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Alison, Liz, and Rebecca discuss a better vision for religious liberty with Liz Reiner Platt, director of the Law, Rights, and Religion Project, a law and policy think tank based at Columbia Law School. They talk about using religious exemptions to promote progressive social causes and issues, including the legal fight for a right to abortion based on freedom of conscience.
Background
Resources
All Faiths and None: A Guide to Protecting Religious Liberty for Everyone
Parading the Horribles: The Risk of Expanding Religious Exemptions
Amicus Briefs
Rebecca Markert:
Welcome to We Dissent, the podcast with secular women attorneys discussing religious liberty issues in our federal and state courts, and our work to keep religion and government separate. I'm Rebecca Markert, the Legal Director at the Freedom From Religion Foundation.
Liz Cavell:
And I'm Liz Cavell, Associate Counsel at FFRF.
Alison Gill:
And I'm Alison Gill, Vice President for Legal and Policy with American Atheists. And in this episode, we're excited to welcome our special guest, Liz Reiner Platt, to help us talk about today's topic. Using religious exemptions to promote progressive social causes and issues. This is especially significant right now because of the work to oppose abortion restrictions based on religious beliefs. And there's just a lot happening in this field at the moment. So we're really excited that she's here. Liz is the director of the Law, Rights, and Religion Project, a law and policy think tank based at the Columbia Law School that promotes social justice, freedom of religion and religious pluralism. Over the past seven years, Liz has helped lead the Law, Rights, and Religion project’s work in providing legal research and scholarship, public policy education and advocacy, legal support for activist organizations, and academic media publications to ensure that laws and policies reflect the understanding at the right to free exercise for religion protects all religious beliefs in communities, including the non-religious. So before joining the project, Liz worked on advocacy for working families, sex workers' rights, and reproductive rights. So with that, I'd really like to welcome Liz and to hear a little bit more about the work you've been doing.
Liz Reiner Platt:
Absolutely. Well, thank you so much. I am delighted to be here. So I think as you all know very well, the really predominant vision of religious liberty being promoted today in the US is coming from a pretty narrow band of very conservative white Christian organizations. And so the overarching mission of the Law, Rights, and Religion Project or LLRP is to think through what a very different vision of what religious liberty should look like. One that aims to protect everybody and not just that very narrow band of conservative Christian believers. One that really values and promotes religious pluralism, and one that sees religious liberty as one fundamental right of many fundamental rights that should ideally work in harmony rather than against each other.
So, you know, some of our work is a little more kind of defensive in nature. It seeks to research and uncover some of the harms that this kind of warped religious view of religious liberty has done in the world. To give an example of that kind of work, last year we issued a huge research report. It was the result of two years of research into healthcare restrictions at Protestant hospitals across the south. We uncovered some really restrictive healthcare policies at those institutions that could limit healthcare for people with a really wide range of medical conditions including cancer, kidney disease, premature labor, and a host of other issues. And then some of our work aims to take kind of a more affirmative approach to these issues and flesh out not just what we want religious liberty not to look like, but what do we actually want it to look like, because it is a really important fundamental right. So to give you kind of a taste of what that kind of work looks like, a couple years ago we issued a report called All Faiths and None along with our partners at Auburn Seminary. And what that piece aimed to do is offer kind of six grounding principles for how we should be protecting religious liberty. And those principles were distilled from reading a ton of case law and also from a series of convenings that we held with pretty diverse religious liberty stakeholders. Alison, you were at least one, I think multiple of those convenings. And the six principles that we ended up coming out with are that religious liberty has to be neutral, non-coercive, non-discriminatory, balanced with other rights, democratic, and pluralistic.
Alison Gill:
I really appreciated that resource. And let me just say, when I first came into the secular movement and got involved in this field like five years ago when I started with American Atheists, one of the things I noticed was that our opponents on the right had their definition of what religious freedom was and what it is. And it was a very terrible definition. But they had like, I don't know if it's the Manhattan Declaration, things like that, where they basically put it together and achieved a unified version even though they didn't all agree, they had enough of them sign on to make that their vision. And that did not exist on the more progressive religious freedom side. And so I noticed the gap. I tried to pull together like a little working group to think through how we might create something. And we all agreed it was so hard, we could not easily do it. And then I saw you working on this project and I was, I'm just so impressed. It's so valuable for us to have our own narratives about what religious freedom is if we're gonna be contesting the oppositions, a frankly non-historical and un-American narrative.
Rebecca Markert:
The resources that you have put out have been so invaluable. And I just want our listeners to know that we will link some of these resources that we're talking about in our show notes so that they're able to access them and read through them too. But particularly as we are now one year out from the Dobbs decision, which overturned the right to abortion, I really appreciated the report that your project released last summer on the exemptions to abortion bans. The resource known as “A Religious Right to Abortion: Legal History and Analysis” was so helpful, especially in the aftermath of Dobbs when we were trying to figure out what's left and what can we do now. Because I think all of our organizations are very similar to you where we wanna be proactive, but a lot of our work is really defensive. And this was really helpful in just getting that proactive piece and figuring out what do we do next.
