The Supreme Court:
Religion and the First Amendment
2011-2012 Term
During its 2011-2012 term (from October 3, 2011 to October 1, 2012), the Supreme Court ruled on a controversial case concerning ministerial exceptions to anti-discrimination and anti-harassment laws in the workplace. It declined to hear several other cases involving religion, effectively validating lower court rulings on those cases.
Supreme Court Rulings (2011-2012 Term)
- Religious Organizations Are Exempt from Employment Discrimination Laws
On January 11, 2012, the Supreme Court issued a ruling on the case of Hosanna-Tabor Church v. Equal Employment Opportunity Commission. In this case, the Justices ruled unanimously that churches and other religious organizations are exempt from laws designed to prevent discrimination against employees. This ruling validated a “ministerial exception” to employment laws, thus allowing religious organizations to hire and dismiss ministers, priests, rabbis, imams, and other religious leaders without regard to government policy.
Cases the Supreme Court Declined to Hear (2011-2012 Term)
- A 43-Foot Cross Standing within a Veterans Memorial on Public Lands Amounts to an Unconstitutional Endorsement of a Religion
On June 25, 2012, the Supreme Court declined to review two related court cases, Mount Soledad Memorial Association v. Trunk and United States v. Trunk. The Supreme Court’s refusal to hear these cases leaves in place a 2011 ruling by the U.S. Ninth Circuit Court of Appeals, which held that a 43-foot Christian cross standing as part of a veterans memorial in San Diego violates the First Amendment’s ban on government endorsement of religion.
In a statement accompanying the Supreme Court’s denial of the petition to hear the cases, Justice Samuel Alito emphasized that the final disposition of the cross remains unresolved. In its 2011 ruling, the Ninth Circuit Court remanded the dispute to a U.S. District Court to devise a solution, which could include modifying the cross so that it remains, but does not amount to endorsing a particular religion. Because the federal government, which owns the land on which the memorial rests, could potentially come up with such a solution, the Supreme Court’s refusal to hear the two cases at this time does not resolve the issue.
- A Student's Right to Freedom of Religious-Oriented Speech in School Must Be Balanced Against the Requirement that Schools not Promote Religion
On June 11, 2012, the Supreme Court declined to review two interrelated cases, Morgan v. Swanson and Swanson v. Morgan, concerning the First Amendment rights of school children. By declining to hear the two cases, the Supreme Court let stand a previous ruling by the U.S. Fifth Circuit Court of Appeals. In September 2011, the Appeals Court ruled that the First Amendment’s guarantee of freedom of speech prevented elementary school officials from banning the distribution of religious materials due to their religious content (i.e. non-curricular student speech cannot be discriminated against solely on the basis of its religious content).
However, the Appeals Court also recognized that school officials must balance this right to freedom of speech against the First Amendment’s prohibition against government establishment of religion. In the Appeals Court’s view, the law is not clearly settled on how schools should balance these sometimes competing First Amendment principles. As a result, the school officials in this case were entitled to “qualified immunity,” which protects government employees from being sued for job-related actions that violate the Constitutional rights of others, unless they can reasonably be expected to have known that these actions were unconstitutional.
- Religious Organizations Are Exempt from some Laws Designed to Protect Employees, but not from Sexual Harassment Law Suits
On April 16, 2012, the Supreme Court declined to review the case of Mary Linklater v. the Prince of Peace Lutheran Church, letting stand a 2009 ruling by the Court of Appeals of Maryland. Linklater, the church’s minister for music, claimed the church’s pastor sexually harassed her and, after she complained to church officials, the church retaliated against her. She sued the church both for sexual harassment and for retaliation. The Maryland Appeals Court disallowed her law suit for retaliation on the grounds that religious organizations are shielded from the reach of laws interfering with employment practices. The Appeals Court allowed Linklater’s lawsuit alleging sexual harassment to go forward.
- California School District Can Ban Displays of Religious Statements in the Classroom
On March 26, 2012, the Supreme Court declined to review the case of Johnson vs. Poway Unified School District. This decision leaves in place a previous ruling by the Ninth U.S. Circuit Court of Appeals. The Appeals Court ruled in September 2011 that high school officials could prohibit a teacher from posting banners in his classroom that stated “In God We Trust” and “God Shed His Grace on Thee.”
