Although the author of notorious California bill SB 1146 recently backed down and announced amendments to remove the parts of the bill that would have meant that thousands of low-income minority students would be unable to attend college, SB 1146 still includes controversial anti-privacy and “scarlet letter” provisions that would be both bad policy and unconstitutional to boot:

• The anti-privacy provisions would force California’s religiously-affiliated colleges and universities to report four times a year on every expulsion and suspension of a student, and the reasons for the discipline. This language makes no provision for preserving the privacy of disciplined students, and may violate federal privacy laws that protect students’ privacy. California students don’t need every disciplinary infraction they’ve ever committed reported to the government or posted on the Internet forever.
• The anti-privacy provisions are also discriminatory, as they target only religious colleges and ignore many other kinds of related institutions, such as military schools, some public schools, and fraternities and sororities. Singling out religious institutions solely because they are religious violates the principle that the government should stay neutral on religious matters.
• Similarly, the “scarlet letter” provisions would also force religious schools under a cloud of governmental suspicion by requiring religious colleges to use government-dictated language to communicate their religious beliefs to their students, faculty, and communities. Schools like Fresno Pacific University have no objection to sharing their religious beliefs—in fact, that is part of why they exist—but object to having the government dictate how they express their religious beliefs. If the government cannot even have schoolchildren wear t-shirts that say “Tomorrow’s Leaders,” it certainly cannot tell religious schools how to share sensitive religious beliefs to their own religious communities and to the public they want to serve.
• The scarlet letter provisions also violate constitutional guarantees of equality and freedom of speech because they target only religiously-affiliated colleges and universities.

These notions are just as wrongheaded as the outrageous idea that California should force poor minority students to give up on their dream of a college education. California legislators should finish the job and let SB 1146 die.

UPDATE 8/29/16: Under severe pressure, Senator Lara has retreated even further. He has taken out the anti-privacy provisions (presumably because they violated federal law protecting student privacy) and created a one-year delay before the “scarlet letter” provisions would take affect. After these further amendments, the bill passed the Assembly on August 23, and is now being considered by the California Senate.

Despite Senator Lara’s retreat, he still has not gone far enough. The Senate should still reject SB 1146 because the scarlet letter provisions continue to illegally target religious colleges and universities for special scrutiny, just because of who they are. If the bill comes before him for signature, Governor Brown should veto it.

Who deserves a lump of coal this holiday season? Each year Becket names the most absurd affronts to Christmas and Hanukkah, listing the most outrageous offenders of holiday cheer until we reach the top bah-humbugging, grinchiest transgressor. Not only do they deserve a lump of coal, they are crowned with the great (dis)honorable Ebenezer Award.

7. Portland Public School choirs gagged from singing in a venue deemed “too religious.”

Christmas and choirs go together like Han Solo and Chewbacca. But this year, the choirs from Jackson Middle School and Wilson and Lincoln High Schools in Portland, Oregon, had a change of plans. They’ve been banned from singing at the annual “Festival of Lights” concert, held at the Grotto Catholic shrine, because their oh-so-close neighbor, Wisconsin-based Freedom from Religion Foundation, raised a stink. FFRF, A.K.A. Krampus, said the venue is too Catholic-y for their taste. No Grotto, no Christmas celebrations, and certainly no religion! The schools were instead forced to move to a “non-religious” venue—ironically named “The Old Church”—in downtown Portland. The title of this year’s program? “Let us Sing!” Troll level: Expert

6. Court bans Indiana high school from performing Nativity scene in school pageant.

A federal judge banned the 45-year-old tradition of having a nativity scene in Concord High School’s Christmas Spectacular after the ACLU and FFRF complained.

But it gets better.

Prior to the ruling, Concord High School added other symbols from both Hanukkah and Kwanza. But like the Grinch, who didn’t just suck the Christmas spirit from one house in Whoville, the judge said the Nativity scene received more time in the pageant than the other holidays so it had to go.

5. Soldiers Blocked from Helping Christmas Charity

Samaritan’s Purse is an international Christian ministry that helps impoverished children around the world. Every year their charity event, Operation Christmas Child, send toys, soap, socks, and school supplies in shoeboxes to disadvantages kids overseas. A military member at Dover Air Force Base in Delaware asked his fellow soldiers to help Samaritan Purse. Well, the Military Religious Freedom Foundation had some choice words for the charity’s request, calling it a “manifestly dangerous tool.” Yes, a charity program for needy children is a daaaangerous tool! Even better, it’s a “radioactive wrecking-ball of surpassing hazard” (Come again?)

The Airman retracted his request to help support Operation Christmas Child after mounting pressure by the MRFF. Grinch wrecking ball:

4. New Mexico town gets letter demanding the removal of historical nativity sculpture

A nativity scene in Belen, New Mexico has been a long standing fixture in the small town but the anti-religion group, Freedom from Religion Foundation, 1,300 miles away was offended by the display and demanded its removal.

Belen, by the way is Spanish for BETHLEHEM, the birthplace of Jesus. The FFRF is not only trying to remove Christmas from the holiday season, but ignore the deep religious heritage of the town. But take heart! A number of pastors in the area organized a Christmas event in the parking lot of City Hall where not only did they have a nativity scene but a few dozen barnyard animals, a camel and a zebra. We call that #winning.

The overarching message from the town of Belen to the grinchy FFRF:

3. School district tells veteran to leave out the word “Christmas” in “Christmas tree lighting”

A persnickety individual at the local school district in Marlborough, New Hampshire, told John Fletcher, the commander of the American Legion, to remove the word “Christmas” from flyers advertising the town’s annual Christmas tree lighting event.

However, while no mention of Christmas could be made, the school district said Fletcher and his wife could still dress up as Mr. and Mrs. Santa Claus to give out gifts to children attending the event. It looks and smells like a Christmas event, to us. A half-hearted eggnog toast for not taking gifts away from children.

2. University publishes its 10-point ban on Christmas

The Office of Scroogeness posted 10 “best practices” in scrubbing Christmas out of ugly sweater parties and the “Secret Santa” gift exchange across the University of Tennessee’s campus this Christmas season.

They warned, don’t try any speak easy-type parties either. Christmas parties in “disguise” are absolutely off-limits.

1. And the 2015 Ebenezer Award goes to…..

The Department of Veteran Affairs For banning employees at its Salem, Virginia facility from saying “Merry Christmas” to veterans

Senior staff at the Salem VA Medical Center could have had an eggnog toast. Instead they receive our lump of coal.

