Bostock v. Clayton County, Georgia US Supreme Court No 17-1618 JUNE 15, 2020
On June 15, in the consolidated cases R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission (EEOC), Altitude Express v. Zarda, and Bostock v. Clayton County, Georgia, the U.S. Supreme Court resolved once and for all a split among federal appeals courts, holding that Title VII’s prohibition of employment discrimination based on sex extends to employees discriminated against on the basis of sexual orientation and gender identity.
While the court has found within the religious clauses of the First Amendment both a freedom to believe and a freedom to act, it has also found that the former is absolute while the latter is not. (Reynolds v. U.S., 98 U.S. 145 (1978).)” What this means is that when a group makes its beliefs and programs a basis for seeking tax exemption, the IRS “has an obligation to inquire whether such preferences should appropriately be extended to such group.”
Janus V. American Federation Of State, County, And Municipal Employees, Council 31, Et Al. No. 16-1466 (June 27, 2018)
The US Supreme Court overruled Abood, holding that the First Amendment prohibits the government from forcing public employees to join or contribute to a public-employee union. The Court’s decision is perhaps the strongest to date for the principle that government cannot require an individual to fund speech to which he/she objects.
National Institute Of Family And Life Advocates V. Becerra, Attorney General Of California, Et Al No 16-1140 (June 26, 2018)
The U.S. Supreme Court held that the California law that required all nonprofit pregnancy centers to post notices informing women where they could obtain government-subsidized abortions violated the First Amendment’s prohibition on compelled speech.
Masterpiece Cakeshop, Ltd., Et Al. V. Colorado Civil Rights Commission Et Al. No. 16-111 (June 4, 2018)
Masterpiece Cakeshop, Ltd., is a Colorado bakery owned and operated by Jack Phillips, an expert baker and devout Christian. In 2012 he told a same-sex couple that he would not create a cake for their wedding celebration because of his religious opposition to same-sex marriages–marriages that Colorado did not then recognize–but that he would sell them other baked goods, e.g., birthday cakes. The couple filed a charge with the Colorado Civil Rights Commission (Commission) pursuant to the Colorado Anti-Discrimination Act (CADA), which prohibits, as relevant here, discrimination based on sexual orientation in a “place of business engaged in any sales to the public and any place offering services . . . to the public.”
The laws and the Constitution can, and in some instances must, protect gay persons and gay couples in the exercise of their civil rights, but religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression. See Obergefell v. Hodges, 576 U. S. ___, ___. The Commission’s actions in this case violated the Free Exercise Clause.
Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. (June 26, 2017)
The U.S. Supreme Court held that the First Amendment free exercise rights of Trinity Lutheran Church were violated when the state of Missouri denied the church’s Child Learning Center a grant for resurfacing of its playground with scrap tire material. The state had relied on Missouri Constitution’s Blaine Amendment which prohibits financial assistance directly to any church. In his opinion for the Court, Roberts said in part: “In recent years, when this Court has rejected free exercise challenges, the laws in question have been neutral and generally applicable without regard to religion. We have been careful to distinguish such laws from those that single out the religious for disfavored treatment”…,
“Trinity Lutheran is not claiming any entitlement to a subsidy. It instead asserts a right to participate in a government benefit program without having to disavow its religious character…. Trinity Lutheran is a member of the community too, and the State’s decision to exclude it for purposes of this public program must withstand the strictest scrutiny”…
Pavan v. Smith, 582 U.S. (June 26, 2017)
The U.S. Supreme Court granted certiorariand summarily (i.e. without further briefing or oral argument) reversed a decision of the Arkansas Supreme Court on the rights of same-sex married couples. The Supreme Court held that “Obergefell’s commitment to provide same-sex couples ‘the constellation of benefits that the States have linked to marriage'” means that the state must apply the same rules to same-sex and opposite-sex married couples in the issuance of birth certificates. Under Arkansas law, the male spouse of a woman who gives birth appeared on a birth certificate, but the female spouse of a woman who gives birth did not. The Supreme Court struck this differentiation down, saying that in Arkansas birth certificates are more than just a marker of biological parentage.
