May 7, 2015 - 2:36 pm

A year ago last Tuesday, the Supreme Court ruled in Town of Greece v. Galloway1 that prayer at town council meetings was entirely constitutional. The Court found that legislative prayers only become unconstitutional if they are overtly sectarian or coercive to engage in.2 The decision, although in line with lower court trends, completely disregards the basic constitutional principle enshrined in the First Amendment: the government cannot support the establishment of religion.

Justice Kennedy’s opinion for the majority, divided evenly on ideological and religious lines, explained that if a legislative body permitted anyone to lead a prayer and did not contain restrictions on what could be said was sufficiently non-coercive and non-sectarian.3 Nonetheless, objections to legislative prayer are substantial. Justice Kagan pointed out in her dissenting opinion that Town of Greece almost exclusively invited Christian ministers to perform the prayers, making the practice entirely sectarian. She also argued that because the prayers were focused on the residents, and not on the lawmakers, it further violated non-denominational rules.

The previous precedent set for legislative prayer was in Marsh v. Chambers4, decided in 1983. In that case, the Court ruled that legislative prayer could be allowed to such an extent that the chaplain hired by the legislature could be paid by public funds, as well as come from the same religious tradition for over 16 years. By ruling such a low standard for nonsectarian prayer, the court all-but-instituted Judeo-Christian legislative prayer as a standard practice throughout the country. Galloway only expanded the limits on legislative prayer, making it more difficult to challenge these offenses to our rights and the Constitution.

Legislative prayer has existed since the first Congress gaveled into session, so it won’t be going anywhere any time soon. In fact, Galloway showed that the trend is moving toward more legislative prayer, and more sectarian legislative prayer. This expansion makes the practice increasingly discriminatory not just against nonreligious Americans, but also against Americans of minority faiths that are not included in the increasingly sectarian prayers local governments are leading on a daily basis.

 

1 http://www.oyez.org/cases/2010-2019/2013/2013_12_696

http://www.scotusblog.com/2014/05/symposium-town-of-greece-v-galloway-going-forward/

http://www2.bloomberglaw.com/public/desktop/document/Town_of_Greece_v_Galloway_No_12696_2014_BL_124245_US_May_05_2014_

http://www2.bloomberglaw.com/public/desktop/document/Marsh_v_Chambers_463_US_783_103_S_Ct_3330_77_L_Ed_2d_1019_1983_Co/2

April 3, 2015 - 2:18 pm

With all of the current focus on Indiana’s version of the Religious Freedom Restoration Act (RFRA) and the scrutiny that it has brought onto other states considering similar legislation, few have taken the time to step back and look at the big picture behind RFRA. Indiana is only one of twenty-one states that have a RFRA law on the books, not to mention the federal RFRA passed in 1993.

While Indiana’s version of RFRA does have slightly broader language than other states -it specifically allows for cases in which the government is not party, and designates religious rights to for-profit entities- the ruling in Hobby Lobby means that even the most basic RFRA language will allow for the same type of religious discrimination, whether it be in employment practices or with providing services.

The Supreme Court based their decision in the Hobby Lobby case on the federal RFRA law. The law had only the most basic language, reinstating a religious freedom standard that had existed for decades. It meant the government could not “substantially burden” an individual’s religious freedom without providing a compelling government interest.

Prior to Hobby Lobby, religious freedom was not interpreted as allowing discrimination motivated by someone’s religious beliefs. In a recent hearing on RFRA, Representative Conyers pointed out that “The Act [RFRA] [was] meant to protect all, not to favor some at others’ expense.” Representative Nadler, who was in Congress when RFRA was originally passed and helped author the legislation, pointed out in the same hearing that RFRA was “intended to be used as a shield, not as a sword.”

When RFRA was passed federally and then in nineteen states, prior to its recent passage in Indiana and Arkansas, it could only be applied as a defensive law. Individuals who felt their religious rights had been impacted by the government could claim, as they always could, that they deserved an exemption from the law, and if that exemption did not harm others, it was expected to be allowed. But the decision in Burwell v. Hobby Lobby, while extending religious rights to for-profit entities, also effectively expanded RFRA to apply to individuals, allowing them to infringe upon the rights of others by claiming personal religious freedom.

The new reach of the various state RFRA laws means that religious freedoms could be applied to a wide variety of areas where it previously could not. The most frequently referenced situation is a business refusing service for a gay wedding. While this has never been upheld in court, the expanded RFRA could provide solid legal grounds for an exemption. This scenario would not be exclusive to the stronger language in laws like Indiana’s, but could apply to the much large number of states with RFRA laws on the books, and even under federal law.

The focus on Indiana has prompted attempts to get the law amended to prevent discrimination against the LGBT community, a group that does not share the same protections in Indiana as they do in some other states. However, outrage at Indiana’s discriminatory legislation need not be so limited, when this discrimination could become a reality in many other states and toward many other groups, including non-believers.

While an amended RFRA may not allow for discrimination against members of the LGBT community, the law allows for discrimination against anyone who doesn’t subscribe to the same religious viewpoint as the claimant. Hobby Lobby is a case in which a for-profit organization, not a church or house of worship, discriminated against female employees who did not share the beliefs of the owners. Even an amended RFRA in Indiana wouldn’t stop this.

It is also worth mentioning that business and states that have spoken out against Indiana or initiated boycotts against the state should take a look around. Connecticut, for instance, has banned the use of government funds to travel to Indiana, while having a RFRA statute on the books. A much broader effort is necessary to fight against and repeal these discriminatory laws, rather than focusing on one state with a particularly restrictive version. Justice Ginsburg pointed out in her dissenting opinion in the Hobby Lobby case that, “No tradition, and no prior decision under RFRA, allows a religion-based exemption when the accommodation would be harmful to others.” However, this is now the reality. This reality means an effort has to be made for a full repeal of RFRA, not simply amending current versions.

Take action today by signing our petition to repeal RFRA at all levels of government and signing up for Action Alerts to join the fight against RFRA in your state. Find out where RFRA stands in your state here.   


 

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