Tag: religious liberty

The Police Don’t Need More Power to Target Muslims

In the wake of the terrorist attacks in Brussels this week, presidential candidate and senator Ted Cruz called for increased law enforcement activity in American Muslim communities:

 We must empower law enforcement to patrol and secure Muslim neighborhoods before they become radicalized.

Pressed to clarify his remarks, Sen. Cruz called for the resurrection and nationalization of a now-defunct NYPD surveillance program directed at the Muslim community in and around New York City.  He argued that the “successful” program was shut down due to an excess of political correctness, leaving New Yorkers more vulnerable to the threat of terrorism.

The problem: even ignoring political correctness, the NYPD program was a failure by any reasonable standard.

In the aftermath of 9/11, the NYPD established a surveillance-based Demographics Unit.  The goal of this unit was to “map” certain (almost entirely Muslim) communities in and around New York City, placing them under expansive police surveillance in order to sniff out would-be terrorists before they could launch attacks.   

To achieve this mandate, the police infiltrated mosques, set up surveillance cameras around Muslim-owned businesses and residences, went undercover to monitor everyday conversations, and even infiltrated student groups at schools as far away as Yale and the University of Pennsylvania in order to monitor what students talked about, who they spoke to, and how often they prayed. 

The end result of years of Demographic Unit surveillance on American Muslims was… nothing. 

No convictions, no prosecutions, and, according to Assistant Chief Thomas Galati, not even a single legitimate lead. 

That’s not to say there were never any terrorist threats in New York during this time period, only that the expansive “patrolling and securing” of Muslim neighborhoods failed to produce any actionable intelligence about them.  A 2013 New York Magazine article contains an illustrative example: 

In September 2009, the National Security Agency intercepted an e-mail from a taxi driver named Najibullah Zazi to an e-mail address linked to one of Al Qaeda’s most senior leaders. The message contained the line “the marriage is ready.”

Marriage and wedding were among Al Qaeda’s favorite code words for attacks, referring to the day that a suicide bomber met his brides, the maidens of the hereafter.

Trying to ascertain the scope of the plot, the NYPD searched the files of the Demographics Unit. Even though the rakers had canvassed Zazi’s neighborhood daily, and had even visited the travel agent where he bought his tickets between New York and Colorado, there was not a single piece of useful information. “There was nothing,” said [NYPD Lt. Hector] Berdecia. 

In 2011, the Associated Press began publishing an in-depth exposé on the program, which spawned calls for reform and a wave of litigation against the city. By the time Bill de Blasio took office as mayor in 2014, the program had largely wound down, and the unit was eventually disbanded entirely.

There is little evidence that program made New Yorkers any safer. What the program undoubtedly did is cost millions of tax dollars and thousands of law enforcement man-hours that could have been spent investigating actual criminal behavior. 

Sen. Cruz’s campaign also claimed that the end of the program made it more difficult for the NYPD to work with the Muslim community: 

In New York City, Mayor de Blasio succumbed to unfounded criticisms and eliminated the efforts of law enforcement to work with Muslim communities to stop radical Islamic terrorism. 

According to the NYPD itself and advocates within the New York Muslim community, the opposite is true. The NYPD program understandably alienated the local Muslim community and generated immense distrust between Muslim Americans and law enforcement.

While there is scant evidence that the NYPD program generated much in the way of actionable intelligence, it did generate civil rights and constitutional litigation against New York City.  Several suits have been settled, with costs ranging in the millions of dollars.

Meanwhile, another suit in New Jersey remains on the docket. Last October, the Third Circuit Court of Appeals issued a strongly worded opinion reinstating a lawsuit against the NYPD surveillance program, invoking several of the darkest civil liberties violations in our history to explain why the suit should proceed:

No matter how tempting it might be to do otherwise, we must apply the same rigorous standards even where national security is at stake. We have learned from experience that it is often where the asserted interest appears most compelling that we must be most vigilant in protecting constitutional rights. “[H]istory teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure.”

[…]

Today it is acknowledged, for instance, that the F.D.R. Administration and military authorities infringed the constitutional rights of Japanese-Americans during World War II by placing them under curfew and removing them from their West Coast homes and into internment camps. Yet when these citizens pleaded with the courts to uphold their constitutional rights, we passively accepted the Government’s representations that the use of such classifications was necessary to the national interest. […] In doing so, we failed to recognize that the discriminatory treatment of approximately 120,000 persons of Japanese ancestry was fueled not by military necessity but unfounded fears.

[…]

What occurs here in one guise is not new. We have been down similar roads before. Jewish-Americans during the Red Scare, African-Americans during the Civil Rights Movement, and Japanese-Americans during World War II are examples that readily spring to mind. We are left to wonder why we cannot see with foresight what we see so clearly with hindsight – that “[l]oyalty is a matter of the heart and mind[,] not race, creed or color.” 

