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Wyoming Corrections Department Accused of Violating Religious Liberty of Jewish Inmates E-mail
Written by Don Byrd   
Monday, 13 January 2014

Last week the ACLU sent a letter to the Wyoming Department of Corrections requesting they revise a policy that prohibits inmates from wearing a yarmulke outside their cell or in religious services. Under RLUIPA, such a rule may substantially burden an inmate's religious exercise only if it is necessary to achieve a compelling government interest. Assuring that inmates are afforded basic religious accommodations, the ACLU writes, is exactly why RLUIPA was adopted.

From the ACLU's Blog of Rights:

The WDOC cited generic "security concerns" for its refusal to grant Mr. Fisher's request to wear a kippah in accordance with his religious beliefs, but have offered no evidence, as required by RLUIPA, to support their claim. In fact, when prisoners are outside, they can wear baseball caps and hats purchased at the prison commissary. What kind of contraband could be hidden in a kippah but not a baseball cap?

Nor did prison officials explain why other, less restrictive measures (e.g., subjecting kippahs to searches) could not address any real security concerns that may be associated with religious headdress. Many prisons across the country, including those governed by the Federal Bureau of Prisons, allow prisoners to wear kippahs at all times and throughout the facilities without problems. Are the security concerns at the WDOC so unique that they cannot adopt similar policies?

 You can read the letter here.

Missionaries: Duck Dynasty Not an Example of Christian Persecution E-mail
Written by Don Byrd   
Sunday, 12 January 2014

Associated Baptist Press reports on missionaries and others miffed at the idea that the recent controversy over the star of Duck Dynasty is an example of the persecution of Christians.

I have to challenge myself not to get angry about it,” said [Gavin] Rogers, a former Cooperative Baptist youth minister who traveled to strife-torn Egypt twice in 2013.

Those journeys, one during the Egyptian army’s crackdown on Islamists and another immediately after it, included visits to Coptic, Anglican and other churches that were attacked last summer by angry supporters of the Muslim Brotherhood.

The recent controversy involving "Duck Dynasty" star Phil Robertson — he was temporarily suspended from the show after criticizing homosexuals and supporting the Jim Crow South — has exposed the disconnect between how conservative American Christians view persecution compared to liberals, moderates and disciples around the world.

Justice Department Argues Contraception Mandate is Not a Substantial Burden E-mail
Written by Don Byrd   
Sunday, 12 January 2014

Politico reports on the brief filed with the U.S. Supreme Court by the Justice Department late Friday in the contraception mandate cases. The government argues the burden placed on religious owners of closely held corporations by the requirement to provide such coverage is not substantial enough to trigger First Amendment protection. The burden, they claim is too indirect.

In arguments filed late Friday, Justice Department lawyers told the court that an employer’s religious beliefs aren’t a legitimate reason to deny something as important as preventive care to an employee who is entitled to it under the health law.

“The connection is too indirect as a matter of law to impose a substantial burden” on employers’ right to practice their religion, the lawyers wrote in their opening argument defending the contraceptive requirement against Hobby Lobby Stores Inc.

Some courts have agreed that the burden on the corporate owners is too indirect to satisfy the Religious Freedom Restoration Act. Here is the District Court in the Hobby Lobby case (pdf) (subsequently overturned by the 10th Circuit)(citations removed):

Evaluating the “directness” factor here, the court concludes the Greens are unlikely to be able to establish a “substantial burden” on them within the meaning of RFRA. The mandate in question applies only to Hobby Lobby and Mardel, not to its officers or owners. Further, the particular “burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by [Hobby Lobby's] plan, subsidize someone else's participation in an activity that is condemned by plaintiff's religion.” Such an indirect and attenuated relationship appears unlikely to establish the necessary “substantial burden.”

Snake-Handling Pastor Won't be Charged with Violating TN Wildlife Laws E-mail
Written by Don Byrd   
Thursday, 09 January 2014

Following up a story from last year, a Tennessee preacher whose church practices snake-handling as part of its religious ceremony will not be charged with violating the state's wildlife laws. A raid by the Wildlife Resources Agency seized dozens of venomous snakes the law bars from possession.  A grand jury, however, after hearing from the pastor himself, declined to hand down indictments.

RNS reports:

“I’m ecstatic,” he said in a phone interview Wednesday. “All the headlines should read ‘Snake handlers have religious rights in Tennessee.’”

Hambin said he was allowed to address the grand jury for half an hour at the hearing. His defense was simple. The snakes weren’t his, he said. They belonged to the church, and Hamblin said the wildlife officials had no business raiding a church.

 The surviving snakes will be cared for at the Knoxville Zoo, not returned to the church, according to the report.

Supreme Court Sets Oral Argument Date in Contraception Cases E-mail
Written by Don Byrd   
Wednesday, 08 January 2014

SCOTUSblog reports the U.S. Supreme Court today released the oral argument calendar for late March and early April. Included in the calendar are high-profile religious cases, Hobby Lobby and Conestoga Wood Specialties. The arguments will be heard Tuesday, March 25. 

