The Supreme Court's decision earlier this week to take up the issue of legislative prayer for the first time in 30 years leaves many questions about the future of the government prayer balance. Veteran reporter Lyle Deniston considers what this decision likely means in a new essay for Constitution Daily. The Appeals Court used the endorsement test - the view that government action is improper if it gives the appearance of an affiliation or endorsement with a religious perspective - to invalidate the prayer practice of Town of Greece. Is that the problem?

[B]y granting review of that specific decision, the justices may well have been telegraphing a desire to second-guess the endorsement theory when prayers are recited at the outset of a public meeting of a government agency, with adults making up most of the audience.
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It is worth noting that, when the Supreme Court itself last used the endorsement test to strike down prayer in a public arena (the football game case), it did so with six justices in the majority, but now only three of those remain: Justices Kennedy, Stephen Breyer, and Ruth Bader Ginsburg.

That trio might still form the nucleus of a new majority in favor of continued application of the endorsement test to monitor the line between favored and disfavored religious expression, but again it may not. And the replacement, in the meantime, of Justice O’Connor by Justice Samuel A. Alito Jr. has definitely brought a strong new voice for acceptance of religious expression in the public sphere.

It is far too early to speculate on what the court's specific concerns may be. But, moving substantially away from the endorsement test in favor of a test that requires coercion to implicate the Establishment Clause would be a significant weakening of church-state protections.

Yesterday, Secretary Kerry released the 2012 International Religious Freedom Report, a yearly update, mandated by Congress, on the status of religious freedom in every country in the world.

You can read the report, and browse countries by name at this State Department site. Watch Secretary Kerry and Ambassador Cook's remarks regarding the report here.

Here is a snippet from the Executive Summary:

For 2012, some common themes regarding the status of religious freedom around the world emerged. In general, these themes reveal negative trends, and often cut across national and regional boundaries. The individual reports provide the details, but these worrying trends--and the authoritarian governments that restrict their citizens’ ability to practice their religion--merit highlighting.

In orders today, the U.S. Supreme Court agreed to hear Town of Greece, NY v. Galloway. The decision means the high court will have its say on the hot-button church-state issue of legislative prayer for the first time in 30 years. The 2nd Circuit ruled in Town of Greece that the prayer practice of the city council violates the Constitution because it would give a reasonable person the impression that the town was "affiliated with Christianity." Today's decision means the Supreme Court will review the prayer policy of Town of Greece, and will likely impact the way local governments approach the issue of opening invocations.

Today's order certifies the question this way:

Whether the court of appeals erred in holding that a legislative prayer practice violates the Establishment Clause notwithstanding the absence of discrimination in the selection of prayer-givers or forbidden exploitation of the prayer opportunity.

Lots more on this case in the weeks and months to come as the Supreme Court prepares to hear arguments in the case. Regular readers of this blog know that the issue of legislative prayer is one of the most commonly disputed church-state topic in courts around the country. Stay tuned.

Arizona's Religious Freedom Restoration Act (RFRA) has been law for several years. The state's RFRA echoes the federal bill of the same name, requiring the government to demonstrate a compelling state interest to justify substantial burdens on religious exercise. Some lawmakers in Arizona have decided that high standard of scrutiny does not go far enough in protecting free exercise. SB 1178 as passed by the House alters the definitions to many important words and phrases in RFRA.

On to the Senate for consideration, the bill maintains the "substantial burden" requirement, despite efforts to remove it. Among other alterations, the changes would explicitly allow a lawsuit to be filed for "impending violation(s)" of RFRA. This potential expansion of claims doesn't sit well with some.

“I’m still concerned,” Representative Chad Campbell stated. “While you may not be encouraging litigation … I think you are opening the door for litigation that is probably unnecessary and burdensome, especially for small businesses.”

Some Republicans also opposed the legislation, opining that it may make the right to sue too broad.
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The Center for Arizona Policy, however, believes that the bill is vital in protecting people of faith from being forced to violate their convictions.

