Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right November 2019

Acknowledgements The Law, Rights, and Religion Project thanks the brilliant advocates, attorneys, faith leaders, and academics who participated in our convenings over the past two years for their valuable contributions to, and thoughts on, this important issue. Special thanks to the teams at No More Deaths/No Más Muertes, The Kings Bay Plowshares, Rev. Kaji Douša, and Safehouse, and to their attorneys. For editing assistance, thanks to Tessa Baizer. Finally, thanks for the generous support of the Alki Fund of the Rockefeller Family Foundation and the Rockefeller Brothers Fund.

Note Much of the litigation described in this report is ongoing. We therefore apologize for any legal developments that occurred after our editing process was finalized, but before the report was released.

Cover Image For Freedoms (Hank Willis Thomas and Emily Shur in collaboration with Eric Gottesman and Wyatt Gallery of For Freedoms), Freedom of Worship, 2018. Archival pigment print, 42 x 52.5 in.

Authors Elizabeth Reiner Platt, Katherine Franke, Kira Shepherd, Lilia Hadjiivanova

Research Assistants Tessa Baizer, Caitlin O’Meara Lowell, Isabelle M. Canaan

Report Design Haki Creatives Introduction Endnotes Contents IV. TheChristianRightandtheRedefinitionof “ReligiousLiberty” III. II. I. Executive Summary Photography Credits Conclusion Religious LibertyMustBePluralistic Religious LibertyMustBeDemocratic Religious LibertyCannot BeAbsolute Religious LibertyMustBeNondiscriminatory Religious LibertyMustBeNoncoercive Religious LibertyMustBeNeutral Charting aPathForward: Protecting ReligiousLiberty for Everyone Judicial Efforts Administrative Efforts Legislative Efforts Atheists’ Rights&Church-State Separation Capital Punishment Conscientious Objection&Anti-War Activism Environmental Justice Government Surveillance, Profiling, &Discrimination Harm ReductionServices Religious DrugUse Economic Justice LGBTQ Rights Reproductive Rights Immigration &Immigrants’ Rights Religious MinorityRights Beyond theChristianRight Sikhs andSatanists,SanctuarySafe DrugUse:ReligiousLibertyLaw An Overview of ReligiousLibertyLaw

105 86 84 82 81 80 77 76 73 72 71 68 67 65 60 59 54 50 48 46 44 42 40 36 26 24 22 12 9 4 WhoseWhose FaithFaith Matters?:Matters? TheThe FightFight forfor ReligiousReligious LibertyLiberty BeyondBeyond thethe ChristianChristian RightRight courtesy of theUnitarian Universalist Service Committee. Scott Warren receives ablessing from clergybefore histrial. II the ChristianRight Liberty Law Beyond Drug Use: Religious Sanctuary andSafe Sikhs andSatanists, Photograph byAsh Ponders, 22 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right its conservative brand of faith-based politics, to the virtual exclusion of religious progressivism. the 1980s “[t]he right benefited from the fact that the media focused a great deal of attention on beliefs. Aspoliticalscientist Laura Olsonwrote inherexamination of religious progressives, since public discoursethat collapses “religious liberty”into adiscussionaboutconservative Christian often well-reflected in mainstream reporting and political commentary on religion, resulting ina seeking protection for faith-basedactivitiesinanenormousvariety of contexts. the stranger” to the right to protect sacred land, religious practitioners have turned to the courts been usedasatool bymanyfaith-basedsocialjusticemovements. From therightto “welcome with thelaw. sought to transform lawsrather thangainindividual,faith-basedexemptions from compliance Thus, theseearlysocialjusticemovements, though closely intertwined withreligious faith, “jail, nobail”approach, choosingto staybehindbarsrather thanpayinto acorrupt legal system. those of particular religious faiths, but to everyone. Some civil rights activists even adopted a religious martyrdom, wasusedto draw attention to thelaws’immorality, not justasappliedto rather thanto request religious orother legalexemptions. Thisapproach, echoingakindof required activiststo accept themandated punishmentfor violatingsegregation andother laws 60s. Notably, theprimarytacticof thecivilrightsmovement wascivildisobedience, which doctrine of equal souls” according to onebiographer “fusedthepoliticalpromise of equalvotes withthespiritual significant religious factions. Era, includingthesettlement housemovement andthetemperance movement, alsohad visions thatsheconsidered to bemessages from God.Later movements of theProgressive her lifetime for herfearless leadershipof theUnderground Railroad, wasguidedbydreams and of theAfricanMethodist EpiscopalZionChurch, andHarriet Tubman, nicknamed“Moses”during was alsoaninspiration for manyBlackabolitionists:Frederick Douglasswasanordained minister violated Christianprinciples,including theirbeliefthatallwere equalintheeyesof God.Religion slavery that believing abolitionists, organized first the of some were Quakers, as known also inspired byreligious beliefs.Inthe18thcentury, membersof theReligiousSociety of Friends, Clause, manyearlyprogressive andsocialjusticemovements were ledbypeopleof faithand Unfortunately, thediversity of beliefsrepresented incurrent religious libertylitigationisnot Since religious exemption litigationbecame more prevalent inthe1960s,however, ithas Perhaps mostfamously, religious leaders includingRev. Dr. MartinLutherKing, Jr.—who Long before U.S. courtsbeganto grant religious exemption claimsundertheFree Exercise 2 —were key organizers of the civil rights movement of the 1950s and 1

23 most affordable option. leaving illegalabortionastheonlyor the procedure legallyinsomestates, make itallbutimpossibleto access severe restrictions onabortionmay explicitly overturned, asincreasingly more commoneven ifRoeisnot tion. Suchdefenses maybecome coordinating, orreceiving anabor criminal prosecution for performing, RFRA asadefense to potential leaders, andpatientscoulduse Thus, healthcare providers, faith assist patientsinaccessingabortion. Consultation Servicewillariseto turned, anewversion of theClergy is likely thatintheevent Roeisover spite of, theirreligious beliefs.Andit abortion care ismotivated by, not in noted thattheirdecisionto offer Many healthcare providers have abortion care. ists, clergy, andpatientsto preserve avenues for medicalproviders, activ state RFRAs,could provide potential pass, religious liberty laws,including the comingyears.Ifthiscomesto Roe v. Wade maybeoverturned in Court hasrenewed concernsthat The current makeup of theSupreme Religious Exemptions After Roe - - - Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right ceremonial knife) to work. sacrifice, animal ritual schoolchildren canweartheirhairintraditional braids, ensure that members of themilitary can wear religious headwear, incorporated into U.S.law. Federal andstate RFRAlawshave beenused,for example, to beliefs andpractices of religious minorities—unlike mainstream Christians—are not already religious minoritiesare not unintentionally restricted bygovernment policies. Religious exemptions continue to beacritical legaltool for ensuring that thefaithpractices of including Seventh DayAdventists, theAmish,Jews,and membersof Native Americanreligions. every Supreme Courtcaseinvolving theFree Exercise Clausewasbrought byareligious minority, religious exemptions for members of minorityfaiths. Priorto the enactmentof RFRA, nearly modest typically but significant secureto used havebeen laws liberty religious which in ways as secularrather thanreligious. religious libertyadvocacy thathasbeenlargely forgotten, overlooked, ormistakenly described focus onthereligious beliefs andpractices of conservative Christians by shining aspotlight on follow thenewscloselyperceive [religious] freedoms asincreasingly underassault.” media consumers.A2016studyfound that “religious andpoliticalconservatives who practices of conservative Christians in thepress hasbeen, unsurprisingly, absorbed by acknowledge thoseoutsidetheChristiantradition. coverage of religious progressives over thepastyear, even thisreporting often failsto outside theChristianright. underscore thelackofNever attention thathasbeenpaidto Heard religious Of” movements and“TheChristianLeft—Possiblythe ReligiousLeft” theMostInteresting Group You’ve the 1970s,itisthe Christianright thathasset thediscourseaboutreligion inAmerica.” perceived asadinosaur.” The religious left, to theextent thatithasremained visibleatall,seemslargely to have been RFRA was passed with support from many progressive groups precisely because the Before addressing more cutting-edge religious libertylitigation,itisimportantto note the The discussionof religious libertyadvocacy thatfollows seeks to correct thisnarrow Even thetitlesof recent newsarticles—suchas“You KnowtheReligiousRight.Here’s 11 andSikhfederal employees cancarryakirpan(asmall,blunt, 3 Similarly, history professor Timothy J. Williams has reflected “since reflected has Williams Similarly,J. professor Timothyhistory 12 5 Inaddition to RFRA, federal antidiscrimination law requires And whilesomeobservers have noted a modest uptick in 8 Religious MinorityRights 6 Thisintense focus onthebeliefsand 10 Santería practitioners canperform 9 male Native American 4 7

24 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right and halal food, exemptions from prison clothing andgrooming rules,access to sweat have relied ontheprotections afforded byRLUIPA andRFRAto secure accessto kosher detention, where other rightsandlibertiesare severely restricted. Countless inmates woman, because her headscarf violated their dress coderequiring an “All American look.” Supreme Courtfound thataclothing store couldnot denyajobto SamanthaElauf, aMuslim hardship. significant a cause would most employers to accommodate the religious beliefs of their employees unless this Mustapha. Samantha Elauf. These protections are especiallyimportant for peoplein prisonandimmigration Courtesy of SamanthaElauf 13 For example, in “Wearing a Abercrombie &Fitch ~Samantha Elauf, litigantin faith.” reminder of my every day, it’s a headscarf E.E.O.C. v. Abercrombie & Fitch . EEOC v. , the 14

25 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right exemptions as ameansof protecting theirwork withandfor migrants. on “bringinginandharboring certainaliens.” triggered prosecution by thefederal government under criminallawsincludingtheprohibition provision of food, water, transportation, andshelter to undocumented people,have occasionally Bible’s repeated calls to “love thestranger.” refugees andother migrants aspartof theirreligious practice—in somecasesguidedbythe successful. religious exercise of manyminoritypractitioners, suchclaimshave bynomeans beenuniversally liberty claimwithnearlyidenticalfacts. Court halted another execution so that a Buddhist inmate in Texas could pursue a religious decision “profoundly wrong.” under RLUIPA andtheU.SConstitution.Inadissent,JusticeElenaKagan calledthemajority’s employee to enter thechamberfor other inmates. Themanarguedthatthisviolated hisrights the execution chamber, despite thefactthatitallowedaChristian chaplainwhowasaprison The AlabamaDepartmentof Corrections hadrefused to allowtheman’s imamto joinhimin the execution of aMuslimmanondeathrow sothathecouldpursueareligious libertyclaim. from havingto testify againsttheirparents contrary to theirreligious beliefs. Sabbath, off work; a Seventh Day Adventist mail carrier who was denied the right to take Saturdays, his religious practitioners anexemption from lawsbanningthecollectionof eaglefeathers; rejected RFRAclaimsincludesanumberof appellate courtopinionswhichdenyNative American worth mentioning that the vast majority of RFRA claims are unsuccessful. to grow a short beard, notwithstanding a state prison rule that prohibited facial hair. v. Hobbs and other materials intheirlivingspaces.IntheSupreme Court’s 2015opinionin lodges andother religious ritualsandservices,permissionto keep religious books For decades(if not centuries),peopleof faithhave beenmoved to provide supportto Thus, while RFRA, RLUIPA, and other exemption laws have been used to protect the In 2019,theSupreme Courtreceived widespread condemnationwhenitrefused to suspend While exemption laws have undoubtedly been helpful to many religious minorities, it is , for example, theCourtheldthatRLUIPA guaranteed aMusliminmate’s right 18 andOrthodox Jewishchildren whowere deniedanexemption 21 Onlyweeks later, perhapsinresponse to thepublicoutcry, the Immigration &Immigrants’ Rights 22 23 IntheU.S.,someof theseactivities,such asthe 24 Thishasledpeople of faithto seekreligious 16 Asampling of Holt 20 19 15 17

