Discussion Questions

Courts are faced with an increasing number of cases dealing with conflicts between religion and law. The Supreme Court opened a new door to religious liberty claims in June when it allowed some employers an exemption from the Obama administration's mandate to include coverage for contraceptives in employee health plans. The decision marked the first explicit holding that secular, for-profit corporations can claim an exemption under federal laws protecting religious rights. Social conservatives and many faith groups praised the decision. Women's health groups and advocates of church-state separation argue it may limit access to contraceptives. A similar conflict is developing as some businesses claim religious objections to providing services to gay, lesbian, bisexual or transgender individuals. Religious conservatives say government regulation threatens religious liberty; church-state separationists say religious beliefs should not take precedence over the law. Meanwhile, some local governing bodies appear to be taking advantage of a Supreme Court decision that gave them wider discretion to open meetings with religious invocations.

Despite that checkered legal past, Holt is now the plaintiff in a case before the U.S. Supreme Court that may help shape the future of religious liberty in the United States. He is contesting the Arkansas prison policy that prohibits beards except for dermatologic reasons and then only if no longer than one-quarter inch.

Holt, 39, wants to follow the teaching attributed to the Prophet Muhammad that men should shave mustaches but allow beards to grow untrimmed. The one-time law student attracted the Supreme Court's attention with a legally meticulous, 15-page handwritten petition in September 2013 contending that the prison policy violated his right to “free exercise of religion” under either the First Amendment or federal law.

Federal courts have struggled in applying the law. “Sometimes prisoners win, most of the time they lose,” says Ira (Chip) Lupu, a leading expert on law and religion and professor emeritus at George Washington University in Washington, D.C. “There's no terribly consistent pattern, and there's no consistent pattern among the circuit courts about how strict the standard is.”

Holt's case, Holt v. Hobbs, gives the Supreme Court its first opportunity to flesh out RLUIPA's meaning after having upheld the law as constitutional in a limited decision in 2005. The ruling, which could come by the end of the year or early in 2015, will complete a trifecta of important religious rights decisions within a year's time from the nation's highest court.

Religious conservatives hailed the decision, issued on June 30 as the justices broke for a summer recess. “The Supreme Court recognized that Americans do not lose their religious freedom when they run a family business,” said Lori Windham, senior counsel for the Becket Fund for Religious Liberty, which represented the family that owns the Oklahoma-based chain of arts and crafts stores named in the decision.

Liberal groups and women's rights advocates sharply denounced the decision. Marcia Greenberger, co-president of the National Women's Law Center, called it “a blow to women's health.”

The legislative prayer decision also provoked sharp disagreement, pitting religious conservatives against advocates of church-state separation. “The Supreme Court has again affirmed that Americans are free to pray,” said David Cortman, senior counsel with the Alliance Defending Freedom (ADF), a religious-rights organization that represented the town in the case. But Barry Lynn, executive director of Americans United for Separation of Church and State, said the decision “relegated millions of Americans — both believers and nonbelievers — to second-class citizenship.”

Religion cases have been a staple of the Supreme Court dockets ever since the controversial rulings in the early 1960s banning officially sponsored prayer or Bible readings in public schools by invoking the First Amendment's Establishment Clause. Those rulings from the liberal Warren Court era have stood up under a succession of three conservative chief justices — Warren E. Burger, William H. Rehnquist and John G. Roberts Jr. — even as the court relaxed rules limiting aid to religious schools.

The explosion of religious-rights claims follows a decade-long back-and-forth between Congress and the Supreme Court. The court in 1990 made it harder to bring such claims under the First Amendment's Free Exercise Clause, which bans any “law … prohibiting the free exercise” of religion. The 1990 ruling held that government can enforce general laws with incidental effects on religious practices as long as the laws are not “specifically directed to religious practice.”

Congress in 1993 passed RFRA to undo the court's decision, but the court in 1997 limited the coverage of that law to the federal government only. To counter that ruling, Congress passed RLUIPA to impose the strict scrutiny test on religious-liberty claims against state or local governments brought by “institutionalized persons” or by property owners in zoning or other land use disputes.

Religious-liberty conservatives view the free-exercise claims as a legitimate response to government intrusion into religious beliefs. “Religious liberty and First Amendment freedoms are currently under threat because of an overreaching government,” says Kellie Fiedorek, litigation counsel with ADF. “The government has forgotten in many cases its rightful role to protect these fundamental freedoms and in many cases is attacking them and forcing citizens to adapt to government ideology or face punishment.”

