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"What Happened in Arizona?" E-mail
Written by Don Byrd   
Thursday, 20 March 2014

In the newest issue of the BJC's Report From the Capital, General Counsel K. Hollyn Hollman discusses highly controversial religious freedom legislation vetoed by the Arizona Governor because it raised discrimination concerns. The proposal and the ensuing media storm cast an unfortunate shadow on RFRA legislation.

In her column, Hollman offers reasons why the Arizona bill escalated from a proposal to strengthen religious liberty protection into a culture war clash. In this climate, she suggests, proposals like the Arizona law are likely to cause more harm than good to the cause of religious liberty.

Here is a snippet:

Underlying this story is the fact that religious freedom in the bold American constitutional tradition means religious freedom for the broadest range of religious claims, including ones that are not well-understood or well-liked. Religious freedom is popular in general — most Americans take pride in it as a distinctive feature of our Constitution. It is more difficult, however, to understand and empathize with the incredible diversity of claims and contexts in which religious conflicts arise and RFRA can be invoked.

Contrary to some reports, the Arizona legislation did not mention discrimination or any minority group. But, a growing concern for the rights of the LGBT community made even the possible future usage to discriminate more than Arizona could stand. For most people, it is difficult to see how one’s religious beliefs can legally justify discrimination against a customer based upon some minority status. The idea that such a claim could be made, regardless of the specific context (related to weddings or other religious services) was enough to taint the Arizona legislation.

Red the whole thing.

Salvation Army Settles Religious Discrimination Lawsuit E-mail
Written by Don Byrd   
Wednesday, 19 March 2014

The Salvation Army has agreed to pay more than $450,000 to a pair of former employees and institute a program to notify employees in federally funded programs of their religious freedom rights.The employees complained about being required to disclose their religious affiliations despite working in publicly funded areas of the organization, and were later forced out of their jobs for questioning those policies, according to the complaint.

The NYTimes has more on the settlement:

As part of the settlement, approved by a federal judge in Manhattan, the Salvation Army will distribute to its New York employees who work in programs that receive government financing a document stating that they need not adhere to the group’s religious principles while doing their jobs, nor may they be asked about their religious beliefs.
The group, which administers millions of dollars in government contracts to run homeless shelters, soup kitchens, after-school programs and day care centers in the New York area, did not admit wrongdoing as part of the settlement.

Earlier settlements in the ten-year-old lawsuit included government agency audits to safeguard the separation of church and state with regard to taxpayer funds.

US Reps Discuss Military Religious Freedom During Air Force Budget Hearing E-mail
Written by Don Byrd   
Tuesday, 18 March 2014

A church-state kerfuffle erupted last week as reports went viral claiming an Air Force cadet was forced to remove a Christian message from the hallway white board outside his room after religious freedom gadfly Mikey Weinstein reported complaints from other cadets to military officials. Dispute over just what happened and the extent of cadets' religious freedom traveled quickly through conservative religious outlets and didn't take long to reach Washington. 

The Washington Post reports that in a House hearing about the Air Force budget Friday, the Secretary was confronted about the incident.

In the version [Representative Randy] Forbes [R-VA] relayed, the “entire” Air Force chain of command told the cadet to erase the quote from his whiteboard in his private room. [Air Force Secretary Deborah] James said it was her understanding that another cadet, who felt uncomfortable went straight to the source, and the cadet who wrote it voluntarily took it down.
Gen. Mark Welsh III, chief of staff of the Air Force, jumped in and said the whiteboard in question is not located in the cadets’ rooms, but rather in a shared hallway. There have been “hundreds of quotes” removed from the public board, he said.

“. . . . Every cadet has a right to free religious expression, but if someone else comes to him and says that bothers me, and they have that discussion — if that’s happened, I would compliment both of them,” Welsh said. Then added, “We’ve got to get the facts straight.”

The specific facts matter a lot in a dispute like this. Who has access to the boards? Where are they? What is the policy regarding the use of the white boards? Who erased it and why?

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).

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Louisiana Legislator Pulls State Book Bill
On second thought, Louisiana State Representative Thomas Carmody has decided to end his bid to make the Holy Bible the official state book, just ahead of a scheduled vote of the House yesterday. The Times-Picayune has more: The bill had become a distraction, he said. ... Initially, ...
Details will Determine Propriety of New Public School Bible Curriculum Offering
Hobby Lobby founder Steve Green has already made a name for himself in the world of constitutional law by bringing the contraception coverage lawsuit the U.S. Supreme Court will decide later this year. But if he has his way, he may have an even bigger impact through his public school Bible c...