By BJC Blogger Don Byrd
In 2015, religious liberty topped headlines crossing cultural, political, legislative and judicial news. Controversies surrounding the question of legal accommodations for religious objectors, which have been building over the last few years, reached new heights of conflict and media coverage. A review of the top ten religious liberty stories of 2015 must begin with the issue that dominated the news: religious liberty and same-sex marriage.
1. Religious objections to same-sex marriage create cascade of legal accommodation issues
In June 2015, the U.S. Supreme Court ruled in Obergefell v. Hodges that constitutional guarantees of due process and equal protection prohibit states from banning same-sex marriage. Same-sex marriage thus became legal throughout the United States.
As the BJC’s Holly Hollman wrote in the days following the decision, Obergefell is about civil marriage; it is not a religious liberty case. She emphasized that the separation of church and state remains intact. “Churches will continue to make their own decisions about what kind of marriage ceremonies they conduct. Ministers will not be forced to perform same-sex weddings.” However, Hollman warned, “the decision will have ramifications for religious liberty” as other institutions and individuals assert religious objections. And they have.
Numerous individual legal disputes arising out of this conflict impacted the national discussion in 2015. Courts in Washington state and Colorado rejected the religious freedom claims of a florist and a baker, respectively, who were charged with violating local non-discrimination laws because they refused to provide services for same-sex weddings. In both cases, courts found the government had a compelling interest in eliminating discrimination on the basis of sexual orientation, determining that the laws in question were appropriate means of achieving that goal.
In September, a county clerk in Kentucky was found in contempt of court and jailed after she refused to allow her office to issue any marriage licenses due to her personal religious objections to same-sex marriage. Later, Kim Davis was released after she indicated she would not interfere with the issuance of licenses. Governor-elect Matt Bevin has promised to revamp the state’s marriage licensing laws to provide greater protection for objecting government officials.
Several states in 2015, including North Carolina and Utah, either authorized religious accommodation for government officials issuing marriage licenses or obviated the need for such accommodation. Other states continue to look toward these two models in addressing this challenge. In the meantime, objections like Davis’ raise important questions about the obligations of government officials to act on behalf of all constituents. Under what circumstances should an elected official be exempted from performing the duties of his or her job because of a personal religious objection?
This story wasn’t limited to one case; various controversies created cumulative pressures. At times, the resulting conflict got ugly. Some advocates jeered religious objectors as hateful and called into question the wisdom of religious freedom laws (such as the Religious Freedom Restoration Act, known as “RFRA”) that protect people of faith from unnecessary government burdens. On the other side, court rulings against religious objectors are being touted as evidence of a government hostility toward faith or a “war on religion.” In fact, the interplay of religious liberty rights with other government interests has always been a careful balance. Religious liberty has never been a trump card allowing objectors to sidestep legitimate government regulations, particularly where the rights of others are at stake.
This collision between same-sex marriage rights and the claims of religious objectors remains at the forefront of the religious liberty debates in America today. Currently, appeals are either expected or have already been filed in each of the three cases outlined above. As court decisions clarify the issue, Congress and state legislatures will likely come under increased pressure to take action.
2. Religious Freedom Restoration Act measures increase; Indiana, Arkansas face intense backlash
This year brought a wave of religious freedom proposals in state legislatures across the country. In particular, several states considered adding or amending laws with legislation of varying degrees of resemblance to the federal RFRA statute. RFRA prohibits the federal government from imposing a substantial burden to a person’s religious exercise unless doing so is necessary to achieve a compelling government interest. At the beginning of the year, 19 states had similar laws restricting state and local governments. Several others proposed state RFRA statutes in 2015. Typically, such proposals barely would have dented a year-in-review piece, but 2015 was no ordinary year of state RFRA developments.
