Confronting Liberal Islamophobia

Islamophobia, like other systems of bias, operates in both liberal and conservative spaces in American society, albeit in different ways. Islamophobia by conservatives is easily identifiable through hateful speech, hate crimes and support for state national security and immigration practices targeting Muslims.  The absence of such observable factors in liberal circles, however, does not make Islamophobia any less of a problem. To the contrary, the stealth of liberal Islamophobia arguably makes it more insidious.

Liberals proudly boast their support for multiculturalism and pluralism, which purportedly includes Muslims.  Their discourse follows the usual script of diversity, equity and inclusion: religious bigotry, racism, and anti-Muslim hate has no place in liberals’ institutions.  A closer examination of behavior, however, betray those proclaimed values.

Heightened scrutiny, tokenization, double standards, disparate application of policy, and implicit bias are the most common ways that liberals perpetuate Islamophobia—all the while claiming the higher ground in America’s culture wars.  But unspoken bias does not make it nonexistent.

Heightened scrutiny is a telltale sign of discrimination. A Muslims’ words and behavior, unlike that of their counterparts belonging to majority groups, are scrutinized for any clues of incompetence or disloyalty to the institution.  This microscopic treatment is a constant reminder to Muslims of their outsider status.

Muslims’ bodies are surveilled. When did they arrive and leave? What did they wear? Is their body language appropriate according to European Christian norms? Muslims’ words are dissected to test whether they deserve to remain in that space.  To whom did they speak? How often did they speak? What did they say? How did they say it?

Like state surveillance, heightened private scrutiny by neighbors, co-workers, and the public communicate in no uncertain terms to the Muslim that she is not equal to her White counterparts.

Intended to offset allegations of exclusion is the cottage industry of diversity, equity and inclusion (DEI) programs. Liberals’ inclusion of Muslims in DEI, however, is often matched by their tokenization. Muslims are welcome into the space on condition that they follow certain unspoken rules.

The first rule is to never address inequities within and perpetuated by the institution. Even though critical thinking is a liberal value, when racialized Muslims oppose policies or highlight disparate enforcement of those policies along racial or gender lines, they invite the reprimand of White liberal colleagues. Allegations of being divisive or difficult to work with are intended to silence and exclude Muslims from meaningful participation.

That is, a Muslim’s admission into the group is conditional on her support for the status quo. Anything less invites harassment or attempts to expel the Muslim from the liberals’ institutions. Meanwhile, when White colleagues debate important topics, they are perceived as responsibly fulfilling their duties as engaged citizens, parents, and colleagues.

Herein lies the double standards of liberal Islamophobia. While Whites can be absent or critical without scrutiny or threats of expulsion, Muslims must be present and perpetually agreeable. Mistakes by White colleagues are forgiven, even if it violates policy, because their ingroup membership grants them the privilege of receiving exceptions.  White liberals’ transgressions, thus, are interpreted as merely having a bad day, acting rashly, or misspeaking.  They face minimal, if any, consequences for behaving unprofessionally, unethically, or beyond the bounds of liberal values—especially with respect to minorities. But infractions by Muslims (and other minorities) are to be strictly enforced according to policy under the guise of the rule of law.

Never mind that inconsistent application of policies is antithetical to that same democratic principle. Regardless how accomplished or highly educated a Muslim, she does not have the privileges of White counterparts shielded from such indignities.

Together, these various mechanisms of liberal Islamophobia are grounded in implicit biases. Two generations of Americans have been exposed to twenty years of media, political discourse, and government practices that perpetuate stereotypes of Muslims as suspicious, terrorists, anti-American, and outsiders to the national identity. While conservatives explicitly perpetuate these Islamophobic stereotypes in their political ideologies, liberals unconsciously adopt them—which makes it more difficult to name, and in turn, to stop.

For this reason, it is crucial to point out the disparities in responses and treatment between Whites and Muslims’ word and actions.  Are liberals scrutinizing their White colleagues’ behavior and words as closely?  Are they silent when conservative Islamophobes defame their Muslim colleagues, though had the same attacks occurred against White colleagues’ liberals would be calling for civility and accountability.

Be present, perpetually agreeable, and visually diversify our group image. This expectation of minorities, including Muslims, is how liberals coopt diversity, equity and inclusion initiatives while simultaneously distinguishing themselves from political conservatives’ overt racial intolerance.  Neither is acceptable, but liberal Islamophobia should no longer get a pass in a rapidly diversifying America.

Sahar Aziz is a professor of law and Chancellor's Social Justice Scholar at Rutgers Law School, and a visiting professor at Princeton University. She is the author of The Racial Muslim: When Racism Quashes Religious Freedom.

The Role of State Attorneys General in Protecting Workers’ Rights

This is the sixth piece in an eight-month long blog series aimed at highlighting state attorneys general and their work. You can find additional resources, news, and information about the State Attorney General Project here.

State Attorneys General (AGs) are playing an increasingly visible and important role in relation to workers’ rights. Although historically AGs have not been deeply involved in labor matters, since 2015, AG action in this area has mushroomed: ten states have dedicated labor units of various kinds, several jurisdictions have passed legislation granting state AGs expanded jurisdiction allowing them to address labor violations, and many AGs have brought cases to enforce workers’ basic rights.

As the midterms approach, with AG elections occurring in 30 states plus the District of Columbia, it is important to understand not only what AGs do in general, but also what they are doing and can do to protect our country’s workers.

Role of AGs

AGs are the top legal officers in their states. Offices vary considerably in terms of resources and jurisdiction, but some common elements are generally present. They represent state agencies in court and in appeals. AGs play a public advocacy role, enforcing the law in various ways to protect the people of their states, most commonly in areas like consumer and civil rights. Many AG offices also have criminal jurisdiction: a few are the sole criminal prosecutors in their states, like Delaware and Rhode Island, while most have jurisdiction in specific circumstances, such as in particular types of cases or upon request by a district attorney. AGs also issue opinion letters that provide authoritative guidance. AGs have also increasingly become involved in federal matters, suing the federal government (or weighing in to support it) and submitting comments regarding proposed rules. AGs also often propose or support legislation in their states, working together with state legislators. Finally, AGs are highly visible leaders, and they exercise soft power in various ways: authoring op-eds, issuing reports, and more.

AG Involvement in Workers’ Rights Matters

State AGs have pursued employers for wage theft, misclassifying workers as independent contractors instead of as employees, endangering workers, and otherwise violating core workplace protections. AGs have filed civil lawsuits, brought criminal prosecutions, and achieved settlements that collectively recovered tens of millions of dollars for working people. They’ve freed many thousands of workers from non-compete and no-poach agreements, stopped companies from stealing workers’ tips, and achieved other forms of injunctive relief. And they’ve sued to stop federal rollbacks of workers’ rights. Here are some highlights of AG action in the year since Labor Day 2021 (this list is not exhaustive):

Fighting misclassification of workers as independent contractors instead of as employees: The Illinois AG on Friday sued a construction company for violations of the state’s minimum wage, prevailing wage, and employee classification laws. The DC AG filed several misclassification lawsuits, including a drywall construction contractor (ultimately settled for over $1 million), an electrical contractor, a company (Arise Virtual Solutions) that provides customer service to top corporations like Disney and Airbnb; and Jan-Pro, a national janitorial contractor.

