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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.]

2013: Top Religious Liberty Stories of the Year E-mail
Written by Don Byrd   
Saturday, 28 December 2013

This was a year of questions more than answers in religious liberty developments. As we anticipate Supreme Court resolution, some longstanding disputes only intensified this year, while other controversies are just beginning. Here is my take on the top religious liberty stories of 2013.

The U.S. Supreme Court hears legislative prayer case

In November, the Supreme Court heard oral arguments in Town of Greece v. Galloway.

As regular readers of Blog from the Capital know, controversies over local government prayers have been commonplace in recent years. Every month or so, some school board or city council with a tradition of opening its meetings with an invocation meets with objections that the practice is unconstitutional.

Like many of those legislative prayer controversies that came before it, the Town of Greece dispute worked its way through lower courts. Supporters of government prayer insist the invocations are harmless expression, protected by the First Amendment’s free exercise and free speech guarantees. Opponents contend the prayers improperly promote religion in violation of the First Amendment’s Establishment Clause.    

The Town of Greece dispute got the attention of the U.S. Supreme Court, which decided to weigh in on the issue for the first time in 30 years. The Town of Greece says rotating clergy should be allowed to offer sectarian prayers. The plaintiffs believe government prayers should be limited to non-sectarian appeals to a higher power. The Baptist Joint Committee filed an amicus brief urging the Court to prohibit official prayers at local government meetings. The BJC brief emphasized freedom of conscience and the difference between this practice and the chaplain-led prayer practices of state legislatures or Congress upheld by the Court in 1983. According to the brief, there are specific constitutional dangers posed by official prayer in local government meetings, which citizens attend not just as silent observers from a gallery but as full participants.

Many observers believe – and I agree – the Court’s decision in this case may have a dramatic impact on the requirement that government officials remain neutral in matters of religion when acting in their official capacities. How the Court might rule, though, or even which questions it might answer, remains anyone’s guess. Will they clarify the circumstances in which government prayer is appropriate? Will they offer guidance to local governments on how to safeguard the rights of citizens against church-state concerns? Stay tuned to the BJC Blog at (or follow me on Twitter: @BJCblog) for the answers as we get them. A decision in the case is expected by the end of June.

Read about the other big religious liberty stories of the year in the extended post below.

Pope Francis Decries Persecution of Christians Around the World E-mail
Written by Don Byrd   
Thursday, 26 December 2013

Pope Francis today spoke out against the persecution of Christians around the world, particularly in those countries that claim religious liberty in name, but not in reality.

Reuters reports:

Francis, celebrating his first Christmas season as pope, said “limitations and discrimination” against Christians was taking place not only in countries that do not grant full religious freedom but also where “on paper, freedom and human rights are protected”.

“This injustice should be denounced and eliminated...,” he said.

Francis did not name any countries but the Vatican has long urged Saudi Arabia, the site of Islam's holiest places, to lift a ban on Christians worshiping in public.

Meanwhile in Iraq, a series of Christmas Day bombings targeting Christian churches in Baghdad killed 37.

Merry Christmas! E-mail
Written by Don Byrd   
Wednesday, 25 December 2013
To all BJC blog readers, I hope you have a very joyous and peaceful Christmas! Check back tomorrow for my year in review post.
Judge Halts Enforcement of Contraception Mandate in Class Action Suit E-mail
Written by Don Byrd   
Monday, 23 December 2013

A federal judge granted an injunction in the class action suit brought by nearly 200 ministries challenging the contraception coverage mandate in the Affordable Care Act. Among the plaintiffs is Guidestone Financial Services, which provides health benefits to the Southern Baptist Convention. The injunction comes after the U.S. Supreme Court has decided to hear similar challenges in the Hobby Lobby and Conestoga cases.

Associated Press reports:

DeGiusti repeatedly referred to the Hobby Lobby case in his ruling and said the ministries who refuse to provide the contraceptives also “face substantial financial penalties, and their refusal will cause a substantial financial loss to GuideStone if it excludes nonexempt, noncompliant organizations from the GuideStone plan.”

