The Religion Law Quiz Podcast

Religion Law Quiz #44 (Disagreement with the prayer in the legislative setting)

The last few Religion Law Quizzes have focused on prayer at the beginning of legislative sessions and town meetings.  But it is important to remember that, in any given legislative session or town meeting, there will be people who may not want to join in the expression of prayer or approve of its content.  How has the Supreme Court addressed this issue? 
 
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The Supreme Court addressed this issue in the following manner in its 2014 decision in Town of Greece, N.Y. v. Galloway where it stated:
 
The prayer opportunity in this case must be evaluated against the backdrop of historical practice. As a practice that has long endured, legislative prayer has become part of our heritage and tradition, part of our expressive idiom, similar to the Pledge of Allegiance, inaugural prayer, or the recitation of “God save the United States and this honorable Court” at the opening of this Court's sessions. See Lynch, 465 U.S., at 693, 104 S.Ct. 1355 (O'Connor, J., concurring). It is presumed that the reasonable observer is acquainted with this tradition and understands that its purposes are to lend gravity to public proceedings and to acknowledge the place religion holds in the lives of many private citizens, not to afford government an opportunity to proselytize or force truant constituents into the pews. See Salazar v. Buono, 559 U.S. 700, 720–721, 130 S.Ct. 1803, 176 L.Ed.2d 634 (2010) (plurality opinion); Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 308, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000). That many appreciate these acknowledgments of the divine in our public institutions does not suggest that those who disagree are compelled to join the expression or approve its content.  West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943).  That many appreciate these acknowledgments of the divine in our public institutions does not suggest that those who disagree are compelled to join the expression or approve its content.
 
Town of Greece, N.Y. v. Galloway, 572 U.S. 565, 587, 134 S. Ct. 1811, 1825, 188 L. Ed. 2d 835 (2014).
 
Disclaimer: The Religion Law Quizzes are provided as a service to you. They are intended only for educational purposes. Nothing in the Quizzes is intended to be legal advice and they should not be relied upon as conclusive on any issue discussed therein.

Religion Law Quiz #43 (The intended audience of prayer in a legislative setting)

A few of the recent the Religion Law Quizzes have focused on prayer at the beginning of legislative sessions and town meetings.  According to the Supreme Court, who is the principal audience for these prayers?
 
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Here’s what the Supreme Court said: “The principal audience for these invocations is not, indeed, the public but lawmakers themselves, who may find that a moment of prayer or quiet reflection sets the mind to a higher purpose and thereby eases the task of governing.”  Town of Greece, N.Y. v. Galloway, 572 U.S. 565, 587, 134 S. Ct. 1811, 1825, 188 L. Ed. 2d 835 (2014).
 
Disclaimer: The Religion Law Quizzes are provided as a service to you. They are intended only for educational purposes. Nothing in the Quizzes is intended to be legal advice and they should not be relied upon as conclusive on any issue discussed therein.

Religion Law Quiz #42 (Content of prayers at the beginning of legislative settings)

In a prior Religion Law Quiz we learned that Congress and state legislatures can open their session with prayer.  For people that are asked to offer such a prayer, can they use words that are unique or particular to their belief as part of their prayer? 
 
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Answer: Yes.  Consider what the Supreme Court had to say in that regard in the blurb below.  It is also important to note that the Supreme Court below and later in the opinion emphasized that it would not be proper if, over time, the prayer becomes a means of proselytizing or advancing one group over another.  However, prayers that that are solemn and respectful and seek to bring lawmakers together are very proper.  Here's what the Supreme Court said: 
 
In rejecting the suggestion that legislative prayer must be nonsectarian, the Court does not imply that no constraints remain on its content. The relevant constraint derives from its place at the opening of legislative sessions, where it is meant to lend gravity to the occasion and reflect values long part of the Nation's heritage. Prayer that is solemn and respectful in tone, that invites lawmakers to reflect upon shared ideals and common ends before they embark on the fractious business of governing, serves that legitimate function. If the course and practice over time shows that the invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion, many present may consider the prayer to fall short of the desire to elevate the purpose of the occasion and to unite lawmakers in their common effort. That circumstance would present a different case than the one presently before the Court.
 
The tradition reflected in Marsh permits chaplains to ask their own God for blessings of peace, justice, and freedom that find appreciation among people of all faiths. That a prayer is given in the name of Jesus, Allah, or Jehovah, or that it makes passing reference to religious doctrines, does not remove it from that tradition. These religious themes provide particular means to universal ends. Prayer that reflects beliefs specific to only some creeds can still serve to solemnize the occasion, so long as the practice over time is not “exploited to proselytize or advance any one, or to disparage any other, faith or belief.” Marsh, 463 U.S., at 794–795, 103 S.Ct. 3330.
 