26 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right that “a religious exemption for these particular appellants would seriously limit the government’s and preservation of ournationalidentity.” of consciencemustyieldto thetwinimperatives of evenhanded enforcement of criminallaws entitle thevolunteers to anexemption because, according to thecourt,“[i]nthiscase,claims to areligious exemption from federal harboringlaws.Noneof theirclaimssucceeded. led to two “sanctuary trials.” “transporting,” “harboring,”and“aidingabetting theunlawfulentryof aliens.” subsequently charged withviolationsof federal lawfor conspiracy, “bringinginand landing,” sanctuary communitiesusingpaidinformants. Two groups of sanctuaryvolunteers were Eventually, theFederal Bureau of Investigation (FBI)launcheda covert investigation of several of many different denominations, who by some estimates aided up to 500,000 migrants. and assistance.At itspeak,this“sanctuarymovement” includedmore than500congregations created anunderground network to helprefugees cross theborder andprovide themwithshelter escaping violenceinCentral America,church leadersaswellreligious andsecularactivists in the 1980s. After the Reagan administration denied refugee status to thousands of people In The first significant wave of religious liberty litigation in the immigration context occurred U.S. v. Merkt , theFifthCircuit Courtof AppealsheldthattheFree Exercise Clausedidnot 27 In both cases, the volunteers argued that they should be entitled Daily Star. Arizona. Jim Corbett helpsawoman climbaborder fence in ~Jim Corbett, Defendant in the church…” part of whatitmeansfor thechurch to be consider sanctuaryto beanessential that manyof thesecommunities protection from government officials, sanctuary whenever refugees need communities willcontinueto provide “[T]here isnoquestionthat faith 28 Similarly, in Photo byRonMedvescek, ©1984Arizona U.S. v. Aguilar U.S. v. Aguilar , theNinthCircuit found 26 Thearrests 25

27 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right of harboringandonecountof “conspiracy to commitharboring”after heprovided food and and spiritualcommitments. backgrounds, allconsidered theirworkwithNoMore Deathsto bemotivated bytheirreligious and shelter to migrants intheArizonadesert. No More Deaths/No MásMuertes inArizonawere criminally charged for providing food, water, to servingimmigrants. religious practitioners are againturning to thecourtsto protect theirfaith-basedcommitment as increasingly aggressive federal policiesrelated to migrants andthosewhoassistthem— violation of theImmigration Reform andControl Act(ICRA)—were alsounsuccessful. in immigrants undocumented hire to permission sought that nonprofits religious by brought ability to control immigration.” Courtesy of NoMore Deaths. One of thevolunteers, geographer Dr. Scott Warren, wascharged withtwofelony counts Now, thanks to themore expansive rightto religious exemptions created byRFRA—aswell 31 In 2018, volunteers working with the Unitarian-affiliated organization 29 Other cases of the sanctuarymovement era—including a case 32 Whilethevolunteers were of varyingreligious 30 28 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right of sincerely heldreligious convictionsas espoused byTheUnited Methodist Church.” and theFree Exercise Clause.Theclaimant hadarguedthathisactionswere a“livingexpression government’s prosecution of him for “harboring” violated his religious liberty rights under RFRA adopted amagistrate judge’s recommendation rejecting aclaimant’s argument that the other four volunteers were dropped after theypledto civilinfractions. They have appealedthedecisionto theDistrictCourt. fines. monetary as well as probation of months fifteen to sentenced ultimately were they cursory scrutinyof theRFRAdefense. Whilethevolunteers faced upto sixmonths inprison, Instead, the judge treated theclaimaslittlemore thanawhimandrefused to offer even but afederal statute thatrequires judges to undertake acomplex multi-step analysis. group of religious scholars responding to the judge, RFRA is, of course, not a“higher law” modified “a it calling Antigone defense, inthattheyare actinginaccordance claim, withahigherlaw.” RFRA volunteers’ the demeaned openly opinion The guilty. volunteers the finding opinion an issued judge the ended, trial non-jury the after hours Only tried before a magistrate judge (appointed to assist district court judges) in January 2019. water) intherefuge. Allof thevolunteers brought defenses basedonRFRAandfour were ofentering drinking anationalwildlife refuge withoutapermitanddiscarding property (jugs dropping theconspiracy charge. him andfour whovoted to convict. specializing inreligion issuesreferred rather to thanapersonof himasa“border faith. activist” Dr. Warren’s trialneglected to discusshisreligious libertydefense, andeven newssources food, water, and shelter.” Warren couldnot, consistent withhisconscience,turnawaytwoexhausted, injured menseeking explaining that“inthedeadlyborder region inwhichatleast412individualsdied2017alone,Dr. Warren andtheother NoMore Deathsvolunteers emphasizedtheperilsof crossing thedesert, was entitledto a religious exemption from prosecution. the responsibility to “dounto others aswewouldwantto have doneunto us,”andassuchhe argued that assisting the migrants was motivated by his sincerely held religious views, including 20-year prison sentence. Dr. Warren sought to have the charges dismissed based on RFRA. He water to twomenheencountered inthedesert—charges thatcouldhave resulted inupto a In June2019,Dr. Warren’s trial resulted ina hung jury, witheightjurors whowishedto acquit In additionto theNoMore Deathscases,inMay2019the DistrictCourtof Nebraska Eight additionalNoMore Deathsvolunteers were charged withmisdemeanorsfor 34 It is worth mentioning that much of the media coverage surrounding 37 36 Thegovernment willretry Dr. Warren for harboring,butis 41 InFebruary 2019,charges againstthe 33 Inhislegalpapersandattrial,Dr. 42 38 Asnoted bya 43 The 40 39 35

29 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right punishments, suchaslossof 501(c)(3)tax-exempt status.Many are, therefore, considering sanctuary to migrants. This puts them at risk of prosecution for harboring as well as other as individuals,hospitals, schools,andother institutions—have expressed willingnessto offer worship to escapedeportationorders. Furthermore, hundreds of housesof worship—as well election; there are nowdozensof people whohave publiclygone into sanctuaryinhousesof people at risk of deportation. This movement has grown enormously since the 2016 presidential embraced arange of tacticsto resist immigration laws,includingproviding physical shelter to 1980s, over thepastdecadeclergymembersand peopleof faith,aswellsecularactivists,have has beendeemedthe“newsanctuarymovement.” Inspired bythesanctuarymovement of the to theImmigration andNationalityActof 1952.” would fatallyunderminethealienresidency requirements promulgated andenforced pursuant created religious exemption to theuniform applicationandenforcement of border securitylaws magistrate, relying onpre-RFRA casesof thesanctuarymovement era, heldthat“[a]judicially by/courtesy of MaryOrozco. Zaachila Orozco-McCormick.

The twoongoing NoMore Deathscaseswillbecloselywatched bymembersof what Photograph 44 back orthefood off my taking theshirtoff my status, even ifthatmeans shelter, regardless of their as food andwater and human necessitiessuch person hasarightto basic spiritual beliefthatevery abiding moral, ethical and “I have astrong and Deaths volunteer andlitigant. ~ ZaachilaOrozco-McCormick, NoMore plate.”

30 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right subsequently interrogated by immigration officials about her relationship to Pastor Douša. Pastor to relationship her about officials immigration by interrogated subsequently migrant whose marriage had been blessed by another member of the sanctuary caravan was collecting information aboutherpastoral workinNewYork. Pastor Doušalater learnedthata was revoked. detained andinterrogated byborder agents, andheraccessto expedited border crossing leaders to Tijuana, Mexico to minister to Central American migrants seeking refuge in the U.S. and participantof several “sanctuary caravans” beginning in2018thatbrought religious seekers, andother migrants.” her legal papers, Pastor Douša has been “called to pray with and protect refugees, asylum on behalfof migrants, inviolationof theFirstAmendmentandRFRA. to government harassment andsurveillance becauseof herreligiously motivated activities subject being was she that arguing 2019 July in court district federal in York case a City,filed migrants. Kaji Douša,aChristianpastor andco-chairof theNewSanctuary CoalitioninNew the harassment shehassuffered from theU.S.government onaccountof herministryto to undocumented people. kitchens may similarly turn to RFRA defenses if they are prosecuted for providing assistance more thanproviding food to migrants, religious facilitiesincludinghomelessshelters andsoup activities. Moreover, given thattheNoMore Deathsvolunteers were prosecuted for little bringing RFRAdefenses intheevent thattheyare targeted for theirfaith-basedsanctuary Avenue ChristianChurch. Pastor Kaji Douša. Upon reentering the U.S. after a trip to the border in January 2019, Pastor Douša was One leader of thenewsanctuary movement has already brought aRFRA claim challenging 48 Theinterrogation revealed thatthegovernment had beensurveilling and Courtesy of Park 46 Asameansof answeringthiscall,shewasaleadorganizer ~ a refugee inEgypt.” that Jesus,too, was received as other migrants—remembering refugees, asylumseekers, and called to pray withandprotect as hesuffered… Iamthus Jesus Christinthosewhosuffer “My faithteaches meto see Pastor Kaji Douša 45 Assheexplains in 49 47

31 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right was akey elementof Catholic faith,andthat“[t]he proposed border wallisthe antithesis “[u]niversality—the understandingthat allpeopleshare acommon humanityanddignity” consent to a use of its land that “threatens life and limb.” actions, includingin itsstewardship of Church-owned lands,”andtherefore itcouldnot it had “a moral obligation to adhere to and uphold Catholic social teaching in all of its —would impairthechapel’s identityasasacred space.Further, theChurch arguedthat enforcement zone—“cleared of vegetation, lighted, andsubjected to surveillance cameras” a barrierto visitthechapel,Church arguedthatturningtheproperty into animmigration crossing aborder wall,for fear of beingstopped ordetained. Even for those willingto cross documented Latinxworshipersmightceasecomingto LaLomitaChapelifdoing sorequired universal nature of humanity.” than injures humanlife”; anditwould“standasacounter-sign to theChurch’s teachings onthe prevent theChurch from ensuringthatitsproperty isused“inamannerthatprotects rather several objections:theborder wallwouldchilltheircongregants’ religious practice; itwould Lomita chapel.Thedioceseresponded withanargumentbasedonRFRA. border wall on land owned by a Roman Catholic diocese in Texas and containing the historic La a of construction surveying planned conduct the to for suit government condemnation a filed method of immigration control hasalsobeensubjectto RFRAchallenges. In2018,thefederal dismissed Texas’ lawsuitwithoutdiscussingtheorganizations’religious libertyclaim. argued thatthefaithgroups hadareligious rightto serve Syrianrefugees. Act of 1980.Texas religious leaders’amicusbriefinsupportof thefederal government was resettling Syrianrefugees theU.S. withoutconsultingthestate, inviolationof theRefugee that arguing government the federal against a complaint filed Texas of state the under theTexas state RFRA.Thiscasedidnot explicitly involve astate RFRAclaim.Rather, to prevent theU.S.government from settling refugees inthestate violated theirrights amicus an filed clergymembers brief in of group a 2016, In RFRA. under claims made also have confidentiality. of guarantee a with absolution, and confession of rites the including exercise, in part by making it impossible for her to provide pastoral guidance, Douša is arguing that this type of surveillance and questioning thwarts her religious The Church explained thatsomeof itsmembers were undocumented, andthateven The Trump administration’s efforts to buildawallalongtheU.S.–Mexico border asa Religious organizationswhosetenets motivate them to assistinresettling refugees Texas Health&HumanServicesCommissionv. U.S 55 57 Lastly, the Church explained that . 51 arguingthatTexas’ attempt 54 TheChurch raised 52 Afederal court 50 56 53

