By BJC Blogger Don Byrd
Looking back over 2016, the biggest religious liberty development is not a single story or event but an accumulation of concerns. Put simply, the fear of discrimination, harassment, and even violence directed at religious minorities in America, particularly American Muslims, is increasing. This crescendo did not begin with the 2016 presidential race, but campaign rhetoric and promises have undeniably stoked that fear which, in the wake of the November election, continues to rise. Here’s a full look at that story along with the rest of my top 10 list.
1. American Muslims face fear, uncertainty, discrimination
On a chilly November evening following this year’s election, the Muslim Students’ Association at the University of Michigan held their nighttime prayer in a main square on campus. The visible location for the prayer was intended as a response to a series of hate-related incidents at the university directed at Muslim students. The group called on allies on campus to help, and they did. Hundreds of students and faculty formed a human chain surrounding the group, to both protect and show solidarity with their classmates. It was a beautiful moment of unity, but also a frightening indication of where we are.
How did we get here?
The rhetoric of President-elect Donald Trump’s campaign seems to bear some of the responsibility. He ran on a platform that included a call to ban all Muslims from entering the country, a proposal BJC Executive Director Brent Walker referred to as “un-American, unworkable, counterproductive and embarrassing” in December 2015. Trump followed that idea with plans for religious profiling of American Muslims, including the surveillance of mosques, as a law enforcement technique that we “have to start thinking about as a country.”
Trump said he thinks that “Islam hates us,” and he asked in campaign speeches for Americans to “[i]magine what our country could accomplish if we started working together as one people, under one God … .” It should be no surprise that American Muslims – and other Americans – fear his presidency may pit their faith and their country against one another.
But the current rise in anti-Muslim hostility did not begin with the 2016 presidential campaign. The Justice Department reports that claims of religious discrimination in local zoning decisions have been increasing steadily since 2010. An FBI report demonstrated that religion-based hate crimes rose 23 percent between 2014 and 2015, with the number of anti-Muslim incidents spiking even more dramatically over that span.
A poll released in January revealed that, while 82 percent of Americans believe it is “important to protect the religious freedom of Christians in this country,” only 61 percent say the same of Muslims. Indeed, Gerald Harris, editor of a Georgia Baptist newspaper, wrote that American Muslims are not entitled to religious liberty benefits at all, a position that Walker noted was “contrary to more than 400 years of Baptist history” in a response this summer.
If there is good news related to this troubling trend in recent years, it is that religious liberty advocates have been galvanized to defend the rights of minorities and to work together to enhance communication across religious lines.
The Baptist Joint Committee is part of the Know Your Neighbor coalition, working with several other organizations to foster interfaith dialogue and understanding. In July, the White House invited the coalition to participate in an event releasing new federal policies aimed at combating religious discrimination. Earlier in the year, the White House held a series of policy roundtables across the country focusing on issues related to religious discrimination, and those discussions led to the new policies.
America’s promise of religious freedom for all includes the right to live without fear of harassment or violence or discrimination merely for exercising one’s religion. That is true regardless of whether those constraints are the result of government overreach or come at the hands of a hostile populace. Enforcing those ideals is a key responsibility of American government.
Advocates must work together to speak out against acts of hatred or proposals that do not protect religious freedom for all. The fears and uncertainties generated by such a collecting storm, the biggest religious liberty story in 2016 in my view, are real harms that must be addressed and that we must watch throughout 2017.
2. U.S. Supreme Court to hear church funding case … but doesn’t set a date
A story I might have expected to be the biggest of 2016 was the Supreme Court’s decision to hear the case of Trinity Lutheran Church v. Pauley. The case involves a challenge to Missouri’s denial of state funds to a church that applied for a playground renovation grant. The state argued that such funding is barred by a state constitutional provision prohibiting the use of taxpayer funds to aid religion, while the church argued the denial amounts to impermissible religious discrimination.
The BJC filed a brief urging the Supreme Court to reject the church’s claim and allow states like Missouri to limit such funding out of concern for the separation of church and state. It is a potentially enormous case in terms of the reach of the Free Exercise Clause and the ability of states to enforce their more comprehensive state constitutions’ versions of the Establishment Clause.
