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Ohio RFRA Bill Proposed E-mail
Written by Don Byrd   
Thursday, 05 December 2013

Ohio state representatives have proposed a version of the Religious Freedom Restoration Act. If adopted, it would make Ohio the 18th state with such a law. Generally, RFRA statutes (which have some small but significant variations from state to state) allow government to substantially burden a person's religion only if a compelling reason requires it. The idea is to protect citizens from the neutral laws of the state that happen to impact their faith.

As the BJC has argued in the past in opposition to legislation similar to Ohio's proposal, RFRA works, but it works best when only substantial burdens on faith receive such protections. According to this report from the Columbus Dispatch, the Ohio version would require exemption from laws that place any burden on faith - substantial or not. 

Then again, the Dispatch report starts this way:

A portrait of Jesus and prayer could return to public schools if two state representatives persuade fellow lawmakers to pass the Ohio Religious Freedom Restoration Act.

RFRA laws do a lot of things, but they do not protect school-sponsored prayer or Christian displays by school officials, as that lede suggests.

Religion Provisions in Proposed Egyptian Constitution Analyzed E-mail
Written by Don Byrd   
Wednesday, 04 December 2013

Via Religion Clause, a refendum on a proposed constitution in Egypt is expected to be held in January. An early draft being reviewed by the interim President has been analyzed by the blog Egypt Source. Howard Friedman's Religion Clause has provided some edited excerpts from that analysis. Here's just a small piece from Religion Clause:

Article 64 sets forth freedom of belief as absolute. The Article, however, states that the law will set forth the right to establish places of worship and the right to practice religious rites for only “the divine religions.” Thus, while the state technically recognizes an absolute freedom of religion and freedom of thought in Article 65, it will only allow the establishment of houses of worship and the litigation of personal status issues based on either an Islamic, Christian, or Jewish identity. A transitional Article 235 also states that a law will be established to facilitate the building and renovation of churches.

Finally, as per Article 74, no political parties are to be established based on religious principles; a similar provision was included in the 1971 Constitution but was removed in texts since, allowing for organizations like the Freedom and Justice Party to be established....

Read the entire Egypt Source analysis here.

Don't Give In, Give! E-mail
Written by Don Byrd   
Tuesday, 03 December 2013
Today is Giving Tuesday (#GivingTuesday), a day reserved for giving back to those organizations and causes you truly care about. I am using the blog space today to tell my story - why I support the Baptist Joint Committee for Religious Liberty and I encourage everyone to share your own story with friends and family through Facebook, Twitter, or wherever else you socialize.

For those of you who don’t know, I became aware of the great work of the Baptist Joint Committee many years ago when my brother began a summer internship there. Like only he can, Kenny made a passionate believer out of me -- in the importance of religious liberty for the church, in the astounding heritage of Baptists in arguing for a separation between church and state, and in the valuable work the BJC does every day spreading this message from the halls of Congress and the Supreme Court and out across the country. I've watched, learned from, and supported the Baptist Joint Committee ever since.

As a person of faith, supporting the cause of religious liberty and the separation of church and state can be a difficult spot. If you watch major news coverage of church-state issues, you might think people like us - Christians who believe in the separation of church and state - don't even exist! Most media seems to prefer a culture war narrative that pits Christians against atheists rather than tell a richer, more accurate story about the interaction between religious liberty and religion.

But we do exist! People of faith care deeply about the separation of church and state, and should. So it's up to people like us, working together with organizations like the BJC to be that voice and make that case. The separation of church and state is good for religion. It's an expression of Christian faith, not a denial of it. But that story won't tell itself.

So I'm asking you to give - don't give in - whenever you see such great need for a voice of reason, sanity, and faith on the issue of religious liberty and church-state separation. And you might as well start today - #GivingTuesday. Giving might be financial support, for sure, and it does take money to compete with those working so hard to tear down the wall of separation. But you can give in other ways too - specifically by making the case, spreading the word. After all, religious liberty can't defend itself. The BJC is here for all of us to make sure we have the tools and the information and a voice in Washington. Let's make sure today they know we are here for them too.

Take a moment today to tell someone why religious liberty for all and the work of the BJC matter to you. And, if you are on social media, tell the world using the hashtag #GivingTuesday. Today is a day to share with others causes that are important to you, and I can think of none better than the BJC’s work to defend and extend religious liberty for all people.

