Daniel Mach

  • August 10, 2011
    Guest Post

    By Daniel Mach, Director, ACLU Program on Freedom of Religion and Belief


    Do religious institutions get a categorical free pass to discriminate against certain employees, regardless of the reason?  That issue lies at the heart of Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (EEOC), a case now before the U.S. Supreme Court.  In a friend-of-the-court brief filed yesterday by the ACLU, the ACLU of Michigan, and a coalition of religious liberty organizations, we argue that the answer must be a resounding "no."

    The case involves a lawsuit under the Americans with Disabilities Act (ADA) filed by the EEOC and Cheryl Perich, a school teacher of primarily nonreligious subjects like social studies, math, and science, against Hosanna-Tabor, a church-run Lutheran grade school.  Perich and the EEOC claim that the school summarily fired Perich after she took a leave of absence to treat her narcolepsy and in retaliation for asserting her ADA right to be free from such discrimination.

    In response, Hosanna-Tabor has argued that, under a "ministerial exception" to civil rights laws like the ADA and Title VII, the federal courts are constitutionally barred from even considering Perich's claims.  As interpreted by the lower courts, the ministerial exception generally grants a religious organization immunity from employment discrimination suits brought by "ministerial" employees -- that is, those employees primarily engaged in leading the faith and advancing its religious mission.  (Until now, the Supreme Court has never squarely addressed this issue.)  The court of appeals in the Hosanna-Tabor case, however, refused to apply the exemption to Perich's claims, and we agree that the case should go forward.

  • May 25, 2011

    State lawmakers pushing measures to prohibit courts from citing religious or international laws in controversies before them are fueling anti-Muslim fervor and revealing great disdain for the U.S. Constitution, write Daniel Mach and Jamil Dakwar in an article for Religion News Service (RNS).

    Mach, director of the ACLU’s program on Freedom of Religion and Belief, and Dakwar, director of the ACLU’s Human Rights Program, note that Oklahoma is not the only state that is trying to constrain courts’ ability to do their jobs. It may be one of the worst, however. The state’s constitutional amendment barring judges from citing Islamic, or Shariah, law and international law in their opinions has been temporarily block by a federal court, the two note.

    Mach and Dakwar write:

    The Oklahoma law, and others like it, contains prohibitions on “international law” and foreign law,” nonsensically conflating Shariah with foreign law. Other states, preferring not to wear their bigotry on their sleeves, don’t mention Shariah law per se, instead referring only to bans on “international law.” There intent, however, is unmistakable.

    In addition to the ugly implication that anything Islamic is inherently un-American, these efforts are rooted in baseless idea that U.S. Muslims wish to impose Islamic law on American courts. Proponents of these misguided measures, which have been introduced in a 25 states so far, clearly seek to ride the recent wave of anti-Muslim bias in this country.

    The two point out, however, that the U.S. Supreme Court has long held that “the domestic law of the United States recognizes law of nations.” They continue, “Legislation that forbids courts from considering international or foreign law raise serious questions about the separation of powers and the independence of courts and judges.”

    They conclude in their article, “If supporters of these measures genuinely wish to protect the Constitution, they would do well to trust the framers’ respect for international law and religious freedom – and not trade away our most precious values for political advantage.”

    Also see a recent report from the ACLU called, "Noting to Fear: Debunking the Mythical 'Sharia Threat' to Our Judicial System."

    Earlier this year, Northeastern University School of Law Professor Martha F. Davis and Loyola University New Orleans College of Law Assistant Professor Johanna Kalb examined the impact of such state efforts in an ACS Issue Brief. In a guest post for ACSblog, Davis observed, “Since citations of Shariah law and international law are hardy rampant in state courts – indeed, no Oklahoma court has ever relied on Shariah law – legislators pursuing these measures are either deliberately wasting valuable legislative time or they have some other purpose.”

    The ACS Issue Brief, “Oklahoma State Question 755 and an Analysis of Anti-International Law Initiatives,” is available here.

  • April 1, 2010
    Guest Post

    By Daniel Mach, Director, ACLU Program on Freedom of Religion and Belief, and Brigitte Amiri, Senior Staff Attorney, ACLU Reproductive Freedom Project

    Last week, a federal district court in Massachusetts ruled that an ACLU challenge to the government's use of taxpayer dollars to impose religious doctrine on victims of human trafficking may go forward. The decision is a victory for women's health and for the basic constitutional principle that federal dollars cannot be used to favor one religious perspective over all others.

    Since April 2006, the Department of Health and Human Services (HHS) has awarded the United States Conference of Catholic Bishops (USCCB) millions of dollars to make grants to organizations that provide direct services to trafficking victims. HHS did this knowing that USCCB prohibits, based on its religious beliefs, grantees from using any of the federal funds to provide or refer for contraceptive or abortion services. We brought a lawsuit on behalf of the members of the ACLU of Massachusetts who object to their tax dollars being used for religious purposes.

    Shortly after we sued, the government asked that the court dismiss the case. The government argued that taxpayers couldn't bring the lawsuit. They argued that only, for example, a trafficking victim could raise an objection.

  • October 9, 2009
    Guest Post

    By Daniel Mach, Director of Litigation, ACLU Program on Freedom of Religion and Belief. Mr. Mach is a co-counsel for the plaintiff in Salazar v. Buono.

    The Supreme Court heard argument last Wednesday in Salazar v. Buono, an Establishment Clause challenge to the federal government's display of a Latin cross in the Mojave National Preserve. The Court's questions focused largely on esoteric procedural doctrine, and while it's always risky to predict the outcome of a case based on oral argument, it seems unlikely the Court will rule on the broader constitutional issues in the case - namely, whether the plaintiff, a devout Catholic and former National Park Service employee, had standing to challenge the display of the cross; and whether, before it tried to transfer the cross to a private party, the government violated the First Amendment by displaying the sectarian symbol on federal land. (The lower courts decided those issues in favor of the plaintiff in the first round of the case, and the Bush Administration chose not to seek Supreme Court review at the time. As a result, the Court now appears disinclined to revisit those rulings.)

    But while the Supreme Court ultimately may pass on the loftier constitutional questions in Buono, Wednesday's argument did have some dramatic moments. In the most heated exchange of the morning, Justice Antonin Scalia peppered Peter Eliasberg, the ACLU attorney arguing for the plaintiff, with questions about the significance of the cross. Justice Scalia bristled at Eliasberg's suggestion that a World War I memorial featuring only a Christian cross sends a message of exclusion and religious favoritism, asking, "The cross doesn't honor non-Christians who fought in the war?" After Eliasberg responded that the cross "is the predominant symbol of Christianity," Justice Scalia pushed back, suggesting that there was no constitutional problem with the display because "the cross is the most common symbol of the resting place of the dead." Eliasberg resisted, explaining that "the cross is the most common symbol of the resting place of Christians." "I have been in Jewish cemeteries," continued Eliasberg, the son of a Jewish World War II Navy veteran. "There is never a cross on a tombstone of a Jew."