"What the ACLU calls 'discrimination' is not, under federal statutes as currently interpreted, unlawful," Franck told CNA. "That may change if the Supreme Court willfully misreads Title VII in two pending cases. But whatever happens in these cases, the fact that the ACLU and the Center for American Progress call the defense of personal and institutional conscience an 'abuse' of the religious freedom protected by the First Amendment says more about those organizations' abandonment of the traditions of American freedom than it does about the Trump administration."
"The Obama administration, sadly, 'normalized' all these attacks on religious freedom as administration policies. The Trump administration deserves credit for working to reverse such policies," Franck said.
Several topics in the ACLU briefing concern cases where Catholic institutions are involved.
The legal group opposed accommodations for employers with religious or moral objections to providing health care plans that cover contraception, including drugs that can cause abortion. The Little Sisters of the Poor, a Catholic religious congregation that provides care for the indigent elderly, are still tied up in court over the coverage mandate, which dates back to the middle of the Obama administration.
The briefing objected to the Trump administration's September 2019 statement of interest in a fired high school teacher's lawsuit filed against the Archdiocese of Indianapolis. The archdiocese had ruled that the teacher violated archdiocesan policy and Catholic teaching by contracting a same-sex civil marriage and said that the Catholic high school must terminate his job to maintain its Catholic affiliation.
The ACLU characterized the Trump administration's action as "arguing against employees who are fired for being gay."
Regarding a California legal case against a Sacramento-area Catholic hospital, the ACLU briefing claims its client, Evan Minton, was "turned away from a religious hospital for being transgender."
Minton, who presents as a transgender man, filed a lawsuit against the Dignity Health Catholic health system after a Catholic hospital refused to perform a planned elective hysterectomy. Health system officials arranged for Minton to be transferred to a hospital not affiliated with Catholicism. In September 2019, a California court allowed Minton's lawsuit to proceed, overturning a lower court's decision that the transfer of Milton was sufficient to avoid charges under state anti-discrimination law.
"Catholic hospitals do not perform sterilizing procedures such as hysterectomies for any patient regardless of their gender identity, unless there is a serious threat to the life or health of the patient," Dignity Health said in September 2019.
A 2016 letter to the Centers for Medicare & Medicaid Services signed by the general counsel for the United States Conference of Catholic Bishops, together with other groups, affirmed that the denial of surgery to someone seeking to change their gender would not be discriminatory. The letter rejected claims that it is discriminatory to decline to perform a mastectomy or a hysterectomy on a healthy woman who is "seeking to have the appearance of a man."
The ACLU's briefing criticized the creation of the Conscience and Religious Freedom Division at the Department of Health and Human Services, and objected that this new division is better funded than divisions related to information privacy and civil rights.
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The legal group objected to religious freedom protections for prospective foster and adoptive parents and for adoption agencies that receive federal funds. Several Catholic and other Christian adoption agencies have been forced to close by law or by denial of funds because they could not in good conscience place children with same-sex couples.
The ACLU also objected to the Trump administration's amicus brief in the Masterpiece Cakeshop Supreme Court case. The case concerned a Colorado bakery that declined to make a wedding cake for a same-sex ceremony on the grounds of religious objections. The briefing charged that the Trump administration argued "on behalf of a business' right to discriminate."
The briefing claimed the Trump administration required departments and agencies to implement "a distorted interpretation of religious liberty" that in the ACLU's view excessively favors religious claims. It criticized then-Attorney General Jeff Sessions' creation of a Religious Liberty Task Force to implement federal guidance, claiming this could "open the door to widespread discrimination in employment and government-funded services." The ACLU said the government has denied requests seeking to determine who is on the task force.
The May 2019 action of the Housing and Urban Development on gender identity also drew criticism from the ACLU. The group said this action this allows shelters "to exclude transgender and gender nonconforming people from appropriate shelters, including on the basis of the shelter's religious beliefs." The group said that self-identified transgender women should be able to have shelter that "conforms with their gender identity."
The Department of Labor's rules allowing religious associations to obtain federal contracts also drew criticism, as did a May 2018 executive order allowing faith-based and community organizations to receive federal funds in grants, contracts and program funding "to the fullest opportunity permitted by law."
The ACLU, the Center for American Progress, and the Movement Advancement Project are part of a multi-million dollar social and political change advocacy network aiming to limit religious freedom protections. Major funders of this network include the Ford Foundation, the Proteus Fund, and the Arcus Foundation. The Arcus Foundation, founded by billionaire Jon Stryker, also funds Christian groups which reject traditional Christian teaching on LGBT issues and abortion.