From the Austin American-Statesman: Texas conservatives launch next fight on religious liberty

More evidence of Texas' traditionalistic political culture. This sets up a constitutional conflict: The First Amendment vs the Equal Protection Clause.

- Click here for the article.

Conservative Republican senators and representatives Wednesday unveiled a dozen bills designed to protect religious practice, including efforts to allow Christians to opt out of serving gay couples if same-sex marriage violates their beliefs.

Unlike the 2015 session, when efforts to approve broad constitutional amendments to protect religious practice fell far short, the bills filed thus far focus on specific issues and were the result of a concerted effort to “make sure that religious liberty bills are at the forefront this session,” said state Rep. Matt Krause, R-Fort Worth.

“Religious liberties are the bedrock of what our state and our country were built on, and we want to make sure we are protecting those, preserving those and advancing those liberties as much as possible,” Krause said during a Capitol news conference.

Many of the bills have already attracted spirited opposition from critics who say they would authorize state-sanctioned discrimination.

“Religious liberty protections allow us to worship freely and to be vocal about what our religious beliefs are,” said Chuck Smith with Equality Texas. “But religious liberty does not allow me to exempt myself from laws or allow me to use my religious beliefs against other people. That’s discrimination, that’s not religious liberty.”

“There’s no discrimination here,” Krause said. “We’re just trying to open it up to where people can continue to work and do what they love to do in the way that they want to do it.”

One of the farthest reaching proposals, known as the First Amendment Defense Act, would not permit state or local governments to penalize people for acting on religious beliefs opposing gay marriage.

From the Pew Research Center: Where the Public Stands on Religious Liberty vs. Nondiscrimination - Two-thirds say employers should provide birth control in insurance plans, but public is split over same-sex wedding services and use of public bathrooms by transgender people

The battle between the equal protection and free exercise clauses continues to rage.

- Click here for the article.

The U.S. public expresses a clear consensus on the contentious question of whether employers who have religious objections to contraception should be required to provide it in health insurance plans for their employees. Fully two-thirds of American adults say such businesses should be required to cover birth control as part of their employees’ insurance plans, according to a new Pew Research Center survey, while just three-in-ten say businesses should be allowed to refuse to cover contraception for religious reasons.

The survey of more than 4,500 U.S. adults explores recent controversies that have pitted claims of religious liberty and traditional morality against civil rights and nondiscrimination policies. And it finds that Americans are more closely divided on two other hotly debated questions: whether businesses should be able to refuse service to same-sex couples, and whether transgender people should be required to use particular restrooms.

About half of U.S. adults (49%) say businesses that provide wedding services, such as catering or flowers, should be required to provide those services to same-sex couples as they would for any other couple. But a nearly equal share (48%) say businesses should be able to refuse services to same-sex couples if the business owner has religious objections to homosexuality.

And in the debate over bathroom use by transgender people, roughly half of Americans (51%) say transgender people should be allowed to use public restrooms of the gender with which they currently identify, while nearly as many (46%) say transgender individuals should be required to use restrooms of the gender they were born into.

From the New Yorker: Colin Kaepernick and a Landmark Supreme Court Case

For 2305 - the right to not be coerced to make displays of patriotism was only established by the Supreme Court in the 1940s. It features a court case central to our discussion of both religious freedom and free speech.

Here's the story:

- Click here for the article.

Kaepernick refused to stand as a form of political expression—to protest, he said, the oppression of African-Americans by the police and others. The Supreme Court case arose out of a related First Amendment right—to exercise the freedom of religion. In 1943, at the height of the Second World War, the court heard a challenge by a Jehovah’s Witness family to the expulsion of their daughters, Marie and Gathie Barnette, from a school in West Virginia. The sisters had been punished for refusing to salute the flag and repeat the Pledge of Allegiance, something state law required of students. (As Jehovah’s Witnesses, the parents did not believe in making such salutes and oaths.) Precedent was not on the Barnettes’ side. In 1940, the Court had heard a very similar case involving Lillian Gobitis, age twelve, and her brother William, age ten, whose parents were also Jehovah’s Witnesses and who were expelled from the public schools of the town of Minersville, Pennsylvania, for refusing to salute the national flag. In an eight-to-one decision in Minersville v. Board of Education, written by Felix Frankfurter, the court rejected students’ claim that their freedom of religion and speech should void the school’s decision to expel them. (Justice Harlan Stone was the lone dissenter.) “National unity is the basis of national security,” Frankfurter wrote. “Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.”

