January 2020 Church & State Magazine - January 2020

A Backward Glance: 2019 Was Full Of Challenges – And Victories – For Americans United

  Liz Hayes

In 2019, Americans United led the charge to fight back against intense threats to our country’s fundamental principle of religious freedom – the right to practice your religion, or no religion at all, as long as you don’t harm others.

Many of these unprecedented attacks originated with the Trump administration, which has proposed count­less policies that would misuse religious freedom to justify discrimination against LGBTQ people, women, religious minorities, the nonreligious and many others.

From opposing the expansion of school vouchers, and exposing Project Blitz, to blocking the Denial of Care Rule in court and championing the Do No Harm Act in Congress, AU is ensuring religious freedom remains a shield to protect people and is not used as a sword used to harm others.

As we head into 2020, here’s a look back at AU’s top 10 efforts to protect the separation of religion and government in 2019.

Ten: Opposing The Expansion Of Private School Vouchers

AU fought multiple attempts by federal and state officials to create or expand private school voucher schemes that would divert taxpayer dollars from public schools to fund private, mostly religious schools that can discriminate against children and families.

President Donald Trump and Education Secretary Betsy DeVos proposed an education budget last spring that would divert “an unprecedented level of resources” – up to $50 billion in taxpayer funds over 10 years – to create the first nationwide, federally funded private school voucher program.

While their budget proposal didn’t offer any details for this plan, DeVos endorsed a bill introduced by Republicans in Congress to create a federally funded private school voucher scheme that would redirect $5 billion in public funds every year to private, mostly religious schools. AU promptly exposed DeVos’ lie that this voucher scheme wouldn’t use any taxpayer dollars; fact-checkers also called her on this falsehood. So far, the bill hasn’t gained any traction.

Trump and DeVos also proposed to spend $30 million for the Washington, D.C., voucher scheme – doubling the budget for the only federally funded voucher program. The funding for this program was running out as Church & State went to press, and AU, along with the National Coalition for Public Education, was urging Congress to end this failing program that is not improving – and may actually be harming – students’ academic achievement.

AU also filed friend-of-the-court briefs in two federal court cases involving pro-voucher groups suing states to demand that taxpayers fund religious education. One case was in Maine. The other, Espinoza v. Montana Department of Revenue, will be heard by the U.S. Supreme Court this month. (See “The Madisonian Ideal,” page 16.) AU, along with religious freedom and public education advocates, has been sounding the alarm that a bad ruling in this case could lead to more taxpayer money funding not only private religious education, but other explicitly religious activities as well.

Nine: Protecting Religious Freedom For Louisiana Students

Americans United secured a huge win on behalf of public school students and families in Louisiana after negotiating a settlement agreement with the Bossier Parish School Board that ensures children feel welcome and included in their own schools regardless of their religious beliefs.

AU represented Bossier Parish parents concerned that their children faced religious coercion from public school administrators, teachers and coaches through multiple religious freedom violations, such as school events being held at churches or involving prayers as part of the official program; extensive promotion of religion within school athletic programs; teachers proselytizing in classrooms; and religious displays in classrooms and offices.

The district agreed to a settlement and, in a consent decree filed with the federal court last January, school officials acknowledged that some of the district’s practices violated students’ constitutional right to religious freedom.

Provisions of the settlement included the creation of a long-term monitoring committee to review and resolve potential violations or disputes involving religious freedom; an agreement from the board to create, expand or seek out appropriate facilities to minimize the need to hold school events in houses of worship; and a commitment to protecting the rights of all Bossier students to pray in school, as long as the prayers are initiated by students, aren’t disruptive and don’t occur during class time.

“This historic settlement is a victory for all Bossier families and will ensure that children feel welcome and included in their own schools, regardless of what religion they do or don’t practice at home,” AU President and CEO Rachel Laser said when the settlement was announced. “We are thrilled that Bossier Parish Schools are now fulfilling the promise of religious freedom for all of their students.”

Eight: Taking On The Trump Administration

AU expanded its efforts to stop the Trump administration from violating church-state separation by filing three new federal lawsuits and joining a fourth last year, bringing AU’s total court challenges against the administration to nine.

Two lawsuits were filed to challenge Trump’s dangerous Denial of Care Rule. A third lawsuit takes on the Trump administration and South Carolina for allowing taxpayer-funded, faith-based foster care agencies to discriminate (more on these later).

AU also joined Lambda Legal in representing a Texas couple that was turned away from fostering refugee children by a federally funded, faith-based agency that won’t work with same-sex married couples.

Those cases join five other pending AU lawsuits involving Trump’s Muslim ban and the Trump administration rules that would allow employers and universities to use religion to deny employees and students access to birth control.

AU also called out administration officials who were undermining the separation of religion and government, including Vice President Mike Pence, Education Secretary Betsy De­Vos, Secretary of State Mike Pompeo, Attorney General William Barr, Faith and Opportunity Initiative adviser Paula White, Housing and Urban Development Secretary Ben Carson – and, of course, Trump himself.