Liz Reiner Platt:
Well, thank you so much. And just to give you, maybe just to kind of outline a little bit about what that piece is. So we could see like many folks in this profession could see down the pike that the end of Roe was coming and that people were gonna be turning to new legal arguments for making sure that people had the right to bodily autonomy and to access the healthcare that they needed. And I think the way this idea of the religious right to abortion is something that journalists like to frame as this new thing or this new kind of almost a gotcha from progressives of taking these conservative laws, because they're frequently based on Religious Freedom Restoration Acts or RFRAs that were passed by conservative legislators. So they often get spun as this kind of gotcha legal strategy. And what that piece shows, I think our religious right to abortion pieces isn't, I think one of the most important parts of the project was we showed how people have been making the argument that religious freedom includes a right to bodily autonomy for decades. It's not a new legal strategy, it's not a new thing that lawyers kind of came up with in the wake of Dobbs. It's the way that religious denominations themselves have been talking about bodily autonomy and reproduction since the seventies, if not longer. So I guess I'm realizing I didn't actually describe what the report is, but basically it just provides an overview of contemporary religious liberty law and how it might interact with bans on abortion.
Alison Gill:
I think this is a great segue to sort of a broader issue, which is one of the primary issues that your project looks at and works on, which is the use of religious exemptions, not just for abortion, but to promote or provide access to civil rights and other progressive causes as a strategy. I'd love to maybe start us off and talk a little bit more about that. How would you describe that work?
Liz Reiner Platt:
Yeah, so progressive faith communities and humanitarian activists and folks who don't even necessarily identify as progressive, but just folks outside of the conservative Christian right, have been bringing religious liberty claims forever. In fact, you know, until fairly recently, the majority of big name religious liberty claims were brought by small religious minority groups. And so, kind of jumping off one of the principles that I articulated in that when I was talking about the “All Faiths and None” report is neutrality. So one of our aims in this line of work over the past few years has been to show the public, but also courts in the form of amicus briefs that religious liberty protections have to apply neutrally across the denominational theological political spectrum. So we have submitted amicus briefs largely on behalf of neither party in cases in which, again, folks outside of this conservative Christian context have said that their religious liberty is being stifled by things like being prosecuted for leaving out food and water in the desert for migrants who are coming into the United States.
There was another case involving an organization called Safe House, which wants to open a safe injection site for people who use drugs in Philadelphia as an exercise of its board's religious obligations. In another case Reverend Kaji Douša was penalized, stopped at the border, interrogated for her work providing ministerial services to migrants in Mexico. And so in these kinds of cases we have issued amicus briefs again, on behalf of neither party frequently, essentially laying out what the RFRA test is, the religious liberty test is, and telling courts you need to treat these folks as seriously as you're treating Hobby Lobby and Jack Phillips who wants to refuse a cake to a same-sex couple. Because what I think we all know is that it can be really easy for courts to adopt different standards for different people.
I think the most glaring example is often religious liberty cases brought by people in prison. If you look at, for example, the issue specifically, you know, drilling down to the issue of religious sincerity, for example, the court will accept almost any claim of religious sincerity from a conservative Christian or others that they see as kind of respectable, if you will. And they're very willing to question the religious sincerity of people in prison. And so, again, a kind of our aim is really to show that if we're gonna be broadening these religious exemptions so expansively, then we can't just be offering those exemptions to the folks that the people on the bench like.
Alison Gill:
I'm just curious, these cases you've been talking about, how have they turned out? Has this been an argument that's been accepted in some of the ones around the immigration and these, some of these other contexts?
Liz Reiner Platt:
Some of them have actually, which frankly was somewhat of a surprise to me, but some of them have the No More Deaths cases. The folks who were doing food and water drops in Arizona, they actually won some of their religious liberty claims. And so had those charges dropped Kaji Douša, the pastor who was stopped at the border because of her work with migrants, won her religious liberty claim before the district court. And then some of the cases I would see as wins, even though they didn't actually win. So, for example, there was another case we were involved in with a group of Catholic workers who broke into a nuclear military facility and poured vials of their own blood on nuclear weapons in protest of a nuclear war. And the court found that there was a burden there. They treated the claim very seriously.
At the same time, it said, well, there's some compelling government interest in not having people break into nuclear military facilities, which I think is good. It's fair. So again, that's one where we didn't, we didn't go in, in our amicus brief saying that we believed that they should get an exception per se. We said, this is how the court frames the test, and maybe there is a government interest here and that's, you know, your decision court, but court, you know, at the very least you need to treat these folks. You know, you can't just, you can't just toss the case because you don't like it.
Alison Gill:
One of the issues that comes up a lot is sincerity and also whether the people are actually compelled to take action. Is that right? I would love it if you maybe go through the elements of these types of claims just so people have a better understanding, a little bit more of, you know, what it is, how these work and, and, and function and where the pushback is sometimes for some of the progressive ones.
