Over the last four years, the Trump administration has embraced a distorted view of religious freedom that is rooted in bigotry against minority faiths and atheists and promotes an official preference for Christianity. They’ve targeted Muslims for no reason other than rank prejudice and favored certain types of Christians in law and policy, with no regard for the harms those actions have inflicted on everyone else. President-elect Biden and his administration must make restoring religious liberty for all and protecting the separation of church and state among their top priorities.
 
Here are just a few of the many actions that should be at the top of the Biden administration’s religious-freedom to-do list:

Rescind the Muslim ban and affirm that Muslims are a valued part of America’s pluralistic religious tapestry

Within days of taking office, President Trump signed an executive order banning foreign nationals from seven predominantly Muslim countries from visiting the United States and prohibiting refugees from entering the country. The order followed through on Trump’s bigoted promise as a candidate to enact “a total and complete shutdown of Muslims entering the United States.” Although the ban’s terms and criteria shifted slightly over time as the administration tried to defend it in court, the Supreme Court upheld the ban and that shameful policy remains in place today.

President-elect Biden must fulfill his campaign promise to rescind the Muslim ban. He must also rescind all related policies that resulted from these orders and abused the same legal authority. That won’t be enough, however, to redress the deep pain and exclusion that President Trump and his administration have inflicted on Muslim communities. The administration’s discriminatory policies and hateful rhetoric ushered in a renewed era of open hostility and violence toward Muslims (and many other marginalized communities). From day one of his presidency, President Biden must denounce all efforts to target or discriminate against Muslims and those of other minority faiths, and he must ensure that Muslims receive the same treatment and access to our immigration system as everyone else.

Stop allowing religious exemptions that harm others

The Trump administration has proposed or adopted numerous policies that treat religious freedom as a license to discriminate, no matter the harm to others. In October 2017, the Department of Justice issued religious-liberty guidance for all executive agencies, declaring that federal law “might require an exemption or accommodation for religious organizations from antidiscrimination law … even where Congress has not expressly exempted religious organizations.” In fact, the ultimate federal law — the U.S. Constitution — has long been understood and interpreted to prohibit religious exemptions that impose harm on others, in part because these exemptions violate the separation of church and state by elevating some faith beliefs over the rights of others.

But that hasn’t derailed the Trump administration’s effort to gut health care protections by enacting rules that allow any health care worker to
refuse care to patients based on the worker’s personal religious or moral objections, or permit any employers to deny their employees contraception coverage. Nor has it stopped the administration from giving special privileges to certain religious groups by, for example, proposing or implementing rules that allow federal contractors with the Department of Labor to discriminate against LGBTQ employees and others, or that make it easier for federally funded social services providers to turn away religious minorities and LGBTQ people, all based on the contractors’ and providers’ religious beliefs.

The Trump administration has even gone so far as to argue in the Supreme Court that religious groups contracting with the government to provide foster care services for children should be able to discriminate against prospective LGBTQ foster parents—potentially opening the door to all manner of discrimination by those performing core government services with taxpayer dollars. And it has argued that the First Amendment protects the ability of businesses to turn away same-sex couples based on the business owners’ religious beliefs. In other words, the Trump administration has advocated for a far-reaching constitutional right to discriminate.

The Biden administration must take every action necessary to reverse these positions, which misinterpret religious liberty to enable discrimination and undermine our basic rights to be treated equally. It must immediately rescind the DOJ’s 2017 religious freedom guidance and withdraw all proposed and non-final regulations permitting discrimination based on religious beliefs against LGBTQ people and people seeking reproductive care.

Recommit to the separation of religion and government

President Trump and his administration have demonstrated a sweeping, dangerous contempt for the separation of church and state. The right to believe what we want and to exercise our faith, so long as we’re not harming others, is unquestionably a fundamental component of religious freedom. But the First Amendment also guarantees, through the Establishment Clause, an equally vital aspect of religious liberty: the right to be free from governmental imposition and promotion of religion.

Our government represents us all and should remain neutral on matters of faith. Instead, President Trump continually singled out and discriminated against Muslims and privileged Christian beliefs over the rights of others. He encouraged public schools to teach biblical doctrine. His Secretary of State, Mike Pompeo, used government resources to deliver a sermon, called “How to be a Christian Leader,” to a religious organization. And Attorney General William Barr has repeatedly railed against atheists and others who do not share his Christian beliefs, accusing them of being immoral and plotting the “organized destruction” of religion. Under Barr’s leadership, and his predecessor, Jeff Sessions, the Justice Department also has repeatedly taken positions in court cases that undermine the separation of church and state. This includes arguing, for example, that a state should be required to fund religious education at private schools and that the government should be allowed to display a 40-foot Latin cross on public property.

