Tag Archives: lawsuit

Whose Religious Liberty?

Well, finally! A lawsuit just filed in Florida raises an important and far too frequently ignored aspect of the First Amendment’s religion clauses. What happens when “religious liberty” becomes a code word meaning “Liberty for my particular religion’s doctrine, but not for yours?”

The Supreme Court majority that (according to the leaked draft opinion) will overturn Roe v. Wade within the next few weeks is composed of Catholics who have been very vocal about the importance of protecting religious liberty–as they evidently define it. The problem is, their definition of liberty differs from that held by a very large number of Americans who believe that all citizens are free to follow the doctrines of their particular religions. When applied to the issue of abortion, for example, people whose beliefs prohibit it are protected from measures requiring it, and people whose beliefs allow (or even, in some situations, require) it can follow their beliefs.

In other words, if your beliefs prohibit abortion, you don’t have to have one. If they don’t, you can.

That definition of religious liberty is at the heart of the lawsuit filed in Florida. According to the Religion News Service, 

A new Florida law prohibiting abortion after 15 weeks with some exceptions violates religious freedom rights of Jews in addition to the state constitution’s privacy protections, a synagogue claims in a lawsuit.

The lawsuit filed by the Congregation L’Dor Va-Dor of Boynton Beach contends the law that takes effect July 1 violates Jewish teachings, which state abortion “is required if necessary to protect the health, mental or physical well-being of the woman” and for other reasons.

“As such, the act prohibits Jewish women from practicing their faith free of government intrusion and this violates their privacy rights and religious freedom,” says the lawsuit, filed last week in Leon County Circuit Court.

The lawsuit adds that people who “do not share the religious views reflected in the act will suffer” and that it “threatens the Jewish people by imposing the laws of other religions upon Jews.”

The new Florida law has exceptions only for terminations necessary to save the life of the mother or prevent serious injury, or for a fetus with a fatal abnormality. It does not contain exemptions for pregnancies resulting from rape, incest or human trafficking.

The Rabbi of the synagogue that filed the lawsuit was quoted as saying that when separation of religion and government crumbles, religious minorities often suffer. And he noted that DeSantis had signed the law at an evangelical Christian church.

This lawsuit is yet another illustration of an element of the expected decision that has received far too little attention: it goes to the very heart of current constitutional jurisprudence, which is concerned with drawing a line between those matters that government can properly regulate and those that are to be left to the individual. Reversal of Roe attacks the conceptual underpinning of a doctrine known as “substantive due process,” which is focused on where that line must be drawn, and the very simple–and very profound–question: who decides?

In a free country–a country that takes liberty seriously–who gets to decide what prayer you say, what book you read, who you marry, whether and when you procreate?

For the past fifty years, with some hiccups, American law has answered that question by respecting the rights of individuals and religious communities to determine those and similarly personal issues–issues that the Court has dubbed “intimate”–for themselves. I would argue that the right to make our own personal, medical, political and religious decisions in the exercise of our individual consciences is the proper definition of liberty.

(Decisions to forego mask wearing and other decisions that endanger others, not so much.)

America is currently going through a wrenching transition. Religious and racial groups that were once so dominant that minority communities and their beliefs were (at best) marginalized and ignored are losing their cultural dominance, and many members of those groups are hysterical about it. Others are simply clueless–so insulated within traditional ways of understanding the society they inhabit that they are unable to understand the claims of those who differ–as Jewish law differs from much of Christianity on the issue of abortion.

“Freedom for me, but not for thee” isn’t freedom at all. It’s privilege, and privileges can be withdrawn. What’s that observation we civil libertarians love to quote? “Poison gas is a great weapon until the wind shifts.”

Either religious liberty is liberty for adherents of all religions, or it isn’t liberty at all. This lawsuit illustrates the danger of letting government make decisions that favor the doctrines of some religions to the detriment of others.

 

Some Conflicts Never Die…

Back in 2000, I wrote a couple of newspaper columns and an academic article about litigation involving the Kentucky Baptist Children’s Home. The Children’s Home had fired a youth counselor solely because she was a lesbian; they admitted that she was an excellent counselor, but justified the firing by explaining that “the gay lifestyle” (discovered because her picture appeared in media snapped at a Pride parade) was inconsistent with their theological beliefs.

