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Are RFRA Fights Giving Religious Liberty a Bad Name? E-mail
Written by Don Byrd   
Monday, 17 March 2014
RFRA is getting a bad rap these days. The 1993 federal legislation, which has spawned more than a dozen state-law copycats (or near copies), has served the cause of religious liberty well by protecting religious exercise incidentally but substantially burdened by the government. Its measured approach accomplishes that protection while safeguarding against allowing religion to be a trump card against government regulation. Unfortunately, misguided state amendments and hot-button cultural issues have stretched RFRA's reach, and the rhetoric surrounding it, almost beyond recognition.

Writing in Slate, Emily Bazelon makes the strong argument that RFRA and religious liberty are worth defending, despite the recent spate of bad press both have received.

All of this is giving religious liberty a bad name. In the Hobby Lobby case, groups representing atheists, agnostics, and children are going so far as to argue that RFRA itself is unconstitutional. Their brief, written by Cardozo law professor Marci Hamilton, says this is an “extreme” law that “forces the needs of other believers and nonbelievers to be subservient to the believers invoking RFRA.” But the text of the law isn’t extreme, and up until now the Supreme Court hasn’t interpreted it that way. Instead, the court has gone with a middle-of-the-road reading of RFRA that has promoted respect for religious sensibilities—but stopped short of imposing a significant cost on those other believers and nonbelievers Hamilton’s brief worries about. RFRA strikes a balance, and that’s why liberals as well as conservatives fought for it in the first place.

Read the whole thing.

Louisiana School District Agrees to Court Order Settling Church-State Lawsuit E-mail
Written by Don Byrd   
Monday, 17 March 2014

Updating a blog post from earlier this year, a Louisiana school district has entered into a consent decree with the ACLU to settle a lawsuit challenging egregious violations of religious liberty, including the harassment of a 6th-grade Buddhist student.

USAToday reports on the agreement:

The agreement filed Friday in U.S. District Court in Shreveport contains a long list of prohibited practices. For instance, it says school officials won't discourage or encourage religious activities; they won't assign readings from religious texts, absent a non-religious educational purpose; and they won't express their personal religious beliefs in class or at school events.

You can read the 11-page agreement here. Sometimes these suits seem to drag out for several months before an agreement is reached. It's nice to see the school district respond relatively quickly. Even nicer would have been to protect the liberties of students and families to begin with.

At the ACLU's Blog of Rights, Heather Weaver describes the heart-breaking harassment of the plaintiffs that has only intensified in the wake of the lawsuit.

TN Student Expression Bill is Unncessary, Undermines Religious Liberty E-mail
Written by Don Byrd   
Friday, 14 March 2014

As I posted earlier, the Tennessee House recently passed a bill that purports to protect student religious freedoms at school. Specifically, the proposal would bar discrimination against student religious speech, including religious content in schoolwork. That doesn't sound so bad, right? Fortunately, such equality of expression is already well-protected by the First Amendment, and enshrined in Education Department guidelines.

Unfortunately, the TN bill goes further. In an op-ed in yesterday's Tennessean, ACLU-TN Director Hedy Weinberg explains:

Public school students have the right to be free from coerced participation in religious activity. But SB 1793/HB 1547 would allow student prayer at official school graduations, assemblies and other events where students are a captive audience. When a prayer is delivered as part of an official school event, the unmistakable implication is that the school approves of the religious message, even if the prayer is delivered by a student.

Instead of promoting religious freedom, this legislation seems to undermine that essential liberty by inviting officials to violate the separation of church and state.

New Book From BJC's Walker Released E-mail
Written by Don Byrd   
Thursday, 13 March 2014

A new book explaining the basic issues and central importance of church-state separation from the Baptist perspective is now available! The book, What a Touchy Subject! Religious Liberty and Church-State Separation, is a compilation of last year's Shurden Lectures, delivered by the Baptist Joint Committee's Executive Director, J. Brent Walker. It also includes material on the BJC, and essays on the intersection of religion and politics.

You can find the book at Amazon, Barnes & Noble, or as an e-book at!

The three lectures are titled:

1. First Principles: God-Given, But Government Protected

2. First Freedom: Accommodate Religion, But Don't Advance It

3. Religion and Politics: How Did We Do in 2012?

In his Preface, Walker says the lectures "seek to clear up common, and often controversial, misconceptions regarding church-state issues." If that is of interest to you, check it out!

While I'm on the subject, this year's Shurden Lectures are just around the corner, April 1-2 at Baylor University. See here for more info.

Mississippi House Delays Final Action on Religious Freedom Bill E-mail
Written by Don Byrd   
Wednesday, 12 March 2014

Last week, I posted about the effort in the Mississippi legislature to adopt a Religious Freedom Restoration Act. Unfortunately, in recent months, state RFRA proposals have become increasingly controversial, partly because the language of many of the bills strays too far from the careful safeguards in the federal version, and partly due to the extreme rhetoric from both advocates and opponents.

Perhaps in response to the intense debate, the Mississippi House earlier today voted to send the measure back to be studied by committees, rather than voting on the bill itself. Jackson's Clarion-Ledger explains:

The House Republican leadership on Wednesday, deadline for action on Senate bills, concluded it didn't have enough votes to pass the version approved by the House Judiciary B Committee, and it appeared the measure was going to die on the calendar without a vote. But the GOP leadership was reportedly catching fire from religious groups who didn't want the bill to die.

The GOP leadership recessed the House and called a meeting of the Republican caucus, apparently striking a deal for the study committee amendment.

 The State Senate will now decide whether to agree with the House's approach or reject it.

