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U.S. Supreme Court Sets April Date for Travel Ban Hearing

Written by Don Byrd

The Supreme Court today announced it will hold oral arguments in Trump v. Hawaii on April 25. The case involves a constitutional challenge to President Trump’s most recent order, his third attempt at a “travel ban” restricting immigration from certain countries. The 9th Circuit Court of Appeals found the latest action exceeded the president’s authority, and so did not find it necessary to address claims that it violates the separation of church and state. Notably, however, the Supreme Court has asked the parties to address the Establishment Clause question in their briefs.

Subsequently, the 4th Circuit Court of Appeals, hearing a different challenge to the third travel ban, ruled it unconstitutional on those religious liberty grounds the 9th Circuit declined to address. Finding the policy is motivated by the President Trump’s religious animus toward Muslims, the 4th Circuit held it to be discriminatory in violation of the First Amendment. You can read extended quotes from the 4th Circuit’s ruling here.

With so many potential issues to address, the Supreme Court scheduled no other hearings for April 25. It remains to be seen which claims against the president’s order will be their focus.

Previous incarnations …read more

Liberty, equality and the meaning of religious freedom

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By Paul V.M. Flesher

The Declaration of Independence placed the Enlightenment ideal of “liberty” at the heart of the American soul. It cites liberty among the reasons for creating our new country. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness.”

The basic meaning of liberty is the ability to do what one wants. Of course even school children know that unbridled liberty is impossible. If one person decides they want to kill another, an extreme example, the second person’s liberty is violated, to say nothing of their life.

Liberty as a political or governing policy thus consists of balancing of each individual’s ability to behave as they wish against others’ freedom to do the same. The goal is to achieve an equality of liberty for everyone, with everyone attaining as much freedom as possible.

Another widely used definition of liberty is one of freedom from oppression; as the Merriam-Webster dictionary puts it, “freedom from arbitrary or despotic control.” This notion of liberty inspired the Puritans to leave England and come to the New World. They wanted the …read more

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Louisiana School District to Change Policies Following Church-State Lawsuit

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Written by Don Byrd

Faced with a lawsuit alleging sweeping religious liberty violations, school officials in Louisiana’s Bossier Parish have announced new staff training programs and changes in policy to ensure that the rights of students and parents are protected. The lawsuit, filed earlier this month, claims the school district improperly promotes Christianity in classes, clubs, music programs, and on athletic teams.

The Shreveport Times reports:

The board will update and supplement policies to ensure “full legal compliance across the school district” and is scheduling mandatory training for “all administrators, teachers and coaches on the policies and underlying laws,” according to the statement.

“We trust these affirmative steps will resolve the current federal court matter in short order so that precious taxpayer funds can be spent on continuing to improve the quality of educational services to students rather than on potentially expensive litigation,” the statement reads. “Bossier Schools will always carefully respect and preserve the fundamental rights of all students, including their cherished First Amendment right to freedom of religion.

Whether these changes will halt the lawsuit as intended will likely depend on the details of those policy changes. Americans United, which filed the complaint on behalf of four parents, says …read more

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U.S. Supreme Court Asked to Resolve Church Property Dispute

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Written by Don Byrd

The Diocese of South Carolina has asked the U.S. Supreme Court to overturn the state’s Supreme Court and return property awarded to the national Episcopal Church. The dispute, which centers around the Diocese having broken from the church and its congregations claiming ownership of their property, raises significant questions of how courts are to determine disputes between denominational groups.

The Post and Courier reports on the competing views in the case:

“When a schism occurs within a religious denomination between a national church and an affiliated local diocese or congregation, secular courts must often determine which organization owns the property where the local church worships,” the filing states. “This Court has long held that courts may resolve these church property disputes the same way they resolve garden-variety property disputes between secular institutions or, for that matter, between a religious and a secular institution …”

The Episcopal Church, instead, has viewed the dispute through a constitutional lens, arguing that the church is a hierarchical institution governed by its own set of laws and rules, and that its autonomy and authority would be compromised should the disaffiliated diocese prevail.

Individuals are free to leave the church if they disagree with its theology …read more

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Georgia Bill Would Allow Child Placement Agencies to Refuse Service on Religious Grounds

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Written by Don Byrd

A legislative effort to modernize Georgia’s adoption laws failed last year when the state senate added language to allow child placement agencies to refuse to provide services that they object to on religious grounds, even if such refusal violates state nondiscrimination laws, and even if the agency receives government funds. Governor Nathan Deal vowed to veto the bill because of that amendment, and the legislative session ended without action on the measure.

Now, Georgia lawmakers are trying to enact a religious exemption bill for adoption agencies again, this time as stand-alone legislation. Senate Bill 375, the “Keep Faith in Adoption and Foster Care Act,” asserts that “child-placing agencies have the right to provide services in accordance with the agencies’ sincerely held religious beliefs.” It allows agencies under contract with the state to “decline to accept a referral for foster care or adoption services… based on the child-placing agency’s sincerely held religious beliefs,” provided the agency comply with the Americans with Disabilities Act and the Civil Rights Act. Agencies not under contract “may decline to perform any service that conflicts with the child-placing agency’s sincerely held religious beliefs, and the department shall not cause …read more

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4th Circuit: Third Trump Travel Ban Violates Establishment Clause

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Written by Don Byrd

On Thursday, the 4th Circuit U.S. Court of Appeals granted a preliminary injunction halting President Trump’s most recent attempt to limit immigration from certain countries.The court ruled that repeated statements from President Trump evince his hostiity toward adherents of Islam and make clear the connection between those sentiments and his desire to enact broad travel restrictions.

