by the Law, Rights and Religion Project in collaboration with Auburn Seminary.
The report posits that policymakers have lost sight of the meaning and purpose of the First Amendment’s guarantee of religious freedom, and offers guidance on what the incoming presidential administration must do to protect freedom of conscience for all, not merely for a favored few.
Its recommendations are organized around a set of guiding principles stating that religious liberty must be:
- neutral;
- noncoercive;
- nondiscriminatory;
- not absolute;
- democratic;
- pluralistic.
The report is accompanied by a Media Guide for journalists suggesting ways to think about and hone questions for policymakers and advocates claiming to protect religious liberty.
For Policymakers: Download All Faiths and None Policy Guide to Protecting Religious Liberty for Everyone (pdf)
For Journalists: Download Media Guide to Asking the Hard Questions About Religious Liberty (pdf)
November 12, 2019
Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right is a comprehensive report that documents the many contexts in which people of faith engaged in humanitarian and social justice work have fought for the right to exercise their religion.
The report also discusses how the Christian Right has positioned itself as the sole defender of “religious liberty” while in fact advocating for only a narrow band of religious views.
By offering a sweeping account of religious liberty activism by progressive movements and uncovering how right-wing activists have fought for conservative Christian hegemony rather than “religious liberty," Whose Faith Matters? challenges the leading popular narrative of religious freedom and charts a path forward to ensure religious freedom for all.
New Report, "Religious Liberty for a Select Few" Details Consequences of Trump Administration’s Overly Broad Guidance on Religious Liberty
April 3, 2018
This report, authored in collaboration with the Center for American Progress, outlines the ways in which a guidance document issued by Jeff Sessions' misstates numerous aspects of religious exemption law. The guidance is already being used to limit access to reproductive health care, as the Department of Health and Human Services promulgates rules vastly expanding the right to deny reproductive health care to patients and employees. As agencies continue to implement it, the guidance threatens to limit enforcement of an enormous range of health, employment, and anti-discrimination protections. The report also examines the likely consequences of the guidance on government grantees and contractors.
Access the full details about the report, and a .pdf of the report, here.
Access a web-based version of the report at the Center for American Progress, here.
Bearing Faith: The Limits of Catholic Health Care for Women of Color
January 19, 2018
In January 2018, the Law, Rights, and Religion Project's Racial Justice Program, in partnership with Public Health Solutions, published a report, "Bearing Faith: The Limits of Catholic Health Care for Women of Color. The report addresses the fact that pregnant women of color are at greater risk of being deprived of a range of reproductive health services in many US states as a result of their disproportionate use of Catholic hospitals. Bearing Faith: The Limits of Catholic Health Care for Women of Color compares racial disparities in birth rates at hospitals that place religious restrictions on health care.
Learn more about the report, and access a .pdf of the report, here
Dignity Denied: Religious Exemptions and LGBT Elder Services
December 15, 2017
The Law, Rights, and Religion Project issued a report with SAGE and MAP on the unique ways in which lesbian, gay, bisexual, and transgender (LGBT) elders are harmed by a growing number of laws and policies aimed at exempting religious organizations and individuals from following nondiscrimination and civil rights laws and policies.
Access details about the report, and a .pdf of the report, here
Unmarried & Unprotected: How Religious Liberty Bills Harm Pregnant People, Families, and Communities of Color
January 25, 2017
In January 2017, the Law, Rights, and Religion Project's Racial Justice Program published this report, Unmarried and Unprotected: How Religious Liberty Bills Harm Pregnant People, Families, and Communities of Color.
This report shows how recent legislative efforts to expand religious liberty rights, such as the First Amendment Defense Act (FADA), allow religious objectors to violate laws that protect against pregnancy, familial status, and marital status discrimination. These measures will disproportionately impact women of color who are more likely to become pregnant and raise families when unmarried.
Learn more about the report and access a .pdf of the report, here
Policy Analysis
In December 2021, the Law, Rights, and Religion Project submitted comments to the Office of Federal Contract Compliance Programs (OFCCP) to express our support of the rescission of the expanded religious exemption in Executive Order 11246, which allows contractors to discriminate.
The current rule expanded the religious exemption in Executive Order 11246 and was “intended to make clear that religious employers can condition employment on acceptance of or adherence to religious tenets without sanction by the federal government, provided that they do not discriminate based on other protected bases.”1 Discrimination on the basis of protected characteristics other than religion, including race, color, sex, sexual orientation, gender identity, or national origin, ostensibly remain prohibited by the Executive Order, including for religious organizations. Nevertheless, the rule’s clear purpose was to push the boundaries of permissible religious exemptions in ways that undoubtedly undermine the enforcement of antidiscrimination protections overall. The existing rule not only leaves employees more vulnerable to sex, race, and other forms of discrimination—it also threatens to increase religious segregation in ways that harm the very value it seeks to protect: religious liberty. This comment outlines the many ways in which the current rule stands to erode important civil rights protections that have safeguarded both equality rights and religious liberty for decades.
