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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.

 
Judge Halts Sectarian Prayers Opening Maryland County Commission Meetings E-mail
Written by Don Byrd   
Thursday, 27 March 2014
Via Religion Clause, a federal judge has issued an injunction halting the practice of sectarian prayers opening Maryland's Carroll County Commission meetings. The Commissioners offer prayers to open the meeting on a rotating basis. While the County's policy discourages the use of specific references to Christ, the court explained that the policy is only one part of the analysis, quoting the 4th Circuit's decision in Joyner ruling unconstitutional opening prayers in Forsyth County, North Carolina.

From the opinion (my emphasis):

Although the podium guidelines discourage sectarian references, the Board has made no effort to curb the frequent sectarian references made by its own Commissioners. "Citizens attending Board meetings hear the prayers, not the policy. . . . we cannot turn a blind eye to the practical effects of the invocations as issue here." The record, although incomplete at this time, indicates that sectarian prayers are offered in over 40 percent of Board meetings. This demonstrates more then infrequent, occasional, or incidental references standing alone, especially in light of the lack of references to other deities. At this time, the record indicates that the prayers invoked by Commissioners before Board meetings advance one religion to the exclusion of others.

Ultimately the outcome of this case, like other pending lawsuits challenging legislative prayer, may be determined by the Supreme Court's ruling in the Town of Greece case. The Court heard arguments in that case back in November. A decision should be issued sometime in the next few months.

 
Hobby Lobby Highlights: RFRA and the Burden on Third Parties E-mail
Written by Don Byrd   
Wednesday, 26 March 2014

The U.S. Supreme Court heard oral argument in the highly anticipated Hobby Lobby case. At issue is whether the Religious Freedom Restoration Act applies to for-profit corporations, and if so whether the contraception coverage mandate in the Affordable Care Act violates the religious freedom rights of corporate owners who object on religious grounds to providing such coverage.

As an initial thought about the argument as a whole, clearly the justices are sharply split on whether and how RFRA should apply in a case like this. While most media reports are focused on the issue of the corporate exercise of religion, another important element of this dispute seemed to trouble certain members of the Court: the impact on the rights of third parties (namely, the female employees who would be denied the right of free access to certain contraceptives) if RFRA is held to bar enforcement of the law against objecting employers. For more than one justice on the Court, this issue seemed to be the sticking point in knowing how properly to apply RFRA in this case.

You can read the entire transcript here. Read the extended post for highlights specifically from the discussion on this particular topic.

 
Supreme Court Recap: Could Court Issue Narrow RFRA Ruling? E-mail
Written by Don Byrd   
Tuesday, 25 March 2014

While we wait for the Supreme Court to release the audio and transcript of today's oral argument in the Hobby Lobby case (see earlier previews and thoughts here and here), I have been reading some recaps of those who were able to be in the chamber today. Some highlights are below... [UPDATE: The Supreme Court has released a transcript of the argument. You can read it here. Highlight quotes to come.]

At the Wall Street Journal's liveblog, the most interesting reporting to come out of the argument today was the Chief Justice's idea for a narrow ruling:

Chief Justice John Roberts suggested he was thinking of a narrow ruling allowing closely held companies like Hobby Lobby Stores Inc. to claim a religious exemption, while leaving aside more-complicated ownership structures of publicly traded corporations to another day — a position that Justice Stephen Breyer indicated he might, or might not, be open to.

SCOTUSblog's Lyle Deniston emphasized that the 2 halves of the argument demonstrated the strong opinions splitting the court on this case.

The Supreme Court, in a one-hour, twenty-eight-minute session Tuesday, staged something like a two-act play on a revolving stage: first the liberals had their chance and Justice Anthony M. Kennedy gave them some help, and then the scene shifted entirely, and the conservatives had their chance — and, again, Kennedy provided them with some support.

...The “contraceptive mandate” in the new federal health care law, challenged under federal law and the Constitution, fared well in the first scene, and badly in the second.

The NYTimes' Adam Liptak likewise reports that Justice Kennedy "probably holds the decisive vote."

 
TN Senate Sends Student Religious Expression Bill to Governor E-mail
Written by Don Byrd   
Tuesday, 25 March 2014

Earlier this month, the Tennessee House passed by a large margin a bill that purports to expand religious liberty protections for students in public schools. Yesterday, the Senate voted unanimously to approve the measure, sending it to the Governor for his signature.

Associated Press has more:

Under the proposal, a student could express beliefs about religion in homework, artwork and other written and oral assignments free from discrimination based on the religious content.

The legislation would also allow a student to organize student prayer groups and other religious gatherings to the same degree that students are permitted to organize non-curricular activities and groups.

Unfortunately, it may also undermine religious liberty protections for all by encouraging the promotion of religion at official school events. Will legislation like this lead to more church-state lawsuits over student prayers and proselytizing at commencement, football games and assemblies?

 
Previewing Tomorrow's U.S. Supreme Court Oral Arguments E-mail
Written by Don Byrd   
Monday, 24 March 2014

Tomorrow is a big day for a central legislative piece of the religious liberty puzzle. The U.S. Supreme Court will hear oral arguments in a pair of contraception coverage mandate challenges brought by for-profit companies whose owners object on religious grounds to providing such coverage. They argue that the Religious Freedom Restoration Act (RFRA) prohibits the government from enforcing the mandate against them because it would substantially burden their religious exercise without being necessary to achieve a compelling state interest.

Be sure and come back tomorrow for comprehensive coverage of the oral arguments, including highlights from the transcript. Until then, because this dispute has generated such public controversy, the Internet is abuzz with Supreme Court previews and commentary today. Below is a sampling to get you up to speed.

I recommend starting with the Baptist Joint Committee's important perspective on RFRA as it relates to these cases. Executive Director Brent Walker writes: "RFRA's constitutionality called into question." General Counsel K. Hollyn Hollman writes: "BJC supports strong legal standard in contraception cases." 

Here are some other previews and opinions:

SCOTUSblog's Lyle Denniston: "Argument Preview: Religion, Rights and the Workplace"

LATimes' David Savage: "Religious case at Supreme Court could affect Obamacare and much more."

The Christian Science Monitor's Warren Richey: "Affordable Care Act and birth control: Can corporatons assert religious rights?"

USA Today op-ed from Ken Starr: "Obamacare shackles religious liberty"

Washington Post op-ed from Walter Dellinger: "Contraception as a test of equality"

NYTimes editorial board: "Crying wolf on religious liberty"

Tomorrow should be an interesting day. My hope is that the Court can spend some time focused on the heart of the case: the scope and legal standard of RFRA, and avoid some of the rhetoric of dire predictions coming from both sides. Stay tuned.

 
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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...
 
Louisiana Considers Holy Bible as State Book
Over the years writing this blog, I have seen several state and local governments memorialize the Ten Commandments through monuments, posters and other government displays. But a recent effort in Louisiana is a new (misguided) way to promote Scripture through government: legislators there are...