Recycling failed, constitutionally-dubious policies is not a solution to terrorism, nor is singling out a largely law-abiding minority community for even more invasive government surveillance than it already endures.  Police are already empowered to investigate criminal activity, and to patrol any neighborhood they like. But the power to select entire neighborhoods or communities for intense police surveillance based solely on the ethnicity or religion is a power the police don’t need and shouldn’t have. 

For its part, the NYPD now seems to agree

Third Circuit Reinstates Muslim Discrimination Suit against the NYPD

Yesterday, in a case called Hassan v. The City of New York, the Third Circuit Court of Appeals reinstated a lawsuit accusing New York City of violating the 1st and 14th Amendment rights of Muslim-Americans in New Jersey under a sprawling and ineffective NYPD surveillance dragnet.

The ruling overturns a decision by the United States District Court for the District of New Jersey dismissing the suit for lack of standing and for failing to state a claim.

In layman’s terms: the district court, without a trial or the presentation of evidence, ruled that the plaintiffs weren’t harmed unjustifiably, that they hadn’t alleged sufficient wrongdoing by the police, and that they had no right to sue.  The Third Circuit ruling rejects those determinations and the case will now move forward at the district court.

An Associated Press investigation uncovered the NYPD program in 2011 and detailed the immense breadth of the NYPD’s surveillance efforts against the Muslim community in several states.  Police officers and informants infiltrated dozens of mosques. Police installed surveillance cameras so that Muslim-owned businesses, places of worship, and residences in New Jersey could be surveilled remotely. The NYPD even sent undercover officers to infiltrate Muslim student organizations at out-of-state universities such as Yale and the University of Pennsylvania, including one field trip to go whitewater rafting.  Those agents recorded the names of the students, how often they prayed, and what they talked about.  The NYPD is alleged to have “generated reports on every mosque within 100 miles of New York City.”

Despite the cost and the seemingly boundless geographic and jurisdictional scope of the spying program, there is little evidence of success.  In fact, the now-defunct “Demographics Unit,” a central component of the program, generated no convictions or, according to one agent deposition, even any tangible leads in more than a decade of operation.

Kim Davis Also Raised an Establishment Clause Issue

Several Cato scholars, such as Walter Olson and Ilya Shapiro, have commented on the religious liberty and rule-of-law aspects of the Kim Davis case. In addition to their arguments, the Davis case is perhaps the clearest in modern times for a state establishment of religion.

Free Exercise is only half of the constitutional package of First Amendment religious protections. There is also the Establishment Clause, preventing the state or its agents from establishing a religion. It is a blanket anti-theocracy clause that is understood to be applicable to the states by the Fourteenth Amendment. As James Madison said on the House floor in 1789, the Establishment Clause seeks to stop a particular religion or sect from “establish[ing] a religion to which they would compel others to conform” or “enforc[ing] the legal observation of [a particular faith] by law.”

The key, under-explored factor in this case is that Kim Davis claimed “[the Christian] God’s authority” in denying same-sex couples the right to marry. By claiming “God’s authority” as the basis for denying the license—rather than any man-made law—Davis effectively established her religion in the Rowan County Clerk’s office and imposed on the religious liberty of those who hold other (or no) faiths.

People who do not subscribe to Davis’s particular brand of Christianity lose substantive rights guaranteed by the Constitution. That includes the right to civil marriage. Moreover, Davis’s establishment directly impinged on the right to freely practice any faith that accepts same-sex marriage, such as the United Church for Christ.

The right against establishment is just as important a protection for religious freedom as the Free Exercise Clause. Imagine if the Roman Empire had an anti-establishment rule. Christians pre-Constantine would have been able to expand Christianity without the threat of gruesome martyrdom. The right to be free from state-imposed religion is thus an important buttress to the Free Exercise Clause; without it, the state would always have a compelling interest in promoting its preferred religious uniformity at the expense of free exercise. That is a particularly undesirable result for a religiously diverse nation.

Regardless of what one thinks of the decision in Obergefell v. Hodges, same-sex couples have the constitutional right to civil marriage. Absent a constitutional amendment it is incumbent upon government officials to obey Obergefell. If that ruling conflicts with state officials’ consciences, their state duty not to establish their religion and impose it on others through state offices still trumps (when it comes to their official capacity—Ilya Shapiro wrote about the distinction between official and civil disobedience here).

The United States is a government of laws, not gods and men. Davis can quit, do her job, or recuse herself and let her office issue licenses without her participation, but she cannot claim God’s law as public authority to use her office to impinge on others’ rights and expect to be protected under the First Amendment. That is precisely the harm to liberty that the Establishment Clause was designed to prevent.