From the church-state separation side, Lynn, a lawyer and an ordained minister in the United Church of Christ, sees no threat to religious freedom for members of the nation's dominant faiths. “This is kind of a false premise started by the religious right and Catholic bishops,” Lynn says. “Religious liberty is at a dizzyingly high level unless you happen to be a religious minority member or nonbeliever.”

Academics who study religion and law also are divided. Patrick Garry, a law professor at the University of South Dakota in Vermillion and author of the book Wrestling With God, blames “the increasing secularization of society,” along with increased government regulation for encroaching on religious liberty. But Marci Hamilton, a professor at Yeshiva University's Cardozo School of Law in New York City and author of the book God vs. the Gavel, calls the spike in free-exercise claims evidence of “Me-Me-Me religious liberty, or just plain narcissism.”

Religious-freedom disputes date back to the writing of the Constitution and the Bill of Rights. The Supreme Court first confronted the clash between law and religion in a late-19th-century decision upholding the federal law banning polygamy. That issue is in court now after a federal judge ruled that Utah cannot prohibit the practice among some Mormons of having multiple “sister wives,” as long as the unions are not represented as legal marriages.

Lupu sees the conflicts as inevitable. “Some religious believers are going to want to use the government to advance their religious ends,” says Lupu, co-author with Robert Tuttle of the new book Secular Government, Religious People. “That means that as long as there is religion and we have this idea that government is secular, then we're going to have this conflict.”

As the disputes continue in courts, legislatures and public forums, here are some of the issues being debated:

David Green, founder of the family-owned Hobby Lobby Stores, was surprised to learn after the Obama administration's birth-control mandate went into effect that the company's employee health plan covered types of contraception that he considered to be abortifacients — drugs or devices that cause a fertilized egg to be destroyed. The devoutly Christian family agreed to be plaintiffs in the Becket Fund's legal challenge to the regulation, claiming that providing abortion-inducing drugs or devices violated their religious rights under the federal Religious Freedom Restoration Act (RFRA).

The court's 5-4 ruling in the companies' favor divided the justices along ideological and partisan lines. Five Republican-appointed justices voted to allow the companies an exemption from the mandate: Roberts and associate justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. Liberal Democratic-appointed justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan dissented.

In his opinion for the majority, Alito accepted the government's interest in providing women cost-free access to contraceptives but rejected the government's method of providing it. The mandate, he said, would require the family owners of the two companies “to engage in conduct that seriously violates their sincere religious belief that life begins at conception.” Alito said the government could instead allow the for-profit companies the same option afforded to religious organizations of notifying their insurers of their objections and leaving it to the insurance companies to provide the coverage.

Alito sought to minimize the impact of the ruling by stressing that it applied only to so-called closely held companies — family-owned concerns with no public stockholders. For the dissenters, however, Ginsburg noted that some family-owned companies are quite large and that in any event public companies might try to claim the same religious exemptions.

Three months later, the religious-rights lawyers involved in the cases continue to play down the practical effects of the ruling. “I don't think it will have any impact at all,” says Eric Rassbach, a Becket Fund lawyer who worked on the Conestoga case. “The government has plenty of ways to provide access,” he says, without requiring Hobby Lobby to cover the cost through its employee health plan.

Fiedorek, the ADF lawyer, agrees. “There will be absolutely no impact on women's access,” she says. “This was never about access to anything. This was about the government's power to force a family business to provide access to drugs that can end life.”

Lawyers on the opposite side disagree. “The first immediate consequence is for women who work for Hobby Lobby,” says Louise Melling, deputy legal director of the ACLU, which filed a brief in support of the birth-control mandate. “They do not have an important benefit guaranteed by federal law.”

Gretchen Borchelt, a lawyer with the National Women's Law Center, says some employers “have gone straight to their plans” to claim the Hobby Lobby exemption without filing a lawsuit. Borchelt, a senior counsel and director of state reproductive health policy for the center, says the center is also receiving calls from women employed by religious nonprofit organizations who say they are being denied coverage without cost-sharing. “For some of them, it's a real hardship,” she says.