Criminal prosecution: The Virginia AGs office obtained a guilty plea to felony embezzlement charges of a drywall contractor who misclassified workers constructing the state's General Assembly building as independent contractors instead of as employees. The Maryland AG obtained a guilty plea from a labor broker in the office's first criminal labor case; a contractor building a state university forced workers to kick back money to him each week. Washington's AG obtained guilty felony theft pleas from business owners who didn't pay wage to 24 employees of their house cleaning business.

Rhode Island's AG obtained a guilty plea in a case involving a janitorial contractor who failed to pay workers and evaded workers' compensation laws in order to win a public contract on community college campuses. Rhode Island's AG has been active in bringing criminal prosecutions related to wage theft; for example, an employer was charged with $93K of wage theft in a prevailing wages case involving construction on a school. The Rhode Island AG also let the effort to pass a bill strengthening penalties for wage theft testifying in a legislative hearing about the proposal.

In addition, AGs have brought prosecutions related to labor trafficking, including in California (related to operators of adult residential and child care companies) and Pennsylvania (minors working on a car detailing business).

Fighting anti-competitive practices in labor markets: New York’s AG obtained a settlement with two leading title insurance companies to stop using illegal no poach agreements; the settlement also recovered $1.25 million. The Illinois AG reached a settlement with Sodexo in which the company agreed to stop using no-hire clauses. The office also pursued staffing companies for wage suppression and anti-poaching policies.

Washington’s AG has engaged in a multi-year effort to stop illegal use of no-poach agreements by franchise chains; a recently-released independent academic study found a significant impact (advertised wages increased by more than 3.3%) specifically as a result of the AG’s initiative.

Paid sick leave: The New York AG’s office brought a case involving New York City home health aides who’d been denied paid sick leave and overtime pay; this joint case with the New York City Department of Consumer and Worker Protection recovered up to $18 million for 12,000 workers. In another case involving a Long Island laundry, the office recovered $400,000 for workers and getting several reinstated after unlawful terminations. The Massachusetts AG recovered $281,000 from an insulation company for paid sick leave and overtime violations. The DC AG’s office has received American Rescue Plan Act (ARPA) funding to support its paid sick leave enforcement.

 Workplace safety at Amazon warehouses: Several state AGs have pursued Amazon for unsafe working conditions. The New York AG’s office has been engaged in litigation against Amazon based on COVID workplace safety; the case has had some ups and downs and is ongoing. The California AG reached a stipulated judgment with Amazon; the AG had filed a complaint alleging that the company failed to notify warehouse workers and local health agencies of COVID-19 case numbers, as required by state law. And Washington’s AG is representing the state Department of Labor and Industries in a case related to ergonomic violations of the state workplace law, resulting in high injuries at Amazon warehouses.

Fighting discrimination and protecting immigrant workers: Many AG offices have focused on protecting immigrant workers. In a landmark case, the Washington AG Office obtained a unanimous federal jury verdict determining that GEO Group, a for-profit prison company, violated state minimum wage laws by paying immigrant detainees as little as $1/day. The company owes workers more than $23 million in back wages and other restitution. The  Illinois AG’s Office has pursued temp agencies for race discrimination, and New York’s AG reached a settlement $500K involving sexual harassment of workers in a New York City bar.

Pandemic related cases (other than workplace safety/paid sick leave): The New York AG recovered $2.7 million for hotel workers laid off without sufficient notice under the state’s Worker Adjustment and Retaining Act, and recovered over $2.9 million for hundreds of Marriott workers denied severance pay promised when they were laid off early in the pandemic. The D.C. AG’s office announced the filing of a lawsuit against a company operating supported living facilities for denying health care workers’ wages owed early in the pandemic.

Ensuring labor compliance in emerging industries: The Illinois AG’s office settled a joint employment case with multiple subcontractors who underpaid workers building the production line for Rivian, an electric vehicle company. And Washington’s AG, along with the state labor department, brought an overtime lawsuit against a cannabis retailer. DC’s AG recovered $2.54 million in a settlement with the platform grocery delivery company Instacart, based on its retention of tips customers intended for delivery workers; the case follows a settlement for $2.5 million with DoorDash for similar violations in 2020.

Federal advocacy: Multistate coalitions of state AGs submitted a comment supporting the proposed rescission of a labor department rule that created an overly broad expansion of a religious exemption from anti-discrimination laws for federal contractors, as well as a comment supporting a proposed rule to allow fiduciaries of private-sector employee retirement plans, such as 401(k) plans, to consider environmental, social, and governance (ESG) factors when making investment decisions. A coalition of states filed a brief before the National Labor Relations Board (NLRB) urging adoption of stronger protections against misclassification. Several states  filed comments in relation to two Occupational Safety and Health Administration (OSHA) proposed rules: in favor of a heat standard requiring employers to implement preventive measures to curb heat-related risks, and supporting a proposed rule to strengthen reporting of workplace injuries and illness.

Expansion of AG authority to include workers’ rights matters: Many AGs can and have used their common law powers or broad statutory authority to bring cases protecting workers’ rights. In recent years, legislation in some jurisdictions has additionally granted AGs explicit jurisdiction to address labor matters. In 2022, bills in Colorado and Delaware expanded state AG authority in this area. Similar laws facilitating AG involvement in labor matters have previously passed in Connecticut, the District of Columbia, Illinois, and Minnesota.

Issuing Labor Day and other reports: Several state AG offices, including California, D.C., Illinois, and Pennsylvania, have already issued their Annual Labor Day Reports for 2022; those reports provide a broad overview of their office’s recent labor work. In prior years, Massachusetts, New York, and Washington have also issued Annual Labor Day reports; reports may be forthcoming for 2022. The Massachusetts AG office also issued a report about its work in the construction industry, and Minnesota’s AG issued a report following a Task Force on the Economic Security of Women, offering a number of policy proposals.

Not all AG action has been in favor of workers’ rights: In addition to the pro-worker action described above, some AGs have sought to thwart positive developments that would improve people’s working conditions. For example, state AGs in a number of states, led by Arizona and Texas, have filed lawsuits to stop a federal rule increasing pay (to $15/hour) for employees of federal contractors. These cases and others that are similar demonstrate why voters concerned about workers’ rights should pay close attention to state AG races in November.

Why aren’t all AGs involved in enforcing workplace laws? This is a very good question! Enforcing workplace laws can be a part of every AG’s docket, just like enforcing consumer protection laws. While some AGs may be ideologically more oriented toward business, it’s helpful to honest companies when labor laws are enforced; otherwise, law-abiding employers struggle to compete with those who save money by violating the law. Other AGs may hesitate simply because their office hasn’t traditionally done this work, but the time is ripe to reconsider: workplace violations are rampant, and the explosion of forced arbitration blocks ever more workers from access to courts, making public enforcement urgent. Some AGs may worry about stepping on toes of state labor departments, but these agencies may come to welcome the backup; also, in many areas (civil rights, environmental protection, etc.), AGs’ enforcement role overlaps with state agency jurisdiction. Finally, AG offices, like all government agencies, face resource and sometimes jurisdictional constraints, but as outlined in the resources linked below, several AGs have found ways to overcome these, or to help workers even within existing limitations.

Conclusion

Some state AGs have begun to play an increasingly visible and important role in protecting workers’ rights. On Labor Day 2022, it is worth celebrating this growing trend, while also noting the tremendous untapped potential that remains for more AGs to take up these issues in a pro-worker and constructive manner.