First they tried to ban Christmas trees from the facility, but, after employee resistance, they backed down. Instead, they have banned employees from wishing Veterans and visitors a “Merry Christmas” and singing Christmas carols in public spaces.

Three cheers for taking the Christmas spirit from those who have fought for our freedoms – including {cough} religious freedom.

The Medical Center’s employees’ private religious expression can only be given in a whisper in “personal work areas” and all music played must be “be non-religious.” Tran Siberian orchestra on repeat?

Employees have been threatened with penalties if they do not comply with the senior staff’s demands.

by Adèle Keim, Legal Counsel for the Becket Fund for Religious Liberty

This week was special for three different religious communities – Catholics welcoming Pope Francis to U.S. soil, Jews celebrating Yom Kippur, and Muslims observing Eid Al-Adha. For many, these events could only be fully experienced in community with others. Although far from home, religious college students share this longing.

Continue reading “Religious Communities in College: A Home Away from Home” →

by Adèle Keim, Legal Counsel of the Becket Fund for Religious Liberty

To tax and destroy. The Washington Post is running a fascinating series of essays on whether to roll back two centuries of history and impose state and federal taxes on religious organizations. This is not a new debate; in 1970 the ACLU and others challenged New York’s church property tax exemption and lost. The Supreme Court pointed out that “[f]ew concepts are more deeply embedded in the fabric of our national life, beginning with pre-Revolutionary colonial times, than for the government to exercise at the very least this kind of benevolent neutrality [i.e., tax exemptions] toward churches … .” Walz v. Tax Comm’n of City of New York, 397 US 664, 666-67 (1970). In the latest round of this debate, constitutional law professor Rick Garnett weighs in: Continue reading “To tax and destroy.” →

Like all those who knew Whitney Ball, I was so sad to hear of her passing on August 17th; it was too soon and she was too young. Despite contracting cancer at a young age, Whitney lived her life looking forward.

In every encounter I had with Whitney I was astonished by her strength, lack of fear, sense of humor and her ardent optimism. Whitney’s driving force was her faith in God and she was fearless in her mission to defend our liberty. She always asked what she could do to help the cause of religious freedom.

Throughout her disease Whitney never complained or felt sorry for herself, even while enduring the most unpleasant effects of her treatments. Instead, Whitney is a role model to all of us on how to live and make the most of the time we’ve been given. She is also a role model on the work one person can do in defending our rights as individuals. Thank you Whitney for helping me, as you did so many others, advance the cause of liberty!

Julie Riggs
The Becket Fund for Religous Liberty

“A good character is something you must make for yourself. It is the reward that comes from living good principles and manifesting a virtuous and honorable life.”

Today we remember a dear friend of the Becket Fund and a staunch defender of religious liberty, L. Tom Perry, a member of the quorum of the Twelve Apostles of the Church of Jesus Christ of Latter-day Saints. Bill Mumma, president of the Becket Fund recalls Elder Perry: “He really was a giant of man – full of good-natured zeal. He believed the fight for religious liberty was worthwhile and he insisted on action right away!”

At nearly 6-foot-five, Elder Perry’s commanding physical presence combined with his enthusiasm and optimistic style made him a powerful force for good. He spoke frequently about the importance of religion in society, the family and preserving religious freedom, emphasizing that the “essential freedoms of conscience, embedded in religious liberty, must be diligently preserved and protected.” He worked closely with leaders of other faith and religious institutions to promote the cause of religious freedom.

His support of faith started long before he was called as a member of the Twelve Apostles. Elder Perry often recounted the devastation of WWII in Nagasaki, Japan as one of the saddest experiences of his life. The loss of life and lack of food left many Japanese children to fend for themselves. He and his friends organized an orphanage with sisters from the Catholic Church and rebuilt local chapels during their off-duty time.

The cause for religious liberty lost a great advocate and he will be greatly missed by all who knew him. Elder Perry’s life is an example of how all of us should live: always willing to lend a listening ear, diligently seeking opportunities to serve and lift others, and ever optimistic in the face of adversity.

by Maria Montserrat Alvarado, Director of Operations of the Becket Fund for Religious Liberty 

“There are few more uplifting moments in life than realizing, that in some small way, you have truly made a difference.” – Dr. John M. Templeton

Today we remember Dr. John M. Templeton Jr., former pediatric surgeon and president and chairman of the Templeton Foundation who dedicated much of his life to answering humanity’s “Big Questions” through the rigorous study of science, religion, and human understanding.

Continue reading “Remembering Dr. John Templeton” →

by Adèle Keim, Legal Counsel of the Becket Fund for Religious Liberty

“Given that you are a Jewish student and very active in the Jewish community, how do you see yourself being able to maintain an unbiased view?” That sentence, uttered last month by a UCLA undergraduate evaluating a Jewish student-government candidate, has ignited a firestorm. The New York Times reports that the Jewish student was asked to leave the room while the rest of the group spent 40 minutes discussing whether her participation in on-campus Jewish student groups meant she would be biased as a member of student government. In response, UCLA’s chancellor said it was “intellectually and morally unacceptable” to “assume that every member of a group can’t be impartial or is motivated by hatred.” He was, of course, correct: It is straightforward discrimination to assume that because someone is religious, they will be biased. My law firm, the Becket Fund for Religious Liberty, exists to combat discrimination like this.
Continue reading “UCLA debate over bias of believers” →

Continue reading “WATCH: O’Reilly cheers on City’s Ebenezer-like change of heart” →

By Eric Rassbach, Deputy General Counsel of the Becket Fund for Religious Liberty

The Debbie Downers of Madison are at it again – the Freedom From Religion Foundation (“FFRF,” pronounced “furf”) has sent a nasty letter to a high school band in Ohio. What sin is FFRF complaining about this time? Members of the Licking Valley High School Marching Band are wearing t-shirts that have the word “Salvation” printed on them. Continue reading “What’s in Wisconsin’s water?” →

By Asma Uddin, Legal Counsel of the Becket Fund for Religious Liberty

Last week, Turkey lifted its ban on the Muslim headscarf for girls in middle and high school. While girls in primary school are still not permitted to wear headscarves, they have the choice to do so starting in fifth grade (this is also usually the time when many girls reach puberty and the religious dress code requirements become applicable). Continue reading “Becket Fund Applauds Lift on Headscarf Ban” →

Today President Obama announced his intent to nominate Rabbi David Nathan Saperstein to the position of Ambassador at Large for International Religious Freedom, a position within the U.S. State Department.The Becket Fund congratulates Rabbi Saperstein on his pending nomination. In his role as Director of the Religious Action Center of Reform Judaism, Rabbi Saperstein has frequently supported religious liberty in general and clients of the Becket Fund in particular, both through amicus briefs and public statements. For example, Rabbi Saperstein and the Religious Action Center supported the Islamic Center of Murfreesboro, a Becket Fund client in Tennessee, in its struggle to build a new mosque in the face of opposition from neighbors. At the time Rabbi Saperstein explained, “An attack on one religion is an attack on all religions.”