32 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right to secure money for the border wall leave the fate of La Lomita, and its RFRA claim, unclear. chapel, President Trump’s subsequently issued Declaration of Emergency and continuing efforts Lomita and several other locations. secured language inanappropriations bill thatprohibited funding for construction of a wallonLa land to conduct surveillance. the erection of aphysicalsymbolof division anddehumanizationonitsProperty.” of thismessage of universality.” ~Daniel E.Flores, Bishopof Brownsville, Texas life issacred.” principles. Thefoundation of Catholicsocialteaching isthatallhuman community andintheworld,contravention of Catholicmoral “I consideraborder walllikely to increase humansuffering inthelocal La LomitaChapelinMission,Texas. In February 2019,adistrictcourtjudge allowed U.S.government surveyors initialentryonto the 60 Shortly thereafter, however, Texas Representative Henry Cuellar 61 58 While this has provided some temporary protection to the © 2008AnthonyAcostaviaflickr. Thus,itexplained, “theDiocese cannot consentto 59 62

33 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right ©Houston Chronicle. Juan Rodriguezfamily. perform missionarywork,andmeet withhisacademicadvisorsattheChristianuniversity where of Grace Outreach, areligious organization of whichhewasafounding member, speakatchurches, patrol agents atO’Hare Airportbecausehelacked aproper visa. government agreed to allowMr. Rodriguezto remain inthecountryto pursuehisasylumclaim. father to ElSalvadorwouldinfringe ontheirreligious exercise. essential to their religious belief and practice, and that therefore deporting their husband and violated theirrightsunderRFRA. undocumented Salvadorianimmigrant JuanRodriguezbrought aclaimarguingthathisdeportation migrants to secure legal status.In the way of using such funds to surveil, harass, and sanction disfavored religious groups.” can redirect funds at will—even in the face of congressional opposition—nothing stands in supposed threat of Islamandtheneedfor a border wall,”andthat“whenthepresident argued that the President had“on multiple occasions drawn a connection between the Trump’s appropriation of fundsfor theborder wallthreatened theirreligious liberty. They In Finally, RFRAhasbeenusedto directly challenge thedeportationof immigrants andhelp argued that organizations of 75religious a group brief, amicus filed recently a In Odei v. DHS , Ghanaianpastor ErnestOdeiwasprevented from entering theU.S.byborder Marie D. DeJesús/ 64 Rodriguez et alv. Sessions, AsSeventh DayAdventists, theyarguedthatfamilyunityis daughter of Juan Rodriguez ~Kimberly Rodriguez,youngest help of God.” defeat ourGoliathwiththe father andmyfamilywill Goliath andhadfaith,somy “Just asDaviddefeated 65 theU.S.citizenwife anddaughter of The claim was dismissed when the Theclaimwasdismissedwhenthe 67 Odeihadplannedto visitSpirit 66 63

34 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right and that “[n]othing in the Religious Freedom Restoration Act overrides [this] jurisdictional bar.” and NationalityActbarred courtsfrom havingthejurisdictionto review anorder of removal, September 2019,theSeventh Circuit rejected hisclaim, holdingthataprovision of the Immigration immigration policies. assistance. Thistrend islikely to continueintheface of thefederal government’s ever-harsher immigrants and thosewhoare committed to providing them withspiritualandmaterial provide assheislessthanfullyattired. of Sabra’s wife duringpregnancy—photos that“for religious reasons, thefamilyisunwillingto medical treatment. TheDepartment requested additionalevidenceof paternity includingphotos Department after itrefused to recognize hisdaughter’s citizenship andadmitherinto theU.S.for In refused to grant themanexemption from therequirement. alleged commitmentto religious liberty, theDepartmentof HomelandSecurityrepeatedly are graven images prohibited bytheSecondCommandment.”Despite theadministration’s application for permanent residency. exemption from therequirement that theysubmitphotographs aspartof thewife’s disease.” reasonably accurate methods of determining whether [Nworu]issuffering from acommunicable restrictive means’of furthering [thegovernment’s] compelling interest ‘least asthere exist other the not “was test blood a take to Nworu requiring that finding decision, this reversed lacked theauthorityto interpret RFRA,theBoard of Immigration AppealsandAttorney General interventions, includingdrawing blood.Whileanimmigration judge initiallyclaimedthathe of theU.S. from therequirement to submitto abloodtest inorder to become a legal permanent resident Henry Nworu,aNigerian manwhowasmarriedto aU.S.citizen,wasexempted underRFRA won more limited RFRA claims brought within immigration proceedings. In 2005, Chukwuezue Odei entryto theU.S.burdened both thepastor’s and theorganization’s religious exercise. challenged thedecisionnot to admithimonseveral grounds, includingRFRA,arguingthatdenying he wasaPh.D. candidate. Following hisreturn to Ghana,OdeiandSpiritof Grace Outreach Sabra v. Pompeo People of faithhave soughtto useRFRAand other exemption lawsto protect both Similarly, anOldOrder Amishcouple suedthefederal government in2018for aRFRA While neitherRodriguez’s norOdei’s RFRAclaimswere fullylitigated, immigrants have 71 70 Nworuwasamemberof theFaith Tabernacle Congregation, whichrejects medical , U.S.citizenMohammedSabra brought aRFRA claimagainsttheState 75 72 Thiscaseisongoing. The couple “believe that photographs of people 73 76 Thecaseeventually settled. 68 In 69 74

35 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right Conservative but a matter of religious liberty and freedom of conscience protected by the First Amendment.” some,thequestionof pregnancy andabortionisnot amatter for governmental“[f]or interference, abortion held by its members, the Evangelical Lutheran Church in America (ELCA) has stated that of theirConstitutionalrightto religious freedom.” abortion-inducing devices,andabortions,amongothers, onreligious grounds, deprives women family full access to the complete spectrum of reproductive healthcare, including contraception, international associationof Conservative Jewishrabbis, stated that“Denyingawoman andher aspect of religious freedom. even holdthattherightto make decisionsaboutone’s reproductive healthcare isanessential on bodilyautonomy andtherightto reproductive healthcare. Several religious denominations people of faith and religious denominations hold a wide and often quite nuanced range of views equate peopleof faithwithoppositionto abortionandother reproductive healthcare. However, A numberof large denominations, includingthePresbyterian Church, For example, ina2019Statement onReproductive Freedom, TheRabbinicalAssembly, an Conversations around the intersection of religious liberty and reproductive rights typically Courtesy of SusanBrownmiller. 81 Judaism, the United Church of Christ, Reproductive Rights obtain orprovide reproductive healthcare. liberty claimsasameans of protecting the rightto providers, andpatientshave allbrought religious reproductive rights,religious leaders,healthcare large number of denominations supportive of procedure. Perhaps unsurprisingly, given the oppose absolute legalrestrictions onthe ambivalence about abortion, but nevertheless the EpiscopalChurch, the ELCA, circumstances. Otherdenominations,including own decisionsregarding abortioninmostorall personal circumstances and beliefs, to make their support therightof individuals,basedontheir 77 82 Acknowledgingthespectrumof viewson and the Unitarian Universalist Association, 84 United Methodist Church, 86 have expressed some 79 Reform 80 85 and and 83 78

36 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right Methodist clergymember, argued that the ban “restricted his right to offer pastoral counseling lawsuit, Exercise Clause. right to provide suchcounseling—thoughthiswasbasedontheFree Speechrather thanFree for theiractivities,oneof whomdefended himselfonthegrounds thathehadaconstitutional nationwide access safe abortion. other faithleaderswhohelpedtens (orbysomeestimates, hundreds) of thousandsof people the ClergyConsultationService(CCS),anunderground network of ministers, rabbis, and ~Rev. Howard Moody, Co-founder of theClergyConsultation Service process.” the preeminent freedom isthechoiceto control herreproductive choice iswhatmakes ushumanandresponsible. Andfor women, God-given rightwithwhichpersonsare endowed…Freedom of “My understandingof free choiceisthattheright to chooseisa In addition to these defensive suits, CCS member Rev. Jesse Lyons brought an affirmative Prior to the legalization of abortion nationwide in 1973, a group of faith leaders established Lyons v. Lefkowitz, 88 Noneof theclergy were ultimately convicted. Church. Rev. Howard Moody. challenging New York State’s prohibition on abortion. Rev. Lyons, a 87 Only three clergymembers ever faced formal legal charges Courtesy of JudsonMemorial 37 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right program—a federal grant program that provides individuals with family planning and related regulation promulgated by the Trump administration that prohibits doctors within the Title X pregnancy. a terminate to whether choose person’sto for—not right justification against—a RFRA onthe grounds that advocates of abortion rights were using religious freedom as a the law wasenacted: inthe early 1990s, the U.S. Conference of Catholic Bishops opposed the abilityto usethefederal RFRAto protect abortionrightswascontemplated even before these lawsto preserve accessto reproductive healthcare. In fact,asmentionedinSectionI, parties. used insimilarcircumstances inacircuit thathasfound RFRAto applyinsuitsbetween private the onlyormostaffordable option. in somestates, leavingillegalabortionas impossible to accesstheprocedure legally restrictions onabortionmaymake itallbut overturned, asincreasingly severe more commoneven if an abortion.Suchdefenses maybecome performing, coordinating, orreceiving to potential criminalprosecution for and patientscoulduseRFRAasadefense Thus, healthcare providers, faithleaders, assist patientsinaccessingabortion. Clergy ConsultationServicewillariseto Roe beliefs. motivated by, not inspite of, theirreligious that theirdecisionto offer abortioncare is Many healthcare providers have noted abortion care. activists, clergy, andpatientsto preserve potential avenues for medicalproviders, including state RFRAs,couldprovide this comesto pass,religious libertylaws, may beoverturned inthecomingyears.If has renewed concernsthat The current makeup of theSupreme Court Most recently, the Cityof Baltimore brought a RFRA claim challenging afederal Since thepassage of RFRAandstate mini-RFRAs,peopleof faithhave sought to use isoverturned, anewversion of the Religious Exemptions After 246 93 Anditislikely thatintheevent ) Roe isnot explicitly Roe v. Wade Roe Watkins v. Mercy MedicalCenter, dismissed onprocedural grounds. speech andfree exercise of religion. abortion, arguing that it violated their rights to free on, advertising, ordistributingprinted material about similarly challenged astate lawthatprohibited advising opened anabortionclinic. decided, andNewYork’s branch of CCSsubsequently before anyof themultiplechallenges to thelawwere The state legislature legalizedabortioninNewYork that referred womento qualifiedphysicians.” against thegovernment. (Now, however, RFRAmightbe private and constitutional claims can only be brought Circuit ruledagainsthimbecausethehospitalwas his FirstAmendmentFree Exercise rights.TheNinth abortion. by the hospital’s prohibition on sterilization and medical staff privileges after he refused to abide Watkins suedaCatholichospitalfor denyinghis After In Landreth v. Hopkins 92 Dr. Watkins claimedthatthedenialviolated Roe butbefore RFRA,inthe1973case , two CCS members in Florida , twoCCSmembersinFlorida 91 Dr. Wilfred E. 90 Thesuitwas 89 94