Liz Cavell:
And also, Liz, if I could just jump in, can you give a little context for like, when would a claim like this be raised? You're kind of touching on it. Someone being charged with a crime for doing something and raising in their defense somewhat of like a religious defense. Kind of explain the context of how this comes up and how it operates.
Liz Reiner Platt:
The easiest thing to probably tackle is the Religious Freedom Restoration Act cases, RFRA, all of these claims obviously have slightly different tests. If it's a federal RFRA or a state RFRA, there's a whole separate line of cases for the free exercise Clause of the First Amendment. And then every state has its own constitution with its own religious liberty protections. But to not overburden your listeners, I'll give the RFRA test. So in that case the claimant, the religious practitioner would have to show three things. They would have to show that they're sincere, essentially, that they're not perpetrating a fraud on the court, is the way it's sometimes phrased, that their beliefs are religious in nature and not political or something else. And third, that the relevant action that the government is taking, whether it's a law or just a policy, what have you, substantially burdens their exercise of religion. If they can make those three claims, then it goes to the government to show that the burden is nevertheless acceptable because it's necessary for protecting a compelling government interest. So I know there's a whole lot of legal jargon there and many arguments have been made about every single one of those, you know, what does sincerity mean and what does religion mean, right? So all of those things are contested, but that's kind of the basic test.
Liz Cavell:
I have one quick question to follow up on that. Do those statutes operate as broadly as like you can raise a RFRA claim in sort of almost any context where you're facing some kind of legal detriment or, you know, punishment, obviously you made reference to criminal cases. Is RFRA the kind of thing that is just kind of hovering over every law there is just kind of waiting to be claimed in defense?
Liz Reiner Platt:
Yeah. I'm sorry. You asked about that in terms of defensive versus sort of affirmative. So yeah, I think that question kind of gets at the heart of what is a burden and being thrown in jail for 20 years as Scott Warren was one of the claimants in the No More Deaths case is obviously a burden. The court also decided in Hobby Lobby that paying a fine even for a very large corporation, was a substantial burden. But there are other cases where the court hasn't found a substantial burden that I think are, you know, maybe we're not seeing quite the same standards. So for example, there is a, back when during the Gorsuch nomination process, everyone was talking about him as this huge defender of religious liberty and I did a little bit of digging and I found a case where he ruled against a Muslim man in prison who sued to access halal food. And Gorsuch decided that, you know, that's a kind of very routine case. He did end up being able to access halal food. But as part of the decision, Gorsuch said that not being able to eat at all is a substantial burden, but having to miss an occasional meal every once in a while, that's not a substantial burden. So again, massive multinational corporation paying a fine, substantial burden, person in prison sometimes having to go to bed hungry, not a substantial burden. So that was Gorsuch's view of religious freedom for you.
Rebecca Markert:
That's appalling to me. I am sickened. Wow.
Alison Gill:
I mean, we saw similar types of things when it came to the death penalty cases, right? I mean, before they reversed course where there was an imam that wanted to pray with the person, and that was not allowed. And then finally it was Christian and all of a sudden it was allowed. We discussed that previously.
Liz Reiner Platt:
Another line of cases that have had very little success in a way that I think is really troubling is anything involving Muslims in national security. So, there have been a lot of different programs that have been challenged over the years where Muslims are stopped at the border, interrogated about their religious beliefs and practices, spied on, demanded that they spy on their communities and become informants with the FBI, et cetera, et cetera. There have been a handful of these cases and they almost universally have lost.
Alison Gill:
So this approach, it sounds like it definitely has some success and it's able to sort of work on a few different areas. We talked a little bit about some of them. I wanna do a deeper dive on especially what's happening on reproductive issues. But, you know, none of our groups, speaking for American Atheists and FFRF, support RFRA, we would love to see it repealed. And you know, there's some sort of counter arguments saying that, well, should we be using these arguments? Is this a good idea? And for a variety of reasons, one of which is does it reinforce or even potentially expand harmful religious exemptions in the law, which could be destructive to the rule of law and equality under the law? And is it intention with our efforts to sort of roll back RFRA and other types of very overly broad exemptions that exist in a law that are just frankly unfair and shouldn't be there? And will we end up with unfair outcomes where some groups have more rights than others?
Liz Reiner Platt:
Yeah, it's a really rich question. It has a lot of different kind of components and gets me thinking in a few different directions. I think to me the sort of least persuasive argument is the idea that by bringing progressive exemptions, we're gonna somehow make the law worse. To my mind, Pandora's box is very much open. Alliance Defending Freedom is throwing absolutely everything at the wall. And I'm sorry, for listeners who don't know Alliance Defending Freedom, one of the largest I would say most extreme supposedly religious freedom legal organizations that represents conservative Christian claimants.
Alison Gill:
Friends of the pod.
Rebecca Markert:
Definitely
Liz Reiner Platt:
What I keep coming back to is there's this extremely powerful legal tool, at least for some people, and by just not even touching it, is that a win for us or is that kind of losing from the start? It just doesn't feel like a compelling argument to say ceding religious freedom claims to the far right is a good legal strategy in my view.