Continue reading “Becket Fund Congratulates Rabbi Saperstein on Nomination” →

By Asma Uddin, Legal Counsel at the Becket Fund for Religious Liberty

It’s almost midnight, and my day has just started. While I was immersed in my daily work throughout the day, I moved among my tasks without breaking to eat or drink—for all 17 hours of my Washington, DC July fast. Now that the sun has set and my kids have gone to bed, I can turn to reflecting and meditating: the stuff Ramadan is all about. Ramadan, especially Ramadan at night, is about putting your worldly concerns behind as you turn inward, and toward God. The experience is deepened by the day’s fast, which gives you an intimate look inside the daily suffering of people all over the world whose hunger is never satiated.

This Ramadan, there’s an added layer of spiritual sorrow. News broke last week that Muslim teachers, students, and civil servants in the northwestern Xinjiang province of China have been forbidden from fasting or taking part in any religious activity during the Muslim holy month of Ramadan. Continue reading “Defending Ramadan and Religious Freedom” →

By Lori Windham, Senior Counsel at the Becket Fund for Religious Liberty

“In America, the tree of liberty has religious roots. Don’t believe you can sever those roots and have the tree of liberty survive.”

Those words came from Rabbi Lord Jonathan Sacks, this year’s Canterbury Medalist. Sitting in the room Thursday night, I watched Catholics, Sikhs, Mormons, Jews and Evangelicals stand together to applaud Rabbi Sacks, who gave an impassioned defense of religious freedom. The entire speech is here, and it is well worth your time. Continue reading “Canterbury Medalist Rabbi Sacks’ Stirring Defense of Freedom” →

By Adèle Keim, Legal Counsel for the Becket Fund for Religious Liberty

In November we reported on the Québec “Charter of Values”, a proposal by the government of Québec to ban state employees–from doctors to daycare workers–from wearing “overt and conspicuous” religious symbols. The Charter of Values, which was criticized across Canada and around the world, would have required Jewish employees to remove their kippahs, Sikhs to remove their turbans, and Muslims to remove their headscarves.

Continue reading “Election Ends Threat from Québec “Charter of Values”” →

Continue reading “2013 Canterbury Medal recipient Elder Dallin H. Oaks delivers “message of hope” for religious freedom” →

By Becket Staff

In an historic first, the Dalai Lama gave the opening prayer in the U.S. Senate today. Prayers like these have been taking place in our nation’s legislatures for over 200 years. They showcase our nation’s religious diversity, highlight the fact that religion is a fundamental aspect of human culture, and reinforce the founding idea that our rights come from the Creator—not the legislature.

Continue reading “Dalai Lama leads prayer in Senate – What about Town of Greece?” →

By Eric Rassbach, Deputy General Counsel of the Becket Fund for Religious Liberty

In a shocking attack before this past Sunday’s worship services, Harbor Community Church in Ventura, California had a rock thrown through its church sign and a banner stating “Thou Shalt Not Steal Our Neighborhood” stuck to the sign. Police are investigating.

The church has come under attack from neighbors for running a ministry to the homeless called “Operation Embrace” that provides food, showers, clothing, employee assistance, and religious worship to the needy. The church is seeking a renewed permit to operate its ministry, and is represented in that effort by the Stanford Law School Religious Liberty Clinic headed up by Jim Sonne.

Continue reading “Church attacked for ministering to the homeless” →

By Eric Rassbach, Deputy General Counsel of the Becket Fund for Religious Liberty That’s what atheist activist and repeat litigant Dr. Michael Newdow thinks. He’s brought another lawsuit seeking to remove the word “God” from public life, this time from the national motto, “In God We Trust.”  Continue reading “Is Monotheism the Official State Religion of the United States?” →

By Eric Rassbach, Deputy General Counsel at the Becket Fund for Religious Liberty

One of the many interesting things about the Sebelius v. Hobby Lobby case now pending at the Supreme Court is the government’s position that once a group of people organized as a corporation decides to seek a profit, it is impossible for them to engage in religious activity. In the government’s view, once you earn a dollar, you can’t be religious anymore. Religion and work are like oil and water — they can’t mix. Continue reading “Religion, Work, and Ducks” →

By Adèle Keim, Legal Counsel at the Becket Fund for Religious Liberty

The furor over Québec’s proposed “Charter of Values” continues to grow: it has been criticised by the Québec Human Rights Commission and linked to a rise in attacks on women wearing the hijab, while on the other side, some Québécoise women have taken to the streets to defend it.

The most controversial aspect of the proposed Charter is the ban on state employees–from doctors to daycare workers–wearing “overt and conspicuous” religious symbols. The Québec government has published a poster to explain what this means: small pendants, rings, and earrings are ok, but turbans, headscarves, kippas, and large crosses are not.

Continue reading “Québec Charter of Values: Not Neutral” →

By Daniel Blomberg, Legal Counsel at the Becket Fund for Religious Liberty

Today’s oral argument before the U.S. Supreme Court in Town of Greece v. Galloway revealed a stark choice between allowing government to include diverse religious views and forcing government to exclude all but one governmentally approved religious view. At issue was the centuries-old practice of legislative bodies opening their meetings with prayer. The Founders’ understanding of that practice was the subject of the Becket Fund’s amicus brief, which the Town’s counsel cited at today’s argument. Even though the Supreme Court gave its constitutional blessing to legislative prayer decades ago, advocacy groups have tried to chip away at it by intimidating small municipalities into prayer-less silence. In 2008, though, the Town of Greece called the groups’ bluff, and has vigorously litigated against them ever since.