You can download it here.
Press Advisory
Date: May 5, 2020
Subject: Religious Liberty Challenges to Health Care in the Age of COVID-19 – Supreme Court Arguments in Little Sisters of the Poor v. Pennsylvania
Contact: Katherine Franke, [email protected]; Lilia Hadjiivanova, [email protected]
New York, New York — On Wednesday, May 6, 2020 the Supreme Court will be hearing arguments (telephonically) in the most recent challenge to the Affordable Care Act’s requirement that employee health plans include contraception coverage, Little Sisters of the Poor v. Pennsylvania. The case raises the important question of whether religious liberty rights can be used to limit access to health care at a time when the nation – and the world – is experiencing one of the worst global pandemics in human history. For this reason, the issues in this case take on special significance.
The Law, Rights, and Religion Project at Columbia Law School urges Supreme Court watchers to listen to the arguments in the Affordable Care Act case in the shadow of COVID-19. We should pay particular attention to the way in which the lawyers argue the case and the Justices question those lawyers in light of the following:
- The case raises important questions about how the federal government has created exceptions to the “contraception mandate” in order to accommodate a wide range of complex interests, including objections by some religious employers. As governors have issued bans on public gatherings in recent weeks to protect the public from exposure to COVID-19, they have crafted a patchwork of rules about what counts as a public gathering, which gatherings are non-essential, and what precautions must be taken at essential public gatherings. The complexity of these rules has been pointed to by parties seeking court orders allowing religious gatherings that would otherwise violate governors’ emergency orders, arguing that exceptions for non-religious gatherings are evidence that the rules target or discriminate against religious gatherings. Thus, attention should be paid in the arguments in the Little Sisters of the Poor case to the way in which the Supreme Court Justices portray exceptions to the “contraception mandate” as either reasonable efforts on the part of the federal government to regulate in a very complicated context or as evidence that the government did not do enough to accommodate religious liberty – what some advocates term “religious persecution or discrimination”.
- The case also offers an opportunity for the Court to consider how religious liberty rights should be balanced against other fundamental rights; in this case, reproductive liberty. What we are seeing in the COVID-19 cases is that courts are treating government interests in protecting public health as extremely compelling when states have acted to ban “elective surgeries” such as surgical abortions, and fundamental constitutional rights to reproductive health care are treated as relatively negotiable by contrast. By comparison, in cases where churches have challenged state bans on public gatherings, many courts have second-guessed the state’s methods used to protect public health, and have moved aggressively to protect religious liberty in the face of what they regard to be less compelling state policy. Attention should be paid in the arguments in the Little Sisters of the Poor case to how the right to religious liberty is being weighed in comparison to the right to reproductive health care. So, too, it will be instructive to hear how the parties and the Justices weigh the state’s compelling interest in protecting health care when faced with a religious challenge thereto.
The Law, Rights, and Religion Project will be issuing a briefing paper in the next week that discusses and contrasts the religious liberty and reproductive rights challenges to emergency orders banning public gatherings and “elective surgeries”, explaining what’s at stake in these cases, and how the strategies pursued in the litigation fit into larger trends in religious liberty and reproductive rights law and policy. The briefing paper will be available on our website next week.
Today, the Law, Rights, and Religion Project (LRRP) at Columbia Law School submitted a comment to the Department of Labor Office of Federal Contract Compliance Programs on a proposed rule that would limit the enforcement of antidiscrimination requirements on federal contractors. The proposed rule would permit some companies—including for-profit corporations—to condition employment on the “acceptance of or adherence to religious tenets as understood by the employer.” Thus, the rule would erode religious antidiscrimination protections for employees working for federal contractors.
The rule would have an especially detrimental impact on religious minorities including Muslims, Jews, and atheists, who already face disproportionate rates of employment discrimination. The loss of these protections would, moreover, be devastating to workers who are not covered by other state or federal antidiscrimination laws, such as those working for small businesses.
While promulgated in the name of “religious liberty,” the proposed rule stands to narrow this right far more than protect it. As LRRP’s comment explains: “An essential component of religious liberty is the right to participate in the economy and public life, regardless of one’s religious identity, without fear of discrimination. Laws and regulations banning religious discrimination, including the prohibition on religious discrimination by government contractors, have been indispensable to ensuring that people of all faiths are able to fully participate in civil society…Without such protection, some people of faith—especially those living in religiously homogenous communities—would no doubt feel pressured to hide their religious beliefs to avoid discrimination. They may, moreover, feel chilled from exercising important faith-based practices—such as wearing religious garb, eating religious diets, or engaging in prayer—while in the workplace.”
