Posted on by Mark Movsesian

A New History of the Religion Clauses

From Oxford University Press, here is a new history of the religion clauses, Free Exercise: Religion, the First Amendment, and the Making of America, focusing especially on the social and cultural context at the time of the Framing, and foregrounding the experience of marginalized religious communities like Jews and Catholics, among others. The author is historian Chris Beneke of Bentley University. Oxford’s description follows:

CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT OF RELIGION, OR PROHIBITING THE FREE EXERCISE THEREOF. Those words, scratched on parchment in 1789, open the U.S. Constitution’s First Amendment. From them, countless interpretations have been drawn. As a consequence, an astonishing variety of activities in modern America-prayer after football games, Bible reading in classrooms, company healthcare policies, the baking of wedding cakes, and Ten Commandment displays around courthouses-have been alternately authorized, prohibited, or modified.

In this compelling historical account, Chris Beneke explains how the religion clauses came into existence and how they were woven into American culture. He brings prominent early national figures to life, including George Washington, James Madison, and Thomas Paine, while chronicling the First Amendment’s relationship to defining social conditions like slavery, civility, family life, and the free market. Beneke probes what kind of nation America was when the religion clauses were framed and what kind of nation it was becoming.

Going beyond traditional church-state scholarship, Beneke also demonstrates how white women, African Americans, Roman Catholics, Jews, and nonbelievers widened religious liberty’s application and illuminated its boundaries. In doing so he makes a groundbreaking contribution to both constitutional history and the history of American pluralism.

Posted on by L&R Forum

Around the Web

Here are some important law-and-religion news stories from around the web:

  • In DeVore v. University of Kentucky Board of Trustees, the Sixth Circuit found that a University did not discriminate against a University of Kentucky employee in violation of Title VII of the Civil Rights Act by denying the employee’s religious accommodation request that would’ve exempted her from a series of University COVID testing policies. The Sixth Circuit reasoned that the plaintiff offered no evidence to show a conflict between her religion and the University’s policies, instead presenting her objection the COVID policies as a reflection of her personal moral code.
  • In Esses v. Rosen, a federal district court in New York declined to issue a preliminary injunction prohibiting the defendant from issuing a “seiruv,” which is a form of rabbinical court notice that informs the public that the plaintiff has failed to respond to a summons from the rabbinical court. The court declined to intrude on questions of rabbinical court procedure, which would violate the First Amendment’s Establishment clause.
  • Luther Rice College and Seminary has filed a complaint in a federal district court in Georgia, alleging that the State of Georgia has violated the First and Fourteenth Amendments by excluding Luther Rice students from being eligible for a statewide financial student aid program due to the fact that Luther Rice College is a religious institution that the state has classified as a “school of theology.” Luther Rice alleges that the state’s exclusion of the school from its financial aid programs forces the college to forfeit its religious character, beliefs, and exercise or be completely barred from state government financial aid programs, which the college pleads is a violation of the Free Exercise clause and the Equal Protection clause.
  • The Archdiocese of Los Angeles has recently agreed to pay $880 million to 1,353 people who alleged they were sexually abused as children by Catholic clergy. To date, the settlement has been regarded as the single highest payout by a diocese.
  • In Kumar v. State of Karnataka, an Indian High Court found that a pair of individuals who barged into a mosque and shouted “Jai Sriram” (Glory to Lord Rama) did not violate a section of the Indian Penal Code that prohibits “deliberate and malicious outraging of the religious feelings of any class of citizens.” While the Indian Court conceded that the outburst would outrage the religious feelings of any class of citizens, the High Court ultimately decided that the outburst did not have the “effect on bringing out peace or destruction of public order,” nor did it cause “public mischief or any rift.”
Posted on by L&R Forum

Around the Web

Here are some important law-and-religion news stories from around the web:

