• Category Archives Government
  • The Trump Administration Will Let Adoption Agencies Turn Away Jews and Same-Sex Couples. Thank SCOTUS.

    In 2014, the Supreme Court dramatically expanded the Religious Freedom Restoration Act to let for-profit corporations deny contraceptive coverage to employees on the basis of their owners’ Christian beliefs. The 5–4 ruling in Burwell v. Hobby Lobbyprompted a now-famous dissent by Justice Ruth Bader Ginsburg, who condemned the court’s decision to use RFRA, a law originally intended to protect religious minorities, to legalize discrimination. “No tradition,” Ginsburg noted, “and no prior decision under RFRA, allows a religion-based exemption when the accommodation would be harmful to others.” Through Hobby Lobby, the court had transformed RFRA from a shield into a sword, creating a license to discriminate with no clear limitations.

    On Wednesday, the Trump administration proved Ginsburg right. In a decision of startling breadth, the Department of Health and Human Services declared that, under RFRA, a federally funded foster care agency in South Carolina has a right to discriminate against non-Christians, closing its doors to would-be parents of different faiths. As Ginsburg predicted, the administration’s interpretation of the law has no limiting principle: It all but announced that taxpayer-funded adoption and foster care agencies may now engage in flagrant discrimination without consequence, so long as they state a religious rationale for their actions. The grim future that Ginsburg foresaw in Hobby Lobby has arrived.

    The path of Wednesday’s decision began when Miracle Hill Ministries, a Christian foster care agency, refused to work with multiple applicants who did not share its beliefs. Miracle Hill turned away a Jewish woman eager to mentor children in foster care because she was not Christian. It also rejected same-sex couples because their sexual orientation did not align with its religious values. In response, the South Carolina Department of Social Services warned Miracle Hill that it could lose its license if it “intends to refuse to provide its services … to families who are not specifically Christians from a Protestant denomination.”The grim future that Justice Ruth Bader Ginsburg foresaw in Hobby Lobby has arrived.

    At that point, Republican Gov. Henry McMaster intervened, issuing an executive order granting adoption and foster care agencies the right to discriminate on the basis of religion. But a problem remained: A federal rule also prohibits HHS-funded agencies like Miracle Hill from engaging in discrimination on the basis of, among other things, religion and sexual orientation. So McMaster petitioned Steven Wagner, principal deputy assistant secretary at HHS’s Administration for Children and Families, to grant Miracle Hill an exemption. Wagner, a veteran of the George W. Bush administration’s “faith-based initiatives” program, promised McMaster’s staff that he was “pushing this hard” at HHS. And on Wednesday, Wagner granted the request in a four-page letter that amounts to an earthquake in federal civil rights law

    Wagner’s decision hinged on the turbocharged version of RFRA that the Supreme Court unleashed in Hobby Lobby. The law restricts the government’s ability to “substantially burden” a “person’s exercise of religion,” unless the government demonstrates that the burden is “the least restrictive means of furthering” a “compelling government interest.” Before Hobby Lobby, it is doubtful that a court would’ve recognized the “burden” imposed here—compelling a foster care agency to work with non-Christians—as “substantial.” After all, the federal rule merely directs Miracle Hill to serve all comers, not specifically perform services that violate the tenets of its faith. There is no clear encumbrance on “religious exercise,” only a requirement that the agency follow rules designed to place more children in loving homes without discriminating against anyone. Thus, RFRA should not apply at all.

    In Hobby Lobby, however, the Supreme Court inflated the definition of a “substantial burden” to encompass more or less any religious objection an individual or corporation raises. The majority insisted that Obamacare’s contraceptive mandate constituted a “substantial burden” because it obliged companies to help finance insurance plans that included contraception coverage. If that attenuated connection is overly burdensome under RFRA, then what isn’t? Without any real explanation—but with Hobby Lobby lingering in the background—Wagner found that the federal rule barring religious discrimination among HHS-funded foster care agencies constitutes a “substantial burden” that is “inconsistent with RFRA.” And he concluded that the rule is not the “least restrictive means of advancing a compelling government interest,” obliging him to issue the waiver.