Rebecca Markert:
I also just wanna sort of follow up on that because it's also, I think for our organizations really hard to make a RFRA claim. I mean, putting aside the fact that we don't believe that it's constitutional and it should be repealed, it is a very hard pill to swallow, I think for judges and particularly some of the really ultra conservative Trump judges that we now have on the court, for an atheist or a non-believer to go before the court making a RFRA claim. And when we're looking at some of these exemptions and I'm going back to the reproductive rights issues, where you're looking at what kind of claim can a non-believer make with regards to a right to abortion that's based on religious liberty. I think a lot of people question what that looks like and whether we would be laughed out of court if we made that type of claim under RFRA.
Liz Reiner Platt:
Yeah. I wanna be clear that I don't think that religious liberty is going to be the tool or should be the tool to get reproductive autonomy back. I think everyone deserves a right to abortion regardless of whether it's a religious belief or not. And I mean, so there's no question there. I think that doesn't necessarily mean that we don't bring the religious claims at all. I'm just saying I certainly would never deign to say that this is the silver bullet. And you know, I think one way in which religious claims made by the right have been effective is continuing to challenge the underlying law at issue as a contested thing, right? Conservatives lost on Obergefell, that was their plan A. They wanted no fundamental right to marriage for same sex couples, and they lost that. And they have managed to continue making that issue a contested right.
And for much, much, much longer the right to abortion a contested right. And one of the ways they did that was through these religious liberty claims. So I don't know if that fully answers the concern. And it certainly doesn't it doesn't answer the kind of normative question of whether any religious exemption is ever fair. I think that's a much more complicated question. So if we look at, for example, what we might see as kind of an easier case, like should we allow someone to wear a hijab in prison when someone isn't allowed to wear like a headscarf for a secular reason, like self-expression or something like that. You know, I think that's probably an area where we might just come down kind of normatively on different sides about whether that is fair or not. Does that remedy Christian bias in the law? Or does that create bias in favor of religious believers?
I think it's a much more, kind of, thornier question. You know, the Christian right has really been able to frame the entire conversation on what free exercise rights look like, because they've been doing so many more of the cases, so they've been able to really shape the entire narrative, shape the legal arguments, shape the plaintiffs, shape the claims. And, you know, we really haven't been, I think, engaging as a movement in that conversation as much as we could because there's no law firm that's even remotely at the same scale as a place like ADF or Liberty Counsel or Becket Fund. The claims that I mentioned, the no more deaths claims, et cetera. They've been mostly brought by kind of scattered lawyers, individual practitioners with no particular expertise in religion all across the country. These have not been movement cases in the same way ADF brings movement cases, bringing a hundred different lawsuits on a particular issue. So it makes me wonder, you know, would we be in this same place if we had ADF that was really devoted to religious pluralism? I don't know. I'm not saying that we wouldn't, but I think it's possible that forcing judges to engage more deeply and hear more cases around this might encourage a little bit more nuance.
Alison Gill:
Yeah, that's a great point. And it's hard to say because there's two sort of elements there. One is because these claims may not resemble the sort of, the way the law is shaped by all this jurisprudence from the right, like the, the claims might just be different so judges aren't familiar with how the claims might differ in these different contexts. So that's like, you know, a case law development question. But the other question is, are courts inherently sort of biased towards majoritarian religion? And, you know, especially in this country where the vast majority of judges who are religious I don't think we have any out atheist judges, at least not that I know about that at the federal level on the courts and you know, they're biased towards religion and majoritarian religions too. So that certainly plays a role I would think as well. So I guess there's a few different elements there, sort of pointing against people being able to vindicate their religious freedom rights.
Liz Cavell:
Yeah, there's definitely the problem of scale, right? We're just like outgunned by these organizations that these air quote christian liberty law firms are doing this movement work from their side because they literally are funded to the hilt and they've built these like shadow networks of influence. And so there's that, and that just is, and that's kind of a separate problem. I think as a secular movement, like A, we're just more like disaggregated because we're a more diverse group of stakeholders, right? Like we, our organizations here, FFRF and American Atheists, generally we represent our membership who are non theists, many of them are atheists. And some of our members have, you know, some sort of religious identification like their secular Jews or their Universal Unitarians and, and still non theists. But I think in general it can be really hard to kind of figure out how we plug into a concept of religious liberty that we don't quite see reflected.
What I love hearing you talk about, Liz, I've heard you kind of make this pitch at other conferences is the how is really hard. But I do, I agree that it's really vital for our movement stakeholders to find a way to kind of take back the mantle of religious liberty in the same way that we as progressives need to take back the mantle of what's American and patriotic and all of those things. I think we all kind of realize that that's something that has been unfairly and I think to everyone's detriment kind of co-opted by, I think religious liberty really is in that camp too, where I love the principles you laid out that came out of the working groups because it really is, it's a positive view of what religious liberty could be and what I think a lot of Americans who are not engaging with these issues like we are, I think it reflects probably how more people would describe what they want American religious liberty to look like. But it's just really hard to sort of build that positive movement of what religious liberty is. I agree that that's like such a worthy goal and how we do that in some of our cases and some of our communications and education side of our work. But it's a hard problem, especially in the courts.