38 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right separate and uniquehumanbeing beginsatconception.” is to indoctrinate pregnant women into thebelief heldbysome,butnot all,Christiansthata fosters anexcessive government entanglement withreligion” as“thesolepurposeof thelaw state. Asto the EstablishmentClauseargument,Doeargued thatthelaw“unconstitutionally Amendment, aswell as theEstablishmentClause—whichrequires separation of church and Missouri RFRA.Doealsoarguedthatthelaw violated herFree Exercise rightsundertheFirst brought a case in Missouri state court requesting an exemption from these mandates under the of aseparate, unique,livinghumanbeing.” that states “[t]helife of eachhumanbeingbeginsatconception. Abortionwillterminate thelife ultrasound atleastseventy-two hoursbefore theprocedure andcertifyreceipt of abooklet The lawatissuerequired patientsseekinganabortion to, amongother things,undergo an forscience. respect and autonomy inbodily belief their with conflict that requirements have soughtreligious exemptions underthatstate’s RFRAfrom state-mandated abortion are insufficientto state aplausibleclaimthattheFinalRuleviolates theRFRA." how ithasbeensubstantiallyburdened.” conclusory statements withnosupportto demonstrate anyreligious beliefor by adistrictcourtjudge, whofound thatthecityhad“donelittlemore thanallege be substantiallyburdened bytheinabilityof theirphysicianto provide honestcounseling.” also notes that the rule contains no exemption for “patients whose religious exercise would light of theimportance certainfaithsplaceonindividualself-determination.” of information necessaryfor patientsto make informed decisionsabouttheirhealthcare in against abortion as well as [those] whose religious beliefs require them to inform patients providers whose religious beliefs require them to inform patients of their religious views who both supportandopposeabortionrights.Itexplains thattheruleburdens “healthcare health services even when their religious exercise requires them to engage in such counseling.” [RFRA] by prohibiting physicians from counseling patients on comprehensive reproductive Baltimore argued thatthis“GagRule”“violates rightsof religious consciencerecognized by services—from offering theirpatientsinformation aboutorreferrals to abortionservices. In Finally, several casesbrought bymembersof TheSatanicTemple (TST)inMissouri In September 2019,Baltimore’s RFRAcomplaintwasdismissedwithoutprejudice Interestingly, thecomplaintalleges thattheruleviolates thereligious rightsof doctors Doe v. Greitens (later Doe v. Parson ), plaintiffMaryDoe,amemberof theSatanicTemple, 102 99 Thecourtheldthat“[t]heseallegations 103 97 Thecomplaint 100 101 98 95 96

39 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right with faithgroups thathave formal church policy, religious decrees ortraditions opposing the affiliated people by communicated were identification religious some with messages the of and one study of mainstream media articles about LGBTQ issues found that “[t]hree out of four Several commentators have noted themedia’s tendency to overlook LGBTQ people of faith, variety of viewsabout sex, sexuality, andmarriage, andmanypeopleof faithidentifyasLGBTQ. opposition to LGBTQ rights and marriage equality, despite the fact that people of faith hold a wide burial or cremation of fetal remains as a violation of its members’ religious freedom. to the Eighth Circuit. and therefore donot violate theEstablishmentClause. will terminate the life‘[a]bortion of a separate, unique, living human being’ are not facially religious,” that and conception’ at begins being human each of life “‘[t]he statements the that things other among finding claim, her dismissed judge court district a February2019, In grounds was initiated by a different Satanic Temple member, called Judy Doe, in federal court. absent Doe’s lawsuit,willreduce onebarrierto abortioncare inMissouri. new interpretation of thestate statute, whichmaynot have beenclearlyadopted bythestate restriction onherreligious freedom, for thestatute imposesnosuchrequirements.” Ms. Doeto have anultrasound [or]to listen to thefetal heartbeat…wouldhave constituted a requiring whether determine not “need it that finding in General’sstatement Solicitor the on a fetal heartbeat in order for an abortion to be performed.” clinics inMissourihadinterpreted thelawasrequiring anultrasound for thepurposesof hearing patients to undergo anultrasound asaprerequisite for receiving anabortion.Previously, “abortion Missouri’s Solicitor General told thecourtthatchallenged lawdidnot infactlegallyrequire TheCourtalsofound thatthelawdidnot contravene theEstablishmentClause. read thebooklet containingtheobjected-to [statement] muchlessto agree withit.” violation of the state RFRA, since the law did not “require a woman seeking an abortion to that thestate lawdidnot imposeasubstantialburden onMaryDoe’s religious exercise in As in the reproductive rights context, the public too often conflates “religious liberty” with A similarchallenge to theMissouri lawbrought onFree Exercise andEstablishment Clause Despite thisloss, Doe’s casewassuccessfulonatleastonefront: during oral argument, After a trial, the Supreme Court of Missouri issued an opinion in February 2019 finding February2019 in opinion an issued Missouri of Court Supreme the trial, a After 109 TST has also threatened to challenge an Indiana law requiring the LGBTQ Rights 105 108 The Missouri Supreme Court relied Theopinionhasbeenappealed 106 This 104 107 110 111

40 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right v. Reisinger their religious beliefs andpractices. arguing thataNorthCarolina lawthatcriminalizedperforming asame-sex marriage violated suit a filed marry, to wished who congregations their of members and marry, to allowed be couples, Court case LGBT people…are predominantly presented without any religious affiliation noted in the story.” negative messages aboutLGBT peopleandtheirrights.Conversely, pro-gay sources, oropenly tend to choose sources from more conservative Christian backgrounds –sources who voice in thenews”andthatwhenmedia“usereligious sources innewsstories onLGBT issues,they rights of LGBT people.” ~Rev. NancyPetty, faithful relationships.” belief thatallpeople are created equalandthatGodblesses allof our ability to minister to allof mycongregants asequals.Itviolates my “North Carolina’s banonmarriage equalityhasplacedaburden onmy Not every religious libertylitiganthasopposedLGBTQ rights,however. Before theSupreme 114 agroup of interfaith clergywhosefaithinstructed thatsame-sex couplesshould , wasarguedundertheFree Exercise Clause, asthefederal RFRAdoesnot applyto Obergefell v. Hodges Nancy Petty. United Church of Christ v. Reisinger 112 The study concluded that a “‘gays versus religion’ frame is present is frame religion’versus “‘gays a that concluded study The Courtesy of Campaignfor SouthernEquality. establisheda constitutional rightto marry for same-sex 115 Thiscase, General Synodof theUnited Church of Christ claimant 113

41 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right view of thecenturies oldchurch tradition of sanctuary for those inneedof shelter andaid,St. John’s homeless shelter under its zoning laws. In ruling in the church’s favor, a county judge held that “[i]n relied onthefederal Free Exercise Clause to prevent the municipalityfrom shuttering thechurch’s RFRAs. the Free Exercise Clauseof thefederal andstate constitutionsaswellthefederal andstate people whoare poor, hungry, and/orhomeless. relied extensively onreligious libertylawsto defend their faith-basedpractices onbehalfof and other laws and policies that regulate such forms of charity, faith leaders and churches have providing aid to the poor or needy as one of its central tenets. and religious institutionsto actouttheirreligious beliefs.Infact,almostevery faithtradition has In response to thischange, somereligious rightgroups pulledtheirsupportfor thebill. is “theunionof onemanandwoman,ortwoindividualsasrecognized underFederal law.” belief aboutmarriage, alater version of thebilladdedprotections for the belief thatmarriage of concern that this could violate the Establishment Clause by advancing a particular religious man andonewoman,”thatsex shouldonlytake placewithinsuchamarriage. Possibly out its originaltext explicitly protected onlythereligious beliefsthatmarriage is“theunionof one conservatives. The First Amendment Defense Act was first proposed in Congress in 2015, and prevent the enactment of a broad religious exemption bill originally intended to benefit religious most controversial aspects of recent, mostly conservative, religious freedom efforts.” major victory for gayrightsor, aslikely, wouldforce courtsto clarifyandcurtailsomeof the blood, butisprohibited from doingso. Heposits thatsuch a case “wouldeitherproduce a with men. Such a case could be initiated by a man who is religiously obligated to donate Administration’s prohibition on blood donations from sexually active men who have sex Brian SoucekarguesthatRFRAcouldbeusedto challenge theU.S.Food andDrug case couldbefullylitigated. state lawandNorth Carolina hasnot passedastate RFRA. In 1983, prior to the passage of RFRA, a Lutheran church in Hoboken, New Jersey successfully Interestingly, the inclusion of protections for LGBTQ-affirming faith practitioners helped to In arecent lawreview article,“TheCaseof theReligiousGayBloodDonor,” Professor Providing food andshelter to thepoorhaslongbeenawayfor manyfaithpractitioners Economic Justice 119 Several of theseclaimshave succeededunder Obergefell 118 In the face of health, zoning, wasdecidedbefore the 116 117

42 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right Philadelphia churches thatwonaninjunctionunderthePennsylvania RFRApreventing the exemptions from food safety regulations undertheTexas RFRAto serve food to thehomeless; permit request to host a tent city under the state constitution; property; injunction preventing theCityfrom dispersing homelesspersonssleepingontheChurch’s program; Florida RFRArequired thecityto provide himwithanalternative site for hisfood distribution constitutions; its soupkitchen from closure usingreligious libertyprotections inthefederal andLouisiana that won the right to run a “Meal Ministry” under RFRA; their efforts to feed thehungryorshelter thehomelessincludeaRichmond,Virginiaparish free exercise of religion inviolationof theFirstAmendmentandRFRA. church from creating suchaprogram attheirnewlocationsubstantiallyburdened itsrightto major religions.” “the concept of actsof charityasanessential part of religious worship is acentral tenet of all to beprotected religious exercise, callingit“aform of worshipakinto prayer” andnoting that It thenheldthatHoboken couldnot useitszoningauthorityto prohibit thatreligious exercise. and its parishioners in sheltering the homelessare engaging in the free exercise of religion.” Martin Davies Joan Cheever. Other successfulreligious libertyclaimsbrought byfaith-basedinstitutions in supportof In 1994,afederal districtcourtfound aPresbyterian church’s food distributionprogram 125 126 aNewYork Citychurch thatrelied ontheFree Exercise Clauseto obtain apermanent aWashington State church thatforced thecityof Woodinville to considerits 124 . Photograph by/courtesy of David aFort Lauderdale homelessnessadvocate whoconvincedatrial judge thatthe 122 Thecourtfurtherheldthatazoningboard decisionwhichwouldprevent the 123 Train inSan Antonio ~ JoanCheever, Founder of TheChow need.” and helpthosein be agood Samaritan of yourneighborand early age to take care “You are taughtatan aNew Orleans church that defended 127 ministries in Dallas that won 120 128 121

43 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right the classic rejoinder of bureaucrats throughout history: IfImake anexception for you, I’llhave argument indenying aRFRAexemption. Itexplained, “[t]heGovernment’s argumentechoes drugs. hoasca wouldnot undermine thegovernment’s overall interest inpreventing thesaleof illegal The Courtheldthatexempting thesmallnumberof church membersfrom thelawcriminalizing Controlled SubstancesActto achurch thatengaged inritualuseof hoasca, ahallucinogenic tea. Vegetal universally unsuccessful. illegal substance—requests for RFRAexemptions from criminaldruglawshave beenalmost decision in ingestion. Yet despite the fact that RFRA was enacted in response to the Supreme Court’s 1990 practice iscommonto manyfaithtraditions, notwithstanding lawsthatregulate orprohibit their Native Americanreligious ceremonies, theuseof psychoactive substanceswithinspiritual outside of theChristianrightcontext. homeless shelters, andsimilarprograms hasbeenoneof themosteffective usesof these laws burden.” substantial a establish to insufficient is distance extra some travel to “needing “might result in some extra transit time for the Church’s members,” it determined that acknowledged thatmoving afood distributionprogram outsidethedowntown parkdistrict imposes someinconvenience byrequiring relocation outsidetheDistrict.” Church anditsmembersfrom engagingintheirreligious exercise; atmost,theOrdinance impose aburden on theorganization’s free exercise of religion, becauseitdid“not forbid the program didnot violate theFloridaRFRA. found that a local regulation that placed limits on a religious organization’s food distribution allowing herto serve free food from anon-permitted vehicle calledthe“ChowTrain.” Cheever—who usedthethreat of astate RFRAsuitto pressure thecityof SanAntonio into city from enforcing itsbanonfood distributioninpublicparks; The notable exception to this trend is From theceremonial consumption of winebyCatholics andJewsto theuseof peyote during While not universally successful, reliance on religious liberty laws to protect soup kitchens, Not all claims have succeeded, however. 136 , 135 Notably, theCourtruledthatgovernment couldnot rely ona“slipperyslope” anearlyRFRAcaseinwhichtheSupreme Court granted areligious exemption from the Employment Divisionv. Smith Religious DrugUse —a caseinvolving thereligious useof anotherwise Gonzales v.Gonzales do Beneficente União CentroEspírita O 132 Specifically, it held that the regulation did not did regulation the that held it Specifically, 131 In 2010, for example, the Eleventh Circuit 129 andawomaninTexas—Joan 133 Whilethecourt 130 134

