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June 3, 2015 2

Governor Haley’s Ill-Considered Participation in Mass Prayer Rally

South Car­olina Gov­er­nor Nikki Haley is pro­mot­ing and par­tic­i­pat­ing in a June 13th Chris­t­ian prayer rally called “The Response: a call to prayer for our nation.”  She regret­tably is fol­low­ing in the foot­steps of for­mer Texas Gov­er­nor Perry who back in 2011 was a keynote speaker at sim­i­lar event bear­ing the same name and attended by 30,000.  Gov­er­nor Haley’s involve­ment in this event is not only deeply insen­si­tive to many of her con­stituents, but vio­lates the spirit if not the let­ter of the Constitution.

South Carolina Governor Nikki Haley

South Car­olina Gov­er­nor Nikki Haley

Accord­ing to The Response web-site,

Amer­ica is now in such a state of cri­sis … and the root is not to be found in polit­i­cal agen­das, eco­nomic dol­drums, crime rates, or ter­ror­ist threats, as many believe. Our coun­try is in cri­sis because we are a peo­ple who are no longer hon­or­ing God in our pros­per­ity or humbly call­ing on Him in our predica­ments. The Response is com­mit­ted to acti­vat­ing a return to prayer by those with con­trite hearts, to pro­vide wit­ness that the Church is tak­ing a stand for right­eous­ness and ask­ing God for His mercy on the land we love.

It fur­ther states that although “… every­one is wel­come to come and join us in prayer, the focus of the prayer will be unashamedly Chris­t­ian. The only name that will be lifted up will be the name of Jesus Christ.” ADL sup­ports every American’s right to pray and fol­low the reli­gious beliefs of his or her choos­ing, includ­ing Gov­er­nor Haley’s.  But the found­ing fathers knew that the best way to pro­tect these fun­da­men­tal rights is to make sure that our elected offi­cials and rep­re­sen­ta­tive gov­ern­ment would not impose one reli­gion over another or any reli­gion at all. Gov­er­nor Haley was elected to lead a reli­giously diverse con­stituency.  But her offi­cial par­tic­i­pa­tion in The Response and encour­age­ment of oth­ers to attend this event are deeply divi­sive.  It con­veys a dis­tinct mes­sage to non-Christians that they are out­siders.  Such offi­cial actions that divide Amer­i­cans along reli­gious lines are not a pro­duc­tive way to address our nation’s prob­lems. The genius of the First Amend­ment is that reli­gion in all its diver­sity has thrived in Amer­ica because gov­ern­ment is required to keep its dis­tance from it.   Gov­er­nor Haley would be wise to fol­low this essen­tial prin­ci­ple by recon­sid­er­ing her par­tic­i­pa­tion in The Response. As a 501(c )(3) non-profit orga­ni­za­tion, the Anti-Defamation League does not sup­port or oppose can­di­dates for polit­i­cal office.

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April 3, 2015 6

Arkansas’ and Indiana’s Fixes to “Religious Freedom” Laws are Illusory

Arkansas’ and Indiana’s pas­sage of dis­crim­i­na­tory “reli­gious free­dom” laws was met with national back­lash from civil rights groups, the busi­ness com­mu­nity, and oth­ers.  Under intense pub­lic pres­sure, both state leg­is­la­tures made “fixes” to these laws, which their respec­tive Gov­er­nors promptly signed.   But these revi­sions are illu­sory and do lit­tle to mit­i­gate the harms of these laws.

Nei­ther of the orig­i­nal Arkansas or Indi­ana mea­sures men­tioned sex­ual ori­en­ta­tion or dis­crim­i­na­tion. Under the guise of reli­gious free­dom, how­ever, both allowed busi­nesses and employ­ers to dis­crim­i­nate against the LGBT com­mu­nity, as well as against reli­gious and eth­nic minori­ties, by pro­vid­ing them with a vir­tu­ally insur­mount­able religious-based legal defense.Arkansas-StateSeal.svg

Pro­po­nents of these laws erro­neously claimed that they were mod­eled on the 1993 fed­eral Reli­gious Free­dom Restora­tion (“RFRA”).  That RFRA, which the Anti-Defamation League sup­ported, was much nar­rower and explic­itly designed to pro­tect indi­vid­u­als and faith-based insti­tu­tions’ reli­gious exer­cise from gov­ern­ment infringe­ment.   It was never meant to apply to for-profit enti­ties or pri­vate dis­putes, or to enable enti­ties to dis­crim­i­nate against indi­vid­u­als in the name of “reli­gious freedom.”

Indiana’s fix to its law pro­hibits busi­nesses from deny­ing ser­vices to cus­tomers based on sex­ual ori­en­ta­tion or gen­der iden­tity.  And Arkansas’ revi­sion now tracks the lan­guage of RFRA and states that it should be inter­preted con­sis­tent with the fed­eral law.  While these fixes may make good media sound bites, they are misleading.

