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Supreme Court Declines Review of Controversial New Mexico Case E-mail
Written by Don Byrd   
Monday, 07 April 2014

While we wait for the Supreme Court's ruling on the question of government invocations in the case of Town of Greece v. Galloway, today's Orders included notice that the Court denied the petition in the case of Elane Photography v. Willock. In that case, a photographer was found to have violated the civil rights laws of New Mexico by refusing to provide services for a same-sex wedding. Elane Photography argued the application of non-discrimination laws in such a case violated religious freedom rights of conscience, but was unsuccessful in the New Mexico Supreme Court. 

The Court's denial today leaves that decision intact.

Elane Photography is the case largely credited with setting off a firestorm over the issue of rights of conscience. Many state legislators pushing religious freedom acts in recent months  cited the case as a central rationale.

BJC and Other Religious Liberty Advocates Urge Pentagon to Improve Accommodation Policy E-mail
Written by Don Byrd   
Saturday, 05 April 2014

When the Pentagon announced new rules for religious accommodation, it was a positive step toward respecting the needs of Americans who wish to serve in the military but face the prospect of violating tenets of their religious faith in the process. The new rules developed a procedure for requesting accommodation and emphasized that requests should only be denied when outweighed by the needs of the mission.

On close inspection, however, many religious liberty advocates argue the policy doesn't go far enough to protect service members' rights. In a letter to the Under Secretary of Defense for Personnel and Readiness, the Baptist Joint Committee - alongside the ACLU, the Becket Fund, the Church of Jesus Christ of Latter-Day Saints and others - requested the Pentagon revise the policy further in light of those concerns.

Here is a snippet:

As currently drafted, section 4(g) of the revised Instruction would require religiously observant service members and prospective service members to remove their head coverings, cut their hair, or shave their beards–a violation of their religious obligations–while their request to accommodate these same religious practices is pending. This is so, even if they are otherwise qualified to serve and an accommodation is unlikely to undermine safety or other necessary objectives. . . .
Further, under Section 4(j) of the revised Instruction, even if an original accommodation request is approved, religiously observant service members would be required to submit a new request for the same accommodation every time they receive a new assignment, “transfer of duty station, or other significant change in circumstances.” The uncertainty associated with this requirement to repeatedly request an accommodation for the very same religious practices is stifling, and may needlessly limit career opportunities-or, in some cases, end careers.
Without further revisions, Instruction 1300.17 will have an unwelcome and unnecessary chilling effect on religious liberty–and will limit opportunities for talented individuals of faith to serve in our nation’s military.
Appeals Court Affirms City's Right to Ban Worship Services in Schools E-mail
Written by Don Byrd   
Friday, 04 April 2014

The 2nd Circuit Court of Appeals yesterday reversed a lower court's ruling and upheld the constitutionality of a New York City ban on the use of public school buildings for worship services. The decision is the latest in the epic dispute over the Bronx Household of Faith, pitting the trial judge's support of the church's quest to continue worship services in a school against the Appeals Court's repeated rejection of her argument.

The NYTimes has more:

Judge Pierre N. Leval, writing for a 2-to-1 majority of the panel, said the city’s ban was “consistent with its constitutional duties,” and that it did not violate the right to free exercise of religion. And the judge wrote that the lower court erred in concluding that the policy compelled the city “to make decisions that constitute excessive entanglement with religion.”

You can read the opinion here.

BJC's Walker Discusses Religious Freedom to Seminary Audience E-mail
Written by Don Byrd   
Thursday, 03 April 2014
The Baptist Standard reports on a speech given by the Baptist Joint Committee's Brent Walker at Baylor's Truett Seminary. He emphasized the Baptist heritage of religious liberty, and the constitutional mandate for government to neither prohibit or advance religion.

The First Amendment guarantees of religious freedom makes sure government “maintains a healthy distance from religion,” Walker said.