The Biden administration must recommit the executive branch to defending the separation of religion and government. It must show robust support for fundamental Establishment Clause principles in court, in agency rules, regulations and guidance, and in rhetoric, too. What the President and top-ranking officials say about people who are non-religious or members of minority faiths matters. Promoting exclusionary and discriminatory messages and policies directly conflicts with the Constitution’s promise of religious equality and neutrality.

By prioritizing these actions, President Biden and his administration can begin to restore and advance true religious liberty for all.
 

In the last four years, the Trump administration has aggressively dismantled federal protections that ensure equal treatment against racial discrimination, amplified racist rhetoric, and explicitly targeted communities of color with harmful executive actions. The Biden-Harris administration must both reinstate federal rules that protect against racial discrimination, and take meanginful steps to further advance racial justice in the U.S.

Here are just a few of the many items that should top the Biden Administration’s to-do list: 

Support H.R. 40

The Biden-Harris administration must support H.R. 40, a bill that would set up a long overdue commission to examine the institution of slavery, its legacy, and make recommendations for reparations to Congress. 

During slavery, Black people were forced to labor for the enrichment of America. After slavery, the emancipated suffered violent repression and exploitation under Jim Crow laws and Black codes in the South and de facto segregation across the nation. Since then, the vile policies of enslavement, codified in American culture and the Constitution, shifted to take on new forms of injustice and drivers of oppression that are still woven across our institutions today — from education and healthcare to our criminal legal system. The U.S. government has continued to perpetuate and often profit from racially-exclusionary policies and practices that  disadvantage Black people in all aspects of society. This is evident in modern day voter suppression, policies that deny Black people fair housing opportunities, redlining practices that perpetuate segregation, legislation such as the Homestead Act, which actively denied economic justice opportunities to Black people, and mass incarceration. 

H.R. 40 is a critical first step toward addressing the fundamental injustice, cruelty, brutality, and inhumanity of the institution of slavery in the United States and its legacy. Reparations for slavery are necessary if we are to advance racial justice in this country.  The Biden administration must support H.R. 40.

End attacks on racial and gender equity trainings

The Biden-Harris administration must rescind President Trump’s executive order banning federal entities and contractors from providing employees with training on “divisive concepts” and “harmful ideologies” related to race and gender.

What Trump deems “harmful ideologies” are actually concepts diversity trainings use to educate individuals on the systemic barriers and discrimination people of color and other marginalized groups in this country still face today across our institutions — from our workplaces and schools to our criminal legal system. Our country needs to acknowledge its history of systemic racism and sexism and reckon with present day impacts of racial and gender discrimination. Halting all diversity training could set back progress in addressing these systemic issues, among others — including in the workplace. In order for us to move forward as a country to address racism and sexism, the Biden administration must do its part and rescind this executive order, “On Combating Race and Sex Stereotyping.”

Address disparities in school discipline

With the rise of law enforcement in schools, the proliferation of zero-tolerance policies, and misuse of suspensions and expulsions, our nation’s school discipline policies are pushing children out of school into the school to prison pipeline. Black and Brown students, students with disabilities, and other marginalized students are disparately impacted by these punitive approaches to school discipline. 

As part of a reinstatement of civil rights guidance, the Biden administration should reinstate federal guidance on nondiscriminatory school discipline and support school districts in pursuing alternatives to exclusionary and punitive school discipline practices that disproportionately harm students of color and students with disabilities. 

Protect diversity in our schools

The Biden administration must reinstate guidance on voluntary use of race in school admissions to achieve diversity and avoid racial isolation in elementary, secondary schools, and in postsecondary education, as outlined in  Fisher v. University of Texas at Austin.

The federal guidance to promote racial diversity and end the growing racial isolation in K-12 classrooms and in higher education provided a thoughtful and clear explanation of two Supreme Court cases governing the use of race in K-12 education and higher education, Parents Involved v. Seattle Schools and Grutter v. Bollinger, which recognized the importance of promoting diversity in learning environments and established parameters for doing so. The guidance documents acknowledged a problem that education experts as well as students and parents long recognized: Too many of our nation’s classrooms are racially isolated, and this isolation is only increasing among students.

The guidance also outlined the Supreme Court’s explicit recognition that promoting diversity and avoiding racial isolation in schools are not only compelling governmental interests but also among the nation’s highest priorities. The guidance demonstrated the various ways that efforts to create diverse student bodies in schools and universities can be done effectively, fairly, and in compliance with the existing law in order to improve the quality of education for all students.

