October 8, 2013
By Lori Windham, Senior Counsel at the Becket Fund for Religious Liberty
This week marks the start of the Supreme Court’s 2013 term. It also marks the return of the Christmas wars, that special time of year when we repeat our nation’s annual argument over the meaning of the First Amendment’s ban on “establishment of religion.”
The Christmas wars got an early start this year. They were kicked off by a news report that a school district in Wisconsin was cancelling Christmas and Hanukkah concerts and requiring that any religious song be paired with four secular songs. That report has created a public firestorm, and provoked a lengthy clarification from the school district. It all began when local bureaucrats, fearful of doing anything that might invite the ire of the Freedom From Religion Foundation, declared that holiday concerts could only occur if religious songs were offset by a number of secular songs—say, a four-to-one ratio. The rules were so onerous that the high school’s Master Singers choir canceled their Christmas concerts entirely.
The school’s solution won’t satisfy hypersecularists like Freedom From Religion Foundation, who want no mention of the religious nature of religious holidays. It won’t satisfy religious believers, who don’t want faith to be treated like some sort of contagion in the public square. It’s a solution only a bureaucrat could love.
The start of the 2013 Christmas wars and the start of the Supreme Court’ s new term are not unrelated. That’s because this term, the Supreme Court might have the opportunity to fix some of the judge-made law that sparked these controversies in the first place. In November, the Court will hear arguments in Town of Greece v. Galloway, a case over the legality of prayers before town council meetings. At first blush, that might not have much to do with the fate of a school concert. But at stake is nothing less than the meaning of the Establishment Clause itself—a confused and confusing area of law. The muddled decisions of the Supreme Court have created uncertainty over when, exactly, a Christmas concert ought to become a federal case.
September 30, 2013
By Adèle Auxier Keim, Legal Counsel at the Becket Fund for Religious Liberty
Founded by three Augustine nuns, L’Hôtel-Dieu was the first hospital in North America.
In 1639, Québec’s famous Hôtel-Dieu hospital was founded by three Augustine nuns who came from France to provide medical care for the colonists and the First Nations communities who lived near them. L’Hôtel-Dieu, which still operates as a teaching hospital, was not only the first hospital in Canada, it was the first in North America.
But if the Augustine sisters arrived to provide medical care for the people of Québec today, they would face a new obstacle: the Québec government’s proposed “Charter of Québec Values.” The new Charter would prevent anyone employed by the government—be they Jewish, Sikh, Muslim, or members of Catholic religious orders—from wearing “ostentatious” clothing that reflects their faith. Since the Augustine nuns wore religious habits that covered them from head to toe, they would be forbidden from working in a government hospital.
September 24, 2013
By Daniel Blomberg, Legal Counsel at the Becket Fund for Religious Liberty
Military religious liberty has gotten a lot of attention in recent months. And well it should, since the military’s tradition of respecting religious liberty for those Soldiers, Sailors, Airmen, and Marines is one that deserves respectful attention.
Indeed, in many ways, our national commitment to religious freedom received crucial support from the military experiences of our Founders. For them, service in the military was an education in how “Massachusetts Congregationalists, Rhode Island Baptists, New York Episcopalians and Dutch Reformed, New Jersey Presbyterians, Pennsylvania members of many small Protestant sects . . . , Maryland Roman Catholics, and a scattering of Jews” could work together despite religious differences. I Anson Phelps Stokes, Church and State in the United States 267-68 (1950). To nurture this respectful religious pluralism, then-Colonel Washington requested during the French and Indian War that Virginia create a chaplain corps that could minister to the varied faith-specific needs of his troops. Id. at 268. Virginia responded with chaplains from the state’s established church and from minority religious groups—and it specifically protected the minority chaplains’ ability to express their faith. Id. Later, as commander of the Continental Army, Washington again showed his solicitude for his soldiers’ faith-specific religious needs by seeking to “give every Regiment an opportunity of having a chaplain of their own religious Sentiments.” Id. at 271.
Experiences such as this likely helped Washington write his famous promise of religious liberty to the Hebrew Congregation in Newport, Rhode Island—that the “Government of the United States gives to bigotry no sanction, to persecution no assistance” and, quoting the Hebrew prophet Micah, leaves peaceful members of all religions to “sit in safety under his own vine and fig tree.”
