Page: 247 - Note b posted on 2/5/2012

The Obama administration faces a huge uproar over its decision not to exempt religious employers from requirements to provide contraceptive insurance coverage for their employees without copay, coinsurance or deductible. Although houses of worship or groups that hire only members of their own faith are exempt from the rule, religious employers like hospitals, schools and universities are not. Many Catholics have expressed outrage over the idea that Catholic employers have to provide such insurance coverage and predict that the president may now lose the Catholic vote in the 2012 election. How do you assess the decision to apply the insurance law to religious employers? See Amanda Marcotte, Obama Administration Denies Contraception Exemption to Religion-Affiliated Employers, Slate, Jan. 20, 2012 at link to this text. E.J. Dionne, Obama's Breach of Faith over Contraceptive Ruling, Wash. Post, Feb. 3, 2012; Denise Grady, Ruling on Contraception Draws Battle Lines at Catholic Colleges, N.Y. Times, Jan. 29, 2012.

Many Catholic priests read letters condemning the administration's policy at Sunday church services. Should they lose their tax-exempt status? See Howard Friedman, Catholic Churches Around Nation Read Letters Attacking HHS Health Insurance Requirement, Religion Clause, Jan. 31, 2012, at link to this text; Howard Friedman, White House Press Secretary Responds to Bishops' Criticism of Health Care Policy, Religion Clause, Feb. 1, 2012, at link to this text; Mitchell Landsberg, Catholics Plan Counterattack on New Contraception Coverage, L.A. Times, Feb. 3, 2012.

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Page: 202 - End of Note 7a posted on 2/5/2012

Relying upon Newark, the Iowa Supreme Court ruled that a Mitchell County ordinance protecting county roads violated the free exercise rights of the Old Order Groffdale Conference Mennonite Church. The Mennonites' religion prohibits them from driving tractors unless they are equipped with steel cleats. The steel wheel requirement was put into effect about 40 years ago to keep Mennonites from riding tractors for pleasure. A member driving a tractor without steel wheels is expelled from the church.

The statute was passed after the county used a new resurfacing concrete that was damaged by the steel cleats. According to the statute:

No person shall drive over the hard surfaced roadways, including but not limited to cement, concrete and blacktop roads, of Mitchell County, or any political subdivision thereof, a tractor or vehicle equipped with steel or metal tires equipped with cleats, ice picks, studs, spikes, chains or other projections of any kind or steel or metal wheels equipped with cleats, ice picks, studs, spikes, chains, or other projections of any kind.

The Iowa court ruled that the law, although neutral, was not a law of general applicability under Smith. The law contained an exception for school buses, which are allowed to use ice grips and tire studs year round, and did not regulate various other sources of road damage beside steel wheels.

Because the law was not of general applicability, the court applied strict scrutiny. Without examining the government's compelling interest, the court ruled that the statute was not narrowly tailored to protecting the roads. According to the court, "Given the lack of evidence of the degree to which the steel lugs harm the County's roads, the undisputed fact that other events cause road damage, and the undisputed fact that the County had tolerated steel lugs for many years before 2009, it is difficult to see that an outright ban on those lugs is necessary to serve a compelling state interest." Mitchell County v. Zimmerman, --- N.W.2d ----, 2012 WL 333777, at *13 (Iowa). Do you agree that if buses are exempt then Mennonite tractors must be?

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Page: 560 - End of Note 6 posted on 2/5/2012

Watch the tape of Obama adviser Valerie Jarrett's visit to Ebenezer Baptist Church. Were any tax laws violated? See Jonathan Turley, Laying Hands on the Faithful: Did Valerie Jarrett Trip the Wire in Using Atlanta Church to Stump for Obama?, Jan. 17, 2012, at link to this text.

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Page: 653 - End of Note 9 posted on 2/5/2012

ReligionClause identifies anti-evolution bills in four states--Indiana, New Hampshire, Missouri and Oklahoma--that are being introduced in 2012. See Howard Friedman, Anti-Evolution Bills Begin to Be Introduced in 2012 State Legislatures, Religion Clause, Jan. 23, 2012, at link to this text. Indiana's legislation allows schools to "offer instruction on various theories of the origin of life. The curriculum for the course must include theories from multiple religions, which may include, but is not limited to, Christianity, Judaism, Islam, Hinduism, Buddhism, and Scientology." What do you think of Indiana's proposal? Are you surprised that Intelligent Design proponents have criticized the bill on the grounds that they want to teach science, not religion? See Howard Friedman, Indiana Senate Passes Creationism Bill which is Criticized by Intelligent Design Advocates, Religion Clause, Feb. 3, 2012, at link to this text.

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Page: 757 - End of Note 2 posted on 2/5/2012

The Iowa Supreme Court ruled that a Mitchell County ordinance protecting county roads violated the free exercise rights of the Old Order Groffdale Conference Mennonite Church. The Mennonites' religion prohibits them from driving tractors unless they are equipped with steel cleats. The steel wheel requirement was put into effect about 40 years ago to keep Mennonites from riding tractors for pleasure. A member driving a tractor without steel wheels is expelled from the church.

The statute was passed after the county used a new resurfacing concrete that was damaged by the steel cleats. According to the statute:

No person shall drive over the hard surfaced roadways, including but not limited to cement, concrete and blacktop roads, of Mitchell County, or any political subdivision thereof, a tractor or vehicle equipped with steel or metal tires equipped with cleats, ice picks, studs, spikes, chains or other projections of any kind or steel or metal wheels equipped with cleats, ice picks, studs, spikes, chains, or other projections of any kind.

The Iowa court ruled that the law, although neutral, was not a law of general applicability under Smith. The law contained an exception for school buses, which are allowed to use ice grips and tire studs year round, and did not regulate various other sources of road damage besides steel wheels.

Because the law was not of general applicability, the court applied strict scrutiny. Without examining the government's compelling interest, the court ruled that the statute was not narrowly tailored to protecting the roads. According to the court, "Given the lack of evidence of the degree to which the steel lugs harm the County's roads, the undisputed fact that other events cause road damage, and the undisputed fact that the County had tolerated steel lugs for many years before 2009, it is difficult to see that an outright ban on those lugs is necessary to serve a compelling state interest." Mitchell County v. Zimmerman, --- N.W.2d ----, 2012 WL 333777, at *13 (Iowa).

What means are more narrowly tailored? See id. (Mennonites could add money to a fund for the roads).

Although the rule against steel cleats was based on the Biblical text of Romans 12:2 ("be not conformed to this world"), the religious practice allowing Mennonites to use tractors (instead of horses and buggies) as long as they had steel cleats) was only 40 years old. Should that have affected the ruling under Yoder? Or does Yoder require a win for the Mennonites?

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