Notre Dame Launches Religious Liberty Clinic

Notre Dame Law School announced yesterday that it is creating the Notre Dame Religious Liberty Clinic.  Prof. Stephanie Barclay will head the new initiative.  She comes to Notre Dame from the faculty of Brigham Young University’s J. Reuben Clark Law School.

Labor Department Issues New Guidance On Religious Liberty Protections

The U.S. Department of Labor announced last week (May 15) that it has issued a directive and a guidance to advance religious liberty protections. the directive, among other things, instructs DOL to:

Ensure religious organizations are given the opportunity to compete equally with non-religious organizations for Federal financial assistance at the Federal and State levels.

The Guidance (full text) implements Executive Order 13798 in connection with federal grants administered by DOL. The Guidance says in part:

Religious organizations that receive DOL financial assistance retain their programmatic independence from Federal, State, and local governments and may continue to carry out their missions and maintain their religious character. This autonomy includes, among other things, the right to use the organizations’ facilities to provide DOL-supported social services without removing or altering religious art, icons, scriptures or other religious symbols, and the right to govern themselves and to select board members on a religious basis. Faith-based organizations, like all organizations receiving DOL financial assistance, must not use direct DOL financial assistance to support any explicitly religious activities... [including] for example, worship, religious instruction, and proselytization....

If an organization conducts explicitly religious activities using non-DOL funds and also offers social service programs using direct DOL support, then that organization must offer the explicitly religious activities at a time or in a place that is separate from the programs receiving direct DOL support....

White House Views CDC Reopening Guidelines As Infringements On Religious Liberty

New York Times reports today that the White House has rejected proposed CDC Guidelines for reopening schools, businesses and houses of worship.  A significant part of the White House objections focused on religious liberty concerns. The Times said in part:

... White House and other administration officials rejected the recommendations over concerns that they were overly prescriptive, infringed on religious rights and risked further damaging an economy that Mr. Trump was banking on to recover quickly. One senior official at the Department of Health and Human Services with deep ties to religious conservatives objected to any controls on church services.

“Governments have a duty to instruct the public on how to stay safe during this crisis and can absolutely do so without dictating to people how they should worship God,” said Roger Severino, the director of the Department of Health and Human Services’ Office for Civil Rights, who once oversaw the DeVos Center for Religion and Civil Society at the Heritage Foundation....

Particularly contentious were the C.D.C.’s recommendations for churches and other houses of worship. Mr. Severino vocally opposed them.

“Protections against religious discrimination aren’t suspended during an emergency,” he said in a statement on Thursday. “This means the federal government cannot single out religious conduct as somehow being more dangerous or worthy of scrutiny than comparable secular behavior.”

The recommendations for churches include encouraging all congregants to wear cloth face coverings when inside the building, offering video streaming or drive-in options for services and considering “suspending use of a choir or musical ensemble” during services. It also urges churches to consider “temporarily limiting the sharing of frequently touched objects,” like hymnals, prayer books and passed collection baskets....

In one version of the draft guidance, the section titled “Interim Guidance for Communities of Faith” was left blank, with a note in capital letters referring to multiple federal agencies that have to come to agreement. But another version included the guidance for faith communities with the caveat that it “is not intended to infringe on First Amendment rights as provided in the U.S. Constitution.”

“The federal government may not prescribe standards for interactions of faith communities in houses of worship,” the second version states. “C.D.C. offers these suggestions that faith communities may consider and accept or reject.”

Study Shows Extent of COVID-19 Restrictions On Religious Services

Pew Research Center yesterday released a study of the extent to which each state has created religious exemptions to COVID-19 distancing orders. The study concludes that ten states prevent all in-person religious gatherings. Sixteen states allow religious gatherings, with no limit on their size. Some of these states have categorized religious worship as an "essential" service. Twenty-one states and D.C. allow religious gatherings of only ten or fewer people. Three states have other kinds of limits.

DOJ Gives Its Lawyers A Training Week On Religious Liberty

The New York Times reports today:

The Justice Department this week hosted training for its lawyers on religious liberty laws as part of Attorney General William P. Barr’s push to prioritize religious freedom cases, but the workshops prompted concern among some career lawyers that they were being educated on ways to blunt civil rights protections for gay and transgender people....