What followed, three years later, was one of the great reversals in Supreme Court history. The Court had a new member—Robert Jackson.* More important, even amid the patriotic displays associated with the mobilization for war, the degradations of Nazi Germany had impressed themselves upon the American conscience. The result of the case flipped the result to a six-to-three victory for the family, and Jackson’s opinion in West Virginia State Board of Education v. Barnette stands as perhaps the greatest defense of freedom of expression ever formulated by a Supreme Court Justice—and, not incidentally, a useful message for the N.F.L.

The core idea in Jackson’s opinion is that freedom demands that those in power allow others to think for themselves. In nearly every line, Jackson’s opinion is haunted by the struggle on the battlefield against, in his phrase, “our present totalitarian enemies.” “Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good, as well as by evil, men,” Jackson wrote. “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard. It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings.” Such melodramatic phrasing may feel more appropriate for the worldwide crisis of that era than for the present one, but the message of tolerance also resonates on the less fraught setting of a football gridiron.

For more on West Virgina v Barnette click here.

For the decision in the case click here.

What is a "sincerely held religious belief?"

It's the term used to what a law cannot violate. - such as the ACA's contraception requirement - but its a bit vague and tough to define precisely.

How doe the court determine which beliefs are sincere and which are not?

Here are some attempts to explain it.

- The Sincerely Held Religious Belief: Hobby Lobby and the Bible.
- Questioning Sincerity: The Role of the Courts After Hobby Lobby.
- “Sincerely Held Religious Beliefs” in Religious Discrimination Cases.

And a critical look at the test. Will it lead to further divisions in society?:

- ‘Sincerely Held Religious Beliefs’ and the Fraying of America.

Several states have recently introduced bills that would allow people to withhold services to their fellow Americans if they base their decision on “sincerely held religious beliefs.” In Arizona, one of these bills has made it all the way to Gov. Jan Brewer’s desk, and she is currently deciding whether or not to sign the bill into law.

These bills are deemed necessary by religious conservatives on account of several cases where Christian business owners refused to offer services to LGBT people, claiming that serving them would violate their own religious convictions about homosexuality and same-sex relationships. In one of the most celebrated examples, a case made it all the way to the Supreme Court of New Mexico, where it was ruled that a Christian photographer did not have the right to refuse to take photographs of a same-sex couple’s commitment ceremony based on her religious beliefs.

Giving a special pass that allows an individual with “sincerely held religious beliefs” to chose not to do business is fraught with problems.

For instance, who is to decide what is sincere? Are the religious beliefs sincere if a cake seller will sell a cake to two divorced individuals for their second marriage but not to a same-sex couple for their first? Or does this cafeteria-style approach to Christianity expose a lack of sincerity of religious belief? This raises the question of who will determine the sincerity of a belief. The courts? If so, which religious leaders will advise the courts on that question, as it is clear that religious leaders increasingly disagree on the question of gay marriage and the full dignity of LGBT people?

Also, will the freedom to refuse to serve those who offend “sincerely held religious beliefs” extend to people of one faith expressing hostility toward people of another faith? If a Christian believes that Hindus worship a deity or deities that she finds offensive, will she be allowed to refuse to photograph a Hindu wedding or make a cake for a Hindu holy day based on her “sincerely held religious beliefs”?

And what about sincerely held beliefs that are not religious? At a time when 40 percent of people under 30 hold no specific religious affiliation, and when many of those identify as “spiritual but not religious,” how will the laws address those with “sincerely held spiritual beliefs”? And given the rise of atheism and secular humanism, will those who espouse no formal religion also have their sincerely held beliefs protected?

Religious people should be very hesitant to go down the path of discrimination based on “sincerely held” beliefs, as it could be used against them. What if someone were to claim that their sincerely held belief caused them to not serve fundamentalist religious people? If these bills pass, you can guarantee that the reputation of religious people is gong to take a serious hit.