The rule also threatens to allow contractors to impose religion-based requirements on employees that might otherwise violate sex, race, and other antidiscrimination protections. Such requirements might include sexual morality codes that would open the door to discrimination against LGBTQ and unmarried pregnant or parenting workers, or enforcement of the so-called “Billy Graham rule”—prohibiting male employees from spending time alone with female colleagues to whom they are not married—that would limit mentorship and other opportunities for female employees.
“Yet again, the administration is weakening protections for religious minorities in the name of ‘religious liberty,’” said Elizabeth Reiner Platt, Director of the Law, Rights, and Religion Project. “Putting a large chunk of the labor force at risk of losing their job if they do not comport with the theological beliefs of their employers is no sense a reasonable way to protect religious freedom.”
The comment is available on the Law, Rights, and Religion Project’s policy page here.
September 9, 2019
Access the full Press Advisory issued by the Law, Rights, and Religion Project here.
The Legal Scholars' amicus brief is available here.
Today, nationally recognized law professors with expertise in religious liberty law filed an amicus brief in a case in which Pastor Kaji Douša, Senior Pastor at Park Avenue Christian Church in New York City, claims that the U.S. government has targeted her for surveillance, harassment, and other negative treatment because of her ministry to migrants. Pastor Douša’s case presents a particularly egregious case of the federal government substantially burdening the religious liberty rights of faith-based humanitarian actors who provide aid to migrants. Pastor Douša claims that the U.S. government is violating her rights protected by the Free Exercise Clause of the First Amendment to the U.S. Constitution and the Religious Freedom Restoration Act (RFRA).
Columbia Law Professor Katherine Franke is the author of the brief, and the Faculty Director of the Law, Rights, and Religion Project at Columbia Law School. Signatories to the brief were Katherine Franke, Sulzbacher Professor of Law at Columbia Law School; Caroline Mala Corbin, Professor of Law at the University of Miami School of Law; Micah Schwartzman, Joseph W. Dorn Research Professor of Law at the University of Virginia School of Law; and Nelson Tebbe, Professor of Law at Cornell Law School. “We submitted this brief to the court because we have a strong interest that all religious liberty rights receive protection from government infringement no matter the political context,” said Professor Franke. “Since the Justice Department has demonstrated a strong bias in favor of the religious liberty rights of some conservative faith traditions, as experts in the law of religious liberty we want to provide the court with an unbiased, neutral framework with which to approach all claims in which a party seeks to exercise religious liberty.”
The brief, submitted in favor of neither party in the case – an unusual approach to amicus practice, points out that Pastor Douša is not urging an exemption from the enforcement of the law, as has been the trend in recent religious liberty cases. Rather, she claims that the U.S. government has subjected her to surveillance, harassment, and other adverse treatment - including placement on a secret government watch list - on account of her ministry with migrants. The brief notes, “if the Court were to find the plaintiff’s allegations founded, the case presents a rather obvious instance of religious persecution, precisely what the Free Exercise Clause of the First Amendment and RFRA were designed to protect against.”
The brief continues, “As former Attorney General Jeff Sessions stated unequivocally in guidance issued to all executive departments and agencies interpreting religious liberty protections in federal law, “To avoid the very sort of religious persecution and intolerance that led to the founding of the United States, the Free Exercise Clause of the Constitution protects against government actions that target religious conduct.””
The law professor’s amicus brief is available on the Law, Rights, and Religion Project’s policy page at https://bit.ly/2lG8Pna. Further details about Pastor Douša’s lawsuit claiming religious persecution can be found in “I Prayed With Migrants. Now The Government Is Tracking Me,” https://www.buzzfeednews.com/article/kajidousa/opinion-i-prayed-with-migrants-now-the-government-is.
Columbia Law Scholars respond to new HHS Rule, "Protecting Statutory Conscience Rights in Health Care"
May 2, 2019
Access a .pdf of the statement issued by the Law, Rights, and Religion Project, here.
During his National Day of Prayer remarks, President Trump announced a finalized rule that creates expansive legal protections for healthcare providers with specific religious beliefs, including opposition to abortion, sterilization, end-of-life care, and healthcare for LGBTQ persons. The final rule does not offer similarly broad protections to healthcare providers who feel religiously obligated to provide comprehensive sexual and reproductive healthcare to their patients.