The training week was part of an ongoing campaign at the department to bolster ​its work to​ protect religious freedom, which is regularly described by top leaders as the first right protected by the First Amendment​, a department official said in response to a request for comment. ...

 A department spokesman said that the trainings were in no way meant to marginalize gay, lesbian and transgender people or to promote discrimination in any way, and that nothing in the materials presented did so.

Vanita Gupta, the president of the Leadership Conference on Civil and Human Rights and the former head of the Justice Department’s Civil Rights Division, accused Mr. Barr of using the Justice Department to promote his religious beliefs.

“In speeches and statements, he says that civil society is being undermined by a move away from religiosity,” she said. “He wants to use civil rights statutes and the D.O.J. to redeem what he views as the corrupted soul of America.”

January 16 Is Religious Freedom Day

January 16 is Religious Freedom Day-- celebrating the anniversary of the passage in 1786 of the Virginia Statute of Religious Freedom. Each year since 1993 the President has issued a proclamation marking the day. Presumably this year's Proclamation will be posted by the White House today. Gov. Pete Ricketts of Nebraska also issued a Proclamation (full text) recognizing the day.

UPDATE: Here is President Trump's Proclamation on Religious Freedom Day, 2020.

Suit Challenges Attempt To Force Sex Offenders Out of Church's Program

The Chicago Tribune reports on a Dec. 30 lawsuit arguing that  the city of Aurora and Kane County (Illinois) are violating the rights of 18 registered sex offenders staying at Wayside Cross Ministries:

The city of Aurora has contended for months that new mapping software showed the men, registered child sex offenders participating in a rehabilitation program at Wayside Cross Ministries, live too close to McCarty Park on Aurora’s near East Side. The city deems it a playground, which would mean the men are in violation of a state law requiring them to live more than 500 feet from schools, playgrounds, daycare centers and other child-focused locations....

The men argue in the lawsuit that Aurora and the Kane County state’s attorney are “misinterpreting and misapplying the residency law." The suit argues the way they are applying the law “to force plaintiffs out of Wayside Cross substantially burdens plaintiffs’ exercise of religion and is not the least restrictive means of furthering a compelling government interest," and amounts to a violation of the Illinois Religious Freedom Restoration Act,,,,

The most recent lawsuit, filed in Kane County circuit court, argues that instead of measuring the required 500-foot-distance from the edge of the park, it should be measured from the edge of an area deemed a playground, such as the park’s fountain or two rocking horses installed in the summer. Both of those features are more than 500 feet from Wayside’s property line, according to the lawsuit.

Advocacy Organization Releases "Religious Freedom Index" Survey

Becket yesterday released its first Religious Freedom Index which it describes in part as follows:

The Religious Freedom Index is designed to give a 30,000-foot view of changes in American attitudes on religious liberty by surveying a nationally representative sample of 1,000 American adults. Rather than focus on the most hot-button issues dominating the news-cycle, questions asked in the Index cover a wide spectrum of religious liberty protections under the First Amendment. The responses to these questions statistically group into six dimensions: 1) Religious Pluralism, 2) Religion and Policy, 3) Religious Sharing, 4) Religion in Society, 5) Church and State, and 6) Religion in Action. The composite Index score is the average score of these dimensions.

A Key Finding was:

In 2019, the majority of Americans accept and support religious freedom as a fundamental right as indicated by the Index score of 67. Although that fact may not come as a surprise, the Index clearly shows that Americans support a much broader array of religious freedom principles than current news cycles might suggest.

Attorney General Barr Speaks On Religious Liberty At Notre Dame

On Oct. 11, U.S. Attorney General William Barr delivered a lengthy address (full text) on religious liberty at Notre Dame University. Here is an excerpt:

... [L]aw is being used as a battering ram to break down traditional moral values and to establish moral relativism as a new orthodoxy....

First, either through legislation but more frequently through judicial interpretation, secularists have been continually seeking to eliminate laws that reflect traditional moral norms.

At first, this involved rolling back laws that prohibited certain kinds of conduct. Thus, the watershed decision legalizing abortion. And since then, the legalization of euthanasia. The list goes on.

More recently, we have seen the law used aggressively to force religious people and entities to subscribe to practices and policies that are antithetical to their faith.

