The Los Angeles Times (free registration required) sheds light on one of the Justice Department’s well kept open secrets: It’s religious police.

One of the main jobs at the Justice Department is enforcing the nation’s civil rights laws. So when a nonprofit group was accused of employment discrimination last year in New York, the department moved swiftly to intervene — but not on the side one might expect.

The Salvation Army was accused in a lawsuit of imposing a new religious litmus test on employees hired with millions of dollars in public funds.

When employees complained that they were being required to embrace Jesus Christ to keep their jobs, the Justice Department’s civil rights division took the side of the Salvation Army.

Defending the right of an employer using public funds to discriminate is one of the more provocative steps taken by a little-known arm of the civil rights division and its special counsel for religious discrimination.

The Justice Department’s religious-rights unit, established three years ago, has launched a quiet but ambitious effort aimed at rectifying what the Bush administration views as years of illegal discrimination against religious groups and their followers.

The U.S. having religious police sounds really foreign, huh? To be fair though, the religious police have scored many a victory for the good guys:

For example, the Justice Department prevailed last year when a Muslim girl’s right to wear a head scarf to class was upheld — she had been suspended for violating the dress code at a public school in Oklahoma. The department also has challenged the practice of making residents at some youth detention facilities in the South participate in religious activities.

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Earlier this week the Supreme Court heard oral arguments in the case of Van Orden v. Rick Perry (Governor of the Red State of Texas). Slate explains in their “oh so irreverent” manner:

Imagine a bunch of elderly, black-robed medieval clerics absorbed in a scholarly dialogue on the number of angels (better make that “secular” angels—candy stripers or maybe Hell’s Angels) able to dance on the head of a pin. You’d have a good idea of how oral argument went this morning in the pair of cases involving displays of the Ten Commandments on state property.

At one level everything appears scholarly and doctrinal. Until you realize that the doctrine is a mess, and the justices are so tangled up in old tests, old glosses on old tests, and new glosses on new tests that they don’t even know how to talk about the Establishment Clause cases, much less how to resolve them. Perhaps the court is waiting to resolve the chaos until there are as many different Establishment Clause tests (legal scholars currently count about seven) as there are commandments.

The Establishment Clause of the First Amendment provides that “Congress shall make no law respecting an establishment of religion.” That ban has been interpreted to sweep in state and local governments as well. The disaster-on-stilts the court has used to determine whether such an establishment has taken place is known as the “Lemon test,” vomited forth upon the land in a 1971 case called Lemon v. Kurtzman. That test asked whether the government’s conduct had: (i) a secular purpose; (ii) a principal or primary effect that neither enhances nor inhibits religion; and (iii) did not foster excessive entanglement with religion.

Among the many groups that had their day in court was the Hindu American Foundation. Continue reading →