- Charter School Cannot Sue the State of Idaho for Banning the Use of the Bible in School Curriculum
On March 26, 2012, the Supreme Court declined to review the case of Nampa Classical Academy v. Goesling. In this case, Nampa Classical Academy, a charter school, challenged a decision by the state of Idaho to bar the school from using the Bible as part of its curriculum. The Supreme Court’s decision not to hear the case leaves in place a ruling by the U.S. Ninth Circuit Court of Appeals, which stated that charter schools cannot sue the state because they are state entities (i.e. the state cannot sue itself) and the “curriculum presented in such a school is not the speech of teachers, parents, or students, but that of the Idaho government.”
- First Amendment Shields Religious Organizations from Accountability for Negligent Hiring of Employees Who Sexually Abuse Children
On March 19, 2012, the Supreme Court declined to review the case of John Doe v. Roman Catholic Archdiocese of St. Louis. The Supreme Court’s decision leaves in place a ruling by the Missouri Court of Appeals for the Eastern District, which stated that the Catholic Church could not be held legally accountable for hiring and inadequately supervising a priest who later sexually abused a boy in his parish. The Supreme Court’s decision not to review the case affirms the archdiocese’s claim that the First Amendment shields religious organizations from having their hiring and supervisory practices reviewed by the courts.
- Officially Recognized Collegiate Religious Organizations May Not—in Violation of College Rules—Discriminate on the Basis of Religion
On March 19, 2012, the Supreme Court declined to review the case of Alpha Delta Chi-Delta Chapter v. Reed. This decision leaves in place a ruling by the U.S. Ninth Circuit Court of Appeals, which held that California state universities could prevent officially recognized campus organizations from discriminating on the basis of religion or sexual orientation. A Christian fraternity and sorority unsuccessfully challenged the policy, claiming that—because it prevented them from selecting their members on the basis of religious beliefs—the policy violated their freedom of religion.
- Churches Lose Public School Space
On December 5, 2011, the Supreme Court declined to review the case of Bronx Household of Faith v. New York City Board of Education. This action leaves in place a lower court ruling, from the U.S. Second Circuit Court of Appeals, which stated that an evangelical congregation in New York City could not—in violation of a city regulation—hold religious services in a public school.
- Religious Displays Disallowed on Government Property
On October 31, 2011, the Supreme Court declined to review the case of Utah Highway Patrol Association v. American Atheists, with Justice Clarence Thomas offering a dissenting view in favor of hearing the case. The Court’s decision leaves in place a ruling by the U.S. Tenth Circuit Court of Appeals, which held that placing crosses along Utah highways to honor fallen state troopers violates the First Amendment’s ban on government establishment of religion.
The White House:
Religion and Presidential Initiatives
Within two weeks of taking office, President Obama launched his first major initiative concerning religion with the creation of a White House Office on Faith-based and Neighborhood Partnerships. Four month later, he gave a speech in Egypt in an effort to initiate a new, more cooperative phase in America’s relations with the Muslim world. In the succeeding years, the intersection of religion and policy has been a recurring theme in the Obama White House.
- Promoting Interfaith Partnerships
In February 2009, President Obama signed an executive order creating a White House Office on Faith-based and Neighborhood Partnerships. The office coordinates 12 government agencies to develop partnerships between the government and religious and community groups. The President also established a White House Advisory Council to provide recommendations on how to strengthen such partnerships.
- President Obama’s “New Beginning” with the Muslim World
In June 2009, President Obama addressed an audience of thousands at Cairo University in the Egyptian capital. During his Cairo Speech, carried live throughout much of the Middle East, the President called for “a new beginning between the United States and Muslims around the world, one based on mutual interest and mutual respect.”
- White House Strategy to Counter Violent Extremism
In 2011, the White House released a series of documents outlining its strategy for countering violent extremism and terrorism at home and abroad.
- Interfaith Service Challenge on College Campuses Nationwide:
In March 2011, the White House announced the President’s Interfaith and Community Service Campus Challenge, an initiative to advance interfaith and community service in colleges and universities across the nation.
