By BJC Blogger Don Byrd

This was a year of questions more than answers in religious liberty developments. As we anticipate Supreme Court resolution, some longstanding disputes only intensified this year, while other controversies are just beginning. Here is my take on the top religious liberty stories of 2013.

• The U.S. Supreme Court hears legislative prayer case
In November, the Supreme Court heard oral arguments in Town of Greece v. Galloway.

As regular readers of Blog from the Capital know, controversies over local government prayers have been commonplace in recent years. Every month or so, some school board or city council with a tradition of opening its meetings with an invocation meets with objections that the practice is unconstitutional.

Like many of those legislative prayer controversies that came before it, the Town of Greece dispute worked its way through lower courts. Supporters of government prayer insist the invocations are harmless expression, protected by the First Amendment’s free exercise and free speech guarantees. Opponents contend the prayers improperly promote religion in violation of the First Amendment’s Establishment Clause.

The Town of Greece dispute got the attention of the U.S. Supreme Court, which decided to weigh in on the issue for the first time in 30 years. The Town of Greece says rotating clergy should be allowed to offer sectarian prayers. The plaintiffs believe government prayers should be limited to non-sectarian appeals to a higher power. The Baptist Joint Committee filed an amicus brief urging the Court to prohibit official prayers at local government meetings. The BJC brief emphasized freedom of conscience and the difference between this practice and the chaplain-led prayer practices of state legislatures or Congress upheld by the Court in 1983. According to the brief, there are specific constitutional dangers posed by official prayer in local government meetings, which citizens attend not just as silent observers from a gallery but as full participants.

Many observers believe – and I agree – the Court’s decision in this case may have a dramatic impact on the requirement that government officials remain neutral in matters of religion when acting in their official capacities. How the Court might rule, though, or even which questions it might answer, remains anyone’s guess. Will they clarify the circumstances in which government prayer is appropriate? Will they offer guidance to local governments on how to safeguard the rights of citizens against church-state concerns? Stay tuned to the BJC Blog at (or follow me on Twitter: @BJCblog) for the answers as we get them. A decision in the case is expected by the end of June.

• Contraceptive mandate controversies produce disagreement among federal courts of appeals
The Affordable Care Act’s requirement that employer-provided plans offer contraception coverage was the biggest religious liberty story of 2012, as those who object to providing contraception coverage on religious grounds sought exemptions.

In 2013, the White House issued a new and expanded exemption policy, which many religious liberty advocates praised. Under the new policy, not only are houses of worship and denominational institutions exempt, but other religiously affiliated institutions can avoid the mandate. Insurance companies must separately offer such coverage free of charge directly to those entities’ employees.

Most of the big contraception mandate developments in 2013 occurred in federal courts of appeals, as religious objectors who do not fall under the expanded exemption maintained that it violates their religious liberty rights under the Religious Freedom Restoration Act (RFRA). Specifically, owners of secular, for-profit businesses argue that the requirement substantially burdens their religious exercise.

In court rulings issued over the course of 2013, judges have sharply disagreed on the biggest aspects of this dispute — questions the U.S. Supreme Court will resolve in 2014.

First, can corporations exercise religion? Are they “persons” for the purpose of the First Amendment or pursuant to protection under RFRA? Some federal appeals courts this year said no; others said yes.

Second, does the contraception coverage requirement place a “substantial burden” on religious exercise? Some courts have said yes. Others ruled the burden is too indirect because the mandate requires only that insurance covers contraception; it doesn’t require anyone to purchase, use or promote contraception.

How the U.S. Supreme Court answers these questions will surely be one of the most important religious liberty stories of 2014.

• FEMA funding raises tough church-state questions
Hurricane Sandy ravaged New York and New Jersey in October 2012, but its aftermath reached well into this year. A FEMA rule barred churches from receiving direct government aid out of church-state concerns. In February, the U.S. House of Representatives passed a bill that expressly authorized houses of worship to receive FEMA grants, a move the BJC opposed as improper funding of religion with tax dollars. A version of the bill was introduced in the Senate, and it has been in committee since July.

• Melissa Rogers named head of White House’s faith-based office
In March, President Barack Obama appointed former BJC General Counsel Melissa Rogers as director of the White House Office of Faith-Based and Neighborhood Partnerships, succeeding Joshua DuBois. Under her leadership, the office has been active in promoting government partnerships with community groups and religious organizations to fight hunger, human trafficking and other issues. In August, the office touted new guidance advising agencies on how to comply with reforms ensuring faith-based partnerships safeguard against church-state concerns.

• RFRA at 20
In 2013, the Religious Freedom Restoration Act turned 20! The BJC commemorated the milestone by organizing a symposium examining the law’s two-decade history, including its current role in the legal battle over the contraceptive mandate. At the state level, several states either enacted a version of RFRA (such as Kentucky, where the legislature overrode the governor’s veto of the bill) or are considering such laws (including Maine and Wisconsin). An ongoing concern in the debate over state RFRAs is the precise wording of the bill. Does the bill protect any burden on religious exercise? Or just those burdens deemed “substantial,” as the federal RFRA requires and the BJC advises?

• Abercrombie & Fitch faces discrimination lawsuits over headscarf policies
Clothing retailer Abercrombie & Fitch faced a series of lawsuits this year brought by employees who allege they were fired for refusing to remove headscarves required by their faith. Notably, the company argued that accommodating the scarves would be an undue hardship because it would violate their “look” policy. A federal judge rejected that argument in September.

• State Department sees change in faith-based leadership roles
In August, the U.S. Department of State announced it was creating an Office of Faith-Based Community Initiatives, naming Shaun Casey as director. News of the office, which will engage with faith communities around the world, generated significant discussion regarding the role of religion in U.S. foreign policy.

In October, Suzan Johnson Cook stepped down from her role as the U.S. Ambassador-at-Large for International Religious Freedom. Cook is a Baptist minister who began her term in May 2011.

• Pentagon debunks rumors of a policy change on religious expression
Some religious rights groups were up in arms earlier this year when the Pentagon reiterated its policy that service members, including chaplains, may not use their position within the military to proselytize other service members. In May, the Pentagon debunked rumors that the announcement was part of a policy shift aimed at stifling the religious expression of evangelicals.

• Religious claims clash with state anti-discrimination laws
In New Mexico, the state Supreme Court affirmed a ruling against a photographer who was found guilty of violating civil rights law by refusing to provide services for a same-sex wedding. Elane Photography claimed the enforcement of the law violated its religious freedom rights. The court disagreed. In Washington state, a florist is also being sued by a same-sex couple for refusing to provide wedding services.

From the November/December 2013 Report from the Capital. Click here for the next article.