Ordinarily, this firing would not have given rise to a lawsuit-even in those few states that had then extended civil rights protections to gays and lesbians, religious organizations were (and are) exempt from civil rights laws. But the Home was essentially funded by the state of Kentucky. Some $12 million of its $15 million dollar annual budget came from state tax dollars paying for the children placed in the facility by the state. The lawsuit challenged the propriety of using tax dollars to discriminate.

The case ran into some technical issues not germane to the principle being litigated, and I lost track of its subsequent path. (A very similar case from Georgia was settled when that state agreed to abide by the Constitution.) Evidently, the Kentucky Home did not lose its state support–nor its insistence on disadvantaging members of the LGBTQ community–because AP has reported on the emergence of a similar conflict between the Home–now renamed Sunrise Children’s Services–and the state.

A cultural clash pitting religious beliefs against gay rights has jeopardized Kentucky’s long-running relationship with a foster care and adoption agency affiliated with the Baptist church that serves some of the state’s most vulnerable children.

The standoff revolves around a clause in a new contract with the state that bans discrimination based on sexual orientation and that Sunrise Children’s Services is refusing to sign.

It’s another round in a broader fight in states and the courts over religious liberty and LGBTQ rights, including whether businesses can refuse to provide services for same-sex weddings. An upcoming U.S. Supreme Court decision in a Pennsylvania case could be decisive in the Kentucky clash; it’s reviewing a refusal by Philadelphia Catholic Social Services to work with same-sex couples as foster parents.

The original case–twenty-one years ago–involved the home’s refusal to employ LGBTQ staff members, no matter how professionally competent. I was unable to determine whether that situation has changed, but this time, the argument is about the agency’s refusal to place children with same-sex foster or adoptive parents.

Sunrise wants its religious beliefs to exempt it from a law that applies to other agencies doing business with the state, a requirement imposed by what lawyers call a law of general application. It wants to continue benefitting from tax dollars paid by all Kentucky residents, gay and straight, while picking and choosing which rules it will follow.

That isn’t the way it’s supposed to work.

“If Sunrise doesn’t want to abide by that, that’s fine. They shouldn’t have access to state money, state contracts or children in the state’s care,” said Chris Hartman, executive director of the Fairness Campaign, a Louisville-based gay rights advocacy group.

Hartman said he worries LGBTQ children in Sunrise’s care are “deeply closeted,” hiding their sexual orientation out of fear of “indoctrination and proselytization.”

Whether that fear is justifiable or not is beside the point. It was actually Justice Scalia–no champion of secularism–who wrote the decision in Employment Division v. Smith, confirming that religious belief does not exempt citizens from compliance with laws of general application.

Sunrise is perfectly free to follow its theological principles. It isn’t free to demand continued public funding at the same time it is refusing to follow the rules that govern distribution of that funding.

I sometimes wonder whether America has turned into a version of Animal Farm, where everyone is equal, but some folks (“good Christians”) think they’re entitled to be more equal than others.

 

More Evidence That Being Rich Doesn’t Necessarily Mean Being Smart…

I was alerted to this lawsuit by Juanita Jean,  although it has since been pretty widely reported.

It has so many satisfying aspects…

It seems that one of the wealthy fat cats supporting Donald Trump sent a lot of money–two and a half million dollars, to be exact– to “True the Vote,” to support that organization’s lawsuits to overturn the results of the election. Given the uniform failure of those suits–most of which have been withdrawn for admitted lacks of any evidence of fraud or wrongdoing– he wants his money back.

As Juanita Jean writes,

Those kinds of fights are a Democrat’s dream, especially if you personally know one of the people involved and have had fights with them before.

The person Juanita Jean personally knows is a co-director of True the Vote named Cathy Engelbrecht. Engelbrecht used to be her neighbor, and Juanita reports that she

“would hold meetings all over the county with mostly old people at churches and fleece them for money explaining how we Democrats cheat in elections.  Then she got volunteers from her rich Republican friends with clipboard to go “monitor” voting places in black and Hispanic precincts.”