- Health Insurance and Religious Exemptions
In January 2012, the Obama administration announced that many religious organizations would be required, like their secular counterparts, to offer their employees access to health insurance plans that cover birth control for women. The resulting controversy, pitting many religious organizations against women’s rights advocates and liberal religious groups, continues despite a compromise announced by the White House a few weeks later.
- "Together for Tomorrow" School Improvement Challenge
In February 2012, the White House Office of Faith-Based and Neighborhood Partnerships, in cooperation with the Department of Education and the Corporation for National and Community Service, launched the Together for Tomorrow program. This initiative promotes efforts by faith-based and secular community-improvement groups to strengthen low-performing schools, with a specific focus on measurable improvements in student attendance, behavior, academic performance, and access to college.
Commemorating and Supporting Religion
Congressional Action
112th Congress (2011-2012)
Members of the 112th Congress have introduced several resolutions to recognize or commemorate important religious events and symbols.
Legislation in the House of Representatives:
- H.RES.489:Expressing the sense of the House of Representatives that the symbols and traditions of Christmas should be protected
Sponsor: Representative Doug Lamborn
Introduced on December 7, 2011
- H.RES.439: Recognizing the religious and historical significance of the festival of Diwali
Sponsor: Representative Joseph Crowley
Introduced on October 14, 2011
- H.RES.253:A resolution to affirm the rich spiritual and religious history of our Nation's founding and express support for designation of the first week in May as "America's Spiritual Heritage Week"
Sponsor: Representative Randy Forbes
Introduced on May 5, 2011
- H.CON.RES.38:A resolution to recognize the 400th anniversary of the publication of the King James Version of the Bible
Sponsor: Representative Robert Aderholt
Introduced on April 12, 2011
- H.RES.222:A resolution recognizing the 50th anniversary of the founding of the Religious Action Center of Reform Judaism
Sponsor: Representative Jerrold Nadler
Introduced on April 12, 2011
- H.RES.211:A resolution to express support for designation of the first weekend of May as Ten Commandments Weekend to recognize the significant contributions the Ten Commandments have made in shaping the principles, institutions, and national character of the United States
Sponsor: Representative Louie Gohmert
Introduced on April 7, 2011
- H.CON.RES.13: A resolution to reaffirm "In God We Trust" as the official motto of the United States and encourage the public display of the national motto in all public buildings, public schools, and other government institutions
Sponsor: Representative Randy Forbes
Introduced on January 26, 2011
Passed by the House on November 1, 2011
Referred to the Senate on November 2, 2011
Legislation in the Senate:
- S.RES.518: A resolution congratulating the Southern Baptist Convention for electing Reverend Fred Luter, Jr., as the president of the Convention, acknowledging Reverend Luter's unique role as the first African-American leader of the Convention, and honoring the commitment of the Convention to an inclusive faith-based community and society.
Sponsor: Senator Mary Landrieu
Introduced June 29, 2012
- S.RES.515: A resolution commending the Catholic Sisters for their contributions to the United States.
Sponsor: Senator Barbara Mikulski
Introduced June 28, 2012
- S.RES.505:A resolution congratulating His Holiness Dorje Chang Buddha III and The Honorable Benjamin A. Gilman on being awarded the 2010 World Peace Prize.
Sponsor: Senator Robert Menendez
Introduced June 26, 2012
- S.RES.291: A resolution recognizing the religious and historical significance of the festival of Diwali
Sponsor: Senator Robert Menendez
Introduced October 12, 2011
Information on proposed legislation can be found on the Library of Congress website: http://thomas.loc.gov/home/thomas.php
Protecting Religious Practices
Congressional Action
112th Congress (2011-2012)
Laws and government regulations that impinge–even unintentionally—on the religious practices of individuals inevitably arouse opposition. In 2011, an effort in the city of San Francisco to curtail circumcision of boys, a traditional religious practice among Jews and Muslims, threatened to become a national issue.
In May 2011, activists in the city of San Francisco gathered sufficient signatures from city residents to place on a city-wide ballot a proposed ban on circumcision of boys. The measure offered no exemptions for religious practices.
Proponents of the ban declared that circumcision was a painful and damaging surgery (a form of genital mutilation) conducted on minors, with questionable medical benefits. Opponents of the ban, notably Jewish and Muslim groups, opposed the measure on the grounds that it would infringe upon their right to freely practice their respective religions.
