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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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March 1, 2016 2

Alito Got It Right In Jewish Inmate Case

Yes­ter­day, the U.S. Supreme Court refused to review a trou­bling lower court deci­sion involv­ing the reli­gious lib­erty rights of an obser­vant Jew­ish inmate from North Car­olina.  In a pow­er­ful dis­sent, Jus­tice Alito pointed out why the lower court was wrong and his fel­low Jus­tices should have taken up the case.supreme-court

Israel Ben-Levi claimed that the North Car­olina Depart­ment of Pub­lic Safety (NCDPS) vio­lated his rights under the Free Exer­cise Clause and Reli­gious Land Use and Insti­tu­tion­al­ized Per­sons Act (RLUIPA) by deny­ing his request to study Torah with two other Jew­ish inmates.  In reject­ing his request, NCDPS asserted that the inmate mis­un­der­stood his own faith.  For a group to study Torah, NCDPS claimed, there must be ten Jew­ish men – a minyan – or qual­i­fied Jew­ish leader such as Rabbi.  The lower court agreed with this argu­ment and also found Mr. Ben-Levi was not sub­ject to future harm because he had been trans­ferred to a prison with a Rabbi.

Jus­tice Alito’s dis­sent cor­rectly pointed out that this deci­sion was dis­crim­i­na­tory “[b]ecause NCDPS’s pol­icy rests on its under­stand­ing of Jew­ish doc­trine, the pol­icy does not apply to other reli­gions.”  Fur­ther­more, it vio­lates long­stand­ing First Amend­ment case law against gov­ern­ment inter­pret­ing reli­gious doctrine:

[F]ederal courts have no war­rant to eval­u­ate  “the valid­ity of [Ben-Levi’s] inter­pre­ta­tions.” … By ignor­ing Ben-Levi’s actual beliefs and focus­ing solely on NCDPS’s under­stand­ing of Judaism, respon­dent and the courts below con­sid­ered the wrong question.  

Although the Supreme Court’s rejec­tion of the case does not approve of the lower court deci­sion, we could not agree more with Jus­tice Alito that “the Court’s indif­fer­ence to this dis­crim­i­na­tory infringe­ment of reli­gious lib­erty is disappointing.”

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November 10, 2015 Off

Supreme Court to Hear Second Contraception Mandate Challenge

Last week, the U.S. Supreme Court agreed to hear a sec­ond chal­lenge to the Afford­able Care Act’s (“ACA”) con­tra­cep­tion man­date.   This time, mul­ti­ple religiously-affiliated groups are claim­ing that the law’s min­i­mal require­ments for opt­ing out of the man­date vio­late their reli­gious free­dom rights.  Fol­low­ing its own recent prece­dent, the Court should reject these claims.

The ACA requires employer-provided health insur­ance to cover all FDA– approved pre­scrip­tion con­tra­cep­tion at no cost to employ­ees.  Houses of wor­ship and other sec­tar­ian insti­tu­tions are wholly exempted from this require­ment.  Religiously-affiliated orga­ni­za­tions may opt out of the con­tra­cep­tive man­date by merely sub­mit­ting a one-page form or let­ter to the Depart­ment of Health and Human Ser­vices (“HHS”).  In that cir­cum­stance, the health insur­ance com­pany or a third-party admin­is­tra­tor pays for and admin­is­ters the coverage.


Supreme CourtDespite this nom­i­nal require­ment, a num­ber of religiously-affiliated groups filed law­suits claim­ing that this reli­gious accom­mo­da­tion pro­vi­sion “sub­stan­tially bur­dens” their reli­gious exer­cise in vio­la­tion of fed­eral Reli­gious Free­dom Restora­tion Act (“RFRA”) because it makes them “con­duits” for pro­vid­ing con­tra­cep­tion cov­er­age.   Last week, the U.S. Supreme Court agreed to hear seven of these cases in one con­sol­i­dated appeal.

Seven of eight U.S. Courts Appeals (lower fed­eral courts) have already rejected such claims, includ­ing the influ­en­tial D.C. Cir­cuit.  It found that the fil­ing of the form or let­ter excuses plain­tiffs “… from play­ing any role in the pro­vi­sion of con­tra­cep­tion ser­vices, and they remain free to con­demn con­tra­cep­tion in the clear­est terms.”  The Court fur­ther deter­mined that the ACA  — not the opt-out notice – oblig­ates health insur­ance com­pa­nies or HHS through third-party admin­is­tra­tors to pro­vide con­tra­cep­tion cov­er­age.  As a result, it cor­rectly con­cluded that:

Reli­gious objec­tors do not suf­fer sub­stan­tial bur­dens under RFRA where the only harm to them is that they sin­cerely feel aggrieved by their inabil­ity to pre­vent what other peo­ple do to ful­fill reg­u­la­tory objec­tives after they opt out.  They have no RFRA right to be free from the unease, or even anguish, of know­ing that third par­ties are legally priv­i­leged or oblig­ated to act in ways their reli­gion abhors.

Although these seven deci­sions should per­suade the U.S. Supreme Court, they are not bind­ing.  But lan­guage in the Court’s own highly prob­lem­atic June 2015 Hobby Lobby deci­sion should dic­tate the out­come this time.  In Hobby Lobby, the Court reached the trou­bling con­clu­sion that for the pur­poses of RFRA it could not dis­tin­guish between a for-profit close cor­po­ra­tion ver­sus a religiously-affiliated group hav­ing a reli­gious objec­tion to the con­tra­cep­tion man­date.  As a result, it ruled that like non-profit religiously-affiliated groups, such close cor­po­ra­tions could opt out of pro­vid­ing con­tra­cep­tion cov­er­age under the man­date.  The Court, how­ever, effec­tively ruled that the opt-out pro­vi­sion was per­mis­si­ble under RFRA, stat­ing that it “… con­sti­tutes an alter­na­tive that achieves all the Government’s aims while pro­vid­ing greater respect for reli­gious liberty.”

Although ADL and oth­ers strongly dis­agreed with the Court apply­ing RFRA to for-profit cor­po­ra­tions by equat­ing them with non-profits, con­sis­tency would dic­tate that it reject religiously-affiliated groups’ chal­lenges to the opt-out pro­vi­sion.  To do oth­er­wise would be con­tra­dic­tory and mean that any bur­den on reli­gion — no mat­ter how triv­ial — could be used by religiously-affiliated groups as a vehi­cle to opt out of fed­eral law or impose their reli­gious beliefs on others.

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