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September 6, 2016

America’s Religious Freedom Safeguards Advance Pluralism

BurkiniOver the last month how nations address religious garb has been making the news.  So-called “’Burkini’ Bans” enacted by 30 French municipalities are causing controversy. These bans adopted in part to be “’respectful of good morals and of secularism’” prohibit “a wide range of modest dress” at public beaches, including the Burkini which is a full-body bathing suit worn by observant Muslim women who follow Islamic modesty codes.  France’s top French administrative court and other lower courts have suspended these bans, but the prime minster continues to stand by them and public opinion on the issue is divided.  In Canada, the Royal Mounted Police recently announced that observant Muslim Mounties may wear hijabs.  These controversies and developments provide an opportunity to examine how the United States approaches religious freedom issues.

From its founding, the United States aspired to safeguard religious freedom for all, which was truly revolutionary.  This aspiration, however, does not mean that our nation has an unblemished record of religious inclusion.  Although there are countless examples of individuals and communities throughout our history embracing persons of other faiths, America has an ugly history of religious intolerance and issues of religious discrimination persist.  But unlike many other nations, in the United States there are formidable and effective laws prohibiting religious discrimination and requiring accommodations for the religiously observant.

The right to freedom of religion is so central to American democracy that it was enshrined in the First Amendment to the U.S. Constitution. That Amendment protects religious freedom in two ways.  Our Free Exercise Clause protects the autonomy of houses of worship from government interference and empowers all individuals with the right to follow any faith or no faith.  Our Establishment Clause separates government from religion by prohibiting official advancement, endorsement or coercion of religion.  Furthermore, Article VI of the Constitution prohibits religious tests for public office.

During the 20th Century, the federal courts and Congress applied these principles to the States and to private conduct.  The 1964 Civil Rights Act prohibits religious discrimination in employment, housing and public accommodations.  Indeed, its workplace protections require employers to reasonably accommodate the religious practices and observances of employees.  And today, virtually all state and local anti-discrimination laws also prohibit religious discrimination, as well as require religious accommodations in the workplace.

So in the United States, a municipal law such as the ones in France targeting religious observances or practices, including wearing modest dress at the beach, would be patently unconstitutional and would violate federal, state or local laws.  And, generally speaking, the burden is on a public or private entity to justify why a religiously observant person cannot wear a hijab, yarmulke, turban or cross in the workplace or public accommodations, including restaurants, stores, theatres or recreational areas.

For instance, in 2015 the U.S. Supreme Court ruled that a major department store’s “dress policy” was an insufficient reason not to a hire a Muslim woman who wore a headscarf for religious reasons.   And in 2013, a federal agency that enforces the 1964 Civil Rights Act resolved a case with a national fast food franchisee for an observant Christian woman whose religious beliefs prohibit her from wearing pants.   Under the settlement, she would be permitted to wear a black skirt instead of black pants as normally required by the employer’s dress policy.

Furthermore, in America there are strong religious freedom safeguards even within institutional settings.   In 2014, the U.S. Supreme Court struck down an Arkansas Department of Correction “no beards policy,” which prohibited a Muslim inmate from wearing a short beard.  The Court found that the safety and security issues raised by the Department were insufficient to justify the policy under federal law.  And just this year, after a federal court initially ruled in favor of a Sikh U.S. Army Captain, the Army granted him the religious accommodation of wearing a beard, turban, and uncut hair.

Also, it is common for the religiously observant to be accommodated without the force of law.  For example, at 2016 Rio Olympic games it was a non-issue for American fencer Ibtihaj Muhammed to compete wearing a hijab.  Rather, her winning a bronze medal was celebrated in the United States and beyond.

American fencer Ibtihaj Muhammed

American fencer Ibtihaj Muhammed

Although religious bias cannot be legislated away, these legal proscriptions have been an invaluable tool for successfully integrating American society because over time limitations on conduct can shape attitudes.  Legal prohibitions on religious discrimination send the resounding official message that unequal treatment based on faith is unacceptable.  Their mandate of equal access to the work and marketplace brings together people from diverse religious beliefs and traditions.  Through daily interactions with work colleagues, vendors, customers—and yes, even beach-goers– most people come to realize that they have much in common with persons they once considered “the other” and learn to accept and value differences.

