#rfra

So, buckle in for Sen’s Supreme Court hour. Let’s talk about

Apache Stronghold v. United States

In 2014, Resolution Copper (a conglomerate of two large mining interests in the United States) got their Congressional allies to smuggle a vile little provision into the Defense Authorization Act, the annual appropriations bill that funds the US Department of Defense. This provision, called the Land Exchange Act, was added as a last minute rider, meaning it was not given full argument and debate, and was attached to “must pass” legislation. This Act authorized the government to sell parcels of land in an area called Oak Flats in Arizona to Resolution Copper after publishing an Environmental Impact Study, as well as revoking a number of Presidential Orders that secured the land for the Apache people in the area.

Oak Flats, according to Apache Stronghold (a nonprofit group representing thousands of Apache nation members in the American Southwest)(forgive me, I don’t know the indigenous name of the tribe, if you do please let me know!), is a sacred site. It is a point of direct connection to the Creator and various powerful Spirits in the Apache tradition. Ceremonies take place at Oak Flats that cannot occur anywhere else on Earth, including a vitally important coming of age ceremony for Apache girls, whereby they connect with the spirits of Apache women from centuries, perhaps millennia, before them. Apache peoples have been gathering on Oak Flats for centuries.

But, about 20 years before this, a massive copper deposit was discovered beneath Oak Flats. It is potentially the largest copper deposit on Earth, and it is completely untapped. So, Resolution Copper was formed in an effort to begin mining it. And, in 2014, they got their wish, and Oak Flats was ordered released to their mining interests.

The Environmental Impact Study (EIS) was published in Summer of 2021 by the Department Agriculture. In the EIS, DoAG admits that the only “viable and profitable” method of mining this copper deposit was to create a 1.8 mile wide, 2000 foot deep pit, thus completely destroying the site. The government admits that other, less destructive options of mining exist, but “would not be profitable.”

Thus, the Apache people will lose a sacred site forever. There would be no coming back. The site would be destroyed, never to be rebuilt, restored, or revitalized.

So, Apache Stronghold sued.

In 1993, Congress passed the Religious Freedom Restoration Act (The Law, the Law) in response to courts finding that “neutral laws of general applicability” do not “substantially burden the free exercise of religion.” The Law requires that federal courts apply strict scrutiny analysis (something is assumed unconstitutional unless it is the “least restrictive means” and pursues “a compelling governmental interest”) to any federal action that burdens the exercise of religion. Apache Stronghold sued under the Law, claiming that the destruction of their sacred site by a mining conglomerate would “substantially burden” their religious exercise at the site, and that it is not the “least restrictive” means of achieving the aims, and that those aims are not “compelling governmental interests.”

Pretty straight forward, right? If the site is destroyed for a copper company, it can’t very well be used for sacred practice. And case law around this point says as much: removing the ability to practice is necessarily a substantial burden on that practice.

But, the Ninth Circuit Court of Appeals took a different tack: because this involves the “disposition of federal land,” they reasoned, they didn’t need to apply strict scrutiny and the body of jurisprudence involving Indigenous religious practice.

This case was heard in the District court, a panel in the Ninth Circuit, and finally en banc (in front of the entire bench of) the Ninth Circuit. The District denied a preliminary injunction (stop the transfer and destruction before it occurs), and the NinthCircuit panel split, but ultimately denied the petition. Their reasoning relied on a previous case in the Circuit that said that “substantial burdens” exist in two—and only two—instances: when people are required to choose between religious practice and a public service, and when people are coerced to act contrary to their religious beliefs. Now, this is an extremely limiting principle, and any reasonable person would read the complete destruction of a worship site as a “substantial burden” on the ability to worship there. And the en banc rehearing agreed, leading to the nonsense carve out we saw above.