Laws that say we can pick and choose whom we work with based on our “sincerely held religious beliefs” are dangerous to our society. These bills promote further division at a time when America is already deeply divided, and they encourage self-segregation into isolated communities that only serve people with whom we are “sincerely” compatible.

From the Federalist: How RFRA Works, Explained In One Chart

- Click here for the accompanying article.

From Atlantic Video: Can Religious Freedom and LGBT Rights Co-Exist?

Worth a look in class - click here for it.

USA Today: Religious liberty vs. civil rights: A balancing act

Rights and liberties conflict. Here's the latest: Recent push backs against the expansion of civil rights - notably to gays and lesbians - have been oriented around religious liberty.

- Click here for the article.

Arizona Gov. Jan Brewer may have ended the latest controversy in her state by vetoing a "religious freedom" bill that threatened gay men and lesbians, but the nation's legislatures and courts are just getting started.

While religious liberty remains a "core value" in Arizona, Brewer said Wednesday, "so is non-discrimination." And therein lies the balancing act that's at the root of several other disputes.

Can the Obama administration force for-profit businesses to provide health insurance for their employees that includes forms of contraception the owners equate with abortion? That case comes to the Supreme Court next month.

Can a New Mexico photographer, an Oregon bakery and a Washington state florist refuse to provide services to same-sex weddings? Those questions are pending before courts and could soon go to voters as well.

Can several states from Mississippi in the South to Utah in the West enact laws similar to the one Brewer vetoed in Arizona, setting up potential conflicts between religious liberty and other freedoms?

The answer isn't simple. Congress and the states often carve out exceptions for religious beliefs. The Supreme Court has consistently made room for religious exercise. And unlike race and gender, sexual orientation is not a protected class — yet.

However, for a religious liberty bill such as Arizona's to pass the smell test, it must show a compelling interest on the part of those who want to flex their religious muscles, and it must not impose undue costs or burdens on others. That is where many such efforts collapse.

For more:

- Redefining Religious Liberty: The Covert Campaign Against Civil Rights.
- It’s not as simple as homophobic thugs vs. civil rights in Indiana.
- Religious Freedom vs. Compelling State Interests.

Zubik v. Burwell

The latest on the birth control mandate in the ACA.

- Scotusblog: Zubik v. Burwell.

Issue: Whether the HHS contraceptive-coverage mandate and its “accommodation” violate the Religious Freedom Restoration Act by forcing religious nonprofits to act in violation of their sincerely held religious beliefs, when the government has not proven that this compulsion is the least restrictive means of advancing any compelling interest.

Here's some info about the case from NPR:

- Click here for the article.

The rights of the religious and the secular clash again Wednesday at the Supreme Court, this time in the controversial context of Obamacare and birth control.

The health care law sought to equalize preventive health insurance benefits between the genders. That meant free coverage of birth control for women, with an automatic exemption for houses of worship, like churches — but not for nonprofits like religious schools and hospitals. Those nonprofits were given a workaround to accommodate their objections, but some say that accommodation still burdens their free exercise of religion.

There are cases before the court from all over the country. The plaintiffs range from large universities to small service organizations, among them the Little Sisters of the Poor, an order of Catholic nuns that runs homes for the elderly poor.

. . . When it comes to providing birth control insurance coverage for the staff, the Little Sisters have a religious objection, and they believe that the workaround meant to accommodate that objection still makes them complicit in providing contraception for their employees.

The government, in contrast, views the law as a reasonable accommodation.
"Anyone who has a religious objection ... doesn't have to pay for, refer, doesn't have to organize, doesn't have to accommodate that contraception coverage for his or her employees," says former Health and Human Services Secretary Kathleen Sebelius.

"What they are required to do is provide notification to the government or their insurer that they are opting out. That's it."

The government then steps in to fill the gap, and along with the insurer — for example, Blue Cross Blue Shield or a third-party administrator — makes birth control available, without charge, to employees, dependents or students who want birth control coverage.
Sister Constance Veit says she doesn't object to signing the required form or a letter.

"The religious burden is what that signifies, and the fact that the government would, you know, be inserting services that we object to into our plan, and it would still carry our name," she says.

From the Texas Tribune: Cheerleader Case Can Proceed, State Supreme Court Rules

This smells like a potential US Supreme Court case.