The problem is not that religion is being forced on others. The problem is that irreligion and secular values are being forced on people of faith.

This reminds me of how some Roman emperors could not leave their loyal Christian subjects in peace but would mandate that they violate their conscience by offering religious sacrifice to the emperor as a god.

Similarly, militant secularists today do not have a live and let live spirit - they are not content to leave religious people alone to practice their faith. Instead, they seem to take a delight in compelling people to violate their conscience.

Deputy Sheriff Sues Over Refusal To Accommodate His Practice of the "Billy Graham Rule"

Christianity Today reports on a federal lawsuit filed last month by a deputy sheriff who was fired after he refused to train a female deputy because it would require him to spend significant amounts of time alone with her in his patrol car.  The suit, filed on July 31 in the Eastern District of North Carolina, says that deputy Manuel Torres, a Baptist deacon, practices the so-called "Billy Graham Rule" under which he will not be alone with a member of the opposite sex except for his wife.

Trump Speaks to Faith and Freedom Conference

President Trump yesterday spoke for an hour to those attending the Faith and Freedom Coalition “Road to Majority” 2019 Conference in Washington, D.C. (Full text of remarks.)  In his wide ranging comments on the accomplishments of his Administration, he said in part:

And we are once again defending and promoting our great American values.  And we’re saying, “Merry Christmas” again.  Do you notice?  Remember?  Remember?  (Applause.)   I usually save that for November, December, but I was just thinking — as I mentioned, I was saying, we’re going to say, “Merry Christmas.”  They were all taking it down off the department stores — everything.  You’d see a big red — they’d say, “Happy Holidays.”  No “Merry Christmas.”  They’re saying, “Merry Christmas,” again.  It’s very interesting.  And they’re proud of it.  (Applause.)...

And now, by the way, because of what we did with respect to the Johnson Amendment — you know what I’m talking about — our leaders, like all of the people that have been so supportive — our pastors, our ministers, our priests, our rabbis — all of our religious leaders — every — we’re allowed to speak again.  We’re allowed to talk without having to lose your tax exemption, your tax status, and being punished for speaking.  (Applause.)  And the people that we most want to hear, our great clergy, is now able to speak without fear of retribution....

We’re cherishing our nation’s religious heritage once again.  My administration has taken historic action to protect religious liberty. (Applause.)  We are protecting the conscience rights of doctors, and nurses, and teachers, and groups like the Little Sisters of the Poor.  We’re with them.  (Applause.)....

Americans’ belief in God has forged the character of our country and made our nation a light unto the world.  We are respected again as a nation, I will tell you that.  And I’m not only talking about from a religious standpoint.  Our country is respected again.  (Applause.)

Pence To CPAC On Religious Liberty

On Friday, Vice President Pence addressed the 2019 CPAC Convention (full text of remarks). A portion of his 30-minute speech addressed religious liberty.  The Vice President said in part:

You know, the freedom of religion is not just enshrined in our Constitution; it’s enshrined in the hearts of the American people.  But make no mistake about it: Freedom of religion is under attack in our country.  Lately, it’s actually become fashionable for media elites and Hollywood liberals to mock religious belief.

My own family recently came under attack just because my wife Karen went back to teach art to children at a Christian school....

But let me be clear on this point: This is not about us.  It’s about all of you.  It’s about the sincerely held belief of millions of Americans who cherish their Christian faith and Christian education.  And so I’ll make you a promise: Under this President and this administration, we will always stand with people of faith.  We will always defend the freedom of religion of every American of every faith, so help us God.  (Applause.)

And as we reflect on our God-given liberties, I got to tell you, I couldn’t be more proud to serve as Vice President to the most pro-life President in American history.  (Applause.)

Since the first days of this administration, President Donald Trump has stood without apology for the sanctity of human life.  In one of his very first acts, the President reinstated the Mexico City Policy, preventing taxpayer dollars from funding abortion or abortion providers around the world.  And here at home, President Trump signed a law to allow all 50 states to defund Planned Parenthood.  (Applause.)  Life is winning in America once again.

But for all the progress we’re making — tragically, at the very moment that more Americans than ever before are embracing the right to life, leading members of the Democratic Party are embracing a radical agenda of abortion on demand.