Now, you might be saying,

“Sen, is that ‘Gorsuch, J., dissenting’ I see at the top of that image?” And yes, Neil Gorsuch wrote a dissent to the denial, in which Clarence Thomas joined. And yes, I think they did so because they’re both Free Exercise Clause absolutists, who would love nothing more than to see the Evangelical Christian Church ascend to control the length and breadth of this country, and I despise them both. But, I find the dissent interesting, and the denial of review (and the justices who denied it) more so.

The Court went 7-2 on denying review on this case. And I find it interesting that 4 of the Court’s conservative justices, all of whom have histories of increasing the footprint of religious organizations in public life, decided not to hear this case. Barrett, Alito, and Kavanaugh love expanding religious liberties, and Roberts was one of the deciding votes in Trinity Lutheran just a few years ago, which opened the door to the flurry of religious liberty cases we’ve seen storming the court. Sotomayor, Jackson, and Kagen also interest me, since they all sided with a bulk of the conservative court in Haaland v. Brackeen just a couple years ago (upholding a crucial element of the Indian Child Welfare Act, which keeps indigenous children in their communities when they are placed in the child welfare system, rather than shipping them off to white families).

Speaking of ICWA, let’s look at that decision in Haaland. A couple sued the Department of the Interior, Bureau of Indian Affairs over not being allowed to adopt a native girl from the child welfare system, instead prioritizing a family member with limited prior contact with the child but who was also native. That decision also went 7-2, and in that decision, Thomas and Gorsuch were on opposing sides. I think this gets to the difference in reasoning for wanting to hear this case, and why they agreed this case should be heard. In Haaland, Gorsuch’s concurring opinion centers primarily on the historical context of ICWA. He goes into detailed histories of the removal of indigenous peoples from their lands with the reservation system, from their cultures with residential schools, and from their families with “civilizing” white families. He details the Constitutional history of tribal sovereignty, and their relationships with the Federal and State governments. From my (very limited and meager) reading of his history, Gorsuch seems to be a strong(er) voice for tribal rights and sovereignty in the public legal sphere.

Turning to Thomas, we see the opposite. In Haaland, Thomas wished to overturn ICWA on State’s rights grounds, claiming that the enumerated powers of Congress in the Indian Commerce Clause cannot trump a State’s interest in looking out for a “child’s best interest.” Thomas is a State’s rights hawk, wishing to strike down any and all Federal law that inhibit state lawmakers from exercising power in their state without limit. He’s also permanently angry at the Warren court; the Supreme Court under Chief Justice Earl Warren, which produced the bulk of the more progressive jurisprudence in the court’s history (Brown v. Board of Education, Loving v. Virginia, One, Inc. v. Olesen) (funnily enough, Thomas was appointed when his predecessor, Thurgood Marshall, who served on the Warren court, retired).

Bottom line, to have both of these justices dissenting to a denial of review in this case is interesting. Thomas doesn’t write his own dissent, instead signing on to Gorsuch’s which focuses on the procedural and legal errors (in his view) that the Ninth Circuit made. I by no means think both of them share an ideological backing for wanting to hear this case, and if they had, they would probably have been on opposing sides (depending on reasoning if the majority opinion). I just find it interesting that they were the dissenting justices, and I thought everyone should know about this case.

I’ll end with this: in Gorsuch’s dissent, he highlights the outsized effect the decision not to hear this case will have.

Chris Geidner at Law Dork:

A federal judge in North Dakota issued an injunction on Monday blocking the Equal Employment Opportunity Commission from protecting any employees of any members of a nationwide Catholic association who are seeking time off or other accommodations under the Pregnant Workers Fairness Act for an abortion or in vitro fertilization treatment.

U.S. District Judge Daniel Traynor, a Trump appointee to the federal court in North Dakota, issued the religion-infused preliminary injunction to partially block enforcement of an EEOC rule implementing the 2022 law, along with related implementation of Title VII of the Civil Rights Act of 1964, as to the Catholic Benefits Association and its members — current or future — nationwide. The order covers more than 8,000 employers — including thousands of churches — across the country. The PWFA was passed in December 2022 and is supposed to protect covered workers from discrimination on the basis of “pregnancy, childbirth, or related medical conditions” by, in part, requiring employers to provide employees with reasonable accommodations. The EEOC proposed its implementing rule for the PWFA in August 2023, stating in part that abortion and fertility treatment, including IVF, are covered by the law’s protections. That rule, which does not relate to insurance coverage, went into effect in June.