The direct impact of the court's decision will turn on the number of companies that claim the exemption. “It depends on how many corporations there are out there that feel strongly enough to object on religious grounds,” says Marc DeGirolami, a law professor at St. John's University in New York City and author of The Tragedy of Religious Freedom. “We have to wait and see.”

The court stated in the unsigned order that “nothing” in it “affects the ability of the [college's] employees and students to obtain, without cost, the full range of [Food and Drug Administration] approved contraceptives.” Writing for the three dissenting female justices, however, Sotomayor argued that the order “imposes an unwarranted and unprecedented burden on the Government's ability to administer an important regulatory scheme.”

The owners of an Oregon bakery who refused on religious grounds to make a wedding cake for a lesbian couple drew applause from a national gathering of social conservatives in the owners' civil rights fight with a state agency. Aaron Klein, co-owner with his wife Melissa of Sweet Cakes by Melissa in the rural Oregon town of Gresham, appealed for prayers and support at a meeting of the Values Voter Summit on Sept. 26. The couple reportedly faces possible penalties of $150,000 for their stand.

The Kleins' case, now scheduled to be heard by an Oregon Department of Labor and Industries administrative law judge in March, is one episode in a debate taking place in several states over a claimed right by business owners to refuse to serve gays or lesbians based on religious views. Gay rights groups insist that where anti-discrimination laws are on the books, they take precedence over any religious objections by public businesses.

“The public accommodations laws are about ensuring that the marketplace is open to all people on equal terms,” says Jennifer Pizer, senior counsel and director of the law and policy project at Lambda Legal, an advocacy group for lesbian, gay, bisexual or transgender (LGBT) people. “America is not a theocracy,” she adds, “and we do not allow individuals to impose their faith in ways that exclude others.”

Religious conservatives argue that businesses have the right to refuse service based on religious objections. “The problem is that the government demands that they communicate a certain message or participate in certain events that violate their beliefs,” says ADF lawyer Fiederok. Becket Fund lawyer Rassbach agrees. “Typically in the United States, we've been inclined to allow people to object to taking part in certain activities that would force them to do something that violates their religious beliefs,” he says.

ACLU lawyer Melling disagrees. “Religious freedom doesn't mean you have the right to impose your views on others,” she says. “It doesn't mean you have the right to discriminate or harm others.” Melling notes that even though some advocates of racial segregation or gender discrimination defend such practices on religious grounds, Congress refused in 1964 to include a religious exemption in the federal civil rights law.

In the Hobby Lobby Supreme Court case, Ginsburg warned in dissent that the ruling could be read to elevate free-exercise claims over anti-discrimination laws. Alito discounted that fear in his opinion for the court, at least as it might apply to racial discrimination. “The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race,” Alito wrote, “and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.”

Lupu, the George Washington University professor, thinks the gay rights issue has not yet sharpened into a legal conflict. “You'd need a whole lot of legal developments for this to ripen into a legal case instead of a cultural conflict,” he says.

But St. John's law professor DeGirolami says courts eventually will reject religious exemptions to LGBT rights laws. “The concerns of discrimination are prevailing over the concerns of religious liberty,” he says. “Our general laws have to prevail.”

Susan Galloway and Linda Stephens began attending meetings of the Board of Supervisors in their hometown of Greece, N.Y., because of mundane municipal issues. But Galloway, who is Jewish, and Stephens, an atheist, objected to the board's practice of opening business sessions with Christian prayers. As a result, the two have become plaintiffs in an important religious freedom case that is anything but mundane.

On May 5 the Supreme Court rejected Galloway's and Stephens' complaint that the legislative prayers violated the Establishment Clause. In an opinion based largely on an historical practice dating to the First Congress in 1789, Kennedy wrote that legislative prayers are “part of a larger exercise in civic recognition” designed to “acknowledge religious leaders and the institutions they represent rather than to exclude or coerce nonbelievers.”

Kennedy conceded that the ministers invited to lead the prayers since the practice was initiated in 1999 had all been Christian, until a few non-Christians were invited after Galloway and Stephens complained. Kennedy said the explicit references to Christian doctrine in many of the prayers did not raise constitutional objections. But he cautioned that legislative prayers might be problematic if the practice “directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that [the legislators'] decisions might be influenced by a person's acquiescence in the prayer opportunity.”