It concerns whether the breakaway banners cheerleaders in Kountze High School created for football players to crash though violated the establishment clause of the U.S. Constitution.They were in the habit of painting biblical verses on them. Since it is a public high school, such actions can be seen to be a governmental endorse of a particular religious views over others. To avoid lawsuits, the ISD ruled that they could not paint religious messages on the banners, but the cheerleaders sued.

The ISD countered that they could not do so, but the decision by the Texas Supreme Court was simply that a lawsuit filed by the cheerleaders could go forward. There has yet to be a substantive ruling on the merits of the case - that is the actual constitutional question posed by the dispute. Now the process is in place to figure that out.

- Click here for the article.

The East Texas students have been fighting for the ability to cite Bible verses as part of their cheerleading routines since 2012, when the Kountze Independent School District told the squad they could not paint Christian messages on the banners football players ran through before their games.

The district instituted the ban after the Freedom From Religion Foundation, which advocates for the separation of church and state, threatened to sue. Foundation members argued that because the Bible-quoting signs were held by cheerleaders wearing official school uniforms, and at official school events, they were tantamount to school-sponsored religious activities.

The ban didn’t put an end to the district’s legal woes — because the cheerleaders’ parents promptly filed a lawsuit of their own, claiming the ban violated their children’s right to free speech. The squad members came up with the banner ideas on their own, and bought the supplies with their own money, making it clear they were acting as individuals, the cheerleaders’ parents said.

The case has been making its way through the legal system ever since. In 2013, the Kountze district independently overturned its “no Bible messages” ban, but families of several cheerleaders kept pursuing the lawsuit anyway. Eventually, the 9th Texas Court of Appeals threw the case out, ruling that because the policy was no longer in effect, the lawsuit was moot.

On Friday, the Texas Supreme Court overruled the lower court's decision, writing that the lawsuit should be allowed to continue because the ban could “reasonably be expected” to be reinstated.

“The District no longer prohibits the cheerleaders from displaying religious signs or messages on banners at school-sponsored events,” Justice John Devine wrote in the opinion. “But that change hardly makes ‘absolutely clear’ that the District will not reverse itself after this litigation is concluded.”

For the actual decision by the court click here.

From Reason: 2015: The Year in Religious Liberty Controversies

Expect questions about the establishment and free exercise clauses. This article should put these in contemporary context.

- Click here for the article.

In summer 2014, passions were already running hot. The Supreme Court was about to hand down a ruling that the federal government could not force a family-run business to pay for free birth control for its workers if the owners had religious objections to doing so. The left would cry out that this amounted to allowing employers to force their beliefs on everyone else. The right would hail the decision as a landmark blow for faith-based freedom. Little did we know then that Burwell v. Hobby Lobby was more prologue than main event.

In 2015, the tension around what is meant by "religious liberty" and where its limits should be drawn came to a head. One after another, controversies boiled over. Ink was spilled. Protests were organized. Arguments were made. Decisions were written. At least one person went to jail, and more than one small business was forced to shut its doors. Below is a chronological roundup of the many times this year when people and institutions clashed on the battlefield of the First Amendment's Establishment Clause. 

Read on for more.

 

The Texas Supreme Court weighs arguments on the rights of home-schoolers

The extent of religious liberty is back before the court, this time wrapped up in a case involving home schooling. The courts have dealt with home schooling issues before, so there's nothing new there. The case is McIntyres v. El Paso School District.

- Click here for the case.

The State's 8th District court of appeals had ruled on a previous issue involving accusations of truancy.

- Click here for that result.

Here's a bit from coverage by the Dallas Morning News:

- Click here for the story.

Laura McIntyre began educating her nine children more than a decade ago inside a vacant office at an El Paso motorcycle dealership she ran with her husband and other relatives.

Now the family is embroiled in a legal battle the Texas Supreme Court hears Monday that could have broad implications on the nation’s booming home-school ranks. The McIntyres are accused of failing to teach their children educational basics because they were waiting to be transported to heaven with the second coming of Jesus Christ.

At issue: Where do religious liberty and parental rights to educate one’s children stop and obligations to ensure home-schooled students ever actually learn something begin?