Law Student Religious Liberty Writing Competition Announced

The J. Reuben Clark Law Society has published an announcement of its 10th Annual Religious Liberty Writing Competition.  The competition is open to law students and to students pursuing related graduate studies.  Papers must be submitted by July 1.

Jan. 16 Is Religious Freedom Day

Today (Jan. 16) is Religious Freedom Day-- the 233rd anniversary of the enactment of the Virginia Statute for Religious Freedom. On Tuesday, President Trump issued a Presidential Proclamation calling on Americans "to commemorate this day with events and activities that remind us of our shared heritage of religious liberty and that teach us how to secure this blessing both at home and around the world."  The Proclamation says in part:

Unfortunately, the fundamental human right to religious freedom is under attack.  Efforts to circumscribe religious freedom — or to separate it from adjoining civil liberties, like property rights or free speech — are on the rise.  Over time, legislative and political attacks on religious freedom have given way to actual violence.  Last October, we witnessed a horrific attack on the Tree of Life Synagogue in Pittsburgh, Pennsylvania — the deadliest attack on the Jewish community in our Nation’s history.  Tragically, attacks on people of faith and their houses of worship have increased in frequency in recent years.

Top Ten 2018 Religious Liberty / Church-State Developments

Each year in December, I attempt to pick the most important church-state and religious liberty developments of the past year-- including developments internationally in the mix.  My choices are based on the importance of the pick to law or policy, regardless of whether the development has garnered significant media attention..  The selection obviously involves a good deal of subjective judgment, and I welcome e-mail comment from those who disagree with my choices.  So here are my Top Ten picks as another rather chaotic year comes to an end:

1. The U.S. Supreme Court issues a narrow decision in the Masterpiece Cakeshop case, failing to resolve the basic question of how to balance religious liberty and free speech rights against demands for equality.
2. Battles continue in the courts over whether existing protections against sex discrimination cover discrimination on the basis of sexual orientation or gender identity.
3. The third version of President Trump's "travel ban" is upheld by the U.S. Supreme Court.
4. Release of the Pennsylvania Grand Jury report on sexual abuse by Catholic priests in 6 dioceses refocuses attention on the clergy sex abuse scandal.
5. Mass shooting in Pittsburgh synagogue raises new fears of anti-Semitism in the United States.
6. U.S. Supreme Court protects the speech rights of pro-life pregnancy centers, finding California's FACT Act unconstitutional.
7. Canada and Ireland repeal blasphemy laws, while blasphemy cases elsewhere (Pakistan, Spain, Austria, India) continue to attract attention.
8. Federal district court holds federal Female Genital Mutilation statute unconstitutional.
9. Free speech challenges to state laws designed to combat individual participation in boycott of Israel meet success.
10. Congress takes action to fight genocide; passes Elie Wiesel Genocide and Atrocities Prevention Act and.  Iraq and Syria Genocide Relief and Accountability Act .

Don Byrd at Blog From the Capital has a different set of the Top Ten.

Religious Leaders Write On Religious Freedom Prospects Ahead

Deseret News on Monday posted an article titled What's next for religious freedom in 2019? Faith leaders and policymakers weigh in. The article features short essays from seven religious leaders of different faiths.

Federal Contract Compliance Office Issues Directive On Religious Rights of Contractors

The Office of Federal Contract Compliance Programs last week issued Directive 2018-03 (Aug. 10, 2018) in order to maximize free exercise rights of federal contractors and subcontractors. OFCCP is responsible for enforcing the anti-discrimination and equal opportunity provisions applicable to contractors and subcontractors.  The Directive says in part:

Recent court decisions have addressed the broad freedoms and anti-discrimination protections that must be afforded religion-exercising organizations and individuals under the United States Constitution and federal law. See, e.g., Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1731 (2018) (government violates the Free Exercise clause when its decisions are based on hostility to religion or a religious viewpoint); Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2022 (2017) (government violates the Free Exercise clause when it conditions a generally available public benefit on an entity’s giving up its religious character, unless that condition withstands the strictest scrutiny); Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2775 (2014) (the Religious Freedom Restoration Act applies to federal regulation of the activities of for-profit closely held corporations)....

OFCCP staff are instructed to take these legal developments into account in all their relevant activities, including when providing compliance assistance, processing complaints, and enforcing the requirements of E.0. 11246....