Additional Resources:

For those who want more detailed information about the role of state AGs in protecting workers, various useful resources are available, including law review articles, think tank reports, and even a webinar:

Law review articles:

Think tank reports:

Terri Gerstein is the director of the State and Local Enforcement Project at the Harvard Labor and Worklife Program, and is a Senior Fellow at the Economic Policy Institute. Previously, she was the Labor Bureau Chief in the New York State Attorney General's Office. She is also an advisor to the ACS State AG Project.

 

The Demise of Roe v Wade Undermines Freedom of Religion

The Supreme Court opinion in Dobbs v Jackson Women’s Health Organization [1] was authored by Justice Alito and four other members of the Court who are all conservative Christians. At least four are conservative Catholics. (Chief Justice Roberts, who is also a conservative Catholic did not join the holding turning over all control on abortion law to the states.) All these judges placed their personal, conservative Christian beliefs above those of others. Each of them believes a “human person” (not just “human life” or a “future person”) comes into existence immediately upon conception and that abortion at any stage can be made a crime. Under the holding in Dobbs every state will now be free to criminalize any abortion; there need not be any initial time period where some or all abortions would be legal; there need not be any exception for the protection of the health or the life of the mother,[2] and there need not be any exceptions for rape or incest. Any abortion may now be considered murder.

In writing the state’s new abortion laws the controlling state legislative faction, which in a large number of states will be conservative Christians, can (and will) ignore the position of other religions, of more moderate Christians, and of non-believers. The Dobbs decision is joining the growing number of recent Supreme Court decisions where conservative Christian doctrine dominates and which moves the U.S. further away from being a non-sectarian nation having separation of church and state. After Dobbs, a Hindu, Muslim or Jew, who aides, performs, or has, an abortion in accordance with his or her religious or moral beliefs, may find themselves convicted of a crime, with no recourse. Let’s take a look at the view of abortion held by these three religions, and at national laws concerning abortion that are based on them, in comparison to the view of the Justices in Dobbs and the expected political results.

There is strong support for the sanctity of life in Hinduism but it does not maintain that a human person comes into existence upon conception. Some classical Hindu texts strictly forbid abortions except in very limited circumstances, and many Hindus believe the soul comes into existence upon conception, but a human person does not come into existence in Hinduism until the fetus becomes a sentient being that is aware of itself (called a “Jivan”). That requires a period, following conception, of at least three months.[3]

The Hindu faith, in addition, holds that ethical choices should be left to the individual even if the choice may violate a tenet of the faith. Abortion determinations are in this category. So, it’s not at all surprising that sixty-eight percent of American Hindus think abortion should be legal in all or most cases.[4] The laws of India protect a right to abortion through the twentieth week of pregnancy with the approval of a health care provider. Failed contraception is considered a valid reason for abortion. In the case of incest, rape, fetal abnormalities, and disability or the minority status of the woman, an additional four weeks are added to the initial twenty.  In addition, the Indian government’s health care system provides coverage for abortions.[5] There are about 2½ million Hindus in the U.S.

The Islamic world contains enormous division and diversity. Besides the division between Sunnis and Shiites (along with some smaller sects), the Sunnis, who constitute more than three-quarters of the total number of Muslims, follow four major jurisprudential schools. They all adhere of course to the Quran and the sunnah, the customs, practices, and words of the Prophet that are recorded in the hadith, but neither the Quran nor the sunnah discuss abortion. Only infanticide is discussed. In one sunnah a mother and her fetus were killed. Mohammed orders blood money compensation from the kin for each death; but the payment on behalf of the dead fetus came to only one-twentieth of the payment ordered for the dead women. The Prophet clearly did not consider the fetus to be equal to a full person.[6]

The Quran recognizes four stages of development from conception to childbirth. And each of the schools hold that “ensoulment” occurs through the act of an angel, with the embryo becoming a person at the end of the third stage, 120 days following conception.[7] Only one of the four schools (the Maliki school) prohibits abortions (aside from preservation of the life of the mother) starting with conception. The others permit abortions for specified reasons through the 120th day. Each of the Sunni schools allows abortion at any time to save the life of the mother. Shia Islam is substantially similar. It allows abortions up to the end of the fourth month if there are conditions concerning the mother or the fetus that would create extreme difficulties (which includes a threat to the life of the mother).[8]

The Muslim-majority nations vary greatly in their abortion laws though none allow it past the 120th day except to save the life of the mother. The most conservative Muslim countries allow abortion only to protect the life of the mother (18 out of 47 countries surveyed by Gilla Shapiro).[9] Iran, Saudi Arabia and seven other countries add preservation of the physical health of the mother as a basis for abortion during the 120-day period. And a third group of Islamic countries add preservation of the mental health of the women, incest and rape, and any impairment to the fetus (10 countries).   At the liberal end of the spectrum, ten countries allow abortion on request through the 120-day period.[10] This group consists almost entirely of countries in, or right next to, Europe (Albania, Turkey and Tunisia) or which were republics within the Soviet Union. Today about 3½ million Muslims live in the U.S.

About 7.6 million Jews live in the United States. According to Rabbi Hara Person, the well-regarded Chief Executive of Central Conference of American Rabbis, “For Jews and others who don't share the religious view that life begins at conception, a total abortion ban may not only prevent access to necessary medical care but also violate religious freedoms guaranteed by the First Amendment… the notion that the Supreme Court might dictate when life begins according to only one religious tradition is deeply problematic and concerning to us.”[11] (Eighty-three percent of Jews say abortion should be legal in most or all cases.[12]) The National Council of Jewish Women says that Judaism recognizes not just the life of the mother but also her personal well-being, her mental health, and other circumstances in which a women must have a right to abortion. To many Jews a fetus is part of the mother's body and becomes a “person” only when it takes its first breath, i.e., when it is born.[13] To many rabbis “access to abortion is a religious requirement for Jews.”[14]

A Jewish congregation in Florida filed a lawsuit shortly after the decision arguing the State’s new law authorized by Dobbs violates freedom of religion since “abortion [may be] required if necessary to protect the health, mental or physical well-being of the woman.”[15] In Israel, so many liberal exceptions are allowed under the country’s abortion law (e.g., being single, a birth defect in the fetus) an estimated 98% of requests are approved by the official three-person committees. The government even provides full medical coverage under its “health basket” program and for all women in the military. Going to private clinics is technically illegal, but there are no known prosecutions for doing so.[16]

The current Court is giving our law a clearly conservative Christian direction. This can be seen in a number of recent decisions.[17] Even in 2014 in the case of Burwell v. Hobby Lobby Stores Inc.[18], the U.S. Supreme Court held, 5-4, that a right to coverage for contraceptives under the Affordable Care Act must yield to a closely held corporation’s Christian views opposing such contraception assistance. This pro-Christian view overriding a provision that was aimed at protecting the health and family management interests of the corporation’s employees prevailed by one vote. If a health-related provision such as this can be abrogated to protect a corporation’s conservative Christian views, it is not surprising that the Dobbs majority would write an opinion that removes protection for millions of believers in other religions, or of no religion, many of whom will find themselves a minority in a red state where they were previously protected by Roe. According to New York Times Supreme Court reporter Adam Liptak, “Bolstering religious rights, and notably those of Christians, has been a signature project of the court led by Chief Justice John G. Roberts Jr.”[19]

Unleashed by the Supreme Court’s decision, abortion wars in state legislatures and state courts are now in full swing. The position held by the most powerful religious/political faction(s) in each state will control the writing of the state’s laws although the laws will be subject to review by the state’s highest court.[20] The Supreme Court majority is well aware that like-minded conservative Christian forces will prevail in many states, most likely a majority. The intensive gerrymandering of legislative districts and the passage of voter suppression laws that were previously put in place are now working to help Republican legislators move their new abortion laws toward the conservative end of the spectrum even though public opinion may well be opposed. One third of those in America who believe that human life begins at conception nevertheless think that the decision to have an abortion should be left up to the woman.[21] The heavily pro-choice vote in the abortion referendum held on August 2 in Kansas is evidence, at least in that conservative state, of a sharp contrast between public opinion and the position of the State legislature.[22] There will be more referendums: those in red states to overturn strict bans enacted by a heavily conservative legislature (as in Kansas) and those in blue states to cement a right to abortion into state law.