    Wagner did not bother to evaluate the second half of that formula, whether nondiscrimination is a “compelling government interest.” Instead, he wrote that the federal rule is not the “least restrictive means” of promoting nondiscrimination because would-be parents rejected by Miracle Hill can go to a different agency. This logic is precisely what civil liberties advocates warned about after Hobby Lobby, when states like Indiana rushed to pass their own versions of RFRA. If religious businesses can claim a right to discriminate against customers because some other business might be willing to serve them, then America’s civil rights regime is fatally undermined. Yet Wagner deploys that exact logic to exempt Miracle Hill from the federal rule.

    Notably, Wagner provides another reason for granting Miracle Hill an exemption: He notes that the current HHS nondiscrimination policy, implemented during the Obama administration, goes beyond the requirements laid out in a federal statute. The fact that the HHS rule spells out stronger protections than the statute, Wagner writes, is “relevant” to his “determination” that the policy violates RFRA.

    This assertion is absurd. Wagner is correct that the HHS policy does not align perfectly with the federal statute it seeks to implement. That is unsurprising: Agencies routinely supplement the plain text of a law with reasonable interpretations of congressional intent; here, HHS simply sought to enforce Congress’ direction that children be placed in safe homes “in a timely manner” without arbitrary impediments. The agency’s broad interpretation does not permit Wagner to unilaterally overturn a rule that remains on the books, in full force. If the Trump administration would like to repeal this policy, it can do so through the rule-making process.

    Wednesday’s decision purports to apply only to Miracle Hill, but its reasoning extends to every other foster and adoption agency that asserts a religious mission. Texas Attorney General Ken Paxton has already requested an exemption from the federal rule for all the state’s agencies; Wagner will presumably grant it. Once he does, other conservative states may begin to demand exemptions from the HHS policy, opening the floodgates to widespread discrimination. Non-Christian families and same-sex couples will be turned away from state-subsidized child welfare agencies because of their identity or religious beliefs—discrimination that the Trump administration views as “religious liberty.” With Hobby Lobby, the Supreme Court turned RFRA into a dangerous new weapon. The Trump administration has now taken up its call to arms. 


  • Appeals court sides with Trump in transgender military case

    A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled that a lower-court judge was wrong to block the Pentagon from implementing its preferred policy.Author: JESSICA GRESKO , Associated PressPublished: 10:24 AM EST January 4, 2019Updated: 1:32 PM EST January 4, 2019

    WASHINGTON — A federal appeals court sided with the Trump administration Friday in a case about the Pentagon’s effort to restrict military service by transgender people, but the ruling won’t change who can serve or enlist at this point.

    A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled Friday that a lower court judge was wrong to block the Pentagon from implementing plans to restrict the service of transgender individuals. The unsigned ruling will not allow the Pentagon to implement its policy, however, because other judges have entered orders blocking the administration in similar cases.

    The administration has already asked the Supreme Court to weigh in. The high court could announce as early as this month if it will do so.

    The appeals court ruling said the military’s plan appears to rely on the “considered professional judgment” of “appropriate military officials.” It noted that the plan “appears to permit some transgender individuals to serve in the military.”

    Military policy until a few years ago had barred service by transgender individuals. That changed under President Barack Obama’s administration. The military announced in 2016 that transgender individuals already serving in the military would be allowed to serve openly. And the military set July 1, 2017, as the date when transgender individuals would be allowed to enlist.

    But President Donald Trump’s administration delayed the enlistment date, saying the issue needed further study. While that study was ongoing, the president tweeted in late July 2017 that the government would not allow “Transgender individuals to serve in any capacity in the U.S. Military.” He later directed the military to return to its policy before the Obama administration changes.

    Groups representing transgender individuals responded by suing the administration in the District of Columbia, Maryland, Washington state and California. The Trump administration lost early rounds in those cases, with courts issuing nationwide injunctions barring the administration from altering course. As a result, transgender individuals continue to serve openly and transgender individuals have been allowed to enlist in the military since Jan. 1, 2018.