The third “travel ban” (EO-3) Proclamation restricts travel from seven countries to the U.S. (Iran, Libya, Syria, Yemen, Somalia, Chad and North Korea) and limits travel to the U.S. for certain government officials from Venezuela and their families. Previous versions (EO-1 and EO-2) were halted by courts for, among other reasons, violating religious freedom guarantees by unlawfully targeting Muslim immigrants. Despite the addition of two countries (North Korea and Venezuela) to the list of restricted countries that are not majority Muslim, the third travel ban still runs afoul of the Establishment Clause of the U.S. Constitution, the 4th Circuit ruled by a 9-4 vote, because it gives official voice to the President’s discriminatory intentions toward Muslims.

I am including a lengthy quote from the opinion because it explains so thoroughly the basis of their ruling on this issue, and demonstrates the importance …read more

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Massachusetts Bill Would Limit Corporate Claims for Religious Accommodation

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Written by Don Byrd

The relationship between religious freedom and nondiscrimination laws that protect civil rights has been a growing source of controversy in recent years. As the BJC’s Holly Hollman wrote in December, “[p]rotecting religious liberty often involves treating religion in special ways.” At the same time, she noted, “[i]t is difficult… to justify accommodations for the exercise of a religious belief that would negatively impact someone else.”

A bill now being considered in the Massachusetts legislature, would do away with cases-by-case analysis of some religious accommodation claims brought by corporations and clarify that corporate powers in the commonwealth do not include the right to claim a religious or moral exemption from federal or state nondiscriminatlon laws. House Bill 767 was introduced a year ago and received favorable action in the Judiciary Committee.

Associated Press reports on the views of advocates on each side of the measure:

“LGBTQ people across the commonwealth value the cornerstone of freedom of religion. It’s a core belief we all share,” Mason Dunn, Executive Director of Massachusetts Trans Political Coalition said in a statement. “However, when faith and religion are used to hurt and discriminate, that freedom becomes a weapon …read more

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New FEMA funding policy problematic

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By Jennifer Hawks, BJC Associate General Counsel

Overturning decades of precedent, the Federal Emergency Management Agency (FEMA) amended its internal guidelines to permit houses of worship to apply for disaster relief grants that could to go to repair — and even rebuild — houses of worship damaged by disasters. This change is problematic, as one long-standing staple of Establishment Clause law has been that the government does not fund religion. That responsibility is left to individual religious communities.

FEMA has a few avenues for disbursing emergency relief grants following a declared natural disaster. One is to reimburse organizations that provide certain essential services, such as emergency shelter, medical care or meals. Churches that provide these secular services for community residents have long been able to receive these FEMA reimbursements on the same basis as other institutions; the changed FEMA policy does not affect this form of reimbursement.

The new FEMA policy concerns FEMA grants that go to repairing and rebuilding physical structures, not reimbursements for providing emergency community services. Under the former policy, most churches were excluded from receiving grants to repair or rebuild their facilities because their buildings are primarily used for religious purposes. Church-owned buildings primarily used for …read more

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Hollman receives Abner V. McCall Religious Liberty Award

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BJC General Counsel Holly Hollman was recognized for her work defending religious freedom with the 2018 Abner V. McCall Religious Liberty Award from the Baylor Line Foundation. The award honors alumni and friends of Baylor University who, by their lives and actions, exemplify the courage and dedication of McCall to the belief in and commitment to religious liberty. McCall was a justice of the Texas Supreme Court in 1956, dean of the Baylor Law School from 1948 to 1959, and Baylor president from 1961 to 1981.

Upon receiving the award, Hollman commended the Foundation for maintaining Baylor’s commitment to religious liberty and for the honor named for such a beloved Baylor leader. As a friend of Baylor, she noted the many connections between the university and the Baptist Joint Committee, spanning from the BJC’s first executive director, J.M. Dawson, to its newest staff members. Hollman was one of nine people recognized for achievements at the 2018 Alumni Hall of Fame awards gala, held January 20 in Waco, Texas.

Previous recipients of the McCall Award include former BJC Executive Directors James M. Dunn, Brent Walker and James Wood; …read more

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Updates from Washington

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The Baptist Joint Committee monitors rapidly changing church-state issues in all three branches of the federal government. Here are updates in our January/February 2018 magazine. Return to the website for the most current news affecting these and other issues.

Final tax bill does not repeal Johnson Amendment; more threats expected

The tax bill passed by congress and signed into law by President Donald Trump in December did not include any language affecting the “Johnson Amendment,” which is a name for part of the tax code that protects the nonpartisanship of houses of worship and other 501(c)(3) organizations. During final tax bill negotiations, the Senate parliamentarian ruled that language undermining it would violate
the Byrd rule, so it was kept out. “This is a big win for churches, synagogues, mosques, all other 501(c)(3) nonprofits, and the people who rely on them as a vital part of our society,” said BJC Executive Director Amanda Tyler.

The change was stuck into a version of the tax bill on the fast track, but people of faith were instrumental in reminding Congress they did not want or need to alter that part of the law. The Johnson Amendment allows all 501(c)(3) organizations to speak out on political issues, …read more

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