Town of Greece, N.Y. v. Galloway, 572 U.S. 565, 582–83, 134 S. Ct. 1811, 1823, 188 L. Ed. 2d 835 (2014)
 
Disclaimer: The Religion Law Quizzes are provided as a service to you. They are intended only for educational purposes. Nothing in the Quizzes is intended to be legal advice and they should not be relied upon as conclusive on any issue discussed therein.
 

Religion Law Quiz #41 (First Amendment -- Government defining permissive speech)

True or False: The First Amendment is not a majority rule, and government may not seek to define permissible categories of religious speech.
 
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Answer: True.  This quote comes from a 2014 Supreme Court case:
 
The First Amendment is not a majority rule, and government may not seek to define permissible categories of religious speech. Once it invites prayer into the public sphere, government must permit a prayer giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian.
 
Town of Greece, N.Y. v. Galloway, 572 U.S. 565, 582, 134 S. Ct. 1811, 1822–23, 188 L. Ed. 2d 835 (2014). 
 
Disclaimer: The Religion Law Quizzes are provided as a service to you. They are intended only for educational purposes. Nothing in the Quizzes is intended to be legal advice and they should not be relied upon as conclusive on any issue discussed therein.

Religion Law Quiz #40 (History and the Establishment Clause)

What is the role of history in interpreting and applying the Establishment Clause? 
 
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Here's what the Supreme Court said about that in 2014:
 
[Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983)] teaches instead that the Establishment Clause must be interpreted “by reference to historical practices and understandings.” County of Allegheny, 492 U.S., at 670, 109 S.Ct. 3086 (KENNEDY, J., concurring in judgment in part and dissenting in part). That the First Congress provided for the appointment of chaplains only days after approving language for the First Amendment demonstrates that the Framers considered legislative prayer a benign acknowledgment of religion's role in society. D. Currie, The Constitution in Congress: The Federalist Period 1789–1801, pp. 12–13 (1997). In the 1850's, the judiciary committees in both the House and Senate reevaluated the practice of official chaplaincies after receiving petitions to abolish the office. The committees concluded that the office posed no threat of an establishment because lawmakers were not compelled to attend the daily prayer, S.Rep. No. 376, 32d Cong., 2d Sess., 2 (1853); no faith was excluded by law, nor any favored, *577 id., at 3; and the cost of the chaplain's salary imposed a vanishingly small burden on taxpayers, H. Rep. No. 124, 33d Cong., 1st Sess., 6 (1854). Marsh stands for the proposition that it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted. Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change.  County of Allegheny, supra, at 670, 109 S.Ct. 3086 (opinion of KENNEDY, J.); see also School Dist. of Abington Township v. Schempp, 374 U.S. 203, 294, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (Brennan, J., concurring) (“[T]he line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers”). A test that would sweep away what has so long been settled would create new controversy and begin anew the very divisions along religious lines that the Establishment Clause seeks to prevent. See Van Orden v. Perry, 545 U.S. 677, 702–704, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005) (BREYER, J., concurring in judgment).
 
Town of Greece, N.Y. v. Galloway, 572 U.S. 565, 576–77, 134 S. Ct. 1811, 1819, 188 L. Ed. 2d 835 (2014) (underlining added).
 
Disclaimer: The Religion Law Quizzes are provided as a service to you. They are intended only for educational purposes. Nothing in the Quizzes is intended to be legal advice and they should not be relied upon as conclusive on any issue discussed therein.
 

Religion Law Quiz #39 (Prayer at the beginning of legislative sessions)

Why is it that Congress and other state legislatures can open their session with prayer without running afoul of the Establishment Clause? 
 
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The U.S. Supreme Court answered this question in 2014 in Town of Greece, N.Y. v. Galloway when it stated:
 
In Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, the Court found no First Amendment violation in the Nebraska Legislature's practice of opening its sessions with a prayer delivered by a chaplain paid from state funds. The decision concluded that legislative prayer, while religious in nature, has long been understood as compatible with the Establishment Clause. As practiced by Congress since the framing of the Constitution, legislative prayer lends gravity to public business, reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful society. See Lynch v. Donnelly, 465 U.S. 668, 693, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O'Connor, J., concurring); cf. A. Adams & C. Emmerich, A Nation Dedicated to Religious Liberty 83 (1990). The Court has considered this symbolic expression to be a “tolerable acknowledgement of beliefs widely held,” Marsh, 463 U.S., at 792, 103 S.Ct. 3330, rather than a first, treacherous step towards establishment of a state church.
 
Town of Greece, N.Y. v. Galloway, 572 U.S. 565, 575, 134 S. Ct. 1811, 1818, 188 L. Ed. 2d 835 (2014)
 
Disclaimer: The Religion Law Quizzes are provided as a service to you. They are intended only for educational purposes. Nothing in the Quizzes is intended to be legal advice and they should not be relied upon as conclusive on any issue discussed therein.