Supreme Court Declines to Hear Religious Challenge to Affordable Care Act E-mail
Written by Don Byrd   
Monday, 02 December 2013

Just a week after deciding to take up religious liberty challenges to the contraception coverage requirement in the Affordable Care Act, the U.S. Supreme Court today declined to hear a broad challenge on religious liberty (and other) grounds to the employer mandate in the law. The move leaves the 4th Circuit's ruling in place holding that the employer mandate to provide health care coverage does not violate the religious liberty of plaintiff Liberty University.

Not to be confused with the more limited contraception challenges that have divided courts across the country for the last year, suits like Liberty University's attacking the entire employer mandate have not found any judicial takers. The 4th Circuit unanimously rejected their religious liberty arguments earlier this year, summing up this way.

Plaintiffs present no plausible claim that the Act substantially burdens their free exercise of religion, by forcing them to facilitate or support abortion or otherwise. The Act specifically provides individuals the option to purchase a plan that covers no abortion services except those for cases of rape or incest, or where the life of the mother would be endangered. The Act also does nothing to prevent employers from providing such a plan. Furthermore, the Act allows an individual to obtain, and an employer to offer, a plan that covers no abortion services at all, not even excepted services. Given that the mandates themselves impose no substantial burden, the option of paying a tax to avoid the mandates’ requirements certainly imposes no substantial burden.

We will find out in the next year the fate of the contraception mandate for those employers with religious objections who aren't already exempt from the requirement. As for the opening up the entire employer mandate again, an enormous plank of the health care law, on religious liberty grounds? The U.S. Supreme Court apparently wanted no part of that.

Backlash Against "War on Christmas"? E-mail
Written by Don Byrd   
Monday, 02 December 2013

When did the hysteria over the "War on Christmas" finally go too far? Was it when Sarah Palin wrote an entire book about it? I'm not sure, but many from all political angles are agreeing that one's religious liberty isn't at stake just because a store greeter respectfully wishes "Happy Holidays" instead of "Merry Christmas." Likewise, a holiday display at the county courthouse that lacks a nativity scene isn't out to restrict or belittle Christianity.

As the Tennessean points out, a Christian blogger has stirred the pot with this helpful flowchart to let you know if you have been persecuted. (hint: if someone wished you happy holidays, you haven't been). And there are other signs of emerging sanity on this issue.

God became flesh and lived among us, and if that’s not enough for people, I think they’ve missed the point,” said [Rachel Held] Evans, who lives in Dayton, Tenn., and wrote last year’s best-selling book, “A Year of Biblical Womanhood.”
It’s strange that folks would argue about saying “Merry Christmas” in public when Jesus Christ himself instructed his followers to make peace with religious opponents, said Dan Scott, senior pastor of interdenominational, evangelical Christ Church in Nashville. There may be extreme cases where Christians in America face opposition for their beliefs, Scott said, but it’s more likely that some suddenly are realizing they live in a religiously diverse nation.
Daniel Darling, vice president of communication for the Nashville-based Southern Baptist Convention’s Ethics and Religious Liberty Commission, addressed the topic in the December issue of Homelife magazine, urging Christians to be joyful instead of judgmental this season.

Will this be the year when celebrating Christmas doesn't mean getting defensive about it?

Mississippi School District Settles Lawsuit, Agrees to Changes E-mail
Written by Don Byrd   
Wednesday, 27 November 2013

The Rankin County School District in Mississippi was home to numerous religious assemblies at which students were proselytized by representatives of a local Baptist church, according to a lawsuit filed earlier this year by the American Humanist Association. In my post back in April after reading the complaint, I wrote: "The lawsuit alleges disturbing details." After reading it again, I'm still disturbed!

This week, a settlement was reached in the case in which the school district admitted violating the student plaintiff's religious liberty rights and agreed to a new policy that bars future similar events.

Students should not be subject to religious indoctrination during the school day. It's an improper use of government resources, and an intrusion into the realm of family.

The American Humanist Association has a press release here announcing the settlement. Coverage in the Memphis Commercial-Appeal is here.

Supreme Court Agrees to Hear Hobby Lobby, Conestoga RFRA Cases E-mail
Written by Don Byrd   
Tuesday, 26 November 2013

The U.S. Supreme Court announced today it will hear the appeal in two cases involving religious objections to the contraception coverage mandate in the Affordable Care Act.