44 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right and distribution of marijuana onavariety of grounds. Inafew cases,claimants were judged of Cannabis” have beendenied RFRAexemptions from lawscriminalizingthepossession to practitioners of Native Americanreligions to new religious groups like the “First Church practitioners gainexemptions from criminaldruglaws.Claimants ranging from Rastafarians applicability.’” general of ‘rule[s] to exceptions of test, interest compelling the under to make onefor everybody, sonoexceptions. ButRFRAoperates bymandatingconsideration, Hoasca brewing. ~Statement of Centro EspíritaBeneficente União do Vegetal the moral andintellectual aspectsof ahumanbeing.” essentially spiritualnature, bringingaboutpositive development in consciousness, capableof amplifyingone’s perception of his/her “The communionwithHoascacreates anenhanced state of The Court’s holdingin Photograph byApolloviaflickr. O Centro , however, hasnot appeared to helpother religious 137

45 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right organization calledSafehouse whosemission“isto save lives byproviding arange of overdose in Philadelphia,includingthepresident of aseminaryandchurch evangelist, founded an called uponto minister andprovide servicesto peoplewhousedrugs.In2018,agroup of people would rule. claim involving drug use be taken up by the Supreme Court, it is not obvious how the Court government interest. These cases have all been decided by lower courts; should another RFRA drug (albeitafarlesspopularthanmarijuana)wouldnot undermineanycompelling which found thatexempting anentire religious group from theprohibition of ahallucinogenic This determination issomewhat absurd inlightof theholding of personal marijuana use is narrowly tailored to advancing a compelling government interest. burden on the claimant’s sincere exercise of religion, prosecuting even a single individual’s business’s religious beliefs). contraceptive coverage intheiremployeehealthplansimposedasubstantialburden onthe Supreme Courtdeferred almostentirely to theplaintiffsonquestionof whether requiring distribution isnot actuallyrequired bytheclaimant’s religion found nosubstantialburden onaclaimant’s religious belief, arguingthatmarijuanauseor to beinsincere, ormotivated bymoneyrather thanreligious faith. Photograph byNatalie Piserchio. Directors of Safehouse. Ronda Goldfein, VicePresident of theBoard of In additionto faithpractitioners whousecontrolled substances,other peopleof faithfeel 140 Still other judges have ruledthat,even ifthere isasubstantial Harm ReductionServices federal prosecutor ~ Letter from Safehouse directors to a action to save lives.” by ourreligious beliefsto take community, weare compelled to great lossesof life inour considerations. Aswitnesses human life overrides any other principle thatpreservation of “At thecore of ourfaithisthe 139 (notably, in Gonzales v. OCentro Espírita, 138 Inother cases,judges Hobby Lobby , the 141

46 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right exemption from federal drugstatutes underRFRAso thatitcanopenasafe injection site. AIDS andother illnesses. Harvey hasstated publiclythatthechurch willbe applyingfor an people whousedrugs, asameansof reducing overdose deaths andthetransmission of HIV/ tourniquets, alcoholswabs,fentanyl testing strips, food, handwarmers,and other materials to distributing Naloxone (anoverdose reversal medication),sterile needles,sterile water, rubber to minister to andserve thispopulation. (PWUD) shouldnot diepreventable deaths,”anditsmembersconsiderittheirmoral obligation communities.” harm reduction, to serve theleast amongus,andto supportthewell-beingof marginalized religious organization whose mission, according to itswebsite, is “to spread thegospel of Safe InjectioninOctober 2018.TheChurch of Safe Injectionisanon-denominational, interfaith as thatproposed bySafehouse.” claim, that “there is no support for the view that Congress meant to criminalize projects such RFRA.” “true motivation issocio-politicalorphilosophical—not religious—and thusnot protected by Department of Justicehasaggressively disputed Safehouse’s claim,arguing thatthefounders’ burdens theirreligious exercise andisnot necessaryto anycompellinggovernment interest. The board to cease its efforts to open a safe injection site, the government’s suit, Safehouse argued, shelter to ourneighbors,andto doeverything possibleto care for thesick.” of overdose prevention serviceseffectuates theirreligious obligationto preserve life, provide Safehouse inaccordance withthesetenets.” them to take action to save lives in the current overdose crisis, and thus to establish and run violated theirreligious libertyunderRFRA.Theyexplained thattheir“religious beliefsobligate Substances Act(CSA). a judicialdeclaration thatitsattempt to openasafe injectionsite violated theControlled our faith is the principle that preservation of human life overrides any other considerations.” us from our religious schooling, our devout families and our practices of worship. At the core of “leaders and organizers of Safehouse are motivated by the Judeo-Christian beliefs ingrained in necessary aswellreferrals for drugtreatment. Theorganization’s website states thatthe use underthesupervisionof trained staff, whocouldprovide themwithmedicalassistanceif where druguserswouldbeableto bringincontrolled substancespurchased elsewhere to prevention services.” Similarly, JesseHarvey, apeeraddictionrecovery coachinMaine,founded theChurch of seeking Safehouse against suit a civil filed government federal the 2019, February In 147 In October 2019, the district court ruled, without considering the organization’s RFRA 150 Thechurch holdsthe“sincere religious beliefthatPeople WhoUseDrugs 142 144 Thegroup hasbeen engaged inefforts to openasafe injectionsite, Safehouse’s board membersresponded byarguingthatthelawsuit 148 Thegovernment haspromised to appeal. 151 To thatend,church membersact ontheirfaithby 145 Specifically, they “believe that the provision the that “believe they Specifically, 146 Bypressuring the 149 152 143

47 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right leave orreturn to the U.S.Themenargued thatthisconstituted government punishment for acting listcreatedList”—a bytheFBI’s Terrorist Screening Center thatseverely limits people’s abilityto government retaliated against thembyhavingtheirnamesplacedon thegovernment’s “No Fly doing sowouldhave contradicted theirreligious beliefs.In response to their refusal, thefederal Tanzin justice, counter-terrorism, and immigration contexts—that target Muslims. For example, arguments to challenge government laws,policies,andpractices—particularly withinthecriminal liberty religious using of theme common the share claims these practice, religious specific a around revolving than Rather Muslims. of profiling and surveillance government challenging ~ JesseHarvey, Founder of theChurch of Safe Injection out withhadaccessto sterile supplies.” safe injection,andHewouldhave madesure thatthepeopleHehung “If syringes hadbeenaround inJesus’day, Hewouldhave supported Jesse Harvey. RFRA andtheFree Exercise Clausehave occasionallybeendeployedasameansof 153 involves a claim by several Muslim men who refused to become FBI informants because Photograph by/courtesy of Yoon S.Byun. Government Surveillance, Profiling, &Discrimination Tanvir v. 48 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right did not address theseRFRA claimswhenitupheld thebanin challenging thebanonanumber of grounds, including RFRA. majority countries(the “travel ban”or“Muslimban”),several peopleandgroups brought lawsuits the enactment of President Trump’s Executive Order barring immigration from certain Muslim- an FBIsurveillance program targeting MuslimsinCalifornia isongoing. following tripsto SaudiArabia andMorocco. had attended anIslamicconference inCanada2004; their religious beliefsastheyenter thecountry; challenges to: the government’s practice of extensively questioningMuslim Americans about likely to…attract additional NYPD attention.” stated ithad“changed itsreligious andeducationalprogramming to avoid controversial topics that law-enforcement agents orinformants are likely intheir midst.” Center for ConstitutionalRights. by Ibraham Qatabi/courtesy of the from Tanvir v. Tanzin. Algibhah, andNaveed Shinwari Litigants Awais Sajjad,Jameel Other lawsuitsinthisvein, allof whichhave beenunsuccessful, includereligious liberty Photograph 157 activity—Muslim houses of worship, student infiltrated—without anyindicationof criminal that officers undercover and mosques outside The program includedtheplacementof cameras their religious liberty under the First Amendment. Muslims inandaround NewYork Cityviolated arguing thatasecret policeprogram thatmonitored Muslim peopleandorganizationsbrought alawsuit substantive RFRAdecisionhasyet beenmade. has beenappealedto theSupreme Courtandno case to proceed, thoughthisprocedural decision RFRA. InMay2018,theSecondCircuit allowedthe on theirreligious beliefs,andtherefore violated congregants cannolonger worshipfreely knowing attendance during the police program as “their example, thatmosqueshadnoted adeclinein chilling theirreligious activity. Theyexplained, for constitutional rightto free exercise of religion by argued thatthisintense surveillance violated their organizations, andbusinesses.Theplaintiffs 161 The parties eventually settled outside of court. AFree Exercise Clause andRFRAchallenge to 159 In government border stops of everyone who Hassan v. Cityof NewYork 160 andthedetention of twoMuslimmen 163 However, theSupreme Court Trump v. Hawai 156 162 Another organization Inaddition,following , 155 agroup of i in2018. 164 158 154

49 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right them through the useof religious libertylitigation. threats over thepastseveral decades,faithcommunitieshave repeatedly soughtto protect spaces have facedrapidly increasing publicandprivate development, pollution,andother In particular, holysites are animportantpartof manyNative Americanreligions. structures such as rivers, mountains, or forests are also considered holy by some faith traditions. unsuccessful, Native American individuals and tribes and other religious practitioners have [it] penalizereligious activity.” religious beliefs,” it would not coerce the tribes “into violating their religious beliefs; nor would own their to according fulfillment spiritual pursue to ability persons’ private with significantly tribes’ ownreligious actionsoractivities.TheCourtstated thatwhiletheroad “wouldinterfere the Free Exercise Clause, because it did not place any legal demands or prohibitions on the the tribes’ free exercise of religion, it did not constitute the type of burden prohibited by religious practice. TheCourtheldthatwhilethegovernment’s action undoubtedly burdened plan to construct aroad through theSixRivers NationalForest, aholysite essentialto their three tribesinCalifornia—the Yurok, Karok, andTolowa—challenged thefederal government’s Center. Courtesy of Northcoast Environmental through theSixRivers National Forest. Protest of theproposed G-Oroad In the1988case Despite thefactthat While somesacred spacestake theform of achurch, temple, orother building,natural Lyng v. NorthwestIndianCemetery Protective Association, Lyng 167 andother pre-RFRA environmental Free Exercise claimswere Environmental Justice Tribe, and numerous other tribes and nonprofit and tribes other numerous Tribe,and Forest Service to useRFRAto protect sacred sites. lower courtshave doneso, limitingtribes’ ability behavior—in the RFRA context, though several religious practitioners to change their own to instanceswhenthegovernment coerces holding of Supreme Court has yet to explicitly adopt the or fend off environmental degradation. The in an effort to protect sacred or holy land, continued to usereligious exemption claims For example, in Lyng —limiting a“substantialburden” , 170 theNavajo Nation,Hopi Navajo Nationv. U.S. 165 169 Asthese 166 168