“Here, as in Hobby Lobby, the court finds that plaintiffs have made a threshold showing of a substantial burden, and, thus, a likelihood of success,” the ruling states. The ministries faced a Jan. 1 deadline to choose to provide the drugs or pay thousands of dollars a day in fines.

See Religion Clause for other recent development in other contraception cases. One judge rejected Notre Dame University's claim that the accommodations offered through the Health and Human Services rules still violated the institution's First Amendment rights. Another ruled against Catholic University's claim, after finding the mandate does not substantially burden its religious exercise.

LATimes: The Cross is Christian E-mail
Written by Don Byrd   
Friday, 20 December 2013

The LATimes editorial board today weighed in on the latest Mt. Soledad cross development (previous post here) by calling on the Supreme Court to order its removal. Here's a snippet:

[A]llowing such a clear symbol of Christianity to dominate a public landscape strongly implies a government preference for one religion over others. The cross should be taken down.

Attempts to remove the 59-year-old cross have been unfairly vilified as attempts to wipe all signs of religion from public spaces. Of course, crosses have a proper place on public land. . . . The crosses that mark the graves of Christian war veterans are an appropriate way to honor both their service and their beliefs. But we doubt anyone would say that such a symbol belongs on the graves of Jewish or Muslim war dead. A cross is not a universal symbol for memorializing the dead. It is a Christian marker.

In recent years, some have tried to claim the cross is a universal, even a secular symbol, to justify its prominent placement on public land. But the LATimes is right: The cross is Christian. Removing it from the center of a public memorial would honor that significance, not diminish it, as many seem to fear.

BJC's Walker Discusses Education Effort E-mail
Written by Don Byrd   
Thursday, 19 December 2013

In an interview with Associated Baptist Press, BJC Director Brent Walker discusses the past year for the organization and in religious liberty.  Rev. Walker emphasizes a side of the Baptist Joint Committee's advocacy we don't read often read about in religious liberty news stories: its role as an educator.

It has been a very good year. We completed the first year in our new Center for Religious Liberty on Capitol Hill, which we had planned for and developed for several years now.... We have increased our staff size. Charles Watson Jr., has come on board as education and outreach specialist, and is in charge of our new center. He’s charged with expanding our base of support for religious liberty through networking…. We have always been very much involved in public policy issues in the Supreme Court, Congress and the White House, but it’s equally important for us to launch an education effort … on the importance of the separation of church and state.

Is there a practical, tangible benefit to this education effort?

Yes: we can’t do it all ourselves.... We need colleagues and advocates arguing at the local level and we need additional advocates in the cause. We can go to the Congress with our message and to the White House and the Supreme Court. But in the final analysis, it’s the people that decide the issues. Congress votes and justices decide, but they are there because of the votes of the people, and we need a populace educated on these issues.

We need as many voices as possible defending the separation of church and state from the perspective of faith. The BJC continues to lead the way in educating and expanding those voices.

Judge Orders Mt. Soledad Cross Removal E-mail
Written by Don Byrd   
Wednesday, 18 December 2013
The legal dispute over the memorial cross on Mt. Soledad in San Diego is not for those who enjoy closure. A Church-state battle over the Mt. Soledad cross has remained in courts for more than 20 years, after the initial lawsuit was filed in 1989. In 2006, an act of Congress turned the land on which the 29-foot cross sits into federal property. That move saved the cross for the time being after being declared unconstitutional, but opened it up to new challenges that the memorial violated the separation of church and state.

In 2011, the 9th Circuit Court of Appeals ruled the cross display unconstitutional and sent the case back to a trial court judge to determine whether and how the display could be salvaged. Last week, that judge ruled that no avenues were available that would pass constitutional muster other than removing the cross from the site altogether.