Alison Gill:
I'm just bringing us back to, we had some discussion about the back and forth of the arguments and counterarguments for these types of approaches. But one element I think I wanna focus on just a little bit more is the way that if we get victories in these areas using these approaches, it undermines the ability to sort of roll back the RFRAs of the world and sort of these broad religious freedom exemptions. So let's take the example you gave Liz with the headscarf in prisons and let's say that that regularly happens and it's well identified that certain religious groups really rely on that to get heads scarfs in prisons, which I think is important and another everybody else can't. Well then you sort of have a client group for protecting RFRA 'cause it allows them to get their needs instead of focusing advocacy on saying, “Well obviously headscarves and prisons aren't a problem. They don't cause a security issue. The rule is a bad rule, it should not exist for anybody. Right?” So why does it exist? You know? And so the advocacy wasn't focused there, it was focused on getting religious exemptions and now people are dependent on it, so it's harder to roll back RFRA. So that's sort of one of the tensiony places I see. And, and the other place is, and I think we're the only group that actually was on the government side in this case, so I just wanna bring it up from a couple years ago was the Tanzin v. Tanvir case, which is around RFRA. And it was this horrible situation where you had these Muslims that were forced by the government to sort of act as spies or face like repercussions, like really negative repercussions. And, and we made the point that, you know, they tried to sue on the RFRA saying that the officials were personally liable.
And we made the point that, you know, if this were ex-Muslims, no one would even be, they would not be able to even bring this claim. But because they were Muslims, if they were ex-Muslims being forced to spy on the congregation, they would not have a claim. But because they were Muslims, they are able to, and like, you know, the vast majority of groups were for that, but it completely leaves out non-religious people from possible remedies. And so I see that not just, you know, it doesn't just leave them behind. They don't even access to a remedy in the field if that had happened to non-religious people, there's nothing under federal law they could rely on. They'd just be out of luck, right? Where there's this whole legal opportunity that's open just for religious causes. So I guess I'm just sort of pointing to some of the flaws of this, not that I think you think it's perfect either, but I'd love to hear your thoughts on those.
Liz Reiner Platt:
Yeah, so, I mean, for the hijab case I think, and we sort of had this conversation before, I think at their best, the idea of religious exemptions are to protect very small groups whose interests are not gonna be very well represented in public discourse and advocacy, right? So to take the hijab case, you know, sure, I of course I would be fine with everyone being able to wear a headscarf. But you know, or to take another very similar example. We've talked about, you know, a police officer being able to grow a beard. But the question is that how does that happen when we're talking about a very small group with not a huge amount of political power and not a lot of political will to accommodate their needs. And so I think at their best religious exemptions are intended to say, you're probably not gonna get a law or a policy changed because you're a very small religious group without a lot of power.
But we're gonna provide this structure for you to be able to access exemptions, you know, through the court system in a way that's easier than necessarily trying to appeal to a prison board, right? I mean, if you talk about people that have the lowest amount of possible power trying to put it on Muslim women in a prison to get a national federal prison policy changed, that feels like a really big ask. So that would be my kinda response to that one. I think the Tanvir one is harder to respond to. We had some concerns about that case and didn't do an amicus on either side. I understand, I mean I find that like sort of a more problematic example because there was a religious violation there, but there was also a pretty intense secular, you know, just police harassment issue. Maybe there are other means of challenging that, but the whole situation was obviously terrible. And I can understand saying we need a variety of ways to remedy that kind of situation. And I'll say that, you know, they did win at the Supreme Court on the issue at hand, but then they ended up losing in that case based, I believe, on qualified immunity at the district court. So that's another case where in incidents even with RFRA, the national security cases just don't do well.
Alison Gill:
I think we should do a whole talk on qualified immunity at some point, folks. 'cause It's definitely worth discussion there.
Liz Cavell:
So Liz Platt, we talked earlier about your report on sort of the history of arguments for a positive religious right to abortion access and bodily autonomy. And I wanna circle back to that and just talk about now that we are in this post Roe reality, how are we seeing groups making these arguments? What are the iterations of the religious right being argued for reproductive access in the courts today?
Liz Reiner Platt:
Yeah, so we've seen a handful of cases in Wyoming, Utah, Kentucky, Texas, Idaho, Florida, Missouri. I believe that's it. There might be others. And there are basically two ways that claims have been made. In most cases, I'll say use both of these tactics. So one is the free exercise, religious liberty frame, saying that these abortion bans violate my religious beliefs and religious exercise. And the other way that we've seen claims being made is as an Establishment Clause claim saying these bans are improperly, religiously motivated and therefore violate church separation. And the two different arguments would have different results. The free exercise type claim would and most often result in an exemption for the religious objector. Whereas the Establishment Clause claim would result in overturning the law entirely, which, you know, of course then seems like a better result. But they also have, it's slightly, I think, a more challenging claim to make for a couple of legal reasons. But as I said, most of the claims make both of these arguments.