Writing for the four liberal dissenters, Kagan accepted the Supreme Court's 1982 precedent that had upheld legislative prayers but contended that the practice in Greece had violated what she called “the constitutional requirement of neutrality.” The town, Kagan wrote, “never sought … to involve, accommodate, or in any way reach out to adherents of non-Christian religions” except “briefly” after Galloway and Stephens filed their suit.

In a separate dissent, Breyer noted that Congress stipulates that chaplains avoid “sectarian controversies.” But Kennedy said that regulating the content of prayers would raise religious freedom issues and that eliminating the practice altogether would increase rather than decrease religious divisions.

Leading academics on religion and law differed on the Supreme Court's opinion. DeGirolami, the St. John's professor, said the court got the case right by “relying on history, tradition and an unbroken practice” since the nation's founding. But Lupu, the George Washington professor, criticized the almost unbroken use of Christian prayers. “The Establishment Clause should not allow a town to align itself” with a specific religion, he said.

Fiedorek, the ADF lawyer, defends the town's practice. “The town's practice is fair and inclusive,” she says. ADF represented the town after Galloway and Stephens filed suit. Fiedorek resists any official supervision or guidelines regarding the invocations. “Speech censors shouldn't be given the power to censor volunteers regardless of their religious background,” she says.

Becket Fund lawyer Rassbach, however, recommends more steps to ensure religious diversity among legislative prayer-givers even if not required by the Establishment Clause. “As a policy matter, I think different municipalities or different states should follow the practice of the U.S. Congress,” he says. “The U.S. Congress has all sorts of different groups delivering invocations.”

For its part, Americans United is promoting a program that it calls “Operation Inclusion,” aimed at preventing discrimination against “minority perspectives” in the selection of legislative prayer-givers. “We urge people to go to their city council,” Lynn says, “first to suggest let's not have a prayer at all but in the event you have an invocation open to everyone.” Lynn contends that the atheist's invocation in Greece was well received. “There was one protester,” he says. “Everyone else seemed to like it.”

But he calls the new policy limiting those who can lead the prayer to representatives with an established presence “a step backward” and hopes to see it reversed. “People in upstate New York, as well as in the rest of the country, want to be inclusive,” he says. “The Supreme Court is out of touch with what people in the country want.”

Religious Tests

Several American colonies were established by dissenters from the dominant Church of England: notably, Puritans in Massachusetts, Quakers in Pennsylvania and Catholics in Maryland. Despite those roots in protests against enforced religious conformity, religious tolerance was adopted only unevenly. William Penn was responsible for instituting religious tolerance in Pennsylvania and neighboring New Jersey and Delaware, but Massachusetts' Puritan government practiced intolerance toward Quakers and Baptists. Exiled from Massachusetts, Roger Williams founded Rhode Island with religious freedom as a central policy.

Conscious of English law requiring affirmation of the Church of England's primacy, the Framers of the Constitution adopted without controversy a provision prohibiting any “religious test” for office in the new national government (Article VI, paragraph 3). The Bill of Rights went further by adding the Establishment and Free Exercise clauses.

Beginning in the 1920s, the Supreme Court applied almost all of the provisions of the Bill of Rights to state and local governments through a process called “incorporation.” The court incorporated the Free Exercise Clause in a 1940 decision, Cantwell v. Connecticut, that struck down a state law requiring licenses to solicit for religious purposes.

The Supreme Court touched off the modern era of controversial religious-freedom cases with a pair of decisions in 1962 and 1963 that prohibited officially sponsored prayer or Bible reading in public school classrooms. The rulings found the practices to violate the Establishment Clause. Decades later, the court extended those decisions to bar school-sponsored prayers at graduation ceremonies or football games. Local school districts, however, continue to circumvent or openly defy the decisions, prompting a regular succession of separation-of-church-and-state lawsuits.

In the same year as the second school prayer decision, however, the Supreme Court struck an important blow for the rights of religious believers. In a 7-2 ruling in Sherbert v. Verner (1963), the court struck down a decision by a South Carolina agency denying unemployment benefits to a Seventh-day Adventist. She had claimed that her employer's requirement that she work on Saturday, the Adventists' Sabbath, violated her religious freedom.