So why isn’t this (yet) the biggest religious liberty story of the year? Because many months later, the Court has yet to even set a date for argument, much less release a decision. Speculation is swirling that the delay may be due to the lack of a ninth Supreme Court justice (see #4), who could break a 4-4 tie. This story is definitely one to keep watching.
3. U.S. Supreme Court decides Zubik case … sort of
Another case I, at one time, fully expected to be the biggest religious liberty story of 2016 was the Supreme Court’s decision in Zubik v. Burwell, a collection of cases in which religious organizations (including the Little Sisters of the Poor) challenged elements of the Affordable Care Act’s contraceptive mandate. They argued that under the Religious Freedom Restoration Act (RFRA), the requirement that they notify the government of their intention to opt out of providing such coverage amounted to an impermissible substantial burden on their religious exercise.
The BJC argued in a brief to the Court that their burden was not in fact substantial as a matter of law, and that the plaintiffs were asking for “absolute deference” as to what constitutes a substantial burden, contrary to RFRA’s intent. The BJC’s brief was mentioned several times during the Court’s oral arguments.
As it happens, however, the newly eight-member Court declined to resolve any of the RFRA-related questions before them. Instead, they returned the case back to the several appeals courts that previously heard them. The Court instructed the parties to work out their differences in light of the fact that both sides indicated that contraceptive coverage could be provided to employees without the employers having to provide the separate notice they found objectionable.
4. Justice Scalia’s passing and Senate inaction leaves Supreme Court opening
In February, the sudden death of Justice Antonin Scalia shocked the country. As Walker said at the time, “While the BJC often did not agree with his interpretation of the First Amendment’s Religion Clauses, Justice Scalia will be remembered as a towering figure on the High Court for his intellect, his wit and his incisive opinions.”
The practical impact of his death on the business of the Court was complicated by the Senate’s refusal to act on President Barack Obama’s nomination for a replacement, Judge Merrick Garland. Republicans argued that because it is a presidential election year, the seat should be left vacant until the American people decide on the next president.
As a result, the Court was forced to proceed for virtually all of 2016 with only eight justices. As discussed above, this development may have impacted the Court’s decision and indecision in both the Zubik and Trinity Lutheran cases.
5. IRS electioneering ban targeted in convention, campaign rhetoric
This year saw a renewed push to repeal tax law barring tax-exempt nonprofit organizations from participating in electioneering. It began with President-elect Trump, who vowed during his campaign to get rid of the “Johnson Amendment,” which prevents all 501(c)(3) organizations, including houses of worship, from supporting or opposing candidates with tax-exempt money. That call was echoed in the Republican Party platform.
The BJC supports the current IRS rules as they protect the charitable purposes of nonprofits and the integrity of the tax code without violating the rights of individuals. Ministers remain free to endorse candidates individually as private citizens and churches remain free to speak out on any and all issues of the day, short of campaigning for or against a candidate, while maintaining the privileges of tax exemption.
6. Russell Amendment galvanizes religious liberty advocates, stalls defense funding bill
Update: The NDAA passed without the Russell Amendment
At press time, the National Defense Authorization Act (NDAA), which funds the U.S. military, has not yet been passed by Congress, in part because of controversy over a provision that would authorize religious discrimination with taxpayer funds. The “Russell Amendment,” named for its sponsor, Rep. Steve Russell, R-Oklahoma, would provide exemptions from religious hiring nondiscrimination laws to religious organizations receiving government grants.
The Baptist Joint Committee opposes this amendment. A letter to congressional leaders signed by the BJC and 41 other groups in the Coalition Against Religious Discrimination said, “The government should never fund discrimination and no taxpayer should be disqualified from a job under a federal contract or grant because he or she is the ‘wrong’ religion.”