The NYTimes reports:

Lawyers for the plaintiffs celebrated Thursday’s ruling. They said no one wanted the cross destroyed, and hoped the federal government would now negotiate to move it elsewhere.

“This is a win for religious liberty,” said Daniel Mach, who argued the case for the American Civil Liberties Union. “The government can and should honor those who served and died for this country, but not by playing favorites with faiths.”

Supporters of the cross indicated they planned to appeal.

The judge gave parties 90 days to appeal before the cross must be removed.

Politifact: Religious Liberty Attack on Nondiscriminatinon Act is False E-mail
Written by Don Byrd   
Tuesday, 17 December 2013

The Employment Non-Discrimination Act (ENDA) does not discriminate against Christians. That is the conclusion of a Politifact report after investigating claims that the bill - which would prohibit secular businesses with 15 or more employees from making personnel decisions based on sexual orientation - "discriminates against Christian daycare, Christian parents, [and] Christian business owners."

Those false claims are being made by the "Traditional Values Coalition" in a fundraising email suggesting that Senator Mark Pryor's (D-AR) support of the bill in November somehow contradicts his statements that his Christianity guides him as a legislator.

The Traditional Values Coalition said ENDA discriminates "against Christian daycare, Christian parents, Christian business owners, and the rights of religious freedom."

The bill’s religious exemption indicates that churches, church-run initiatives and other religious businesses need not comply by employing people of all sexualities and gender identities. And there’s no special negative treatment for Christians. Businesses of any religion could qualify for the exemption. Individuals of any faith who oppose sexuality would have to abide by the law, so no religion is singled out.

We can understand why religious conservatives may take issue with this bill. However, the rhetoric in the email is too broad and overstated, and claims to speak for all Christians.

The bill does apply to secular, for-profit businesses, even if the business owners object on religious grounds. The religious exemptions in the bill are significant, however. They may not please all people of faith, but do reflect a substantial effort to incorporate religious liberty concerns. Whatever your views of the bill, claims that it treats Christian objectors differently than others are just inaccurate. 

More to the point from my perspective: people of faith can surely disagree honorably on a bill like this. Suggestions that Christianity requires a particular vote are inappropriate. Is it too much to hope advocates can leave personal religious attacks out of political ads? (Don't answer that.)

ENDA passed the U.S. Senate, but the House has not taken action.

Defense Authorization Bill Heads to Senate with Religious Liberty Changes E-mail
Written by Don Byrd   
Monday, 16 December 2013

The U.S. House of Representatives last week passed the Defense Authorization bill, including language added in the Senate addressing the issue of religious expression by military chaplains. Typically, chaplains are asked to perform their official duties using inclusive language that, as best as possible, ministers to a wide range of religious adherents among diverse military personnel. Some have argued this emphasis improperly restricts a chaplain's freedom to express his or her own religious beliefs.

In response to that controversy, changes in the defense spending bill attempt to limit the military's ability to make personnel decisions based on expressions of faith. Religion Clause provides the text of the relevant passage. The new language is in bold.

Unless it could have an adverse impact on military readiness, unit cohesion, and good order and discipline, the Armed Forces shall accommodate individual expressions of belief of a member of the armed forces reflecting the sincerely held conscience, moral principles, or religious beliefs of the member and, in so far as practicable, may not use such expressions of belief as the basis of any adverse personnel action, discrimination, or denial of promotion, schooling, training, or assignment.

The House amendments add further language beyond the Senate's bill. They would require the military to report to Congress any communications with civilian groups, including religious liberty advocates, on the topic of religious liberty enforcement. The bill goes back to the U.S. Senate to consider the bill with the changes made in the House.

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Groups Turning to State Law to Make Claims Against Use of "Under God"
Federal courts have consistently ruled constitutional the use of "Under God" in public school recitations of the Pledge of Allegiance. In 2010, for example, the 9th Circuit held that the phrase is not a prayer, but instead an acknowledgement of our "founders' political philos...
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, ...