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Religion clauses

May 20, 2013
Roberts Court to Wade into Debate Over Religion's Place in Public Square
by Jeremy Leaming

For decades Religious Right activists have cultivated a wobbly narrative, championed by pundits like Bill O’Reilly, of a secular America striving to erase Christianity from the public square.

These activists, such as the Family Research Council and the American Family Association and televangelists like Pat Robertson and the late Jerry Falwell, often blamed the Supreme Court for leading the way.

First, they have argued the Supreme Court yanked prayer and Bible readings from the public schools in the cases Engel v. Vitale and Abington v. Schempp. But neither of those cases did such things. Instead the Supreme Court in those cases prohibited organized religion in the public schools. In other words public school teachers and administrators had to stop leading students in religious activities. Those cases did not outlaw prayer or religion in the public schools; they just found that such activities must be truly student initiated.

There’s also the annual farce dubbed the “war on Christmas,” where, supposedly, secularists roam city halls and public squares demanding the removal of all vestiges of religion. There are also Supreme Court cases involving these clashes between government officials and individuals bent on festooning public spaces with religious and non-religious symbols. The cases can seem a bit absurd, but a takeaway -- if public officials open their public buildings and spaces to say a nativity display they’d better be prepared to open them to displays of other holidays celebrated during the winter and some secular symbols too, like giant candy-canes or snowmen. For too many Religious Right activists, however, it’s not enough to decorate churches and private homes with religious symbols of the holiday season, they must also adorn government buildings with them and if government officials don’t comply they’ll point to a “war on Christmas.”

Then there are government meetings and activities. From coast to coast there are city and town councils and other government bodies that like to open their public meetings with prayer. The use of prayer in government work has a long history. On the federal level, both chambers of Congress open each day with chaplains providing invocations and a marshal opens Supreme Court sessions, with “Oyez, oyez, God save the United States and this Honorable Court.”

As the nation has evolved, however, and become more diverse, unsurprisingly you’ve had more and more people question the use of prayer during government sessions. And here again, you have a ripe opportunity for Religious Right zealots to complain about attempts to force government officials to either forgo prayer altogether at their official functions or mix it up and include invocations from all kinds of religious groups.

The Supreme Court has touched upon prayer during government sessions, and today the Roberts Court agreed to consider a case – Town of Greece v. Galloway – that allows the high court to revisit precedent on government and prayer. The case arises from Greece, N.Y. where Christian prayer has frequently been used to open town board meetings. As The New York Times’ Adam Liptak reports the town’s prayer policy has been in place since 1999 and town officials have said that people of all faiths, including atheists, can offer invocations.

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Religion clauses, Supreme Court, Individual liberties, Other courts, Constitutional Interpretation and Change, First Amendment, Adam Liptak, government, Judge Guido Calabresi, legislative prayer, Lyle Denniston, Marsh v. Chambers, public prayer, Religion, Town of Greece v. Galloway
April 4, 2013
N.C. Lawmakers’ Bumbling Claims about State-Sponsored Religion
by Jeremy Leaming

Apparently a bit of sanity has surfaced in the North Carolina legislature where a couple of lawmakers introduced a resolution declaring the state could establish an official religion. The Charlotte Observer reports that House Speaker Thom Tillis is saying the chamber will not vote on the resolution.

In this case Joint Resolution 494, which in part declared that the First Amendment does not apply to the states, showcases a couple of lawmakers who are either woefully ignorant of the U.S Constitution and First Amendment jurisprudence or are blatantly provocative.

First, as has been pointed out by a lot people like law school professors, much of the Bill of Rights do apply to the states. Starting in the 1920s federal courts ruled that the Constitution's 14th Amendment applies most of the Bill of Rights to the states.

Nevertheless, the lawmakers’ resolution states that the First Amendment’s Establishment Clause, which provides for a separation of religion and government, “does not apply to the states, municipalities, or schools.” The resolution also includes sections declaring the Constitution “does not prohibit states or their subsidiaries from making laws respecting an establishment of religion,” and that the N.C. legislature “does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivisions of the State from making laws respecting an establishment of religion.”