Seven: Battling Project Blitz In The States

AU led social justice and faith groups to expose Project Blitz, the Christian nationalist political movement to undermine church-state separation, turn the U.S. into an officially “Christian nation” and roll back people’s rights by misusing religious freedom to discriminate.

A broad coalition of prominent religious, civil rights, secular, LGBTQ and reproductive freedom organizations joined AU to urge state lawmakers across the country to oppose    Project Blitz legislation. The org­an­izations issued a national statement last January warning legislators of Project Blitz’s alarming agenda.

Project Blitz organizers’ strategy of starting with supposedly benign bills that coerce public schoolchildren to believe in the Christian god was evident in last year’s proliferation of proposed bills requiring public schools to prominently display “In God We Trust” and establish Bible classes. Trump tried to give these efforts a boost by tweeting about the Bible class bills in late January, but his support may’ve backfired.

Trump’s tweet led to a lot of reporters reaching out to AU to explain the problems with Bible classes and related Project Blitz bills. A multitude of media outlets wrote high-profile stories about the campaign. The coverage of Project Blitz and the efforts of AU and allies to expose its harmful goals may have played a role in the campaign’s limited success in 2019 compared to 2018: about 20 percent fewer bills were introduced, and only six passed.

As a result of the heightened scrutiny and public distaste for Project Blitz’s agenda, organizers are rebranding and going underground to continue their legislative assault in the shadows, according to a November investigation by researcher Fred Clarkson of Political Research Associates. (See “Project Blitz 2.0,” page 4.)

Six: Blocking Trump’s Denial Of Care Rule

AU and allies scored a major victory by blocking the Trump administration’s dangerous Denial of Care Rule from going into effect in November.

The rule invited all health care workers to deny care to any patient because of religious beliefs, putting everyone’s health at risk and violating religious freedom. People seeking reproductive health care, LGBTQ people and religious minorities are the intended targets, but the Denial of Care Rule doesn’t stop there. It is so broad that all of us – including sick children, pregnant women and senior citizens – are at risk.

That’s why, within days of the Department of Health and Human Services (HHS) issuing the rule last May, AU joined allies in filing two lawsuits to challenge this unconstitutional and unlawful rule – one in California with the Center for Reproductive Rights, Lambda Legal and Santa Clara County, and one in Maryland with the City of Baltimore.

In AU’s California case, U.S. District Judge William Alsup on Nov. 19 became the third federal judge to throw out the Denial of Care Rule in its entirety and block it from going into effect. “When a rule is so saturated with error, as here, there is no point in trying to sever the problematic provisions. The whole rule must go,” Alsup wrote.

While Alsup and two other judges have protected patients by preventing the Denial of Care Rule from going into effect for now, the Trump administration is likely to appeal. While the court battles continue, AU is supporting the Put Patients First Act, which was introduced in Congress in November and also would block the Denial of Care Rule.

Five: Championing The Do No Harm Act In Congress

Support is growing for the Do No Harm Act – the federal bill that AU is championing to restore the Religious Freedom Restoration Act (RFRA) to its original intent of protecting religious freedom while also clarifying that it may not be used to harm others.

AU was integrally involved in helping to promote this bill, which was re-introduced in Congress last spring by U.S. Reps. Joe Kennedy (D-Mass.) and Bobby Scott (D-Va.) as well as Sens. Kam­ala Harris (D-Calif.), Pat­rick Leahy (D-Vt.) and Mazie Hirono (D-Hawaii). To date, the bill has nearly 170 co-sponsors in the House and nearly 30 co-sponsors in the Senate.

In June, AU President and CEO Rachel Laser testified about the vital need for the Do No Harm Act (DNHA) during the bill’s first-ever congressional hearing, held before the House Education and Labor Committee.

“RFRA, a statute designed as a shield to protect religious freedom, is now being used as a sword to cause harm,” Laser said during her testimony. “The Trump administration has cited RFRA to create harmful religious exemptions – and more are coming.

 “We must continue to reject efforts to use religion to justify discrimination,” Laser continued. “Congress can help… [it] should pass the Do No Harm Act, a simple yet critical bill designed to restore RFRA to its original intent. It will preserve the law’s power to protect religious freedom while clarifying it may not be used to harm others.”

RKL at DNH hearing

Four: Leading The Fight Against Employment Discrimination

AU was on the front lines battling the Trump administration’s proposal to allow taxpayer-funded government contractors to use a religious litmus test to fire or refuse to hire employees.

Trump’s Department of Labor in August issued a proposed rule that would allow government contractors to discriminate in hiring. These taxpayer-funded federal contractors, including for-profit companies, would be able to claim a right to fire someone because they are LGBTQ, a single mom, the “wrong” religion or don’t go to church often enough. The rule would affect at least one-fifth of the American workforce.