50 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right Commission Christian practitioners. In context have been brought byNative Americanclaimants, afew have beenbrought by protect holyland. it. bring to long too waited had tribe the that finding claim, the denied Court D.C.District The be coiledintheTribe’s would homelandandwhichwouldharm...[and]devour thepeople.” that Snake Black a of prophecy Lakota a of fulfillment “the was oil the that believed render water inthelake unsuitablefor use inreligious practices, assomeof theplaintiffs pipeline, whichran underthebedof Lake Oahe.Theyarguedthatthepresence of oilwould Engineers the Standing in RockIndian Reservation.In (DAPL) Pipeline Access Dakota the of construction the over fight multiyear the of part religion.” religion isnevertheless deemednot to ‘burden’ that “governmental actionthat willvirtuallydestroy a the “cruellysurreal” result of theopinion,that In hisdissent,JusticeWilliamJ.Brennan decried people.” about thecontinuingexistence of Indiansasatribal is lessaboutindividualspiritualdevelopment andmore of sacred sites to IndiantribesandNative practitioners peace of mind.” religious activitiesatsacred sites asonlyaboutspiritual with Western yoga-like practices…portray[ing] Native to equate Indians’religious exercises atsacred sites member of theOsage Tribe, saidtheopinion“seem[ed] Similarly, Alex Tallchief Skibine,alawprofessor and are spiritual,not religious.” Americans, particularlywhenitcomesto sacred land, beliefs, andthe“romanticized viewthatNative of understandingandrespect for thetribes’religious was rootedindividual “spiritualfulfillment” inalack practice, hasarguedthatthecourt’s reference to author of several books onNative Americanreligious scholars andadvocates. For example, MichaelMcNally, The reasoning of 174 Thecourtadditionallyfound that While many of the most significant religious liberty claims in the environmental justice environmental the in claims liberty religious significant most the of many While 249 250

, 172 , Native American tribes filed a RFRA motion to stop the flow of oil through the through oil of flow the stop to motion RFRA a filed tribes American Native 177 248 Lyng agroup of Catholicnuns challenged agovernment agency’s order granting a Infact,heexplains, the“importance Criticism of hasbeencriticizedbymany 175 The plaintiff’s appealwasdismissedbythecircuit The plaintiff’s courtin2017. 247

Lyng Adorers of theBloodof Christv. Federal Energy Regulatory Lyng Standing RockSioux Tribe v. U.S.ArmyCorpsof applied,andthetribescouldnot useRFRAto held that RFRA cannot be interpreted to require project will diminish their spiritual fulfillment.” It government’s own land,onthebasisthat sanctioned project, conducted on the “the Plaintiffshere challenge agovernment- in Indians the ike impose a“substantialburden” onthetribes:“[l] ruling thattheForest Service’s actions didnot The NinthCircuit, relying on by thetribesviolated theirrightsunderRFRA. located inanationalparkconsidered sacred make artificial snow for a commercial ski resort to authorizetheuse of recycled wastewater to other things,thattheForest Service’s decision organizations brought alawsuitarguing,among to hearanappeal. practices. In 2009, the Supreme Court declined as to advanceorprotect particularreligious the government to change itsownactivitiesso Religious freedom wasalsoanintegral 171 Lyng ,” the court explained, court ,” the Lyng , disagreed, 176 173

51 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right lost onprocedural grounds, and in2019theSupreme Courtdeclined to heartheir appeal. “places asubstantial burden on[their] exercise of religion” inviolation of RFRA. fossil fuels.” current andfuture impactontheEarthcausedbyglobal warmingastheresult of theuse of well asactively educatingandengagingonissuesrelated to theenvironment, includingthe “exercise theirreligious beliefsby, which theybelieve isarevelation of God.” The nunsexplained thattheir“religious practice includes protecting andpreserving creation, private companyaneasementto constructanatural gaspipelinethrough thenuns’property. Photograph by/courtesy of RobertWilson. ~ Steven Vance, CheyenneRiver SiouxTribal Historic Preservation Officer sacraments thatcompriseourreligion.” Creator hastaughtus.Clean,pure water isnecessaryfor therites and “Clean, pure water isanessentialpartof theLakota wayof life that 179 Thus,forcing the Adorers to use their land to accommodate a fossil fuel pipeline inter alia 178 , caringfor andprotecting thelandtheyownas For example, theircomplaintnoted thatthey 180 Thenuns 181

52 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right persons in need of medical assistance, particularly the poor and disadvantaged.” his religious beliefs,which“compel himto use hisknowledge andskills asaphysicianto assist employees. determine whether she…require[d] attention and treatment,” butwasstopped byForest Service the protester, Dr. Gelburd “attempted to reach herandconductamedical examination of herto cutting off her access to food, water, communication, and medical care. After hearing about by out her flush to seeking was ForestService the and forest, the in pole a atop pod small a construction of a pipeline through a national forest in Virginia. The protester was occupying Service after hewasprevented from providing medicalassistanceto awomanprotesting the courtesy of Dave Parry, Outside theImage. Members of theAdorers of theBloodof Christandtheirsupporters. ~ Sister Janet McCann,Adorers of theBloodof Christ(wearingared scarf) stand aspeopleof faith.” very landthatisours…Thisnot apoliticalstatement butaspiritual stand upwhentheprinciplesweholdsacred are compromised onthe “As religious womenof theCatholic Church, ourfaithimpelsusto In Gelburd v. Christiansen, 183 Asheexplained inhislegalcomplaint,Dr. Gelburd’s actionswere motivated by 182

a Christian doctor filed a complaint against the U.S. U.S. Forest the against complaint a filed doctor Christian a Photograph by/ 184 In preventing 53 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right In 1971,the Supreme Court held that those who had religious objectionsto servinginthe unlike exemptions that permit religious objectors to disregard a law or policy entirely. conscientious objectors whoare drafted perform somealternative form of publicservice— exemption lawsintheU.S. or conscience-basedreasons) from militaryserviceare someof themostlongstandingreligious exempting conscientious objectors (thosewhoopposeservinginthearmedforces for religious participation inviolenceandwar. Asmentionedinthereligious libertytimelineabove, laws the destructionof holysites. both before andafter thepassage of RFRA,to challenge environmental destruction,including woman endedherprotest. exercise inviolationof RFRAandtheFree Exercise Clause.Hewithdrew thelawsuitafter the him from administering care, Dr. Gelburd arguedthatthegovernment wasburdening hisreligious Courtesy of ReligionNews Service. Not allpeopleof faithare covered byexisting conscientiousobjector laws,however. While rarely successful,religious libertyclaimshave consistently beenusedasalegaltool, Many religious practitioners, mostprominently Quakers, have religious objectionsto Conscientious Objection&Anti-War Activism 185 186 Thecurrent Selective Servicerequirements mandate that manpower necessary for militarypurposes.” to “theGovernment’s interest inprocuring the particular wars.” the conscription lawsonthose whoobjectto under theFree Exercise Clausetheimpactof interestssufficient justify weight to and ofkind a the Courtheldthatthere existed “governmental War, Vietnam the to specifically opposed those service. Inrejecting aconstitutionalexemption for mandate thatsuchobjectors beexempted from Court held that the Free Exercise Clause did not Military Selective Service Act. to anexemption from militaryserviceunderthe Vietnam War—but not all wars—were not entitled 189 Specifically, the Court pointed 188 Further, the 190 187

54 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right and pouring bloodondraft records. been arrested the previous year for entering a draft board office in Baltimore, distributing Bibles, hands and recited the Lord’s Prayer. Maryland andburned themwithhomemadenapalm. Catonsville, in office Service Selective a from records draft hundred several seized nuns, or In 1968,for instance,agroup of nineCatholics,includingsixcurrent orformer priests,brothers, enteredgovernmentparticipants Selective destroyed which records. Service and in offices reverends, brothers, nuns,andother peopleof faith,participated indozensof draft board raids was aparticularlyactive timefor suchreligiously motivated protest. and organizing. While there was some anti-war activity during WWI and WWII, the Vietnam War other religious practitioners—have been motivated bytheir beliefs to engage in anti-war protest “Peace Churches” (includingQuakers and Mennonites), aswell asCatholics,Jews,andmany from fighting in, or financially supporting, wars. Some people of faith—members of the historic grounds becarved outbythecourts.” taxation, given particularly difficult problems with administration should exceptions on religious be impossiblebecauseof the“practical needof thegovernment for uniform administration of from herpay.” therefore “declared herselfexempt from taxation,sonofederal incometaxwouldbewithheld and hence, that the payment of taxes to fund the military is against the will of God.” Quaker stated thatshe“sincerely believes thatparticipationinwariscontrary to God’s will, tax paymentshave consistently lostincourt. who have argued that their religious beliefs permit them to withhold or divert all or part of their Pacifists FreeRFRA. the Exerciseor exemptionsunder religious Clause gaining in succeeded that willbeusedto supportthemilitary. Thosewhoobjectto payingfor wars,however, have not “embraces theever-broadening understanding of the modern religious community.” under theSelective ServiceAct.TheCourtnoted thatthisconstructionof theAct even describetheirbeliefsas“religious”—could beentitledto areligious exemption ruled that persons with nontraditional religious beliefs—including those who did not objectors. In In thelate 1960sandearly70s,thoseopposedto theVietnam War, includingmanypriests, Finally, somereligious practitioners’ anti-warbeliefsrequire themto dofarmore thanrefrain taxes paying to but wars, fighting to only not opposed are objectors conscientious Some Two other importantcasesof theVietnam era were more favorable to religious United States v. Seeger 197 TheThird Circuit deniedherclaim,holdingthatgranting anexemption would 202 201 198 Two of the nine were, at the time, on bail after having 191 and Welsh v. United States 194 In Adams v. C.I.R 200 After burningtherecords they held ., 195 , 192 for example, adevout theSupreme Court 196 She 193 199

55 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right (including three priests); laypeople); Twenty-eight” (including fourweapons manufacturer; Catholic priests, a Lutheran minister, and 23 Catholic a Company, poured blood DowChemical and the into at broke files who office on two nuns), and priests five (including Nine” “D.C. the religious serviceandrecited from theGospelsof JohnandLuke whileburningdraft records; (including sixCatholicclergymembersand aminister of theChurch of Scientology), whohelda The Milwaukee Fourteen burning draft records. ~Jim Forest, memberof theMilwaukee Fourteen (fourth from left) of theirobedienceto thestate.” the age of Constantine,hadrarely puttheirobedienceto Christahead “It seemedto meoneof thetragedies of history thatChristians, since Other draft board raid participants duringthisperiodincludedthe“Milwaukee Fourteen” 205 the“Chicago Fifteen” (including two priests); 207 and the “Boston Eight” (including and the two “Boston priests and a nun). Eight” Courtesy of JimForest. 206 the“New York Eight” 204 the“Camden 208 203