Our nation’s robust religious freedom protections are exceptional and distinguish America from numerous countries around the globe.  They undoubtedly have been a cornerstone for creating a truly pluralistic and welcoming society.

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June 7, 2016

Governor Urges Iowans to Attend Bible Marathons

Iowa Governor, Terry E. Branstand, recently issued a religiously divisive and likely unconstitutional proclamation urging all Iowans to attend state-wide Bible reading marathons organized by Christian-based groups.

Iowa gov proclamationDeclaring “the Bible … as the one true revelation from God, showing the way of Salvation, Truth, and Life …,” the proclamation states that the Governor:

… encourage[s] all Iowans to join in this historical 99 County Bible Reading Marathon to take place June 30th through July 3rd, 2016 in front of all 99 courthouses and furthermore, encourages individuals and families in Iowa to read through the Bible on a daily basis each year until the Lord comes.

Reading the Bible gives many Americans guidance, strength and comfort.  And it is completely appropriate for clergy and other religious leaders to call on congregants to read the Bible.  The Governor, however, should not be promoting such activities.

This proclamation divides Iowans along religious lines within and outside the Christian faith.  As a starting point, there are numerous versions of the Christian Bible.  So which version is the right one for Iowans read?  Undoubtedly, the proclamation also sends a message of exclusion and marginalization to Iowans who are not Christian or are of no faith.

The Governor’s action is a good illustration for why the First Amendment prohibits government from preferring one faith or religion more generally.   Official religious partiality erodes non-adherents’ trust in government treating them fairly and in the most extreme cases can coerce adoption of a particular faith based on the belief that it will result in favorable treatment.

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September 3, 2015

Public Officials: If Your Religion Prevents You From Doing Your Job, Step Aside

Many of us make important decisions in our daily lives grounded in our religious values and beliefs. That should be respected, even perhaps, applauded. However when one chooses to take an oath of office or accepts a position as a public official in a secular constitutional democracy like ours, she has a responsibility to do the job she was hired to do. Rowan County Kentucky Clerk Kim Davis’s job requires her to issue marriage licenses to anyone who may legally get married.

LGBT Zip code

On June 26, 2015, the U.S. Supreme Court formally recognized the dignity of lesbian, gay, bisexual and transgender people when it extended the freedom to marry to same-sex couples nationwide. The Court ruled that the Constitution forbids states to ban marriage for same-sex couples. Since the decision, a small minority of public officials, most notably Ms. Davis, have argued that they should be exempt from having to issue marriage licenses to same-sex couples, citing their sincerely held religious beliefs. The Supreme Court disagrees, and yet Davis continues to defy the Court by denying same-sex couples marriage licenses. Now, she and, at her directive, her staff, are refusing to issue marriage licenses making it impossible for anyone to obtain a marriage license in that county.

No one should question or challenge Ms. Davis’s religious beliefs. The fact that some news articles and commentators have criticized Davis’s beliefs as inconsistent or hypocritical is beside the point. The bottom line is that she has no right, constitutional or otherwise, to refuse to do the job the state of Kentucky pays her to do.

The reality, as ADL’s amicus brief argued, is that overturning marriage bans ensures that religious considerations do not improperly influence which marriages the state can recognize, but still allows religious groups to decide the definition of marriage for themselves. That remains true. Rabbis, priests, ministers cannot be compelled to participate in marriages of which they do not approve. Religions are not required to solemnize any kind of marriage they don’t want to recognize. However, that does not mean that government employees may abandon their duties nor may they seek to impose their religious beliefs on others by interfering with their constitutional right to marry.

If Ms. Davis or others feel that they cannot fulfill the duties they were selected to perform, they should step aside and allow others to serve the community.

A 501(c)(3) nonprofit organization, ADL neither supports nor opposes any candidate for political office.

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