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National Religious Freedom Day! E-mail
Written by Don Byrd   
Thursday, 16 January 2014

January 16 is National Religious Freedom Day, commemorating the Virginia Statute for Religious Freedom, adopted by the state's General Assembly in 1786. The statute became the basis for the Establishment Clause. 

In a blog post today co-written with Eric Treene marking the occasion, White House Director of Neighborhood and Faith-Based Partnerships, Melissa Rogers emphasized the importance of the Religious Land Use and Institutionalized Persons Act.

One way that the federal government seeks to ensure that these principles are put into practice is through enforcement of the Religious Land Use and Institutionalized Persons Act (RLUIPA).  Passed by unanimous consent in 2000 with the support of a religiously and ideologically diverse coalition of groups, RLUIPA seeks to ensure religious freedom in two important areas:  the ability of religious communities to build places of worship and other religious institutions, and the ability of prisoners and other persons confined to institutions to continue to practice their faiths.
The values embodied in RLUIPA are universal ideals.  Department of Justice attorneys have provided technical assistance on issues involving construction of places of worship to government officials in Spain, Indonesia, Bosnia-Herzegovina, and other countries wrestling with these same issues.  In 2012, the Islamic Center of Murfreesboro, Tennessee won the right to move into its new mosque with the help of a RLUIPA suit brought by the Department of Justice. On the day of the court decision, the mosque’s Imam, Sheikh Ossama Bahloul, remarked that America’s dedication to religious freedom can serve as a model for others around the world, and added:   “I think this is an opportunity for us all to celebrate the freedom and liberty that, in fact, exist in America and to teach our young people to believe even more in the U.S. Constitution.”

President Obama announced that "Today, America embraces people of all faiths and of no faith" in his National Religious Freedom Day proclamation.

AZ State Rep. Proposes Broad State RFRA Amendments E-mail
Written by Don Byrd   
Thursday, 16 January 2014

Arizona State Representative Steve Yarborough has proposed legislation (pdf) that would authorize broad rights to discriminate against others based on religious belief by amending the state's Religious Freedom Restoration Act provision.

The law currently prohibits the government from substantially burdening a person's religious exercise unless it is necessary to achieve a compelling state interest. Yarbrough's amendments specify that RFRA can be a defense in any "state action," regardless of whether the government is a party to the proceeding (so, a lawsuit by another individual, for example). It also redefines "person" to include corporations and "any legal entity."

The move seems to be in response to circumstances in which vendors like photographers, florists and cake-makers have been sued under state anti-discrimination laws after refusing to serve customers' same-sex weddings. 

Think Progress has more:

Yarbrough’s so sweeping that religious belief could be used to defend any form of discrimination that would otherwise be protected under law, including gender. He acknowledged to reporter Howard Fischer that his bill could be used to discriminate against not only gay people, but also unmarried women, or people with different religious beliefs, as examples. It’s possible that his bill could actually allow religion to be used to justify breaking nearly any law in Arizona. Yarbrough simply trusts that protections that have been traditionally recognized before would still be protected were his bill to become law.

To be fair, I don't believe the bill "could actually allow religion to be used to justify breaking nearly any law in Arizona." The law still requires a substantial burden (though it waters down the definition somewhat) on activity substantially motivated by religious belief before religious freedom rights are implicated. It allows the government to demonstrate a compelling interest in enforcing the law, which would defeat the RFRA defense. Those are significant limitations on the ability to avoid a state's laws. This is, however, a sweeping change that could greatly embolden the right to refuse compliance with the law on religious grounds. 

Yarbrough was successful in an attempt last year to pass a measure with a similar objective, but the Governor vetoed it.

Judge Dismisses Pastor's License Plate Challenge E-mail
Written by Don Byrd   
Wednesday, 15 January 2014

Yesterday, a federal judge in Oklahoma dismissed a lawsuit challenging the constitutionality of the state's license plate featuring a Native American image. The plaintiff Keith Cressman, a Methodist pastor, argued the image is based on a statue of an archer shooting a sacred arrow as a prayer for rain. Placing it on state license plates conveys a religious message, his suit claimed, in violation of the separation of church and state.

The Oklahoman reports:

U.S. District Judge Joe Heaton wrote that the statue's meaning could only be gleaned by research and “not things a person would ordinarily know from common knowledge or sense just from looking at the image on the license plate.”
“A reasonable observer would not be likely to conclude that an identifiable message was conveyed simply from the inclusion of the image on the standard state license plate,” Heaton wrote.

You can read the ruling (pdf) here. Cressman's attorney says the license plate amounts to religious speech that he shouldn't be required by the state to express. He plans to appeal. The 10th Circuit previously revived the suit from dismissal to allow for discovery.

Belarus Officials Raid Baptist Service, Arrest Church Leaders E-mail
Written by Don Byrd   
Tuesday, 14 January 2014

Associated Baptist Press' Bob Allen relays a Forum18 report that three Baptist church leaders in Belarus were arrested last month following a police raid on a worship service. Their crime? Officials would not explain the charges, but the house church is affiliated with the Council of Churches Baptists, which "refuses to register with the government as a matter of principle."

A 2002 religion law bans all religious activity by unregistered groups. . . .

Unregistered religious activity is generally punished under a section of the country’s administrative code intended to curb political extremism. Banned activities include organizing or attending a mass event for public or political interests or protest. Violators are eligible for fines or arrest.

According to the Forum 18 report, the raid was conducted just a few days before Christmas. Police recorded personal information of the attendees and the pastor's Bible was confiscated.

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?

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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...