In response to the proposed ban, Representative Brad Sherman (representing California’s 27th- District) introduced the Religious and Parental Rights Defense Act in the U.S. House of Representatives. This bill would prohibit states and their political subdivisions from banning the practice of circumcision.
In July 2011, a judicial ruling declared that medical procedures are regulated by the state, not individual municipalities. As a result, the city of San Francisco removed the proposed ban on circumcision from the ballot. In October 2011, California Governor Jerry Brown signed into law a measure that prohibits California’s local governments from restricting the practice of male circumcision.
If the proposed ban had been approved by San Francisco voters, the city would have become the first municipality in the United States to prohibit circumcision. Resolution of the issue at the state level prevented it, for the time being, from becoming a nationwide controversy.
Legislation introduced in the 112th Congress:
- H.R.2400: Religious and Parental Rights Defense Act of 2011
Sponsor: Representative Brad Sherman
Introduced on June 24, 2011
Summary: Prohibits states and local governments from passing laws or issuing regulations that inhibit the circumcision of males under the age of 18 years, as long as their parent or guardian has consented to the circumcision. The ban does not apply to laws and regulations that are limited to ensuring that all circumcisions are performed in a hygienic manner.
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H.R.1191: Religious Freedom Peace Tax Fund Act of 2011
Sponsor: Representative John Lewis
Introduced on March 17, 2011
Summary: Directs the Secretary of the Treasury to establish a Religious Freedom Peace Tax Fund for the deposit of funds paid by (or on behalf of) taxpayers who have certified in writing that they are conscientious objectors opposed to participation in war in any form based upon their sincerely held moral, ethical, or religious beliefs. Money deposited in the Fund is to be allocated annually to any appropriation not for a military purpose.
Information on proposed legislation can be found on the Library of Congress website: http://thomas.loc.gov/home/thomas.php
Religion and the Military
Congressional Action
112th Congress (2011-2012)
Disagreement over the role of religion in the military has sparked recurring controversy throughout American history. The religious diversification of service members in the last few decades has sharpened many of these issues, from the rights of chaplains to give faith-specific prayers at official events to the rights of service members to wear religious items counter to military dress code. The repeal of the Defense Department’s policy toward homosexuals (“Don’t Ask, Don’t Tell”) has given rise to further divisions.
In the summer of 2012, Members of Congress took Secretary of Defense Leon Panetta to task for Pentagon practices they believed infringed on the religious liberty of service personnel. Sixty-six Members signed a June 19, 2012 letter to the Secretary complaining that the U.S. Air Force had adopted “steps signaling hostility toward religious freedom.” Those steps are outlined in a September 1, 2011 memo issued by General Norton Schwartz, Air Force Chief of Staff, to ensure that commanders did not use their positions to promote their personal religious beliefs to subordinates. Subsequently, 22 Members signed a July 10, 2012 letter to the Secretary protesting a Pentagon decision to revoke permission for B&H Publishing Company to use U.S. military insignia on its Bibles.
Legislation introduced in the 112th Congress:
- H.R.2848: Veterans' Religious Freedom Act
Sponsor: Representative Ted Poe
Introduced September 7, 2011
Summary: Prohibits the Secretary of Veterans Affairs from censoring or limiting the type of religious speech that may be performed at the funeral or memorial service of a veteran on the property of the Department of Veterans Affairs (VA)
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H.R.3828: Military Religious Freedom Protection Act
Sponsor: Representative Tim Huelskamp
Introduced on January 25, 2011
Summary: An Amendment to ensure that the repeal of “Don’t Ask, Don’t Tell” does not infringe upon the free exercise of religion by members of the Armed Forces, including chaplains
Information on proposed legislation can be found on the Library of Congress website: http://thomas.loc.gov/home/thomas.php
Religious Organizations and Political Campaigns
Congressional Action
112th Congress (2011-2012)
In 1954, Congress amended the Internal Revenue Code to prohibit intervention in political campaigns by organizations that are exempt from paying federal income tax, including churches and other religious organizations. If such organizations engage in political campaigning, their tax-exempt status can be revoked. This prohibition has sparked strong objections from some who claim that it is, in effect, an abridgement of their right to freedom of speech.