56 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right staged a protest ataU.S.nuclear submarinenavalbase inGeorgia.Using spray paint and motives were “irrelevant.” that theydidnot actwithanillegal intent to harmtheU.S. on theirreligious, moral, andpoliticalbeliefsbecausethatevidenceisneededto” demonstrate nuclear facility in Tennessee argued in federal court that they “must be able to present evidence to prosecution—albeit withlittlesuccess. defenses, onoccasionPlowshares membershave harnessedtheirreligious beliefsasadefense protest atmilitaryandweaponmanufacturingfacilities.Whiletypicallyrelying onsecularlegal For thepastfour decades,itsmembershave engaged innonviolent,often symbolicforms of Electric facility, hammered onmissilecomponents,andpoured bloodonsecuritydocuments. a 1980protest inwhicheightChristians,includingseveral priestsandanun,entered aGeneral war again.” into pruning hooks; one nation shall not raise the sword against another, nor shall they train for expressed intheBookof Isaiah:“Nationsshallbeattheirswords into plowshares andtheirspears vision the from name its takes that movement pacifist Christian a movement, Plowshares where acitizencanselectwhat law hewould obey becauseof hismoral or religious belief.” only hisrightbutalsoduty.” this actmaydoitunderadeepandsincere religious beliefthatthedoingof theactwasnot who doesanactwhichisprohibited byavalidcriminalstatute, thoughtheonewhodoes quoted a1943religious libertycasebrought byadraft refuser: “[o]neiscriminally responsible immunity from punishment for breach of thelaw.” or justification legal it with carry not does standards individual upon based judgment moral that thesincerityof theprotestors was“beyondquestion,” explained that“theexercise of a was justified by ‘some higher law.’” action that belief a or motives’ religious ‘sincere on based defense’ ‘legal a of existence the repeatedly rejected. Thetrialjudge intheD.C. Ninecase,for example, “emphatically denied religious conviction, and in accordance with God’s higher law. This argument was soundly and defended their actions in several cases by explaining that they had acted out of sincere not appearto have raised alegaldefense explicitly basedontheFree Exercise Clause,they More pointedly, in2018, a group of seven CatholicPlowshares members broke into and For example, three Plowshares members whowere prosecuted in2013for aprotest ata do raiders board draft the While trials. high-profile in resulted raids these of number A Another wave of religious anti-warprotests beganinthe1980s,withbirthof the 213 The Plowshares movement advocates active resistance to war and originated with 216 211 Itfurtherexplained that“[n]ocivilizednationcanendure 209 AnopinionintheCatonsville Ninetrial,whileitadmitted 210 TheopinioninaBaltimore draft raid case 215 Thecourtheldthattheir religious 214 212

57 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right charged withconspiracy, trespass, destructionof property, and“depredation” of property. seek to “serve thepoor, andresist warandsocialinjustice.” members whose Church, Catholic official the with unaffiliated group, religious decentralized nuclear war.” preventeffortIsaiah’spromotetoand its peace in plowshares’intoswords ‘beat to command by theirreligious commitment“to practice peacefulactivismto carryforth theprophet consciousness of society abouttheimmorality” of nuclearweapons. Astheylater explained, theprotesters considered thisto bea“prophetic actionto raise the containers of theirownblood,they“symbolicallydisarmedthebuildinganditssurroundings.” Courtesy of KingsBayPlowshares. Members of theKingsBayPlowshares andsupporters outsideafederal courthouse. ~ Elizabeth McAlister, Plowshares protester follow my conscienceandmyfaith.” protects theirmassive destructive power, leave menochoice, Imust “The idolatryof thesenuclearweapons andthegovernment which The “KingsBayPlowshares Seven,” astheycameto beknown,were arrested and 219 Many of those arrested were affiliated with the Catholic Worker movement—a 220 218 Theactionwasmotivated 221 217

58 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right cases. Judge Griffen thenbrought acomplaintagainsttheCourt,arguingthatbarviolated the Arkansas Supreme Court and its judges barred him from presiding over death penalty penalty rally andprayer vigilonGoodFriday outsideof theGovernor’s mansion. Arkansas state judge aswellanordained Baptist minister, participated inananti-death in death penalty trials as ajudge, juror, or witness. In 2017, for example, Wendell Griffen, an grounds. Thishasledsometo engage inprotest against thepractice orto refuse to participate base.” Submarine Base,thesecurityof theassets housedthere, andthesmooth operation of the furthering thegovernment’s “compellinginterests inthesafety of thoseonKingsBayNaval held thatapplicationof thecriminallawsto thedefendants wastheleastrestrictive meansof the judge found thatthere wasasubstantialburden ontheprotestors’ religious exercise, she and obtain secular public policy revisions tinged with post-hoc religious justification.” —despite the federal government’s claim that their protest “reflect[ed] an effort to propagandize not be dismissed. prosecuting themwasnot necessaryto achieve anycompellinggovernment interest. the Seven arguedthattheirprotest wasaform of sincere religious exercise, andthat In response, they sought to have thecharges dismissedunderRFRA.Amongother defenses, In August2019,thedistrictcourtjudge heldthatthecharges againsttheSeven should 226 People of faithfrom arange of different traditions opposecapitalpunishmentonreligious InOctober 2019,theprotesters were found guiltyof allcharges. 223 The judge found the defendants to be both religious and sincere Capital Punishment Photograph by/courtesy of Brandon Markin. ~Judge Wendell Griffen justifiable.” of murder—is not morally who have beenconvicted including defenseless persons killing of defenseless persons— “Premeditated anddeliberate 227 Inresponse, 225 While 224 222

59 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right to Free Exercise andreligious exemption-based claims. Establishment Clause hasbeenthevehicle for suchchallenges, litigantshave increasingly turned the traditionally While separation. church-state for and nonbelievers of rights the for fight to stance wasadversely affecting [thedefendant’s] legalposition.” death penalty, agreed to testify onlyafter thecriminaldefense attorneys inthe case“saidher Lindecrantz, whohadworked asaninvestigator onthedefense team of themanfacing the death penaltycases.Addressing theFree Exercise claim,itheldthattheorder “doesnot prohibit the FirstAmendment. the ArkansasRFRAandchilledhisreligious exercise inviolationof theFree Exercise Clauseof involving abortion. who are nevertheless permitted to heardisputes judges withahistory of anti-choicereligious activism pose a risk of bias, or the appearance of bias—such as religious beliefsare permitted to hearcasesthat instances inwhichjudges whoholdparticular Griffen himselfhasnoted, there are manyother from hearingcapitalcases.Moreover, asJudge who supportthedeathpenaltyfor religious reasons, death penaltyfor religious reasons, butnot those disingenuous to prevent judges whoopposethe On theother hand,itseemsintuitively unfairand Hodges same-sex couplesinthe wake of clerk whorefused to issuemarriage licensesto employees suchasKimDavis,theKentucky county requests brought byanti-LGBTQ government advocacy groups fighting religious exemption perceived asimpartial—couldprove usefulto interest inensuringthatcertainstate actors are Judge Griffen—that thestate hasacompelling The reasoning of theEighthCircuit’s decisionagainst Religious Exemptions &Government Employees Finally, religious libertylawshave beenused bypeopleof faith,Humanists, andatheists The EighthCircuit found againstJudge Griffen, andupheldthebaronhisparticipation in . 251

252 Atheists’ Rights&Church-State Separation Obergefell v. means of furtheringthiscompellinginterest.” Judge Griffen “doesnot allege anylessrestrictive in publicperception of an impartialjudiciary”and interests intheimpartialityof thejudiciaryand exercise of religion, “Arkansas hascompelling that even iftheorder did burden thejudge’s Regarding the state RFRA claim, the court held to alljudges whoexhibit potential for bias.” applicable principles neutral reflects order the Judge Griffen’s free exercise of religion…Rather, religious oppositionto capitalpunishment. a Colorado deathpenaltycasebecauseof her and imprisonedafter sherefused to testify in woman whowasheldincontempt of court news involved Greta Lindecrantz, aMennonite capital cases. refused to restore Judge Griffen’s abilityto hear In September 2019,theArkansasSupreme Court

Another recent casethatmadethe 230 232 228 233 229 231

60 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right embrace orpromote religious In precepts violate theirreligious beliefs(orlackthereof). of religious literature. programs, anddistributed Sataniccoloringbooks inpublicschoolsthatallowthedistribution prayer, has requested to give Satanicinvocations before state legislatures thatopenmeetings with held thattheTen Commandmentsstatute violated theOklahomaConstitution.Similarly, TST deity that has been adopted by occult and satanic groups. intention to it:arepresentation donate astatueto of “complement” Baphomet, agoat-headed placed astatute of theTen Commandmentsoutsideof itsstate capitol, TSTannouncedits liability.” Satanic Temple asks to speak,or(2)censorTheSatanicTemple, thereby openingitselfto legal Lucien Greaves. The“law”states that“governments willeither(1)closeopenforums whenThe state separation” government religious activitiesandexemptions. TSThasrelied ona“nuclearoption for church/ to usereligious freedom demandsby theirmembersasakindof poisonpillto limitthescopeof Rally for theFirst Amendment in2018. Statue of Baphomet infront of theArkansasstate capitol buildingfor the SatanicTemple’s In addition, atheists and others have brought claims arguing that government acts that In somecircumstances thistactichas proven quite effective. Whenthestate of Oklahoma For example, somegroups—in particularTheSatanicTemple (TST)—have openlyattempted 237 235 started “After SchoolSatan”clubsinpublicschoolsthatpermit religious afterschool

234 thatonecommentator hasdeemed“Lucien’s Law”after TSTco-founder 238 Courtesy of MagnoliaPictures. 236 The Oklahoma Supreme Court later New Doe New Doe 61 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right his RFRAclaim. the case was appealed, the D.C. Circuit Court ruled onlyon Barker’s Establishment Clause, not coveredbenefit of RFRA.” type by the not is chaplain guest a servetoas opportunity Clause. had previously held that legislative prayer programs, if neutral, do not violate the Establishment and following hisreligious beliefsbygivingsecularremarks. forcing him to choose between receipt of a government benefit—serving as the guest chaplain— violating theEstablishmentClause,government wasinfringingonhisrightsunderRFRAby a secularinvocation to legislators inlieuof anopeningprayer. House of Representatives after hewasdeniedtheopportunityto beaguestchaplainanddeliver Government to permitPlaintiffsto usetheirpreferred meansof payment.” beliefs, astheplaintiffswere not legallyrequired to usecashandRFRA“doesnot require the and destroying God’s printed name.” name God’s printing superfluously of sins the in complicit him renders Plaintiff, Jewish the way that,for theAtheist andHumanistPlaintiffs,violates theircore religious beliefs,and,for a in message objectionable an proselytize and affirm, bear,to them “cause[d] money issued their RFRArights.Theyarguedthattheinclusionof thisreligious message ongovernment- that lawsrequiring theinscription of thenationalmotto “InGodWe Trust” oncurrency violated Child #1v. Congress of United States Dan Barker. In Barker v. Conroy 243 Thedistrictcourtof D.C. rejected Barker’s claiminpartbecauseitfound that“the Photograph bySamviaflickr. 245 , Evangelical-preacher-turned-atheist-activist DanBarker suedtheU.S. , agroup of atheist,Humanist,andJewishclaimantsargued 239 TheSixth Circuit found nosubstantialburden ontheir invocation to Congress ~DanBarker’s proposed secular state.’” of separation between church and that ourConstitution‘erects awall [a] nonChristiandeist,whostated of ThomasJefferson,the ‘spirit’… esteemed body. ButIcaninvoke supernatural agency before this “I cannot invoke aspiritor 242 241 For context, theSupreme Court Heclaimedthat,inadditionto 240

