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Nebraska Governor Signs Teachers’ Religious Garb Bill Into law

Written by Don Byrd

Nebraska public school teachers can now wear habits, hijabs, and other religious clothing in their classrooms. Governor Pete Ricketts signed LB 62 into law, a bill repealing a 98-year-old provision prohibiting teachers from wearing religious garb.

News Channel Nebraska reports that a substitute teacher’s experience with enforcement of the antiquated law spurred this effort:

The Governor said the new law rights a wrong from 1919 when the state passed the religious garb rule under pressure from the anti-Catholic Ku Klux Klan. That law continued in obscurity with many not knowing it existed, including Scheer, until Sister Madeline Miller was told she could not wear her nun’s habit and be a substitute teacher for Norfolk Public Schools last year. She told Scheer and he went to work. He had to convince some in the Unicameral that abolishing the law still allowed for a separation of church and state.

“We aren’t discriminating against any religion here, we are trying to make sure that those that have a religious background aren’t discriminated against,” Scheer said.

On that last point, of course school administrators should be wary of religious activities on campus that faculty or staff join with students. But barring …read more

5th Circuit Upholds Student-Led Prayer Opening School Board Meetings

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Written by Don Byrd

It’s one thing for a government meeting to open with a solemn and respectful prayer delivered by a chaplain, or local member of the clergy. What if the meeting is a school board? And what if the person giving the prayer is a child attendee of a local public school?

This week, the 5th Circuit Court of Appeals ruled that a Texas school district may continue its practice of opening school board meetings with a student-led expression that is typically a prayer. The decision adds a new layer of interest to the question of when and under what circumstances the U.S. Constitution allows the government to open official proceedings with prayer, particularly when the public school system is implicated.

Here is a little background.

The Supreme Court in 2014 upheld “legislative prayer” led by area clergy to open commission meetings of the Town of Greece, NY, because the circumstances were not coercive, the prayers were not disparaging of other faiths or proselytizing, and the policy of choosing prayer-givers was not discriminatory. Both the 4th and 6th Circuits are currently (re)considering cases that explore the limits of that Supreme Court decision, Town of Greece v. Galloway.

In the context of school …read more

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Watch: Religious Liberty Discussion During Day 3 of Gorsuch Hearing

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Written by Don Byrd

Day three of the Senate Judiciary Committee hearing on the nomination of Judge Neil Gorsuch to the U.S. Supreme Court continued with questioning from Senators. While religious liberty did not figure prominently into the discussion as it did during day two (see previous post), it did come up in a substantive way during one exchange, which you can watch below.

Senator Jeff Flake (R-AZ) asked Judge Gorsuch to explain the Yellowbear case (which I also profiled in my analysis of his prisoner rights cases). The case involved an inmate’s claim under the Religious Land Use and Institutionalized Persons Act (RLUIPA) that his religious liberty rights were violated when he was denied access to a sweat lodge, which is important to his religious beliefs.

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Watch: Day Two of Gorsuch Hearing Includes Discussion of Hobby Lobby, Establishment Clause, Religious Tests

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Written by Don Byrd

Day two of the Senate Judiciary Committee hearing of Judge Neil Gorsuch’s nomination to the U.S. Supreme Court included significant discussion of religious liberty topics. I count nearly 45 minutes devoted to the topic altogether.

More than one Senator focused on Hobby Lobby, which Judge Gorsuch called “a hard case” and about which he later added, “If we got it wrong, I’m sorry.” (se below). He was asked about religious tests, including the idea of a Muslim ban on immigration, and also talked about the Establishment Clause, which he called “a very difficult area” in which “the [Supreme] Court has struggled…to provide a consistent, comprehensive test.”

You can see clips from Tuesday’s hearing of substantive discussion of religious liberty topics below, (For clips from the opening statements see Monday’s post.). For those especially interested in detailed legal discussions surrounding RFRA and Hobby Lobby, I highly recommend the judge’s exchange with Senator Chris Coons (D-DE), which is at the bottom of the list below.

In questioning from Senator Orrin Hatch (R-UT), Judge Gorsuch talked about his experience with the Religious Freedom Restoration Act (RFRA), particularly with regard to the Hobby Lobby case, which dealt with the contraceptive mandate in the Affordable …read more

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Day One of Gorsuch Hearing Features Opening Statements

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Written by Don Byrd

Day one of the Gorsuch confirmation hearings was limited to opening statements by committee members and by the nominee himself. During their opening statements, members often indicate issues that are most importantto them, and that they may ask about during the question and answer sessions, which begin tomorrow.

Below are excerpts from the day’s opening statements that explored topics related to religious liberty.

Senator Richard Durbin (D-IL) in his opening statement discussed the impact of the Hobby Lobby case, which Judge Gorsuch heard as a 10th Circuit judge. The Illinois lawmaker clearly rejects the idea that corporations are capable of exercising religion, one key holding of that opinion.

Senator Ben Sasse (R-NE) used a religious liberty example to illustrate the anti-majoritarian emphsais of the guarantees in the Bill of Rights.

Senator Chris Coons (D-DE) discussed the importance of preserving the careful balance between the free exercise of religion with concerns about its impact on the liberty of others.

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BJC: Gorsuch has mixed record on religious liberty

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For Immediate Release
March 20, 2017
Contact: Cherilyn Crowe / ccrowe@BJConline.org / 202-544-4226 / Cell: 202-670-5877

After reviewing Judge Neil Gorsuch’s record on religious liberty issues, the Baptist Joint Committee for Religious Liberty issued a statement in advance of his confirmation hearings.