Continue reading “Does the Constitution Require Least-Common-Denominator Prayer?” →

By Kyle Duncan, General Counsel for the Becket Fund for Religious Liberty

This is an important week in the Supreme Court for religious freedom. This Wednesday, the Justices will hear argument in Town of Greece v. Galloway. The case asks whether a municipal board unconstitutionally “establishes” an official religion merely by allowing volunteer chaplains from a variety of religious faiths to pray before the opening of board meetings. The Court has not considered this issue since its 1982 decision in Marsh v. Chambers, which upheld our nation’s two-centuries-old tradition of such invocatory prayers before federal and state governmental bodies. Town of Greece gives the Court an opportunity to reaffirm Marsh and explain in greater depth why invocations like these violate no one’s rights and bear no resemblance to the religious “establishments” outlawed by the First Amendment. Lyle Denniston at Scotusblog provides an excellent preview of the case here. The Becket Fund’s amicus brief contains a wealth of original historical research supporting the constitutionality of the prayers.

Continue reading “Coming up at the Supreme Court…” →

By Daniel Blomberg, Legal Counsel at the Becket Fund for Religious Liberty

How can the U.S. Constitution, with its rejection of state-supported religion, permit the existence of military chaplains? After all, chaplains are government-paid employees from specific faith groups who are hired to preach and teach their religious beliefs on the job. At first blush, that seems to be a governmental establishment of religion, which would violate the Establishment Clause. Continue reading “Why the Constitution Demands Government-Paid Priests, Imams, Pastors, and Rabbis” →

By Lori Windham, Senior Counsel at the Becket Fund for Religious Liberty

This week marks the start of the Supreme Court’s 2013 term. It also marks the return of the Christmas wars, that special time of year when we repeat our nation’s annual argument over the meaning of the First Amendment’s ban on “establishment of religion.”

The Christmas wars got an early start this year. They were kicked off by a news report that a school district in Wisconsin was cancelling Christmas and Hanukkah concerts and requiring that any religious song be paired with four secular songs. That report has created a public firestorm, and provoked a lengthy clarification from the school district. It all began when local bureaucrats, fearful of doing anything that might invite the ire of the Freedom From Religion Foundation, declared that holiday concerts could only occur if religious songs were offset by a number of secular songs—say, a four-to-one ratio. The rules were so onerous that the high school’s Master Singers choir canceled their Christmas concerts entirely. Continue reading “Christmas Wars, Round 43: More Reason to Fix Our Broken Church-State Jurisprudence” →

By Adèle Auxier Keim, Legal Counsel at the Becket Fund for Religious Liberty

In 1639, Québec’s famous Hôtel-Dieu hospital was founded by three Augustine nuns who came from France to provide medical care for the colonists and the First Nations communities who lived near them. L’Hôtel-Dieu, which still operates as a teaching hospital, was not only the first hospital in Canada, it was the first in North America.

Continue reading “Je me souviens” →

SCOTUSblog published a symposium piece by Eric Rassbach providing his analysis of the state of play in the Town of Greece case.

By Daniel Blomberg, Legal Counsel at the Becket Fund for Religious Liberty

Military religious liberty has gotten a lot of attention in recent months. And well it should, since the military’s tradition of respecting religious liberty for those Soldiers, Sailors, Airmen, and Marines is one that deserves respectful attention. Continue reading “Religion, Freedom, and the Military – A Lesson from the Founders” →

By: Diana Verm, Legal Counsel at the Becket Fund for Religious Liberty

Remember when we said that the government promoting yoga as a physical exercise doesn’t set up an official religion in violation of the Establishment Clause? It turns out that we were right, at least according to one California judge. Judge John S. Meyer of the Superior Court of California in San Diego considered a challenge to a yoga-based physical education program in one public school district last month. He held that the yoga program does NOT violate the Establishment Clause of the First Amendment. Continue reading “Yoga is an Exercise of Physique – Not Religion” →

By Mark Rienzi, Senior Counsel at the Becket Fund for Religious Liberty

It is hard to name a more commercial environment than a shopping mall. Hundreds of stores deliberately grouped together to offer their goods and services. Hundreds of employees getting paid money to sell them. Thousands of customers paying money to buy them. The federal government has lately been arguing that religious freedom is incompatible with making money, at least in the HHS Mandate context. On that view, one would expect a shopping mall to be a black hole for religious liberty. That is why it is such a pleasant surprise to see the Obama Administration’s EEOC fighting for the right to religious accommodations—even in a shopping mall, and even in a job that is all about getting paid to buy and sell products that have nothing to do with religion. Continue reading “Protecting Religious Diversity, Even at the Mall” →

Last week our case defending the Big Mountain Jesus war memorial in Montana was appealed to the Ninth Circuit Court of Appeals. Since then we’ve released a new video which tells the inspiring story of two of the co-defendants in the case, Ray Leopold and Gene Thomas, who drive to the top of the mountain every year to make repairs to the statue. In the video, Ray explains that the statue means many things to many different people. He says, Continue reading “Big Mountain Jesus: A Monumental Case” →

By: Lori Windham, Senior Counsel at the Becket Fund for Religious Liberty

The Elane Photography decision handed down by the New Mexico Supreme Court last week is notable for many things. Chief among them is a concurrence by Justice Bosson, which chillingly describes the sacrifice of free speech and religious freedom as “the price of citizenship.” Continue reading “Echoes of 1940: New Mexico Supreme Court turns back the clock on free expression” →

By: Eric Rassbach, Deputy General Counsel at the Becket Fund for Religious Liberty

Last week, the self-styled “paper of record” finally took notice of a phenomenon we at the Becket Fund have been talking about (see Blog: Fear, Loathing, and Demographics) for a long time: the New York City government’s conflicts with its growing population of Orthodox Jews. New York Times reporter Joe Berger penned a well-researched article describing conflicts ranging from attempts to prosecute Orthodox store owners for requiring some modesty of their customers, to refusals to accommodate Hasidic women’s requests for a female lifeguard, to targeted regulation of the ancient circumcision ritual of metzitzah b’peh. Continue reading “New York Times notices religious liberty for Orthodox Jews” →

By Luke Goodrich, Deputy General Counsel

In case you missed it, Becket Fund board member and Princeton Professor Robert George was elected chair of the U.S. Commission on International Religious Freedom this week. Today, together with vice chairwoman Katrina Lantos Swett, Professor George has a great op-ed in the Wall Street Journal explaining why religious freedom is an essential element of human dignity. Continue reading “Religious Freedom and Human Dignity” →

By Luke Goodrich, Deputy General Counsel

Can Islam embrace religious freedom? If so, should the United States be working for religious freedom in Muslim-majority countries?

