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August 17, 2016 Off

Texas Attorney General Wrongly Approves Courtroom Prayer

Texas AG LogoOn August 15, the Texas Attor­ney Gen­eral issued an opin­ion which found that a county judge’s prac­tice of open­ing his daily court­room pro­ceed­ings with prayer is con­sti­tu­tional.  The opin­ion was issued in response to a request by State Com­mis­sion on Judi­cial Con­duct (“Com­mis­sion”), as well as  the Lieu­tenant Gov­er­nor.   It mis­con­strues the law and undoubt­edly will lead to reli­gious coer­cion in  the Judge’s courtroom.

Wayne L. Mack, a Jus­tice of Peace in Mont­gomery County, estab­lished a vol­un­teer chap­lain pro­gram that invites “’all reli­gious lead­ers of any faith in [his county] to par­tic­i­pate.’”  On a daily basis, a vol­un­teer chap­lain is “invited to ‘give a brief prayer dur­ing the open­ing cer­e­monies’ of the Jus­tice of the Peace’s court pro­ceed­ings.”  Fur­ther­more, “‘[n]o guid­ance is given about the tone or con­tent of the prayers.’”

In oppos­ing this prac­tice, the Com­mis­sion referred the Attor­ney Gen­eral to a U.S. Court of Appeals for the Fourth Cir­cuit deci­sion inval­i­dat­ing open­ing court­room prayers.   Fail­ing to cite one deci­sion to con­trary, the Attor­ney Gen­eral opin­ion instead erro­neously relies on U.S. Supreme Court leg­isla­tive prayer deci­sions to val­i­date the court­room prayer practice.

These leg­isla­tive prayer deci­sions, how­ever, are a nar­row excep­tion to the First Amendment’s Estab­lish­ment Clause.  They are based on a long tra­di­tion of open­ing prayer before state leg­is­la­tures, but there is no such tra­di­tion in Amer­i­can court­rooms.  Indeed, the Court of Appeals deci­sion cited by the Com­mis­sion rejected an  equiv­a­lence between leg­isla­tive and court­room prayer because “’for the judge to start each day with a prayer is to inject reli­gion into the judi­cial process and destroy the appear­ance of neu­tral­ity.’”  And because lit­i­gants are required to be present in court, the risk of reli­gious coer­cion is much greater than in the con­text of a leg­isla­tive body.   Fur­ther­more, even under the Supreme Court’s most recent and overly broad leg­isla­tive prayer deci­sion, a prayer prac­tice can­not result in a ““pat­tern of prayers that over time den­i­grate, pros­e­ly­tize, or betray imper­mis­si­ble gov­ern­ment pur­pose.”   No such lim­i­ta­tion exists in Judge Mack’s courtroom.

Accord­ing to the Attor­ney Gen­eral Opin­ion, per­sons who are required to appear before Judge Mack will not be sub­ject reli­gious coer­cion because “ ‘the bailiff pro­vides an oppor­tu­nity for indi­vid­u­als to leave the court­room dur­ing the prayer and explains that par­tic­i­pa­tion in the prayer will have no effect on the deci­sions of the court. ‘”

That pol­icy is grossly unre­al­is­tic and is of lit­tle com­fort to prospec­tive lit­i­gants before Judge Mack.  Rather, as cor­rectly artic­u­lated by the Com­mis­sion in its request for an Attor­ney Gen­eral opin­ion on this issue:

Objec­tively, it would appear axiomatic that any­one who would dare to leave the court­room upon this announce­ment and return after the prayer when the judge is present is being placed in an unten­able posi­tion. By exit­ing and then return­ing to the court­room, the lit­i­gant runs the risk that he or she will pos­si­bly be noticed by the judge as hav­ing left the court­room dur­ing the prayer and held up to ridicule, den­i­grated, or retal­i­ated against by the judge or by the com­mu­nity for imply­ing a rejec­tion of the judge’s Chris­t­ian reli­gious beliefs.