Public opinion favors allowing individual religious views and personal morality to govern as occurred under Roe.[23] Also the new highly restrictive state laws are going to go into effect notwithstanding the First Amendment’s protection against domination of government by one religion (the Establishment Clause) and the Fourteenth Amendment’s promise of equal protection of the laws.[24] A Republican Congress and President could together ban and criminalize all abortions in all states, red and blue. Separation of church and state no longer obtains.  Instead of barring the strongest politico-religious faction from controlling government it is now being invited in at both the federal and state level. The Dobbs decision joins other recent Court decisions promoting pro-conservative Christian outcomes. Together they constitute a large step in the U.S. away from being a non-denominational nation toward becoming a country under conservative Christian law.

Martin E.  Gold has been teaching law at Columbia since 1989. He is the former director of corporate law for the City of New York and is a retired partner at Sidley Austin LLP an international law firm.

End Notes

1. 597 U.S. ___ (June 24, 2022) https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf

2. A number of conditions can generate medical/legal complexities during pregnancy especially when abortion is not an option. For example, ectopic pregnancy occurs when a fertilized egg implants and grows outside the uterus. The fertilized egg can't survive, and the growing tissue may cause life-threatening bleeding for the mother. Other conditions include amniotic fluid embolism, hemorrhage, toxemia of pregnancy, or a ruptured uterus See e.g. Sheelah Kolhatkar, “Another Likely Effect of the Roe Reversal: Higher Health-Care Costs: Abortion bans could lead to more high-risk pregnancies.” The New Yorker, July 19, 2022. https://www.newyorker.com/business/currency/another-likely-effect-of-the-roe-reversal-higher-health-care-costs. More American women already die from childbirth complications every year than those of most other developed nations. The U.S. ranks only fifty-fifth out of all countries for maternal mortality. Ibid.

3. Dheepa Sundaram, “Hindu classical texts strictly forbid abortion. Here’s why many Hindus don’t,” Religion News Service, May 20, 2022, https://religionnews.com/2022/05/20/hindus-classical-texts-strictly-forbid-abortion-heres-why-many-hindus-dont/; "Hinduism and Abortion," BBC, August 25, 2009, https://www.bbc.co.uk/religion/religions/hinduism/hinduethics/abortion_1.shtml,; “Hindus In America Speak out on Abortion Issues,” Hinduism Today, September 7, 1985, https://www.hinduismtoday.com/magazine/september-1985/1985-09-hindus-in-america-speak-out-on-abortion-issues/.

4. D. Sundaram, ibid; Pew Research Center, Religious Landscape Study, “Views about abortion among Hindus,” 2014 Survey, https://www.pewresearch.org/religion/religious-landscape-study/religious-tradition/hindu/views-about-abortion/; "Hinduism and Abortion, supra note (Preference for male off-spring in India is an important motivator.)

5. D. Sundaram, ibid; Kiarash Aramesh, “Perspectives of Hinduism and Zoroastrianism on abortion: a comparative study between two pro-life ancient sisters,” Journal of Medical Ethics and History of Medicine, Vol. 12, August 5, 2019, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7166242/.

6. See M.H, Katz, “The problem of abortion in classical Sunni fiqh,” in J.E. Brockopp (ed), Islamic Ethics of Life: Abortion, War and Euthanasia, 2003, https://repository.library.georgetown.edu/handle/10822/1005108.

7. See Ṣaḥīḥ al-Bukhārī Hadiths, Vol. 4, Book 54, Number 430, https://www.iium.edu.my/deed/hadith/bukhari/054_sbt.html.

8. Gilla K Shapiro, “Abortion law in Muslim-majority countries: an overview of the Islamic discourse with policy implications,” Health Policy and Planning, Volume 29, Issue 4, July 2014, page 486-7, https://academic.oup.com/heapol/article/29/4/483/653159; Oren Asman, “Abortion in Islamic countries—legal and religious aspects,” Medicine and Law, Vol. 23, p. 78, Feb. 2004, https://www.researchgate.net/publication/8543535_Abortion_in_Islamic_countries_-_Legal_and_religious_aspects. (Liberalization is occurring in a number of Moslem-majority countries. In Tunisia liberalization has reflected a desire to slow population growth and to reduce the loss of life from illegal unsafe abortions. Ibid, p. 87 - 88.)

9. Shapiro, ibid, p 489–491.

10. Shapiro, ibid, p.489-490; Tunisia has a shorter, three-month limit for on-request abortions, Asman, supra note 8, p. 86.

11. “Jewish Communities React to the Possible Overturning of Roe v. Wade, Which Could Violate Their First Amendment Rights,” Insider, May 7, 2022, 6:56 PM, https://news.yahoo.com/jewish-communities-react-possible-overturning-152100436.html.

12. Pew Research Center, “Views about abortion among Jews,” 2014.
https://www.pewresearch.org/religion/religious-landscape-study/religious-tradition/jewish/views-about-abortion/ In contrast, eighty-six percent of white evangelical Protestants believe human life begins at conception and nearly three-quarters of them say abortion should be illegal in all or most cases. “White evangelicals are … far more likely than U.S. adults who identify with other religious groups to say that life begins at conception and that the fetus is thus a person with rights.” Pew Research Center, “America’s Abortion Quandary” March 7-13, 2022, https://www.pewresearch.org/religion/2022/05/06/americas-abortion-quandary/; see also note 21 infra.

13. Joe Fernandez, “Some Jewish groups blast the end of Roe as a violation of their religious beliefs,” NPR, June 26, 2022, https://www.npr.org/2022/06/26/1107722531/some-jewish-groups-blast-the-end-of-roe-as-a-violation-of-their-religious-belief.

14. Daniel Bogard and Tana Senn, “Supreme Court’s Roe ruling would trample the religious freedom of every Jewish American,” San Francisco Chronicle, May 6, 2022, updated: May 7, 2022. https://www.sfchronicle.com/opinion/openforum/article/Supreme-Court-s-Roe-ruling-would-trample-the-17155205.php.