Obergefell v. Hodges, 576 U.S. ___ (2015)
The Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state. The U.S. Supreme Court held in a 5–4 decision that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Decided June 26, 2015.
Reed v. Town of Gilbert, No. 13-502, 576 U.S. ___ (2015)
The United States Supreme Court held 9-0 that a city code subjecting signs to different regulations depending on whether the sign displayed an ideological message, a political message, or directed people to a church service, was unconstitutional. This landmark ruling means that the government must treat religious speech the same as political speech. Cities can’t treat churches as second-class citizens.
The provisions of a municipality’s sign code that impose more stringent restrictions on signs directing the public to the meeting of a non-profit group than on signs conveying other messages are content-based regulations of speech that cannot survive strict scrutiny. Decided June 18, 2015.
Burwell v. Hobby Lobby, 573 U.S. (2014).
The U.S. Supreme Court ruled that requiring family-owned corporations to pay for insurance coverage for contraception under the Affordable Care Act violates the Religious Freedom Restoration Act. The decision has broad implications.
The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U. S. C. §§2000bb–1(a), (b).
“A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statu-tory, are extended to corporations, the purpose is to protect the rights of these people…..protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.”
“It is not for the Court to say that the religious beliefs of the plaintiffs are mistaken or unreasonable. In fact, this Court considered and rejected a nearly identical argument in Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707. The Court’s “narrow function . . . is to determine” whether the plaintiffs’ asserted religious belief reflects “an honest conviction,” id., at 716, and there is no dispute here that it does. Tilton v. Richardson, 403 U. S. 672, 689; and Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236, 248–249, distinguished. Pp. 35–38.”
HOSANNA-TABOR EVANGELICAL LUTHERANCHURCH AND SCHOOL v. EQUAL EMPLOYMENTOPPORTUNITY COMMISSION No. 10–553. (2012)
The US Supreme Court unanimously concluded that religious organizations have the authority to resolve disputes internally and that a church must be free to appoint or dismiss ministers or employees in order to exercise the religious liberty that the First Amendment guarantees.
Gonzales v O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006)
Our US Supreme Court stated “Con¬gress recognized that “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise,” and legislated “the compelling interest test” as the means for the courts to “strik[e] sensible balances between religious liberty and competing prior governmental interests.” 42 U. S. C.
Kaufman v. McCaughtry, 419 F.3d 678 (7th Cir.2005)
Atheism is an Establishment Clause Religion – Atheists are entitled to have “church” in prison.
Branch Ministries v. Rossotti, 211 F.3d 137 (D.C. Cir. 2000)
“The Internal Revenue Code treats churches differently from other tax-exempt organizations. While a church may file for Section 501(c)(3) status, it is not required to do so in order to be tax-exempt. A church may simply hold itself out as a church and claim tax-exempt status pursuant to Section 508(c). See 26 U.S.C. § 508(c) (“New organizations must notify Secretary that they are applying for recognition of section 501(c)(3) status,” but that requirement “shall not apply to churches, their integrated auxiliaries, and conventions or associations of churches”). A person who contributes to a church claiming tax-exempt status pursuant to Section 508(c) may deduct that contribution from his or her income, but if the contributor is audited, he or she has the burden of establishing that the church in fact meets the qualifications of a Section 501(c)(3) organization. In other words, because the church has not previously been determined by the IRS to have met the Section 501(c)(3) criteria, there is no presumption that the church is tax-exempt under Section 501(c)(3).”
Rigdon v. Perry,962 F. Supp. 150 (D.D.C. 1997)
The State cannot interfere with the rights of religious leaders to preach from the pulpit on political issues even if those ministers are in the military. This case was a result of two military chaplain who sued the Pentagon over its gag order that barred military chaplains from preaching about legislation during sermons.
Captiol Square Review and Advisory Board v. Pinette, 515 U.S. 753, 761 (1995)
“Anglo-American history, at least, government supression of speech has so commonly been directed precisely at religious speech that a free-speech clause without religion would be Hamlet without the prince.”
