Office of General Counsel, Baptist Joint Committee
Overview of Current Issues

Legislation

Charitable Choice and the “Faith- Based Initiative”

We continue to monitor the various aspects of the so-called “faith-based initiative,” much of which involves the expansion of “charitable choice.” “Charitable choice” is a specific legal provision designed to allow houses of worship and other pervasively religious organizations to receive tax money to conduct social ministries. The Baptist Joint Committee’s position on such proposals was the subject of a 1996 BJC Board resolution that condemned using tax dollars to support the work of pervasively religious organizations. However, the resolution also noted: “There is a place for religious organizations in delivering welfare services with public funds. But it should be done through separately incorporated affiliates that do not engage in religious education, proselytizing or discrimination.”

The first “charitable choice” provision was codified in the welfare reform law enacted in 1996. Since then, “charitable choice” has been included in dozens of bills and has become law in three additional places: Health and Human Services Reauthorization Act of 1998, Substance Abuse and Mental Health Services Act of 2000, and the Community Renewal and New Markets Act of 2000. We also continue to monitor executive actions. On December 12, 2002, President Bush signed far-reaching executive orders that created two more faith-based federal agencies and broadly implemented the most contentious parts of the proposed faith-based legislation that never made it to the floor of the Senate. The executive orders require “equal treatment” for religious organizations in the funding process.

As with most of our legislative efforts, we continue to work in coalition to oppose charitable choice legislation. We are an active participant in the Coalition Against Religious Discrimination. This coalition includes numerous religious and civil liberties groups, as well as a variety of unions, education organizations, professional organizations and other interest groups that have united opposition around the particular part of “charitable choice” that supports government- funded employment discrimination based on religion and religious belief.

The first bill containing such religious discrimination language in this Congress, the Job Training Improvement Act, passed the house the first week in March. There was strong resistance to the legislation. An amendment to remove the language was offered by Bobby Scott of Virginia which led to a long and vigorous debate. Such a strong debate and such resistance will hopefully make the Senate hesitant to include the religious discrimination language in their version of the bill. We have already begun to work in coalition to educate Senate offices about the negative implications of the House bill.

Court-Stripping Bills

We continue to oppose any legislation that seeks to strip the federal courts of their jurisdiction to hear religious liberty cases. The existence of an independent judiciary, free from political or public pressure, has been essential to our nation’s success in protecting religious liberty for all Americans. The role of the federal courts has long been recognized as essential in the battle for full religious liberty.

One example of such legislation, the Pledge Protection Act (H.R. 2028) passed the House by a 247-173 vote to block federal lawsuits involving the Pledge of Allegiance. This bill purported to bar federal jurisdiction to decide not only controversy surrounding the words “under God” in the pledge, but would have also swept more broadly to deprive the federal courts of jurisdiction to adjudicate issues where actual coercion was involved. The bill was never taken up by the Senate.

Two other court-stripping measures were introduced in the previous Congress, the Constitution Restoration Act and the Religious Liberties Restoration Act. Both bills sought to limit challenges to state sponsored religious preference. They sought to protect state officials’ “acknowledgement of God as a sovereign source of law, liberty, or government,” and limit court’s ability to hear matters related to state-sponsored Ten Commandments displays, the word “God” in the Pledge of Allegiance, and the motto “In God We Trust.” Neither of these bills was voted on by the House.

Church Electioneering Law

On January 4, 2005 Representative Walter Jones (R-NC) once again introduced legislation that would allow houses of worship to participate in political campaigns. The Houses of Worship Free Speech Restoration Act (H.R. 235) seeks to amend the Internal Revenue Code of 1986, section 508(c)(1)(A), which prohibits nonprofit organizations from directly supporting or opposing candidates. The current bill, which has yet to garner any co-sponsors, would permit houses of worship, including religious affiliates, religious auxiliaries, and conventions, to endorse or oppose political candidates, while maintaining their tax-exempt status. Such activity would be allowed at religious services, and gatherings. Sponsors of the new bill claim that it does not have the same financial campaign implications as the previous version. The bill does not address the possibility of broadcasting worship services and gatherings or the mass mailing of sermons, which could constitute electioneering. The bill was immediately referred to the House Committee on Ways and Means.