“It is a precarious time for people of religious faith in America,” Traynor declared in the introduction to his 21-page opinion, criticizing “the repeated illegal and unconstitutional administrative actions against one of the founding principles of our country, the free exercise of religion.” Ultimately, Traynor concluded that happened again here, finding that the CBA is likely to succeed in its challenge to the rule and related Title VII enforcement guidance under the Religious Freedom Restoration Act. Any appeal would go to the U.S. Court of Appeals for the Eighth Circuit, which only has one Democratic appointee among its 11 judges.

[...] Traynor sided with the Catholic employees — rejecting the EEOC’s arguments — on virtually all points, from standing to the underlying religious freedom claims to the scope of his eventual injunction. (Notably, Traynor gave little credit to the EEOC’s argument that “the Final Rule and Guidance acknowledge that employers may have RFRA defenses and commit to a fact-sensitive, case-by-case analysis.” Instead, he found that such an approach is not likely sufficient because the “burden of investigation and possible litigation” would remain.) The injunction is extremely broad, barring the EEOC from enforcing accommodations required under the PWFA rule relating to “abortion or infertility treatments,” along with guidance relating to “abortion, fertility treatments, or gender transition“ under Title VII, including recent workplace harassment guidance.

(via Science, Not Legalized Discrimination, Should Drive Health Care Policy - Scientific American)

The crusade to impose certain religious views (aka “Christians”) on other peoples health care.  Antiscientific and discriminatory.  

You may be familiar with the Hobby Lobby ruling back in 2012 regarding the provision of birth control in its employee healthcare plans.  Specifically, their argument was that they had a religious objection to providing birth control medication as protected by the Religious Freedom Restoration Act. 

In response, The Satanic Temple has used this as a model for exempting patients seeking first term abortions from medically unnecessary procedures/actions. Including:

Mandatory counseling

Mandatory unnecessary sonograms

Mandatory presence at the burial of fetus

Being required to listen to the fetal heartbeat

Withholding medical information to patients

Waiting periods

The TST has written a ritual in which members (really, anyone, you just have to declare yourself a member) can elect to perform if they’re living in states with unnecessary abortion restrictions that will make them exempt. The ritual, which was announced 2PM EST August 5, 2020, has not yet been made available but it is designed not to interfere with medical staff during procedure (hence, no objection for this reason can be made).

Does this mean you will no longer get push back if you or someone you know attempts to use this in order to get around religiously motivated abortion restrictions? No. What this means is that the TST and ACLU will have test cases to present to the Supreme Court when the inevitable lawsuit happens. 

Similar to how TST leveraged Oklahoma state law, suing for their right to erect their own religious monument beside the christian ten commandments monument, Oklahoma decided to take their monument down.

The Department of Justice has either ignored or refused requests from media outlets like Buzzfeed, and at least one progressive advocacy organization, People for the American Way, to hand over the text of a speech Attorney General Jeff Sessions delivered in California behind closed doors to a group that appears on the Southern Poverty Law Center's list of active anti-gay hate groups.

The speech was given by Sessions to the Alliance Defending Freedom on Tuesday.  It was published Thursday afernoon by The Federalist, a right wing conservative website.  Buzzfeed's Dominic Holden was the first to report Sessions would be delivering the speech.  On Thursday Holden published his report on the speech, and via Twitter posted the Freedom of Information (FOIA) request he filed with the DOJ that was ignored.

"A person familiar with the situation tells me the Justice Dept DID provide Sessions's remarks to The Federalist," Holden reports.  It's unclear why the DOJ chose a small right wing website rather than share the text with all who requested it, or why it did not just post the text on its site as a matter of course.

Was Sessions or the DOJ concerned about its content?  They have good reason to be.

