Douglas Laycock

U.S. Supreme Court launched a new church-and-state era last week. Follow-ups, please.

U.S. Supreme Court launched a new church-and-state era last week. Follow-ups, please.

“Of making many books there is no end,” complains the weary author of the Bible’s Book of Ecclesiastes. And there’s no end to lawyers making many lawsuits trying to learn what the U.S. Supreme Court thinks the Constitution means when it forbids “an establishment of religion” by government.

Journalists should provide follow-up analysis of a new era in “separation of church and state” launched June 20 with the Court’s decision to allow a century-old, 40-foot cross at a public war memorial in Maryland. Importantly, we can now assess new Justices Neil Gorsuch and Brett Kavanaugh, who filed separate opinions supporting the cross display.

Actually, the nine justices produced a patchwork of eight separate opinions, which demonstrates how unstable and confused church-state law is.

Ask your sources, but The Guy figures the Court lineup now has only two flat-out separationists, Ruth Bader Ginsburg (age 86) and Sonia Sotomayor. While Samuel Alito managed to assemble five votes for part of his opinion, his four fellow conservative justices are unable to unite on a legal theory. Stephen Breyer and Elena Kagan seem caught halfway between the two sides.

Federal courts have long followed the “Lemon test,” from a 1971 Court ruling of that name that outlawed public aid for secular coursework at religious schools. Chief Justice Warren Burger’s opinion devised three requirements to avoid “establishment,” that a law have a “secular” purpose, “neither advances nor inhibits religion” and doesn’t foster “excessive government entanglement with religion.”

Kavanaugh declared that the Court has now effectively abandoned Lemon in favor of a “history and tradition test,” which permits some cherished religious symbols and speech in government venues despite the “genuine and important” concern raised by dissenters.

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When First Amendment conflicts erupt at U.S. Supreme Court, it's time to ask WWDD?

When First Amendment conflicts erupt at U.S. Supreme Court, it's time to ask WWDD?

Over a three-day period, 47 “friend of the court” briefs suddenly clogged the inbox at the U.S. Supreme Court regarding the most important religious liberty case of this term -- if not of the coming decade. This is a crucial First Amendment showdown.

Almost all these briefs opposed Colorado’s use of an anti-discrimination law against Masterpiece Cakeshop for refusing to provide the cake for a same-sex wedding.

The immediate issue is the fate of certain religious bakers, florists, photographers, Orthodox Jewish catering halls and the like. In a parallel case, Oregon fined a bakery $135,000, demonstrating government’s power to penalize dissenters or put them out of business. Beyond that lie important rights claims by  conscientious objectors that the Supreme Court did not address when it legalized gay marriages nationwide in 2015 (.pdf here).

The Cakeshop’s pleas for freedom of religion, conscience, and expression are backed in briefs from the Trump Administration, 11 Republican U.S. Senators and 75 House members, 20 of the 50 U.S. states led by Texas, a host of social conservative  and “parachurch” agencies, and America’s two largest religious bodies (Catholic Church, Southern Baptist Convention).

Yet to be heard from are “mainline” Protestant and non-Orthodox Jewish groups that support the gay cause.

This past week the court received briefs from the American Civil Liberties Union (.pdf here) on behalf of the gay couple and from Colorado officials (.pdf here). Repeating past contentions, the briefs contend that religious liberty claims cannot justify exemptions from anti-discrimination laws that are “neutral” and “generally applicable,” whether religious or secular in motivation. As Colorado sees things, the Constitution offers no support for a business “to treat a class of people as inferior simply because of who they are.”

Whenever news about the First Amendment erupts, The Religion Guy first asks WWDD? That is, What Will Douglas Do? -- referring to Douglas Laycock, distinguished professor of law at the University of Virginia and a prime source on our beat.

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Christian legal organizations get the editorial shaft from The Deseret News

Christian legal organizations get the editorial shaft from The Deseret News

When I saw the headline “Serving God by suing others: Inside the Christian conservative legal movement,” I knew the ensuing news article meant trouble.

Would the Deseret News (which produced the above piece) have referred to the Americans for Civil Liberties Union in such a demeaning fashion? Or the Freedom From Religion Foundation?

Both of those organizations spend much of their time suing other entities over religion.

So why all the love for the conservatives? We begin with this:

SALT LAKE CITY -- Roger Gannam cites the Bible to define his company's mission. That wouldn't be notable if he worked at a church or food kitchen, somewhere known for sharing the gospel with the world. But Gannam works at a law firm, suing others and representing those who have been sued.
His employer, Liberty Counsel, advocates for conservative Christian interests in cases related to the sanctity of life, family values and religious liberty, presenting the court system as a way to live out Jesus' "Great Commission."…
Liberty Counsel is part of the Christian legal movement, a collection of advocacy groups working in the legal, public policy and public relations arenas to advance and protect conservative Christian moral values. Together, these firms have turned the courts into key battlefields in the culture wars.