15. Eliza Fawcett, “Synagogue Files Lawsuit, Claiming Ban on Abortion Violates Religious Freedom,” The New York Times, June 17, 2022, p. A12. https://www.nytimes.com/2022/06/16/us/florida-abortion-law-judaism.html. Jewish leaders “from across the ideological spectrum” told the Times that “Jewish teachings indicate that abortion is permissible -even required- if a mother’s life is in danger.” Ibid. The suit claims that “the act prohibits Jewish women from practicing their faith free of government intrusion and thus violates their privacy rights and religious freedom…The abortion ban "threatens" Jewish people and is a failure to maintain separation of church and state.” Vanessa Etienne, “Florida Synagogue Sues Over State's 15-Week Abortion Ban, Argues it 'Violates Religious Freedom',” People, June 15, 2022,  https://people.com/health/florida-synagogue-sues-over-states-15-week-abortion-ban-argues-it-violates-jewish-law/, See also Marci Hamilton, “The religious Freedom Restoration Act Formula comes full circle in Florida,” Justia Verdict, June 20, 2022. https://verdict.justia.com/2022/06/20/the-religious-freedom-restoration-act-formula-comes-full-circle-in-florida

16. Debra Kamin, “Israel’s abortion law now among world’s most liberal,” The Times of Israel, January 6, 2014. 

17. In Espinoza v. Montana Department of Revenue, 591 U.S. ___ (2020) https://www.supremecourt.gov/opinions/19pdf/18-1195_g314.pdf, the Court held on June 30, 2020 that a Montana program aiding non-sectarian private schools had to also aid private religious schools. In Fulton v. Philadelphia, 593 US __ (2021) https://www.supremecourt.gov/opinions/20pdf/19-123_g3bi.pdf, the Court ruled, on June 17, 2021, that a Catholic social service in Philadelphia, in violation of local rules, could refuse to work with same-sex couples who seek to take in a foster child.  The Court in Carson v. Makin, 596 U.S.__ (2022) https://www.supremecourt.gov/opinions/21pdf/20-1088_dbfi.pdf, ruled on June 21, 2022 that under the U.S. Constitution Maine could not have a tuition program, in rural areas where public schools did not exist, that is applicable to private schools without including private religious schools in the program.  And on June 27, 2022, just three days after the Dobbs decision, the Court in Kennedy v Bremerton School District, 597 U.S.___ (2022) https://www.supremecourt.gov/opinions/21pdf/21-418_i425.pdf, held that a high school football coach has the right under the First Amendment to perform a Christian prayer in the middle of the field, joined by his players, after each home game. Each of these cases were handed down at the end of the term (in June) and involved overruling or ignoring existing precedent.

18. 573 U.S. 682 (2014) https://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf.

19. Adam Liptak, “Justices Bolster Religious Rights in Prayer Ruling.” The New York Times, A1, June 28, 2022. https://www.nytimes.com/2022/06/27/us/politics/supreme-court-coach-prayers.html

20. See, e.g., Catholics for Choice at https://www.catholicsforchoice.org/issues/abortion/; 68% of Catholics polled in 2019 opposed overturning Roe v. Wade. Dalia Fahmy, Pew Research Center, “8 key findings about Catholics and abortion,” Oct. 20, 2020, https://www.pewresearch.org/fact-tank/2020/10/20/8-key-findings-about-catholics-and-abortion/.

21. Pew Research Center, “America’s Abortion Quandary,” supra note 12. Black protestants, a group generally considered “highly devout,” are much more supportive of abortion rights than their white counterparts. Only 38% say human life begins at conception and 66% believe abortion should be legal in “all or most cases”.  Among Catholics only 44% are “extremely” or “very” confident that human life begins at conception and 56% believe abortion should be legal in “all” or “most” cases. And even among white evangelicals 24% believe that abortion should be legal in “all or most cases.”  Pew Research Center, “America’s Abortion Quandary,” supra note 12, and “Survey: White evangelicals oppose abortion: all other religious groups support it,” Religious News Service, May 6, 2022, https://religionnews.com/2022/05/06/survey-white-evangelicals-oppose-abortion-other-religious-groups-support-it/.

22. The Catholic church contributed more than $3 million to the anti-abortion campaign in Kansas. “Kansas votes to protect abortion rights in state constitution,” The Guardian, August 3, 2022,  https://www.theguardian.com/us-news/2022/aug/03/kansas-abortion-vote-state-constitution.

23. Bans taking effect in a substantial number of states do not allow any exception for rape or incest. Some states also do not have any exception for the health of the mother. Jan Hoffman, “The New Abortion Bans: Few Exceptions for Rape, Incest or Health,” The New York Times, A12, June 10, 2022. https://www.nytimes.com/2022/06/09/health/abortion-bans-rape-incest.html; See also Julie Bosman “Americans Face New Abortion Landscape in Wake of Roe Decision,” The New York Times, June 25, 2022, https://www.nytimes.com/2022/06/25/us/abortion-decision-reaction.html.

24. “If Roe were overturned, it would abrogate the religious freedom and individual rights of several minority religious communities…. Th[eir] support is often rooted in their faith and the ethics of individual choice.” (Emphasis added), D. Sundaram, supra note 3. In a recent SCOTUS Poll 62.3 percent opposed overturning Roe and just 37.8 percent supported the action.  Savage, “The decision to overturn Roe clashes with the views of a majority of Americans,” The New York Times, June 25, 2022, A15, https://www.nytimes.com/2022/06/24/us/roe-wade-abortion-popularity.html

Five Cases in Eight Days that Have Changed What I Say to Law Students about the Supreme Court

I am a law professor and was acting as docent for out-of-town relatives at the National Constitution Center, in Philadelphia, on Thursday, June 24, 2022, when a squib about the Supreme Court decision in New York State Rifle & Pistol v. Bruen, invalidating New York’s gun permit law, appeared on my phone screen. It was exactly one month after the gun-slaughtering of children and teachers in Uvalde, Texas.

If the Supreme Court could vanquish states’ rights and overturn a 100-plus-year-old state law that required New Yorkers applying for gun permits to fill out a form and explain their “particularized need” to carry a firearm in public, I held out little hope for the remaining opinions that the high court would issue by the end of term at the end of June.

The next day, while showing the guests the site at Seventh and Market streets where future-president Thomas Jefferson crafted the Declaration of Independence, the Supreme Court’s reversal of Roe v. Wade was announced in Dobbs v. Jackson Women’s Health Organization. Moments before “Roe is dead” text messages started flooding my phone screen, I had been explaining that Jefferson’s words about our inalienable rights to life and liberty had defined our nation for 246 years. No longer. In a heartbeat, some 50 years of precedent was gone in the second Supreme Court case of the week that conflicted with much I had learned in law school.

By the time the guests had left the city that gave America the Declaration of Independence and the Constitution, the Supremes, on Sunday, June 26, issued a stay of a lower court order and granted cert in Ardoin v. Robinson, a case that will also negatively impact the lives of millions. Even though a lower federal court (in the deeply conservative south) had found that the congressional maps drawn by officeholders in Louisiana had violated the federal Voting Rights Act by diluting the voting power of Black voters, the Court stopped the implementation of the district court’s ruling. This will let the inequitably drawn maps stand for at least the 2022 election cycle (and until the Court resolves a case that arose earlier in the term, Merrill v. Milligan, that will be heard next term, on October 4t, 2022). For now, Black Louisianians, who comprise a third of the state’s population, will have only a sixth of the voting power in the state.

Three days later, on Wednesday, June 29, a troubling fourth opinion was issued by the Supreme Court. In Oklahoma v. Castro-Huerta, they rolled back Native American rights and sovereignty – rights the high court had affirmed just two years earlier. In a 5 to 4 decision, Justice Brett Kavanaugh wrote that Native Americans no longer had exclusive power over criminal prosecutions on federally-designated Indian reservations. Oklahoma, and all other states, could now prosecute non-Indian people for crimes committed on Indian land.

And then, on Thursday, June 30, Chief Justice John Roberts issued the final opinion of the term. It was the fifth opinion in just over a week, that undermined established law. In West Virginia v. Environmental Protection Agency, the court took a torch to the Environmental Protection Agency’s ability to do what the agency’s name makes clear - - to protect the environment.

