Back in July, the 7th Circuit Court of Appeals found unconstitutional a Wisconsin school district's practice of holding graduation ceremonies in a church. The court did not hold that commencement in churches is automatically a violation of church-state separation. Instead, the Court found that circumstances like those found in this case - including church members manning information booths with religious literature during the graduation - went over the line to exploit the use of the church for religious purpose. 

The Elmbrook school district has appealed the case to the U.S. Supreme Court. They argue that the 7th Circuit conflated the "endorsement" of religion by government-sponsored display with the "coercion" of religion by pressuring individuals to engage in religious activity.

The Seventh Circuit collapsed the distinction between the two lines of analysis by holding that mere exposure to passive religious symbols constitutes “coercion,” and that entirely neutral government conduct constitutes unconstitutional “endorsement.” The result is a rule against conducting public functions in a church building, even for reasons of secular convenience.

You can read the petition here.

This year in religious liberty proved there is no use in predicting. I would have thought, in a presidential election between a Mormon and a Protestant Christian who much of the population still wrongly believes to be Muslim, there would be lots of religious fireworks, questionable theology, and subtle “who’s-the-real-Christian” wars between the campaigns. Apart from some memorable moments in the GOP primary, however, that was not to be. Instead, 2012 was the year “religious liberty” became synonymous with the freedom  to not provide health coverage for birth control. Who would have guessed?

Read on to find out my choices for the top religious liberty stories of 2012:

The 10th Circuit has rejected an effort to halt enforcement of the contraception coverage mandate against Hobby Lobby, a closely held Oklahoma corporation. Affirming the lower court's refusal to issue an injunction, the panel agreed (pdf) that the burden the mandate places on the company's exercise of religion is not substantial enough to warrant protection under the Religious Freedom Restoration Act. That's because, the Court says, the funding path from company to contraceptive is too "indirect and attenuated."

The point of RFRA is to allow a plaintiff to protect participation in his or her own religion. While indirect funding of an employee's contraceptive use may violate the plaintiff's beliefs, it is not, the Court argued, a substantial burden like that envisioned by RFRA.

As Religion Clause points out, a Missouri court yesterday reached a different conclusion. That court rejected the argument that an indirect burden on religious exercise falls outside the reach of RFRA.

[UPDATE: Supreme Court Justice Sonia Sotomayor has denied Hobby Lobby's petition for an injunction.]

Mike Huckabee's recent claim that the removal of prayer from public schools is responsible for the Newtown, Connecticut shootings is bad theology, misstates the Constitution, and is just plain wrong. That is the conclusion of the Baptist Joint Committee's Brent Walker in a new must-read column. Here is a snippet:

It is impossible for anyone to remove Almighty God from anywhere, including the public schools. God is never truant. He was there on Friday morning suffering with those killed and injured, embolding the many acts of heroism, rejoicing with the lives that were saved.

As far as I'm concerned, Huckabee joined the ranks of the Westboro Baptist Church protestors in explaining a horrible tragedy as God's response to the sin of the nation. But Rev. Walker rightly takes on the meat of Huckabee's argument. God has not been removed from public schools or the public square. Indeed, the separation of church and state is the best way to make sure faith has a chance to flourish out of freedom and not coercion.

Regardless of one's policy beliefs, though, can there be any doubt that where children are gathered, and in distress, that God is there with them and for them? Shame on Mike Huckabee for suggesting otherwise, just to push his own misguided, unconstitutional policy preferences.

A lawsuit may be on the way challenging the use of yoga instruction in a California school district.

Dean Broyles, president of the National Center for Law and Policy, told the New York Times that the school district clearly is promoting "Hindu religious beliefs and practices in the public schools through this Ashtanga yoga program."

However, Encinitas assistant superintendent David Miyashiro has said that the instructors have been careful to remove not only spiritual references, but also "anything that can be perceived by onlookers as a concern."

Does stretching a certain way implicate a religious perspective? How about relaxing? Or does there need to be accompanying message that is more overtly religious?

In a decision echoing the Hobby Lobby ruling last month, a federal judge in Illinois on Friday rejected a construction business' first Amendment and Religious Freedom Restoration Act challenges to the Affordable Care Act's contraception mandate. The judge found (pdf) that, first, the free exercise of religion is guaranteed for individuals and not corporations.

[T]he undersigned district judge views the exercise of religion as a “purely personal” guarantee that cannot be extended to corporations. . . . In Wallace v. Jaffree, the Supreme Court explained: “As is plain from its text, the First Amendment was adopted to curtail the power of Congress to interfere with the individual’s freedom to believe, to worship, and to express himself in accordance with the dictates of his own conscience.” James Madison eloquently stated, “[t]he Religion . . . of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.”

Thus, a corporation may be able to advance a belief system, but it cannot exercise religion. In any event, Plaintiffs’ Free Exercise Clause claim has little or no chance of success on its merits, regardless of whether a corporation can exercise religion.

While RFRA does apply to a closely held corporation like K & L (the plaintiffs), the judge found the burden on religious exercise to be too small to warrant intervention:

Any inference of support for contraception stemming from complying with the neutral and generally applicable mandate is a de minimus burden. It appears that Plaintiffs’ objection presupposes that an insured will actually use the contraception coverage. Even assuming that there is a substantial likelihood that a K&L employee will do so, at that point the connection between the government regulation and the burden upon the Kortes’ religious beliefs is too distant to constitute a substantial burden.

The Wall Street Journal reports the final White Rule on the contraception mandate in the Affordable Care Act will be released soon. (my emphasis)

Federal officials are “on track” with efforts to draft a compromise, and it will be different from the current rules that prompted an election-year row between the White House and top Catholic bishops, the Department of Justice's lawyers told a federal appeals court in Washington, D.C..

The controversy over contraception coverage requirements was the most persistent religious liberty story this year. And yet most detractors argue as if the rule covers all organizations (It doesn't. Churches and denominational institutions are exempt), and as if the rule is already set (It's not. President Obama announced earlier this year the rule would be adjusted to accommodate certain religiously affiliated institutions.). Now the Justice Department has indicated again the rule will be different from the initial announcement that caused such an uproar. 

Stay tuned.

A report from the Pew Research Center confirms what seemed to be the case (earlier post) during this year's presidential campaign: religion was not a significant topic.

According to a new study by the Pew Research Center's Project for Excellence in Journalism and the Pew Forum on Religion & Public Life, just 1% of the campaign coverage by major news outlets (including broadcast and cable television, radio, newspaper front pages and the most popular news websites) focused on the religion of the candidates or the role of religion in the presidential election. Only 6% of the election-related stories in major news outlets contained any reference to religion.