Blog from the Capital

A panel of the Arizona State Court of Appeals declared the state's 2-year-old school voucher initiative illegal yesterday. The program, for foster and disabled children, has been described as a test effort leading to a more sweeping, statewide voucher program for all students. The Arizona Daily Star reports on the unanimous decision, which did not find the vouchers were improperly funding religious exercise, but did find it to violate the state's clear no-aid provision (which reads "No tax shall be laid or appropriation of public money made in aid of any church, or private or sectarian school, or any public service corporation."):

Judge Garye Vasquez acknowledged that the Legislature generally sets the policy of the state. But he said their ability to do that is limited.

"Only by ignoring the plain text of the Arizona Constitution prohibiting state aid to private schools could we find the aid represented by the payment of tuition fees to such schools in this case constitutional,” he wrote for the court.

And Vasquez said if lawmakers want such a program they are free to propose a constitutional amendment and see if voters will adopt it.

The Associated Press report is here. People For the American Way, which helped bring the suit has a press release here.

Posted by Don Byrd at 12:42 AM | Permalink | TrackBacks (0)

In Colorado, a law prohibits the state from giving public tuition assistance money to students enrolled in "pervasively sectarian" institutions, in an effort to avoid conflicting with the Establishment Clause of the US Constitution.

Colorado Christian University is challenging their students' exclusion from the program in an interesting case that draws on the direct-indirect aid distinction that has become so important in government subsidy church-state arguments. Short of training for an explicitly ministerial position, the school argues, denying students who attend religious institutions amounts to a violation of Free Exercise, and choosing which schools fall under a "pervasively sectarian" category amounts to an Establishment Clause violation.

A lower court ruled against their complaint, but yesterday a panel of the 10th Circuit heard their appeal and from a Denver Post report it sounds like they were none too impressed with the state's position that the law is constitutional.

[Judge] McConnell questioned why the court should uphold the state law when it's not clear why the exclusion was put in place.

"We're looking to see whether the state had a purpose to sustain this," he said. "Why should we uphold it for a facetious purpose that it looks like the state never had?"

For years, of course, the difficult question under the First Amendment has been identifying which forms of public assistance to religious education are permitted; the Supreme Court has never held that such funding is constitutionally required. The rule advanced by CCU and its amici – that all forms of aid permissible under the Establishment Clause are compelled by the Free Exercise Clause – would leave the States and the federal government in an untenable position, facing Establishment Clause challenges when they extend disputed forms of aid to religion and Free Exercise challenges when they do not.

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In today's Washington Post, Jacqueline Salmon profiles the upcoming ballot initiative in Florida which will remove a key religious liberty provision from the state Constitution and would pave the way for a new school voucher scheme after other attempts have failed.

At the end of the piece, we are finally reminded that the no-aid to religion provision does not prohibit religious groups from receiving public money for *secular* services.

As long as programs run by religiously affiliated organizations are delivering secular social services in a nondiscriminatory way, they are not affected by the Blaine Amendment or the Florida appeals court decision, said Howard Simon, executive director of the ACLU of Florida.

"We've had this in this country for decades and there is no constitutional impediment to that," Simon said. Proponents of removing the Blaine Amendment, he said, "want government funds in order to be able to engage in religious activities and discriminate on who is served and who is hired."

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I said it back in December when Mike Huckabee was pushing it, and I say it again now after seeing Barack Obama's Kentucky campaign literature. (warning: that's a link to CBN News...)

As I mentioned in Huckabee's case, it's not that it creates a church-state issue per se, but it is the kind of thing that contributes to a general climate of division along religious lines. Do we need direct appeals to a voter's religious affiliation and comfort level? As opposed to plans and governing philosophies and actual qualifications? Am I being too sensitive? It happens...

[UPDATE: Interfaith Alliance head Welton Gaddy offers his discomfort as well:

“I am deeply disappointed that Senator Obama once again chose to distribute information about his religious beliefs in an attempt to score political points before a critical primary. The candidates for president are running for Commander-in-Chief, not Pastor-in-Chief, and the Constitution clearly prohibits using religious convictions as a qualification for public office. There are so many serious issues facing this country from the war to health care to the economy. Presidential candidates need to spend more time outlining their vision for this country and less time trumpeting their religious bona fides.”

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In the newest issue of BJC's Report From the Capital, Holly Hollman asks a sensible question: "Where is the Workplace Religious Freedom Act?"

And hey, why not subscribe to this flagship publication of the Baptist Joint Committee? E-Mail Kristin Clifton to start receiving it in your home or church.

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After reviewing their packet of online information for ministers, Melissa Rogers finds that the Alliance Defense Fund's "Pulpit Initiative" is more about mounting a legal challenge than it is about defending earnest religious expression.

So the goal is not for the ministers to provide the most faithful words and witness to the flock. No, the goal is for the ministers to prepare the sermons "with the assistance and direction" of a bunch of lawyers "to ensure maximum effectiveness in challenging the IRS." Good to know.

Posted by Don Byrd at 02:47 AM | Permalink | TrackBacks (0)

An editorial in the Des Moines Register offers this perspective today:

"This is nothing more than a nonprofit tax review," Grassley has said.

And his inquiry isn't about religion, as some critics have suggested. It's about congressional responsibility to ensure good governance. It's about tax-exempt status.
...
Eventually, Congress could issue subpoenas requiring adequate responses.

