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Thursday, December 18, 2014

The Top Religious Liberty News Stories of 2014

The Baptist Joint Committee on Religious Liberty (BJC), formerly known as the Baptist Joint Committee on Public Affairs, was founded in 1936 and is the only faith-based agency devoted solely to religious liberty and the institutional separation of church and state. It is composed of representatives of 15 national, state, and regional Baptist bodies in the United States, such as the Alliance of Baptists, American Baptist Churches USA, the Cooperative Baptist Fellowship, the National Baptist Convention of America, and the Progressive National Baptist Convention.

The Southern Baptist Convention used to support the BJC, but it cut its funding to the BJC in 1990, accusing the BJC of leaning too far to the theological left. It also wanted the BJC to support the nomination of Robert Bork, which the BJC refused to do, not, however, because it didn't support Bork but because it doesn't take positions on Supreme Court nominees. Rather, BJC limits its activities to a small number of issues relating to religious liberty and the separation of church and state: church electioneering, civil religion, free exercise, government funding, political discourse, public prayer, and religious displays. It will, however, file amicus curiae (“friend of the court”) briefs with the Supreme Court in order to argue on behalf of specific points at issue in a case. Over the years, the BJC has filed more than 120 legal briefs in court cases.

The BJC recently released it's top religious liberty news stories of 2014 ("Court decisions, accommodations dominate 2014 religious liberty news"). Below is an abridged version of the news story that appeared in its newsletter. The full story can be found here: "Court decisions, accommodations dominate 2014 religious liberty news."

1. The U.S. Supreme Court Sides with Hobby Lobby

By a 5-4 vote the Supreme Court ruled in favor of a religious liberty challenge to the contraceptive mandate. It held that for closely held, for-profit corporations the requirement to provide certain contraception coverage in their health care plans violated their rights to run their businesses according to their faith. Many argue Hobby Lobby opens will allow businesses broad rights of conscience to avoid government regulations on religious grounds, but others don't think so. As the BJC's Brent Walker recently pointed out, just because some for-profit corporations may be able to raise religious liberty claims because of Hobby Lobby, that doesn’t mean they will prevail. Courts still must balance those claims against the interests of government and the interests of third parties. Moreover, the majority opinion emphasizes the decision relates only to closely held corporations. The Court did not address the issue of larger or more-diversely held companies. That may be the next legal battleground in this dispute over whether, and to what extent, corporations can claim an exemption from a government regulation.

2. Supreme Court Upholds Christian Prayers at Local Government Meetings

By a 5-4 vote the Supreme Court held that the town’s policy allowing clergy to offer sectarian prayer does not violate the separation of church and state. The majority emphasized the historical tradition of opening legislative sessions with prayer, including Christian invocations. Because of that tradition, the Court rejected arguments that such prayers must be non-sectarian and inclusive to be lawful, and it declined to draw any distinction between a state legislative assembly and a town commission meeting. The Baptist Joint Committee filed a brief urging the Court to prohibit such prayer policies in local government meetings in which citizens must be present to make their voices heard.

3. Supreme Court Hears Argument Over Religious Freedom Rights of Prisoners

In the case of Holt v. Hobbs, the Supreme Court questioned Arkansas Department of Correction officials over their refusal to allow an inmate to grow a beard as required by his faith. A brief signed by the BJC urged the Court to side with the plaintiff, Gregory Holt, a practicing Muslim serving a life sentence. While the state has a strong interest in ensuring safety and security in its prisons, here they offered only hypothetical security concerns. Justice Samuel Alito joked that perhaps combing through such a beard would helpfully reveal guns or other contraband hidden there. A decision in the case is expected in 2015.

4. Religious Nonprofits Continue to Challenge Contraception Coverage Rules

While the Hobby Lobby decision settled questions regarding the contraceptive mandate for closely held for-profit corporations, other challenges are still making their way through the courts. The Affordable Care Act exempts houses of worship from the requirement altogether, and it provides an accommodation mechanism for religiously-affiliated nonprofit organizations. However, many organizations argue that the mechanism is insufficient because it will trigger another provision in the law that provides employees with access to contraception through other means. The Supreme Court halted enforcement of this rule in one case while litigation is pending. Appeals courts have largely ruled in favor of the administration, finding that any burden placed on the religious exercise of such organizations by having to file the form is not substantial enough to invalidate the provision.

5. Obama Non-Discrimination Order Declines Religious Exemption

The White House issued an executive order in July barring federal contractors from discrimination in hiring based on sexual orientation and gender identity. Many religious leaders pressed the administration to include an exemption for contractors that are religious organizations, but the president’s order rejected that request. President Obama did leave intact an order that allows religious organizations that contract with the government to discriminate in hiring based on religion. Many advocates, including the BJC, argued against the exemption, saying that when a religious group agrees to take federal funds, it should be bound by the same hiring rules as other federal contractors.

6. Religious Accommodation Policies in the Military Questioned

In January, the Defense Department announced changes to its policy of religious accommodation. The changes evinced a new willingness to make exceptions to grooming standards when they conflict with a service member’s religious beliefs. Previously, such accommodations were extremely rare.
Many religious liberty advocates argued the changes did not go far enough in assuring adherents of minority faiths the right to serve in the armed forces. In April, a letter to the Pentagon signed by the BJC expressed concerns that service members under the new policy would be required to comply with grooming standards while they await the outcome of their request, and they would have to resubmit the accommodation request upon transfer.

7. Conscience Rights Dominate Religious Freedom Discussion

A growing trend in 2014 was the focus on the right of business owners to refuse to provide marriage-related services to same-sex couples. In states and cities where non-discrimination laws prohibit such refusal generally, this year’s increase in same-sex marriage legalization has brought with it understandable conflict for those who object on religious grounds. While churches and houses of worship will not have to participate in same-sex marriages, the rights of other individuals and businesses to refuse is still the subject of debate, and in the coming years courts will have to consider where the proper lines should be drawn to balance the religious freedom rights of service providers with the rights of individuals to be free from discrimination.

The BJC also noted the key religious liberty stories that are likely to emerge next year:

Workplace Discrimination: The Supreme Court agreed to take up a case of religious discrimination in employment involving Abercrombie & Fitch, a clothing retailer that refused to hire a female applicant because of her head covering. The company argues they were unaware the head scarf was a religious requirement.

School Vouchers: The Colorado Supreme Court will decide the fate of a school voucher program. The BJC joined a brief arguing that the program violates the state’s constitution because it sends taxpayer funds to support religious education. And in North Carolina, the Supreme Court has intervened to hear the appeal of a ruling that vouchers in that state are unconstitutional.

Contraceptive Mandate (Part 2): Next year could see the Supreme Court take on the question of whether the Obama administration’s accommodation process for religiously affiliated nonprofit organizations violate their religious freedom rights.

RFRA debates: This year’s religious accommodation battles changed the way state Religious Freedom Restoration Acts are viewed. Instead of focusing on their helpful religious liberty protections, the legislation is often seen as a way to refuse service to others based on religious grounds. Will this continue?

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