In May, the Russell Amendment survived an attempt to remove it in a 213-212 late-night vote, described by the Washington Post as a “chaotic scene.” As a result, the measure remained in the version passed by the House of Representatives, but it was not included in the version passed by the Senate. Reportedly, it is one of a few “sticking points” delaying the bill’s passage.
7. Federal judge rules controversial Mississippi law unconstitutional
In July, a federal judge halted Mississippi’s controversial HB 1523, hours before it was to go into effect. HB 1523 offers broad protections for businesses, individuals, government employees and religious organizations against government penalty for actions taken in accordance with certain religious beliefs, including the belief that marriage should be recognized as the union of one man and one woman.
In striking down the law, Judge Carlton Reeves framed it as an unlawful attempt to undo the impact of the Supreme Court’s Obergefell ruling, which ruled unconstitutional state laws barring same-sex marriage. His decision said HB 1523 impermissibly targets the LGBT community, and – by singling out specific religious views for special protection – it violates the Establishment Clause. Mississippi’s attorney general declined to appeal the ruling, claiming in a remarkable statement that pastors had been “duped” into believing the law protects religious freedom. In October, Mississippi Governor Phil Bryant filed an appeal with the 5th U.S. Circuit Court of Appeals, so this is ongoing.
8. Voters in Oklahoma, Missouri reject efforts to weaken church-state protection
At the ballot box in November, Oklahoma voters (by a margin of 57 percent to 43 percent) rejected State Question 790, a referendum that would have removed a key religious liberty protection from the state’s constitution. Article II, Section 5 prohibits the government from using state funds to support religion. The BJC urged Oklahoma supporters to recognize the importance of that church-state protection and to vote “no.”
Meanwhile, Missouri voters rejected Amendment 3, an effort to increase cigarette taxes to fund education. Many religious liberty advocates noted that Amendment 3 would have allowed revenue raised from the cigarette taxes to fund religious education by exempting revenue from state law that prohibits such funding. The measure was defeated by a margin of 59 percent to 41 percent.
9. State supreme courts rule on school voucher proposals
In 2016, state supreme courts in Oklahoma and Nevada considered challenges to school voucher programs in light of state constitutional provisions that prohibit the use of state funds to aid religion.
Oklahoma’s high court upheld that state’s voucher program in February, on the grounds that the parent using the voucher – and not the state – is making the choice of whether to fund religious education. In Nevada, the state Supreme Court halted a new school voucher program, not because it violates Nevada law barring state aid to religion (as the BJC argued in a brief filed with the court), but because the program was improperly funded.
10. 4th Circuit panel allows legislative prayer from lawmakers, but case not over
In September, a divided panel of the 4th U.S. Circuit Court of Appeals upheld a North Carolina county’s policy and practice of opening commission meetings with an invocation delivered by one of the county commissioners. The appeals court majority found “no constitutional significance” to the fact that government officials, rather than guest ministers, were offering opening prayers and inviting the public to participate.
The case was one of the first to test the limits of the U.S. Supreme Court’s disappointing 2014 ruling on legislative prayer in Town of Greece v. Galloway, which upheld the practice of rotating guest ministers offering sectarian invocations to open municipal meetings. In November, however, the full 4th Circuit voted to re-hear the case. This story will be one of many to watch in 2017.
SIDEBAR: Conscientious Objector Champion
This year, we lost Muhammad Ali, who died at the age of 74 after a lengthy battle with Parkinson’s disease.
Most people know Ali as a boxing champion, but he was also a champion of conscience rights, taking his refusal on religious grounds to fight in the Vietnam War all the way to the U.S. Supreme Court. The controversy over Ali’s refusal raised the issue of conscientious objector status to national prominence. In siding with Ali, the Court affirmed its commitment to the principle that conscientious objector claims cannot be denied without clearly defined reasons for doing so.
Perhaps more importantly, Ali was a proud and unabashed American Muslim who used his celebrity to promote Islam as a religion of peace. “Followers of Allah are the sweetest people in the world,” he said. “They don’t carry knives. They don’t tote weapons. They pray five times a day. … All they want to do is live in peace.”
The BJC’s Blog from the Capital is available online at BJConline.org/blog.