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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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August 8, 2016

White House Combats Religious Discrimination

On July 22, the White House hosted a Religious Discrimination Convening – culminating six months of community roundtables held across the country to highlight and institutionalize strategies to address religious discrimination.  Convening attendees heard from a number of federal officials, including Neil Eggleston, White House Counsel, Melissa Rogers, Faith-Based Office Executive Director, Jenny Yang, Equal Employment Opportunity Commission, and Catherine Lhamon, Department of Education Assistant Secretary for Civil Rights.

The Anti-Defamation League’s Washington Counsel, Michael Lieberman, represented ADL on a panel on Preventing Religion-Based Hate Violence and Attacks on Houses of Worship.

(From left to right) John Walsh, US Attorney for Colorado Moderator;  Megan Mack, Department of Homeland Security; Robert Moossy, Department of Justice; Paul Montiero, Department of Justice; Michael Lieberman, Anti-Defamation League; Madihha Ahussain, Muslim Advocates.

(From left to right) John Walsh, US Attorney for Colorado Moderator; Megan Mack, Department of Homeland Security; Robert Moossy, Department of Justice; Paul Montiero, Department of Justice; Michael Lieberman, Anti-Defamation League; Madihha Ahussain, Muslim Advocates.

A number of new resources were unveiled at the event, including:

  • The Department of Justice (DOJ) released an excellent new report on religion-based discrimination,  The report presented findings from community roundtables, including disturbing trends of religion-based discrimination in education, employment, hate crimes, and land use.  Importantly, the report made a series of recommendations to address these issues and includes a comprehensive listing of federal resources to address religious discrimination.

 

DOJ has made fighting discrimination through the enforcement of the Religious Land Use and Institutionalized Persons Act (RLUIPA) a priority.  DOJ released an updated report on its enforcement of RLIUPA between 2010 and 2016.

  • The Department of Education’s Office of Civil Rights unveiled a new section of its website devoted to Religious Discrimination.  The website aggregates relevant resources on bullying prevention and religious harassment.  In 2015-2016, for the first time, every public school in the nation will report to OCR on the number of religion-based bullying or harassment incidents in schools through the OCR data collection tool, Civil Rights Data Collection. Though they have collected bullying information since 2009, this is the first year they are asking for religious-based data.

In addition, OCR unveiled a revised online complaint form to clarify when it can investigate complaints from individuals who believe they have experienced racial, ethnic, or national origin discrimination involving their religion.

  • The U.S. Equal Employment Opportunity Commission (EEOC) announced it will collect more precise data about the religion of the individual alleging discrimination.  EEOC released released a fact sheet, in English and in Spanish, primarily designed for young workers to educate them about their rights under the law.

The Obama Administration has made addressing hate crimes and religious discrimination a priority.  These new resources and programmatic initiatives will help pave the way for further progress.

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April 4, 2014

Coalition Promotes Expanded Religious Accommodation In The Military

On January 22, 2014 the Department of Defense (DoD) published an updated and revised Instruction 1300.17–Accommodation of Religious Practices Within the Military ServicesThe new guidance, which describes policy, procedures, and responsibilities for the accommodation of religious practices in the Armed Forces, was designed “to ensure the protection of rights of conscience of members of the Armed Forces.”  The updated guidance sought to strike the proper balance between military readiness and religious freedom for service members.   But it fell short in not providing a sufficient accommodation for some fundamental aspects of minority religious practice.  120407-M-KX613-023.jpg

For example, the guidance lays out a formal process so that Jewish and Sikh soldiers may request an accommodation for their required head coverings (a kippah or a turban) and incorporates grooming standards that provide a path for approval for beards.   However, each soldier must still request an individual, case-by-case accommodation under the guidance – a daunting and stressful prospect for some, with an uncertain outcome.   In the name of “…maintaining uniform military grooming and appearance standards,” the effect is to exclude some individuals who would otherwise welcome the opportunity to serve their country in the military.  

In January, the House Armed Services Subcommittee on Military Personnel held hearings on religious accommodations in the military. ADL, the Sikh Coalition, and the ACLU, (among others) raised this issue in their statements.  And Holly Hollman, General Counsel for the Baptist Joint Committee on Religious Liberty, articulately described  the delicate balancing act facing the military in addressing religious liberty concerns. 

Importantly, more than 100 Members of Congress have weighed in on religious accommodation in the military in a letter to the Pentagon, coordinated by Rep. Joseph Crowley (D-NY).   

And this week ADL, the Sikh Coalition, and the ACLU coordinated a letter to the Pentagon from an unusually broad coalition of twenty-one national groups with real religious liberty credentials and subject matter expertise.  The interfaith coalition letter stated that the current guidance “needlessly infringe on the rights of these religiously observant service members and prospective service members” and urged the Pentagon to fine-tune the Instruction to better accommodate religious practices. 

The same command structure that provides unique pressure to conform within the military – and potential for inappropriate proselytizing and religious coercion – also makes the direct involvement of the Pentagon’s leadership in promoting effective, uniform guidance and solutions to this problem critically important. 

The signatories to the coalition letter are: 

American Civil Liberties Union, American Jewish Committee (AJC). Americans United for Separation of Church and State, Anti-Defamation League, Baptist Joint Committee for Religious Liberty, Becket Fund for Religious Liberty, Chaplain Alliance for Religious Liberty, Christian Legal Society, The Church of Jesus Christ of Latter-day Saints, The Episcopal Church, Forum on the Military Chaplaincy, General Conference of Seventh-day Adventists, Interfaith Alliance, Muslim Advocates, National Council of Jewish Women, Sikh American Legal Defense and Education Fund (SALDEF), Sikh Coalition, South Asian Americans Leading Together (SAALT), United Methodist Church, General Board of Church and Society, Union of Orthodox Jewish Congregations of America, Union for Reform Judaism

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