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U.S. Supreme Court Agrees to Hear Religious Challenge to Prison Grooming Standards E-mail
Written by Don Byrd   
Monday, 03 March 2014

The U.S. Supreme Court has agreed to weigh in on the question of whether prison grooming policies of the Arkansas Department of Corrections, requiring inmates to shave, violate the religious freedom rights under the First Amendment or the Religious Land Use and Institutionalized Persons Act (RLUIPA) of prisoners whose religion forbids it. RLUIPA prohibits the state from substantially burdening an inmates's religious exercise unless the burden is necessary to achieve a compelling government interest.

The case is Holt v. Hobbs. The 8th Circuit previously ruled that the policy is permissible to meet the compelling security interests of the state. The plaintiff argues, however, that grooming policies in other jurisdictions allowing inmates limited facial demonstrates that Arkansas' policy is not necessary to meet its security objectives.

Law professor and blogger Eugene Volokh provides some additional context and details surrounding the case here.

Meanwhile, the Washington Post's Robert Barnes wonders whether the Court will accept the petition in the controversial New Mexico case involving a photography company found to have violated the civil rights of a same-sex couple under state law by refusing to provide services for their wedding. The case is largely considered the impetus behind many controversial state laws like Arizona's SB 1062, which would have bolstered the rights of companies to refuse such service when contrary to their religious beliefs, had the governor not vetoed it. Elane Photography LLC v. Willock is scheduled for consideration during the conference on March 21.

Cases like Holt v. Hobbs, as well as the contraception coverage cases slated for oral argument later this month, give the Court the opportunity to provide some definition to Congress' no substantial burden unless compelling interest standard enshrined in laws like RFRA and RLUIPA. Stay tuned.

What Does AZ Bill, Brewer's Veto Say About the State of Religious Liberty in the U.S. Today? E-mail
Written by Don Byrd   
Friday, 28 February 2014

Pundits, reporters, and experts are weighing in today on the aftermath of Governor Brewer's decision to veto controversial amendments to the Religious Freedom Restoration Act. The changes were designed to bolster businesses and individuals' right to refuse service when in conflict with religious beliefs. Over the course of the last couple of weeks, the idea - which many states are considering in some form - has gained national attention.

Here are some clips from today's perspective pieces around the web:

Quoted in the Washington Post report, Law professor and church-state scholar Douglas Laycock suggests the rhetoric is too high on both sides:

Douglas Laycock, a University of Virginia law professor who specializes in issues of religious freedom, said controversy over a handful of cases involving social issues is “creating a public that is hostile to the very idea of religious liberty.”

“The debate has been captured by utterly intolerant people on both sides,” he said. “Everybody wants religious liberty for me, and my opponent ground into the dust.”

Columnist E.J. Dionne worries that the push for conscience rights will further alienate young people from religion:

Pushing “conscience exemptions” beyond reasonable limits threatens a long-standing American habit of having government go out of its way to accommodate the commitments of religious people.
Those who cherish religious faith ought to be heartsick that it is so often invoked not to advance compassion and understanding but rather to justify discrimination and even bigotry. This is doing serious harm to our religious traditions, particularly among the young.

Ron Fournier warns that hyperbole from the Religious Right undermines the message of religious freedom, as when Family Research Council head Tony Perkins claimed Governor Brewer's veto was an announcement that she "supports government discrimination against people's religious freedom."

No, that's not what she's saying. . . . Perkins knows better, and his inflammatory language hurts his cause.

To be clear, I worry about infringements on personal liberties under Presidents Obama and Bush, and I consider religious freedom a cornerstone of American democracy. I empathize with the views of Perkins and others, but I am suspicious when people use religion to marginalize others. . . .  I hear echoes of the segregated South.
My takeaway: In this great and diverse country, we are capable of protecting people's right to express their faith and worship freely without tramping others' rights to live freely.

What do you think? What does this week, and this debate, say about the state of religious freedom today? Send me a note - don.byrd - at -, or tweet at me: @bjcblog. I would love to hear your thoughts.

Virginia House Sends Student Religious Exercise Bill to Governor E-mail
Written by Don Byrd   
Thursday, 27 February 2014

The Virginia House of Delegates yesterday passed a bill 64-34 requiring school districts to grant broad religious free exercise rights for students. Many of these rights - like those allowing students to voluntarily pray on school grounds - are already protected by the First Amendment. Other provisions of the bill - like those allowing students to pray at the microphone when speaking at school sponsored events - may run afoul of the First Amendment's religious liberty guarantees, or create other legal problems for school officials.

The bill previously passed the Senate 20-18 but the Governor has indicated he intends to veto it.