These challenges will bring the Religious Freedom Restoration Act (RFRA) to the forefront as the justices discuss whether the law protects closely-held secular companies from the requirement to provide health care insurance that includes contraception coverage.

Last year, the 10th Circuit Court of Appeals ruled in Hobby Lobby that the company owner's religious expression through their company is protected by RFRA. Accordingly, the contraception mandate was found to violate their First Amendment rights. In Conestoga Wood, on the other hand, the 3rd Circuit  held corporations cannot exercise religion, thus RFRA offers no protections.

Stay tuned.

Satanists and the Spaghetti Monster: Is the Future of Government Religious Displays Now? E-mail
Written by Don Byrd   
Tuesday, 07 January 2014

While we wait to find out if federal courts will find a Ten Commandments display at the Oklahoma Capitol constitutional or not, groups are lining up to include their own monuments alongside it if it is allowed. Most recently a group claiming to represent a "Satanic" church in New York has unveiled its proposed statue. Associated Press has published a drawing of the plans, and describes it this way:

The 7-ft.-tall (2.1 m) sculpture would feature Satan depicted in the form of Baphomet, a bearded, goat-headed, winged hominid with horns seated on a throne beneath a pentagram with two smiling children to either side.
In addition to representing the Satanic religion, the monument “will also have a functional purpose as a chair where people of all ages may sit on the lap of Satan for inspiration and contemplation,” said Satanic Temple spokesperson Lucien Greaves.

Meanwhile, in a story that strangely feels related to me, a newly elected New York Town Council member who claims to be a member of the farcical Pastafarian religion, whose deity is the Flying Spaghetti Monster, was sworn in wearing a colander on his head. He called it a "statement of religious freedom."

In Florida, a group's proposed Satanist display was rejected by the state, though it's unclear the grounds for rejection after allowing a Festivus beer pole and Flying Spaghetti Monster display next to a Nativity scene. Indeed, some atheists and Christians in the state are finding common ground in the desire to maintain a public forum at the state's Capitol for such displays.

This appears to be the future of religious displays so long as state and local governments insist on allowing religious displays. They can show no favor to one religious perspective over another. Does this feel like a positive development for religion?

Many religious advocates for the separation of church and state - including the Baptist Joint Committee - argue that government religious displays do religion no favors. Wouldn't it be better to leave government out of the business of religious displays altogether?Or do you prefer the Christian-Satanist-Spaghetti Monster lineup at the State Capitol as a good way to honor your faith?

Candy Cane Incident Raises Student Religous Expression Questions E-mail
Written by Don Byrd   
Monday, 06 January 2014

How should public school officials protect the religious expression rights of young students while avoiding the appearance of endorsing those religious views and protecting other students from unwelcome proselytizing? Principals, teachers and school boards  deal every year with such balancing obligations. When the solution includes refusing to allow the expression, students and their parents are understandably upset and often seek to enforce their rights through the court system. For reasons that escape me, apparently no form of expression causes more contention than candy canes with religious messages attached.

When a Texas elementary student tried to share with his classmates candy canes with religious messages tied around them in 2003, it sparked a legal battle that has lasted nearly ten years, and counting, and gathered additional family plaintiffs along the way. In Pasadena, California last month, school officials were allegedly "hostile and intimidating" in refusing a student's request to distribute similar candy canes.

Attorneys say when Martinez brought the candy canes to class, [his teacher Valerie] Lu took possession of them and after conferring with school principal Gordon Pfitzer, told Martinez that “Jesus is not allowed in school.”

Lu, at the apparent direction of Pfitzer, then ripped the candy cane message from each candy cane, threw them in the trash, and returned the candy canes back to Martinez for delivery to his classmates, according to attorneys.

School officials have a tough job in balancing the First Amendment freedoms of students, but at this point shouldn't there be a better plan for handling the student-initiated distribution of material? A candy-cane policy, even? I'm joking (sort of), and of course the description above is an attorney's one-sided version of events. But students and parents should understand what to expect at holiday parties for young children; they should understand appropriate and inappropriate times to distribute messages. And at appropriate times, those messages should not be prohibited purely because of their religious content.

The outcome of this particular case - if a lawsuit is filed - will depend on the particular circumstances and policies surrounding the event. As Professor Eugene Volokh explains in the Pasadena Star-News report, most similar cases are resolved "in favor of the [student] religious speaker." Either way, at this point, school officials should be on notice: have a candy cane plan.

Little Sisters of the Poor Responds to Government E-mail
Written by Don Byrd   
Sunday, 05 January 2014
My last post looked at the government's position in response to Justice Sotomayor's New Year's Eve temporary injunction, halting enforcement of the Affordable Care Act's contraception coverage mandate against the group. Now that they have filed a response, here is a brief look at their reaction to the arguments of the government.

At central issue to this dispute is a form, available to religious organizations, certifying their religious opposition to the mandate. As a part of the Obama Administration's plan to accommodate religious organizations, this self-certification form exempts the group from the requirement to provide such coverage to employees. But according to the Sisters of the Poor, that is not all the form does.