Actually, the courts have been culture wars battlefields for decades. See Griswold v. Connecticut, Roe v. Wade and Obergefell v. Hodges.

The power of this movement will be on display this fall, when Masterpiece Cakeshop v. Colorado Civil Rights Commission is argued before the Supreme Court.

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Will the waning Barack Obama administration rewrite religious hiring rules?

Will the waning Barack Obama administration rewrite religious hiring rules?

Church-and-state disputes are a hot beat and it's getting hotter all the time.

We have religious objections over the government’s transgender bid to control school toilets and locker rooms nationwide, the Supreme Court’s bounce back of the Little Sisters’ “Obamacare” contraception case, states’ debates over whether merchants can decline gay wedding services on religious grounds, and much else.

Media coverage to date shows little interest in how church-state policy might be affected by a President Clinton, or a President Trump, or the jurists on Donald Trump’s recent Supreme Court list, or a Justice Merrick Garland. Will this be raised at a big June 9-11 “religious right” confab in D.C.? Speakers will include Trump and former challengers Cruz, Fiorina, Huckabee, Kasich, Paul, and Rubio, plus House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell.

Meanwhile, interest groups are ardently lobbying the Obama Administration to change religious hiring policies during its waning days. At issue is application of the federal Religious Freedom Restoration Act (RFRA) under the 2007 “World Vision memorandum” (click for .pdf) from the Bush Administration’s Department of Justice.

World Vision, a major evangelical organization, had landed a $1.5 million grant to provide mentoring for at-risk youths. The memo ruled that it’s legal for such religious agencies fulfilling service programs through  federal grants to consider religious faith in their hiring. The Obama White House has thus far resisted pressure to abolish that policy, most recently in a Feb. 22 letter from ranking Democrats in the U.S. House.

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NPR files a toothless story on fired, pregnant professor suing Christian college

NPR files a toothless story on fired, pregnant professor suing Christian college

For those of you who’ve never signed up to work at a religious school, such entities make it very plain before you work there that certain behavior is expected. 

We are talking, of course, about ink-on-paper doctrinal and lifestyle covenants. Whether it’s drinking alcohol, smoking, drinking coffee (in the case of Mormons) or having sex outside of marriage, certain expectations are made very clear to you before you sign a contract to work in this voluntary association, which is what a private school is, of course.

NPR just did a story on one college professor who didn’t get that message.

A former professor at Northwest Christian University in Oregon is suing the school for allegedly firing her for being pregnant and unmarried, violating the faith-based values of the institution. She says it's discrimination.
MELISSA BLOCK, HOST: Now a story about a professor in Oregon who says when she told her employer she was pregnant, she got a pink slip instead of congratulations. That's because she worked at a Christian school and because she's not married. NPR's Carrie Johnson reports.
CARRIE JOHNSON, BYLINE: Coty Richardson spent four years teaching exercise science at Northwest Christian University. She says she loved in the small classes at the school in Eugene, Ore., and she loved its values and caring environment…
JOHNSON: But Richardson says that tolerance was put to the test earlier this summer when she told her boss she was pregnant.

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Coverage of the religion angle to Supreme Court decision: Fairly predictable

Coverage of the religion angle to Supreme Court decision: Fairly predictable

OK, so you're a religion reporter, and it's Friday morning the 26th, and you're glued to your desk awaiting the U.S. Supreme Court's decision on gay marriage. 

Word starts to seep out at 11 a.m. Eastern. 

Since many of the justices took special care to mention the concerns of religious groups, it's your job to do the sidebar. What do you write? 

As I scanned various papers large and small, ranging from the Jackson (Miss.) Clarion-Ledger to Utah's Deseret News, it seemed that most punted by simply getting reacts from local religious and political leaders. Or they took the compendium from Religion News Service. I've had to write zillions of similar react pieces and it's harder than it looks, so I'm not knocking these folks. 

But I am going to credit the outlets that went the extra mile.

The Wall Street Journal didn't just react to the ruling but looked ahead to coming battles on religious freedom. It had some of the best quotes I saw all day, including one from Richard Land, the former culture wars czar for the Southern Baptists who's been a bit of a pariah in recent years after he was edged out of his position in 2012. However, the Journal remembered Land and gave him a call:

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Reporters should ponder what religious left is telling the Supreme Court about marriage

Reporters should ponder what religious left is telling the Supreme Court about marriage

On April 28, the U.S. Supreme Court will hear those same-sex marriage cases from Kentucky, Michigan, Ohio, and Tennessee. Proponents of redefining marriage are confident they’ll win in June. If so, that will be a decisive -- and divisive -- juncture for organized religion in America and frame competing religious liberty claims the media will be covering in coming years.