Indiana was the first of two states to enact a new RFRA law in 2015. The state’s proposed RFRA, which departed from the federal statute in significant ways, faced intense scrutiny from those who argued it lacked sufficient protections against being used to allow discrimination in the name of religion. The backlash against Indiana’s version became a national story; many large corporations in the state opposed the bill and warned of its potential negative economic impact. The NCAA threatened to remove upcoming sporting events from the state, citing the law’s perceived sanction of discrimination on the basis of sexual orientation. Even Charles Barkley got involved, voicing his opposition. Ultimately, Gov. Mike Pence insisted the legislature pass additional non-discrimination guarantees in what was seen as a victory for the law’s opponents in the state.
Meanwhile, the controversy likely played a role in short-circuiting other states’ attempts to pass versions of the law. In Arkansas, a RFRA-like law passed the legislature but was returned by Gov. Asa Hutchinson; he ultimately signed a RFRA that mirrored the federal statute.
Other state legislatures abandoned their RFRA efforts entirely rather than face the same pressures. In Georgia, for example, a RFRA proposal moved forward in the legislature but never passed. The BJC pointed out that bills departing from the federal law often tipped the scales in favor of the religious claimant, contrary to the intended balance of the original law.
The condition of state RFRA laws at the end of 2015 is clear and unfortunate: in the current political climate, RFRA proposals are being amended by legislators and misrepresented by advocates to pursue goals the federal RFRA was never intended to achieve.
Editor’s note: Keep up with RFRA bills over the year with our state RFRA tracker.
3. U.S. Supreme Court sides with prisoner seeking religious right to grow beard
In Holt v. Hobbs, the U.S. Supreme Court unanimously held that the Arkansas Department of Correction violated the religious freedom of Muslim inmate Gregory Holt by denying him the right to grow a one-half-inch beard in accordance with his faith. Using the Religious Land Use and Institutionalized Persons Act (RLUIPA), the Court found the state failed to demonstrate any significant security interest in prohibiting such a beard. The BJC joined a brief supporting his rights, and the decision sent a strong message that, while prison officials are given some deference to determine security needs, their unsupported assertion of a security risk without demonstrating the real need for restrictions like a “no beard” rule cannot overcome the substantial burden of an inmate’s religious freedom.
4. U.S. Supreme Court rules for worker in discrimination suit against Abercrombie & Fitch
In EEOC v. Abercrombie, the Court ruled that a Muslim job applicant was the victim of unlawful religious discrimination when she was denied employment because her religious headscarf did not meet the company’s “look policy.” The Court rejected the company’s argument that because the applicant failed to raise the issue herself in the interview, they were not properly on notice that she wore it for religious purposes and required a religious accommodation. The BJC filed a brief supporting her rights, and the Court ruled 8-1 that religion may not be a “motivating factor” in Abercrombie’s employment decision, regardless of whether they had “actual knowledge” of an applicant’s need for accommodation.
5. Religious nonprofits continue fight against contraceptive mandate
Claims challenging the contraceptive mandate in the Affordable Care Act on religious freedom grounds continued in circuit courts all year long, and the U.S. Supreme Court decided in November that it will hear the consolidated cases in 2016.
In Burwell v. Hobby Lobby (2014), the Court ruled that closely held for-profit corporations are eligible for an accommodation so they will not have to provide contraception coverage that violates the owner’s sincerely held religious beliefs. The cases heading to the Court in 2016 were brought by religious nonprofit organizations who qualify for the religious accommodation. Their objection is that the accommodation process itself violates their religious freedom rights under RFRA.
6. Federal agencies propose new faith-based partnership rules
In August, after years of discussion following a 2010 Executive Order from President Barack Obama, the White House announced rule proposals from nine federal agencies to implement the order, which addresses the federal government’s partnerships with faith-based organizations in order to protect against excessive church-state entanglements.
The proposed rules emphasize that faith-based organizations receiving federal funds must keep separate “in time or location” religious activities from federally funded activities. In addition, federally funded religious organizations must provide the beneficiaries of their services with written notice of their rights, including the right not to participate in religious activities and the right not to be subject to discrimination because of their religious beliefs.
