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Parents to Appeal Yoga Ruling E-mail
Written by Don Byrd   
Monday, 04 November 2013

Charisma News reports that plaintiff parents of students in the California's Encinitas School District are appealing a judge's ruling earlier this year that a yoga program does not violate the separation of church and state. The parents charge the program unlawfully forces an inherently religious activity into the public school curriculum.

“Our children are not religious guinea pigs and should never be subjected to such misguided religious experimentation,” said Dean Broyles, president of the National Center for Law and Policy, a nonprofit based in Escondido, Calif., dedicated to defending religious freedom, traditional marriage and the sanctity of life.

Broyles filed a notice of appeal Oct. 30 in San Diego Superior Court on behalf of parents who oppose the yoga curriculum in the Encinitas Union School District.

The trial court judge disagreed (see my earlier post about the ruling here), finding the yoga program had been stripped of its religious associations in this instance, and had a legitimate secular purpose within the physical education curriculum.

 
News Roundup: Town of Greece Previews Show Wide Interest in Prayer Issue E-mail
Written by Don Byrd   
Monday, 04 November 2013

The news today and this weekend includes lots of coverage anticipating Wednesday's U.S. Supreme Court argument in Town of Greece v. Galloway, the Court's first inquiry into government prayer in 30 years. (See a link to the BJC's brief in the case here; a podcast of BJC counsel discussing their view of the case is here!)

The Atlantic's Garrett Epps emphasizes a point similar to a central argument in the BJC's brief: that a prayer in a local government meeting is different from one opening the Senate, where citizens may be observers but are not participants.

The NYTimes editorial board argues "there are many ways to solemnize official functions" without sending a message to citizens of a different faith that they are "outsiders."

LATimes coverage notes that many on the Court seem ready to overturn or significantly weaken the "endorsement test," which finds a violation of church-state separation where a reasonable person would interpret government action as endorsing one particular religious viewpoint.

SCOTUSBlog's Lyle Denniston previews the case, suggesting the Court may not abandon the endorsement test, but limit its application in the context of legislative prayer.

The Washington Post's Robert Barnes points to the argument on the other side that the prayers in this case implicate the coercion test, which seems to have a fan in Justice Anthony Kennedy.

McClatchy's piece finds interest in the Obama Administration's support of the defendants in urging the Court to uphold the prayer policy.

The American Prospect's Amelia Thomson Deveaux warns that the Court's ruling in this case could "throw out a decades-old protection against government-sponsored religious speech.

You can read my take - and find links to videos of the prayers at issue - here.

 
DC Appeals Court: Contraception Coverage Mandate Violates Religious Freedom E-mail
Written by Don Byrd   
Saturday, 02 November 2013

The D.C. Court of Appeals yesterday became the latest Circuit to rule on a religious freedom challenge to the contraception coverage mandate in the Affordable Care Act. At issue are the owners of closely-held corporations who object on religious grounds to providing their employees with insurance that includes such coverage. While the law grants exemption to religious organizations, and provides a workaround for institutions affiliated with denominations, there is no exception for the business owner of a secular corporation who merely has strong personal religious beliefs.

A few appeals courts have ruled on this issue, which seems destined for Supreme Court review in the near future. Most recently, the 6th Circuit refused to halt the mandate, agreeing with the government that corporations are not "persons" who can exercise religion according to the Religious Freedom Restoration Act. The 10th Circuit reached the opposite conclusion, finding corporations are persons for religious exercise purposes. That ruling halted the contraception coverage mandate against Hobby Lobby, which argued that the mandate unlawfully forces a choice between following the company's religious beliefs and suffering substantial government penalty.

How did the DC Circuit come out on Friday? The Court agreed with the plaintiffs that the mandate violates their religious freedom rights, paving the way for the trial court to issue an injunction halting enforcement of the law. However, the DC Circuit agreed with the government that corporations cannot exercise religion under RFRA. From the opinion (pdf):

Beyond... cases involving religious organizations... we glean nothing from the Court’s jurisprudence that suggests other entities may raise a free-exercise challenge.
...
When it comes to the free exercise of religion... the Court has only indicated that people and churches worship. As for secular corporations, the Court has been all but silent.
...
No... corpus juris exists to suggest a free-exercise right for secular corporations. Thus, we read the “nature, history, and purpose” of the Free Exercise Clause as militating against the discernment of such a right. When it comes to corporate entities, only religious organizations are accorded the protections of the Clause. And we decline to give credence to the notion that the for-profit/non-profit distinction is dispositive, as that, too, is absent from the Clause’s history.