Yes, says Georgetown University professor Tom Farr, in an interesting series of posts on National Review Online.

First, Professor Farr argues that “there is a practical concept of religious freedom . . . that can be adapted by Muslim societies” — a concept that is “similar to what the American Founders meant by religious freedom.”

Second, he argues that fostering religious freedom in Muslim-majority countries is in the United States’ interest, because doing so can “help struggling democracies such as Egypt and Pakistan attain a measure of stability that will undermine the kinds of extremist Islamist ideas that fuel terrorism.”

Third, he argues that the Department of State is failing “miserably” at doing so.

Read the whole thing.

Religious liberty protects the freedom of religious groups to conduct religious wedding ceremonies without government penalty, and that includes same-sex wedding ceremonies.

by: Eric Rassbach

There was a recent blogstorm about what was by some billed as a new legislative attempt to criminalize religious–but not civil–gay marriage in Indiana. It turned out that the purported change in law was related to a recodification of Indiana’s criminal laws rather than an intentional targeting of same-sex wedding ceremonies. And it is possible to interpret the law as only relating to civil marriage, not religious ceremonies.

But there is still a serious religious liberty problem. The Indiana law in question says that “A person who knowingly solemnizes a marriage of individuals who are prohibited from marrying by [Indiana’s law prohibiting same-sex marriage] commits a Class B misdemeanor.” The plain text of this law appears to criminally prohibit a member of the clergy from conducting a religious same-sex wedding ceremony. That’s because “solemnizes” is not defined in the Indiana statutes, and one of the word’s main dictionary meanings is conducting religious ceremonies. Indeed, many Christian denominations have long used the term “solemnization” to describe their wedding ceremonies. The law may well have borrowed the term from the Church of England’s Book of Common Prayer, which sets forth the liturgy for “Solemnization of Matrimony“.

That interpretation is backed up by the Indiana Supreme Court’s discussion of “solemnization” in the 2008 case of McPeek v. McCardle, in which the Indiana Supreme Court refers to the “solemnization” under Indiana’s marriage laws as the ceremony itself—in that case, a religious ceremony conducted by a minister.

That’s why any friend of religious liberty should be concerned about the Indiana law. Religious liberty protects the freedom of religious groups to conduct religious wedding ceremonies without government penalty, and that includes same-sex wedding ceremonies. It would be flatly unconstitutional for a prosecutor relying on the plain language of the Indiana law to seek a conviction of a minister for conducting a religious same-sex wedding ceremony.

More than that, just having the law on the books in its present form is a problem. Plainly unconstitutional laws that remain technically in force can still have a chilling effect on First Amendment activities. That is a particular danger here, since several different denominations conduct religious same-sex wedding ceremonies, including the United Church of Christ and some Conservative Jewish synagogues. The best way to solve this problem is to change the law—which the Indiana legislature should do by making clear that no one can be criminally punished for solemnizing a religious same-sex wedding.

Thus even though the Indiana law may be a case of criminalization by accident, proponents of same-sex marriage are still right to be concerned about the religious liberty of those who want to participate in same-sex weddings. One hopes that going forward they will also show the same solicitude for the religious liberty of those who cannot in good conscience participate in those same weddings. As many legal scholars from both sides of the debate have pointed out, adopting same-sex marriage without strong protections for religious dissenters will lead to a host of foreseeable conflicts, such as government penalties and private discrimination lawsuits. Ministers and churches should not be punished for solemnizing same-sex marriages, but neither should other ministers and other churches be punished for disagreeing with those same-sex marriages.

The reality is, both sides in the debate over the nature of marriage should support strong religious liberty protections, and they should make a point of supporting those protections for the people they disagree with. A good start would be by amending Indiana’s law.

Eric Rassbach is Deputy General Counsel at the Becket Fund for Religious Liberty

UPDATE: The word “purported” was added to this post to clarify that the specific provision criminalizing solemnization of same-sex marriages (Indiana Code 31-11-11-7) has not changed since 1997; the misdirected blogstorm referred to in the first paragraph concerned both what many wrongly thought were changes to both the solemnization provision and the fraud provisions concerning the submission of marriage license applications. As is explained in more detail here, only the latter provisions were actually amended as part of the recodification, and those amendments lowered the relevant criminal penalties.

*Photo credit: Thinkstock

By Daniel Blomberg, Legal Counsel

As a recent case working its way through federal courts is bringing to light, Germany has decided it can suppress “the development of religious[ ]” groups by forcing their “integration” into state-controlled institutions. And Germany has chosen a chilling route to enforced cultural conformity—conscripting children. Relying on a law with Nazi-era roots, Germany enforces a public-school mandate for all children and punishes religious minorities that homeschool to avoid their kids being force-fed official orthodoxy. While the original Nazi vision of “training German youth in the spirit of national socialism” has been updated to something more benign-sounding, the goal of state-defined homogeneity remains exactly the same. As does the means: forcing parents to send their children in for state indoctrination, on pain of crippling fines or—in the ultimate threat to parents—loss of child custody.

That Germany is re-enacting a bad scene from its past is not good news. But, one might hope, at least some German religious minorities might escape to a better life in the United States, land of the First Amendment and religious liberty. After all, at the same time that Hitler was enforcing his public-school mandate, the U.S. Supreme Court was upholding the right of “children to exercise their religion, and of parents to give them religious training and to encourage them in the practice of religious belief, as against preponderant sentiment and assertion of state power voicing it.” Prince v. Massachusetts (1944). And that’s what the homeschooling Romeike family thought when they escaped to the U.S. from Germany and sought asylum in 2008, and what the immigration judge thought when he granted said asylum. But in 2010, the Department of Homeland Security disagreed, appealed the Romeike’s case, and convinced immigration officials that Germany’s “prosecution” of religious homeschoolers wasn’t “persecution” of religious homeschoolers. (This is, of course, the same DOJ that argued to the U.S. Supreme Court that churches are the same as bowling clubs when it comes to the First Amendment. Hosanna Tabor v. EEOC (2012).)