Lee v. Weisman, 505 U.S. 577 (1992)
Either belief or disbelief in God is an impermissible religious orthodoxy: “[A] nonpreferentialist who would condemn subjecting public school graduates to, say, the Anglican liturgy would still need to explain why the government’s preference for theistic over nontheistic religion is constitutional.” The “settled law” is that the “Clause applies ‘to each of us, be he Jew or Agnostic, Christian or Atheist, Buddhist or Freethinker’”
Hernandez v. Comm’r, 490 U.S. 680, 689-91, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989) “Quid pro quo” payments, where the taxpayer receives a benefit in exchange for the payment, are generally not deductible as charitable contributions. In Hernandez, the Supreme Court considered “whether taxpayers may deduct as charitable contributions payments made to branch churches of the Church of Scientology” in return for services known as “auditing” and “training.” 490 U.S. at 684, 109 S.Ct. 2136. The Court held that such payments for religious educational services “do not qualify as ‘contribution[s] or gift[s]
Smith v. Board, 827 F.2d 684 (11th Cir. 1987); reversed on other grounds, 827 F.2d 684 (11th Cir. 1987)
Religion is a set of beliefs about the cause, nature and purpose of life. Analysis showing Secular Humanism a religion not reversed.
Bob Jones University v. United States, 461 U.S. 574, 603 (1983)
The Supreme Court held that “not all burdens on religion are unconstitutional…. The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding government interest.” A 501(c)(3) church may lose its tax exempt status and face other penalties , if it supports or opposes any candidate.
U.S. v. Sun Myung Moon 718 F.2d 1210 (2nd Cir, 1983);
& United States V. Meyers, 95 F.3d 1475, (10th Cir 1996)
The Second and Tenth Circuits embrace a broad definition of religion.
St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 782 n.12 (1981)
The US Supreme Court stated “the great diversity in church structure and organization among religious groups in this country . . . makes it impossible, as Congress perceived, to lay down a single rule to govern all church-related organizations.
Malnak v. Yogi, 592 F.2d 197 (3rd Cir 1979)
The meaning of “religion” is functional and means the same in the EC and FEC. Non-theistic religions like transcendental meditation may not be taught in public schools in the guise of “science.” “It seems unavoidable, from Seeger, Welsh, and Torcaso, that the theistic formulation presumed to be applicable … is no longer sustainable.” “First, a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters.” A diet regime is not a subject matter of religion [ Africa v. Commonwealth of Penn. (3rd Cir 1981)] “Appellants …do not consider SCI/TM to be a religion. But the question of the definition of religion for first amendment purposes is one for the courts, and is not controlled by the subjective perceptions of believers. Supporters of new belief systems may not ’choose’ to be non-religious, particularly in the establishment clause context. There is some indication that SCI/TM has attempted a transformation from a religion to a secular science in order to gain access to the public schools.”
Christian Echoes Nat’l Ministry, Inc. v. United States, 470 F.2d 849, 856-57 (10th Cir.1972)
“The limitations in Section 501(c)(3) stem from the Congressional policy that the United States Treasury should be neutral in political affairs and that substantial activities directed to attempts to influence legislation or affect a political campaign should not be subsidized.”
Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972)
The US Supreme Court stated “[it] is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. . . . A vague law impermissibly delegates basic policy matters to [government officials] for resolution on an ad hoc and subjective basis with the attendant dangers of arbitrary and discriminatory application”
Welsh V. United States, 398 U.S. 333: (1970)
The Supreme Court recognizes confusion over the broad meaning of religion “But very few registrants are fully aware of the broad scope of the word “religious” as used in 6 (j), and accordingly a registrant’s statement that his beliefs are nonreligious is a highly unreliable guide for those charged with administering the exemption.”
Founding Church of Scientology v. U.S., 409 F.2d 1146 (DC Cir 1969);
& Church of Scientology v.CIR, 823 F2d (9th Cir 1987)
The Second & Ninth Circuits find religion includes non-theistic Scientology.