The following is from Holly Hollman, general counsel of the Baptist Joint Committee for Religious Liberty:

“Gorsuch is an experienced judge with impressive academic credentials. In religious liberty cases, he has given thoughtful attention to religious claims and the elements of the federal statutes designed to protect free exercise. We are concerned, however, that in the contraceptive mandate cases he has been deferential beyond what the law requires. That approach puts religious freedom at risk, as does his lack of concern about government promotion of religion.

We hope members of the Senate Judiciary Committee will ask questions probing his views and approach to religious liberty.”

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Based in Washington, D.C., the Baptist Joint Committee for Religious Liberty is an 81-year-old organization working to defend religious freedom for all people and protect the institutional separation of church and state in the historic Baptist tradition. Learn more at BJConline.org.

Click here to read about Judge Gorsuch’s record on RLUIPA cases.

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BJC: Gorsuch Religious Liberty Record Mixed

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Written by Don Byrd

Today, the Senate Judiciary Committee begins confirmation hearings for U.S. Supreme Court nominee Neil Gorsuch. Following a careful review of his church-state record, the Baptist Joint Committee for Religious Liberty issued the following statement from General Counsel Holly Hollman:

“Gorsuch is an experienced judge with impressive academic credentials. In religious liberty cases, he has given thoughtful attention to religious claims and the elements of the federal statutes designed to protect free exercise. We are concerned, however, that in the contraceptive mandate cases he has been deferential beyond what the law requires. That approach puts religious freedom at risk, as does his lack of concern about government promotion of religion.

We hope members of the Senate Judiciary Committee will ask questions probing his views and approach to religious liberty.”

Check the blog this week for transcripts and videos of any exchange related to religious liberty issues during Judge Gorsuch’s hearing.

For a detailed look at his case regarding prisoners’ religious liberty claims under the Religious Land Use and Institutionalized Persons Act (RLUIPA), see my previous post.

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Analysis of Judge Gorsuch’s Religious Liberty Cases Involving Inmates (RLUIPA)

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Written by Don Byrd

On Monday, the Judiciary Committee of the U.S. Senate will begin confirmation hearings for Judge Neal Gorsuch, President Trump’s nominee to replace the late Justice Antonin Scalia on the U.S. Supreme Court. The Baptist Joint Committee has been reviewing Judge Gorsuch’s church-state record for insight into his views on religious liberty issues. One aspect of his work that may shed some light is his approach to prisoners’ lawsuits.

Like most other federal appeals court judges, Judge Gorsuch has considered a number of cases brought by prison inmates who claim that their rights, including religious liberty rights, have been violated. While these suits rarely result in substantive appeals court opinions, those that do can provide insight into a judge’s approach to religious liberty guaranties in the law.

Since 2000, the Religious Land Use and Institutionalized Persons Act (RLUIPA) has protected the religious exercise rights of inmates pursuant to a strict legal standard. Modeled on the Religious Freedom Restoration Act (RFRA), RLUIPA permits the state to substantially burden an inmate’s religious exercise only if it is necessary to further a “compelling governmental interest.”

In his written opinions applying RLUIPA (discussed below), Judge Gorsuch demonstrates a thoughtful understanding of the law’s intention. He …read more

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White House Budget Plan Includes Funding for New School Voucher Program

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Written by Don Byrd

The Trump Administration has issued a budget proposal for 2018 that includes $250 million to fund a new private school voucher program. But that is just the first installment. Altogether, federal funding for school vouchers and charter schools would increase to $20 billion per year under the President’s plan.

Here is the relevant excerpt from “America First: A Budget Blueprint to Make America Great Again” (my emphasis):

Increases investments in public and private school choice by $1.4 billion compared to the 2017 annualized CR level, ramping up to an annual total of $20 billion, and an estimated $100 billion including matching State and local funds. This additional investment in 2018 includes a $168 million increase for charter schools, $250 million for a new private school choice program,

That is not a lot of detail, clearly, on how the money will be spent, or how a nationwide school voucher program would work.The President recently indicated his support for an approach like that in Florida, which includes school vouchers and tax credits that fund private schools, including religious schools.

As I have written here many times before, and the Baptist Joint Committee has long argued in opposing school voucher …read more

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Federal Judge Temporarily Halts Revised Immigration Executive Order on Religious Liberty Grounds

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Written by Don Byrd

A federal judge in Hawaii has issued a temporary restraining order halting President Trump’s revised Executive Order on immigration, ruling that the directive likely violates religious liberty rights under the Establishment Clause of the Constitution. As I posted earlier, the new Order, among other changes, removes the explicit reference to preferring refugees on the basis of their religious status. But the judge found that the government failed to demonstrate the underlying ban on immigration from six overwhelmingly Muslim countries carried a secular purpose, as the Establishment Clause requires. Instead, the judge emphasized, past statements made by President Trump and administration officials indicate that “religious animus” is the driving motivation.

Below are a few key quotes from the opinion, which issues a temporary restraining order, halting the enforcement and implementation of the order nationwide:

Because a reasonable, objective observer—enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance—would conclude that the Executive Order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose, the Court finds that Plaintiffs . . . are likely to succeed on the merits of their Establishment Clause …read more

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