“Parents should be allowed to decide how to educate their children, not whether to educate their children,” said Rachel Coleman, executive director of the Massachusetts-based Coalition for Responsible Home Education.

Like other Texas home-school parents, Laura and Michael McIntyre weren’t required to register with state or local education officials. They also didn’t have to teach state-approved curriculums or give standardized tests.

But problems began when the dealership’s co-owner and Michael’s twin brother, Tracy, reported never seeing the children reading, working on math, using computers or doing much of anything educational except singing and playing instruments. He said he heard one of them say learning was unnecessary since “they were going to be raptured.”

Then, the family’s eldest daughter, 17-year-old Tori, ran away from home saying she wanted to return to school. She was placed in ninth grade, because officials weren’t sure she could handle higher-level work.

The El Paso school district eventually asked the McIntyres to provide proof that their children were being properly educated and even filed truancy charges that were later dropped. The family sued, and an appeals court ruled against them, but now the case goes to the all-Republican state Supreme Court.

For more coverage:

- Texas Supreme Court takes up home-schooling case.
- Texas court considers homeschool autonomy.
- Conservative Texas court to decide if homeschoolers can wait for the Rapture instead of teaching their kids.

The Texas Home School Coalition has links to previous court decisions regarding the right of parents to home school students.

- Click here for the Leeper Case Decisions.

From the Texas Tribune: Lawmakers Jump into Tussle Over God's Trust

Reminds me a bit of the Kim Davis controversy. It goes beyond the religious views of an individual by involving a governing entity. This makes it more of an establishment clause issue than a free exercise issue. But let;s think it through in class.

- Click here for the article.

A furor involving a small-town Texas police department and national secular organization has reached the state attorney general's office, and may well wind up in court after that.

At issue: does slapping "In God We Trust" stickers on police patrol cars violate the U.S. constitution?

After fielding a complaint from a citizen of Childress, a Panhandle town of about 6,000, the Freedom From Religion Foundation sent the town’s police department a letter last month asking it to stop using the motto.

The Wisconsin-based foundation, a national church-state watchdog group that claims to be the country's largest association of atheists and agnostics, argued placing the slogan on an official police vehicle breaches the wall separating church and state.

In a widely shared response, Childress Police Chief Adrian Garcia wrote: “After carefully reading your letter, I must deny your request in the removal of our nation’s motto from our patrol units and ask that you and the Freedom From Religion Foundation go fly a kite.”

That response, which Garcia posted on his department’s Facebook page had been liked more than 170,000 times, shared by more than 145,000 accounts and drawn about 20,000 comments as of Monday.

Monday, the two state legislators representing Childress — state Sen. Charles Perry, R-Lubbock, and state Rep. Drew Springer, R-Muenster — asked Attorney General Ken Paxtonto weigh in on the question.

Adopted in the mid 1950s as the nation’s motto, “In God We Trust” is an exclusionary, “Johnny-come-lately” that is unconstitutional and “turns believers into insiders and non-believers into outsiders,” Annie Laurie Gaylor, co-president of Freedom From Religion Foundation, told The Texas Tribune.

Related: Ken Paxton asked to support ‘In God We Trust’ on police cars.

Two important national laws related to religious liberty

Drawing the line between religious liberty and the neutral application of general laws has been tricky recently. The following two laws were meant to make this process easier, but that might have been wishful thinking.

We will look at these in class this week - in 2305 mostly.

- Religious Freedom Restoration Act.
- Religious Land Use and Institutionalized Persons Act.

Aside from helping out with formulating answers to this week's written assignment, these will help us walk through the bill making process.

About week 4's "critical thinking" written assignment

You'll see this posted in Blackboard also - thought I'd add it here so we can discuss this in class.

The ongoing controversy involving Kentucky County Clerks Kim Davis' refusal to issue marriage licenses to same sex couples can be framed in ways that apply to both 2305 and 2306.

For 2305:

The controversy allows us to look at a conflict embedded with the Constitution (there are many such conflicts). In this case it is the free exercise of religious belief on the one hand and the guarantee to be protected equally by the laws on the other. Think of it this way, while you may wish to be treated equally before the law - and you can point to a clause in the 14th Amendment that guarantees it - someone else may have a religious objection to some characteristic about you, and wish to deny you a service as a result.