“These twin pillars of our constitutional architecture—no establishment and free exercise (of religion)—require that government neither help or hurt religion,” he said. “Rather, government must be neutral toward religion, turning it loose to flourish or flounder on its own.

“In other words, government should accommodate religion without advancing it, protect religion without promoting it, lift burdens on exercise of religion without extending religion a benefit.”

Read the whole thing.

Mississippi Legislature Sends Amended RFRA to Governor E-mail
Written by Don Byrd   
Wednesday, 02 April 2014

Updating a story I have been following, the Mississippi legislature has decided to act after all on a state RFRA law. A conference report between the Senate, which previously passed a version of RFRA unanimously, and the House, which more recently voted to send the bill back to committee for further study, amended the Senate version and was passed by both bodies earlier today. The bill now heads to the Governor for his signature. 

Importantly, the amended version (pdf) added language that more closely mirrors the federal RFRA law, including the provision that only "substantial" burdens on a person's religious exercise require the government's justification. The Senate bill triggered that high standard for any burden.

For some helpful context on why state RFRAs are suddenly so controversial, the BJC's Holly Hollman last month explained what happened in Arizona.

Appeals Court Revives Inmate's Lawsuit Challenging Religion in Early Release Program E-mail
Written by Don Byrd   
Tuesday, 01 April 2014

Via Raw Story, the 8th Circuit Court of Appeals last week reversed the dismissal of a lawsuit brought by an inmate who objected to religious content in an early release program. Randall Jackson, an atheist, claimed his First Amendment rights were violated when he was required to participate in a religious substance abuse treatment program as a condition of his early release on parole.

The District Court dismissed the case, but on appeal that ruling was overturned to allow the suit to continue.

From the opinion (pdf):

The state argues that participation in OUTP was optional and, as a result, not coerced. Assuming the truth of the facts pled in Jackson’s pro se complaint, however, he believed himself required to complete it based on a parole stipulation. The parties agree that even if Jackson had completed the substance abuse treatment program, he would not have been guaranteed early parole. . . . Jackson’s pro se complaint and attached documents do not reveal whether this is the only route to early parole or how many OUTP participants receive it. Jackson’s progress toward early parole did, however, stop when he left the substance abuse treatment program.
While inmates have no constitutional right to early parole, Jackson does have the right to be free from unconstitutional burdens when availing himself of existing ways to access the benefit of early parole.
ACLU Defends Young Student's Right to Read Bible at School E-mail
Written by Don Byrd   
Monday, 31 March 2014

All too often, school officials mistakenly believe the law requires them to bar all religious activity during the school day. Nothing could be further from the truth. The First Amendment guarantees the separation of church and state, but it also protects the rights of students to pray privately, and to engage in religious speech together  to the same extent they are allowed to engage in non-religious speech.

In Tennessee's Cannon County, that principle is being defended by the ACLU on behalf of a young student who simply wants to read the Bible at school at appropriate times.

WSMV reports:

The ACLU sent a letter to the Cannon County REACH after-school program on behalf of a family who said their elementary school-aged son was told by staff that he could read any book except the Bible, and that he would have to put the Bible away during a free-reading period.
The ACLU says when the boy refused to put away his Bible, program staff tried to take it from him, mistakenly claiming the state could shut the program down if they allowed him to read it.

You can read the ACLU-TN's letter here. A press release is here.

Church-state advocates must continue to clarify and educate regarding the interaction between the free exercise of religion and the separation of church and state. Protecting the religious freedom of all students means guarding against school-sponsored religion *and* defending a student's right to be free of discrimination targeting religious viewpoints. 

Read more about constitutionally protected prayer and religion in public schools here.

Mississippi Senators Try Again on RFRA Bill E-mail
Written by Don Byrd   
Saturday, 29 March 2014

Mississippi state senators are giving Religious Freedom Restoration Act legislation one more chance. Back in January, the Senate unanimously passed the bill, which would raise the standard for when the government can burden a person's religious exercise. But that was before, in many states considering such legislation, the RFRA debate was flooded with concerns about discrimination. (See my earlier post, "What Happened in Arizona?").