Juanita Jean may be able to recite chapter and verse about Cathy Engelbrecht (there’s more at the link), but those of us who live in Indiana can counter with tales of Engelbrecht’s Hoosier co-director, Jim Bopp.

Indeed, these two seem made for each other.

Until he actually won the Citizens United case, (a case that presented the Court’s majority with an opportunity to reinforce an ideological bias) Bopp was a predictable and annoying joke in Indiana’s legal community–one of those “Christian” lawyers who could be counted on to insert himself in “culture war” lawsuits or any effort to moderate the lopsided power of the GOP. (Bopp and the organizations with which he’s affiliated–Right to Life, Focus on the Family– know what God does and doesn’t want. Presumably, God wants Republicans to  gerrymander, suppress votes, and take buckets of money from unidentified sources…) Bopp’s most fervent–and successful–efforts have been against campaign finance laws.

With True the Vote, Bopp has confirmed that his skills, such as they are, are political, not legal. As one legal blog reports, Fred Eshelman, the owner of a healthcare-focused investment company, took the Houston-based non-profit at its word when it promised results.

The complaint in the case alleges that Republican “powerhouse lawyer” James Bopp promised to file lawsuits in the seven closest battleground states, serve state election officials with subpoenas, and use the resulting data to flag irregularities.( Bopp’s status as a “powerhouse” is wholly dependent upon his victory in Citizens United-the lawsuit that opened the floodgates to corporate money in elections through the rise of super PACs.)

Eshelman asserts that he repeatedly requested information about the lawsuits filed by True the Vote..

But Eshelman notes that the memos, reporters and whistleblowers never came, and all that he received in their place were four complaints filed in four states: Wisconsin, Michigan, Georgia, and Pennsylvania. All of the complaints were voluntarily dismissed, in a decision the investor claims had been made “in concert with counsel for the Trump campaign.”

In the Wisconsin case, Bopp promised that “evidence will be shortly forthcoming” before withdrawing their complaint without that evidence on the morning of the hearing.

Well before the election, reports by The New York Times and numerous other media outlets, had made it abundantly clear that True the Vote was simply one of the many Republican efforts at vote suppression.

All of which leaves me with a question: why does someone who has so much money he can send two and a half million dollars to an organization do so without bothering to vet either the organization or the people running it? Anyone who is even slightly acquainted with political reality knows that in-person vote fraud is virtually unknown in the U.S.–and that overturning a Presidential election by alleging such fraud is about as likely as capturing the tooth fairy.

Granted, there’s something satisfying in watching the opportunists and bottom-feeders turn on each other. The Germans call it schadenfreude.

But cases like this tend to confirm that having lots of money isn’t a measure of IQ.

 

 

Bless This “Deep State”

A favorite target of Trump defenders is the presumably nefarious “deep state”–the thousands of government workers that sane folks call bureaucrats (when they are being critical) or civil servants (when they are acknowledging their importance).

I teach in a school of public affairs, where a major focus is educating young people for that quaint thing we used to call public service. In addition to technical skills, we place considerable emphasis upon what I sometimes call the “constitutional ethic” and the rule of law–the behaviors citizens have a right to demand from those who serve a legitimate government.

It is belaboring the obvious to note that the Trump Administration doesn’t recognize the existence of ethics–constitutional or otherwise. However, many good people who do know the difference between right and wrong still work in that “deep state” that Republicans love to excoriate, and a group of them are suing to avoid having to carry out Trump’s inhumane border policies that. force asylum seekers to stay in Mexico or be put in jail here while awaiting hearings.

A group of asylum officers whose job is to administer policies like that have filed a brief in the case making a powerful and passionate case against a policy that they have to implement but they find morally unconscionable.