At the same time, those who remain silent and choose to stay in the court­room may be sub­jected to a court-sanctioned prayer and gov­ern­men­tal endorse­ment of a reli­gious belief other than their own, in vio­la­tion of the Estab­lish­ment Clause. The United States Supreme Court specif­i­cally addressed the dan­gers of this kind of endorse­ment, which “sends a mes­sage to non­ad­her­ents that they are out­siders, not full mem­bers of the polit­i­cal com­mu­nity, and an accom­pa­ny­ing mes­sage to adher­ents that they are insid­ers, favored mem­bers of the polit­i­cal community.”

In our nation’s courts, the Con­sti­tu­tion demands that all per­sons be treated equally before the law regard­less their faith.  The Attor­ney General’s approval of this court­room prayer prac­tice threat­ens to under­mine this crit­i­cal prin­ci­ple.   This unfair and exclu­sion­ary prac­tice endorses and coerces reli­gion in clear vio­la­tion of the Estab­lish­ment Clause.  It should be struck down by a fed­eral or state court.

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August 9, 2016 Off

Key Supporter Of After-School Religious Clubs Ironically Says Satanic Temple Can Be Barred 

Recently, The Satanic Tem­ple announced that it plans start­ing after school clubs for the com­ing school year and sent let­ters to a num­ber of pub­lic school dis­tricts advis­ing them of its inten­tions.   Under a 2001 U.S. Supreme Court rul­ing, K-12 pub­lic schools must allow these clubs if they allow sec­u­lar com­mu­nity groups to use their facil­i­ties.  But a key sup­porter of the 2001 deci­sion and after-school access for Chris­t­ian “Good News Clubs” erro­neously disagrees.

Wikipedia images

Wikipedia images

In its Good News Clubs v. Mil­ford Cen­tral School deci­sion, the Supreme Court ruled that pub­lic schools must treat reli­gious and sec­u­lar com­mu­nity groups on the same terms and con­di­tions in after-school access to facil­i­ties.  So if a school allows a sec­u­lar group to use its facil­i­ties, it must do the same for reli­gious groups.

Firmly believ­ing that pro­vid­ing after-school access to reli­gious orga­ni­za­tions con­sti­tutes uncon­sti­tu­tional endorse­ment of reli­gion, ADL in 2000 filed a friend-of-the-court brief with  the U.S Supreme Court oppos­ing such access. How­ever, this deci­sion remains the law of the land.  Fif­teen years later, numer­ous Good News Clubs oper­ate in our nation’s pub­lic ele­men­tary and mid­dle schools.

Lib­erty Coun­sel, a self-described Chris­t­ian min­istry “ded­i­cated to advanc­ing reli­gious free­dom, the sanc­tity of life, and the fam­ily,” is an active defender the 2001 deci­sion and legally rep­re­sents Good News Clubs across the coun­try.   But it now erro­neously claims that pub­lic schools can bar The Satanic Tem­ple clubs, which Lib­erty Coun­sel char­ac­ter­izes as “not legit­i­mate,” while per­mit­ting Good News and other reli­gious clubs.   The schools would be wise not to fol­low this advice. They are con­sti­tu­tion­ally barred from determing whether a reli­gion is “legit­i­mate,” and pick­ing and choos­ing among reli­gions.  Rather, they can either allow or deny all com­mu­nity groups both sec­u­lar and religious.

This issue is a clear reminder that reli­gious free­dom in Amer­ica is for all faiths and why the Good News deci­sion remains prob­lem­atic.  The intro­duc­tion of orga­nized reli­gious activ­i­ties in pub­lic schools is reli­giously divi­sive and risks reli­gious coer­cion.  For these rea­sons, ADL believes that con­sti­tu­tion­ally– man­dated sep­a­ra­tion of church and state must be most robust in our nation’s pub­lic schools.  Although this belief may be dis­taste­ful to some, this posi­tion is not one of hos­til­ity towards reli­gion.  Rather, it reflects a pro­found respect for reli­gious free­dom and recog­ni­tion of the extra­or­di­nary diver­sity of faiths and reli­gious beliefs rep­re­sented in our nation’s pub­lic schools.

