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August 9, 2016

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

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

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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