Liz Cavell:
So I know these cases, it's a very new landscape and some of these cases are still just barely starting to work their way through the courts. But has there been any district court or state court level success yet, especially in the RFRA free exercise frame for any of these claims?
Liz Reiner Platt:
There was actually in Indiana, so in Indiana, a group of claimants, including several Jewish claimants, a Muslim claimant and one sort of spiritual but not religious person, all made an argument based on their state Religious Freedom Restoration Act. The RFRA that was very controversially signed into law by Governor Mike Pence at the time, and they won at the district court level. The court said that yes, this ban violates your religious liberty and that there is not a sufficient compelling government interest to enforce it on you. And not only did at the district court level, but they actually just got certified as a class action, which is pretty unusual. Which would really widen the reach of the litigation.
Liz Cavell:
And are we generally talking in that case about providers or patients or
Liz Reiner Platt:
Both? No, I'm sorry. Patients, patients’ access to abortion.
Liz Cavell:
That's exciting.
Liz Reiner Platt:
And so, you know, it is a thorny question then, because then your question gets at the heart how do they get access if they have a right to receive abortion care. But there's not necessarily a right to provide it.
Alison Gill:
I mean, that is interesting. It makes it, I would say, more relevant to some of the new bans we're seeing out, coming out against abortion that try to do like long arm that try to prevent people from traveling or to get access or, you know, wanna criminalize out of state care. Which unfortunately, I think we're gonna see more and more of the case done, you know, where the right is going in the law.
Liz Reiner Platt:
One other case that I'll just flag 'cause I think it's interesting is three Jewish women in Kentucky also have a claim that really focuses on access to in vitro fertilization. They say they have a religious right to grow their families actually. And that the extremely prohibitive law in Kentucky that essentially defines a person the moment of conception limits their ability to use IVF to grow their families. And it also includes an abortion claim because they say as older women and for other reasons, they're at a higher likelihood of experiencing a fetal anomaly that would lead them to have an abortion. So it includes both the right to IVF and to have children as well as the right to end a pregnancy. So it's just an interesting case.
Alison Gill:
Speaking of Indiana, one case I wanted to flag was one that you all, well, amicus brief, you all filed regarding the disposal of fetal remains. So my understanding is Indiana passed a law requiring fetal remains to be specifically cremated or buried in a, you know, basically treating it like human like actively, you know, human remains like a, like a born baby that died and needs to be disposed of the same way. And, you know, there's a lot of religious potential objections to this. And at American Atheist, we thought, well, this is mandating, almost treating the remains in a religious way as if it had a context, which it does not. And we thought, you can't really force us as atheists to believe that you know, that this is worthy of burial or cremation, which are religious rituals. Those are religious rituals. You can't force us to participate in these religious rituals. So I'm curious to hear more about that. It was a really interesting case.
Rebecca Markert:
FFRF also signed onto that brief as well.
Liz Reiner Platt:
Yeah, I think that's, that case was, I think a really strong example of why a stronger, more pluralistic vision of religious liberty would really bring so many different groups of people together. Because we had American atheist sign on, Sikh groups, Christian groups, one of the plaintiffs was a Baptist. It was a really, really diverse coalition on that brief. And yeah, we made exactly that argument, which is that the state can't require participation in a religious ritual. And, you know the court, ultimately the Supreme Court declined to hear the case, and one of the rationales that the Seventh Circuit gave was they said well, the law requires medical providers, not patients to actually arrange the burial or cremation. And so this doesn't actually burden the religious beliefs of the patients because the obligation is on the medical providers to do that, which I mean is just absolutely not a line of thinking that they would ever engage in in other contexts.
I mean, sure, it's the medical provider that's arranging it, but the individual patient has to sign off on it and it's being done with a piece of their own body. So it's a completely ridiculous rationale. But, you know, again, and I've been talking a lot about these progressive cases, I certainly don't wanna come off as Pollyannaish in terms of, you know, the fact that we have these broad religious liberty protection, so everyone's gonna win. I don't think that and I think this is a pretty clear example of, of some of the limits of religious liberty law.
Liz Cavell:
Well, we can't talk about religious exemptions without talking about anti-discrimination laws and civil rights, and there's federal versions of that there. Every state has some sort of anti-discrimination statutory scheme, and we're seeing major incursions and the degrading of anti-discrimination laws being wrought by lawsuits that seek to get religious exemptions to these laws in the public accommodation space. Then the case we're gonna talk about. That literally just came out this morning. These are conservative Christian business owners that want to be exempt from anti-discrimination laws that require public business owners to serve people, not deny service to customers on certain bases, race, religion, ethnicity, and in many states that includes sex and sexual orientation. So let's kind of dive into this topic, talk about what we've been seeing the past few years, and then let's just touch on what happened this morning. You can check out in our feed an episode going really deep into that opinion and what the court decided for our purposes today. Liz, what's your take on what's going on with religious exemptions In the anti-discrimination law space?