Although the resolution does not specify what religion N.C. would officially recognize, it undoubtedly would be Christianity. The lawmakers pushing the resolution said they were doing so in part to provide a show of support to Rowan County Commissioners who are waging a legal battle to keep using Christian prayers at their public meetings. (The Supreme Court has ruled that if lawmakers feel the need to use prayer during official business, it should be nonsectarian, otherwise they leave themselves open to a First Amendment challenge. The ACLU has lodged a lawsuit against the county commission arguing that its prayer policy violates the separation of government and religion.)

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Religion clauses, Supreme Court, Constitutional Interpretation and Change, First Amendment, ACLU, Establishment Clause, House Speaker Thom Tillis, Joint Resolution 494, North Carolina, Religion, Rowan County commissioners
March 25, 2013
Christian Right’s Tired, Loopy Arguments Against Same-Sex Marriage
by Jeremy Leaming

Over the weekend The New York Times’ Sheryl Gay Stolberg provided a relatively glowing profile of Brian Brown, the leader of the rabidly antigay group called the National Organization for Marriage.

Brown, Stolberg tells us, has “an open face and easy laugh that belie his status as a divisive figures in the culture wars” and a “keen sense of strategy and a polished speaking style, traits that unnerve his opponents.”

Beyond lavishing praise on Brown’s lobbying abilities, Stolberg had to provide us a bit of information about his arguments against same-sex marriage – and those arguments are hardly polished or keen. They’re Christian Right retreads. Legal recognition of same-sex marriage will threaten religious liberty and undermine the sacredness of marriage, the Christian Right argues.

For example, Brown said, “When you knock over a core pillar of society like marriage, and then try to redefine biblical views of marriage as bigotry, there will be consequences.” He then asks will a push to “normalize pedophilia occur.”

Like other Christianists Brown also comes around to the topic of children – if lesbians and gay men can legally wed they’ll adopt even more children and according to Christian Right groups that’s really bad news for children.

These arguments regarding the ability of gay couples to raise children and the supposed threats to religious liberty are more than overwrought, they’re inaccurate. But peddling this nonsense has been a high priority for Brown and his allies in the Christian Right community for a long, long time.

Boston College law school professor Kent Greenfield in a piece for The American Prospect titled “Weird Friends of the Court,” highlights a few of the “friend-of-the-court briefs” lodged by religious groups in both cases – Hollingsworth v. Perry and U.S. v. Windsor – that the Court will hear oral argument in this week.

Greenfield notes upfront that controversial cases, such as the Perry and Windsor, “bring out the crazies, and crazies can hire lawyers to write a brief. And sometimes the crazies are the lawyers.”

And then Greenfield gives us some examples. The far-right Thomas More Society declares gay people can’t have sex. “A man and woman, and only a man and a woman, are capable of engaging in sexual intercourse.” Greenfield adds, “Now that’s going to come as a surprise to some people.” No kidding.

Fortunately there are likely many more serious, thoughtful briefs lodged before the Supreme Court. This blog has noted some of them here and here.

Georgetown Law Center Professor Nan Hunter and Columbia Law School Professor Suzanne Goldberg have lodged briefs in both cases. During a recent interview with ACSblog, Goldberg briefly described some arguments advanced in those briefs.

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Religion clauses, Supreme Court, LGBT issues, Constitutional Interpretation and Change, Equality and Liberty, Brian Brown, Hollingsworth v. Perry, marriage equality, Nan Hunter, National Organization for Marriage, Suzanne B. Goldberg, U.S. v. Windsor
February 13, 2013
Protecting Constitutional Principles – Even After Disasters
Guest Post
by Dena Sher, ACLU Washington Legislative Office & Tyler Ray, ACLU Washington Legislative Office. This piece is crossposted at the ACLU’s Washington Markup blog.