The administration should also reinstate guidance on access to education for all children, regardless of immigration status. The Trump administration withdrew the federal guidance that provided school districts with important clarity on the requirement under federal law to provide equal access to education for all children, regardless of immigration status. The Supreme Court in Plyler v. Doe recognized that denying children a basic education is to “deny them the ability to live within the structure of our civic institutions” and to contribute to society. The guidance provided critical recognition of the rights of children and gave educators the practical information necessary to comply with federal law and support their students. The administration must reinstate this guidance to give all children the equal opportunity to access education — regardless of their immigration status.

Imagine waking up one day, unlocking your phone, and realizing that you could no longer send or receive messages through your favorite app. Or make or receive calls. Or scroll through your social media feed. Imagine that all of these functions were rolled into one essential app that you and your friends, family, and co-workers depended on, and that the U.S. government had decided to ban it.

That’s exactly what the Trump administration is attempting to do with WeChat, a communications app that millions of people in the United States depend on to connect with friends, family, and business contacts across the world.   

On Friday, we and the ACLU of Northern California asked the Ninth Circuit Court of Appeals to block the Trump administration’s autocratic effort to ban WeChat. Our friend-of-the-court brief, filed in support of a group of WeChat users who have challenged the ban, explains why the administration’s actions violate the First Amendment.

The First Amendment protects our freedom of speech. It applies here because WeChat users depend on the app for a wide variety of speech and expression. Nineteen million Americans, primarily Chinese Americans, rely on WeChat daily to call and message with friends, family, and colleagues. The app is no ordinary communications tool: It’s also a platform for social media, news, money transfers, and e-commerce. It hosts an enormous community — more than one billion users worldwide — that simply can’t be replicated. For many of WeChat’s users, the app is their primary or only source of communication with friends and family in China, where the government blocks popular messaging platforms like Facebook, WhatsApp, and Instagram.

In August 2020, the Trump administration issued an executive order declaring WeChat a threat to national security. As we explained at the time, WeChat, like many U.S.-owned social media and messaging apps, including Facebook and Instagram, does collect broad categories of user data. Concern about how this data is used and protected is warranted. In the case of WeChat, there is also some legitimate concern about whether user data is accessible by the Chinese government. But the Trump administration made no attempt to address this concern in a way that would minimize interference with WeChat users’ speech, as the First Amendment requires. Instead, the administration’s stated goal is to make it impossible to use WeChat in its entirety.

After the coalition of WeChat users challenged the ban in court, the district court found that there were substantial questions about the constitutionality of the ban, and the court issued a preliminary order that prevented it from going into effect. The government then appealed that decision to the Ninth Circuit.

Our brief in support of the WeChat users makes two key arguments about why the government’s ban violates the First Amendment.

First, the ban prohibits people from speaking or expressing themselves before they can even do so. It’s what the Supreme Court has called a “prior restraint” on expression — one of the most serious and least tolerable infringements on First Amendment rights. Prior restraints are a greater threat to our rights than laws that prohibit or criminalize certain speech after it’s uttered. That’s because they prevent speech from happening at all. Here, by banning WeChat, the government is preventing all of the communications that 19 million Americans are having each day on the app.

It is a dangerous thing for any government to decide what people can or can’t say before they even say it. Governments can use that power against people whose opinions it does not like and wants to suppress. Or it could use a power like this in discriminatory ways, based on bias — a serious concern here.

Given these dangers, courts require the government to meet an exceptionally high burden when it seeks to justify this type of restriction on speech. The government must be able to point to immediate, irreparable harm from the banned speech, and its restriction on the speech must be as narrow as possible to prevent that harm from occurring.

The government’s sweeping ban on WeChat plainly fails that test.

In court, the government argues that its ban doesn’t implicate the First Amendment at all, because its actions were technically directed toward WeChat’s infrastructure, not the First Amendment-protected speech of WeChat’s users. But the government has acknowledged that its prohibitions will make the app unusable. And its legal argument ignores Supreme Court precedent, which makes clear that even when the government restricts speech indirectly, those restrictions can be prior restraints.

Second, even if the ban isn’t viewed as a prior restraint, it’s plainly a “total ban” — another kind of government action that, under the First Amendment, demands close scrutiny by courts. Where the government bans a medium of expression that is “unique” and “important,” courts require the government to meet a very high bar to justify the ban: It cannot suppress more speech than necessary to address the harm. In practice, broad bans like this one never pass that test.

Here, the government has banned an undeniably unique and valuable platform for users to express themselves. As the district court found, “WeChat is irreplaceable for its users in the U.S., particularly in the Chinese-speaking and Chinese-American community.” Because the government’s actions against WeChat suppress more speech than necessary, they violate the First Amendment.

With inauguration on the horizon, there may be reason to hope that the Biden-Harris administration will withdraw the WeChat ban. President-elect Biden hasn’t yet taken a public position on it, but given the high First Amendment stakes, withdrawal should be a no-brainer. In the meantime, we’re pressing for the First Amendment rights of WeChat users in court.