That’s why AU, along with a broad coalition of allies, spoke out against this discrimination. We rallied our supporters, who were among the 90,000 people to submit comments objecting to the proposal. The final rule has not yet been issued and is not yet in effect.

Just over a month later, we also joined allies to rally outside the U.S. Supreme Court in October to urge the justices to uphold critical workplace protections for LGBTQ people. Laser spoke during the rally, making it clear that no one’s rights hinge on someone else’s religious beliefs.

The court this spring is expected to issue a decision in these three cases that will determine if Title VII of the federal Civil Rights Act of 1964 protects LGBTQ workers from employment discrimination.

Three: Defending Reproductive Freedom Against Unprecedented Attacks

AU raised the alarm that the unprecedented attacks on reproductive rights last year were directly linked to efforts to undermine church-state separation. Religious beliefs often are used to justify regressive reproductive policies such as the abortion bans that were proposed in several states and the Trump administration’s rules that would allow employers and universities to use religion to deny employees and students access to birth control.

In an op-ed in the Chicago Tribune last May, Laser laid out the connection between attacks on reproductive rights and religious freedom, pointing to comments from politicians like Alabama’s Republican Gov. Kay Ivey and Missouri state Rep. Holly Rehder (R-Sikeston) that referenced their religious beliefs while passing restrictive abortion bills.

“These abortion bans are but one piece of a larger Christian nationalist effort sweeping America now,” wrote Laser.

To combat Trump’s regressive agenda, AU appeared in court in June to fight for University of Notre Dame students who have lost insurance coverage for birth control because of a combination of the Trump administration’s illegal backdoor settlement with Notre Dame and the Trump birth control rules.

AU filed the case, Irish 4 Reproductive Health v. HHS, alongside the Center for Reproductive Rights and the National Women’s Law Center on behalf of a Notre Dame student group. The judge’s decision is still pending.

Our efforts to block the Denial of Care Rule also protected reproductive rights, as limiting access to reproductive health care is one of the goals of the rule.

Two: Protecting LGBTQ Equality From Religious Discrimination

In courts and in Congress, AU protected LGBTQ people from discrimination as the Trump administration and the president’s allies tried to misuse religious freedom to justify discrimination in health care, employment, social services, businesses and other aspects of life.

In addition to the court battles and advocacy on behalf of LGBTQ people and other at-risk communities already mentioned here, AU also announced support for the Equality Act. This landmark civil rights legislation would explicitly prohibit discrimination against LGBTQ people while making it clear that religious freedom cannot be misused to justify discrimination.

AU joined allies to rally at the Capitol in May as the House passed the Equality Act in a 236-173 bipartisan vote. The Senate has not yet moved on it.

 “We cannot waste this historic moment,” Laser said in a statement. “We urge the U.S. Senate to act swiftly so the millions of people who suffer because of discrimination can experience a new day of equality. Religious freedom is guaranteed in our Constitution. So is equality. This bill delivers on both of those promises.”

Other legislation AU supported that would prevent religious freedom from being misused to harm LGBTQ people and others included the Do No Harm Act, the Every Child Deserves A Family Act and the Put Patients First Act.

One: Challenging Trump’s Foster Care Discrimination In Court 

Arguably AU’s highest-profile case this year was filed on behalf of Aimee Maddonna, whose story illuminated how the Trump administration is allowing taxpayer-funded foster care agencies to prioritize their religious beliefs above the best interest of vulnerable children. (See “Fostering Discrimination,” April 2019 Church & State.)

This South Carolina mother of three wanted to continue her family legacy of helping children in foster care. She reached out to Miracle Hill Ministries, one of the largest taxpayer-funded foster care agencies in the state, and initially was told her family was a perfect fit to help children in need.

That all changed when they asked what church Maddonna attended, and she named her Catholic parish. Miracle Hill then rejected her because they only work with evangelical Protestants.

Rather than stopping this blatant religious discrimination that denies children loving families, the Trump administration and South Carolina governor doubled down and told all taxpayer-funded foster care agencies in the state they could turn away parents who are LGBTQ or the “wrong” religion.

That’s when AU stepped in and filed a federal lawsuit on Maddonna’s behalf last February. The suit names the state and federal governments because it is unconstitutional for the government to favor certain religious beliefs – especially in ways that harm others.

But that hasn’t stopped the Trump administration. In November, HHS proposed a new rule that would strip critical protections against discrimination on the basis of religion, sex, sexual orientation and gender identity in countless HHS programs, including those that fund foster care and adoption agencies. The rule, which has not yet gone into effect, would go far beyond the exemption HHS granted to South Carolina foster care agencies.

Maddonna’s brave challenge against the government will continue. As she said in a post on AU’s “Wall of Separation” blog last month, “My experience has taught me that if you don’t protect the rights of everyone, you are setting a precedent that will ultimately reach you.”              

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