If it comes to that, so be it. A refusal to answer questions makes one wonder what the televangelists have to hide. Tax-exempt organizations shouldn't be allowed to hide - regardless of their religious affiliation.

Posted by Don Byrd at 04:49 PM | Permalink | TrackBacks (0)

Kenneth Copeland, one of the six televangelists to receive inquiries from Senator Charles Grassley regarding tax-exempt regulations and their financial practices, has launched a web site to corral public support for his defiant stance against the request for information. BelieversStandUnited.com offers Frequently Asked Questions about the ministry and the current controversy. My favorite is a question about the "wall of separation" between church and state, which they of course readily assert in this case.

Posted by Don Byrd at 09:38 AM | Permalink | TrackBacks (0)

A few more thoughts on the majority-rule commencement prayer concept being used by a Louisiana school district. The excuse, to sidestep (they hope) the constitutional prohibition against school-sponsored prayer, is that the school really has nothing to do with it. This is really - the argument goes - a "student-initiated" prayer...if, that is, you can ignore the school administrator forcing the seniors to have the vote in the first place. It was all the kids' idea, you see, and prayer may not be restricted if it is "initiated by private individuals such as students."

But this cynical manipulation of the process, in nearly the same way as the high school football coach who polls his players to make sure none of them object to his pre-game prayer, makes a mockery of students' religious freedom protections.

A student "initiates" prayer before school or during lunch with friends, during non-instructional time, maybe in a club or silently any time it seems like a good idea. Before - or often in my case during - a geometry exam is a popular choice. In any case, it is an individual act, and an individual's freedom, worth fighting to protect as vigorously as any we cherish.

But when a group of seniors is divided by a school administrator into those who are for and those who are against prayer, "student-initiated" is hardly the phrase to describe it. And, assuming the students also determine the one who will do the praying through a similar vote (that part of the process is not clear), it hardly reflects a "neutral criteria" in selecting commencement speakers, as prescribed in Education Department guidelines.

Posted by Don Byrd at 02:17 AM | Permalink | TrackBacks (0)

This is not the constitutional way to conduct graduation for public schools.

The Ouachita school system (LA) supports the students and their decision to pray. In fact, they directed each school to let their senior class choose whether they would like to include prayer at graduation.
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Students at Ouachita Parish, West Ouachita, Richwood and Sterlington high schools have all voted to have student-led prayers at their graduation ceremonies this year. West Monroe High School Principal Sherry May said that their class has not yet voted.
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"We are going to pray," Ouachita Parish High guidance counselor Tesa Stewart said. "We were told to let the students make the decision. They voted and the majority ruled."
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[T]he decision by the Ouachita Parish High senior class was nearly unanimous and that those who may have had differing opinions, did not voice concerns.

[S]ome things should not be subject to elections or majority rule – like our religious liberty rights. Certain freedoms are deemed so important that they are put beyond the reach of elections and majority decision. Freedom of religion, freedom of speech, freedom of assembly and other key liberties are among them.
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The Supreme Court has already struck down this “majority-rules” prayer scheme, and it’s remarkable that in 2008, some people believe they have the right to vote to impose religious worship on others.

Why is this difficult for an entire community of adults to grasp?

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An AP story over the weekend picked up on the news that the Alliance Defense Fund is actively recruiting pastors to violate their churches' tax-exempt prohibition on electioneering. Baptist Joint Committee Director Brent Walker is quoted on one important, often overlooked element of the equation: the harm to religious integrity in such a breach:

Some religious groups support keeping politics out of the pulpit.

J. Brent Walker, executive director of the Baptist Joint Committee for Religious Liberty in Washington, which advocates for religious freedom, said churches should be involved in public issues, but partisan activity can "compromise the essential calling to spread the Gospel."

"The church can't raise prophetic fist at a candidate or at a party," Walker said, "when it's locked up in a tight bear hug with that candidate or party."

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Receiving a religious freedom award from the Becket Fund, former presidential candidate (and possible vice presidential pick?) Mitt Romney offered a more nuanced speech on the role of faith in America than his highly controversial effort back while he was still running. This new address (thanks to Religion Clause for the link) did finally acknowledge the importance of protecting non-believers as well as believers. As the Dallas Morning-News also mentioned, Romney stood by his claim - which frankly I still don't entirely understand - that "freedom requires religion".

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As I posted last month, the Alliance Defense Fund is actively encouraging pastors to violate the terms of their tax-exempt status and endorse candidates from the pulpit. Today's Wall Street Journal picks up on the story.

The action marks the latest attempt by a conservative organization to help clergy harness their congregations to sway elections. The protest is scheduled for Sunday, Sept. 28, a little more than a month before the general election, in a year when religious concerns and preachers have been a regular part of the political debate.

Houses of worship belong to divine authority – they are not the property of either political party. The Alliance Defense Fund’s call for pastors to break the law represents the height of irresponsibility. They are putting churches across the country unnecessarily at risk to costly and time-consuming investigations that could result in harsh financial penalties. Putting churches in legal and financial jeopardy seems a bizarre way of defending religious freedom, which the ADF claims to defend.

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Yesterday, a panel of the 10th Circuit Court of Appeals ruled 3-0 that the Religious Freedom Restoration Act does not protect a Native American who killed a bald eagle for a religious ceremony. You can read the decision here. A lower court had ruled in favor of the Northern Arapaho tribe. They argue that the government's supposed permit process designed to accommodate such needs was highly ineffectual.

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