A previous Religion Guy Memo advised journalists to examine  the “friend of the court” briefs in these historic cases. The religious arguments for traditional marriage are familiar,  perhaps especially for GetReligion readers. But now that all the briefs are filed, newswriters should consider the somewhat less publicized religious argument on the opposite side.

The key brief comes from the Episcopal Church’s bishops in these four states (.pdf here) with the president of the Episcopal House of Deputies, the United Church of Christ, the Unitarian Universalist Association, Judaism’s three non-Orthodox branches, a dozen pro-gay caucuses and 1,900 individuals.

Though there’s strong religious support for marriage traditionalism, these gay-marriage proponents insist they’re also part of the religious “mainstream,” noting that the United Church and Unitarians stem directly from New England’s Puritans and Pilgrims. The Episcopalians likewise have colonial roots. The brief also cites recent ideological support from the large Evangelical Lutheran Church in America and Presbyterian Church (USA), though they didn’t join the brief.

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Los Angeles Times sports section shows how to leap over all essential Indiana facts

Los Angeles Times sports section shows how to leap over all essential Indiana facts

To understand the current Indiana meltdown, it really helps to get off page one and look at how the basic elements of this state-level Religious Freedom Restoration Act (RFRA) story are being covered in other sections of the typical American newspaper. In other words, in the hoops-crazy state of Indiana, it is crucial to see how RFRA is being covered on sports pages.

I'm afraid the following story in The Los Angeles Times is rather typical, starting with that headline: "NCAA feeling pressure to take stand against controversial Indiana law."

For starters, the words "Religious Freedom Restoration Act" do not appear in this story. Readers also do not learn that these state-level laws are in effect in 19 other states, with many other states operating with the understanding that the national RFRA -- a shining moment of church-state sanity from the Bill Clinton era -- will been seen as operative inside their borders. Instead, this is how the story tips things off:

This is usually a happy time of year for college basketball, a chance for the game to take center stage with all eyes focused on March Madness.
But just days before the Final Four tips off in Indianapolis, the mood surrounding the tournament has turned serious.
With both its title game and its headquarters located in Indiana's capital, the NCAA is facing widespread pressure to take a stand against a hotly debated state law that many fear will lead to discrimination against gays and lesbians.

The key words, of course, are "that many fear." Who needs names and titles? A few lines later, this same passive-aggressive journalistic approach is used once again:

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Flashback! When religious freedom didn't have scare quotes in The New York Times

Flashback! When religious freedom didn't have scare quotes in The New York Times

As the media firestorm continues in Indiana, your GetReligionistas have heard from readers asking to know the essential differences between the Indiana law that is under attack and the Religious Freedom Restoration Act (RFRA) passed with bipartisan enthusiasm during the administration of President Bill Clinton. Simply stated, the national RFRA has served as the models for the various state RFRA bills through the years, including the law that -- when he was in the Illinois state senate -- drew the support of Barack Obama.

Reporters covering this story may, in addition to actually studying the contents of the bill, want to study the impact these state bills have had in the 19 states that have adopted the same language. This Washington Post piece, with map, is quite helpful. Have these bills been abused? There may be stories there.

Yes, it's crucial for reporters to actually consider what happens when these bills are used in real cases, with real defendants, in real courts, even in conservative zip codes. Consider, for example, this Texas press release in 2009 in which the American Civil Liberties Union cheered the state's RFRA law:

The Texas Supreme Court ruled in favor of Pastor Rick Barr who challenged an ordinance passed by the City of Sinton (Barr v. City of Sinton) to close a half-way house for low-level offenders across from the pastor’s church, Grace Christian Fellowship.
“Today’s decision is significant because it is one of the Court’s first cases to affirmatively construe Texas’ Religious Freedom Restoration Act (RFRA),” said Lisa Graybill, legal director of the ACLU of Texas. ...
“This decision sends a strong message to state and local governments in Texas that the Court will not tolerate state action that targets a religious group, whatever their faith,” said Graybill. The court’s ruling upholds the intent of the RFRA to prevent state and local government officials from substantially burdening the free exercise of religion, including religious practices and religiously motivated conduct, without a compelling justification for doing so, she explained.  ”This is a major victory not just for Pastor Barr and Philemon Homes, but for all Texans who cherish religious freedom.”

However, journalists seeking guidance on style issues related to RFRA laws -- should, for example, terms such as "religious freedom" and "religious liberty" be framed with scare quotes -- may want to consult another authoritative source. That would be The New York Times. However, in this case we are talking about the Times of 1993.

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