The DOJ's refusal to release the text of his remarks has highlighted the group's extremism, causing some on the right to lambast the hate group label.  But the SPLC is clear in the criteria they use to define hate groups, and among them is the repeated spreading of false statements in an effort to marginalize groups of people.  The SPLC has produced a 949 word profile of the attacks on LGBT people made by the ADF.

All that said, now we have the text of the Attorney General's speech, and much of it is of great concern.

Sessions talks about "the Western heritage of faith and reason," and says, "I propose that in America our understanding of religious freedom can only be understood within that heritage."

"Heritage" is a dog whistle term, especially concerning when people like Sessions – who has a long history of racist allegations tailing him – use it.

"So our freedom as citizens has always been inextricably linked with our religious freedom as a people," Sessions says.  But he does, surprisingly, add: "It has protected both the freedom to worship and the freedom not to believe as well."

Sessions then laments, "the cultural climate has become less hospitable to people of faith and to religious belief.  And in recent years, many Americans have felt that their freedom to practice their faith has been under attack.  This feeling is understandable.  Just last year, a Harvard Law professor publicly urged judges to 'take aggressively liberal positions…The culture wars are over.  They lost; we won…Taking a hard line is better than trying to accommodate the losers.'"

It's clear in his speech that Sessions has taken sides, and is ill-prepared to see all Americans equally.  His speech reveals an "us vs. them" approach, and as the nation's chief law enforcement officer, that is chilling.

And he doubles down, in a very partisan manner.

"I believe that this recent election was significantly impacted by this concern and that this motivated many voters.  President Trump made a promise that was heard.  In substance, he said he respected people of faith and he promised to protect them in the free exercise of their faith.  This promise was well received."

And then, it comes.

"In all of this litigation and debate, this Department of Justice will never allow this secular government of ours to demand that sincere religious beliefs be abandoned," Sessions says.  "We will not require American citizens to give intellectual assent to doctrines that are contrary to their religious beliefs.  And they must be allowed to exercise those beliefs as the First Amendment guarantees."

"We will defend freedom of conscience resolutely.  That is inalienable.  That is our heritage."

Heritage, again.

What does Sessions intend to do when a religious belief contradicts the law?

Well, here's the answer, a very partisan support of Donald Trump.

"Since he was elected, President Trump has been an unwavering defender of religious liberty.  He has promised that under a Trump Administration, 'the federal government will never, ever penalize any person for their protected religious beliefs.'  And he is fulfilling that promise.  First, President Trump appointed an outstanding Supreme Court justice with a track record of applying the law as written, Neil Gorsuch.  I have confidence that he will be faithful to the full meaning of the First Amendment and protect the rights of all Americans."

And then, what progressives, liberals, LGBT people, women, minorities, and many others should see as a warning.  The elevation of the Religious Freedom Restoration Act (RFRA).

"The president has also directed me to issue guidance on how to apply federal religious liberty protections.  The department is finalizing this guidance, and I will soon issue it."

The guidance will also help agencies follow the Religious Freedom Restoration Act.  Congress enacted RFRA so that, if the federal government imposes a burden on somebody’s religious practice, it had better have a compelling reason.  That is a demanding standard, and it’s the law of the land.  We will follow it just as faithfully as we follow every other federal law.  If we’re going to ensure that religious liberty is adequately protected and our country remains free, then we must ensure that RFRA is followed.

Under this administration, religious Americans will be treated neither as an afterthought nor as a problem to be managed.  The federal government will actively find ways to accommodate people of all faiths.  The protections enshrined in the Constitution and our laws protect all Americans, including when we work together, speak in the public square, and when we interact with our government.  We don’t waive our constitutional rights when we participate fully in public life and civic society.

This administration, and the upcoming guidance, will be animated by that same American view that has led us for 241 years: that every American has a right to believe, worship, and exercise their faith in the public square.  It has served this country well, and it has made us not only one of the tolerant countries in the world, it has also helped make us the freeist and most generous.  Thank you.