Roberts, writing for a 6 to 3 majority, found in favor of the coal industry and held that Congress had not granted the EPA the authority to regulate power plant carbon emissions. Even though the EPA’s Obama-era power plant carbon reduction plan had been repealed by the Trump administration, and had not been “reactivated” by the current administration (which was coming up with a new plan), the Supreme Court weighed in anyway.

Roberts’ rationale? “There is little reason to think Congress assigned such decisions [as the regulation of greenhouse gases] to the Agency . . .” he wrote. The three Democratic-appointed justices dissented, with Justice Elena Kagan alluding to the absurdity of finding a plan not in use to be outside the scope of the EPA’s authority. She stated that the current administration had announced it was issuing new rules and that the majority’s decision “prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself — instead of Congress or the expert agency — the decision-maker on climate policy.”

These five cases over eight days revealed that established constitutional law principles – of precedent, preemption, sovereignty, justiciability, and deference to Congress – were in shreds.

The rapid and extreme changes to such principles caused some states’ bar examiners to send SOS-emails to July 2022 law graduates sitting for this month’s exam.

“Applicants preparing for the July 2022 Uniform Bar Examination may find it helpful to know that … examinees will not be required to be familiar with this term’s U.S. Supreme Court decisions.”

It’s not just the bar examiners. Professors like me are revising their lesson plans because so much has changed. Law students are impacted, too. I got an anguished message last week from a 2022 graduate who said “Professor, I spent three years in law school, and in the last few weeks mostly all of what I learned is no longer true.”

These five decisions over the last eight days of the term have changed how I view the high court and how I will talk about the Supreme Court of my time. What I said to my former student is what I will say to my students this fall:

The Supreme Court majority of 6 are originalist-textualists who believe that the words of the Constitution should be understood as they were in Philadelphia in 1787 when the Constitution was written by 55 white, propertied men. Alexander Hamilton, who pushed for the document’s ratification, said that the (federal) judges would be virtuous men who held their offices for their lifetimes. The word “virtue” in 1787 meant “for the common good.”

Our current majority of justices, (the 6 who overturned Roe) are literalists akin to religious fundamentalists who insist that since the Bible says the world was created in seven days – it must be.

Our high court jurists have forgotten the then-literal, “original” meaning of virtue – to care, to share and to do what is best for the people. What they have done will take decades to undo.

After my diatribe, I apologized to the student for the state of things that my generation and this Court has left for her. I urged her not to emulate the nihilist Supreme Court majority. “Unlike them,” I entreated, “I need you to use your legal training to further the common good - - not to undermine it.”

Julie A. Werner-Simon is a former federal prosecutor, former constitutional law fellow, and currently serves as a law professor (adjunct) at Drexel University’s Kline School of Law, University of Southern California Gould School of Law, and is also a legal analyst at Drexel’s LeBow School of Business.

The Role(s) of the State Attorney General in a Post-Dobbs Landscape

Rally for Reproductive Rights Chicago Illinois 5-23-19.

This is the fifth piece in an eight-month long blog series aimed at highlighting state attorneys general and their work. Upcoming blogs will feature writings from former and current state attorneys general and their staffs. You can find additional resources, news, and information about the State Attorney General Project here.

State Attorneys General have, for better or worse, played a central role as the law of reproductive rights has evolved. Most recently, in Dobbs v. Jackson Women’s Health Organization, the Mississippi attorney general chose to ask the Supreme Court to overrule Roe v. Wade, only after the Court had already granted certiorari on the narrower question of whether a 15-week abortion ban was constitutional. State attorneys general lined up as amici on both sides of the case, and after the Supreme Court decided the case and overruled Roe and Planned Parenthood v. Casey, virtually every state AG issued a statement after the decision.

As the post-Dobbs landscape takes shape, state attorneys general may have new opportunities and obligations. Already, 22 AGs who filed an amicus brief opposing the Mississippi law have reaffirmed their commitment to reproductive health care, including abortion care, and some have done more. This article identifies some of the options that state AGs may have if they want to protect reproductive freedom.

Informing the Public

  • Unsurprisingly, confusion has arisen over the precise legal status of abortions. In some states, confusion may arise from poorly-worded statutes or from questions about whether extremely old laws can take effect. But in many states, the law is clear. State AGs can reassure the public and abortion providers by publicizing that information. The information will inevitably vary by state. In Minnesota, for example, AG Keith Ellison posted a “know your rights” page on his website explaining that the Minnesota Constitution provides broader protections for abortion rights than under pre-Dobbs federal law. District of Columbia AG Karl Racine, on the other hand, explained the current robust protections in Washington, D.C., while noting that they could be changed.
  • State AGs can educate the public about “Crisis Pregnancy Centers” (CPCs) and the services they do and do not provide. CPCs are entities that attempt to persuade people to continue their pregnancies. As a recent alert issued by California Attorney General Rob Bonta explained, “CPCs often advertise a full range of reproductive healthcare services, but they do not provide abortion or abortion referral, and usually do not provide birth control or other forms of contraceptives.” Massachusetts AG Maura Healey’s alert on CPCs pointed out that because they are not medical providers, they have no legal obligation to keep their clients’ information confidential.
  • Other alerts can be directed at law enforcement officials, even if the state AG does not have formal power over them. AG Bonta has reminded sheriffs of their obligation under state law to ensure that incarcerated individuals have access to abortion care and reminded other district attorneys and police of state and federal laws surrounding access to abortion clinics. Illinois AG Kwame Raoul issued a letter to his law enforcement colleagues reminding them that abortion is legal in Illinois and that “Illinois law also does not authorize law enforcement to deny, restrict, interfere with, discriminate against, or otherwise punish an individual for obtaining an abortion.”
  • State AGs can also inform the public about how to protect their personal and health-related data if they use apps for things like period tracking, as Michigan AG Dana Nessel has done.

Enforcement and Prosecutorial Discretion

  • Some states have particularly strong data protection laws. AGs can remind medical app providers of their obligations to keep data private and, depending on the state, may be able to prosecute or sue such providers if they fail to do so.
  • Many AGs, along with local prosecutors have “commit[ted] to exercise [their] well-settled discretion and refrain from prosecuting those who seek, provide, or support abortions.” In Arizona (and perhaps elsewhere), the AG has supervisory powers over county attorneys and so may be able to “intervene to stop local prosecutors from filing criminal charges against doctors and patients who terminate a pregnancy.”
  • AGs may be able to use their regulatory and enforcement power over antitrust law to ensure that hospital systems mergers do not function to reduce the availability of abortion care.

Advice and Oversight

  • As AG Nessel of Michigan explained, in some states, AGs have “unique oversight authorities when it comes to licensing and regulation.” Even where they do not have official oversight, AGs can identify areas of potential legal ambiguity and give guidance in advance. Washington state’s AG Bob Ferguson, for example, asked Washington’s licensing and regulatory agencies not to penalize medical providers who are disciplined or prosecuted for providing abortions in other states.

Litigation

  • State AGs can bring or support appropriate litigation to establish state constitutional protections for reproductive rights, or they can challenge or decline to defend state laws outlawing abortion. And not all challenges will necessarily be constitutional. In Wisconsin, for example, Attorney General Joshua Kaul is arguing that the legislature repealed its 1849 anti-abortion law when it subsequently passed other abortion regulations. State AGs may need to ensure that local governments do not exceed their authority by passing anti-abortion measures.
  • State AGs can protect in-state providers and others who help visitors from other states obtain abortions. For example, there will undoubtedly be litigation involving anti-abortion states’ attempts to criminalize or otherwise punish their residents who travel to other states, or who help others travel, for legal abortions, and anti-abortion states may attempt to discipline health care professionals who provide those abortions. State AGs may need to become involved in litigation over such efforts as a way to protect their own state law and sovereignty.
  • And of course state AGs will be called upon to defend laws protecting abortion rights. They should also be prepared to pursue litigation against the federal government when laws and regulations impermissibly interfere with abortion. Such litigation could involve challenging a federal agency’s statutory authority, for example, or could be based on constitutional federalism principles.