As a part of its argument, DOJ actually defended Germany’s thought-policing of its citizens’ children as a “generally applicable” law that the U.S. should respect in the same way that it respects prosecution of tax-dodgers. But the overwhelming majority of individuals who are burdened by the law are religious minorities. Thus, setting aside the offensiveness of the comparison between tax fraud and religious liberty, even if Germany’s law is generally applicable, it is so only in the way that a generally applicable “tax on wearing yarmulkes” is really just a “tax on Jews.” Bray v. Alexandria Women’s Health Clinic (1993).

Germany gave the game away when it admitted that its prohibition on homeschoolers was to limit the “religiously motivated” elements of society that didn’t want to dance to the state’s tune. In fact, the German high court made this discrimination against religious believers explicit when it defended Germany’s decision to allow job-based homeschooling: “[T]he differences between those who are ‘school refusers’ for religious reasons, and children who are exempt from compulsory school attendance because their parents, due to their occupation, do not have a firm residence, are of such a nature and such a weight that they justify unequal treatment.” In other words, if your job makes you homeschool your kids, that’s okay, but if your God makes you homeschool, the government will take your kids, fine you out of existence, and throw you in jail. Yet the Department of Justice is defending that as an appropriate “prosecution” that the state may use to entrench the “correct world view” in its citizens.

A three-judge panel of a federal court of appeals agreed with the DOJ, finding that Germany’s policy was neutral toward religion, applied generally to all German citizens, and thus was not a basis for asylum. While immigration law is notoriously tricky, and while the court clearly indicated that it wasn’t sanctioning Germany’s treatment of homeschoolers, that ruling seems incorrect for two reasons.

First, the federal court’s crucial “neutrality” conclusion simply does not grapple with the German high court ruling; it doesn’t even mention it. Again, Germany’s highest court said that the whole reason that the law exists is to stamp out religious “parallel societies.” To my mind, the German court’s ruling makes it impossible to treat this Nazi-derived law as anything approaching neutral.

Second, the federal court looked at the occupation exemption for other homeschool families and found that the government still exercised some control over those homeschool curriculums. So the court concluded that the Romeikes were asking for something more than what those state-approved homeschoolers got. But again, this ignores the German high court’s open admission that the law does treat secular homeschoolers and religious homeschoolers unequally. And, practically speaking, the German court was right. As any family knows, where children learn, and who they learn from, affects what children learn.

The Romeikes have asked that the full appellate court grant en banc review of the case. Here’s hoping they do. Germany is actively seeking to prevent the Romeikes, and others like them, from exercising their fundamental right to live their faith. And that is precisely why this nation has asylum law in the first place: So that we can serve as a refuge for those who’ve been denied their most fundamental human rights.

By Diana Verm and John Ehrett

On the edge of a remote ski slope in Montana stands a statue of Jesus, popularly nicknamed “Big Mountain Jesus.” It is a war memorial, a relic from the mountain’s rich history, a landmark for skiers, a religious symbol, an object of local curiosity…and the subject of a lawsuit challenging its constitutionality.

But today, in light of a recent federal court ruling, it is defined by what it is not: an establishment of religion.

Nearly sixty years ago, the Knights of Columbus leased a 25-foot x 25-foot plot of land, situated within a commercial ski resort, from the United States Forest Service on Big Mountain. They planned to erect a monument honoring fallen soldiers from World War II, and “Big Mountain Jesus” was the final result. Their leasing permit was renewed every ten years without incident, until the Freedom from Religion Foundation sued to have the statue permanently removed, claiming that it violates the Establishment Clause of the United States Constitution.

As U.S. District Judge Dana Christensen correctly ruled, this was not the case. Controversies over similar symbols, however, will persist due to popular misunderstandings surrounding the Establishment Clause.

The Establishment Clause expressly forbids the creation of a state-sponsored religious apparatus, in the vein of the Church of England or Russian Orthodox Church. What it does not do, however, is enforce cultural amnesia about religious aspects of our history. Instead, the Establishment Clause calls the government to viewpoint neutrality in the public sphere. Under such a standard, both commercial enterprises and religious organizations (and by extension, everything in between) are given equal access to the broader public forum, without state suppression of their expressive activity.

America has historically thrived through its diversity of thought and discourse, and in keeping with this pluralism, it is entirely acceptable to acknowledge religion as a component of national heritage and tradition. This is precisely what the “Big Mountain Jesus” monument does. Treating all such acknowledgement as an “unconstitutional establishment of religion” compromises the intent of the Constitution and saps the richness of the American experience. Equal access is the linchpin of the matter: the state may not demonstrate preferential treatment of one faith over another, but neither must it purge religious elements from all arenas bearing some relationship to government. In the case of “Big Mountain Jesus,” Judge Christensen observed that the historic and cultural legacy of the monument outweighed any perceived state endorsement of a given faith. Though the statue itself was of religious character, this dimension alone did not constitute an Establishment Clause violation.

In the wake of all this controversy, “Big Mountain Jesus” has taken on two additional significant qualities. Now, the statue is something more than simply a war memorial, ski landmark, or religious display: it is an ongoing testament to the freedom of expression that first forged the American nation, and a sobering reminder of the need for constant vigilance.

True government neutrality in the marketplace of ideas may be a difficult, multifaceted, and ever-elusive goal…but the alternative is unacceptable.

Diana Verm is Legal Counsel with the Becket Fund for Religious Liberty and John Ehrett is a summer communications intern at the Becket Fund for Religious Liberty and a rising senior at Patrick Henry College.

On June 14, millions of Americans will celebrate Flag Day. Unfortunately, the traditional two-minute ceremony by which Americans profess loyalty to their national colors has come under fire yet again.

By John Ehrett

Over the last several years, repeated challenges have been leveled at one of America’s most revered bastions of patriotism: the Pledge of Allegiance. Lawsuits seeking to strip two simple words – “under God” – from the Pledge have arisen in state and federal courts alike. Those opposed to the Pledge’s current text have continued to press for change, despite losses in the the 9th Circuit Court of Appeals (2010) and the 1st Circuit (2010). This persistence may be due to the fact that the Supreme Court has only obliquely weighed in on the issue: in 2002 the Court ruled that Michael Newdow, the atheist minister responsible for many of the challenges, lacked proper standing to proceed with his suit, but issued no majority opinion regarding the Pledge’s constitutional permissibility.

