Religious liberty being fought on the state level

Published: Tuesday, Jan. 15 2013 11:20 p.m. MST

Pat Zebley, of Lewiston, Maine, left, Renee Fortin, of Lewiston, center, and Linda Lavoie, of West Bath, Maine, acknowledge honking motorists during a rally to protest a federal mandate that most institutions and businesses provide insurance plans that cover artificial birth control, Friday, June 8, 2012, in Augusta, Maine.

Robert F. Bukaty, Associated Press

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Of all the issues in the religious liberty debate, the health care contraception mandate has grabbed the most media attention in the weeks leading up to "Religious Freedom Day" on Wednesday.

But the lawyers, legislators and lobbyists on the front lines of the war over religion's role in the public square have a broader view of a battlefield that takes in local communities, courtrooms and schoolrooms, where a variety of religious freedom struggles are taking place.

Even as nearly 50 faith-based schools and businesses have sued the Obama administration over the contraception mandate, alleging that providing birth control through their health care plans violates their right to practice their faith, both religious and secular groups have been traveling the country organizing and training their troops to fight the battle on a more local level.

"I try to tell our people, 'You might think that what's going on in Congress right now is the most important thing right now, but it's absolutely not,’ ” said Michael De Dora, public policy director for the Center for Inquiry, a secularist group that advocates against government involvement in religion. "You need to pay attention to what's going on at the school board, city hall and state levels because that's where things are happening."

Several states, including Arizona, have already passed laws that protect health care providers, businesses and other organizations that don't want to offer contraceptives because doing so would violate their religious beliefs. Other states are moving ahead with legislation that gives broad religious protections against government regulations or repeals antiquated state constitutional amendments that prohibit public funding for faith-based charities.

To help state lawmakers advance a religious liberty agenda, the American Religious Freedom Program is working toward establishing legislative religious freedom caucuses in every state by the end of the year.

"If you said 'religious freedom' five years ago, people would have thought about graduation prayers or religious displays in the town square," said Tim Schultz, state legislative policy director for the ARFP. "Now we are talking about government mandates and regulatory actions that threaten the ability of faith-based organizations to operate the way that they have for decades."

Groups like the Secular Coalition for America are responding by organizing state chapters.

"It was always part of our strategy to have state chapters in place by 2019," said coalition spokeswoman Lauren Anderson Youngblood. "But we moved that up when we noticed this uptick in legislation on the state level."

And the legislation is expected to keep coming in order to prevent what Shultz described as a trend to confine religion to houses of worship and restrict its traditional role in public affairs and society at large.

"The (federal) health care mandate was not a one-off event or one bad decision," he said. "It's a mentality about the role of church and state that says if they want to form an organization that serves the homeless, they will be required to do things that violate the tenets of their faith. And that collision is new. That is a recent thing and one of the reasons why folks who run faith-based organizations are shaking in their boots."

While De Dora acknowledges secular groups are behind in fundraising and organizing on the local level, they have scored some victories and slowed the religious freedom movement in some states. In Florida, for example, voters rejected a proposed amendment to that state's constitution that would have allowed state funds to go to faith-based charities by repealing a current ban.

The amendment was motivated by an ongoing lawsuit against two faith-based organizations that received state funding to provide substance abuse for prison parolees. But the argument that killed the amendment was made by the state's teachers' union, which said the measure would have allowed funding for school vouchers by allowing state funds to go to religious schools.

About 38 states have similar constitutional provisions, commonly called "Blaine Amendments," which explicitly prohibit public funds from going to "sectarian schools."

Lori Windham, general counsel at the Becket Fund for Religious Liberty, said some state legislatures, like Florida, are considering repeals of the amendments.

The amendments — named after former U.S. House Speaker James Blaine who in 1875 unsuccessfully tried to amend the federal Constitution with the same restriction on public funding — were popular in states where anti-Catholic sentiment was strong. The provisions prevented Irish Catholic immigrants from influencing the public school systems, which were largely Protestant at the time.

Despite the unsavory history of the amendments, they have been an effective tool for opponents of school vouchers and secularist groups that want to block government funding to religious organizations providing social services.

De Dora said the secularists' opposition to religious organizations receiving public funding for social services stems from the fact that faith-based groups receive exemptions to rules that other nonprofit groups have to comply with. In particular, faith-based groups are exempt from rules that go against the groups' religious beliefs.

Another issue that could surface in statehouses is laws that allow public school credit for released-time religious education.

Windham said that the Supreme Court in November denied an appeal of a 4th Circuit Court ruling in a South Carolina case that found off-campus religion classes taken during school hours can receive the same credit as off-campus non-religion classes offered in the public school system.

Windham said the Becket Fund has already received several calls from state lawmakers around the country asking whether the ruling opens the door for similar released-time policies in other states.

"This is an area where we could see more battles over religious education and parental and student choice," she said. "Now that we have that case decided, it is possible we will see more of those kinds of laws being passed."

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