Religion Law Quiz #38 (Religion in the Constitution other than the First Amendment)

Whenever we hear about religion and the Constitution we instinctively think of the First Amendment.  But there is another provision in the U.S. Constitution that also deals with religion.  Where is that other reference and what does it provide? 
 
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The language comes from the very last paragraph of Article VI of the Constitution.  It provides:
 
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
(emphasis added)
Disclaimer: The Religion Law Quizzes are provided as a service to you. They are intended only for educational purposes. Nothing in the Quizzes is intended to be legal advice and they should not be relied upon as conclusive on any issue discussed therein.

Religion Law Quiz #37 (Priest - Penitent Privilege)

Today's Religion Law Quiz dives into the world of evidence.  Do either Missouri and/or Kansas have a priest-penitent privilege and, if so, where is it codified?
 
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Both Missouri and Kansas have statutorily enacted the Priest-Penitent privilege.  The applicable statutes are listed below. 
 
Missouri
491.060.  Persons incompetent to testify — exceptions, children in certain cases. — The following persons shall be incompetent to testify:
….
 
  (4)  Any person practicing as a minister of the gospel, priest, rabbi or other person serving in a similar capacity for any organized religion, concerning a communication made to him or her in his or her professional capacity as a spiritual advisor, confessor, counselor or comforter;
 
Kansas
60-429.Penitential communication privilege. (a) Definitions. As used in this section, (1) the term "duly ordained minister of religion" means a person who has been ordained, in accordance with the ceremonial ritual, or discipline of a church, religious sect, or organization established on the basis of a community of faith and belief, doctrines and practices of a religious character, to preach and to teach the doctrines of such church, sect, or organization and to administer the rites and ceremonies thereof in public worship, and who as his or her regular and customary vocation preaches and teaches the principles of religion and administers the ordinances of public worship as embodied in the creed or principles of such church, sect, or organization; (2) the term "regular minister of religion" means one who as his or her customary vocation preaches and teaches the principles of religion of a church, a religious sect, or organization of which he or she is a member, without having been formally ordained as a minister of religion, and who is recognized by such church, sect, or organization as a regular minister; (3) the term "regular or duly ordained minister of religion" does not include a person who irregularly or incidentally preaches and teaches the principles of religion of a church, religious sect, or organization and does not include any person who may have been duly ordained a minister in accordance with the ceremonial, rite, or discipline of a church, religious sect or organization, but who does not regularly, as a vocation, teach and preach the principles of religion and administer the ordinances of public worship as embodied in the creed or principles of his or her church, sect, or organization; (4) "penitent" means a person who recognizes the existence and the authority of God and who seeks or receives from a regular or duly ordained minister of religion advice or assistance in determining or discharging his or her moral obligations, or in obtaining God's mercy or forgiveness for past culpable conduct; (5) "penitential communication" means any communication between a penitent and a regular or duly ordained minister of religion which the penitent intends shall be kept secret and confidential and which pertains to advice or assistance in determining or discharging the penitent's moral obligations, or to obtaining God's mercy or forgiveness for past culpable conduct.
 
(b)Privilege. A person, whether or not a party, has a privilege to refuse to disclose, and to prevent a witness from disclosing a communication if he or she claims the privilege and the judge finds that (1) the communication was a penitential communication and (2) the witness is the penitent or the minister, and (3) the claimant is the penitent, or the minister making the claim on behalf of an absent penitent.
 
 
60-430.
Religious belief. Every person has a privilege to refuse to disclose his or her theological opinion or religious belief unless his or her adherence or nonadherence to such an opinion or belief is material to an issue in the action other than that of his or her credibility as a witness.
 
Disclaimer: The Religion Law Quizzes are provided as a service to you. They are intended only for educational purposes. Nothing in the Quizzes is intended to be legal advice and they should not be relied upon as conclusive on any issue discussed therein.

Religion Law Quiz #36 (Bankruptcy Court Jurisdiction over Church Property)

True or False: If a debtor-religious organization transfers certain property (as part of its plan of reorganization) to another entity and there is subsequently a challenge as to who controls that new religious entity with the property, the Bankruptcy Court has subject matter jurisdiction to consider the dispute? 
 