A "compelling government interest" requirement is the highest standard of judicial scrutiny there is. My question: What exactly is the problem with RFRA's current protection that calls for changes?

A florist who has been sued by Washington State's Attorney General over her refusal to provide services to a same-sex marriage has returned legal fire. Baronnelle Stutzman filed suit against the AG in response, alleging a violation of First Amendment rights.

The counter suit, filed by an anti-gay-marriage group called Alliance Defending Freedom, argues that Ferguson’s suit is attempting to force Barronelle Stutzman to act contrary to her religious convictions in violation of her freedoms under the state constitution.
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[Attorney General Bob] Ferguson repeated his rationale for initially filing the suit.

“...As an individual, she is free to hold religious beliefs but as a business owner, she may not violate our state’s laws against discrimination — no matter what she personally believes."

Defendants’ actions were designed to prevent disorder as the result of the exercise by Plaintiffs of their constitutional rights. Officials interfered with Plaintiffs’ speech only after making an effort to impose order and only when they perceived imminence of further violence and feared, due to the sheer size of the Festival and the number of attendees, that things would spiral out of control. The Court further finds that Defendants acted reasonably in trying to protect Plaintiffs from the crowd  before they intervened and that the “strong interest in ensuring the public safety and order” justified Defendants’ intervention.

As for the evangelists' claims that their free exercise rights were violated, the judge said the facts alleged were insufficient.

Plaintiffs have failed to provide any evidence supporting their contention that their free exercise rights were violated. In fact, the Court notes that other than to recite to myriad case law, Plaintiffs have failed to provide any details regarding their free exercise claim. The Court will not piece the argument together on behalf of counsel. Put differently, Plaintiffs may not merely announce a position and leave it to the Court to determine and rationalize the basis of this claim. Given the absence of legal argument coupled with the dearth of factual support, Defendants are entitled to summary judgment on Plaintiffs’ free exercise claim as a matter of law.

The 11th Circuit Court of Appeals yesterday overturned the dismissal of a Florida prisoner's lawsuit demanding kosher meal options. Florida's Department of Corrections announced a policy change that would allow for such meals, but the appeals panel ordered the hearing to proceed because nothing prevented the state from undoing that change.

Bruce Rich cites the Religious Land Use and Institutionalized Persons Act (RLUIPA) in his case against the state. RLUIPA prevents the state from substantially burdening an inmate's religious exercise unless there is a compelling government interest and the policy is narrowly tailored to meet that objective. Here, Florida claims that safety and cost concerns justify the prior refusal to provide kosher meal options, but the court found the safety concerns raised by the state to be "speculative," and the cost claims to be "unsupported by the record." Those are questions of fact, the panel ruled, for the trial court to determine.

You can read the 11th Circuit's decision here. A Miami Herald story is here.

A student in Oklahoma created a stir by urging his school to remove the Ten Commandments from the hallways. The Freedom From Religion Foundation threatened to file a lawsuit if they remain up. Unfortunately, many in the school are turning their anger toward the student who complained.

[T]he anonymous student who first contacted the FRFF took to Reddit to lament that his classmates have “started to figure out” it was he who sent the letter.

“All I have received [since then] were dirty looks and an argument with a rather large linebacker,” he wrote. “I am not upset at that because I expected that, what I am upset about is the fact that my little sister has been yelled at…

The School Board of Muldrow County met last night and has apparently decided to remove the plaques rather than risk a lawsuit with dim prospects of success.

In response to the IRS scandal over politically motivated tax audits, an Ohio Congressman is proposing a new law that would criminalize such behavior. Rep. Mike Turner’s (R-OH) legislation would make a felony any IRS discrimination on the basis of religious or political viewpoints or expressions.

IRS employees are already prohibited from targeting anyone for their political or religious beliefs, but the harshest penalty for it under current law is termination.
Turner’s bill would make the criminal penalty for such actions a $5,000 fine, up to five years in prison or both — the same penalties that a member of the president’s cabinet would face for these kinds of actions.

You can read the bill (via The Hill) here.