There is no broad political groundswell seeking to toss out “under God”; nearly 90% of Americans favor retaining the phrase. Unfortunately, their views run directly counter to the radical secularism currently seeking to eradicate religion from the public square…even when such “religion” isn’t even rooted in a specific ideology.

Contrary to what many in the secularist camp have asserted, the Pledge of Allegiance is neither a prayer nor a declaration of metaphysical dogma. As historians have noted, the phrase was originally introduced in the 1950s as a political counterweight to the anti-religious antagonism of the Soviet Union. The clause “under God” simply recognizes that individual persons are uniquely valuable, invested with natural rights that transcend their roles as cogs in a social machine; furthermore, by referring to “God,” the government is forced to acknowledge that its authority over citizens is in fact limited. Irrespective of any religious context, those are positive and humanistic ideas – around which both people of faith and nonbelievers can unite.

When Americans unite to speak the words of the Pledge of Allegiance, they are collectively reaffirming their belief in these human rights, whether or not they personally choose to revere a deity. The power of the Pledge is its implicit assumption that human beings are more than means to a given political or economic end; by virtue of their humanity alone, they possess a certain inherent worth that no government may legitimately infringe.

In keeping with this sentiment, the Becket Fund for Religious Liberty is committed to upholding the intrinsic dignity of all people. Foundational to that dignity, in turn is a recognition of individuals’ right to freely exercise their religious beliefs, in both public and private spheres.

This Flag Day, let’s collectively pause to remember the sacrifices behind the freedoms we take for granted…including religious freedom. Our society, founded on such liberties within a system of democratic pluralism, has dynamically impacted the course of human history. And if a deep-rooted respect for fundamental beliefs – worldview systems that both unite and divide us – is sacrificed on the altar of anti-religious fear, our nation loses one of its most valuable assets.

Americans may not agree about much else, but we should be able to agree on that.

John Ehrett, a senior at Patrick Henry College, is the communications intern at the Becket Fund.

Many of the restrictions and increasingly vicious attacks on people of different religious traditions–especially minority faiths–are motivated by deep fears of the unknown and unfamiliar.

By: Eric Rassbach, Deputy General Counsel, The Becket Fund for Religious Liberty

If President Roosevelt was right that the only thing we have to fear is fear itself, then religious people have a lot to fear these days. Many of the restrictions and increasingly vicious attacks on people of different religious traditions–especially minority faiths–are motivated by deep fears of the unknown and unfamiliar. In this way the suppression of religious identity and ideas in public life creates a danger for the polity–without the ability to discuss beliefs in public, fear of the differently-believing grows silently, only to explode later in times of political instability. One sees this dynamic over and over again in societies that attempt to pretend away religious differences, from the war in Bosnia to the civil war in Syria today. Both of those wars arose in societies where public expression of religious identity had long been suppressed, yet in the end it turned out that religion, and religious liberty, really did matter.

As we have already noted elsewhere, one facet of this fear is rooted in demographics. Those in power or majorities often fear relative demographic growth of those with different religious beliefs. For example, government officials in Burma recently adopted a “two-child policy” that would apply only to Muslims. This even though Muslims are a tiny minority (approx. 4%) of the Burmese population. This population limitation targeting a specific religious minority is a textbook example of demographic panic, as exemplified by this statement from a government official: “This is the best way to control the population explosion which is a threat to our national identity. If no measure is taken to control the population, there is a danger of losing our own identity.”

Similar feelings of fear and loathing towards the religious were recently published in, of all places, The Forward. The author, Jay Michaelson, focused on the demographic trends, saying, “Call them what you will – ultra-Orthodox Jews, ‘fervently Orthodox’ Jews, Haredim, black hats. They will soon become the majority of affiliated Jews in the metropolitan New York area, and the religious majority in Israel. The results will be catastrophic. … [P]retty soon, the hierarchy will overwhelm us. Demographers tell us that 49% of New York’s Jewish children are Haredi (either Hasidic or ‘yeshivish’). Especially in light of non-Orthodox disaffiliation, New York Jewry, within a generation, will be fundamentalist, poor, uneducated and reactionary.” This kind of attacking language is specifically designed to incite demographic panic among non-Orthodox Jews and others, and thus create support for government measures to suppress a certain disfavored religious group.

Aside from its crude and inaccurate description of the Orthodox, this kind of rhetoric and the solutions it offers are self-defeating. Government suppression of religious identity here or in Burma will not make religious identity go away; it will simply drive religious expression underground, and increase the likelihood of an explosion of interreligious strife. The far better course is to publicly respect and honor religious differences among people, not because we seek to approve any one set of religious beliefs or all religions generally, but because because we respect and honor the inherent dignity of each person and therefore the beliefs she holds.

Legally speaking, the firestorm over the North Carolina resolution is much ado about nothing. But this ado should remind us of the lessons, good and bad, we have learned from more than 200 years as one nation under the Establishment Clause.

The latest church-state firestorm is over several North Carolina legislators’ proposed resolution that proclaims North Carolina’s right to establish a state religion. One can only hope that its introduction on April Fools’ Day was not a coincidence.

If you thought we settled the issue of official state-run churches years ago, you were right. The Establishment Clause prohibits the creation of an official state religion. It originally applied only to Congress, and some states famously kept their own established churches into the mid-nineteenth century. (Massachusetts was the last to shut down its state church.) In 1947, the Supreme Court declared the Establishment Clause applicable to the states, which means that North Carolina has no power to set up a state church. While serious scholars have raised questions about whether the Establishment Clause should apply to the states, one thing remains clear: states cannot run their own official churches. History shows us it’s bad for states, and bad for churches.

The good news about the North Carolina law, for all its rhetoric, is that it has no legal effect whatsoever. It is a non-binding resolution, stating the feelings of some in the legislature, but with no power to impact the state’s laws or its citizens. In that way it is the twin of what San Francisco did several years ago, when it passed a resolution condemning the Catholic Church and calling on its priests to disobey Church teachings on same-sex marriage. Both proposals were perfectly obnoxious, and completely toothless.

The stated reason for the proposal is to permit legislatures to open their meetings with prayer. Legislative prayers are an intriguing and important legal issue: the Supreme Court has permitted them in Congress, and lower courts have split over what prayers can be said at city councils, school boards, and other meetings. But this resolution is more likely to hinder than help with that issue–by affirmatively stating that some in government are trying to promote a particular faith, the resolution will make it harder, not easier, to win legislative prayer cases in court.