  • In National Religious Broadcasters v. Werfel, filed in federal district court in Texas this week, plaintiffs claim that the Johnson Amendment is unconstitutional as it applies to churches. This amendment prohibits tax-exempt organizations, including churches, from supporting or opposing political candidates.   
  • In Hunter v. U.S. Dep’t of Education, the 9th Circuit held that the religious exemption in Title IX violates neither the Fifth Amendment’s Equal Protection Clause nor the First Amendment’s Establishment Clause.
  • In Nunez v. Wolf, the 3rd Circuit found that the Pennsylvania Department of Corrections did not have a compelling interest in denying a Muslim inmate religious accommodations.
  • In Couzens v. City of Forest Park, Ohio, the 6th Circuit affirmed that off-duty police officers’ assistance in removing a pastor from a congregation did not violate the pastor’s free exercise rights. The pastor had been dismissed from his position and thus the officers acted reasonably by assisting in his removal.
  • A group of Jewish professors at a New York university petitioned for cert at the Supreme Court in a lawsuit demanding the right to break away from their union’s representation. A lawsuit filed on the professors behalf in 2022 alleged that the union is antisemitic, and that forcing them to be represented by the union is a violation of their First Amendment rights.
  • In Italy, an unusual clash between church and state is publicly taking place. Pope Francis and Italy’s bishops are openly challenging the government’s proposed laws concerning regional autonomy and migration.
Posted on by L&R Forum

Around the Web

Here are some important law-and-religion news stories from around the web:

  • A federal district court in Colorado granted a preliminary injunction against the Town of Castle Rock, preventing the Town from enforcing zoning regulations that interfere with a church’s use of an RV and a trailer on church property for the purpose of providing temporary shelter to homeless individuals and small families. The court reasoned that the church was likely to succeed in its RLUIPA claim against Castle Rock, as the church satisfied its burden in pleading that Castle Rock’s zoning restrictions place a “substantial burden” upon the church’s religious obligation to provide for the needy on church property.
  • In Shlomo Hyman v. Rosenbaum Yeshiva of North Jersey, the New Jersey Supreme Court affirmed the dismissal of a defamation claim brought against an Orthodox Jewish school by a Judaic Studies teacher. The court held that the ministerial exception applied because the teacher conceded that his role constituted that of a minister in the yeshiva.
  • In Indiana, a man was sentenced to 24 months in prison and two years of supervised release for willfully transmitting, in interstate commerce, threats to injure other people and for choosing his victims because of their religion. For roughly five months, the defendant left eight voicemails using antisemitic slurs in threats to kill or assault Jews.
  • Representatives of over 39 countries and international organizations published the Global Guidelines for Countering Antisemitism, a set of legally nonbinding policies aimed at monitoring and combatting antisemitism in a way that can be adapted to a wide variety of national, regional, and cultural contexts. The guidelines include, but are not limited to, calls for political leaders to denounce antisemitism wherever it arises, calls for leaders to consider appointing national coordinators, special envoys, or designated officials to proactively address antisemitism, and emphasis on a need to enforce hate crime and anti-discrimination laws.
  • In Jewish Community Council of Montreal v. Canada (Attorney General), a Canadian Federal Court granted an interlocutory injunction against the Canadian Food Inspection Agency, preventing the Agency from enforcing animal slaughter guidelines that require slaughterhouses to go through a series of measures, including applying the three indicators of unconsciousness when slaughtering a food animal. The court reasoned that the applicants were likely to succeed in their claim that the guidelines infringed their right to freedom of religion under subsection 2(a) of the Canadian Charter of Rights and Freedoms.
  • In India, representatives from the United Christian Forum (UCF), a human rights group based in New Delhi, recently met with Kiren Rijiju, Indian Minister for Minority Affairs, in an attempt to discuss recent increases in faith-motivated attacks against Christians, largely attributable to mobs who seek to make India a purely Hindu nation. According to UCF National President Michael Williams, the meeting yielded few promises, prompting UCF to state that the national government is doing little to curb police and mob brutality against Christians.
Posted on by L&R Forum

Around the Web

Here are some important law-and-religion news stories from around the web:

  • In Queens, NY, statues depicting Christ and the Virgin Mary were vandalized and decapitated outside of a Catholic Church, resulting in the perpetrator being charged with a hate crime. The incident took place outside of Holy Family Catholic Church in Fresh Meadows, Queens, with the attack being fully recorded by the church’s camera.
  • The Center for Religion, Culture, & Democracy recently released the 2023 iteration of their Religious Liberty in the United States survey, which measures each state’s statutory protections against religious discrimination. West Virginia finished last, whereas Illinois finished first, providing an insight into how cultural norms can misalign with formal legal protections.
  • In Chino Valley Unified School System v. Newsom, a California school district sued the state of California, claiming that recent legislation prohibiting parental notification of a child’s gender transition violated parents’ free exercise rights.
  • In Behrend v. San Francisco Zen Center, Inc., a Buddhist novice’s disability discrimination suit was dismissed due to the ministerial exception doctrine.
  • In L.F. v. M.A., a New York state trial court held that a Coptic Orthodox wedding was sufficient to render a couple civilly married for the purposes of a divorce action. The court held that the belief of both parties, as well as testimony from the officiating bishop, were enough to overcome the lack of formal marriage license.
Posted on by L&R Forum

Around the Web

Here are some important law-and-religion stories from around the web:

  • The U.S. Supreme Court denied certiorari review of a Second Circuit decision upholding the constitutionality of Connecticut’s decision to repeal religious exemptions from its mandatory vaccination laws while retaining medical exemptions. The denial effectively allows the Second Circuit’s ruling to remain in effect, upholding Connecticut lawmakers’ decision to repeal religious objections out of concerns that upticks in exemption requests were coupled with a decline in vaccination rates in some schools.
  • A group of parents (acting on behalf of their children) filed a lawsuit in federal district court in Louisiana, challenging Louisiana’s recently enacted statute that requires the display of the Ten Commandments in every public school classroom. In the complaint, plaintiffs allege that the Louisiana statute imposes religious beliefs on public school children and unconstitutionally pressures students into religious observance and adoption of a state-favored religious scripture, all in violation of the Free Exercise and Free Establishment clauses of the First Amendment. Plaintiffs seek declarative and injunctive relief.
  • A federal district court in Florida held that a 2014 prayer vigil organized by the Ocala Police Department meant to encourage witnesses to come out and cooperate with police in the aftermath of a shooting spree that injured several children violated the Establishment Clause of the First Amendment. Implementing the Supreme Court’s new Establishment Clause test set out in Kennedy vs. Bremerton School District, the court determined that the city’s involvement in “conceiving, organizing, and implementing the Prayer Vigil” constituted government sponsorship of a religious event, which violated the First Amendment.
  • In Drummond v. Oklahoma Statewide Virtual Charter School Board, the Oklahoma Supreme Court violated the Oklahoma and US Constitutions by authorizing a Catholic-sponsored, publicly-funded charter school. The court ruled that state funding for the school violated anti-establishment provisions in both the state and federal constitutions.
    • Please read Center Director Mark Movsesian’s post about the case here.
  • Israel’s Supreme Court unanimously ruled that draft-age Haredi Ultra-Orthodox Jewish men are not exempt from the country’s mandatory military service, even if they are studying in a yeshiva. The Supreme Court also ordered that the Israeli government cease funding yeshivas unless their students enlist in the military.
  • In India, a family that recently converted to Christianity was attacked in the state of Chhattisgarh, resulting in the death of one woman. Christian leaders in India have spoken out against the attack as merely one in a growing number of attacks committed against Christians, largely attributable to mobs who seek to make India a purely Hindu nation. Christian leaders have also condemned police inaction as another reason for increased attacks.
Posted on by L&R Forum

Around the Web

Here some important law-and-religion news stories from around the web:

  • In Farrakhan v. Anti-Defamation League, a New York federal district court dismissed a complaint alleging that the Anti-Defamation League violated Farrakhan’s First Amendment Rights by repeatedly referring to him and his organization as antisemitic. In the dismissal, the Court reasoned that Farrakhan failed to allege that his injuries were concrete or traceable to the ADL.
  • The City of New York has agreed to settle a class action damage claim brought by Muslim women protesting a policy that required wearers of hijabs to remove them when sitting for arrest photos. The NYPD agreed to change the policy in an earlier settlement in 2020, and the settlement amounts to $17.5 million.
  • In Citizens United to Protect Our Neighborhoods v. Village of Chestnut Ridge, New York, the Second Circuit affirmed the dismissal of a complaint challenging a new zoning law that allowed places of worship to be more easily built, claiming that the law improperly promoted religion. The Court reasoned that the plaintiffs lacked standing, suffering no cognizable harm apart from tax dollars passing the law.
  • In United States v. Safehouse, a Pennsylvania district court held that the prosecution of a nonprofit providing safe injection sites for drug users did not violate the Free Exercise Clause. Despite the leaders of the nonprofit claiming religious motivation, the entity itself has no religious affiliation, and the Court therefore held that the religious inspiration of its leaders doesn’t protect it against prosecution for the violation of a federal statute criminalizing the maintenance of drug-involved premises.
  • In Ocean Grove, New Jersey, the NJ State Department for Environmental Protection ordered the Christian nonprofit owners of the waterfront area to allow beach access to the public on Sunday mornings or face up to $25,000 in fines per day. State officials claim that the closure violates the Coastal Area Facilities Review Act, which itself is based on the public-trust doctrine, outlining that certain natural goods like waterfront areas are to be reserved for public use.
Posted on by L&R Forum

Around the Web

Here are some important law-and-religion news stories from around the web:

  • In Long v. Sugai, the 9th Circuit ruled that a Hawaii prison sergeant potentially violated an inmate’s free exercise rights by delivering Ramadan meals four hours before sundown, leading to inedible and possibly unsafe food. The court emphasized that the timing of meal delivery significantly burdened the inmate’s religious practices and instructed the district court to evaluate whether this burden was justified.
  • In Landor v. Louisiana Department of Corrections and Public Safety, the 5th Circuit denied an en banc rehearing of a case for damages from prison officials who shaved a Rastafarian prisoner’s head. The court said that even though the prison officials knowingly violated his rights, the question of whether the plaintiff can sue for damages under the Religious Land Use and Institutionalized Persons Act is one for the Supreme Court.
  • In Bridges v. Prince Georges County, Maryland, a federal district court declined summary judgment in a suit brought by a Muslim chaplain alleging First Amendment violations due to a “Statement of Applicant’s Christian Faith” in a prison job application. The court found the statement could be seen as a religious test, but disputes over its optional nature and impact on the plaintiff’s religious expression prevented summary judgment for either side.
  • In The Satanic Temple v. Labrador, a federal district court dismissed a case by The Satanic Temple challenging Idaho’s Defense of Life Act. The Satanic Temple argued it violated their religious right to conduct ritualistic ceremonial abortions and now plans to appeal the decision to the Ninth Circuit.
  • The Roman Catholic Archbishop of Montreal is challenging a Quebec law requiring  all palliative care homes to offer medical assistance in dying, arguing it violates religious freedom. The Archbishop asserts that a palliative care home associated with the Catholic Church should not be obligated to administer euthanasia, emphasizing the importance of respecting freedom of conscience.
  •  In Miller v. University of Bristol, a British Employment Tribunal ruled that a Professor’s anti-Zionist views qualified as a protected philosophical belief under the Equality Act 2010. However, the University issued a press release stating that the professor’s employment was terminated because his comments did not meet their behavioral standards.
Posted on by L&R Forum

Around the Web

Here are some important law-and-religion news stories from around the web:

  •  In Walker v. Dismas Charities, Inc., the U.S. 11th Circuit Court of Appeals rejected a Free Exercise Bivens claim by an inmate serving part of his sentence in home confinement. The inmate sued individual employees of a government contractor that contracted with the government to supervise federal prisoners serving home sentences, alleging that his sentence violated his right to free exercise of religion under the First Amendment
  • In Bates v. Pakseresht, the plaintiff was denied certification to adopt children through the Oregon Department of Human Services because she would not agree to use a child’s preferred pronouns and undertake other required acts that the state claims “affirm a child’s gender identity” because of her Christian beliefs. The court rejected plaintiff’s free exercise and free speech claims because she was not seeking certification to become a full parent, but instead sought certification “to house and care for a child under the state’s umbrella of protection.”
  •  In Tosone v. Way, suit was filed in the District of New Jersey in early October challenging the New Jersey requirement that candidates filing to run for public office sign an Oath of Allegiance that ends with “so help me God.” The Acting Director of the New Jersey Division of Elections recently issued a Memo to County Clerks stating that candidates for public office now have the option of a solemn affirmation or declaration in lieu of an oath, and the phrase “so help me God” will be omitted. Counsel for plaintiffs then filed to voluntarily dismiss the suit.
  • in Grace Community Church- The Woodlands, Inc. v. Southern Montgomery County Municipal Utility District, Grace Community Church filed a complaint challenging a utility district’s requirement that the church pay a capital recovery fee of $83,780 rather than the actual cost of $24,900 to connect its new office building and auditorium to the district’s water system. The church alleges the fee is an unlawful tax on an otherwise tax-exempt organization, and it further violates Texas’ version of RFRA and the First Amendment’s free exercise clause.
  • The White House issued a Fact Sheet: Biden-⁠Harris Administration Takes Action to Address Alarming Rise of Reported Antisemitic and Islamophobic Events at Schools and on College Campuses.The Fact Sheet discusses recent initiatives taken by the Department of Justice, the Department of Education, the Department of Agriculture, and the Department of Homeland Security to prevent further antisemitic and Islamophobic incidents which have been taking place at schools and colleges since the October 7 Hamas terrorist attacks in Israel.
  • A New York Court of Claims judge serving as an active Supreme Court Justice is being investigated and no longer handling criminal cases after the justice asked a Muslim criminal defendant to remove her niqab–a religious garment that covers most of the face–at a plea hearing on October 24.
Posted on by L&R Forum

Around the Web

Here are some important law-and-religion news stories from around the web:

  •  In United States v. Village of Airmont, the Southern District of New York entered a consent decree settling a RLUIPA suit brought by the United States Justice Department alleging that the village engaged in religious discrimination by revising its zoning code to make it harder for Jews to worship in their homes. The consent decree increases the space in private homes for worship and removes restrictions that limited whom residents could invite into their homes to pray.
  • In Littlefield v. Weld County School District RE-5J, the District of Colorado refused to dismiss a retaliation claim in which a former high school principal sued the District’s Superintendent alleging that the Superintendent demoted him and subsequently failed to renew his contract because he was a conservative Christian male. He claimed that the Superintendent took action against him because of a motivational speech he had given to the Fellowship of Christian Athletes before school started, the retaliation for which violated his First Amendment rights. 
  • In Bella Health and Wellness v. Weiser, the District of Colorado issued a preliminary injunction barring the state from taking enforcement action–under a law enacted earlier this year–against an anti-abortion pregnancy center which offers and advertises its medication that reverses the effects of an abortion pill based on their religious beliefs. The court found that the law banning the abortion reversal medication is not neutral or generally applicable, thus violating Bella Health’s Free Exercise rights.
  • In Darren Patterson Christian Academy v. Roy, the District of Colorado issued a preliminary injunction barring Colorado from excluding a private Christian pre-school from its Universal Pre-School Program which requires schools in the program to agree that they will not discriminate on the basis of gender, race, ethnicity, religion, national origin, age, sexual orientation, gender identity, citizenship status, education, disability, socio-economic status, or any other identity when hiring employees. The court found that the rule likely interferes with the “ministerial exception,” which permits the school to hire key employees in accordance with its faith.
  • In Mays v. Cabell County Board of Education, the parties jointly dismissed their case before the Southern District of West Virginia after they settled a dispute surrounding an evangelical Christian revival assembly held by a high school during homeroom, which the plaintiffs alleged violated the Establishment Clause. Under the settlement agreement, the school board agreed to, inter alia, amend its policies on religion in schools and to require annual training for teachers regarding religion in schools.
  • In Drummond v. Oklahoma Statewide Virtual Charter School Board, the Attorney General of Oklahoma filed a Petition for Writ of Mandamus and Declaratory Judgment against the Oklahoma Statewide Virtual Charter School Board challenging its approval of the Catholic Archdiocese’s application for a state-funded online religious charter school. The Attorney General’s brief in support alleged that the approval violates the Establishment Clause and would require the state to directly fund other sectarian groups as well.