From the Little Sister's response in support of the injunction (pdf):

[T]he government argues, essentially, that its form is meaningless and Mother Loraine should just sign it. That argument rests on the spurious claim that the certification form at issue is merely an “orderly means of permitting eligible individuals and entities to declare that they intend to take advantage of” an “exemption” from the mandate....

Respondents are simply blind to the religious exercise at issue: the Little Sisters and other Applicants cannot execute the form because they cannot deputize a third party to sin on their behalf. Respondents’ casual dismissal of that religiously forbidden act as a mere “stroke of their own pen,” perpetuates their claim below that the Little Sisters are fighting an “invisible dragon.” But minimizing someone’s religious beliefs does not make them disappear.
Respondents’ Self-Certification Form is not merely an “opt-out.” As the overwhelming majority of courts have recognized, Respondents have designed a regulatory scheme in which the Form acts as a “permission slip” that authorizes and in some cases commands another organization to provide objectionable drugs to the Little Sisters’ employees within the terms of the Little Sisters’ health plan.

Following these arguments she requested regarding the temporary injunction, Justice Sotomayor will at some point make a determination (or refer the matter to the entire Court to determine) whether to lift the injunction or keep it in place pending appeal of the suit in the lower courts, or to take up the entire dispute now. For more on this development, see Lyle Deniston's post at SCOTUSblog:"The Little Sisters Case and EBSA Form 700."

Justice Department Files Response Following New Year's Eve Injunction E-mail
Written by Don Byrd   
Friday, 03 January 2014

The federal government this morning filed its response to the Supreme Court following the New Year's Eve injunction issued by Justice Sotomayor in a contraception mandate case. The temporary injunction came hours before the January 1 deadline for religious nonprofits to certify their opposition to providing health insurance that includes contraception.

The Affordable Care Act requires insurers to provide such coverage directly to employees in such a case. The plaintiffs in this instance - the Little Sisters of the Poor - argue that such an action (the certification) triggers the contraception coverage, entangling them in a way that violates their religious beliefs (for more detailed discussion of the arguments I highly recommend Marty Lederman's post here). 

In response (pdf), the federal government emphasized that the Little Sisters of the Poor are exempt from the requirement to provide the coverage they oppose. Certification merely secures that exemption. Ordinarily, the government would then require the insurance administrator to offer the coverage directly, but here, the Justice Department points out, the administrator is a "church plan," not subject to regulation. 

[W]ith the stroke of their own pen, applicants can secure for themselves the relief they seek from this Court -- an exemption from the requirements of the contraceptive-coverage provision -- and the employer-applicants’ employees (and their family members) will not receive contraceptive coverage through the plan’s third-party administrator either.

If you're keeping score at home, it's important to keep this case and others like it distinct from the Hobby Lobby case the U.S. Supreme Court will hear later this year. Hobby Lobby is about whether closely held, for-profit secular companies can be required to provide coverage the company's owners oppose on religious grounds. Nonprofit religious organizations - like Little Sisters - are exempt by the Affordable Care Act from having to provide such coverage. They need only certify the religious objection to their insurance administrator. The Little Sisters dispute is about whether this accommodation is nonetheless sufficient to avoid violating the First Amendment rights of religious organizations.

In most similar cases winding through the courts, injunctions were granted in lower courts, halting the rule while the lawsuits play out. In the Little Sisters case, the trial court and appeals court rejected the injunction application, setting the stage for Justice Sotomayor's action on December 31.

2013 Goes Out with a Bang: Last Minute Injunction Issued in Contraception Case E-mail
Written by Don Byrd   
Thursday, 02 January 2014
Happy 2014 to all readers of the BJC Blog! This year promises to be one of the most eventful in a long time from a religious liberty perspective. Stick with the blog and follow me on Twitter (@bjcblog) to stay up to date on developments throughout this new year. And be in touch with your questions and insights on the stories you care most about.

Before we can get 2014 started, there is some unfinished business from last year. While many of us were in New Year's Eve celebrations on December 31, Supreme Court Justice Sonia Sotomayor was issuing a last minute temporary injunction to the Little Sisters of the Poor in their challenge of the Affordable Care Act's contraception coverage mandate.

The Court is set to hear a pair of cases later this year that will likely resolve many religious liberty questions about the mandate. In the meantime, January 1 was the date many religious organizations were required to either 1) begin providing the disputed coverage, 2) certify their religious objection to their health insurer so that employees can be offered such coverage separately, or 3) face fines.

Acting in the final hours of the year, Justice Sotomayor provided a temporary reprieve. The NYTimes reports:

The administration says it has exempted churches from the contraceptive coverage requirement and offered an accommodation to certain religious nonprofit groups. But the Becket Fund argued that “the ‘accommodation’ still forces the Little Sisters to find an insurer who will cover sterilization, contraceptive and abortion-inducing drugs and devices.”

“The Sisters would also be required to sign a form that triggers the start of that coverage,” it said. “In good conscience, they cannot do that. So the ‘accommodation’ still violates their religious beliefs.”

The injunction gives the Justice Department a Friday deadline to respond.

[UPDATE: Marty Lederman has a post at the blog Balkinization that is helpful in understanding the Little Sisters dispute, and how the case fits in the larger universe of contraception mandate challenges.]

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