Liz Reiner Platt:
We're seeing multiple kinds of First Amendment claims, certainly the free exercise Clause, but also freedom of association and free speech claims being used to allow various people, including everyone from teachers, medical providers, businesses, housing providers to refuse services to various people, largely based on sexual orientation and gender identity. Although in a few cases, on other bases or example, there's a case that Americans United has regarding a foster care service that refused to work with a Jewish couple. Just today ,there was, as you mentioned, the 303 Creative case held that a web designer company, a web design company, has a free speech right to refuse to provide a wedding website to a same-sex couple. And there's a lot to say about it, and I'm sure you all have a lot of thoughts swimming.
But, you know, one thing that I'll just kind of start with is that I think the way that the Christian right likes to frame these issues is as a right to religious liberty on the one hand, versus a right to civil rights anti-discrimination law on the other. That narrative goes largely uncontested, I think, in the media, and I think it's really harmful because allowing a religiously motivated segregation in the public marketplace is not a good way to protect religious freedom at all. And so we did an amicus brief in that case along with Muslim advocates, where we said, look, civil rights law is what has allowed religious minorities to participate in the public marketplace for 50 years. When my parents were kids, there was still a publication being issued that told Jews where they could go on vacation. So it's civil rights law again, that allows religious minorities to be able to openly practice their faith and not be worried that they're gonna be turned away from a job or trying to, you know, host a foster care child or have a wedding or what have you. And so I think we do a lot of media work, and I think that's one of the narratives that we really, really need to change, is this idea that expanding rights, particularly for corporations, is a good way of protecting religious liberty because it's, it's not at all.
Liz Cavell:
Yeah. And this idea that like anti-discrimination laws are intention with religious liberty, you know, that somehow those two things are at odds, and it's a balancing of one against the other. That's only true for this very narrow sect of religious business owners or even entity or corporation. And you're right, it's such a narrow and backwards view of how those two things relate. It's frustrating.
Alison Gill:
I don't know, I'm reminded of a few different cases that are relevant to this and using them using different avenues of you know, not just the for exercise Clause, but here free speech to undermine non-discrimination laws. But I'm reminded of the Slattery case in New York as well, in which there was a law, I think it was called the boss's bill. I'm not quite sure if that's right, but required basically that they couldn't discriminate, you know, employers can't discriminate based on whether their employees among other factors, whether they have gotten abortions or not. And a crisis pregnancy center sued and said, well, this is part of our mission and it's free association, and we should be able to exclude those folks. And this, this violates our, our free association rights and they won. But that was, you know, sort of a narrow decision, I mean, I think we're just seeing avenue after avenue, which are used to chip away at existing civil rights protections from free speech to these other ones that I guess I grow more and more concerned as these different approaches apply.
Liz Reiner Platt:
It's interesting, I mean it's really a confluence of so many different elements of the conservative legal movement, right? So you have the Christian right, who obviously has a big stake in these cases, but they can also be read, read as just a plain old kind of pro-corporate, you know, continuing this trend of the personification of corporate entities too, in the line of kind of Citizens United. And so reading the case when there is the 303 decision, you know, with Justice Gorsuch comparing this corporation to the ability of school children, to not say the Pledge of Allegiance in school, I mean, just reads as completely absurd. And I guess the idea of corporate speech has just kind of gone out the window and not a thing anymore because now corporations are people. And in fact, you know, just like vulnerable school children, it's pretty wild.
Liz Cavell:
Yeah, it is wild. It's like it's this inversion, the patrons that these laws protect are the actual individual people with, you know, civil rights and that can suffer dignitary harms and real world harms. But instead the court picks these cases where there is no individual like human being on the other side of the equation. And instead, we're going to focus in on these like small business owners, and they're the individuals who have rights and who are suffering harms. And then it's just like the secular world at large against that individual religious practitioner. It's another example of where just the narrative that we tell about these laws and what they do and how they operate and who they protect and how they relate to religious liberty is just totally warped.
Liz Reiner Platt:
Completely absent from the Gorsuch opinion.
Alison Gill:
Yeah, no, I think that's a real problem with the whole framing around 303 Creative, and we talked about this more when we discussed that case, but like, it's a hypothetical, it should, it's not a case, it's a hypothetical. And because of that, there's nobody on the other side, unlike Masterpiece, where you had, you know, some people who were actually discriminated against. Here it’s just this poor business ownerwho frankly, you know, nothing ever happened to her. She just chose not to make a website for seven years and poor her, I guess. But it's just amazing that they were able to, that this case moved forward. And that's actually what all of our, you know, we joined together on a brief and focused on the standing issue, but talking about the favoritism shown to certain religious plaintiffs, especially Christian ones, you know, there's no way that an, a atheist have brought a similar case that would have remained in the courts. It's just not even realistic, right?