So, if corporations cannot exercise religion, why did the Court find the religious freedom of its owners is likely violated and reverse the trial court's refusal to grant an injunction? Because the individual owners of the corporation here *are* substantially burdened by the mandate on their company, the court ruled, even if the company itself is not.

The contraceptive mandate demands that owners like the Gilardis meaningfully approve and endorse the inclusion of contraceptive coverage in their companies’ employer-provided plans, over whatever objections they may have. Such an endorsement—procured exclusively by regulatory ukase—is a “compel[led] affirmation of a repugnant belief.” That, standing alone, is a cognizable burden on free exercise. And the burden becomes substantial because the government commands compliance by giving the Gilardis a Hobson’s choice. They can either abide by the sacred tenets of their faith, pay a penalty of over $14 million, and cripple the companies they have spent a lifetime building, or they become complicit in a grave moral wrong. If that is not “substantial pressure on an adherent to modify his behavior and to violate his beliefs,” we fail to see how the standard could be met.
One thing seems certain: we have not heard the last on this issue. Courts continue to disagree as to whether the mandate constitutes a substantial burden on a person's exercise of religion.  Just as RFRA turns 20, it has become central to a significant judicial controversy. As the D.C. Court of Appeals in this case points out,
A parade of horribles will descend upon us, the government exclaims, if religious beliefs could serve as a private veto for the contraceptive mandate. Hyperbole aside, we note it was Congress [through RFRA], and not the courts, that allowed for an individual’s religious conscience to prevail over substantially burdensome federal regulation.
Stay tuned.
 
President Obama Urged to Raise Religious Freedom Concerns with Iraqi Prime Minister E-mail
Written by Don Byrd   
Friday, 01 November 2013
The US Commission on International Religious Freedom sent a letter to President Obama Wednesday in advance of his meeting with Iraqi Prime Minister Nuri Al-Maliki today. The Commission urged the President to raise concerns about the severe, and worsening religious freedom problems plaguing Iraq.
U.S.-Iraqi cooperation under the Strategic Framework Agreement includes cooperation “to promote Iraq’s efforts in the field of . . .  human rights.”  If Iraq is to become a stable democracy, its government must make greater efforts to ensure that the human rights and religious freedoms of all Iraqis are guaranteed and enforced equally in law and practice, without regard to religion or sect.  In your meeting with Prime Minister al-Maliki, we hope that you will stress to him the vital importance of reducing sectarian tensions in Iraq and protecting freedom of religion.  We also hope that you will press him, and offer U.S. assistance as appropriate, to increase efforts to provide security to likely targets of religiously-motivated violence and investigate and prosecute perpetrators consistent with due process of law.  Finally, we hope that you will discuss the need for the protection of minority rights and freedoms in the disputed territories.
 
Happy Halloween! E-mail
Written by Don Byrd   
Thursday, 31 October 2013

In Highland Park, Illinois, school officials were troubled earlier today when a student showed up dressed as Jesus. After all, the guidelines warned students against costumes that may offend the religious sensibilities of others. But after looking into it, they decided no harm, no foul.

School officials were initially concerned the teen’s costume — a toga, cross and crown of thorns — could be offensive to “religious sensibilities.” After further review, they decided the student meant no disrespect, District 113 spokeswoman Melinda Vajdic said.
...
“Upon further review, we realized the student did not intend to be offensive,” she said. “Therefore, the school communicated to the student that he could wear the costume.”

Happy and safe Halloween to all!

 
Holiday Music Controversies Give School Districts Tough Choices E-mail
Written by Don Byrd   
Thursday, 31 October 2013

In the church-state world, cold weather means holiday disputes can't be far behind. Earlier this month, I posted about a school district in Wisconsin that barred the use of sacred music in school concerts, a decision that was later rescinded pending further planning to develop the policy.

Religion News Service reports today on a similar development in a New Jersey school district, where church-state concerns have led to a decision to prohibit religious music at elementary school holiday concerts.

Bordentown Superintendent Constance J. Bauer issued a statement on Oct. 18 saying that some of the selections were questioned and that “religious music should not be part of the elementary program.”

The statement added that the district solicitor is reviewing the decision, mentioning how the U.S. Supreme Court in 2010 declined to hear an appeal of a similar situation involving another New Jersey family.

In that other situation, Stratechuk v. South Orange-Maplewood School District, the 3rd Circuit upheld a school district's policy requiring secular music, on the grounds that secular is not anti-religious. The Constitution likely does not require school districts to have such a policy, but it seems to be permissible, considering Stratechuk.

School Districts then seem to have some discretion: either a policy of all secular music, or a policy that allows diverse music, including religious music, in certain circumstances. In this new controversy, Bordentown officials are under some pressure to rescind the position that "religious music should not be part of the elementary program." What is the best approach?