Poll: 51% Say Business Owners Should Serve Same-Sex Couples, but 59% Say Wedding Businesses Should Be Allowed to Decline

A recent AP/GfK poll finds a slim majority (51%) of Americans say businesses with religious objections should be required to serve same-sex couples. Forty-six percent (46%) say these business owners should be allowed to refuse service. However, for business owners specifically offering wedding-related services, Americans say these particular businesses “should be allowed to refuse service” by a margin of 59% to 39%. 

These results correspond with the nuanced argument Cato scholar Roger Pilon recently made in the Wall Street Journal. Pilon explains that businesses open to the public ought to serve everyone; however, business owners with religious objections (who are not a monopoly) should not be forced to participate in the creative act of planning and participating in the wedding of a same-sex couple. Referring to two couples who recently were heavily fined for declining to provide services for same-sex weddings, he writes:

“Because they represent their businesses as open to the public, the Kleins and Giffords shouldn’t be able to deny entrance and normal service to gay customers… But it is a step further—and an important one—to force religious business owners to participate in a same-sex wedding, to force them to engage in the creative act of planning the event, baking a special-order cake for it, photographing it, and so on.”

Americans seem inclined to support this nuanced view that businesses should serve all customers regardless of sexual orientation, religion, race, gender, income, national origin, etc.—but that wedding-related businesses requiring owners’ direct participation in the wedding should not be forced to provide service against the owners’ religious beliefs.

Employers Aren’t Mind-Readers and Shouldn’t Be Forced to Pry Into Employees’ Religious Beliefs

The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws against employment discrimination. Along with enforcing these laws—most notably, Title VII of the Civil Rights Act, which outlaws discrimination on the basis of race, color, religion, sex, or national origin—the EEOC tells employers how not to discriminate. For example, the EEOC’s Best Practices for Eradicating Religious Discrimination in the Workplace instructs that an employer should “avoid assumptions or stereotypes about what constitutes a religious belief” and that managers “should be trained not to engage in stereotyping based on religious dress and grooming practices.” 

It’s passing strange, then, that the government is now arguing before the Supreme Court not only that employers can do these things, but that they must, or face liability under Title VII, in the context of reasonable accommodations that companies have to make for religious practice. Discerning when such accommodations are necessary can be difficult because people practice religion differently—and often in their own personal, non-obvious way. 

Title VII has thus traditionally been understood to leave it to the employee to determine when a company policy conflicts with his or her religious practice and then to request an accommodation. This interpretation leaves employers free to pursue neutral policies up to the point that they have actual knowledge of such a conflict. 

In the last several years, however, the EEOC has apparently taken the position that employers must pry into their employees’ religious practices whenever they have an inkling of suspicion that an accommodation may be needed. Abercrombie & Fitch is one company that has found out just how impossible a situation this puts employers into. When Abercrombie decided not to hire Samantha Elauf as a sales associate based on her violation of the company’s “Look Policy”—a branding guide that, among other things, prohibits the wearing of clothing generally not sold by the store, like Elauf’s black headscarf—the company found itself on the wrong end of a government lawsuit. 

A federal district court ruled for the EEOC even though Elauf never informed them that she would need a religious accommodation.  The U.S. Court of Appeals for the Tenth Circuit reversed, holding that an employer must actually know about a religious practice before it can be held liable for discriminating on that basis. The Supreme Court took the case at the EEOC’s request and Cato has now filed a brief in support of Abercrombie. 

We argue that employers must have actual knowledge of the potential need for a religious accommodation before they can be held liable for violating Title VII because the EEOC hasn’t offered any coherent alternative and because employers already know how to use this tried-and-true actual-knowledge standard. In addition, the burden of identifying the need for accommodations has to be on the employee because, after all, it’s their religion, and thus they are in a significantly better position to identify conflicts than employers—who aren’t mind-readers and shouldn’t have to rely on crude stereotypes or pry into employees’ personal lives. 

An opposite rule would create an awkward and uncomfortable scenario all-around. The EEOC’s position is short-sighted; if the agency somehow prevails, it will have done what federal agencies do best: turn minimal burdens for some people into heavy burdens for everyone.

The Supreme Court will hear argument in EEOC v. Abercrombie & Fitch Stores, Inc. on February 25.

Pro-Marriage-Equality, Pro-Religious Liberty

Ryan T. Anderson, one of the most articulate advocates for the “traditional” view of marriage, points out at NRO that extending marriage to same-sex couples potentially endangers the religious liberty of those who disagree with such a policy. Particularly given a Supreme Court ruling stating that the only purpose and effect of differing treatment of same-sex relationships is to “degrade,” “demean,” “disparage,” and “injure” them, those who believe in “traditional” marriage–let alone those who think homosexuality is morally wrong–may rightly fear legal marginalization.

