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Brief says Hobby Lobby puts RFRA on trial E-mail

From the Associated Baptist Press. Click here to read the article on their website.

Lawyers representing members of the Green family, who attend Council Road Baptist Church in Bethany, Okla., say forcing business owners to violate their deeply held religious beliefs or pay steep fines “is one of the most straightforward violations of the Religious Freedom Restoration Act this court is likely to see.”

RFRA, passed in 1993 with backing of a broad coalition including the Baptist Joint Committee for Religious Liberty, prohibits the government from “substantially” burdening a person’s religious exercise without a compelling governmental interest and by the least-restrictive means.

The Obama administration argues that Congress’ intent was to protect religious freedoms of individuals and not large corporations like Hobby Lobby, a nationwide chain with over 500 stores and more than 13,000 full-time employees with various religious beliefs.

Lawyers say the Greens, who organize their business with “express religious principles in mind” and policies including fair wages and closing Hobby Lobby stores on Sunday, exercise their faith through their business and nothing in the law says RFRA doesn’t apply to them.

They claim the White House undermines its own “compelling interest” claim by voluntarily exempting millions of Americans from rules of the Affordable Care Act if they have fewer than 50 employees or insurance plans that are grandfathered. HHS regulations also exempt certain types of religious employers that object to birth control on moral grounds.

They also dispute the government used the “least restrictive” means to achieve its interest of providing contraceptive coverage at no cost as part of preventive medical services provided by Obamacare.

“There are literally thousands of ways for the government to advance general interests in promoting public health and gender equality without implicating Respondents’ religious exercise,” the brief argues. “The conflict here arises only because the government has chosen the hardly obvious path of forcing Respondents to pay for religiously-objectionable drugs and devices.”

Kyle Duncan, general counsel for the Becket Fund for Religious Liberty and counsel for Hobby Lobby, said the latest brief “brings into even sharper focus the issue at the heart of this landmark case.”

“No one should be forced to give up their constitutionally protected civil rights just to go into business,” Duncan said. “The filing demonstrates in no uncertain terms that the government’s efforts to strip this family business of its religious rights represent a gross violation of the Religious Freedom Restoration Act and the First Amendment. We are hopeful that the Supreme Court will uphold the Tenth Circuit’s strong affirmation of the Greens’ rights to live out their deeply held beliefs in every aspect of their business.”

The latest Hobby Lobby brief comes on the heels of another filed Jan. 27 asking the high court to declare RFRA unconstitutional. Before that the Southern Baptist Ethics and Religious Liberty Commission joined other groups in a brief claiming a person’s religious exercise is protected whether or not that person owns a business.

Holly Hollman, general counsel of the Washington-based Baptist Joint Committee, wrote in the January 2014 Report from the Capital that the religious-liberty watchdog coalition representing Baptist groups including the Cooperative Baptist Fellowship isn’t weighing in on the specific legal question before the Supreme Court — whether RFRA applies only to individuals or also to corporations — but “continues to support the strong standard RFRA embodies.”

“As in other religious liberty cases to reach the Supreme Court, the BJC has an opportunity to weigh in on this case,” Hollman said. “For us, however, the particular religious claim is less important than the need to advocate for strong standards that protect religious liberty for all.”

“It matters much less which religious group or governmental entity we are aligned with in a case (indeed our history shows cooperation with groups across the theological and political spectrums) than that strong legal principles are maintained that protect us all,” she wrote.

Court strikes down clergy tax break E-mail

By Bob Allen/Associated Baptist Press

Click here to read this article online at

A federal judge said Nov. 23 that an IRS rule allowing clergy to avoid paying taxes on a part of their income designated as a housing allowance violates the constitutionally mandated separation of church and state.

Senior United States District Judge Barbara Crabb said a section of the tax code granting a benefit for “ministers of the gospel” not available to everyone else favors religion over non-religion, thus creating an establishment of religion prohibited by the First Amendment of the U.S. Constitution.

Crabb, appointed by President Jimmy Carter to the U.S. District Court for Western Wisconsin, ordered her ruling to take effect after the conclusion of any appeal. That means what GuideStone Financial Resources calls “the most important tax benefit available to ministers” is safe for now.

Leaders at GuideStone, the Southern Baptist Convention agency that offers retirement, insurance, investment management and other financial services to the Southern Baptist and wider evangelical Christian communities, plan to join others in a legal brief supporting the ministerial housing allowance when the case goes to appeal.

“Although this particular case does not have immediate impact, we know that pastors and others in ministry are facing challenges in our very own nation as never before,” GuideStone President O.S. Hawkins said in a statement.

“This decision, while not unanticipated, is sadly symptomatic of our culture today,” Hawkins said. “We count it a privilege to be an advocate for those who have given their lives to ministry, and we will not forsake our mission to undergird those who so faithfully serve our churches and ministries.”

GuideStone is currently suing the federal government, claiming the Affordable Care Act requirement that employers include birth control in employee insurance coverage violates the religious liberty of faith-based employers who believe emergency contraception is immoral.