I want you to consider the extent of such objections and ask whether people can use any religious objection to deny a person equal protection, or whether there are some limits on them. Perhaps religious objections are acceptable in some cases, but not others. If this is the case - explain the argument that justifies it. Or perhaps you wish to make the case that no religious belief can be used to deny equal protection of the laws. If that is the case, explain why this value is superior to the freedom against restrictions on the free exercise of religion.

For 2306:

The twist in this case is the fact that the person denying equal protection is a government official, albeit one at the local level - but a position directly impacted by the Supreme Court's gay marriage decision. This means that we can look at the case under the lens of federalism. The general idea is that the manner in which the law is implemented in the United States ought to be consistent, but this isn't always the case. Plenty of policies in the United States vary from state to state - some argue that this is a benefit of a federal system.

What I want you to consider is why this policy - gay marriage - is to be applied equally across the states, while others are not. What makes this one distinct? When you consider your answer, I want you to consider it in terms of the Kentucky County Clerk. Obviously the Supreme Court is arguing that a government official has to comply with the court's decision - though I have a hunch this will itself wind up in the Supreme Court. Why do county clerks have to comply with this type of ruling when they are allowed to implement other laws - voting rules for example.

For info:

- Regarding Kin Davis.
- Wikipedia: Miller v. Davis.

I'll add content and links soon, and let me know what questions you have, but start thinking about this. And keep in mind that unlike last week's rant, this is to be an objective, analytical work.

Regarding Kim Davis

Davis is the Clerk of Rowan County Kentucky who has been in the news for refusing to issue marriage license to same sex couples - or anyone else for that matter - due to her religious beliefs, despite the fact that a recent Supreme Court case mandates that she do so.

There are a few aspects of this issue that apply to both 2305 and 2306. In 2305 I see us looking at the case next week when we get further into religious liberty - which is the subject of one of the sections that opened up this week.

One is the role of the county clerk in state government. A second related issue is whether religious liberty is a legitimate excuse - as defined by the court - for nor performing a political duty. A third involves speculation about where this case goes from here, and finally how this might impact the presidential race - where have the candidates aligned themselves on this issue and what does this tell us about their campaign strategies?

Here are few links for background purposes:
- Wikipedia: Kim Davis.
- Wikipedia: Rowan County, Kentucky.
- The Weaker Party: What is a county clerk anyway?

And background about the case from the NYT:
- Clerk in Kentucky Chooses Jail Over Deal on Same-Sex Marriage.
- Kentucky Clerk Defies Court on Marriage Licenses for Gay Couples.

Since her opposition stems form the recent gay marriage decision, here's some detail on the case it was based on. We'll discuss it in depth when we cover civil rights soon:
- Wikipedia: Obergefell v. Hodges.

A couple items on religious liberty:
- Will Kentucky clerk's jailing move needle on debate over religious liberty?
- The Fatal Flaw in Kim Davis’s Appeal.

And for the impact of the issue on the presidential election:
- Do GOP Hopefuls Care More About the Law or “Religious Liberty”? A Kim Davis Roundup.
- Presidential Candidates Take Sides On Support For Kentucky Clerk.
- Here is Where All the Republican Presidential Candidates Stand on Kentucky Clerk Kim Davis.
- Here's How GOP Presidential Candidates Are Responding to County Clerk Kim Davis' Arrest.
- Clerk’s gay marriage protest divides the Republican field.

Is there a religious right to grow a beard?

According to every Justice on the Supreme Court - yes.

- Click here for the decision.

At least one 2305 student will be looking at the case of Holt v. Hobbs. Hobbs is a Muslim prisoner who claimed that his religious beliefs required him to grow a beard. Hobbs is the director of the Arkansas Department of Correction who sought to prevent this on the grounds that a beard could be used to conceal weapons and other contraband as well as try to disguise his identity.

The court disagreed with Hobbs.

There are a variety of points that can be made about this case, it will be the job of each student to develop a good one. I'll provide some hints about what directions are worth pursuing, but I want you all to take the first step. In my opinion the best resource you have is the page devoted to the case on ScotusBlog - click here for Holt v. Hobbs - though you might find a few other places to go.