While I obviously disagree with Anderson’s views on gay marriage, his concerns about a slippery slope from equal protection to an enforced political correctness are not unfounded. It wouldn’t be the first time that overzealous “equality” advocates invaded individual liberty.  Senator Ted Cruz recently alluded to severe consequences from other countries’ thought police.  “Christian pastors who decline to perform gay marriages,” he warned, “who speak out and preach Biblical truths on marriage” may be prosecuted for hate speech. We don’t have to look far to see such trends; take Canada’s human rights commissions (please!).

And even in these United States, Anderson notes:

The New Mexico Human Rights Commission prosecuted a photographer for declining to photograph a same-sex “commitment ceremony.” Doctors in California were successfully sued for declining to perform an artificial insemination on a woman in a same-sex relationship. Owners of a bed-and-breakfast in Illinois who declined to rent their facility for a same-sex civil-union ceremony and reception were sued for violating the state nondiscrimination law.

This is absurd. Neither the federal nor state governments have any business punishing or rewarding Americans based on their beliefs, and private individuals should not be forced to behave in a way that violates their constitutional rights – or to have to choose between, say, their medical license and their conscience. Even if you hold, as I do, that states, if they’re involved in the marriage business, should be required to grant marriage licenses to same-sex couples, not only should clergymen not be required to perform same-sex marriages but private businesses shouldn’t be forced to be involved in them either.

Cato Files Brief in the First Federal Appeal Regarding the Contraception Mandate

In January, when the Department of Health and Human Services announced that qualifying health insurance plans under Obamacare would have to cover contraceptives and “morning after” pills, many religious institutions — most notably the Catholic Church — vehemently objected to being forced to fund health care that violates their religious beliefs.

More than 30 lawsuits challenging the contraceptive mandate have now been filed across the country by various individuals and religious institutions.  Two of those suits have now been consolidated for the first appellate argument on the issue: one brought by Wheaton College, a Christian liberal arts college in Wheaton, Illinois, and another brought by Belmont Abbey College, a North Carolina college based around a Benedictine abbey.

The legal point here is somewhat technical, but incredibly important for anyone who thinks his freedom of conscience may be violated by the government in the future (a category that includes essentially everyone).  As originally promulgated, the contraception mandate included a narrow exemption for religious institutions, one that wasn’t available to religiously affiliated colleges.  After the strong backlash against the mandate, HHS issued a “safe harbor statement,” saying that the government wouldn’t enforce the mandate for one year against certain non-profit organizations religiously opposed to covering contraception. 

In other words, the contraception mandate is still in place but just won’t be enforced — but only for a year and individuals are still free to sue to enforce it against their religiously opposed employers.  HHS also issued an Advance Notice of Proposed Rulemaking that announced the department’s consideration of more permanent methods of accommodating religious institutions.

Because of the safe harbor notice and the ANPRM, the district court dismissed the colleges’ lawsuits for lack of standing and ripeness — holding that the colleges aren’t currently suffering any injury and it was too early to challenge the proposed rule.  Now at the U.S. Court of Appeals for the D.C. Circuit – considered to be the second-most important federal court because of its role in reviewing executive branch actions – the colleges argue that they are in fact suffering a current injury and that the mere possibility of a future rule that may accommodate them in some way is too remote to terminate their case.

Last Friday, Cato joined the Center for Constitutional Jurisprudence and the American Civil Rights Union in filing an amicus brief supporting the colleges.  We argue that the trial court misapplied the constitutional test for standing by not focusing on the facts that existed at the outset of the case; subsequent government actions, such as the ANPRM, are irrelevant to the preliminary question of standing.  We also argue that the trial court’s ruling compromises the principle of separation of powers by giving the executive branch the power to strip a court of jurisdiction merely by issuing a safe harbor pronouncement and an ANPRM (which doesn’t legally bind an agency to act in any way).

It is thus entirely speculative whether the agency will alleviate the harms that the colleges are suffering.  Without intervention from the courts, therefore, the colleges are left in legal limbo while facing immediate and undeniable harms to their religious freedom:  On one hand, they can’t challenge the constitutionality of a final regulation. On the other, they can’t very well rely on a proposed regulatory amendment that may be offered at some unknown point in the future.

The trial court rulings in the Wheaton College and Belmont Abbey College cases are frightening examples of judicial abdication that permit the expansion of executive power far beyond its constitutional limits.  The D.C. Circuit will hear argument in these consolidated cases later this fall.