The impact Superstorm Sandy had on homes, businesses, nonprofits, and houses of worship across the Northeast was devastating. And still, in the wake of the storm, these institutions reached out to their communities to provide the help they could. At the same time, they began the process of their own rebuilding; for congregations, this meant repairing their sanctuaries and sacred spaces.

After a disaster, businesses and nonprofits often look to government assistance to help rebuild damaged property. Despite the talk in the past couple of months about how these government assistance programs discriminate against houses of worship, they don't. All nonprofit organizations (including houses of worship) and for-profit businesses can get low-interest, long-term, government-secured loans -- up to $2 million -- for losses not fully covered by insurance. Direct FEMA grants of taxpayer funds, however, are intended to serve a certain purpose—those grants are for nonprofits with facilities used for emergency, essential, and government-like activities to the community at large. Houses of worship, just like the many other nonprofit facilities, aren't then eligible to receive FEMA grants. Today, the House of Representatives approved H.R. 592, the so-called Federal Disaster Assistance Nonprofit Fairness Act of 2013, a bill that would upend this well-established policy to explicitly permit FEMA to funnel taxpayer funds to houses of worship.

FEMA's policy not only ensures that FEMA grants are used to rebuild facilities that provide the most critical services to the entire community, but also reflects an important constitutional principle. Religious liberty is one of our nation's most fundamental values and it starts from the precept that religion and religious institutions thrive when both religion and government are safeguarded from the undue influences of the other.

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Religion clauses, Supreme Court, Constitutional Interpretation and Change, First Amendment, Dena Sher, Establishment Clause, FEMA, FEMA grants, Guest Post, Hurricane Sandy
February 8, 2013
Did Obama Ignore Religious Freedom of Millions of Americans? Yes and No
Guest Post
by Leslie C. Griffin, William S. Boyd Professor of Law, UNLV Boyd School of Law

The Obama administration recently offered more accommodations to the religious employers who oppose women’s reproductive freedom and seek exemption from the Affordable Care Act’s mandate that employee insurance coverage extend to contraception and sterilization. The employers won two big victories. First, the definition of religious employer was expanded to include not only organizations where everyone shares one faith but also those that employ or provide services to individuals who are not members of the same religious community. Second, the employers will not have to provide the coverage. Instead, the insurance companies will independently contact employees and make separate contraceptive policies available to them at no charge. The insurance companies will cover the costs of this new arrangement and, presumably, pass them on to other consumers.

The new rules are responsive to repeated and vociferous complaints about the president’s war on religion. As soon as the Secretary of Health and Human Services, Kathleen Sebelius, first announced that religious employers would be expected to provide contraceptive and sterilization coverage at no cost to employees, the nation’s Catholic bishops attacked the president for his unprecedented assault on religious freedom. Those critics ignored the fact that the idea of requiring employers to protect women’s equality by providing insurance was not new or unprecedented. Twenty-six states have similar laws, and the highest courts of New York and California upheld their women’s contraceptive equity statutes against First Amendment claims.

With the federal act currently under challenge in 45 lawsuits, however, the administration chose to compromise rather than to press the legality of its actions on behalf of women’s equality. The strategy of compromise has been unsuccessful. Even the new accommodations have not satisfied the administration’s critics. The Catholic bishops still believethat the president should compromise even more by extending the exemption to secular, for-profit corporations run by religious individuals. And Kyle Duncan, the general counsel of the Becket Fund for Religious Liberty, which has sponsored much of the litigation against the mandate, stated that the new rules do “nothing to protect the religious freedom of millions of Americans.”

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Religion clauses, Individual liberties, Reproductive freedom, Constitutional Interpretation and Change, Women's rights, Equality and Liberty, Affordable Care Act, Catholic bishops, contraception coverage, Guest Post, health care, Leslie C. Griffin, Religious liberty, reproductive freedom, The Becket Fund