One thing you may wish to begin with - and I'll do this for all the cases students propose to write about - are the specific questions presented to the court. In this case there were several:

I. Whether the Arkansas Department of Corrections’ no beard grooming policy violates the Religious Land Use and Institutionalized Persons Act (RLUIPA).

II. Whether a ½ inch beard would satisfy the security goals sought by the policy.

III. Whether the no beard grooming policy violates Petitioner’s First Amendment right to practice Islam as he believes it is supposed to be practiced by the wearing of the beard.

IV. That the United States Court of Appeals for the Eighth Circuit has decided that the no beard grooming policy does not violate the RLUIPA, but this Court should decide the matter since it has not done so and should rule whether grooming policies of any Department of Correction that do not allow for a religious exception exemption are constitutional.

V. That the United States Court of Appeals for the Eighth Circuit’s decision in this case conflicts with other circuit’s rulings on the matter.

VI. That the ADC grooming policy of no beards is not the least restrictive means of achieving the desired objective of staunching the flow of contraband and identifying prisoners in the event of an escape.

I'd suggest thinking about these questions. You might also want to get familiar with the law in question, the Religious Land Use and Institutionalized Persons Act.

You should also get familiar with the concept of strict scrutiny. It's the level of proof that the government has to clear in order to justify a restriction on a basic civil liberty such as the exercise of religion.

The current Supreme Court - the Roberts Court - has focused quite a bit on religious freedom. You might want to catch up a bit on that. Here are some reasonable sources.

- How Serious Is the Supreme Court About Religious Freedom?
- The Roberts Court and the Separation of Church and State.
- Landmark court cases.

More to come.
 


   

Does religious liberty protect racial discrimination?

No, at least not since the 1982 case of Bob Jones University v. U.S.

Here's background.

- Oyez Project.

- Wikipedia.
- Legal Information Institute.
- Tax Policy Analysis of Bob Jones University v. U.S.

From Oyez's summary:

Facts of the Case

Bob Jones University was dedicated to "fundamentalist Christian beliefs" which included prohibitions against interracial dating and marriage. Such behavior would lead to expulsion. In 1970, the Internal Revenue Service (IRS) changed its formal policy to adopt a district court decision that prohibited the IRS from giving tax-exempt status to private schools engaging in racial discrimination. The IRS believed that the University's policies amounted to racism and revoked its tax-exempt status. The University claimed that the IRS had abridged its religious liberty. This case was decided together with Goldsboro Christian Schools Inc. v. United States, in which Goldsboro maintained a racially discriminatory admissions policy based upon its interpretation of the Bible, accepting for the most part only Caucasian students. The IRS determined that Goldsboro was not an exempt organization and hence was required to pay federal social security and unemployment taxes. After paying a portion of such taxes for certain years, Goldsboro filed a refund suit claiming that the denial of its tax-exempt status violated the U.S. Constitution.

Question
Can the government prohibit race discrimination at the expense of the First Amendment's Free Exercise Clauses?

Decision: 8 votes for U. S., 1 vote(s) against

The Court found that the IRS was correct in its decision to revoke the tax- exempt status of Bob Jones University and the Goldsboro Christian School. These institutions did not meet the requirement by providing "beneficial and stabilizing influences in community life" to be supported by taxpayers with a special tax status. The schools could not meet this requirement due to their discriminatory policies. The Court declared that racial discrimination in education violated a "fundamental national public policy." The government may justify a limitation on religious liberties by showing it is necessary to accomplish an "overriding governmental interest." Prohibiting racial discrimination was such a governmental interest. Hence, the Court found that "not all burdens on religion are unconstitutional."

Best Law Review Article Title Ever: UP IN SMOKE: THE RELIGIOUS FREEDOM RESTORATION ACT AND FEDERAL MARIJUANA PROSECUTIONS

- Click here to access it.

Vox refers to it to explain why RFRA will probably not let you start a marijuana church - unless you are Rastafarian.

- Click here for the article here.

. . . just like religious freedom laws have been around for decades, so have long-shot attempts to smoke marijuana by claiming religious beliefs. A 2013 look at these cases by Montana lawyer John Rhodes, published in the Oklahoma City University Law Review, found that these claims have almost always failed, except in situations involving Rastafarians, a religious group that considers marijuana a sacrament.