In Sebelius v. Hobby Lobby Stores, the 10th Circuit ruled in June that some for-profit corporations may be "persons" capable of exercising religious freedom rights under the Religious Freedom Restoration Act. As a result, the mandate substantially burdens the company's religious exercise without a compelling government interest that requires it. The court emphasized that because the law exempts so many religious employers, the government cannot argue further exemptions are required by a compelling interest.

In Conestoga Wood Specialties Corp., the 3rd Circuit in July reached the opposite conclusion on the threshold question of whether a for-profit corporation is capable of exercising religion. The court emphasized that a corporation is a distinct legal entity from its owners. Indeed, they remark, that separation is the purpose of the corporate form. As such, the corporation cannot exercise religious freedom rights, which are "one of the more uniquely human rights provided by the Constitution." Likewise, they declined to recognize in religious exercise rights of the owners that are implicated by the mandate, which the court found imposes requirements on the company, not its owners.

In today's orders, the Supreme Court agreed to revisit both disputes. Conceivably, resolving these two cases will give the Court the opportunity to answer the question of a corporation's capacity to exercise religion. If the answer is yes, they likely would wade into the question of whether the mandate substantially burdens that exercise and whether the government's interest in the case is a compelling one that requires the mandate's application to all for-profit corporations.

SCOTUSblog's Lyle Denniston anticipates oral arguments are likely to occur in March, though no announcement of the schedule has been made.

Judge rules clergy housing exemption unconstitutional, BJC's Walker disagrees E-mail
Written by Don Byrd   
Tuesday, 26 November 2013
The last time we heard from Judge Barbara Crabb, she made headlines by declaring the National Day of Prayer unconstitutional, a ruling later overturned by the 7th Circuit Court of Appeals. On Friday last week, Judge Crabb ruled unconstitutional the IRS regulation granting ministers a tax exemption for the portion of their income designated as a housing allowance.  (See Associated Baptist Press coverage here.) The judge agreed with the plaintiffs that the measure violates the separation of church and state by providing clergy a tax benefit that is not extended to others.

From the decision (pdf):

In concluding that §107(2) violates the Constitution, I acknowledge the benefit that the exemption provides to many ministers (and the churches that employ them) and the loss that may be felt if the exemption is withdrawn. However, the significance of the benefit simply underscores the problem with the law, which is that it violates the well-established principle under the First Amendment that "[a]bsent the most unusual circumstances, one's religion ought not affect one's legal rights or duties or benefits.

However, The Baptist Joint Committee's Brent Walker argues the housing exemption is indeed constitutional, noting that religion is not singled out; the tax code provides a variety of housing exemptions. "These include relief for members of the military, breaks for taxpayers living abroad, and exclusions for housing furnished to employees required to live on the premises or who are on 24 hour call."

In a statement following Judge Crabb's ruling, Walker recalls that religion-specific exemptions have been upheld by the Supreme Court in the past as expressions of government neutrality that are within the government's discretion under the First Amendment. "Although the Free Exercise Clause of the First Amendment does not require this accommodation, the First Amendment’s Establishment Clause does not forbid it either."

Here, importantly, the judge left the housing exemption in place pending appeals, so the "loss" she acknowledges will not be felt while we wait on the 7th Circuit to weigh in.

Is Justice Breyer an Atheist? Who Cares? E-mail
Written by Don Byrd   
Friday, 15 November 2013

The Huffington Post pondered last week whether Supreme Court Justice Breyer might be an atheist, given a remark he made during the Court's recent oral argument over the constitutionality of a city council's opening prayer policy. Today they add to the discussion with a piece noting a split in public support for the idea of an atheist Supreme Court justice, according to a new poll. By 40-38 margin, Americans apparently would approve of the nomination of an atheist to the high court.

It's nice to see that only 38% of Americans believe such a thing matters. The religion of a judge is clearly irrelevant to their effectiveness on the bench, even on matters relating to religion. We should be much more concerned about a nominee's understanding of the relationship between church and state than their personal religious beliefs.

So what is the big deal about Justice Breyer?

During the recent U.S. Supreme Court oral argument in Town of Greece v. Galloway, the discussion occasionally turned to the issue of atheist objections to government prayer of any kind. The justices seemed to agree, for example, that, under current law, "atheists cannot get full relief" in the context of legislative prayer. As Professor Laycock said, arguing on behalf of the plaintiffs, "we cannot treat everybody, literally everybody equally without eliminating prayer altogether."