 
Are "Big Changes" Coming to Church-State Law After Prayer Case is Decided? E-mail
Written by Don Byrd   
Wednesday, 30 October 2013
Writing for the ABA Journal, David L. Hudson, Jr. warns that the Supreme Court's eventual decision in Town of Greece v. Galloway could create significant changes to the church-state landscape.

“I think that there are five votes on the current court to change the law of the establishment clause,” [First Amendment expert Erwin] Chemerinsky says. “Town of Greece and its amici are using this case as the vehicle for urging the court to do so. I am very concerned that there are five votes to shift to the ‘coercion test’—that the government violates the establishment clause only if it coerces religious participation.”

As regular readers know, the Baptist Joint Committee filed a friend-of-the-court brief in the case, which you can find here. BJC counsel Holly Hollman and Nan Futrell discuss the case in a podcast which you can listen to (or read ) here. The Supreme Court is set to hear arguments in the case on Wednesday, November 6.

 
Poll: Americans Don't Want Leaders Basing Policy on Religious Beliefs E-mail
Written by Don Byrd   
Tuesday, 29 October 2013

A new ABCNews-Fusion poll shows most Americans believe political leaders should not rely on their religious beliefs in making policy decisions. 14% said they should not rely much on them while 39% said not at all for a 53% majority. Of the 45% who said political leaders should rely on their religious beliefs, 18% said they should rely a great deal, while 26% said only somewhat. Some religious groups are more likely to answer yes.

On the role of religion, not surprisingly, a broad 74 percent of evangelical white Protestants say political leaders should rely at least somewhat on their religious beliefs in making policy decisions. That falls to half as many non-evangelical white Protestants, 37 percent, and drops further, to 16 percent, among Americans who profess no religion. 

You can read the entire poll here.

 
BJC to Commemorate RFRA's 20 Years with Symposium E-mail
Written by Don Byrd   
Tuesday, 29 October 2013
This year marks the 20th anniversary of the Religious Freedom Restoration Act (RFRA) of 1993, a law that prohibits the federal government from placing a substantial burden on a person's religious exercise unless there is a compelling government interest in doing so, and the burden is necessary to achieve that interest. To commemorate the occasion, the Baptist Joint Committee for Religious Liberty is sponsoring a symposium at the Newseum in Washington, D.C. on November 7 to discuss RFRA with several fellow advocates for religious liberty.

RFRA is often the vehicle for everyday, unexpected conflicts that arise between government regulation and religious exercise - from the desire among Amish to live a simple and secluded life to homeless ministries that use public parks to feed the hungry. It has also been the central law in hot-button controversies like the current challenges to the Affordable Care Act's contraception coverage mandate.

The BJC's General Counsel Holly Hollman provides a helpful overview of the law's shifting landscape in a new piece for Report From the Capital.

Since RFRA was signed into law by President Bill Clinton in 1993, the legal landscape of religious liberty has shifted dramatically. Subsequent cases and federal and state laws have affected RFRA’s usage, and RFRA is being applied in new contexts that were unforeseen two decades ago. There is no longer broad consensus about RFRA’s benefits or even its intended scope. Many groups who once supported RFRA (and the law’s state corollaries) have since changed course, fearing that these laws are increasingly being used too expansively in ways that harm other important rights. While RFRA sets a high standard for religious freedom claims, without regard to any particular claim or outcome, its application in the context of civil rights and health care laws has dampened its popularity among some prior advocates. At the same time, others conclude the laws have not done enough to provide meaningful protection for religious liberty and should be strengthened.

The symposium is free and open to the public but space is limited so RSVP by October 31!

 
"Baby Messiah" Magistrate Charged with Violating Judicial Ethics Rules E-mail
Written by Don Byrd   
Monday, 28 October 2013

Via Religion Clause, formal charges have now been filed by the Tennessee Board of Judicial Conduct against  the Tennessee magistrate who made news earlier this year after she rejected "Messiah" as a child's first name (in a parental dispute over the child's last name). She indicated that "Messiah" is a religious title earned only by Jesus Christ and changed the baby's name to Martin.

The formal charges (pdf) refer to provisions of Tennessee's Code of Judicial Conduct, including:

A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge's direction and control to do so.

The name change was subsequently reversed by a chancellor.

 
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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...
 
President Obama: Religious Hatred Has No Place in Society
At the White House Easter Prayer Breakfast today, President Obama discussed the recent tragic shootings at a Jewish Synagogue and Community Center in Kansas City. Here is an excerpt from his remarks: That this occurred now -- as Jews were preparing to celebrate Passover, as Christian...