Russell Moore, president of the SBC Ethics and Religious Liberty Commission, stood beside Hawkins in statements posted on the ERLC website.

“The clergy housing allowance isn’t a government establishment of religion, but just the reverse,” Moore said. “The allowance is neutral to all religions. Without it, clergy in small congregations of all sorts would be penalized and harmed.”

The so-called “parsonage allowance” dates back to 1921, when most churches maintained a parsonage near the church where the minister and his family lived rent-free. The IRS allowed ministers to exclude such in-kind compensation from federal taxes.

In 1954, Congress extended the law to cash allowances, as more and more ministers were moving out of parsonages to rent or purchase their own homes.

Over the years challenges have arisen, including a high-profile case in 1996 when Purpose Driven Life author and Southern Baptist mega church pastor Rick Warren deducted his entire $77,663 salary from Saddleback Church in Lake Forest, Calif., as housing allowance. The IRS ordered Warren to pay back taxes on a portion of his income.

Warren spent four years in court defending his housing deduction and won in 2000, when a court struck down the IRS argument capping the deduction at a “reasonable” amount and accepted Warren’s argument that the amount could be unlimited.

The IRS filed an appeal, but before it made it to a three-judge panel, Congress swiftly passed the 2002 Clergy Housing Allowance Clarification Act to protect the parish exemption but limit it to the fair market rental value of a home.

Several challenges to the benefit have failed due to the legal loophole of “standing.” Courts have ruled that non-ministers suing for a benefit available only to clergy cannot possibly prevail, and the only result would be to deny it to those who qualify.

The current case, filed in September 2011 by the Freedom From Religion Foundation, cleared that hurdle by designating a portion of employee compensation as a housing allowance. Two employees in turn sued the federal government, claiming that denying them a benefit available to ministers violates the Establishment Clause and gives the IRS and Treasury Department authority to make “sensitive, fact-intensive and subjective determinations” on religious matters such as whether an individual is “duly ordained.”

FFRF officials pointed out that when the law was enacted in 1954, America was in the throes of the Cold War and gripped by fear of Communism. The congressman who proposed the ministerial exemption, Illinois Democrat Peter Mack, who died in 1986, declared:

“Certainly, in these times when we are being threatened by a godless and anti-religious world movement we should correct this discrimination against certain ministers of the gospel who are carrying on such a courageous fight against this foe. Certainly this is not too much to do for these people who are caring for our spiritual welfare.”

The IRS has interpreted the exemption broadly, taking “ministers of the gospel” to mean not only those who preach from the New Testament, but also applying to thousands of ministers, priests, rabbis, imams and other faith leaders.

In her 43-page ruling, however, Judge Crabb said because a minister’s primary function “is to disseminate a religious message, a tax exemption provided only to ministers results in preferential treatment for religious messages over secular ones.”

“Some might view a rule against preferential treatment as exhibiting hostility toward religion, but equality should never be mistaken for hostility,” Crabb opined. “It is important to remember that the Establishment Clause protects the religious and nonreligious alike.”

Crabb said if members of Congress believe there are “important secular reasons” for granting the exemption, they can rewrite the law in a way that includes ministers as part of a larger group of beneficiaries, but as currently written the tax code “is unconstitutional.”

Freedom From Religion Foundation co-presidents Annie Laurie Gaylor and Dan Barker celebrated the ruling as a “major federal court victory.”

“This decision agrees with us that Congress may not reward ministers for fighting a ‘godless and anti-religious’ movement by letting them pay less income tax,” Gaylor and Barker said in a joint statement. “The rest of us should not pay more because clergy pay less.”

Brent Walker, executive director of the Baptist Joint Committee for Religious Liberty, disagreed.

“The ministerial housing allowance does not violate the First Amendment’s Establishment Clause,” Walker said in a statement. “Government violates the Establishment Clause when it gives religion a tangible benefit, such as grants to churches to finance their ministries or vouchers to parochial schools to pay for the teaching of religion. However, accommodations of religion, such as tax exemption and other exclusions, are generally permitted.”

Walker says the Free Exercise Clause of the First Amendment does not require such accommodation but the Establishment Clause does not forbid it. While Section 107 of the tax code applies specifically to clergy, he said, other sections give similar relief to other segments of society including members of the military, taxpayers living abroad and employees required to live on premises or who are on 24-hour call.

High Court debates 'legislative' prayer E-mail

From the Associated Baptist Press
Nov. 6, 2013

A divided U.S. Supreme Court debated Nov. 6 whether explicitly Christian prayers at a New York town board’s meetings violate the constitutionally mandated separation of church and state.

“What we heard this morning in the courtroom was a very vigorous exchange between the justices and the attorneys representing the two sides of this debate,” Rob Schenck of the conservative Christian ministry Faith and Action told reporters after Wednesday’s oral arguments in a much-watched case about the proper role of religion in the public square.

The high court is weighing a federal appeals court ruling that the town of Greece, N.Y., violated the Constitution with a policy of opening public meetings with prayers typically led by Christian ministers who offered them in Jesus’ name.