The BJC submitted comments on the rule proposals. Comments are now under review by the agencies before they issue final rules.
7. Colorado Supreme Court rules school voucher system unconstitutional
In June, Colorado’s highest court said a school voucher program violates the state constitution’s ban on government aid to religious education. Like many states, Colorado law provides even stronger religious liberty protection against state-supported religion than does the U.S. Constitution. The Colorado Constitution bans “any public fund of moneys whatever” from helping “to support or sustain any school … controlled by any church or sectarian denomination … .” The BJC joined a brief urging the court to strike down the program, noting that religious education is a matter best left to families and houses of worship and should not be supported by taxpayer dollars.
8. Vaccination controversy triggers debate over religious exemptions
In January, outbreaks of the measles, a preventable disease controllable by childhood immunizations, sparked a national controversy about the growing number of parents who refuse to vaccinate their children. While few faiths believe children should not be immunized, the availability in most states of exemptions from immunization requirements for religious objectors raised concerns over the impact of accommodation – including religious accommodation – to the forefront of debate.
As the BJC’s Holly Hollman wrote in a February column, “[p]rotecting children and public health is an interest of the highest order.” While some states may grant religious exemptions, they are not required by law to do so in the face of such heightened stakes. Throughout the year, several states moved to eliminate non-medical exemptions from vaccination requirements. In Vermont, for example, exemptions were removed for parents with “philosophical” objections to immunizations but kept in place for parents with religious objections, prompting a renewed interest in religion among objecting parents throughout the state.
9. David Saperstein becomes international religious freedom ambassador
On Jan. 6, Rabbi David Saperstein assumed his duties as the U.S. Ambassador-at-Large for International Religious Freedom. The job had been vacant since October 2013, much to the chagrin of many religious liberty watchdogs. Saperstein, the first non-Christian to hold the office, worked closely with the BJC for years when he headed the Religious Action Center of Reform Judaism. At his official swearing-in ceremony, Saperstein said our nation can be – and must be – a “beacon of light and hope” to the religiously oppressed in every land. You can follow @AmbSaperstein on Twitter to keep up with his work.
10. Oklahoma Ten Commandments monument struck down
In July, the Oklahoma Supreme Court declared a Ten Commandments monument displayed on the grounds of the State Capitol violates a provision of the state constitution barring the direct or indirect use of state money or property for religious purposes. The court ruled that the Ten Commandments “are obviously religious in nature.” Gov. Mary Fallin balked at the ruling and threatened to defy the court’s order to remove the display, but ultimately cooler heads prevailed. The monument was removed from the Capitol grounds in October.
Don Byrd is the author of the Baptist Joint Committee’s Blog from the Capital, available at BJConline.org/blog. You can also listen to a podcast with Byrd discussing the year’s top religious liberty stories.
What to watch in 2016:
•How will the Supreme Court rule on the contraceptive mandate for religious nonprofits, and what will the decision say about RFRA?
•The 4th Circuit will hear a legislative prayer case involving a county commission in North Carolina; plaintiffs allege commissioners lead prayer and ask the public to stand and join. Will the court build upon or limit the Supreme Court’s ruling allowing sectarian legislative prayer in Town of Greece?
•Will state legislatures try again in 2016 to pass or amend state RFRA laws after the experiences of 2015?
•The Kentucky Court of Appeals will rule on a case involving a T-shirt printing shop charged with violating Lexington’s nondiscrimination law for refusing to print a gay pride shirt that violates the owner’s
•There’s a presidential election coming! Will religious liberty continue to be a hot-button issue for candidates that emerge through the primary and general election season?
IN MEMORIAM: James Dunn, the firebrand defender of religious liberty who led the BJC from 1981-1999, passed away in July. The BJC has a multimedia page honoring his life and legacy.
From the November/December 2015 Report from the Capital. Click here to read the next story.