U.S. House Approves Religious Exemption Amendment to Health Care Law E-mail
Written by Don Byrd   
Wednesday, 12 March 2014

The U.S. House yesterday sent a measure to the Senate that would expand the religious exemption from the Affordable Care Act's individual coverage mandate. As currently written, the ACA exempts any individual that is a "member of a recognized religious sect... and an adherent of established tenets... by reason of which he is conscientiously opposed to acceptance of the benefits of any public or private insurance." This allows members of faiths that object to medical treatment on religious grounds avoid having to purchase insurance.

The Hill's Floor Action blog explains how the House amendment would broaden that exemption:

People seeking an exemption would have to include sworn statements in their tax returns explaining their objection to health insurance.

Rep. Aaron Schock (R-Ill.), who sponsored the bill, said ObamaCare currently exempts only those people who are part of a major religion, which leaves no room for others who also believe they must be exempted.

"Today's bill must become law," he said. "Among the many problems with the Affordable Care Act, the current conscience exemption only protects religious exemptions of a few select faiths."
The bill says anyone who gets a religious exemption and then seeks medical treatment would have their exemption revoked. But Waxman said the IRS would have no way of monitoring people who later decide to seek treatment.

Opponents to HR 1814 (pdf) - the Equitable Access to Care and Health Act - argue the measure will be extremely difficult to enforce, because it would require the IRS to police "sincerely held religious beliefs."

Student Religious Expression Bill Passes TN House E-mail
Written by Don Byrd   
Tuesday, 11 March 2014

By a 90-2 vote, the Tennessee House approved legislation yesterday, sponsored by Rep. Courtney Rogers, that addresses student religious expression in school. The bill bars discrimination against schoolwork that expresses a religious viewpoint and assures the right to join religious clubs to the same extent that secular clubs are available.

Associated Press has more on the motivation behind the proposal:

Rogers said she proposed the legislation after a 10-year-old student was given an assignment to write about the person she most admires and she chose God. The teacher asked her to choose another subject.

 You can read the bill here (pdf).

Ten Commandments Trial Under Way in New Mexico E-mail
Written by Don Byrd   
Tuesday, 11 March 2014
A trial underway in Bloomfield, New Mexico will decide the fate of a 3,000 pound Ten Commandments monument on the front lawn of city hall. Plaintiffs argue the display is an unconstitutional government endorsement of religion. The City counters by claiming the monument is private speech on what they have deemed a public forum, open to any who wish to place "historical monuments."

The Albuquerque Journal has more:

Since the Ten Commandments monument was dedicated on July 4, 2011, two other stone monuments have been erected nearby memorializing the Declaration of Independence and Abraham Lincoln’s Gettysburg Address, [attorney defending the City, Jonathan] Scruggs said.

“We see that private parties are the driving force here,” Scruggs told Senior U.S. District Judge James A. Parker during opening arguments on Monday. Bloomfield had a “secular purpose” of allowing private speech by erecting historical monuments, he said.
Andrew Schultz, an Albuquerque attorney working with the ACLU, contends that Bloomfield leaders drove the effort to erect the monument. The project was proposed in 2007 by Kevin Mauzy, a member of the Bloomfield City Council from 2006 to 2010, and approved unanimously by the four-member council.

“This is not a free speech case,” Schultz said during opening arguments. “It is a case of government speech.”

Stay tuned.

Appeals Court Hears Arguments in Ground Zero Cross Case E-mail
Written by Don Byrd   
Monday, 10 March 2014

The 2nd Circuit Court of Appeals is considering a challenge to the inclusion of a cross in a museum display that is being built partially with public funds. The national memorial museum commemorating Ground Zero of the September 11, 2001 terrorist attacks, is scheduled to open this Spring with a cross-shaped beam from the wreckage that became a religious symbol for many. 

American Atheists argued before the Appeals Court last week that the District Court was wrong to dismiss the case. Religion News Service has more:

In his appeal, [American Atheists lawyer Edwin] Kagin said his organization is seeking a similar object to be displayed at the museum, something like a plaque that would say “atheists died here, too.”

“We’re arguing for equal treatment in some way, whatever that might be,” Kagin said after the hearing.

Questions raised by the three-judge panel included whether similar treatment would be needed in a place like the Holocaust Museum, a museum that includes Jewish artifacts but would not be considered an endorsement of Judaism.
“We’re worried about the alienation of atheists,” [Kagin] said. “We’re deeply concerned this cross gives one story, and that’s for Christians.”

In the District Court's opinion a year ago, the judge ruled that the inclusion of the cross does not improperly advance or promote religion because it was included in the context of a museum display and would be surrounded by several secular artifacts. She also rejected the plaintiff's argument that the cross' temporary housing at a church constituted excessive entanglement between the museum foundation and the church. 

Whenever the Appeals Court rules, you can read about it here at the BJC's Blog From the Capital.

EEOC Issues New Religious Accommodation in the Workplace Guidance E-mail
Written by Don Byrd   
Saturday, 08 March 2014

Via Religion Clause, the EEOC has issued new guidance regarding religious attire and grooming practices in the workplace. The publication describes the "rights and responsibilities" of employers, emphasizing that federal law prohibits disparate treatment on the job, the denial of accommodation, workplace segregation, workplace harassment, or retaliation for accommodation requests.

Examples of religious dress and grooming practices include wearing religious clothing or articles (e.g., a Muslim hijab (headscarf), a Sikh turban, or a Christian cross); observing a religious prohibition against wearing certain garments (e.g., a Muslim, Pentecostal Christian, or Orthodox Jewish woman's practice of not wearing pants or short skirts), or adhering to shaving or hair length observances (e.g., Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish peyes (sidelocks)).

In most instances, employers are required by federal law to make exceptions to their usual rules or preferences to permit applicants and employees to observe religious dress and grooming practices.

Included in the publication is 21 examples to guide employers and employees, noting that the number of workplace discrimination complaints on the basis of religion has more than doubled since 1997.

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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...