“It is our position that the government has no authority to instruct anyone on the form or content of prayers,” Schenck said. “For the government to tell a citizen he or she is to pray or not to pray is a flagrant violation of the First Amendment’s Free Exercise Clause.”

Schenck said overturning the town's policy would reduce the 200-year-old tradition of so-called legislative prayers to “innocuous and meaningless prayers to an unknown god.”

“I felt we heard the justices say very clearly that a government official is in no position to dictate how a prayer should be worded,” Schenck said. “None of us want the government telling us what a good prayer is and what a bad prayer is.”

DouglasLaycock, a University of Virginia law professor who argued the case on behalf of two women — one Jewish and the other an atheist — who claim the policy endorses Christianity and treats non-believers as second-class citizens, said the issue is fairness.

“I have defended many Christians over the years,” Laycock said. “I support their free exercise rights. I support their free speech rights. I do not support their right to use the power of government to impose their religion. That is what is going on here.”

“This case is about Christians aggressively imposing themselves on other citizens through the power of government,” he said. “That’s not right.”

The Baptist Joint Committee for Religious Liberty, a 77-year-old organization that represents 15 national and regional Baptist organizations including the Cooperative Baptist Fellowship, joined the United Church of Christ and Presbyterian Church (U.S.A.) in a friend-of-the-court brief arguing against imposing sectarian prayers at government meetings attended by citizens with minority faiths or no faith at all.

“We are religious organizations that stand for religious liberty, and in this case we stand with those who challenge a prayer practice that would make their political rights incumbent on their participation in a prayer with which they don’t agree,” BJC General Counsel Holly Hollman told reporters. “One’s political standing, one’s political right, should not depend on their adherence to a religion.”

Hollman clarified that the BJC’s position is not against prayer.

“In fact, all religious people should, and many do, pray for their elected officials, but it’s very important to understand it is not the role of government to lead in religious acts,” she said.

“When it does there will be practical problems,” Hollman said. “There will be theological problems.”

“There will be a myriad of things that the court today and counsel today talked about that can’t be resolved consistent with our strong tradition of religious liberty that protects all people, whether they believe or have no belief, without harming government or religious congregations.”

Arkansas Times blog: Let us pray, just not in government meetings E-mail

From the Arkansas Times blog

My thanks to the Baptist Joint Committee, a venerable and unyielding defender of the notion that church and state should be separate, for news of a pending U.S. Supreme Court argument that could have some impact in Arkansas, depending.

In a case from New York, the court will consider the constitutionality of opening local government meetings with a prayer. It is nearly a ubiquitous practice in Arkansas.

The Baptist Joint Committee says such an exercise "violates the First Amendment and demeans genuine faith."

Click here to read the rest of the post.

BJC's Hollman appears in CBS religion special E-mail

WASHINGTON — In a program broadcast through the CBS Television Network, Baptist Joint Committee General Counsel K. Hollyn Hollman speaks to the principles inherent in religious freedom and how the BJC works to protect those rights for all citizens. 
Click here to watch "Working for Religious Freedom" on the CBS website.

The First Amendment of the U.S. Constitution guarantees religious freedom to all citizens, but what does that look like in the world's most religiously diverse country? According to CBS:

This program explores this matter, particularly among our religious minorities. While the government remains neutral in matters of religion, some fringe groups create fear of “the other” through hate speech and even violence. To counter this, watchdog organizations and religious scholars work to protect this freedom for religious minorities.

Also featured in the program are Charles C. Haynes, a senior scholar with the Freedom Forum First Amendment Center, who speaks about the great threat to religious freedom present today; the Rev. Dr. C. Welton Gaddy, president of the Interfaith Alliance; and representatives of The Council on American-Islamic Relations (CAIR), who address “Islamophobia” and how anti-Muslim sentiment is affecting the civil and religious rights of the Muslim community.

In the special, Rajdeep Singh, director of law and policy for The Sikh Coalition, discusses the efforts to bring equal protection under the law to the Sikh Community and Dr. Chris Seiple, president of The Institute for Global Engagement (IGE), speaks about protecting religious freedom worldwide.

The executive producer is John P. Blessington, and Liz Kineke is the producer.  It is produced in cooperation with The National Council of Churches, a consortium of Roman Catholic organizations, The Islamic Society of North America, The Union of Reform Judaism, and the New York Board of Rabbis.

The program is a CBS Interfaith Special. It first aired in December of 2012.

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Louisiana Considers Holy Bible as State Book
Over the years writing this blog, I have seen several state and local governments memorialize the Ten Commandments through monuments, posters and other government displays. But a recent effort in Louisiana is a new (misguided) way to promote Scripture through government: legislators there are...
Religious Groups File Brief in Clergy Housing Exemption Appeal
Last year, a federal judge in Wisconsin ruled unconstitutional the tax exemption for clergy's housing costs. The parsonage allowance, Judge Barbara Crabb held, favors religion over non-religion in violation of the First Amendment.  Her surprising decision is being appealed to the 7t...