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Answer: True.  This was the situation from a Oct. 2022 case from the Bankruptcy Court for the Southern District of New York.  Consider the following quote from that decision:
 
The Injunction, inter alia, prohibited Appellants from entering or remaining on the Property because the Property was rightfully owned by CRDI. Appellants held a meeting the same day the Injunction was issued wherein they purported to name themselves the trustees of CRDI, in a blatant attempt to undermine the effect of the Injunction. As the Bankruptcy Court aptly noted, “it's really transparent what happened here, which is that a light bulb went off in someone's head, and they said, hey we're losing on the property issue, so let's just say we're CRDI now.” (Tr. at 17:20-23). If Appellants prevailed in this case, then each of the Bankruptcy Court's prior orders prohibiting them from entering the Property would be of no effect and the Plan itself, which transferred the Property from Mosdos to CRDI would be subverted in all but name. Under these circumstances, the Bankruptcy Court clearly has subject matter jurisdiction to enforce and preserve its own orders. In re Texaco Inc., 182 B.R. 937, 947 (Bankr. S.D.N.Y. 1995) (“A bankruptcy court is undoubtedly the best qualified to interpret and enforce its own orders including those providing for discharge and injunction”).
 
The Bankruptcy Court had subject matter jurisdiction over this adversary proceeding. Its grant of summary judgment is, in that regard, affirmed.
 
Gewirtzman v. Markowitz, 646 B.R. 604, 612–13 (S.D.N.Y. 2022), aff'd sub nom. In re Mosdos Chofetz Chaim Inc., No. 22-2926, 2023 WL 6532954 (2d Cir. Oct. 6, 2023)
 
Disclaimer: The Religion Law Quizzes are provided as a service to you. They are intended only for educational purposes. Nothing in the Quizzes is intended to be legal advice and they should not be relied upon as conclusive on any issue discussed therein.

Religion Law Quiz #35 (Respect for Marriage Act)

The Respect for Marriage Act was enacted on December 13, 2022.  What amendments to the United States Code did the Respect for Marriage Act make and what protections for religious freedom were included in the Respect for Marriage Act?
 
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Answer: Please see the text from PL 117-228, December 13, 2022, 136 Stat 2305.  Relevant portions are included below. 
https://www.congress.gov/117/plaws/publ228/PLAW-117publ228.pdf
SEC. 4. FULL FAITH AND CREDIT GIVEN TO MARRIAGE EQUALITY.
Chapter 115 of title 28, United States Code, as amended by this Act, is further amended by inserting after section 1738B the following:
‘‘§ 1738C. Certain acts, records, and proceedings and the effect thereof
‘‘(a) IN GENERAL.—No person acting under color of State law may deny— ‘‘(1) full faith and credit to any public act, record, or judicial proceeding of any other State pertaining to a marriage between 2 individuals, on the basis of the sex, race, ethnicity, or national origin of those individuals; or ‘‘(2) a right or claim arising from such a marriage on the basis that such marriage would not be recognized under the law of that State on the basis of the sex, race, ethnicity, or national origin of those individuals.
‘‘(b) ENFORCEMENT BY ATTORNEY GENERAL.—The Attorney General may bring a civil action in the appropriate United States district court against any person who violates subsection (a) for declaratory and injunctive relief.
‘‘(c) PRIVATE RIGHT OF ACTION.—Any person who is harmed by a violation of subsection (a) may bring a civil action in the appropriate United States district court against the person who violated such subsection for declaratory and injunctive relief. ‘
‘(d) STATE DEFINED.—In this section, the term ‘State’ has the meaning given such term under section 7 of title 1.’’.
SEC. 5. MARRIAGE RECOGNITION.
Section 7 of title 1, United States Code, is amended to read as follows:
‘‘§ 7. Marriage
‘‘(a) For the purposes of any Federal law, rule, or regulation in which marital status is a factor, an individual shall be considered married if that individual’s marriage is between 2 individuals and is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is between 2 individuals and is valid in the place where entered into and the marriage could have been entered into in a State.
‘‘(b) In this section, the term ‘State’ means a State, the District of Columbia, the Commonwealth of Puerto Rico, or any other territory or possession of the United States.
‘‘(c) For purposes of subsection (a), in determining whether a marriage is valid in a State or the place where entered into, if outside of any State, only the law of the jurisdiction applicable at the time the marriage was entered into may be considered.’’
1 USC 7 note
SEC. 6. NO IMPACT ON RELIGIOUS LIBERTY AND CONSCIENCE.
(a) IN GENERAL.—Nothing in this Act, or any amendment made by this Act, shall be construed to diminish or abrogate a religious liberty or conscience protection otherwise available to an individual or organization under the Constitution of the United States or Federal law.
(b) GOODS OR SERVICES.—Consistent with the First Amendment to the Constitution, nonprofit religious organizations, including churches, mosques, synagogues, temples, nondenominational ministries, interdenominational and ecumenical organizations, mission organizations, faith-based social agencies, religious educational institutions, and nonprofit entities whose principal purpose is the study, practice, or advancement of religion, and any employee of such an organization, shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage. Any refusal under this subsection to provide such services, accommodations, advantages, facilities, goods, or privileges shall not create any civil claim or cause of action
 
***
For a discussion of the Respect of Marriage Act see https://en.wikipedia.org/wiki/Respect_for_Marriage_Act