244 While 62 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right include: voting rights,economicjustice,guncontrol, animalwelfare, andother areas. Examples might religious libertyclaimsthatcouldbeusedto gainexemptions inthepublichealth,criminaljustice, have—or couldbe—brought outsideof the“culture war”context. There are countlessadditional

gag” bill,which limitstheability of whistleblowers to expose health,safety, andanimal An animalrightsactivist requests anexemption underastate RFRAfrom a state “ag- that teaching inaclassroom withgunswouldviolate herreligious beliefs. guns onpublicuniversity campuses.Theprofessor bringsastate RFRAclaim, arguing ing firearms into herclassroom or office, despite astate “campuscarry”lawallowing A professor atapublic university isdisciplinedfor prohibiting herstudentsfrom carry prevents herfrom fulfillingher religious obligation to vote. state lawbarringpersonswithfelony convictionsfrom voting. Shearguesthatthisrule A personwithafelony convictionrequests anexemption underastate RFRAfrom a need, includingthosewithfelony convictions. rule coerces himinto violatinghisreligious obligationto care for familymembersin rule barringpersonswithfelony convictionsfrom publichousing.Hearguesthatthis A resident of publichousingrequests anexemption underastate RFRAfrom astate participation inseparating families,which wouldviolate hisreligious beliefs. of HomelandSecurityseekinganexemption from anyjobdutiesthatwouldrequire his An Immigration andCustoms Enforcement agent affirmatively suestheDepartment denying benefits to peopleinneedisimmoral. law. Shebrings aRFRAclaim,arguingthatshewasactingonherreligious beliefthat assistance into theprograms, regardless of whether ornot theyare eligibleunderthe lic benefitprograms isfired forenrolling allapplicantsthatshebelieves needfinancial An employeeof the federal government whoisresponsible for enrolling peopleinpub gation to selloradminister marijuanato patientswhowouldbenefitfrom thedrug. Substances Act.ShearguesthattheActprevents herfrom actingonherreligious obli An oncologistrequests anexemption underthefederal RFRAfrom theControlled The casesoutlinedabove represent a widesampling of thereligious libertyclaimsthat * - - - 63 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right the courts,instate legislatures, andespeciallywithinthecurrent federal administration. Christian righthasmadeenormousgainsinsecuringreligious exemptions inrecent yearsbefore social justice work as a form of religious exercise have only rarely succeeded. In contrast, the examples discussed above, however, religious libertyclaims brought by thosewho engage in humanitarian andprogressive socialmovements are nearlyendless.Asisevidentfrom the The religious exemption claimsthatmightbebrought bypeopleof faithengaged in him from fulfilling his religious obligation to expose animalabuse. rights violationsintheagriculture industry. Theobjector arguesthatthisruleprevents 64 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right 20 19 federal employeediscrimination claims.). 18 Church v. Salazar 525 Wilgus 17 2009) Parson v. Pierce, failure RFRA 27 16 Carter v. Myers 15 requiring hertowearaskirt.). 907 the 14 religious observanceorpracticewithoutunduehardshipontheconductofemployer’s business.”). unless 13 N.W.2d 1(Iowa2012). where to settles-dispute-with-sikh-woman-over-kirpan-110714/. Woman 12 11 10 Note 9 change inreligiousexemptionlaw;thus,litigationbroughtpriortoitsenactmentshouldnotbeconsideredcontrolling authority. Kirby 8 430 (2016). Harmeet 7 2019), https://sojo.net/articles/media-s-religious-left-erasing-marginalized-communities-faith. 6 huffingtonpost.com/michelle-tang/the-christian-leftpossibl_b_8270596.html. Holly Christian Left—Possibly the Most Interesting Group You’ve Never Heard Of https://www.usatoday.com/story/news/nation-now/2017/04/15/tough-times-deeper-faith/100491902/; 5 Timothy is theimportantroleChristianlefthasplayedduringlast50years.” Laura religionnews.com/2016/10/18/evangelical-christians-are-on-the-left-too/. 4 Taylor 3 globalizing-kings-legacy.html. 2 ment/. Virginia Commonwealth U welfare.library.vcu.edu/settlement-houses/settlement-movement-1886-1986/; JeffreyScheuer, Berry, SettlementMovement:1886-1986, available 1 Beyond the ChristianRight Endnotes, SectionII:Sikhs andSatanists,Sanctuary andSafe DrugUse: ReligiousLiberty Law

Inre 42 A.A.exrel. occasionally Wm. religious F.3d F.supp.2d

appeal dismissed, , a claims an to 638 Over & law Dunn v. Ray, Harrell v. Donahue United Statesv. Vasquez-Ramos Holt v. Hobbs Tagore v. UnitedStates Merced v. Kasson Singh v. McHugh athttps://socialwelfare.library.vcu.edu/settlement-houses/origins-of-the-settlement-house-movement/; Margaret E. E.E.O.C. v. Abercrombie &Fitch Stores 938, Lucien exhaust Mary employer U.S.C. F.3d or beliefs Kirpan,

brought Three Children, 24F.Supp.2d 389 (D.N.J.1998). that 959 750 Meyer, R. Goidel, succeed , 2017 policy Branch,

Bill J. 2019 1274, , 764F.3d 465.480(5thCir. 2014). Olson, J. Kamboj, while administrative (10th (N.D. Dhooge, § 2000e(j) of Williams, demonstrates Betenbaugh v. NeedvilleIndep.SchoolDist 139S.Ct.661 (2019). Baptist Of WL by WL , is You KnowtheReligiousRight.Here’s theReligiousLeft Brian 1296 employees in 371Fed.Appx.713(8thCir. 2010). 574 this Globalizing King’s Legacy, Cir. The Religious Left in Contemporary American Politics found Origins oftheSettlementHouseMovement, Rts. people Miss. , 185F.Supp.3d 201(D.D.C. 2016). 3498878(D.S.C.2017).

, 577F.3d 578(5thCir. 2009). bringing 1004298 The Media’s ‘ReligiousLeft’ IsErasingMarginalized CommunitiesofFaith , The Religious Freedom Restoration Act at25: U.S. section (10th . (lastvisitedSept.25,2019),https://socialwelfare.library.vcu.edu/religious/the-temperance-move 2008); 638 Smentkowski, Joint J. (“The Evangelical Christians Are ontheLeft,Too to 2012)

, 153, in 2014 __, remedies F.3d be where Cir. that prison religious (D. Committee United States v. Oliver includes term 205, 135 under-inclusive (juvenile 975, WL 2011); he Del. , doing S. Virginia Commonwealth U are 531 207

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., 611 F.3d 248(5thCir. 2010).

an 223 F.3d (Jan. aspects the (the See also was Cir. the 135 to for plaintiffs undue not accommodate

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T 810 and - sea for he - 6, , , 89 Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right 43 42 v. Hoffman 41 fines/3006562002/. 1, 40 Under theReligiousLibertyRestoration 39 38 the Indictment, com/2019/07/02/us/scott-warren-migrant-humanitarian-prosecution-invs/index.html; 37 illegal-immigrants-ends-in-hung-jury.html. Christian 36 Warren andothers’ com/2018/08/04/arizona-clergy-call-activists-to-support-migrants-on-border/. Snow, (July 35 (D. 34 33 00340-N/A-BGM (D. 32 immigration-judge/massachusetts-judge-faces-federal-charges-for-blocking-immigration-arrest-idUSKCN1S1260. Judge Times 31 rights wereviolatedwhenINSagentsenteredchurchesandsurreptitiouslyrecordedchurchservices). (9th employment organization exemption 30 29 28 refused toenforce.”). argued collections/sanctuary-trial-papers laws. enforce 27 1988). 26 refuge seekerswereaidedinthatlatter-day versionoftheUnderground Railroad.”). https://www.nytimes.com/2017/03/05/us/sanctuary-cities-movement-1980s-political-asylum.html movement 1980s protecting-immigrants-ice/ FromImmigrants ICE over 2017), 25 24 welcoming-immigrants. 23 22 21 Order, Defendants’ Rafael Brief Verdict, Bob Samuel Defendant’s Transcript ofMotionHearingat45, Notably, Interview 8U.S.C.§ 1324. 22 Ariz. Feb14,2018). 2019), Cir. about

See 9, (May Faces transported Arizona instead https://www.christiancentury.org/article/roots-and-branches-sanctuary-movement the 2019), United Statesv. Good United States v. Warren See, e.g. American Baptist Churches v. Meese, Aguilar, Merkt, United States v. Merkt Murphy v. Collier, Id. 1991)

See, e.g. Sanctuary , No.4:19-CR-00693-RM(D. from a was law at661. Post 10, Bible ten-year Federal to https://www.azcentral.com/story/news/2019/03/01/border-aid-volunteers-sentenced-15-months-probation-must-pay- sought Ortega, for that Clergy 794F.2d at957. persons in 2019), (same); United Statesv. Warren United Statesv. Deighan far Carranza, https://religionnews.com/2019/07/09/pastor-surveilled-after-ministering-to-migrants-sues-us-government/; the

883F.2d at695. , United Statesv. Hoffman Smith, the some (June Professors , Verses Manny and RFRA it with lower. Aysha federal Trial

Charges was exemption period, face Opening Amended Ariz. Dec.6,2017); https://www.nytimes.com/2019/05/10/us/texas-border-good-samaritan.html; sheltered Call Prosecutors to Retry Volunteer Worker Who Aided Migrants , in Presbyterian Church v. UnitedStates sanctuary Alexia The 13,

Religious Freedom ConcernsRaisedasTrial Over Aid toIllegal Immigrants EndsinHungJury ‘civil claims, on Papers of Fernandez, need Border Aid Volunteers Sentenced to 15MonthsofProbation, MustPay Fines See Khan, 139S.Ct.1111 (2019). (Today’s harboring Activists the sheltering Welcoming of 2019), for Nation

, 386F.Supp.3d 1073,1090(D.Neb.2019) (internalquotationsomitted). Memorandum Clyde initiative—they , regardless Religious Motion Salvatierra, U.S. up , 794 from U. Blocking Pastor Surveilled After MinisteringtoMigrantsSuesUSGovernment, No. (“Jim see infra activists to Ariz. sanctuary government’s F.2d to https://www.christianpost.com/news/religious-freedom-concerns-raised-as-trial-over-aid-to-

statute); She StoppedtoHelpMigrantsonaTexas Highway. MomentsLater, SheWas Arrested Haberman, 4:18-cr-00223-RCC-BPV 500,000 (May Immigration , 18-CR-00223-RCC(DTF)(D. about Support to Corbett, Act, , No.M17-00340-N/A(BPV) (D. Ariz. Mar. 14,2014). Immigrants, Liberty of 950, , NO.M17-00339-N/A(BPV)at*2(D. Special Dismiss United Statesv. Hoffman Immigration argued Section IV The RootsandBranch of the Sanctuary Movement, their 6, United Statesv. Warren in 500,000 United Statesv. Hoffman Intercmty. Ctr. forJusticeandPeacev. I.N.S movement refugees).

953-54 were 2015), Support 712 Migrants a Trump andtheBatteroverSanctuaryin America immigrant as that Collections violations Quaker, Counts Reform Amici upholding F. refugees”); note11 Sojourners (5th their https://www.thenation.com/article/inside-new-sanctuary-movement-thats- Supp. Arrest, of Other on is Reversal 2 Curiae Cir. insisted activities being status); , and and of Border, 756 870 laws Reuters

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(N.D. in F.2d revived at , No.4:17-mj-00339-N/A-BGM(D. (last Am. of Ariz. regarding that , No.CR-18-223-TUC-RCC(D. international Support Religion 12, should visited , No.4:19-CR-00693-RM(D. Magistrate Ariz. July2,2019). Lo, United States v. Aguilar 518 estimate

visited (Apr. what F Cal. United States v. Warren Feb Act, Ariz. Mar. 5,2019). riends Serv.Corp. v. Comm. Thornburgh Inside the New Sanctuary Movement That’s Protecting by (9th Sept. not of For 1989) many treatment 14, they 25, stating News Sept. Neither Cir. that be human Ariz. Jan.18,2019). Judge’s 2018); a 2019), 25, were considered list of Government’s (sanctuary 1989) the 25, Serv 2019), , the it of of Party Cnn rights (“More number doing United States v. Deighan https://www.reuters.com/article/us-usa- ., was 2019), Judgment . war same news 910 (Churches (Aug.

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