Religious Struggles

The Supreme Court began by the 1980s to ease Establishment Clause restrictions on government aid to religion, but somewhat paradoxically proved unreceptive to Free Exercise Clause claims despite the apparent invitation for such cases in Sherbert. After rejecting several such cases, the court emphatically closed the door in its 1990 decision by declaring that free-exercise claims ordinarily do not supersede generally applicable laws that are not directly aimed at religious practices. Congress tried to reverse the decision by passing the Religious Freedom Restoration Act (RFRA); when the court ruled that law unconstitutional in part, Congress tried again with the Religious Land Use and Institutionalized Persons Act (RLUIPA) to strengthen free-exercise rights in disputes with state and local governments.

The court's decision was widely criticized by legal experts and, more important, by political leaders. Efforts to overturn the decision began in short order with backing from groups ranging from the ACLU to the religiously conservative Traditional Values Coalition and a host of established religious organizations. The House approved RFRA by voice vote on May 11, 1993, only two months after it was introduced; the Senate followed on a 97-3 roll-call vote on Oct. 27. President Bill Clinton signed the measure into law on Nov. 16. The law restored the stricter test from Sherbert that the government could not interfere with someone's free exercise of religion unless the government had a “compelling” interest and was interfering in the “least restrictive” way possible.

Four years later the court gutted RFRA by ruling that Congress had no authority to impose its own constitutional standard for free-exercise cases on state and local governments. The 6-3 decision in City of Boerne v. Flores (1997) backed a decision by a small town in Texas to block — on historic preservation grounds — a planned renovation of a mission-style Catholic church built in the early 20th century. For the majority, Justice Kennedy said the law was an impermissible intrusion on states' prerogatives.

The court's ruling again provoked widespread criticism on Capitol Hill and from religious and civil liberties groups. Congress partially countered the decision in 2000 by enacting RLUIPA. The law steered clear of constitutional problems by subjecting state and local governments to heightened scrutiny in free-exercise claims only in disputes stemming from land-use decisions or in claims brought by prisoners or other “institutionalized persons.”

Religious Liberties

Religious-liberty claims found fertile legal soil even with RFRA limited to the federal government and RLUIPA limited to cases involving land use and institutionalized persons. Prison inmates in particular brought a steady stream of free-exercise claims to the courts on all sorts of issues, including dietary restrictions and grooming and dress policies. Lower court rulings varied in results and in the legal tests applied. Meanwhile, the Supreme Court was busy mostly with Establishment Clause cases, with no major rulings on RFRA until Hobby Lobby and no fully argued case on RLUIPA until the Arkansas prison dispute over the beard worn by Muslim inmate Gregory Holt, who goes by the name Abdul Maalik Muhammad.

Political and legal trends continued to move in a generally favorable direction for religious conservatives after the turn of the 21st century. Only nine days after taking office in 2001, President George W. Bush created the White House Office of Faith-Based and Community Initiatives to increase federal support for faith-based social service organizations.

The religion disputes that would culminate in major Supreme Court decisions in the court's 2013–14 term began with events four years earlier. In Greece, N.Y., a federal court judge rejected the Galloway-Stephens suit against the town's legislative prayer practice in August 2010, but the Second U.S. Circuit Court of Appeals ruled in March 2012 that the pattern of sectarian Christian invocations violated the Establishment Clause. Overturning that decision, Justice Kennedy's opinion for the 5-4 majority reaffirmed the constitutionality of legislative prayer and found no impermissible coercion or proselytizing in Greece's policies.

Obama's celebratory signing of the Affordable Care Act on March 23, 2010, did not end the political controversy over the law but merely moved the dispute into the courts. The Supreme Court's 5-4 decision in 2012 to uphold most of the law then set the stage for further litigation, including numerous lawsuits challenging the birth control mandate on religious liberty grounds. The high court agreed to resolve the issue by taking up the conflicting rulings issued by federal appeals courts in Oklahoma, in the Hobby Lobby case, and in Pennsylvania in the Conestoga suit.

The end-of-term decision issued on June 30 extended free-exercise rights for the first time to for-profit corporations. “Protecting the free-exercise rights of corporations,” Justice Alito wrote, “protects the religious liberty of the humans who own and control those companies.”

The opinion left room for the government to enforce the mandate indirectly, but Ginsburg complained sharply in her dissent that the ruling would reduce women's access to contraceptives. Just three days later, the court on July 3 signaled doubts about the possible fallback for the government to allow secular companies the same accommodation being offered to religious organizations. Religious organizations were being allowed to object to the birth-control mandate by filling out a government form instead of notifying their insurers directly. But the court's interim order in the Wheaton College case freed the school from the need to submit the prescribed form for an exemption from the mandate.

