Despite opposition from civil and religious liberty groups including the Baptist Joint Committee, the U.S. House last month approved a bill that allows public funding of churches through FEMA grants following natural disasters like Hurricane Sandy. Today, a NYTimes editorial makes the case against the bill and urges the Senate not to pass it on to the President.

Supreme Court rulings interpreting the First Amendment’s prohibition against establishment of religion have long barred the direct use of tax money to build, repair or maintain buildings devoted to religious services or other religious activities.
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The First Amendment does not allow a Hurricane Sandy exception to pay for the rebuilding of damaged houses of worship. The Senate should let the bill die.

 Indeed.

Last week, I posted about Kentucky House Bill 279, legislation raising the level of judicial scrutiny for government action placing a burden on religious exercise. If this bill becomes law, enforcing a law against an individual whose religious exercise is burdened by it will require the government to demonstrate a compelling interest.

On Friday the Commonwealth's House passed the measure 82-7. Here's one description from the Lexington Herald-Leader:

Rep. Bob Damron, D-Nicholasville, the sponsor of HB 279, said the measure would further clarify religious freedoms in state law. Thirteen other states have similar laws. The federal government enacted a religious-freedom bill in 1993.

Damron said the bill was needed because of recent state and U.S. Supreme Court cases that have changed the way religious freedom is interpreted.

It is true that the federal government and several states have *similar* laws. There is a key difference that's important, however, and which has gone unmentioned in most coverage. Where the federal law and most state laws (called RFRAs) require the burden on religious exercise to be "substantial" before a compelling government interest must be shown, Kentucky's proposed law places that high standard on any burden.

Is that a big difference? Yes. So big, in fact, that the Baptist Joint Committee, which supported and helped make law the federal version, has opposed versions without the substantial burden language. In the earlier post I quoted the BJC's Nan Futrell explaining why that is so important. It's worth a read.

The bill now moves to the Senate.

Read more here: http://www.kentucky.com/2013/03/01/2537796/kentucky-house-passes-religious.html#storylink=cpy

By a 2-1 vote, a panel of the Colorado Appeals Court has upheld the state's school voucher program (pdf), reversing the trial court's determination that it violates provisions of the state's Constitution. The court relied heavily on the reasoning of Colorado Supreme Court's 1982 decision in Americans United, which rejected a challenge to a similar program to the Choice Scholarship Program (CSP) currently being considered.

In upholding the grant program, the court [in Americans United] found that it was “designed for the benefit of the student, not the educational institution,” and was neutral in the sense that it was “available to students at both public and private institutions of higher learning.”

Essentially the same can be said of the CSP.

The program in Americans United was different in one key respect: it did not allow state funds to go to "pervasively sectarian" institutions. This threshold kept public funds from being used for religious indoctrination. Here, the Appeals Court says determining the "pervasively sectarian" nature of a religious institution is no longer allowed.

So many religion-themed bills are being proposed and advanced in state legislatures these days, it's hard to keep up.

In Texas, a resolution was introduced Monday (pdf) that says the legislature "support(s) prayers, including the use of the word 'God,' at public gatherings as well as displays of the Ten Commandments in public educational institutions and other government buildings."

In North Carolina, meanwhile, a bill would add a Bible study elective to the public school curriculum.

"This is an elective," said [State Sen. Stan] Bingham (R-Davidson). "I don't think it's out of order for a student to ask a school system to take an elective in the Bible. It also would be out of order for the same student to say I want to take a course and study the Quran, or the Jewish religion, or whatever religion you wish to pick."

Bingham's bill, as written, only names the Bible as an option. A dozen lawmakers in the GOP-controlled Senate have signed on as co-sponsors, including three Democrats.

Sarah Preston, policy director at the American Civil Liberties Union-North Carolina, said it is notoriously difficult to teach the Bible inside a public school in a manner consistent with the First Amendment, which can put educators in a thorny situation.

Earlier in the week, I posted about Kentucky's bill that would raise the standard of scrutiny for any state burden on religions (not even just the substantial burdens). In addition, Tennessee is considering legislation that would allow student religious organizations to discriminate in membership. So is Virginia, where a constitutional amendment about religion in schools is also making its way through the legislative process. Oklahoma is pondering a student academic freedom bill that is all about religion but dares not mention the name. The one in Missouri is more direct about its interest in creationism (and probably has worse propects for passage as a result).