Liz Reiner Platt:
Yeah, I mean, that makes me think of the standing issue. So right, so 303 Creative has standing the churches had standing in the Covid cases, even though many of the policies limiting their ability to hold services were gone by the time they ended up in Supreme Court. But when it comes to the abortion cases, we're now seeing arguments from conservative scholars saying, oh, well, there's no standing until you're actually pregnant. Which of course makes it completely impossible to ever win a case if that's the standard. That's one of the main arguments they're trying to hang their head on in the abortion case is that there's no standing because who knows if they'll ever become pregnant or ever need abortion services.
Alison Gill:
Compare that to the Mifepristone case, right? Where the idea is that these individuals who are doctors, they might someday get a person who might have been injured because they took Mifepristone, and therefore, because they might theoretically get a patient who, I don't know why this patient would go to a person who opposes abortion. It doesn't make any sense, but regardless, that might happen someday, and therefore they have setting to, to bring this case in Texas to outlaw Mifepristone.
Rebecca Markert:
It just makes your head spin. And I get so frustrated because like, obviously they're consistently inconsistent <laugh>, and even though that's how they're playing, they're still winning. And every time I think, oh, well, we should just throw that against the wall and try it too. I also know that that's not gonna work for us, like that there are different classes of litigants in all aspects of litigation now. I mean, at the standing level, at the merits level, like, it's just so outcome-determinative that as a lawyer and an advocate for state church separation, I just feel like I feel stymied sometimes. Like, what can we do? How can we win? Like short of, you know, court reform.
Alison Gill:
This is the point in the conversation. We always talk about court reform because it happens every month. So just let's just preemptively say court reform.
Liz Reiner Platt:
Yeah, I mean, on a thing like abortion, I think, I don't wanna say the consensus per se, but like, you know, what you hear a lot is that this is not gonna be won or lost in the courtroom. It's just not. Like, you know, I would say where we're seeing the most success is ballot initiatives because abortion bans are really unpopular and people vote against them. And, you know, not to say that litigation is unimportant, I mean, another thing I sometimes think about is, you know, what are the things, you know, we're ceding in a dissent that could become a majority in five years, 10 years, whatever it is, which is depressing.
Rebecca Markert:
Oh yeah. So we've talked a lot about just embracing our role as dissenters now and just courting public opinion and also educating the American people on these issues and shifting the focus because those are the best tools we have right now.
Alison Gill:
Hence the name of the podcast.
Rebecca Markert:
Exactly. That's right. How would our listeners, if they listen to this episode, read up about what you guys are doing, is there any way that they could support the work that you're doing?
Liz Reiner Platt:
Yeah, absolutely. Of course. Visit us on our website, join our list host. We are still on Twitter, and so am I. And we do accept contributions. I'll say we are not funded by Columbia. We're a separate nonprofit. So yes, we would be delighted to be supported by and hear from any of your listeners.
Alison Gill:
And if you're an advocate on these issues, there are some really, really helpful resources that they offer as well. One is “Parading the Horribles,” which is really useful for pushing back against religious exemptions when they come up in your state, for example. It's written with advocates in mind to give you examples you can draw from to show why religious exemptions can be harmful and a bad idea, like with cites and everything. So it's really, really helpful. What other resources that we haven't mentioned might you flag, Liz?
Liz Reiner Platt:
And thanks to Alison for, by the way, reading that piece in advance and giving her feedback. But also the one other thing I think I'll maybe point to is our All Faiths and None report also has a companion media guide for journalists that I would really encourage. I'm sure all of you do a lot of media work, and maybe some listeners do too. I would definitely encourage you to check that out if you think it's a good resource. Share it when you're doing media work with your journalist friends and colleagues. Because it really aims to do that kind of culture change work of saying like, "Hey, journalists, don't just take these claims about what religious liberty means and what it looks like at face value." If there is a law that protects people who wanna object to abortion, but doesn't protect conscientious providers, don't just say that that protects religious liberty, that protects certain religious beliefs. And so we tried to make it very short and very punchy. And that's really meant to get journalists thinking a little bit more critically about what religious liberty means.
Alison Gill:
That's such an important issue because so often groups like ADF get framed as like religious freedom groups. They're not a religious freedom group at any stretch because what they're fighting to do is narrow religious and have it apply only to conservative Christians and in the process, undermining the religious freedom of everybody else. So in no way are they a religious freedom group, right? But there's just no critical examination of that.
Thank you so much for joining us today, Liz. We really appreciate your expertise and it's really terrific work you've done in this field. So thank you. It's always a pleasure to work with you and partner with you on these different issues.
Rebecca Markert:
That's it for today's episode. I'm Rebecca Markert.
Liz Cavell:
I'm Liz Cavell.
Alison Gill:
I'm Alison Gill.
Liz Cavell:
Don't forget to check us out on Facebook and Twitter or at our website we-dissent.org. Thanks for listening.
Rebecca Markert:
Other production support comes from Greta Martens and Jeremy Bruhm.
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