Legislation introduced in the 112th Congress:
Information on proposed legislation can be found on the Library of Congress website: http://thomas.loc.gov/home/thomas.php
Religion’s Place in Public Schools
Congressional Action
112th Congress (2011-2012)
The place of religion in public schools has been a recurring and often divisive issue in America's history. The landmark Supreme Court ruling Engel v. Vitale curtailed prayer in school as a violation of the “Establishment Clause” of the First Amendment. Controversy over this and subsequent Court rulings, including efforts to overturn them by amending the Constitution, has been a consistent factor in Congress since then.
Legislation in the House of Representatives:
- H.J.RES.27: Proposing an amendment to the Constitution restoring religious freedom
Sponsor: Representative Cliff Stearns
Introduced on February 14, 2011
Summary: Prohibits: (1) infringement of the right to pray and recognize religious beliefs, heritage, or traditions on public property, including schools; and (2) government from requiring any person to join in religious activity, initiate or designate school prayers, discriminate against religion, or deny equal access to a benefit on account of religion.
Legislation in the Senate:
Information on proposed legislation can be found on the Library of Congress website: http://thomas.loc.gov/home/thomas.php
Promoting Religious Freedom Abroad
Congressional Action
112th Congress (2011-2012)
More than a decade ago, Congress enacted legislation that established much of the governmental architecture through which the United States promotes religious freedom abroad. The 112th Congress has been deeply involved in the activities of the institutions created by this legislation.
In 1998, the House of Representatives and the Senate passed, both by unanimous vote, the International Religious Freedom Act, which President Bill Clinton signed into law. This law required the State Department to create an Office of International Religious Freedom and to issue an annual report on the state of religious freedom around the world. The Ambassador at Large for International Religious Freedom, who heads the office, also serves as principal advisor to the President and the Secretary of State on issues of international religious freedom.
The International Religious Freedom Act also created the United States Commission on International Religious Freedom. The Commission acts as an independent agency, outside of government, that monitors violations of religious freedom around the world and makes policy recommendations to the President and Congress.
In 2004, Congress passed the Global Anti-Semitism Review Act, which President George W. Bush signed into law. This law created within the State Department the new post of Special Envoy to Monitor and Combat Anti-Semitism.
Hearings in the 112th Congress:
- Organ Harvesting of Religious and Political Dissidents by the Chinese Communist Party
House Committee on Foreign Affairs
Subcommittee on Oversight and Investigations
Subcommittee on Africa, Global Health, and Human Rights
September 12, 2012
- The 2011 International Religious Freedom Report
House Committee on Foreign Affairs
Subcommittee on Africa, Global Health, Human Rights
November 17, 2011
- Prioritizing International Religious Freedom in U.S. Foreign Policy
House Committee on Foreign Affairs
Subcommittee on Africa, Global Health, Human Rights
June 3, 2011
- Religious Freedom, Democracy, and Human Rights in Asia
House Committee on Foreign Affairs
June 2, 2011
Legislation in the House of Representatives:
- H.RES.506: An Act to urge the Government of Turkey to facilitate the reopening of the Ecumenical Patriarchate's Theological School of Halki
Sponsor: Representative Gus Bilirakis
Introduced on December 20, 2011
- H.R.3557: Religious Worker Visa Reciprocity Act of 2011
Sponsor: Representative Steve King
Introduced on December 2, 2011
- H.RES.459: An Act to encourage any new government convened in Egypt to fully allow for the freedom of religion
Sponsor: Representative Robert Aderholt
Introduced on November 4, 2011
- H.RES.387: An Act to condemn the extremist violence, lack of religious freedom, and human rights violations committed against Kashmiri Pandits since 1989
Sponsor: Representative Frank Pallone, Jr.