Ironically, the announcement for the rule issued by the U.S. Department of Health and Human Services (HHS) states that it “fulfills President Trump’s promise to promote and protect the fundamental and unalienable rights of conscience and religious liberty.” In fact, the rule violates the religious liberty of all Americans by establishing a formal legal preference for particular religious beliefs, including opposition to abortion and sterilization.
As the Law, Rights, and Religion Project (LRRP) explained in our comment to HHS’s initial proposed rule, communities and people of faith hold a wide spectrum of views regarding abortion, sterilization, and other health services implicated by the rule.
Columbia Law Professor Comments on Federal Court Conviction Of Four Migrants' Rights Activists For Leaving Water and Food in the Arizona Desert, Ignoring their Religious Liberty Defense
January 19, 2019
On Friday, January 18, 2019, Magistrate Judge Bernardo Velasco found four activists with the group No More Deaths/No Más Muertes guilty of violating federal law for leaving water and food in the desert for migrants in the Cabrieza Pietra National Wildlife Area, a federally controlled refuge in the Southern Arizona desert where human remains of migrants are frequently found. The case signals the Trump administration's resolve to prosecute migrants' rights activists as aggressively as possible, even in relatively minor cases such as this one where the activists were charged with what amounts to "littering."
On January 19th, Professor Franke issued a statement in response to the verdict, available here.
Professor Franke previously submitted an amicus brief in the case, available here: Professor Katherine Franke Files Amicus Briefs on Religious Liberty Claims Raised in Federal Prosecutions of Activists.
Access the full text and a .pdf of the statement issued by Professor Franke, here.
Religion, Discrimination and Government Funding: Enforcing Civil Rights Law After Masterpiece Cakeshop and Trinity Lutheran
November 28, 2018
The Law, Rights, and Religion Project has published a memorandum that clarifies the responsibility of state and local human rights agencies and commissions to robustly enforce civil rights laws in the wake of the Supreme Court’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The memorandum, “Religion, Discrimination, and Government Funding: Enforcing Civil Rights Law After Masterpiece Cakeshop and Trinity Lutheran,” is designed to provide guidance to state and local governments on the proper balance between civil rights enforcement and constitutional free exercise rights. It also offers legislative and administrative steps that states and localities may take to ensure that the civil rights of their citizenry are robustly protected.
Access further details about the memorandum, and a .pdf of the memorandum, here.
Capitol Hill Briefing: Devalued, Turned Away, and Refused Health Care: What Happens to Women of Color When Religion Dictates Patient Care
May 24, 2018
The Law, Rights, and Religion Project, and the National Women’s Law Center hosted a Capitol Hill Briefing at 10:15am, on Thursday, May 24, 2018, to discuss the impact of religious health care refusals on women of color. The event, entitled Devalued, Turned Away, and Refused Health Care: What Happens to Women of Color When Religion Dictates Patient Care, was presented in cooperation with Senator Kamala Harris and Representative Bonnie Watson Coleman.
Access the full Press Release regarding this briefing, here.
Comment on U.S. Department of Health and Human Services Rule
March 27, 2018
In medical facilities across the country, doctors whose conscience would require them to perform a sterilization on a patient who requests one, offer truthful information about accessing abortion services, or provide comprehensive LGBTQ+ health care are forbidden from doing so by their employer. The conscience of such medical providers is entirely ignored by the U.S. Department of Health and Human Service’s (HHS) recently proposed rule that purports to “ensure that persons or entities” providing health care “are not subjected to certain practices or policies that violate conscience, coerce, or discriminate.”
The Law, Rights, and Religion Project submitted a comprehensive comment to the Department of Health and Human Services on the proposed rule.
The Law, Rights, and Religion Project Responds to the Reintroduction of the "First Amendment Defense Act" in the U.S. Senate
March 8, 2018
The Law, Rights, and Religion Project was dismayed that the deceptively named “First Amendment Defense Act” (FADA) was reintroduced into the U.S. Senate today by Sen. Mike Lee (R-Utah) and 21 Republican co-sponsors, including Sens. Marco Rubio (Fla.), Ted Cruz (Texas) and Orrin Hatch (Utah). Not only is this bill unnecessary to the protection of religious liberty in the United States, but its language would also be harmful to the constitutional rights of millions of Americans.
Access the Media Advisory circulated by the Law, Rights, and Religion Project on March 8th, here.
Columbia Law Experts Denounce DOJ Religious Liberty Guidance As Attack on Religious Liberty and Fundamental Equality
October 6, 2017
Experts from the Law, Rights, and Religion Project at Columbia Law School issued a Press Statement in response to a memorandum released on October 6th, 2017, by the United States Department of Justice, entitled the "Federal Memorandum for Religious Liberty Protections." In the Press Statement, it is noted that '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.'