In previous Congresses, Rep. Jones has introduced similar legislation, including the Houses of Worship Political Speech Protection Act (H.R. 2357). It was not reported out of the House Ways and Means Subcommittee on Oversight after a hearing. H.R. 2357 was brought to a floor vote under suspension of the rules on October 2, 2002. The procedure required a two-thirds majority for passage. The bill was soundly defeated by a vote of 178-239, failing to meet even a simple majority.

Workplace Religious Freedom Act

We continue to participate in a coalition dedicated to promoting the Workplace Religious Freedom Act (WRFA). WRFA has yet to be introduced in the current congress but is expected to be reintroduced sometime in the near future. In the past bipartisan sponsors included senators Rick Santorum (R-Pa.) and John Kerry (D-Mass.) and it was cosponsored by a bipartisan group of 23 additional senators, including Orrin Hatch (R-Utah) and Hillary Rodham Clinton (D-N.Y.)

The bill would amend and strengthen the prohibition against religious discrimination in Title VII of the Civil Rights Act of 1964. WRFA requires employers to accommodate the religious practices of their employees, such as the wearing of religious garb or allowing time off for religious holidays, unless doing so would cause an “undue hardship.” This legislation clarifies the definition of “undue hardship,” to take into account the amount of difficulty or expense to the employer. Under current judicial interpretation of Title VII’s provision, employers need only show a de minimis burden to refuse to accommodate religious practices.

Litigation

I. Religious Land Use and Institutionalized Person’s Act of 2000 Litigation

Cutter v. Wilkenson, U.S. Supreme Court

In December the Baptist Joint Committee, as a leading member of the Coalition for the Free Exercise of Religion (CFER), submitted an amicus brief on behalf of petitioner, Jon Cutter, supporting the constitutionality of the Religious Land Use and Institutionalized Person’s Act (RLUIPA). The coalition includes over 50 religious and civil liberties organizations that represent almost every major faith group in America, spanning the full spectrum of religious diversity— Buddhists, Christians, Hindus, Jews, Muslims, Native Americans, and Sikhs. The BJC helped to pass RLUIPA in part to help protect the free exercise rights of religious prisoners. The current case involves the refusal of an Ohio prison to accommodate the religious practices of the plaintiff. A lower court ruled that RLUIPA amounts to an unconstitutional advancement of religion by the government which violates the establishment clause and excessively entangles the state with religion. The CFER coalition brief argues instead that RLUIPA is constitutional and is necessary to avoid interference with prisoner’s free exercise rights.

II. Ten Commandments Cases

Van Orden v. Perry

On March 2, the Supreme Court heard oral arguments in two cases involving the Ten Commandments. The Texas case involves a challenge to a six foot by three foot granite monument on the capitol grounds in Austin. The BJC filed amicus briefs in both the Texas and Kentucky case written with Professor Doug Laycock. The brief in the Texas case states that when government displays a sacred text, it must be presumed to endorse that text. This presumption should be rebuttable only by equally prominent evidence at the site of the display that objectively negates the appearance of endorsement. Such a presumption is implicit in this Court’s earlier cases and it should be made explicit here in this case. The lower courts’ failure to insist on clear and objective evidence has led to much litigation over attenuated claims of secular purposes and secular effects for displays that are clearly religious. The result is a persistent pattern of high-profile litigation in which government desacralizes sacred texts, distorting and undermining the text’s religious meaning in its effort to demonstrate secular meanings.

The secular view that the Ten Commandments exercised “extraordinary influence” on American law is to wrap a kernel of truth in such a vast overstatement as to demonstrate that the statement is a pretext to justify displaying the Commandments. The provisions of American law do not trace in any significant way to the Ten Commandments. Penalties for murder, theft, perjury, and defamation tend to appear early in the development of all legal systems, including those of ancient civilizations with no reliance on the Jewish scriptures.