Introduced on August 1, 2011
- H.RES.306: Urging the Republic of Turkey to safeguard its Christian heritage and to return confiscated church properties
Sponsor: Representative Edward Royce
Introduced on June 15, 2011
Passed the House by voice vote on December 12, 2011
- H.R.1856: International Religious Freedom Act Amendments of 2011
Sponsor: Representative Frank Wolf
Introduced on May 11, 2011
- H.RES.180: An Act to urge Turkey to respect the rights and religious freedoms of the Ecumenical Patriarchate
Sponsor: Representative Carolyn Maloney
Introduced on March 17, 2011
- H.RES.134: An Act to condemn the Government of Iran for its state-sponsored persecution of its Baha'i minority and its continued violation of the International Covenants on Human Rights
Sponsor: Representative Robert Dold
Introduced on March 1, 2011
- H.R.554: Freedom Trade Act
Sponsor: Representative Thaddeus McCotter
Introduced on February 8, 2011
[Religious provisions of the bill: Impose restrictions on imports from any foreign country that violates the rights of its citizens to freedom of religion]
- H.R.440: An Act to create a Special Envoy to Promote Religious Freedom of Religious Minorities in the Near East and South Central Asia
Sponsor: Representative Frank Wolf
Introduced on January 25, 2011
- H.RES.16: An Act to designate the Socialist Republic of Vietnam as a "Country of Particular Concern" with respect to religious freedom
Sponsor: Representative Edward Royce
Introduced on January 5, 2011
Legislation in the Senate:
- S.RES.392: A resolution urging the Republic of Turkey to safeguard its Christian heritage and to return confiscated church properties
Sponsor: Senator Scott Brown
Introduced on March 8, 2012
- S.RES.385: A resolution condemning the Government of Iran for its continued persecution, imprisonment, and sentencing of Youcef Nadarkhani on the charge of apostasy
Sponsor: Senator David Vitter
Introduced on March 1, 2012
- S.RES.232: A resolution recognizing the continued persecution of Falun Gong practitioners in China
Sponsor: Senator Robert Menendez
Introduced on July 13, 2011
- S.1245: Near East and South Central Asia Religious Freedom Act of 2011
Sponsor: Senator Roy Blunt
Introduced on June 22, 2011
- S.RES.196: A resolution calling upon the Government of Turkey to facilitate the reopening of the Ecumenical Patriarchate's Theological School of Halki
Sponsor: Senator Benjamin Cardin
Introduced on May 24, 2011
- S.RES.150: A resolution calling for the protection of religious minority rights and freedoms in the Arab world
Sponsor: Senator James Inhofe
Introduced on April 14, 2011
- S.RES.80: A resolution condemning the Government of Iran for its state-sponsored persecution of its Baha'i minority
Sponsor: Senator Mark Steven Kirk
Introduced on March 1, 2011
Information on proposed legislation can be found on the Library of Congress website: http://thomas.loc.gov/home/thomas.php
The Supreme Court:
Religion and the First Amendment
2012-2013 Term
As the nation’s last court of appeal, the Supreme Court of the United States reviews annually as many as 150 lower courts decisions. Cases concerning religion and the relationship between Church and State are consistently among the most contentious. The Supreme Court’s 2011-2012 term was no exception.
Each term of the Supreme Court begins on the first Monday of October and ends on the first Monday of October the following year. During the Court’s 2012-2013 term, CSPC will report on all Supreme Court decisions regarding religion in the public sphere as they arise.
Hate Crimes
Congressional Action
112th Congress (2011-2012)
Hate crimes are defined by federal law as criminal acts motived by the assailants’ prejudice against the victims’ religion, race, ethnicity, disability, gender, or sexual orientation. Congress passed the first hate crimes law as part of the Civil Rights Act of 1968 (also known as the Fair Housing Act).
Since then, Congress has passed a number of hate crime laws that include provisions designed to counter violence or intimidation based on the victims’ religion. The most notable of these are:
Legislation introduced in the 112th Congress:
- H.RES.283: Expressing the sense of the House of Representatives that the Federal Government should take steps to counter the growth in anti-Muslim sentiments, targeted rhetorical attacks, and violence against the Muslim, Arab, Sikh, and South Asian American communities.
Sponsor: Representative John Conyers, Jr.
Introduced on May 26, 2011
- H.R.221: Noose Hate Crime Act of 2011
Sponsor: Representative Sheila Jackson Lee
Introduced on January 7, 2011
- H.R.224: David Ray Hate Crimes Prevention Act of 2011
Sponsor: Representative Sheila Jackson Lee
Introduced on January 7, 2011
Information on proposed legislation can be found on the Library of Congress website: http://thomas.loc.gov/home/thomas.php
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