Columbia Law Experts Denounce Federal Guidance Allowing Religious and Moral Discrimination in Contraceptive Coverage
October 6, 2017
Columbia Law School’s Law, Rights, and Religion Project issued a Press Statement in response to the Trump administration's announcement of new rules rolling back the Affordable Care Act's (ACA)'s birth control benefit, by broadening exemptions for employers who claim religious or moral objections to offering birth control to their workers. 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.
Access the full statement from the Law, Rights, and Religion Project, here.
Joint Statement by the Law, Rights, and Religion Project and CAIR-NY on Trump's Executive Order "Promoting Free Speech and Religious Liberty"
May 15, 2017
The Law, Rights, and Religion Project and CAIR-NY (The Council on American-Islamic Relations) released a joint statement on President Trump's Executive Order on religion. The statement explores how the order could in fact harm rather than protect religious minorities through the adoption of overly-broad religious exemptions by federal agencies. Further, the executive order could serve to advance particular conservative religious beliefs and congregations at the expense of other marginalized communities.
Read the full text of the statement and access a .pdf of the statement, here.
Press Advisory: Potential Consequences of Trump's "Religious Freedom" Executive Order
May 4, 2017
President Trump is set to sign a far-reaching and constitutionally problematic executive order today. Although a draft of the final order has not yet been released, it will likely mirror, at least in part, a similar draft that was leaked earlier this year. While more detailed analysis will be necessary once the final order has been released, the leaked order raises [a number of] issues. This Press Advisory highlights the most harmful potential consequences of President Trump's 'Religious Freedom' Executive Order, which is expected to be signed on May 4, at 11:00 am.
Five Key Questions to Ask About the New Executive Order on Religious Liberty
May 3, 2017
In advance of the Trump Administration's issuance of an expected Executive Order on "Religious Liberty," The Law, Rights, and Religion Project issued a Press Advisory highlighting "Five Key Questions to Ask About the New Executive Order on Religious Liberty." These questions and their answers are highlit in this Press Advisory, which was shared with journalists and the Law, Rights, and Religion Project's constituencies on May 3rd, 2017.
Comment on Proposed Religious Exemption from New York State Health Insurance Regulation
March 29, 2017
The Law, Rights, and Religion Project submitted a comment in the form of a letter to the New York State Department of Financial Services on a proposed regulation requiring insurance plans to cover "medically necessary" abortions. The proposed regulation contains a broad religious exemption that is not required by state or federal law. Organizations and for-profit companies that serve the public at large should be expected to abide by otherwise neutral health and labor protections. Our comment urges the Department not to place the religious views of employers over the liberty and equality rights of their employees.
Comment on the Equal Employment Opportunity Commission (EEOC) "Proposed Enforcement Guidance on Unlawful Harassment"
March 23, 2017
The Law, Rights, and Religion Project submitted commentary on the Equal Employment Opportunity Commission's (EEOC) "Proposed Enforcement Guidance on Unlawful Harassment," commending the EEOC on the guidance, as it protects the rights of people to discuss and express their faith in the workplace, while prohibiting religiously motivated harassment.
Access full details about this commentary, and a copy of the letter submitted to the EEOC here
Trump’s Executive Order Barring Refugees is Unconstitutional: Order Expresses a Religious Preference in Violation of the Establishment Clause
January 30, 2017
The Law, Rights, and Religion Project joined with thousands of lawyers, law professors, and legal organizations across the country in announcing that President Donald Trump’s Executive Order 13769, writing a religious preference into U.S. policy is unconstitutional. On January 30th, 2017, the Law, Rights, and Religion Project issued a Press Statement regarding Executive Order 13769, offering constitutional analysis of the Executive Order signed Several provisions of the order are clearly intended to block immigration by Muslim refugees while providing a preference for some Christian refugees to escape violence and persecution by resettling in the United States.
Read the full statement issued by the Law, Rights, and Religion Project, here.
Report: Church, State, and the Trump Administration
January 30, 2017
The Law, Rights, and Religion Project issued a document following the inauguration of Donald Trump outlining numerous areas in which the Trump administration may seek to advance particular conservative Christian tenets, restrict the rights of religious minorities, and break down the barrier between church and state, based on stated policy priorities, campaign statements, and the early actions of the Trump administration following President Trump's inauguration on January 20th. Enactment of the administration’s stated policy priorities will call into question the careful balance that currently exists between the First Amendment and other fundamental rights guaranteed under the Constitution; this analysis serves to address these stated priorities through a lens of Constitutional rights and civil rights precedents.