    In March 2018, the Trump administration announced that after studying the issue it was revising its policy. The new policy generally bars transgender individuals from serving or enlisting unless they serve “in their biological sex” and “do not seek to undergo gender transition.” An exception allows the service of transgender service members who previously relied on the Obama-era rule. Groups representing transgender individuals have responded by arguing that the policy is essentially a ban on the service by transgender individuals.

    The lawsuit in the District of Columbia was filed by the National Center for Lesbian Rights and GLBTQ Legal Advocates & Defenders. NCLR Legal Director Shannon Minter called Friday’s decision “a devastating slap in the face to transgender service members.”

    Justice Department spokeswoman Kerri Kupec said the administration was “pleased with the decision.”

    Two of the three judges who ruled in the case were nominated by Republican presidents. Judge Thomas Griffith was nominated by George W. Bush and Judge Stephen Williams was nominated by Ronald Reagan. The third judge, Robert Wilkins, was nominated by President Barack Obama.

  • Trump’s Attorney General Pick William Barr Rejects Separation Of Church And State

    Theocracy alert: Trump’s Attorney General Pick William Barr is a Catholic conservative who rejects the separation of church and state, calls secularists “fanatics,” and blames secularism for “moral decline.”

    Earlier today Trump announced he would nominate William Barr to succeed Jeff Sessions as the nation’s attorney general. Barr previously served as attorney general under the late President George H.W. Bush.

    Barr is a states’ rights, religious conservative who believes women do not have a constitutional right to abortion, that Roe vs. Wade was wrongly decided, and that the legality of abortion should be determined by individual states.

    As attorney general under the late President George H.W. Bush, Barr was the architect of  America’s failed war on drugs and the current punitive criminal justice system. Barr was and is a big proponent of mass incarceration, despite the fact that research shows such a system fosters and promotes racial discrimination.

    In addition to the racism and misogyny one would expect from a conservative Catholic, Barr is also a bigot when it comes to non-religious people and others who respect the separation of church and state.

    In a 2011 address to “The Governor’s Conference on Juvenile Crime, Drugs and Gangs,” Barr condemned church/state separation in public schools:

    This moral lobotomy of public schools has been based on extremist notions of separation of church and state or on theories of moral relativism which reject the notion that there are standards of rights or wrong to which the community can demand adherence.

    In a 2017 article published by The Catholic Lawyer, Barr bemoaned the rise of secularism and offered an answer to the challenge of “representing Catholic institutions.” Discussing what Barr termed as “The Breakdown of Traditional Morality” the new attorney general nominee writes:

    We live in an increasingly militant, secular age…  As part of this philosophy, we see a growing hostility toward religion, particularly Catholicism. This form of bigotry has always been fashionable in the United States. There are, today, even greater efforts to marginalize or “ghettoize” orthodox religion…

    In the article Barr uses the example of equal rights for LGBT people as an indication of the breakdown of traditional morality, claiming that equal treatment for LGBT rights groups at Georgetown University was actually an attack on morality:

    The second way in which secularists use law as a weapon is to pass laws that affirmatively promote the moral relativist viewpoint. Such laws seek to ratify, or put on an equal plane, conduct that previously was considered immoral…Another example was the effort to apply District of Columbia law to compel Georgetown University to treat homosexual activist groups like any other student group. This kind of law dissolves any form of moral consensus in society. There can be no consensus based on moral views in the country, only enforced neutrality.

    Bottom line: William Barr is a dangerous religious conservative who rejects the separation of church and state, rejects equal rights for LGBT people, calls secularists “fanatics,” and blames secularism for the nation’s supposed “moral decline.”

    (H/T GLAAD)

    Trump’s Attorney General Pick William Barr Rejects Separation Of Church And State (Image via Screen Grab)
    Trump’s Attorney General Pick William Barr Rejects Separation Of Church And State (Image via Screen Grab)