Liberty Counsel issued a press release discussing the Directive. Think Progress reports on the Directive.

AG Sessions Announces New Religious Liberty Task Force In Extensive Remarks on Topic

Attorney General Jeff Sessions delivered remarks (full text) at today's Department of Justice Religious Liberty Summit.  He said in part:

I want to thank all of you for your courage and insight to speak out for religious liberty.

Let us be frank.

A dangerous movement, undetected by many, is now challenging and eroding our great tradition of religious freedom. There can be no doubt. This is no little matter. It must be confronted and defeated.

This election, and much that has flowed from it, gives us a rare opportunity to arrest these trends.  Such a reversal will not just be done with electoral victories, but by intellectual victories. 

We have gotten to the point where courts have held that morality cannot be a basis for law; where ministers are fearful to affirm, as they understand it, holy writ from the pulpit; and where one group can actively target religious groups by labeling them a “hate group” on the basis of their sincerely held religious beliefs.

This President and this Department of Justice are determined to protect and even advance this magnificent heritage....

[I]n recent years, the cultural climate in this country—and in the West more generally—has become less hospitable to people of faith. Many Americans have felt that their freedom to practice their faith has been under attack.

And it’s easy to see why.  We’ve seen nuns ordered to buy contraceptives. 

We’ve seen U.S. Senators ask judicial and executive branch nominees about dogma—even though the Constitution explicitly forbids a religious test for public office.  We’ve all seen the ordeal faced so bravely by Jack Phillips.

Americans from a wide variety of backgrounds are concerned about what this changing cultural climate means for the future of religious liberty in this country.

President Trump heard this concern.

I believe this unease is one reason that he was elected.  In substance, he said he respected people of faith and he promised to protect them in the free exercise of their faith.  He declared we would say “Merry Christmas” again....

Today I am announcing our next step: the Religious Liberty Task Force, to be co-chaired by the Associate Attorney General and the Assistant Attorney General for the Office of Legal Policy—Jesse [Panuccio] and Beth [Williams].

The Task Force will help the Department fully implement our religious liberty guidance by ensuring that all Justice Department components are upholding that guidance in the cases they bring and defend, the arguments they make in court, the policies and regulations they adopt, and how we conduct our operations.  That includes making sure that our employees know their duties to accommodate people of faith.

As the people in this room know, you have to practice what you preach. We are also going to remain in contact with religious groups across America to ensure that their rights are being protected.  We have been holding listening sessions and we will continue to host them in the coming weeks.

This administration is animated by that same American view that has led us for 242 years: that every American has a right to believe, worship, and exercise their faith in the public square.

DOJ Religious Liberty Summit Today

According to an ADF press release, the U.S. Department of Justice will host a Religious Liberty Summit this morning. It will be live streamed at this link beginning at 9:30 AM.  The Summit "will present a number of perspectives on the centrality of religious liberty to a flourishing society and will examine legal and cultural challenges to it. Acting Associate Attorney General Jesse Panuccio will host the event, which will feature an announcement on protecting religious freedom by Attorney General Jeff Sessions...."

UPDATE: Here is a transcript of the proceedings at the Religious Liberty Summit. [Thanks to Blog from the Capital for the link.]

Amish Get Remand For More Consideration of Religious Freedom Defenses In Permit Case

In Sugar Grove Township v. Byler, (PA Commnwlth. Ct., July 20, 2018), a 7-judge panel of the Pennsylvania Commonwealth Court remanded to the trial court a complaint against a member of the Old Order Amish who, it was contended, failed to obtain required permits under the Township's Privy Ordinance, and violated the Sewage Facilities Act and the Uniform Construction Code.  The trial court concluded that community safety concerns override religious objections. The appeals court said:

The trial court substantiates this conclusion by vaguely referencing testimony of an environmental hazard in the nature of high levels of E. coli bacteria being found in the area, without any explanation of how Appellant’s purported violations contributed to or exacerbated this hazard. Moreover, the trial court ignores additional protections provided by the Religious Freedom Protection Act....

The matter is remanded to the trial court to issue a new opinion considering the issue of the religious freedom protections of the First Amendment to the United States Constitution and Article I, section 3 of the Pennsylvania Constitution as well as the Religious Freedom Protection Act.

AP reports on the decision.