Waltz v. Tax Comm’n, 397 U.S. 664 (1969)
It is well settled by our U.S. Supreme Court that granting churches tax exemption is not government subsidizing religion. In Waltz v Tax Commission New York our U.S. Supreme Court made clear granting a tax exemption to churches is not a government subsidy. The court stated, “In analyzing either alternative the questions are whether the involvement is excessive, and whether it is a continuing one calling for official and continuing surveillance leading to an impermissible degree of entanglement”….”The grant of a tax exemption is not sponsorship since the government does not transfer part of its revenue to churches but simply abstains from demanding that the church support the state”…and, “There is no genuine nexus between tax exemption and establishment of religion.”
United States v. Seeger, 380 U.S. 163 (1965)
The Supreme Court adopts the Fellowship of Humanity Parallel Position Test: Conscientious objectors may qualify for a religious exemption from combat even though they do not believe in a “Supreme Being.” “Within [the phrase ‘religious training and belief’] would come all sincere religious beliefs which are based upon a power or being, or upon a faith, to which all else is subordinate or upon which all else is ultimately dependent.” “Over 250 sects inhabit our land. Some believe in a purely personal God, some in a supernatural deity; others think of religion as a way of life envisioning as its ultimate goal the day when all men can live together in perfect understanding and peace.”
McGowan v. Maryland, 366 U.S. 420 (1961) See also Torcaso v. Watson, 367 U.S. 488 (1961)
Supreme Court embraces “comprehensive” definition: “By its nature, religion – in the comprehensive sense in which the Constitution uses that word – is an aspect of human thought and action which profoundly relates the life of man to the worldin which he lives. Religious beliefs pervade,…. virtually all human activity.”; But, Sunday closing laws do not invoke religious subject matter as they provide a day of rest for all religious persons, including disbelievers. “The Establishment Clause withdrew from the sphere of legitimate legislative concern and competence a specific, but comprehensive, area of human conduct: man’s belief or disbelief in the verity of some transcendental idea and man’s expression in action of that belief or disbelief.”
Fellowship of Humanity v. County of Alameda, 153Cal.App.2d 673. (1957)
“Secular” Humanism, an atheistic belief system, is a religion: Fourteen “Secular” Humanist churches receive tax exemptions permitted only for property used exclusively for “religious worship.” Judge Peters adopts a functional definition of religion. The test is “whether or not the belief occupies the same place in the lives of its holders that the orthodox beliefs occupy in the lives of believing majorities;” “Religion simply includes: (1) a belief, not necessarily referring to supernatural powers; (2) a cult, involving a gregarious association openly expressing the belief; (3) a system of moral practice directly resulting from an adherence to the belief; and (4) an organization within the cult designed to observe the tenets of the belief.” Judge Peters decision was followed a month later by the DC Circuit in Washington Ethical Society v. District of Columbia (DC Cir 1957).
Everson v. Board, 330 U.S. 1, 8-9 (1947)
Separation is to be achieved by neutrality, not exclusion (state subsidies of transportation to parochial schools upheld using “separation of church and state” dictum. Separation “requires the state to be neutral in its relations with groups of religious believers and non-believers;” Government “cannot exclude individual Catholics.. Mohammedans, .. Non-believers,.. or the members of any other faith, because of their faith, or lack of it.”
United States v. Ballard, 322 U.S. 78, 87, 64 S.Ct. 882, 886 (1944)
US Supreme Court in a case involving mail fraud prosecution of a religious leader that who claimed to have supernatural powers, the Court warned:
“Man’s relation to his God was made no concern of the state. He was granted the right to worship as he pleased and to answer to no man for the verity of his religious views. The religious reviews espoused by [the sect that followed the religious leader] might seem incredible, if not preposterous, to most people. But if those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the tries of fact undertake that task, they enter a forbidden domain.”
Cantwell v. Conn., 310 U.S. 296 (1940)
Religion clauses apply to states.
Lovell v. City of Griffin, 303 U.S. 444 (1938)
Religious speech is at the apex of protected speech under the First Amendment.