Religion clauses

  • November 7, 2012

    by Jeremy Leaming

    State court judges in Iowa and Florida remain on the bench despite the fevered and well-funded efforts to remove them because of their involvement in rulings that rankled conservatives.

    In Iowa, State Supreme Court Justice David Wiggins, who was part of the majority in the 2009 Varnum v. Brien decision that supported marriage equality, retained his seat with about 55 percent of the vote. In Iowa 50 percent of the vote is needed to hold judicial seats. Some of the same organizations and individuals who successfully removed three other Iowa Supreme Court justices in 2010 – again for their involvement in advancing marriage equality – were targeting Wiggins. Typically judicial retention votes are intended for removing judges from the bench because of ethical breaches, corruption or incompetence. But religious right groups such as the National Organization for Marriage, the American Family Association and the so-called Iowans for Freedom committee abused the retention vote to go after judges for doing their jobs. But their efforts this time faltered.  

    Religious right activist Bob Vander Plaats, also involved with the Iowans freedom group, told the Des Moines Register that Wiggins’ retention vote of nearly 55 percent was “not a great validation for Justice Wiggins.”

    The newspaper noted that the other judges up for retention votes, but not targeted by the religious groups, retained their high court seats with vote “totals of more than 74 percent.” The Register surmises that the lower vote for Wiggins (pictured) might fuel another effort by religious right groups to target the other justices involved in the Varnum majority when they face retention votes in 2016. Plaats refused to speculate on those justices.

    In Florida an effort funded by a Super Pac of the billionaire rightwing Koch brothers also flopped. The brothers’ Super Pac had urged voters to remove three Florida Supreme Court justices, primarily for their involvement in scuttling a 2010 ballot measure declaring that Affordable Care Act would not the law in the Florida. (This summer, the U.S. Supreme Court upheld the constitutionality of the law’s integral provision, the one requiring most Americans starting carrying a minimum amount of health care insurance in 2014.)

    But Justices R. Fred Lewis, Barbara Pariente and Peggy Quince “easily” survived the retention votes, The Miami Heraldreports. As in Iowa, the justices only need a 50 percent vote to retain their seats. Despite “an unprecedented campaign” to dislodge the justices, The Herald reported that all three received “about two-thirds of the vote, with most votes counted.”

  • October 31, 2012
    Guest Post

    By Frederick Mark Gedicks, Guy Anderson Chair & Professor of Law, Brigham Young University Law School


    Fr. Robert Araujo, Professor of Law at Loyola University Chicago, and Richard Garnett, Professor of Law & Political Science at the University of Notre Dame, have posted critical reactions on Mirror of Justice to my ACS Issue Brief, “With Religious Liberty for All: A Defense of the Affordable Care Act’s Contraception Coverage Mandate.”

    Many of Fr. Araujo’s questions are answered in the Issue Brief, but one comment deserves a direct response. He suggests that I have elevated statutory and regulatory claims to no-cost contraception under the Affordable Care Act over more fundamental constitutional claims under the Free Exercise Clause, which he believes is violated by the mandate. One hears this free exercise rhetoric frequently from mandate opponents, but it misreads constitutional history and misunderstands the content of free exercise rights.

    The Free Exercise Clause does not protect a right of believers to be excused or exempted from complying with laws that generally apply to the rest of society, even when such laws burden their religious exercise. The Supreme Court has rarely recognized rights to free exercise exemptions, and then only in a few instances between the early 1960s and the late 1980s. The Court decisively rejected a general right to free-exercise exemptions in Employment Division v. Smith (1990), which it has repeatedly affirmed in the years since, most recently in Christian Legal Society v. Martinez (2010).

  • October 22, 2012

    by Jeremy Leaming

    The lawsuits lodged against the Affordable Care Act’s contraception coverage policy are resting on wobbly legal ground, says a Brigham Young University law school professor in a new ACS Issue Brief.

    In “With Religious Liberty for All: A Defense of the Affordable Care Act’s Contraception Coverage Mandate,” Frederick Mark Gedicks, a distinguished law professor at BYU, says the ACA’s requirement that employers ensure that their health care coverage provides access to contraceptives for women “strikes a careful and sensible balance of competing liberty interests by exempting religious persons and organizations who do not externalize the costs of their religious beliefs and practices onto others who do not share them.”

    Gedicks notes that the contraception coverage policy also “exempts churches who largely employ and serve persons of their own faith, but not religious employers who hire and serve large numbers of employees who do not belong to the employer’s religion or who otherwise rejects its anti-contraception values.”