Arizona Governor Vetoes Controversial RFRA Amendments E-mail
Written by Don Byrd   
Wednesday, 26 February 2014

The Arizona legislature last week passed sweeping amendments to the state's Religious Freedom Restoration Act that would protect individuals and businesses from government regulation as well as private lawsuits for their religiously motivated conduct. The bill will not become law, however, following tonight's veto from Governor Jan Brewer. In her veto statement, she explained her reasoning (pdf):

Senate Bill 1062 does not address a specific and present concern related to religious liberty in Arizona. I have not heard of one example in Arizona where a business owner’s religious liberty has been violated. The bill is broadly worded and could result in unintended and negative consequences. After weighing all of the arguments, I vetoed Senate Bill 1062 moments ago. To the supporters of the legislation, I want you to know that I understand that long-held norms about marriage and family are being challenged as never before. Our society is undergoing many dramatic changes. However, I sincerely believe that Senate Bill 1062 has the potential to create more problems than it purports to solve. It could divide Arizona in ways we cannot even imagine and no one would ever want. Religious liberty is a core American and Arizona value, so is non-discrimination.
Fuzzy Math, Bad Hearing, Push Outrageous School Prayer Bill Forward in Alabama E-mail
Written by Don Byrd   
Wednesday, 26 February 2014

Last week brought one of the strangest state legislation stories to come around in a while (and these days that is saying something). A bill in Alabama that would require schools to start the day with a recitation of prayer was passed out of committee last week, even though more committee members voted against it than for it

The Montgomery Advertiser explains:

Rep. Mary Sue McClurkin, R-Indian Springs, chairwoman of the committee, said she heard more votes in favor of the bill.

“It’s what I heard as chairman,” she said.

Reps. Terri Collins, R-Decatur, Elaine Beech, D-Chatom, and Phil Williams, R-Huntsville, all voted against the bill. Reps. Marcel Black, D-Tuscumbia, Mac Buttram, R-Cullman, and Kerry Rich, R-Albertville, did not vote at all.

The only two to vote in favor of the bill were McClurkin and Rep. Lesley Vance, R-Phenix City.

Democracy at its finest, right?

As I explained in an earlier post, proponents of the bill try to skirt the obvious church-state problem with logic that rivals the committee's math skills. It's not real prayer, the sponsor says, it's civic eduction into the nation's historic prayer.

Sigh. Read more about it here.

BJC Urges Georgia Lawmakers to Reject RFRA Proposal in Current Form E-mail
Written by Don Byrd   
Tuesday, 25 February 2014
From Kansas to Arizona, state religious freedom legislation has been a troubling news item the last couple of weeks. Now we may need to add Georgia to the list if HB 1023 moves forward as is. The bill is a state version of the Religious Freedom Restoration Act (RFRA), a federal law barring the government from substantially burdening a person's religious exercise without a compelling interest as justification.

The federal RFRA was originally adopted with broad support across political lines because it shored up protections for a person's religious exercise while maintaining key language to safeguard against allowing religion to be a trump card against federal laws and regulations. Unfortunately, several states including Georgia have been considering RFRA legislation or amendments that stray far afield from that carefully balanced federal law.

The Baptist Joint Committee led the diverse coalition that pushed Congress to adopt RFRA in 1993, but is urging Georgia lawmakers to reject HB 1023 as it is currently written. Here is a part of a letter the BJC sent to Georgia Representatives:

HB 1023...differs in significant ways from the version of RFRA that the BJC has supported. These differences raise concerns about striking the right balance when religious liberty interests conflict with other important governmental interests, including the prohibition on government establishment of religion. Notably, HB 1023 just says government cannot burden religion - it doesn't include the important modifier that the burden must be substantial. . . . Without the substantial burden requirement, nearly any state law or regulation could be subject to exemption challenges. While religious liberty is one of our most precious rights, it is not an automatic trump card. 

You can read the entire letter here.

Stay tuned.

7th Circuit Rejects Notre Dame Argument for Injunction in Contraception Coverage Case E-mail
Written by Don Byrd   
Monday, 24 February 2014

By now, most of you are familiar with the lawsuits brought by Hobby Lobby and others challenging the Affordable Care Act's requirement that employee health insurance plans provided by for-profit employers must include coverage for contraception. The U.S. Supreme Court is set to hear arguments over this issue next month.

But there is another strain of religious-based challenges to the mandate winding its way through courts. This second group of lawsuits has been brought by religious institutions that are exempt from the requirement to provide such coverage. Despite being exempt, they object because once they claim their exemption, insurance companies will be required to offer such coverage directly to their employees. Requiring the institution to "trigger" such events violates their rights under the Religious Freedom Restoration Act, they argue, because it substantially burdens their religious exercise without a compelling government justification.