The military experiences of our Founders also helped shape institutions that guide us today on how government can respect and accommodate religious belief generally. An excellent example is the United States’ military chaplaincy, which has existed since before the founding of the country. As the Chaplain Alliance for Religious Liberty explained in a recent amicus brief to the U.S. Supreme Court,
September 18, 2013
By Asma Uddin, Legal Counsel at the Becket Fund for Religious Liberty
My work on religious freedom, especially international religious freedom, provides much fodder for academic and op-ed pieces alike. One thing that has bothered me for some time—and which I write about often—is the seeming impasses in communication across the West-Muslim world divide when it comes to religious freedom and free speech issues.
One thing has always been clear: to make it meaningful and find willing listeners, the communication must be rooted in local concerns, and many times in Islamic literature. Without this, any advocacy originating in the West will be perceived (and rejected) as a cultural imposition.
With this fundamental point always the backdrop of my religious freedom contemplations, some bells went off when I read the 1993 Supreme Court of Pakistan’s Zaheeruddin v. State opinion. The case involved four members of the Ahmadiyya religious group who had been convicted under Ordinance XX and section 295(c) of the Pakistan Penal Code. XX states that Ahmadis are not Muslims, and 295(c) is one of Pakistan’s blasphemy laws.
In Zaheeruddin, the Court upheld the convictions, stating that public religious expression by Ahmadis was offensive to Pakistan’s Sunni Muslim citizens and could lead these offended citizens to engage in violence. The court reasoned that since Ahmadi practices can elicit such violent reactions, the Pakistani government had the power to restrict the practices.
September 13, 2013
By: Diana Verm, Legal Counsel at the Becket Fund for Religious Liberty
Remember when we said that the government promoting yoga as a physical exercise doesn’t set up an official religion in violation of the Establishment Clause? It turns out that we were right, at least according to one California judge. Judge John S. Meyer of the Superior Court of California in San Diego considered a challenge to a yoga-based physical education program in one public school district last month. He held that the yoga program does NOT violate the Establishment Clause of the First Amendment.
Merely teaching a subject with religious roots in public schools doesn’t “establish” a state religion. The Establishment Clause was originally included in the First Amendment to outlaw at the federal level the kind of state church the Founders had experienced in England. The Founders’ main concern was that an official church tended to coerce religious practice. But a yoga program in school, not to mention many other benign references to religion in the public square, does nothing of the sort. Teaching students yoga does not provide financial government support to a church, it doesn’t allow the government to control church doctrine or personnel, it doesn’t coerce religious practice, and it doesn’t assign important civil functions to a particular church. Those are the elements of establishment that our Founders worried about, and none of them are present here.
September 12, 2013
By Mark Rienzi, Senior Counsel at the Becket Fund for Religious Liberty
It is hard to name a more commercial environment than a shopping mall. Hundreds of stores deliberately grouped together to offer their goods and services. Hundreds of employees getting paid money to sell them. Thousands of customers paying money to buy them. The federal government has lately been arguing that religious freedom is incompatible with making money, at least in the HHS Mandate context. On that view, one would expect a shopping mall to be a black hole for religious liberty.
That is why it is such a pleasant surprise to see the Obama Administration’s EEOC fighting for the right to religious accommodations—even in a shopping mall, and even in a job that is all about getting paid to buy and sell products that have nothing to do with religion.
Umme-Hani Khan is a Muslim teenager who applied for a job at an Abercrombie & Fitch store in her local mall. Khan’s religious beliefs require her to wear a headscarf while in public. Khan wore her headscarf during her interview and during her first six months working at the store, without issue. Eventually, though, the store decided that her headscarf violated the company’s dress policy. When she would not remove it, Khan was fired.
In an opinion issued Monday, a federal judge agreed with the Obama Administration that Abercrombie & Fitch had failed to accommodate Khan’s religion by letting her wear her headscarf while at work. Especially in light of Khan’s responsibilities—she worked mostly in the stock room, checking shipments and folding clothes, occasionally entering the store only to place items on the shelves—the court agreed with the EEOC that federal law required the store to accommodate Kahn’s religious practice, rather than firing her for it.