McCreary County v. ACLU of Kentucky

In the Kentucky brief, the BJC incorporated the ideas expressed in the Texas brief and applied them to the facts scenario in McCreary County. In this case the county first displayed only a framed copy of the Commandments in the courthouse. They then attempted several times to fix this constitutional violation and finally ended up with the Commandments surrounded by other legal documents central to American law with a statement which claimed that “the Ten Commandments have profoundly influenced the formation of Western legal thought and the formation of our country…and the moral background of the Declaration of Independence and the foundation of our legal tradition.” The BJC brief states that the counties’ claims about the importance of the Commandments in American law and in the foundation of the country are endorsements both of the Commandments and of a particular, secularized view of the Commandments. We believe these claims are objectively inaccurate, but it is enough that they are controversial and that they concern a sacred text. Our brief argues that restricting government endorsements of religion, and requiring a clear, secular message to rebut the presumption of endorsement, is not hostile to religion. Rather, it protects each religious tradition from government-sponsored competition. When government attempts to rationalize its display of sacred texts by claiming secular purposes and secular effects, the inevitable tendency is to distort and desacralize the sacred text. Excluding the government from endorsing controversial propositions about sacred texts protects the liberty of each faith tradition to interpret its own sacred texts and to promote its own religious understandings.

An opinion in both of the above cases is expected by the end of June.

III. Voucher Litigation

Bush v. Holmes

The BJC filed an amicus brief on behalf of Holmes, asking the Florida Supreme Court to uphold the no-aid provision in their state constitution and find the voucher system unconstitutional. This case is very important because the Florida constitution contains what is known as a Blaine Amendment. This type of amendment appears in many state constitutions and it contains a much stricter no-aid provision and greater protection for religious liberty then is present even in the First Amendment. The proponents of the voucher system argue that the Blaine amendments were the result of anti-catholic sentiment or hostility towards religion. The BJC brief argues instead that the legal rule against public funding of religious instruction and worship is based on notions of religious liberty and rights of conscience that arose in the struggle for independence and in the founding of the national and state governments. As early as the 1770s, Thomas Jefferson and James Madison were equating government financial support for religion with infringements on religious liberty and rights of conscience. The no-funding principal was also developed in order to support the establishment of a strong and efficient public school system for all, not in order to harm religious schools. The outcome of this case could influence the interpretation of Blaine amendments nationwide.

IV. Other Cases

HEB Ministries, Inc., et al., Petitioners vs. Texas Higher Education Coordinating Board, et al., Respondents (S.C. Texas, 2004)

On January 5, 2005 the Supreme Court of Texas heard oral arguments in the above case which we also joined the Christian Legal Society filing a brief as amici curiae. Douglas Laycock and Eric Cernyar, Counsels of Record, wrote the brief supporting the Petitioners, HEB Ministries and Tyndale Theological Seminary.

In July 1998, the Texas Higher Education Coordinating Board informed Tyndale that it was in violation of the education code because the institution had conferred degrees without obtaining a certificate of authority from the state or accreditation from a state-approved agency, as well as for using the term “seminary” in the official name of the institution without obtaining a certificate of authority or accreditation from a state-approved agency. Tyndale is, however, accredited by the Association of Christian Colleges & Theological Schools, which is not a state-approved accreditation agency. The Higher Education Coordinating Board fined the school $173,000. HEB Ministries objected to the fine and filed suit. In July 2003, the Court of Appeals in Austin ruled for the state and the case has been appealed to the Texas Supreme Court.

This case challenges the constitutionality of the Texas Education Code section which gives the Higher Education Coordinating Board the authority to license religious training institutions. The BJC brief argues that the state has no power to license clergy, and therefore no power to license the training of clergy. State accreditation of theology schools and seminaries is unconstitutional, because it puts the state in the business of evaluating religious education. The brief is based upon the idea that the church-clergy relationship is not the business of government.

April 2005