An exchange on the subject earlier in the argument has been interpreted by some observers as Justice Breyer acknowledging his atheism. (Transcript here)

JUSTICE SCALIA: Mr. Hungar, what -- what is the equivalent of prayer for somebody who is not religious?

MR. HUNGAR: I would -­

JUSTICE SCALIA: What would somebody who is not religious -­

MR. HUNGAR: In the Rubin -

­JUSTICE SCALIA: -- what is the equivalent of prayer?

MR. HUNGAR: It would be some invocation of guidance and wisdom from -­


MR. HUNGAR: I don't know. In -- in the Rubin case -

MR. HUNGAR: In the Rubin case, a nonreligious person delivered invocations on multiple occasions.

JUSTICE SCALIA: I suppose a moment -­

JUSTICE BREYER: Perhaps he's asking me that question and I can answer it later.

Reading the section in context explains why Justice Breyer spoke up there. He is the one that introduced the idea that there may be such a thing as an "equivalent of prayer" for someone who is not religious. That is why he thought Justice Scalia's question may have been meant for him. Still, is he saying he's an atheist? Who cares?

Justice Breyer has been a strong and thoughtful proponent of religious freedom. He defends a robust Establishment Clause as the best way to ensure religious liberty for all. When it comes to protecting the freedom of religion, that's what we need in a judge. Given that, what difference does it make whether he claims a religion or not?

5th Circuit Allows Sikh RFRA Lawsuit to Proceed E-mail
Written by Don Byrd   
Thursday, 14 November 2013

In an interesting ruling yesterday, the 5th Circuit Court of Appeals reversed the dismissal of a lawsuit brought by an IRS employee who adheres to the Sikh faith. Kawaljeet Tagore lost her job after being told she could not enter the Federal Protective Services building that houses her office while wearing a kirpan, a ceremonial blade worn by Sikhs as a requirement of their faith. Security officials refused to allow her to wear the blade in the building, citing security concerns, and Tagore refused to wear a blade shorter than 3 inches as a means of accommodating her faith.

She filed suit against the IRS under Title VII for employment discrimination, and under RFRA for substantial burden of religious freedom rights without a compelling government interest. The trial court dismissed her suit. On the Title VII claim, the judge agreed with the IRS that accommodating her request would be an undue hardship on the employer by placing them at odds with the security laws governing the building. On the RFRA claim, the judge ruled as a matter of law that Tagore had failed to demonstrate the need to wear specifically a 3-inch blade was a "sincerely held belief" as required by the law, and that the government would pass the compelling interest test even if she had demonstrated it.

On appeal, the 5th Circuit agreed with the trial court on the dismissal of the Title VII claim, but disagreed on dismissing the RFRA claim.

For starters, the court said, rejecting the plaintiff's claim that her religious beliefs are sincerely held beliefs was an error. The sincerity of the belief is rarely challenged at this stage, and the record in the case contained more than enough evidence to support a finding that her claimed beliefs are sincere.

As for the compelling interest test, the appeals court said, the government has not shown that the ban on this particular kirpan is necessary to achieve its security goals. That is especially true since a new security policy includes means of accommodating the kirpan.

Because the new policy contradicts the arguments previously advanced by the government for denying Tagore an exception or exemption for the wearing of her kirpan to the Leland building, the district court’s application of strict scrutiny must be reversed and remanded for further analysis. In so doing, we emphasize that we express no opinion on the ultimate application of strict scrutiny because the government should be allowed to offer more evidence concerning its asserted need for uniform application of Section 930(a) and the impact of the new Policy Statement on this case.

The case goes back to the trial court now with the RFRA claim intact, and the government tasked with explaining why an accommodation would have undermined a compelling government interest at the time, but the possibility of such an exception is now part of the new security policy.

Stay tuned.

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New Hampshire Supreme Court Debates Aid to Religious Schools Program
The New Hampshire Supreme Court last week heard oral arguments in a challenge to the state's tuition tax credit program. Businesses in the state are receiving tax credits for paying private school tuition through a scholarship incentive program. Because many of those funds are going to ...
New Police Commissioner Abandons NYPD Muslim Surveillance Program
A new police commissioner in New York has brought new policies. William Bratton put an end to the Demographics Unit, an undercover surveillance operation controversial for targeting Muslim communities, including maintaining files on individual houses of worship. (The BJC and others last yea...