The revised Indi­ana law does not pro­vide statewide civil rights pro­tec­tions for the LGBT com­mu­nity or pre­vent its use to harm oth­ers.  Because the state does not have an inclu­sive anti-discrimination statute, and because the vast major­ity of Indi­ana cities and towns lack local civil rights pro­tec­tions for the LGBT com­mu­nity, busi­nesses and employ­ers remain free to dis­crim­i­nate on the basis of sex­ual ori­en­ta­tion or gen­der iden­tity.   Even with this fix, the Indi­ana law still pro­vides a pow­er­ful religious-based defense to indi­vid­u­als and busi­nesses in civil and crim­i­nal actions, and infringes on the rights of oth­ers.  For exam­ple, a police offi­cer could refuse to pro­tect a casino, liquor store, phar­macy, butcher shop, lend­ing insti­tu­tion, or women’s health clinic.


The amended Arkansas law is per­haps more disin­gen­u­ous.  Although it is now con­sis­tent with RFRA, the U.S. Supreme Court’s deeply dis­turb­ing Hobby Lobby deci­sion expands RFRA’s pro­tec­tions to for-profit, closely held cor­po­ra­tions (rang­ing from small busi­nesses to nation­wide com­pa­nies like Hobby Lobby).  And a 1999 fed­eral U.S. Court of Appeals deci­sion applic­a­ble to Arkansas ruled that RFRA applies to pri­vate disputes.

So a fam­ily owned busi­ness, large or small, can invoke the new law’s pow­er­ful defense in vir­tu­ally any civil action, includ­ing claims of dis­crim­i­na­tion or wrong­ful denial of ser­vice, employ­ment or hous­ing.  Keep in mind, 96.6% of Arkansas’ employ­ers are small busi­nesses.  Trans­la­tion: the vast major­ity of Arkansas’ busi­nesses can use the law to deny ser­vices, employ­ment, and hous­ing to the LGBT com­mu­nity and other minori­ties.  Mak­ing mat­ters worse, Arkansas has no state-wide civil rights pro­tec­tions for the LGBT com­mu­nity, and it recently enacted another law bar­ring local gov­ern­ments from pro­vid­ing such pro­tec­tions for their residents.

To truly rem­edy the harm­ful effects of their so-called “reli­gious free­dom” laws, Arkansas and Indi­ana must enact statewide anti-discrimination pro­tec­tions for the LGBT com­mu­nity, insert addi­tional safe­guards against use of the laws to harm oth­ers, and limit their appli­ca­tion to indi­vid­u­als, reli­gious insti­tu­tions, and religiously-affiliated non-profits against gov­ern­ment action that sub­stan­tially bur­dens religion.

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December 4, 2014 0

The Price of Religious Exclusion

The Town­ship of Bridge­wa­ter, NJ recently set­tled a law­suit filed by a local Mus­lim con­gre­ga­tion – the Al Falah Cen­ter – for $7.75 mil­lion.  The law­suit alleged that the Township’s expe­di­tious pas­sage of a new land use ordi­nance which effec­tively barred the Cen­ter from con­vert­ing a for­mer 15,500 sq. foot ban­quet into a mosque vio­lated the fed­eral Reli­gious Land Use and Insti­tu­tion­al­ized Per­sons Act (“RLUIPA”).bridgewater

In Octo­ber 2010, the Cen­ter signed a con­tract to pur­chase a for­mer Red Roof Inn with the intent of con­vert­ing it into a mosque.  A prior Town­ship traf­fic study con­cluded that the pro­posed con­ver­sion would not increase traf­fic.  And in March 2011, the Sum­mit County Plan­ning Board found that the con­ver­sion raised min­i­mal traf­fic issues and it con­di­tioned approval of Al Falah’s land use appli­ca­tion on instal­la­tion of a new traf­fic light paid for by the Center.

But six days after the County issued its find­ing and shortly before a new state law favor­able to the Center’s land use appli­ca­tion went into effect, the Town­ship adopted a new land use ordi­nance that effec­tively barred Al Falah from using the prop­erty for a mosque.  Inter­est­ingly, the same ordi­nance did not affect the oper­a­tion of the other sev­en­teen exist­ing houses of wor­ship within the Town­ship, none of which are mosques.

A fed­eral dis­trict court found that the Township’s actions likely vio­lated RLUIPA, as well as denied Bridgewater’s motion for sum­mary judg­ment.  The Town­ship appealed this deci­sion to the U.S. Court of Appeals for the Third Circuit.

The Inter­faith Coali­tion on Mosques (“ICOM”), which is spon­sored by ADL, filed a friend-of-the court (ami­cus) brief with the Third Cir­cuit in sup­port of the Cen­ter.  How­ever, the case set­tled dur­ing the pen­dency of the appeal.

Under the set­tle­ment terms, the Cen­ter will not build a mosque on the Red Roof Inn prop­erty.  But the Town­ship will pay $2.75 mil­lion to buy an alter­na­tive 15-acre prop­erty for the Cen­ter and Bridgewater’s insur­ance car­rier will pay Al Falah another $5 mil­lion for alleged dam­ages and attorney’s fees.

The legal set­tle­ment is not an admis­sion of lia­bil­ity or dis­crim­i­na­tion.  But per­haps it has taught the Town­ship and oth­ers munic­i­pal­i­ties an expen­sive and vital les­son: reli­gious free­dom in Amer­ica is for all faiths, not just some.

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