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August 8, 2016 Off

White House Combats Religious Discrimination

On July 22, the White House hosted a Reli­gious Dis­crim­i­na­tion Con­ven­ing – cul­mi­nat­ing six months of com­mu­nity round­ta­bles held across the coun­try to high­light and insti­tu­tion­al­ize strate­gies to address reli­gious dis­crim­i­na­tion.  Con­ven­ing atten­dees heard from a num­ber of fed­eral offi­cials, includ­ing Neil Eggle­ston, White House Coun­sel, Melissa Rogers, Faith-Based Office Exec­u­tive Direc­tor, Jenny Yang, Equal Employ­ment Oppor­tu­nity Com­mis­sion, and Cather­ine Lha­mon, Depart­ment of Edu­ca­tion Assis­tant Sec­re­tary for Civil Rights.

The Anti-Defamation League’s Wash­ing­ton Coun­sel, Michael Lieber­man, rep­re­sented ADL on a panel on Pre­vent­ing Religion-Based Hate Vio­lence and Attacks on Houses of Worship.

(From left to right) John Walsh, US Attorney for Colorado Moderator;  Megan Mack, Department of Homeland Security; Robert Moossy, Department of Justice; Paul Montiero, Department of Justice; Michael Lieberman, Anti-Defamation League; Madihha Ahussain, Muslim Advocates.

(From left to right) John Walsh, US Attor­ney for Col­orado Mod­er­a­tor; Megan Mack, Depart­ment of Home­land Secu­rity; Robert Moossy, Depart­ment of Jus­tice; Paul Mon­tiero, Depart­ment of Jus­tice; Michael Lieber­man, Anti-Defamation League; Madi­hha Ahus­sain, Mus­lim Advocates.

A num­ber of new resources were unveiled at the event, including:

  • The Depart­ment of Jus­tice (DOJ) released an excel­lent new report on religion-based dis­crim­i­na­tion,  The report pre­sented find­ings from com­mu­nity round­ta­bles, includ­ing dis­turb­ing trends of religion-based dis­crim­i­na­tion in edu­ca­tion, employ­ment, hate crimes, and land use.  Impor­tantly, the report made a series of rec­om­men­da­tions to address these issues and includes a com­pre­hen­sive list­ing of fed­eral resources to address reli­gious discrimination.


DOJ has made fight­ing dis­crim­i­na­tion through the enforce­ment of the Reli­gious Land Use and Insti­tu­tion­al­ized Per­sons Act (RLUIPA) a pri­or­ity.  DOJ released an updated report on its enforce­ment of RLIUPA between 2010 and 2016.

  • The Depart­ment of Education’s Office of Civil Rights unveiled a new sec­tion of its web­site devoted to Reli­gious Dis­crim­i­na­tion.  The web­site aggre­gates rel­e­vant resources on bul­ly­ing pre­ven­tion and reli­gious harass­ment.  In 2015–2016, for the first time, every pub­lic school in the nation will report to OCR on the num­ber of religion-based bul­ly­ing or harass­ment inci­dents in schools through the OCR data col­lec­tion tool, Civil Rights Data Col­lec­tion. Though they have col­lected bul­ly­ing infor­ma­tion since 2009, this is the first year they are ask­ing for religious-based data.

In addi­tion, OCR unveiled a revised online com­plaint form to clar­ify when it can inves­ti­gate com­plaints from indi­vid­u­als who believe they have expe­ri­enced racial, eth­nic, or national ori­gin dis­crim­i­na­tion involv­ing their religion.

  • The U.S. Equal Employ­ment Oppor­tu­nity Com­mis­sion (EEOC) announced it will col­lect more pre­cise data about the reli­gion of the indi­vid­ual alleg­ing dis­crim­i­na­tion.  EEOC released released a fact sheet, in Eng­lish and in Span­ish, pri­mar­ily designed for young work­ers to edu­cate them about their rights under the law.

The Obama Admin­is­tra­tion has made address­ing hate crimes and reli­gious dis­crim­i­na­tion a pri­or­ity.  These new resources and pro­gram­matic ini­tia­tives will help pave the way for fur­ther progress.

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