By Don Byrd
This year’s religious liberty news was dominated by U.S. Supreme Court intervention in church-state disputes. Some issues tackled by the High Court were familiar, like the problems posed by opening a government meeting with an invocation. Others were new, like whether for-profit corporations can claim religious freedom rights.
At its heart, the year in religious liberty mostly centered on the concept of religious accommodation. When does the law require the state, military or an employer to refrain from enforcing some regulation – or otherwise bend – in response to someone’s claim to the free exercise of religion? When is it OK to ask a person to choose between the demands of their business, job or military service on one hand, and living out their sincere religious beliefs on the other?
Religious accommodation takes many forms and comes up in a variety of circumstances, as evident in 2014’s top stories:
The U.S. Supreme Court Sides with Hobby Lobby
In June, a sharply divided Supreme Court ruled in favor of a religious liberty challenge to the contraceptive mandate.
In Burwell v. Hobby Lobby Stores, Inc., owners of closely held, for-profit corporations argued that the requirement to provide certain contraception coverage in their health care plans violated their rights to run their businesses according to their faith. The government, they argued, could have provided the health coverage without placing such a burden on the companies’ religious exercise.
By a 5-4 vote, the Court agreed. In the process, they resolved a key controversy by rejecting the argument put forward by Justice Ruth Bader Ginsburg in the dissent and at least one appeals court: that for-profit corporations cannot exercise religion. In at least the case of a closely held corporation, religious freedom claims are available.
The Hobby Lobby ruling has had an enormous impact on the conversation surrounding corporate rights to religious accommodation. Primarily, it has sent advocates on both sides scrambling to define the scope of the decision and to claim a stake in its meaning going forward.
Many argue Hobby Lobby opens the floodgates to allow businesses broad rights of conscience to avoid government regulations on religious grounds. There are a few reasons to believe the ruling may not have that broad of an effect.
As the BJC’s Brent Walker recently pointed out, just because some for-profit corporations may be able to raise religious liberty claims thanks to Hobby Lobby, that doesn’t mean they will prevail. Courts still must balance those claims against the interests of government and the interests of third parties.
In addition, the majority opinion emphasizes the decision relates only to closely held corporations. The Court did not address the issue of larger or more-diversely held companies. That may be the next legal battleground in this dispute over whether, and to what extent, corporations can claim an exemption from a government regulation.
Supreme Court Upholds Christian Prayers at Local Government Meetings
This year, the Supreme Court also handed down its decision in Town of Greece v. Galloway, ruling in a legislative prayer dispute for the first time in 30 years.
The Court, by a 5-4 vote, held that the town’s policy allowing clergy to offer sectarian prayer does not violate the separation of church and state. The BJC had filed a brief urging the Court to prohibit such prayer policies in local government meetings in which citizens must be present to make their voices heard.
The majority emphasized the historical tradition of opening legislative sessions with prayer, including Christian invocations. Because of that tradition, the Court rejected arguments that such prayers must be non-sectarian and inclusive to be lawful, and it declined to draw any distinction between a state legislative assembly and a town commission meeting.
In the absence of discrimination against a faith tradition in the community, a practice and pattern of exclusively Christian prayers, they said, is not unlawful. The town is not required to seek out representatives of minority faiths beyond its borders to avoid the appearance of endorsing a particular religion.
The Greece ruling led a number of local governments to update their policies to allow prayer and remove requirements that the invocation be nonsectarian in nature. It has also led many minority religious adherents, as well as some atheists, to demand a turn in the invocation process.
Supreme Court Hears Argument Over Religious Freedom Rights of Prisoners
In the case of Holt v. Hobbs, the Supreme Court questioned Arkansas Department of Correction officials over their refusal to allow an inmate to grow a beard as required by his faith.
A brief signed by the BJC urged the Court to side with the plaintiff, Gregory Holt, a practicing Muslim serving a life sentence. While the state has a strong interest in ensuring safety and security in its prisons, here they offered only hypothetical security concerns. Justice Samuel Alito joked that perhaps combing through such a beard would helpfully reveal guns or other contraband hidden there.
A decision in the case is expected in 2015. Stay tuned to the BJC blog and follow me on Twitter (@BJCblog) for updates and coverage when the ruling is released.
Religious Nonprofits Continue to Challenge Contraception Coverage Rules
While the Hobby Lobby decision settled questions regarding the contraceptive mandate for closely held for-profit corporations, other challenges are still making their way through the courts.
The Affordable Care Act exempts houses of worship from the requirement altogether, and it provides a mechanism of accommodation from the mandate for religiously affiliated nonprofit organizations. The Obama administration issued rules requiring such organizations to certify their objection on religious grounds by submitting a form.
Many organizations, however, contend that the accommodation is insufficient because their filing will trigger another provision in the law that provides employees with access to contraception through other means. The Supreme Court surprised many on New Year’s Eve last year by halting enforcement of this rule in one case while litigation is pending.
To date, appeals courts considering the issue have largely ruled in favor of the administration, finding that any burden placed on the religious exercise of such organizations by having to file the form is not substantial enough to invalidate the provision. The Supreme Court has not yet taken up this issue, but that could quickly change.
Obama Non-Discrimination Order Declines Religious Exemption
The White House issued an executive order in July barring federal contractors from discrimination in hiring based on sexual orientation and gender identity. Many religious leaders pressed the administration to include an exemption for contractors that are religious organizations, but the president’s order rejected that request. He did, however, leave intact an order that allows religious organizations that contract with the government to discriminate in hiring based on religion.
Many advocates, including the Baptist Joint Committee, argued against the exemption, saying that when a religious group agrees to take federal funds, it should be bound by the same hiring rules as other federal contractors.
Religious Accommodation Policies in the Military Questioned
In January, the Defense Department announced changes to its policy of religious accommodation. The changes evinced a new willingness to make exceptions to grooming standards when they conflict with a service member’s religious beliefs. Previously, such accommodations were extremely rare.
Many religious liberty advocates, however, argued the changes did not go far enough in assuring adherents of minority faiths the right to serve in the armed forces. In April, a letter to the Pentagon signed by the BJC expressed concerns that service members under the new policy would be required to comply with grooming standards while they await the outcome of their request, and they would have to resubmit the accommodation request upon transfer.
Conscience Rights Dominate Religious Freedom Discussion
Lastly, a growing trend in 2014 was the focus on the right of business owners to refuse to provide marriage-related services to same-sex couples. In states and cities where non-discrimination laws prohibit such refusal generally, this year’s increase in same-sex marriage legalization has brought with it understandable conflict for those who object on religious grounds.
While it is clear that churches and houses of worship will not have to participate in same-sex marriages, the rights of other individuals and businesses to refuse is still the subject of very contentious debate. The issue is one worth watching in the next few years as courts consider where the proper lines should be drawn to balance the religious freedom rights of service providers with the rights of individuals to be free from discrimination.
Coming up next week: A look ahead toward the religious liberty issues likely to make news in 2015!