    Earlier this year social conservatives attacked the ACA’s contraception coverage policy saying it would force them to trample their religious beliefs by providing free contraceptives to their employees. Even with the administration’s announcement that churches and religious orders would be exempt from the mandate for coverage of contraception, some religious employers continued to demand a broader exemption. When that did not occur religious employers began lodging lawsuits around the country on First Amendment grounds and on the claims that their rights pursuant to the Religious Freedom Restoration Act (RFRA) would be violated.

  • September 19, 2012

    by Jeremy Leaming

    In what he called one of the first hearings in a long stretch of time exploring domestic acts of terrorism, Sen. Dick Durbin (D-Ill.) led a Senate hearing that included testimony from a young man whose mother was shot and killed in August while praying at a Sikh temple in Oak Creek, Wis. The senator noted early on that the massacre at the Gurdwara in Oak Creek was not an isolated incident, and that acts of violence against Sikhs, South Asians, Arabs, Muslims, and other communities of people are on the rise, and have been for some time.   

    Durbin, throughout the hearing, expressed concern that more action was needed to counter domestic violence targeting groups of people because of hatred toward their ethnicity, religion, sexual orientation or gender identity. He cited a 2010 FBI report showing that 6,600 hate crimes were reported in 2010. (That report revealed that a wide swath of communities was targeted by hate crimes. For example, the FBI said 47 percent of the crimes were racially motivated, 20 percent were triggered by hatred of the victims’ religion, 19 percent targeted the LGBT community, and 13 percent were based on ethnicity or national origin.)

    Durbin said those numbers are likely low. “In a 2005 study the Bureau of Justice Statistics believes even those crimes reported are just a fraction of those that actually occur. In the week following the Oak Creek shootings, there were numerous attacks on mosques, including a mosque burned to the ground in Joplin, Missouri. A shooting in a mosque in my home state, Martin Grove, Ill., while 500 worshipers were praying inside.”

    “According to the Justice Department,” Durbin continued, “the increase in discrimination against mosques since 2010 ‘reflects a regrettable increase in anti-Muslim sentiment.’ At the same time, African-Americans continue to be targeted by a majority of racially motivated hate crimes. Jewish Americans continue to be victims of religiously motivated hate crime. Latinos are the victims of most ethnically motivated hate crimes and hundreds of LGBT Americans are victims of violent hate crimes every single year.”

    Durbin and others who testified lauded the passage early in the Obama administration of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, which encourages partnerships between federal and state law enforcement officials to work more effectively against hate crimes. But the senator and others who testified suggested that more should be done by the DOJ to aggressively investigate hate crimes, to report on hate crimes, and that Congress should do more to help fund preventive measures, such as education and training initiatives for law enforcement officials.

    Likely expecting criticism from lawmakers who might argue that Congress should focus almost exclusively on international born terrorist threats, Durbin said that the government should not and would not lessen its efforts to defeat Al Qaeda. “But we can’t ignore the threat of homegrown, non-Islamic terrorism," Durbin said.

    Also speaking to an international community, some of which conflates protection of free speech with condoning criminal actions, Durbin said, “So let me be clear, under our Constitution we punish criminal acts, not free speech, no matter how offensive or hateful it might be.”

  • September 7, 2012

    by Jeremy Leaming

    We’ve heard it for decades from the Christian Right that the nation’s public schools are hostile to religion, prohibiting students from praying or engaging in other religious activities. It is rhetoric that has helped fuel the so-called culture wars. The rhetoric is also blatantly misleading.

    There were a couple of U.S. Supreme court cases in the 1960s that prohibited organized religious activities in the public schools. But neither case, regardless of the shrill cries of Christian Right leaders, prohibited truly voluntary student prayer. The concept was fairly straight forward. Public school officials are government employees and the First Amendment’s establishment clause bars the government from demanding that people, including students, pray or engages in religious activity. The free exercise clause of the First Amendment provides that government must be neutral toward religion and cannot take undue action to interfere with religious practices.

    So those two high court cases – Engel v. Vitale and Abington v. Schempp – did not ban religion from the schools. Students can pray in school on their own time, such as moments before a test, or with other students, as long as such activity is not disruptive of the school’s mission to teach reading, writing, math, history, and science.  

    Nonetheless, those high court cases have been twisted by Christian Right lobbying groups, such as Focus on the Family, the Family Research Council, American Family Association, and TV preachers such as Pat Robertson, to help their campaign to portray America’s public places, even limited ones like public schools, as hostile to Christianity. Government officials they often argue are bent on banishing religion and Christianity in particular, from the public square.

    The misinformation has caused great confusion in the public schools about religion’s proper place. But the First Amendment Center’s Charles Haynes, director of the Religious Freedom Education Project at the Newseum, has spent decades trying to straighten things up.

    In a piece for the First Amendment Center’s website, Haynes says progress is being made.