There are real reasons to be worried about Establishment Clause overreach. It has been used to challenge a South Carolina law that allows private, off-campus religious classes for public school students; a federal law that protects the First Amendment rights of prisoners; and an Arizona scholarship program that helps students attend the schools that are best for them. Happily, the courts beat back each of these challenges. But they demonstrate that extreme readings of the Establishment Clause can do real harm to programs that help real people. The North Carolina resolution merely shows us that bad legal advice is not limited to one side of the Establishment Clause debate.

Legally speaking, the firestorm over the North Carolina resolution is much ado about nothing. But this ado should remind us of the lessons, good and bad, we have learned from more than 200 years as one nation under the Establishment Clause.

Which would you choose?

The Supreme Court has been asked to decide whether it is unconstitutional to hold high school graduations in a church auditorium. If the Supreme Court agrees to hear the school district’s appeal, it has the potential to become one of the most significant church–state cases in many years.

For years Brookfield East High held their graduation ceremony in their school gymnasium, which was hot, cramped, and uncomfortable–lacking air conditioning, adequate seating, adequate parking, or adequate handicapped facilities. At the students’ request, the school moved graduation to a nearby church auditorium.

Want to see the difference?

You can read our petition to the Supreme Court here, and see more photos of the spaces here. The Supreme Court is expected to announce on April 15 whether it will review the case.

Eastern Michigan University quietly threw in the towel on Monday, settling its lawsuitwith its former student Julea Ward. The University had expelled Ward from her graduate counseling degree program when she sought to use a patient referral mechanism that other student counselors were allowed to use. Her sin?  She wanted to refer patients for religious reasons: she did not feel that she could in good faith provide same-sex couples advice on their relationship because she believed those relationships to be sinful. The problem for the University was that it allowed student counselors to refer patients for all sorts of reasons and Ward violated no written University policy; in short, Ward was being targeted. The University’s punishment of Ward earned it a rebuke from the federal Sixth Circuit Court of Appeals in Cincinnati, which held that the University was “permitting secular exemptions but not religious ones and failing to apply the policy in an even-handed, much less a faith-neutral, manner to Ward.” This reasoning followed the Becket Fund’s amicus brief filed in the appeal.

Ward v. Wilbanks is another example of government officials using the power they have to try to force a kind of ideological conformity onto those who dissent from academic pieties. The University’s decision to give up, pay Ward, and issue her a clean academic record indicates that the First Amendment is still a significant bulwark against the bureaucratic urge to squelch diversity of ideas. But it is a bulwark that still requires defenders.

Hosanna-Tabor case marked a fundamental shift in First Amendment jurisprudence. Further evidence of that shift came yesterday in an important decision by the federal Fifth Circuit Court of Appeals in Cannata v. Catholic Diocese of Austin.

By: Eric Rassbach, Deputy General Counsel, The Becket Fund for Religious Liberty

Many prominent First Amendment scholars have said (see Professor McConnell and Professor Laycock’s law review articles) that the Hosanna-Tabor case marked a fundamental shift in First Amendment jurisprudence. Further evidence of that shift came yesterday in an important decision by the federal Fifth Circuit Court of Appeals in New Orleans. In Cannata v. Catholic Diocese of Austin, the Fifth Circuit held that a Catholic parish’s music director could not sue the parish for alleged employment discrimination because of the important role he played in organizing the parish’s weekly masses. Writing for the Court, Judge Dennis adopted the reasoning of Justice Alito’s and Justice Kagan’s concurring opinion in Hosanna-Tabor, stating that civil courts could not interfere with Cannata’s firing because he “played an integral role in the celebration of Mass and that by playing the piano during services, Cannata furthered the mission of the church and helped convey its message to the congregants.” This adoption by the Fifth Circuit of the Alito/Kagan approach represents an adoption of an even stronger form of protection for religious autonomy, and is likely to be adopted other Courts of Appeals as well.

The effects will be wide-ranging. This decision by the Fifth Circuit will not be the last to apply Hosanna-Tabor, and indeed it has already been invoked in the 30-plus HHS mandate lawsuits and other contexts. That means that the case’s aftershocks will continue to be felt for many years to come. And because of the strong stand Hosanna-Tabor took for the freedom of religious organizations to govern their internal affairs, the case looks to be the gift that keeps on giving.

By: Eric Rassbach

The long-running Bronx Household of Faith case we previously blogged about here is on another trip to the Second Circuit. The case concerns New York City’s repeated attempts to keep churches–and only churches–from renting public school buildings on the weekends like other community groups. In the latest version of its anti-church policy, the City discriminates against religious groups that ordain their ministers and follow a prescribed order of worship. For the City, meetings that include ordained ministers and an order of worship are “religious worship services” that must be excluded. However, groups that engage in hymn-singing, prayer, and other activities are not–in the City’s definition–worshipping and therefore can get access like other community groups.

Yesterday the Becket Fund, along with Professor Michael McConnell of Stanford Law School, submitted an amicus brief to the Second Circuit arguing that the Religion Clauses of the First Amendment do not allow New York City to discriminate against churches based on internal church decisions about whether to ordain ministers or follow an order of worship. Indeed, as the brief argues, New York City should not even care about how churches organize their worship services, much less penalize them for it:

In its efforts to win litigation more than a decade old, the Department has arrived at a Policy that requires it to inquire into and discriminate against religious groups that follow a prescribed order of worship or ordain ministers. But under the Religion Clauses, these are quintessential church decisions that the Department has no business interfering with. True church-state separation demands that the Policy be struck down.

The Becket Fund hopes that the federal courts will tell New York City “fuhgeddaboutit” when it comes to discriminating against churches.

Also assisting on the amicus brief was attorney Deborah J. Dewart.

The Becket Fund for Religious Liberty is pleased to announce that Harvard Law Professor, constitutional scholar, and Becket Fund Board of Directors member, Mary Ann Glendon, has been appointed to the United States Commission on International Religious Freedom (USCIRF). Continue reading “Professor Mary Ann Glendon Appointed to U.S. Commission on International Religious Freedom” →

Becket Fund’s founder and president emeritus, Kevin. J. “Seamus” Hasson, will receive an honorary degree from the University of Notre Dame’s, May 20th, for his distinguished leadership in religious liberty.

Continue reading “Notre Dame to Award Seamus Hasson Honorary Degree” →