In a ruling issued Friday, the 7th Circuit Court of Appeals denied an injunction sought by one of those plaintiffs, Notre Dame University, largely because the Court was skeptical of the "trigger" argument. Here are some highlights from the opinion:

If the government is entitled to require that female contraceptives be provided to women free of charge, we have trouble understanding how signing the form that declares Notre Dame’s authorized refusal to pay for contraceptives for its students or staff, and mailing the authorization document to those companies, which under federal law are obligated to pick up the tab, could be thought to “trigger” the provision of female contraceptives.
The accommodation in this case consists in the organization’s (that is, Notre Dame’s) washing its hands of any involvement in contraceptive coverage, and the insurer and the third‐party administrator taking up the slack under compulsion of federal law. Notre Dame is telling Aetna and Meritain: “we’re excused from the new federal obligation relating to contraception,” and in turn, the government tells those insurance companies “but you’re not.” This is a warning, not a trigger. It enables nothing. The sole “enabler” is the federal statute that Notre Dame has been allowed to opt out of.
The Court also emphasized that the insurance companies would be required to offer contraception coverage to the employees regardless of whether Notre Dame properly alerted them of their exemption. "[S]igning the form simply shifts the financial burden from the university to the government."
Judge Dismisses Lawsuit Challenging Muslim Surveillance Program of NYPD E-mail
Written by Don Byrd   
Sunday, 23 February 2014

A federal judge last week granted the City of New York's motion to dismiss a lawsuit challenging the Police Department's practice of targeting Muslim communities for surveillance, following the terrorist attacks of September 11, 2001. The secret program, which included surveillance of Muslim houses of worship, came to light through an Associated Press report in early 2012. The plaintiffs filed suit a few months later.

In dismissing their case, the judge found the plaintiffs lack standing to bring the suit because their failed to establish that their injury was the result of targeted discrimination. From the ruling (pdf), (via Religion Clause):

[T]he Plaintiffs in this case have not alleged facts from which it can be plausibly inferred that they were targeted solely because of their religion. The more likely explanation for the surveillance was a desire to locate budding terrorist conspiracies. The most obvious reason for so concluding is that surveillance of the Muslim community began just after the attacks of September 11,2001. The police could not have monitored New Jersey for Muslim terrorist activities without monitoring the Muslim community itself. While this surveillance Program may have had adverse effects upon the Muslim community after the Associated Press published its articles; the motive for the Program was not solely to discriminate against Muslims, but rather to find Muslim terrorists hiding among ordinary, law-abiding Muslims.

Does that logic work for you? The plaintiffs were not targeted solely because of their religion; they were targeted solely because their religion is the same as a small group of terrorists? For what it's worth, the NYPD claims to have discontinued this operation.

This case is separate from a similar lawsuit subsequently filed by the ACLU challenging the practice.

Arizona Legislature Passes Broad Religious Exemption Amendments to State RFRA E-mail
Written by Don Byrd   
Thursday, 20 February 2014

The Arizona Legislature passed a bill this evening amending its state version of RFRA. The changes seem designed to bolster the rights of individuals and businesses to refuse service to others based on religious beliefs.

The Christian Science Monitor reports:

The bill allows any business, church or person to cite the law as a defense in any action brought by the government or individual claiming discrimination. It also allows the business or person to seek an injunction once they show their actions are based on a sincere religious belief and the claim places a burden on the exercise of their religion.
Opponents raised scenarios in which gay people in Arizona could be denied service at a restaurant or refused medical treatment if a business owner thought homosexuality was not in accordance with his religion.

The bill, which you can read here, now heads to Governor Brewer for her signature. She vetoed similar legislation a year ago.

7th Circuit Hears Arguments Over Evansville Crosses E-mail
Written by Don Byrd   
Thursday, 20 February 2014

The 7th Circuit Court of Appeals heard arguments yesterday in the challenge to roadside crosses at the popular riverfront in Evansville, Indiana. The city allows private organizations to apply to use the space to publicize events, but plaintiffs argue that approval of the Christian display, which consisted of 31 6-foot crosses, violated the Establishment Clause of the First Amendment by giving the appearance of a government endorsement of Christianity.

The Evansville Courier & Press reports on the arguments between the church - which believes the freedom of speech requires the city to treat religious displays the same as non-religious displays - and the plaintiffs, who counter that religious displays are different and require scrutiny to ensure the appearance of religious endorsement by government is avoided.

[P]rivate speech does not violate the establishment clause, when it is made in an open, for-speech forum that is approved through the same process as other forms of speech,” Beauman said. “Christians have the same First Amendment rights as every other American. Religion can’t be singled out for censorship simple because it’s religious speech. The First Amendment protects all types of speech, religious or non-religious or debates among the religious. It’s all protected.”
“We are talking about 31 crosses in an area that virtually has no history of anything similar,” Rose said. “There are a long line of cases that when the free speech clause and establishment clause conflict that the establishment clause wins. Government has a compelling reason to avoid the appearance of endorsing a religion even if that means not letting a private speaker use that forum.”

The court could render a significant decision about the interaction between the freedom of speech and the Establishment Clause, or it could dismiss the church's appeal for lack of standing, since the City of Evansville chose not to appeal the district court's previous ruling halting the crosses. Stay tuned.

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New Hampshire Supreme Court Debates Aid to Religious Schools Program
The New Hampshire Supreme Court last week heard oral arguments in a challenge to the state's tuition tax credit program. Businesses in the state are receiving tax credits for paying private school tuition through a scholarship incentive program. Because many of those funds are going to ...
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...