Clashing Beliefs

Religious liberty cases are popping up on more and more court dockets around the country, while social conservatives attending a national assembly in Washington listed the issue — by an overwhelming margin — as their most pressing concern.

“Religious liberty domestically is something of increasing concern in this country,” says Travis Weber, director of the Center for Religious Liberty at the Family Research Council, which sponsored the event. “That includes many Christians who believe that their government is targeting them or sidelining them and ignoring their interests in being able freely to live out their faith.”

Church-state separationists dismiss the fears raised by religious conservatives and say they themselves feel threatened by political and legal trends aligning government with the country's dominant faiths: Christianity and Judaism. “Our religious rights, our freedom of conscience, means nothing,” says Annie Laurie Gaylor, co-president of the avowedly atheistic Freedom From Religion Foundation, headquartered in Madison, Wis.

Gaylor says the foundation receives about 2,500 complaints a year alleging impermissible religious practices at public schools. “We're able to stop a lot of those violations,” she says. “We don't give up,” Gaylor adds. “We know that the religious right doesn't give up. Persistence is the name of the game.”

The birth-control mandate issue is being fought on multiple fronts. The administration is working to complete a rule for employers to follow in claiming the Hobby Lobby exemption and notifying their insurance carriers to provide coverage themselves. A separate rule being finalized will allow religious nonprofits to notify the government directly of their objections to providing coverage.

Meanwhile, women's health advocates pushed a bill in Congress to try to reverse the Hobby Lobby decision, but it failed to advance in the Senate. Legislators in some states are proposing measures to require employers to provide coverage without regard to the federal provision, but none of those has advanced to a vote. And litigation over the rules for religious nonprofits — allowing them to claim an exemption from the birth-control rules by notifying the government instead of their insurers — is continuing in federal courts around the country.

Testing Claims

The Supreme Court appears ready to recognize prisoners' rights to grow beards according to their religious beliefs, and the justices also are set to hear a second case testing how to accommodate religious practices in the workplace.

Justices across the ideological spectrum sharply challenged the Arkansas state's attorney as he sought to defend the policy in oral arguments on Oct. 7. David Curran, a deputy state attorney general, says the policy prevented inmates from concealing weapons or contrabands in beards or from changing their appearance to avoid identification inside the prison or outside, in event of escape.

Justice Breyer, part of the court's liberal bloc, called the concealment rationale “exaggerated” because “not one example” had been reported of a prisoner hiding something in a beard. Conservative justice Alito also discounted the problem, noting that prison guards could simply require inmates to comb their beards on request.

Curran urged the justices to defer to the prison administrators' views despite the policies in other states. “If deference means anything, it means you don't have to copy the policies of other states,” he said.

Representing the Muslim Arkansas prisoner Holt, Douglas Laycock, a leading expert on religion and law and professor at the University of Virginia Law School in Charlottesville, opened the argument by saying the state was asking for “absolute deference to anything they say.”

“That would be to repeal this statute de facto,” Laycock said, referring to RLUIPA. “There may be deference to prison officials, but there must be concrete limits to that deference.”

Holt had offered to trim his beard to a half-inch in length, but the prison rejected the compromise. The federal appeals court in St. Louis ruled for the prison in a three-page opinion issued on Oct. 1, 2013.

Laycock encountered some challenging questions but appeared to fend them off effectively. Scalia questioned Holt's willingness to trim his beard at all. “Religious beliefs aren't reasonable,” he said. “Religious beliefs are categorical.” Laycock answered back: “A partial beard is better than nothing.”

Roberts also questioned how courts were to decide such cases in the future. “One of the difficult issues is where to draw the line,” he said. Laycock acknowledged that future cases might test an inmate's right to “full beard or full hair,” but emphasized that Holt had decided on his own to limit his request.

The Obama administration supported Holt's position: Assistant Solicitor General Anthony Yang said Arkansas had failed to show that its policy was necessary for prison safety and security. A brief filed on behalf of 18 states urged the justices to rule for Arkansas, but Yang argued that the small number of states with similar policies “significantly undermines” Arkansas' stance.