Promote Legislation

  • State AGs can promote federal and state legislation and constitutional amendments that protect reproductive rights, including legislation to protect individuals from having data about their internet searches, physical locations, and health apps from being tracked, disclosed, or bought and sold. They can also advocate for regulatory changes to expand access to medication abortion, as they have previously done.
  • Draft, support and promote state-level legislation to protect providers and patients who provide and obtain legal abortions in the AGs’ states. Such legislation might include protecting providers from professional discipline through state licensing entities, protecting them from insurance cancellation or rate-hikes, and protecting patients and providers alike from discovery or extradition.

The new legal landscape is full of unknowns. Abortion rights are emerging as a significant issue in state attorney general races around the country, and the outcome of this year's AG elections will have a significant impact on the availability of abortion services and the development of the law. Anti-abortion activists, legislators, and other elected officials will be creative and persistent. Pro-choice AGs will have to be the same but should not act in isolation. Perhaps the most important things are to remain vigilant about anti-abortion efforts throughout the country and to build and maintain strong relationships not just with each other but also with other pro-choice officials, with academics, with providers, and with reproductive rights activists. Collaboration will be essential.

Carolyn Shapiro is a Professor of Law and Associate Dean for Academic Administration and Strategic Initiatives at Chicago-Kent College of Law. She is a former Solicitor General for the state of Illinois and a member of the ACS State Attorneys General Project’s Council of Advisors.

Kennedy v. Bremerton School District – A Sledgehammer to the Bedrock of Nonestablishment

[A version of this post will also appear at On the Docket, an online publication of the George Washington Law Review]

In Kennedy v. Bremerton School District, the Supreme Court effectively repudiated its Establishment Clause jurisprudence of the past 75 years, including the School Prayer Cases, and left nothing in its wake to prevent the government and its agents from using religion as an engine of policy. In the thin disguise of protecting an individual’s rights under the Free Exercise Clause and the Free Speech Clause, an opinion by Justice Gorsuch shrunk the Establishment Clause to a bar on undefined “historical practices and understandings.” Together with its decision last week in Carson v. Makin, decided with the same 6-3 split, the Court has jettisoned the entire post-World War II constitutional project of maintaining a secular state. The Chief Justice, and Justices Thomas, Kavanaugh, Alito, and Barrett, joined the opinion. Justice Sotomayor, joined by Justices Breyer and Kagan, dissented.

Kennedy involved a public high school football coach who insisted on praying immediately after games, on the fifty-yard line, in full sight of his players. This practice had grown out of Coach Kennedy’s earlier behavior, interdicted by his employer, of praying with and giving religious motivational speeches to his players. In the wake of requests from the School District, Kennedy had been defiant, reaching out for publicity and refusing to move his post-game prayers any further from the players than the fifty-yard line, immediately after the games.

The District had suspended Kennedy for defying its request that he stop this activity, and his lawsuit followed. No inter-circuit conflict existed, and a few years ago, it would have been unimaginable that the Supreme Court would grant certiorari in a case of this sort. But Kennedy and his lawyers had grossly distorted the narrative of the case, and made it appear -- but only to those willfully blind to the dispute’s history and full context -- that Kennedy’s religious expression was “private” and “personal.” So framed, the case apparently appeared irresistible to the six Justices intent on remaking all of Establishment Clause law.

Prior to the Court’s opinion, the District, like every school district in the United States, had ample authority to police religious communication between a coach or teacher and those under their charge. That authority rested firmly on the School Prayer Cases and their progeny. Of all the decisions in what was once a vibrant Establishment Clause canon, the School Prayer Cases had long seemed the most solid. Engel v. Vitale (1962), followed immediately by Abington Township v. Schempp (1963), stood for a firm principle – the State may not support or promote religious experience in its public schools. Engel involved daily recitations of the New York State Regents Prayer. Abington involved more traditional religious material, including the Lord’s Prayer and Bible verses. The School Prayer Cases were later extended to the context of silent prayer, Wallace v. Jaffree; Ten Commandments displays in school, Stone v. Graham; public school graduations, Lee v. Weisman; and public school sporting events, Santa Fe School District v. Doe. Nothing in modern Establishment Clause law seemed more deeply rooted than these decisions, which referenced but went far beyond a concern for coercion. Taken together, these cases wove a tapestry with a vivid display -- public schools should not be the author or instigator of the religious experience of students.

The relevant Establishment Clause norm has deep foundations. Education is compulsory, typically up to age 16, so worship practices in schools either mandate religious experience or impose a burden on students to identify themselves as “different” to escape it. Moreover, even without any concern for coercion, government composition of or selection of prayer puts the State in the position of pastor for its public school children. Such practices unify the power of the state with the authority of religious communities. It is for parents, not the State or its agents, to decide what religious experience their children should have. And unification of religious and secular authority ultimately invites a form of totalitarianism, against which church-state separation is a structural defense. (Witness the supportive role of the Russian Orthodox Church in the Russian invasion of Ukraine.)

Moreover, Congress and the Executive Branch of the U.S. government have internalized these principles in various statutory and regulatory recognitions of the rights of students – but not teachers or coaches -- to voluntarily engage in religious experience in schools. The federal Equal Access Act explicitly limits the role that teachers or staff may play in student-sponsored religious activity in public schools. The U.S Department of Education has for the past twenty-five years promulgated guidelines for voluntary religious expression in the public schools. The focus of these guidelines has always been on students, who are not agents of the state.

Nothing in the Court’s prior decisions, the relevant Act of Congress, or the pronouncements of the Clinton, Bush, Obama, Trump, and Biden Administrations, all of which were grounded in the most basic of non-establishment norms, shows any recognition for the interests of teachers, coaches, or staff in praying on the job. The reasons for this silence are screamingly obvious. School employees, on school premises and within school hours, are agents of the state. The school directs the performance of their duties. Students rightly perceive the communication of teachers as reflecting the values and concerns of the school. Unless the teacher’s expression is unmistakably separate from official duties, students will assume that such expression is attributable to the school. With the school’s imprimatur presumptively behind it, prayer from coaches or teachers will signal school sponsorship and implicitly coerce cooperation.

Justice Gorsuch’s opinion for the Court did not give the slightest attention to these foundational concerns and obvious problems. Rather than confronting the task of explaining why coaches or teachers should be free to pray in ways that would inevitably implicate the School District, the opinion focuses almost all of its energy on the Free Exercise and Free Speech rights of Coach Kennedy. It emphasizes his insistence that his utterances were personal and private, despite the fact they took place on the fifty-yard line, immediately after games, and that he welcomed the participation of players and other coaches, including those of the opposing team. And it de-emphasizes entirely the behavior that led the School District to monitor his behavior – a multi-year practice of prayer and religious motivational speeches in locker rooms before, during, and after games.