Access the full press release and a .pdf of the report, here
State & Federal Religious Accommodation Bills: Overview of the 2015-2016 Legislative Session
September 20, 2016
In this memo, issued in September of 2016, the Law, Rights, and Religion Project scholars provide an overview of the enormous variety of religious exemptions introduced and passed at the state and federal levels during the 2015-2016 Legislative Session. Following the 2015-2016 Legislative Session, the Law, Rights, and Religion Project expected similar bills, which allow organizations and individuals to violate laws that conflict with their religious views about sex and marriage, to be introduced again in the 2016-2017 session.
Access further details about this analysis and the full memo, here
Comments Submitted to the Department of Health and Human Services Regarding Religious Exemptions to Contraceptive Coverage
September 20, 2016
Following the Supreme Court's decision to vacate and remand the cases in Zubik v. Burwell, the Department of Health and Human Services (HHS) issued a request for information on alternative ways to accommodate religious nonprofits from compliance with the contraceptive mandate of the Affordable Care Act (ACA), CMS-9931-NC. The following comment, from the Law, Rights, and Religion Project, explains that the ACA's existing religious accommodation complies with federal law, and that expanding the accommodation in a way that harms employees and their families would risk violating the Establishment Clause of the First Amendment. Further, this comment highlights the effects an overly-broad accommodation of religion would have on communities of color.
Access the letter submitted to the Department of Health and Human Services, here
Memorandum on Mississippi House Bill 1523 (HB 1523) by Legal Scholars
April 5, 2016
This memo analyzes Mississippi HB 1523, which was signed into law by Governor Phil Bryant. It explains why many provisions of this broad religious exemption law conflict with the Establishment Clause of the U.S. Constitution. HB 1532 grants religious accommodations to individuals, religious institutions, for-profit businesses, and state actors that will harm the rights of Mississippians who are LGBT or do not conform to religious sex and gender norms. It is part of a larger trend of state legislation that seeks to codify a right to discriminate in the name of religious freedom.
Fact Sheet: What's at Stake for Women of Color in Zubik v. Burwell
March 23, 2016
In March 2016, the Law, Rights, and Religion Project issued a memorandum analyzing the potential outcomes of the Supreme Court case, Zubik v. Burwell. Per the Law, Rights, and Religion Project's analysis, if the plaintiffs in Zubik v. Burwell win, thousands of women of color who work at religious non-profits could be stripped of their right to no-cost insurance coverage for contraception. That’s what at stake in the latest Supreme Court case challenging the Affordable Care Act’s (ACA) contraceptive mandate. This fact sheet, produced by the Law, Rights, and Religion Project explores what women of color have at stake in this round of litigation over the ACA.
Amicus Briefs
Legal Scholars File Brief in Case in Which the Department of Justice Rejects Religious Liberty Rights of Non-Profit That Provides Safe Space to Injection Drug Users
July 11, 2019
Access full details about the brief, and a press release regarding the filing
Yesterday, nationally recognized law professors with expertise in religious liberty law filed an amicus brief in a case in which the U.S. Justice Department is seeking to shut down safe-injection sites. The case focuses on the work of a Philadelphia-based nonprofit, Safehouse, a faith-based non-profit that provides people who inject drugs with sterile equipment to minimize the spread of blood-borne illnesses, and to support harm reduction for persons who use injectable drugs. Leaders with Safehouse assert that the creation of a safe injection site is a practice of their religious obligation to save lives by providing a range of harm-reduction and overdose prevention services to injectable drug users. Safehouse claims that the government’s threat to prosecute them for violating federal anti-drug laws violates their religious liberty rights, and they have invoked the Religious Freedom Restoration Act (RFRA) in their defense.
Columbia Law Professor Katherine Franke is the author of the brief, and the Faculty Director of the Law, Rights, and Religion Project at Columbia Law School. “Our aim in submitting a brief in this case is to assure that courts protect religious liberty rights consistently across social contexts,” said Professor Franke. “Since the Justice Department has demonstrated a strong bias in favor of the religious liberty rights of conservative Evangelical Christians, as experts in the law of religious liberty we want to provide courts with an unbiased, neutral framework with which to approach all claims in which a party is seeking a faith-based exemption from the law.”
In writing the brief, the law professors voiced concern that the Justice Department’s lawyers have taken a very narrow reading of religious liberty rights of entities clearly protected by the Religious Freedom Restoration Act. Professor Franke wrote: “The Court should not embrace the government’s position that defendants must show that their actions were motivated by their faith and by nothing else in order to qualify for a faith-based exemption under RFRA. To impose this new element on the RFRA claimant’s case would significantly narrow the scope of RFRA’s protections for religious liberty.”
