Religious Freedom in 2018: What to Watch

By Nancy Flory Published on December 13, 2017

From veterans’ memorials to coaches’ efforts to pray, 2017 saw many legal cases involving religious freedom. The Stream recently spoke with Jeremy Dys, Deputy General Counsel for First Liberty, about cases to watch in 2018. First Liberty is a legal organization dedicated to protecting First Amendment rights for all Americans.

Here are some cases which Dys said we can expect to see moving forward in 2018:

Bladensburg, Maryland

The U.S. Court of Appeals for the Fourth Circuit ordered the removal of a 90-year-old veterans memorial cross. The World War I veterans memorial has been in place since 1925. It honors 49 Bladensburg-area men who died in that conflict. First Liberty and Jones Day together filed a petition on November 1, 2017, for rehearing en banc on behalf of The American Legion. The case is currently pending.

Coach Joe Kennedy

Washington State high school assistant football coach Joe Kennedy got suspended in October 2015 for praying silently after a game. Ultimately, Kennedy lost his job. First Liberty filed a lawsuit against Kennedy’s school district in August, 2016. On August 23, 2017, the U.S. Court of Appeals, Ninth Circuit held that Kennedy’s prayers deserved no protection by the Constitution. Mike Berry, Deputy General Counsel at First Liberty, said First Liberty was “deeply disappointed.” “According to the Ninth Circuit, a school district can fire a coach for making the sign of the cross or bowing his head in prayer when a player gets hurt.” Berry added that First Liberty will continue to explore all options while reviewing the case.

Orthodox Jews & Kaporos

For millennia, Orthodox Jews have participated in kaporos. That’s an atonement ritual involving the humane and kosher killing of a chicken. The practice draws attacks by animal activists. The latest came in September 2017. Critics filed a lawsuit “seeking to force the cities of Los Angeles and Irvine to use police force to prevent Orthodox Jews” from practicing kaporos. Activists also threatened to place kaporos participants under citizens’ arrest. This case is pending.

Mary Anne Sause

Police came to Mary Anne Sause’s home in 2013 in response to an “alleged minor noise complaint.” She began to pray in her own home. The police ordered her to stop. They threatened her with jail if she did not. In June, 2017, the U.S. Court of Appeals for the Tenth Circuit ruled in the police officer’s favor. However, they admitted that the police officers had violated Sause’s First Amendment rights. First Liberty, along with Gibson, Dunn & Crutcher LLP asked the court to reverse the decision through a petition for certiorari in a filing to the U.S. Supreme Court. This case is pending.

Upcoming Legislation

Dys said to keep an eye on the First Amendment Defense Act (FADA) and the possible Johnson Amendment repeal.

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FADA, or H.R. 2802, “Prohibits the federal government from taking discriminatory action against a person on the basis that such person believes or acts in accordance with a religious belief or moral conviction that: (1) marriage is or should be recognized as the union of one man and one woman, or (2) sexual relations are properly reserved to such a marriage.” It was introduced in the House June 17, 2015. It would impact cases like the one involving a baker who declined to bake a wedding cake for a same-sex couple.

The Johnson Amendment arose in the early 1950s. It regulates how tax-exempt organizations (including pastors) may talk about politics. The Johnson Amendment figures in the current tax bill and might face repeal. 

What Next?

Ben Bull joins First Liberty as its new Executive Director of Advocacy. A “recognized expert in Constitutional law,” Bull has litigated hundreds of cases. Bull has previously served as General Counsel of American Family Association and Executive Director of the American Center for Law and Justice’s (ACLJ) international office, the European Center for Law and Justice. He built Alliance Defending Freedom’s (ADF) litigation and advocacy component and supervised numerous offices across the globe.

In an interview with The Stream, Bull said that we can expect to see more attacks on religious freedom. “There’s a war being raged right now by the ACLU and their friends against anything religious, period. … They want religious believers to be barricaded inside their religious places of worship. Even then, they’ll continue a frontal assault because they’ll want to dictate the kinds of sermons the pastor can say by censoring political speech … and by requiring pastors and churches and synagogues to perform same sex wedding ceremonies and so on. There’ll be no stopping point.”


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