Rather than attempt to find a path of harmonizing the Coach’s personal rights with the School District’s constitutional responsibilities to students and their families, the Gorsuch opinion trained its fire on two strands of more general Establishment Clause doctrine. The first, and most general target, was the three-part test of Lemon v. Kurtzman, which focuses on religious purpose, religious effect, and entanglement of government and religion. The second target is the principle, an outgrowth of Lemon, that the government should not endorse religious beliefs in ways that operate to divide the community into insiders and outsiders – those who share the beliefs versus those who do not. That approach had led to mixed results over the past 40 years, but it had produced rulings that limited government displays of a Nativity Scene at Christmas and the Ten Commandments in a County courthouse. Most recently, in American Legion v. American Humanist Ass’n, the Court had finessed away the test of endorsement in upholding the government-sponsored display of a Latin Cross to honor those who died serving their country in World War I.

The Court in Kennedy did not claim to overrule these doctrines. Rather, it asserted that they had already been overruled by various prior decisions, including that involving the display of the Cross. However accurate that may be – and we have no doubt that these six Justices reject Lemon and the endorsement corollary – there remained the authority of the School Prayer Cases, which had been decided before Lemon or any endorsement case, and which stood on their own constitutional ground. By ignoring that inconvenient fact of constitutional development, the majority could in turn ignore the overarching teaching of the School Prayer Cases themselves. Kennedy’s lawyers had briefed and argued the case this way, with nary a mention of the School Prayer Cases, and the Court was all too happy to follow this lead.

Having swept aside the last sixty years of non-establishment law, what did the Court put in its place? Without elaboration or example, the opinion tells us that “the Establishment Clause must be interpreted by “‘reference to historical practices and understandings.’ [citations omitted] ‘[T]he line’ ” that courts and governments ‘must draw between the permissible and the impermissible’ has to ‘accor[d] with history and faithfully reflec[t] the understanding of the Founding Fathers.’” And what would those practices and understandings be? They would most certainly not include the teachings of the School Prayer Cases and their progeny, which time after time require the exclusion of worship from public school practices. On the contrary, if the relevant history and practice is that of 1791, when the Establishment Clause was ratified, or 1868, when the Fourteenth Amendment was added to the Constitution and imposed the Establishment Clause on the states, public schools can be thoroughly Christian in their orientation. Teachers can teach Bible lessons and lead students in prayer. Not a word in today’s majority opinion suggests that these inferences from historical practices and understandings are wrong.

The only nod to the interests of students and their families appears in the form of a response to the School District’s argument that Coach Kennedy’s prayer practices tended to coerce participation by players under his control and needing his approval. The Gorsuch opinion agrees that coercion of students would present a constitutional problem, but it asserts that no evidence supports the idea that any of the players felt coerced by Kennedy’s practices. Because it emphasizes the notion that Kennedy prayed privately, or separate and apart from the team gatherings – though only after being admonished to not pray with the team itself – the opinion dismisses the coercion concern as speculative. Even worse, it covers the coercion danger with the seemingly attractive notion that public schools are a place where everyone should learn to tolerate the religious expression of others as part of living in a pluralist society.

With respect to the relationships of students with other students, this is no doubt appropriate. That is why federal law recognizes the permissibility of voluntary student expression in schools. With respect to teachers and coaches with authority over students, however, the Kennedy opinion utterly ignores the teachings of Engel and Abington. Those decisions did not depend upon coercion, and they both presumed the likelihood of coercion without the necessity of proof by the claims of individuals. Nothing in the Kennedy decision recognizes or supports either approach.

In the hands of those in the Kennedy majority, coercion will take on a very different meaning. First, they are likely to follow the lead of Justice Scalia, dissenting in Lee v. Weisman, to the effect that coercion must involve punishment, not just feelings of pressure. Second, even under a looser, pressure-oriented version of coercion, individuals must come forward to assert it. As we know from the experience of those who complained about the prayer at football games in Santa Fe, many students and their families will fear retaliation if they publicly complain. This is why it is essential for school districts, like Bremerton, to intervene to protect their students against coercion. After today’s ruling, such efforts will invite litigation which school districts will find very difficult to win.

We predict, with sorrow, that the School Prayer Cases will collapse into no more than an offshoot of West Virginia Board of Education v. Barnette, which prohibits making compulsory the recitation of The Pledge of Allegiance. Schools may prescribe the Pledge, so long as they allow students to opt out. Prayer in schools may soon have the same character, requiring the provision of opt out rights to avoid compelled speech but no limitations on what schools may sponsor, or at the very least must tolerate out of respect for the rights of staff.

Even if the schools themselves do not sponsor or offer prayers, Kennedy will embolden teachers and coaches to do so, claiming that the prayers are personal or private. They might do so immediately before a class, or a team practice, or a game. They might step away from the group of students but remain within earshot and vision. They will not demand participation, but they will not discourage it, and their conduct will invite it. Many public school districts will welcome this behavior, as some parents request and commend it. In school districts, like Bremerton, that try to protect students against religious pressure, officials will be extremely wary of disciplining teachers and coaches for their in-school religious behaviors, and they will be highly unwilling to litigate against teachers and coaches who challenge them.

Although any teacher or coach is now free to pray on school premises and on school time, there is every reason to expect that Christian prayer will dominate the scene. Christians remain a majority in most schools, and Christians are far more likely to proselytize than members of other faiths in America. Prayer by Jews, Muslims, and others is more likely to roil the school’s fabric of cooperation and more likely to invite complaints by parents – not about prayer per se, but about the exposure of their children to prayer by “others.”

Justice Sotomayor’s dissent, joined by Justices Breyer and Kagan, valiantly pushes back against the Court’s evisceration of the entire canon of Establishment Clause norms, including but going far beyond the School Prayer Cases. The dissent appropriately challenges the majority’s narrative of Coach Kennedy’s conduct, and its characterization of his prayer as personal and private. For years, as the photographs in the dissenting opinion vividly illustrate, the Coach surrounded himself with players and others during his religiously based motivational speeches. His continually resistant retreat in the face of School District complaint was always conducted in a way to bring attention to his desire to pray as part of his job.

Moreover, as the dissent explains, the idea that the teachers and coaches have thick free exercise and free speech rights while on the job cannot possibly be squared with the Establishment Clause responsibilities of the school, or with the law on employer control of employee speech and conduct. Of course, teachers need not abandon any sign of their religious affiliation while on the job. The teacher who wears religious garb, or a teacher who says grace quietly in the lunchroom, does not threaten a school district’s interest in protecting a constitutionally appropriate atmosphere in the school, where the school remains religiously neutral and no one is pressured by authorities to accept a religious experience. Coach Kennedy was never inconspicuous or inner-directed, and never tried to be either.

Kennedy v. Bremerton School District is only the latest in what has now become a lengthy string of decisions that elevate the free exercise of religion over all competing interests, constitutional and otherwise. Carson v. Makin, decided just last week, similarly subordinated longstanding Establishment Clause norms to free exercise interests. Carson ignores historical practices and policies about government funding of religious schools because those practices disfavor the Court’s preferred outcome. Kennedy, in contrast, claims historical practices as a touchstone because the Justices know that those practices in public schools were religion friendly.

It does not take a Religion Clause scholar to see what has been going on at the Supreme Court over the last dozen years. Religion always wins. Sometimes religion is on the side of challengers, like those in Kennedy and Carson. Sometimes religion is on the side of government, as in cases like Town of Greece and American Humanist. And in almost every case the religion in the case is Christianity.

The Christian Nationalists among us, and among the Justices, must be thrilled. For those of us who know and fear the consequences of a state dominated by a single faith, the Court’s trajectory is chilling.