The brief continues, “The government’s position, narrowly reading the scope of RFRA’s protections for religious liberty, runs contrary to the Attorney General’s clear instructions to all U.S. government agencies: ‘to the greatest extent practicable and permitted by law, religious observance and practice should be reasonably accommodated in all government activity . . . individuals and organizations do not give up their religious-liberty protections by … interacting with federal, state, or local governments.’”
The law professors’ amicus brief is available at the following link: https://bit.ly/32fVQJP. Further details about the Justice Department’s lawsuit against Safehouse may be found in this article at the Philadelphia Herald Tribune: https://bit.ly/2G7FEkp.
Law Professors File Amicus Brief on Religious Liberty Rights in Appeal from Criminal Conviction of AZ Immigrants Rights Activists
April 22, 2019
Access full details about the brief, and a press release regarding the filing
Access a .pdf of the Amicus Brief in USA v. Hoffman, et al.
On April 22, 2019, nationally recognized law professors with expertise in religious liberty law filed an amicus brief in the appeal[1] of the convictions of four sanctuary activists who were found guilty in January of the crime of leaving water and food in the desert for migrants. The activists were volunteers with the group No More Deaths/No Más Muertes, and have petitioned a federal court in Arizona to reverse their conviction after a three-day trial.
In the brief, the law professors voiced concern that the judge had not provided any analysis of the defendants’ religious liberty defenses raised at trial under the Religious Freedom Restoration Act. In his written opinion, the trial judge dismissed testimony that their faith compelled them to take actions designed to prevent human death and suffering, calling their plea a “modified Antigone defense.”
Columbia Law Professor Katherine Franke, faculty director of Columbia’s Law, Rights, and Religion Project, and author of the law professors’ brief wrote: “While the reference to Greek tragedy is interesting, particularly to us as academics, it substitutes for actual legal analysis of the federal statutory defense raised by the defendants. Antigone sets up a tension between the King’s law – a formal edict that prohibited the burial of Antigone’s brother Polynices – and the unwritten law of the Gods that mandated a proper burial so as to fulfill a duty to honor and mourn the dead. Mid-way through Sophocles’ play Antigone challenges the King: ‘I did [not] think your orders were so strong that you, a mortal man, could overrule the gods’ unwritten and unfailing laws.’”
The brief continues, “Yet the defense raised in this case, unlike in Sophocles’ play Antigone, does not stage a tragic conflict between written positive law and unwritten, abstract morality. The law appealed to by the defendants is not outside of or above the laws of the state. Instead, the defendants ask the court to interpret a written, legislatively created right to religious liberty. The magistrate judge’s failure to offer a careful analysis of their RFRA defense reflects a mistake of law, passing under cover of a clever parry to Greek tragedy, that should be corrected on appeal.”
The law professor’s amicus brief is available here: https://bit.ly/2Uwjlcn.
[1] USA v. Hoffman, et al. U.S. District Court for the District of Arizona, 4:19-cr-00693-RM
Professor Katherine Franke joins Amicus Brief in Commonwealth of Pennsylvania and New Jersey v. Trump
March 27, 2019
Access full details about Professor Franke's joining the Amicus Brief, here
Access a .pdf of the Amicus Brief, here
On Monday, March 25th, Professor Katherine Franke, Faculty Director of the Law, Rights, and Religion Project at Columbia Law School, joined an amicus brief in Commonwealth of Pennsylvania and New Jersey v. Trump,* a challenge to two rules that exempt employers with religious or moral objections from compliance with the contraceptive coverage requirement of the Affordable Care Act. The brief explains that these rules actually conflict with Constitutional religious liberty law by requiring employees to bear the cost of their employer's beliefs, regardless of their own religious or moral convictions. As explained in the brief:
"Those employees and their dependents will bear these costs as the price of accommodating their employers’ religious convictions. The Framers opposed forcing non-adherents to pay a small tax in order to support others’ beliefs. Yet the Religious Exemption Rule goes much further, forcing a nationwide subset of Americans to surrender their rights to preventive health care in order to benefit another subset of Americans opposed to contraception. The Establishment Clause forbids this."
Two district courts have already blocked the rules from going into effect. The brief is available here: https://bit.ly/2YvFomA.
*Commonwealth of Pennsylvania and New Jersey v. Trump is case No. 17-3752 in the United States Court of Appeals for the Third Circuit
Professor Katherine Franke Files Amicus Briefs on Religious Liberty Claims Raised in Federal Prosecutions of Activists in Arizona Who Left Water and Food In Desert For Migrants
November 13, 2018
On November 13th, Katherine Franke submitted amicus briefs on behalf of seven scholars of religious liberty law in two cases in which the federal government is prosecuting members of the Tucson-based group No More Deaths/No Más Muertes. The briefs provide guidance to the federal court on how to examine the activists’ claim that their criminal prosecution by the U.S. Department of Justice substantially burdens their sincere religious belief in the sanctity of human life and that they must come to the aiding people in dire distress. The briefs support neither party in either of the cases but rather seeks to provide the court with the proper framework within which to consider the defendants’ motions to dismiss grounded in the Religious Freedom Restoration Act (RFRA).
