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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.

Federal Judge in Utah: State Law Discriminates Against Religious Cohabitation E-mail
Written by Don Byrd   
Monday, 16 December 2013

A lawsuit brought by the star of the reality television show, "Sister Wives," challenging Utah's anti-bigamy received a surprising victory Friday. A federal judge in Utah struck down as unconstitutional a provision in the law that prohibits cohabitation with another person while married. That portion of the state's anti-bigamy statute, Judge Clark Waddoups said, is being improperly applied to target religious cohabitants in violation of the Free Exercise clause of the US Constitution.

The US Supreme Court has clearly established that laws barring bigamy are constitutional, and not a violation of religious freedom. Here however, the judge reasoned (91-page pdf), the issue is not polygamy but the state's discrimination in applying its cohabitation laws.

Given the fact that all prosecutions under the Statute’s cohabitation prong (as opposed to straightforward bigamy with multiple marriage licenses) have been of those cohabiting for religious reasons underscores that, in practice, the law is not operationally neutral under Hialeah. The State’s argument reveals that the object of the Statute “is to infringe upon or restrict practices because of their religious motivation.” This it may not do unless it is a narrowly tailored means of advancing a compelling state interest.

Importantly, this ruling still would leave in place the law's ban on polygamous marriage, but strikes the phrase "or cohabits with another person." Professor Orin Kerr notes the interesting logical gymnastics involved in this decision. SCOTUSblog's Lyle Deniston called the ruling "historic." We may yet see what the Appeals Court thinks.

Lawsuit Challenges NC School Voucher System E-mail
Written by Don Byrd   
Friday, 13 December 2013

A lawsuit filed by a group of North Carolina public school advocates challenges the state's new school voucher program that allows parents to use taxpayer money to fund private or religious school tuition. The suit argues the scheme violates the state constitution's requirement that school funds be used exclusively for a uniform public school system. 

Associated Press reports:

The law taking effect for the next academic year starting in August would give annual grants of $4,200 each. Students are eligible if they qualify for the federal free and reduced-price lunch program, were assigned to a public school during the 2014 spring semester, and want to attend a private or religious school. About 2,400 students could qualify for grants in the first year, when lawmakers budgeted $10 million. Legislators said they hope to expand the program in future years.
Opponents argue that North Carolina's law drains money from public schools without private schools facing the same accountability or responsibility to educate all comers regardless of ability or handicap. . . .

"Private schools don't provide a report card of their results to the public. Private schools don't account to taxpayers about who they serve, who they underserve and who they refuse to serve. They don't account to taxpayers, and so the community can't judge if their tax dollars are being used well," Ward said. "Vouchers are bad public policy. They tear away millions of dollars that are badly needed by the public schools."

Vouchers also needlessly entangle public money with religious education. They don't improve education and are repeatedly rejected at the ballot box. Why do state legislators continue to adopt such schemes?

Judge Orders FL Corrections Dept. to Offer Kosher Diet E-mail
Written by Don Byrd   
Wednesday, 11 December 2013

Via Religion Clause, a federal judge in Florida granted a preliminary injunction yesterday ordering the State Department of Corrections to provide kosher meals to all inmates who request one according to sincerely held religious beliefs. In 2007, the state abandoned its kosher meals program and defends its right not to provide such meals. Following a lawsuit filed last year by the United States, however, the state initiated a pilot program to provide kosher meals, but only within strict guidelines designed to certify religious sincerity.

In issuing the injunction, the judge found the lack of a kosher offering likely violates the Religious Land Use and Institutionalized Persons Act (RLUIPA), as do the many hurdles to a kosher diet in the state's current pilot program, including the religious sincerity test that required applying inmates to demonstrate knowledge about their claimed faith. The state counters that a broad requirement to provide kosher meals undermines a compelling government interest in controlling costs, but the judge noted that if 31 other states and the federal Bureau of Prisons can do it, there's no reason why Florida can't.

[T]he experience of other states militates strongly against the legality of Defendants' blanket denial of a kosher diet. The Federal Bureau of Prisons, Texas, New York, California, Illinois and at least 31 other states offer a kosher diet to their prisoners. Defendants do not explain how their interests differ from these large correctional institutions. 

The judge ordered the Department of Corrections to provide a certified kosher diet to all inmates with a sincerely held religious belief requiring it by July 1 of next year. Another lawsuit challenging the state's refusal to offer a kosher diet, brought by an individual prisoner, is ongoing after the 11th Circuit Court of Appeals overturned its dismissal earlier this year.

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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...