U.S. asylum officers slammed President Trump’s policy of forcing migrants to remain in Mexico while they await immigration hearings in the United States, urging a federal appeals court Wednesday to block the administration from continuing the program. The officers, who are directed to implement the policy, said it is threatening migrants’ lives and is “fundamentally contrary to the moral fabric of our Nation.”…

The lawsuit asserts that Trump’s policy goes against what has been America’s long-standing view that the country should welcome asylum seekers and refugees escaping persecution in their home countries. The United States has been seen as a safe haven ever since  the arrival of the Pilgrims in the 17th century. In the court pleadings, plaintiffs argue  that Trump’s policy “is compelling sworn officers to participate in the widespread violation of international and federal law” — “something that they did not sign up to do when they decided to become asylum and refugee officers for the United States government.”

“Asylum officers are duty bound to protect vulnerable asylum seekers from persecution,” the American Federation of Government Employees Local 1924, which represents 2,500 federal workers, including asylum officers, said in a 37-page court filing with the U.S. Court of Appeals for the 9th Circuit in California. “They should not be forced to honor departmental directives that are fundamentally contrary to the moral fabric of our Nation and our international and domestic legal obligations.”

When Donald Trump became President (note I do not say “was elected” since I agree with Jimmy Carter), I had several messages from former students now working for the federal government. They were conflicted–should they stay, and try to protect the public interest, or leave for jobs in the private or non-profit sectors?

As I told each of them, that was a decision only they could make.

Those who decided to remain, however, stayed because they were determined to protect the rule of law and the integrity of public service at a time when those in power–and those supporting this lawless administration–sneer at such “high flown” concepts.

If the United States emerges from this shameful, corrupt and profoundly un-American episode in our national story, we will owe those “deep state” protectors of our ideals an enormous debt of gratitude.

Sanctuary

You may have read about Jeff Sessions’ recent lawsuit against California. Sessions is pursuing the Trump Administration’s vendetta against immigrants (ostensibly against undocumented immigrants, but with rhetoric that signals distaste for anyone–legal or not–who is less pale than a Norwegian), and he’s determined to overcome any obstacles to that task.

Vox explains the lawsuit. 

The Department of Justice has just filed a lawsuitagainst the state over three laws it passed in 2017 that limit government officials’ and employers’ ability to help federal immigration agents, and that give California the power to review conditions in facilities where immigrants are being detained by the feds. Sessions, in a Wednesday speech to the California Peace Officers’ Association, a law enforcement union, is giving the message in person.

It’s a huge escalation of the Trump administration’s fight against “sanctuary cities” that limit local-federal cooperation on immigration enforcement. After a year of slow-moving or unsuccessful attempts to block “sanctuary” jurisdictions from getting federal grants, Sessions is moving to stop them from passing laws that limit cooperation to begin with. And he’s starting with a shot across the bow: targeting the bluest state in the union, whose 2017 bills represented a model for progressives to use federalism against the Trump administration’s immigration agenda.

Sessions’ is determined to pursue his punitive federal policy without having to deal with impediments to enforcement enacted by progressive cities and states. According to Vox, we should view this lawsuit as the next phase “in a battle the Trump administration and California are equally enthusiastic about having: an ongoing culture war between progressive politicians who feel a duty to make their immigrant residents feel as safe as possible, and an administration (and its backers) whose stated policy is that no unauthorized immigrant should feel safe.”

Vox is right to label this a culture war. I used to reserve that term for fights over the so-called “social issues”–abortion, same-sex marriage, prayer in schools, religious icons on public land and the like. That was before I realized that environmentalism had also become a culture war issue, and that the division wasn’t simply between religious and secular Americans, but also between adherents of very different religious worldviews.

We Americans are currently very polarized, to put it mildly. The expanded “culture war” of which immigration is a part is an outgrowth of our increasing tribalism, our stubborn  residence within bubbles populated primarily by our “own kind,” both intellectually and geographically.

The big question is whether this is an era of transition–a time of paradigm shift brought on by rapid changes in technology and especially communications–or whether it is something more lasting. The activism of the younger generation that we have seen in the wake of the Parkland shooting is a hopeful sign that it may be the former–that the fear and insecurity that have prompted recent, distressing eruptions of bigotry and racial resentment will pass as my generation dies off.

The challenge will be to keep the Donald Trumps and Jeff Sessions of the world from inflicting irreparable damage in the meantime.