Access the full Press Release and copies of the Amicus Briefs here.
Professors of Law and Religion File Brief Supporting Arizona Immigration Rights Activist's Use of RFRA as a Defense to Federal Criminal Prosecution
June 21, 2018
Five prominent professors of law and religion filed an amicus brief in support of Dr. Scott Warren, a humanitarian aid worker who faces up to twenty years in prison for providing food and shelter to migrants crossing the Arizona desert. The amicus was filed in an Arizona federal court, and contends that Dr. Warren is entitled to an accommodation from being criminally prosecuted for acting on his sincerely held religious beliefs. Dr. Warren, is a member of No More Deaths/No Mas Muertes, a humanitarian aid organization that works to reduce deaths and suffering along the US-Mexico border by providing water, food and clothing to migrants crossing the Arizona desert. When doing this work, humanitarian workers routinely discover the bodies of migrants who have died due to lack of water, food or shelter in the rugged and remote desert terrain.
Access the full Press Release about this work, and a .pdf of the Amicus Brief, here.
The Law, Rights, and Religion Project Submits Amicus Brief to U.S. Supreme Court in Masterpiece Cakeshop vs. Colorado Human Rights Commission
October 30, 2017
The Law, Rights, and Religion Project filed a brief in the case of Masterpiece Cakeshop vs. Colorado Human Rights Commission, written with Muslim Advocates, on behalf of 15 religious minority groups and civil rights advocates. We argued that the broad interpretation urged by Masterpiece Cakeshop is bad for religious liberty itself - especially for religious minorities such as Muslims and Sikhs. Our position was that the Court’s early religious liberty cases were built on equality principles and that the two are mutually reinforcing values - thus the Court should interpret religious liberty in ways that are equality-enhancing, not equality-diminishing.
Access the full Press Release regarding the brief, and a copy of the brief, here.
Amicus Brief in Support of Aimee Stephens in Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, Inc.
April 25, 2017
The Law, Rights, and Religion Project filed an amicus brief with the Sixth Circuit that argues that the Religious Freedom Restoration Act (RFRA) should not be interpreted to permit employers to anti-discrimination law. The case was brought on behalf of Aimee Stephens, a funeral home director who was fired after she came out to her employer as a transgender woman. In an unprecedented decision, the trial court held that the funeral home owner’s religious opposition to Stephens’ gender transition and identity entitled the employer to an exemption from Title VII of the Civil Rights Act, which prohibits sex discrimination in the workplace. The Law, Rights, and Religion Project’s amicus brief explains that this application of RFRA would violate the Establishment Clause of the First Amendment, which protects individuals from having to bear the significant costs of a religious belief they do not share. In addition, the accommodation would force the EEOC to participate in—rather than fight against—sex discrimination.
Access the full Press Release and a .pdf of the Amicus Brief, here.
Brief for Amici Curiae Church-State Scholars in Support of Respondents, in Zubik v. Burwell
February 16, 2016
The Law, Rights, and Religion Project assisted the Counsel for Church-State Scholars in the preparation of an amicus brief submitted in the Supreme Court of the United States case of David A. Zubik, et al., v. Sylvia Burwell, et al.
Testimony
Testimony to New York City Council Committee on Women's Issues on Gender and Racial Equity Training
April 27, 2017
On Monday, April 24, Ashe McGovern, Legislative and Policy Director of Columbia Law School’s Law, Rights, and Religion Project testified before the New York City Council Committee on Women’s Issues on a bill that would require several city agencies to undergo training on “implicit bias, discrimination, cultural competency and structural inequity, including with respect to gender, race and sexual orientation.”
Read the full Press Release and access McGovern's testimony as a .pdf.
Testimony on Pennsylvania SB 1306: No Additional Protections for Religious Freedom Are Necessary if State Adds Sexual Orientation and Gender Identity to Its Human Relations Law
August 30, 2016
Professor Katherine Franke, Faculty Director of the Law, Rights, and Religion 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.
Access full details regarding Professor Franke's Testimony on Pennsylvania SB 1306, here.
Katherine Franke's Testimony to House Committee on Oversight and Government Reform Regarding the First Amendment Defense Act (FADA)
July 12, 2016
On July 12th, Professor Franke delivered 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.