If the justices are as unified as the questions in arguments suggested, a decision could come as early as November or December. Experts following the case expect a fairly limited opinion with little guidance on how to apply it in other prison cases, such as those based on dietary needs.

Under federal law, an employer must accommodate an applicant's or employee's “religious belief or practice” unless the employer can show that the accommodation would cause “undue hardship” on the operation of the business. The EEOC found Abercrombie & Fitch liable for rejecting the teenaged Muslim applicant Samantha Elauf for a job in the company's Tulsa, Okla., children's clothing store in 2008, even though she did not ask to be exempted from the store's general dress code.

The federal appeals court in Denver rejected the EEOC's position. The Supreme Court agreed to hear the case in an order issued Sept. 29. The case is likely to be argued early in 2015 and decided before the end of the court's term in late June.

Believing in Diversity

The foundations of religious liberty in the United States were laid more than two centuries ago in a new nation with relative unity in religious beliefs. Today, the United States is more religiously diverse, and the diversity poses challenging issues for how to define and how to respect religious liberty for all — both believers and nonbelievers.

The United States in the late 18th century was overwhelmingly Protestant. Catholics were a small minority, and Jews were hardly counted at all. A few prominent figures held deist beliefs associated with the 18th-century Age of Enlightenment, including two of the most influential figures on religious liberty: Thomas Jefferson and James Madison.

“Society is changing its view as to mainstream religious beliefs and institutions,” says Garry, the University of South Dakota professor. “Clearly, society doesn't have the same type of more unified approach that it did a generation ago.”

The Supreme Court once declared that the law must accommodate religious beliefs and practices, but the justices backed away from that position in 1990 by allowing enforcement of neutral laws even if they had incidental effects on religious practices. Congress and some state legislatures responded by requiring accommodation as a matter of law, at least in some circumstances.

The need for accommodation increases with increased religious diversity. Fifty years ago, institutional food servers had only one religiously based rule to follow: fish on Friday, to accommodate Catholics. Today, prisons are faced with an array of dietary demands from, among others, the small but growing number of Muslim inmates.

Even as demands for accommodation among the smaller faith groups grow, some Christians and Christian advocacy groups complain that the government is increasingly intruding on their religious beliefs. “You've got these two spheres: the religious activity sphere is basically static, and the government activity sphere is expanding,” says Rassbach, the Becket Fund lawyer. “That leads to more conflicts of various sorts.”

Advocates of stricter rules on separation of church and state also feel stressed. “In the next five years, we're in for some tough times as separationists,” says Americans United executive director Lynn. Gaylor, co-president of Freedom From Religion, complains about increasing “religious favoritism” in government policies; she attributes the trend to litigation by groups that she calls “theocratic legal aid societies.”

Current debates over such issues as contraceptives, same-sex marriage and legislative prayer do not appear close to resolution. In the end, the Obama administration may succeed in ensuring women access to contraception through no-copay insurance, but only after accommodating religious organizations and some number of employers. Civil rights laws protecting LGBT individuals may trump religious objections, but those laws are on the books in fewer than half the states.

As for legislative prayer, the practice is likely to go unchallenged in the vast majority of cities and towns. Any arguments that arise are most likely to be resolved politically. Any disputes that reach the courts will be difficult for challengers, given the wide discretion allowed for governing bodies under the Supreme Court's decision in the Greece, N.Y., case.

Despite the disagreements, both sides in the church-state separation debate profess optimism about future trends. “America has long been, for the most part, a tolerant and diverse country where we have welcomed the viewpoints of believers of many different backgrounds,” says Fiedorek, the lawyer with Alliance Defending Freedom. “I hope that in five years the government will recognize its proper role in protecting freedom,” she concludes.

Lynn sees a generational change developing. “You're going to find that young people, millennials today, have a remarkably different attitude than their parents or grandparents did,” he says. “Younger people are more inclined to be open, to be embracing, to be supportive of letting people alone and letting people make their own decisions.”

For his part, DeGirolami, the St. John's professor, expects conflicts to continue and has no regrets that they will. “It's important that each generation think clearly, think well and think for themselves about these questions,” he says. “It's a good thing that we don't all get along because these are questions of the deepest and greatest importance.”

Are religious liberty claims going too far?

Conflicts continue despite Supreme Court decision.