Am I missing any?

The Tennessee legislature is trying again to pass a bill that would allow student groups on college campuses to determine membership on the basis of religion. The last attempt was vetoed by Tennessee Governor Bill Haslam, who explained that the state shouldn't be mandating to private institutions rules regarding student organizations.

Now the bill's sponsors have limited the measure, but not without critics.

The new bill presented in Tennessee would only apply to state-supported schools, such as the University of Tennessee. It would change the law to specify that a religious student group could require all of its members to profess the faith of the group.

“We’re bringing that back, to apply to our public institutions –- the ones we can affect -– to make sure that you’re not forced to accept people who do not believe the same way you do," Beavers told WPLN of the new effort.
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"These bills are about discrimination, plain and simple," Hedy Weinberg, executive director of the ACLU-TN, said in a statement. "Legislation that would require publicly-funded institutions to recognize student groups that exclude potential members based on religion...uses religion to discriminate."

 The bill, which you can read here, has been passed on to the House Education Committee.

The House Judiciary Committee of Kentucky approved legislation that would require the state to have a compelling interest to place any burden on religious exercise. This standard is even higher than federal and state RFRA bills (Religious Freedom Restoration Act) that require the burden on religion to be "substantial." According to the Lexington Herald-Leader, lawmakers hope this legislation would protect religious groups from unnecessary prosecution.

If Kentucky had such a law in recent years, a fight between the state and the Amish community over the appropriate signage for horse-drawn buggies would have been avoided, [Rep. Bob] Damron said.
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The Republican-led Senate approved a proposed constitutional amendment last year that contained similar language about religious freedoms. The measure, which would have required voter approval, died in the Democratic-led House.

Damron said Monday he doesn't think a constitutional amendment is needed to enact the religious freedom protections outlined in HB 279.

The question remains, does this protection go too far? While the BJC led the fight for the 1993 federal Religious Freedom Restoration Act, the group last year opposed a North Dakota measure because, like this bill, it lacked the "substantial burden" requirement included in standard RFRA language. Nan Futrell wrote:

Without the substantial burden requirement, nearly any state law or regulation could be subject to exemption challenges, effectively making religious liberty an automatic trump card. Under RFRA’s more measured approach, courts seek to balance personal religious liberty interests with other important government interests.

The full text of Kentucky's HB 279 as reported by the Herald-Leader is below:

Government shall not burden a person's or religious organization's freedom of religion. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A "burden" shall include indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities.

A unanimous panel of the 6th Circuit today affirmed the constitutionality of the yearly Nativity Scene displayed by the city of Warren, Michigan because it is "accompanied by...secular and seasonal symbols." The ruling dismisses a challenge by the Freedom From Religion Foundation that argued the display improperly promoted and established religion, and asking for the inclusion of an anti-religious message.

Some key quotes from the opinion, rejecting FFRF's argument and request (citations removed):

Inmates who practice the Wiccan faith in a California prison have sued over the lack of access to Wiccan chaplains. Jewish, Muslim, Catholic and Protestant chaplains are on staff, they claim, but no Wiccan, despite the fact that more prisoners are of Wiccan than Jewish, Muslim or Catholic faith at the facility (the Central California Women's Facility). The trial court dismissed their claims, noting that not all prisoners are entitled to the chaplain of their choice.  Earlier this week, the 9th Circuit agreed on the religious exercise claims, but reversed the trial court's ruling on the Establishment Clause claim.  

Members of the U.S. Congress have filed a brief with the 10th Circuit Court of Appeals, arguing that the Religious Freedom Restoration Act (RFRA) was intended to protect corporations like Hobby Lobby from government restrictions like the contraception coverage requirement in the Affordable Care Act. Courthouse News Service reports:

"Congress plainly wrote RFRA to include corporations," the 29-page brief states.

The congressmen argued that Obama administration has "created a three-tier categorization of religiously objecting employers and have subjected plaintiffs to third-class treatment in the lowest tier."     

"This contravenes the design of RFRA," they added. "Congress knew that a healthy respect for religious freedom as exercised by a variety of actors would call for various government responses appropriate to the circumstances."     

Kyle Duncan, general counsel for the Becket Fund for Religious Liberty, says the brief "leaves no doubt" that Congress intended to protect the religious freedoms of those like Hobby Lobby and the Greens against the mandate.

You can read the brief here.