Defendants claimed they used marijuana for religious purposes, but judges by and large didn't buy it. One court told a defendant that his "professed beliefs have an ad hoc quality that neatly justif[ies] his desire to smoke marijuana." Other courts weren't as blunt, but they generally discarded non-Rastafarian religious beliefs as phony, according to Rhodes.

When it came to Rastafarian defendants, courts only allowed their marijuana use in limited settings. Judges found the government had a compelling interest to restrict pot in public settings, and they didn't allow criminal operations that sell the drug.

Based on these precedents, it's very unlikely that members of Indiana's First Church of Cannabis will have any luck trying to use marijuana under their new religion.

"I would predict that Indiana officials will eventually come down on folks who are smoking pot in this church," Douglas Laycock, a law professor at the University of Virginia, wrote to me in an email, "and that the Indiana RFRA will not provide them with a defense."

Regarding "Employment Division v Smith"

We caught up on this case in 2306 Monday because this lead to the passage of the national Religious Freedom Restoration Act (RFRA), which was whittled down by the Supreme Court in Bourne v. Flores, which then led to the passage of similar laws on the state level - including the one in Indiana which led to this week's written assignment for 2306.

I hope that was - somehow - at least slightly clear.

The Oyez page on Smith - click here for it - contains a summary of the case and the majority decision, which we spent a little time discussing.

Here are the relevant parts:

Facts of the Case

Two Native Americans who worked as counselors for a private drug rehabilitation organization, ingested peyote -- a powerful hallucinogen -- as part of their religious ceremonies as members of the Native American Church. As a result of this conduct, the rehabilitation organization fired the counselors. The counselors filed a claim for unemployment compensation. The government denied them benefits because the reason for their dismissal was considered work-related "misconduct." The counselors lost their battle in state court. But the U.S. Supreme Court vacated the Oregon Supreme Court's judgment against the disgruntled employees, and returned the case to the Oregon courts to determine whether or not sacramental use of illegal drugs violated Oregon's state drug laws (485 U.S. 660 (1988)). On remand, the Oregon Supreme Court concluded that while Oregon drug law prohibited the consumption of illegal drugs for sacramental religious uses, this prohibition violated the free exercise clause. The case returned to the U.S. Supreme Court in this new posture.

Question

Can a state deny unemployment benefits to a worker fired for using illegal drugs for religious purposes?

Conclusion

Yes. Justice Antonin Scalia, writing for the majority, observed that the Court has never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that government is free to regulate. Allowing exceptions to every state law or regulation affecting religion "would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind." Scalia cited as examples compulsory military service, payment of taxes, vaccination requirements, and child-neglect laws.

Decision: 6 votes for Employment Division, 3 vote(s) against

In the States: Religious Freedom vs GLBT Civil Rights

One of the big news items this week regards Indiana's passage of a "religious freedom restoration act" and the backlash against it. Such laws raise the standard that a law has to clear in order to burden a person's exercise of religious belief - but its application has been a bit loose recently and it has been used to justify discrimination against people based on sexual orientation.

Makes for a good topic for a written assignment. Here are a few posts for 2306 students to consider as they think about it:

- Wikipedia: Religious Freedom Restoration Act.
- Wikipedia: State Religious Freedom Restoration Acts.
- Indiana's religious freedom law: What you need to know.
- Indiana governor proud of state’s ‘religious freedom’ law, which has been criticized as anti-gay.
- What is the Religious Freedom Act?
- NCSL: 2015 State Religious Freedom Restoration Legislation.
- DEVELOPMENT OF STATE RFRA STATUTES.

The National Conference of State Legislatures highlights three bills making their ways through the Texas Legislature:

HJR 55 - Proposes a constitutional amendment relating to the free exercise of religion; provides that the state, a county, municipality, political subdivision or agency may not burden a person's free exercise of religion unless necessary to further a compelling governmental interest and is the least restrictive means; provides that a homeowners' association may not burden a person's free exercise of religion unless necessary to further a compelling quasi-governmental interest of the homeowners' association.

HJR 125 - Proposes a constitutional amendment relating to a person's free exercise of religion.

SJR 10 - Proposes a constitutional amendment relating to a person's free exercise of religion.