The Supreme Court decision in late June allowing some companies to claim religious exemptions from providing contraceptive coverage for their employees did not settle the dispute over the Obama administration's regulation. It merely set the stage for continuing conflict in the courts, on Capitol Hill, in state legislatures and in the important but obscure area of federal rulemaking.

Both rules seek to accommodate religious objections to providing contraceptive coverage while ensuring women indirect access to such coverage without any copayment. Women's health advocates say the rules go too far in allowing religious exemptions, while religious conservatives say they do not go far enough.

The proposed rule that would apply to for-profit companies seeks to define the somewhat vague term “closely held corporations” that was at the heart of the Supreme Court's decision in Burwell v. Hobby Lobby Stores, Inc. Both of the companies involved in the Supreme Court case — the nationwide Oklahoma-based chain Hobby Lobby Stores and Pennsylvania-based Conestoga Wood Specialties — are family-owned with no public stockholders. The court's decision limited the exemption granted under the federal Religious Freedom Restoration Act (RFRA) to “closely held” companies, a term recognized in corporate law but subject to varying definitions at the state level.

The agency proposed alternate definitions for the term. Both versions stipulated no publicly traded stock; one version set a limit on the number of owners, while the other specified a minimum percentage of ownership by a specified number of owners. The proposed rule would also specify what steps a company must take to document its claim for exemption and to notify its health insurance carrier of the decision. The comment period on the proposed rule closed on Oct. 22.

Separately, CCIIO had issued in July 2013 a rule for religious nonprofits to follow in claiming an exemption from the birth control mandate. That rule called for the religious organization to notify its health insurance carrier of its objection to covering contraceptives and for the insurer then to provide coverage without additional cost.

In response, the CCIIO proposed allowing the organization to send a letter to the government claiming the exemption. The comment period for that proposal closed on Oct. 28.

Notre Dame has asked the Supreme Court to order the Seventh Circuit to reconsider its case in light of the Hobby Lobby decision; the parties in the Sixth Circuit are planning to ask the Supreme Court to review that decision after the appeals court refused a request to have the entire bench reconsider the decision. The Supreme Court majority in the Hobby Lobby decision appeared to indicate that the administration's original, narrower exemption for religious nonprofits would pass muster. But three justices who dissented from the order in the Wheaton College case said that action cast doubt on whether the court in fact would go along with the administration's approach.

Women's health advocates concerned about the exemptions and accommodations have suggested legislation to negate the Hobby Lobby decision altogether, but those proposals have failed to advance in Congress or in state legislatures.

— Kenneth Jost

Reality TV family asserts religious-liberty claim.

Millions of television viewers got to know Kody Brown, his four wives and 19 children over the past four years by watching the reality series “Sister Wives” on the TLC cable channel. But Brown and his so-called “sister wives” are more than TV celebrities. They are also plaintiffs in a federal religious liberty lawsuit that has resulted in a decision to strike down part of Utah's 120-year-old anti-polygamy statute.

The 91-page decision by U.S. District Judge Clark Waddoups upheld the Browns' claim that a local prosecutor violated their right to practice their religion by initiating a criminal investigation of their living together as a family with multiple wives. Kody Brown is legally married to one woman, Meri Brown, but refers to her and the other plaintiffs in the case — Janelle Brown, Christine Brown and Robyn Sullivan — as “sister wives,” although none of the women are sisters. Waddoups' ruling, issued on Dec. 13, 2013, maintains the state's ban on multiple legal marriages but struck down the part of the law that prohibits someone who is married from “cohabitating” with another person.

The state of Utah is appealing the decision.

In his opinion, Waddoups, a Mormon and a one-time corporate lawyer appointed to the federal bench by President George W. Bush in 2008, sharply criticized the Supreme Court's 1879 decision for failing to identify the “social harm” from polygamy. In the current context, Waddoups acknowledged “reports” of criminal conduct such as incest and child abuse associated with polygamy but said decriminalizing cohabitation would allow prosecutors to focus more directly on incest and child abuse offenses.

The Browns lived in Utah at the start of the series but moved to Las Vegas after Utah County Attorney Jeffrey Buhman started his investigation. Waddoups stated in his opinion that Utah officials are aware of “thousands of polygamist families” in the state but that Buhman began investigating the Browns only because of the television show. Buhman's office now says it will not prosecute polygamists absent evidence of other crimes.

— Kenneth Jost

Books

Contraception