The Mississippi House responded by voting to send the RFRA portion of the bill back to be studied. The Senate, however, rejected that idea on Thursday.

Associated Press reports:

The Senate on Thursday voted to send Senate Bill 2681 into negotiations with the House. 

The two sides face a Monday deadline to file a final version of the bill, known as the Mississippi Religious Freedom Restoration Act. If they don't meet that deadline, the bill will die. If they do reach a compromise, it would be sent to both chambers for a vote by the middle of next week. 

You can read Mississippi's Senate Bill 2861 here.

It is very similar to the one recently proposed in Georgia, HB 1023. The Baptist Joint Committee sent a letter to Georgia Representatives urging them to reject that proposal because it did not include the "substantial burden" requirement that is central to federal RFRA safeguards. Mississippi's RFRA proposal also lacks that protection. 

Religion, as the BJC's letter to Georgia reps cautioned, should not be allowed to be a "trump card" against all government regulation.

Constitutional Scholar Skeptical of Government's Hobby Lobby Arguments E-mail
Written by Don Byrd   
Friday, 28 March 2014

Stanford law professor and former 10th Circuit Appeals judge Michael McConnell yesterday weighed in on Tuesday's oral arguments in the Hobby Lobby contraception mandate case. He is especially skeptical of the government's argument that there is a compelling interest in protecting the rights of employees under the Affordable Care Act to have insurance that covers all contraceptive forms identified in regulations articulated by the Department of Health and Human Services.

Among his arguments against the compelling interest piece is the suggestion that agency regulations flowing from a law are less indicative of the government's interests than are explicit legislative provisions articulated by Congress.

Congress did not impose the contraceptive mandate, but left it to HHS to decide what “preventive services” must be covered. If Congress really viewed contraceptive coverage as a compelling interest it would not have left it to the vagaries of the administrative process, which are subject to political change from administration to administration.

The interest is further undermined by HHS’s statutory authority to grant religious exemptions to whomever it chooses . . . Genuinely compelling interests—that is, those that cannot tolerate religious exemptions—do not come with open-ended regulatory authority to create exceptions.

You can read highlights from the oral arguments in previous posts here (on the third party burden issue) and here (on the issue of whether corporations can exercise religion).

Hobby Lobby Highlights, Part 2: Can For-Profit Corporations Exercise Religion? E-mail
Written by Don Byrd   
Thursday, 27 March 2014

Yesterday, I posted excerpts from the Supreme Court's Hobby Lobby oral argument highlighting the topic of third party burdens. How should RFRA analysis, the Court asked in a variety of ways, handle religious freedom accommodations sought by an employer that would impact negatively the rights of employees?

An even more fundamental question, and one that seemed to be generating the most public attention heading into yesterday's argument, is whether RFRA applies to for-profit corporations in the first place. If so, how do corporations exercise religion? And who gets to determine the content of a corporation's religious beliefs?

The Court spent a fair amount of time volleying that issue. Many justices seemed skeptical that for-profit/nonprofit was the appropriate line to draw in allowing a corporation to bring suit under RFRA. Others pressed the point. You can read the entire transcript here, or follow me to the extended post below. I have compiled (lengthy) highlights from oral arguments specifically on this issue.

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College Football Coach Responds to Proselytizing Allegations
Dabo Swinney released a statement today responding to allegations that he promotes his Christian faith improperly through the football program at Clemson, a public university. A letter from the Freedom From Religion Foundation suggested Christian worship was "interwoven" into the fo...
Groups Turning to State Law to Make Claims Against Use of "Under God"
Federal courts have consistently ruled constitutional the use of "Under God" in public school recitations of the Pledge of Allegiance. In 2010, for example, the 9th Circuit held that the phrase is not a prayer, but instead an acknowledgement of our "founders' political philos...