Archive for the ‘Free Speech’ Category

A Limited Victory for Religious Freedom

Monday, June 4th, 2018

The Supreme Court ruled today, by a wide majority of 7 to 2, in one of its most anticipated cases of the session, Masterpiece Cakeshop v. Colorado Civil Rights Commission. The result was a victory for the particular religious liberty claim raised by the owner of the shop, Jack Philips. But this victory was limited by the Court’s very fact-specific ruling, and it’s explicit statement that there is no guarantee that future cases will be handled the same way.

The facts are fairly simple. In 2012, prior to the legalization of same-sex “marriage” in Colorado and the United States in general, two men approached Mr. Phillips and asked him to create a cake for their upcoming “wedding”. Mr. Phillips declined, saying that he did not create cakes for same-sex weddings, even though he would serve same-sex couples for other occasions. It’s important to note that Mr. Phillips views his business not just a profit-making venture. Rather, he says that his “main goal in life is to be obedient to” Jesus Christ and Christ’s “teachings in all aspects of his life” and he seeks to “honor God through his work at Masterpiece Cakeshop.” So his refusal to participate and celebrate the same-sex “wedding” was an expression of his deeply-held religious belief that marriage is the union of one man and one woman.

A complaint was brought against Mr. Phillips, claiming that he was violating the Colorado Anti-Discrimination Act by refusing service on the basis of sexual orientation. The case went before the Colorado Civil Rights Commission for decision. The Commission ruled against Mr. Phillips, as did the Colorado Court of Appeals. That’s what brought the case to the Supreme Court.

The Supreme Court paid very close attention to what happened before the Commission. The Court noted,

As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments. Nor were they mentioned in the later state-court ruling or disavowed in the briefs filed here. The comments thus cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.

In fact, the Commission had also heard three other cases recently that were relevant to Mr. Phillips’ case. In each of those cases, the Commission had ruled that bakers could refuse to create cakes with religious statements against homosexuality and same-sex “marriage” because the bakers found those statements “offensive”. The Court found this disparate treatment to be explicable only by the Commission’s hostility to Mr. Phillips’ religious beliefs. The Court concluded,

The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decision maker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided.

If there is anything that the First Amendment religion clauses stand for, it’s that government cannot favor certain viewpoints or punish others because the government officials have particular preferences. The Constitution demands that everyone be treated even-handedly, even if certain powerful people find the religious views involved to be “offensive”. The Court found that the Commission had not treated Mr. Phillips fairly because it disapproved of his religious views.

It is also important that, as the Court noted, “the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.” This directly rejected the Colorado courts’ finding that his creation of wedding cakes did not qualify as “speech” because it was “not sufficiently expressive”. In a strong concurrence, Justice Thomas explained this error in detail.

While it is certainly a significant legal victory for Mr. Phillips (and for Alliance Defending Freedom, who represented him), the significance of this case is muted by the Court’s fact-based analysis and their specific caveat that future cases may come out differently. It is unfortunate that the Court did not explicitly adopt Justice Thomas’ broader view of religiously-motivated expressive conduct as a form of protected free speech. And it is also regrettable that the Court did not repudiate the position, taken by some state courts, that whenever there is a conflict between religious freedom and anti-discrimination laws, religion will always lose.

This decision does not mean, as some critics will undoubtedly argue, that religious people have a “license to discriminate”. But it does affirm that religious people are entitled to a fair hearing by a neutral decision-maker, and that overt hostility to religious belief is still forbidden. And that is clearly a victory for religious freedom.

Intolerance in Philadelphia

Friday, May 18th, 2018

The City of Philadelphia plays a central role in the story of American freedom. It was the location of the writing of both the Declaration of Independence and the Constitution, and the colony of Pennsylvania was notable for its religious toleration. It’s too bad that the current city government is now ignoring that legacy by violating the religious liberty of the Catholic Church.

The basic facts are very simple. There is a crisis in the foster care system in the City of Philadelphia. You recall that foster care serves some of the most vulnerable children in our society — victims of abuse or neglect, frequently with very serious medical and psychological challenges. There are approximately 6,000 children in Philadelphia’s foster care system, awaiting placement in a foster home. The City issued a call for new foster families, but then banned one of the oldest and most successful agencies, Catholic Social Services, from placing any children into foster homes.

The reason? The City of Philadelphia disapproves of the Catholic Church’s belief and teaching that the best place for a child to be raised is in a home with a married mother and father, and thus the refusal of Catholic agencies to place foster children with same-sex couples.

There are some important things to note. CCS does not discriminate against any child based on their sexual orientation. CCS will refer same-sex couples to one of the 26 other agencies that place children in foster homes. There are foster families, certified through CCS, who are ready and able to foster right now, but the City won’t allow the placement. Nobody has ever filed a complaint against CCS based on its religious mission, and its religious beliefs have never prevented a child from being placed in a home. And there is a history of bias against the Church — powerful city officials, including the mayor, have made numerous bitterly critical statements against the Church and the Archbishop of Philadelphia because of our religious beliefs about marriage and human sexuality.

The Church’s teaching on this is quite clear:

Homosexual unions are also totally lacking in the conjugal dimension, which represents the human and ordered form of sexuality… As experience has shown, the absence of sexual complementarity in these unions creates obstacles in the normal development of children who would be placed in the care of such persons. They would be deprived of the experience of either fatherhood or motherhood… This is gravely immoral and in open contradiction to the principle, recognized also in the United Nations Convention on the Rights of the Child, that the best interests of the child, as the weaker and more vulnerable party, are to be the paramount consideration in every case. (Congregation for the Doctrine of the Faith, Considerations Regarding Proposals to Give Legal Recognition to Unions Between Homosexual Persons, 7)

And the duty of Catholic organizations not to cooperate with this is also quite clear:

In those situations where homosexual unions have been legally recognized or have been given the legal status and rights belonging to marriage, clear and emphatic opposition is a duty. One must refrain from any kind of formal cooperation in the enactment or application of such gravely unjust laws and, as far as possible, from material cooperation on the level of their application. In this area, everyone can exercise the right to conscientious objection. (5)

Becket, the stalwart defenders of religious liberty, has filed suit against the City of Philadelphia. This should be a fairly easy case, considering that just last year the Supreme Court unanimously ruled that the government cannot deny generally-available public benefits to a religious organization purely because of their religious beliefs. In that case, the Court said plainly, “[A] law targeting religious beliefs as such is never permissible.” This is not a new doctrine. Fifty years ago, the Court said “The State may not adopt programs or practices . . . which ‘aid or oppose’ any religion. . . . This prohibition is absolute.” Apparently these decisions were not read by the government of the City of Philadelphia.

Yet the usual voices from the forces of intolerance are being heard, with all the usual false accusations and incorrect statements of fact, law and principle. Some examples:

  • “This is just bare hatred of gay couples.”
This is a strange argument, since the whole purpose of the foster care system is to consider the best interests of the child, not the interests or desires of prospective foster parents. The Church’s position is based on love of the child, and concern for the best way to assure their welfare and development.
  • “If they don’t want to follow the government’s rules, they should get out of the foster care business.”
As we noted above, there is such a thing as the First Amendment, which guarantees both the free exercise of religion and protection from the establishment of religion. This means that the government cannot reward or penalize a church — no playing favorites based on preferred doctrines. By directly penalizing the Catholic Church for our religious beliefs, the City has, in effect, established a definition of acceptable religious beliefs — and those that they will not tolerate. That’s totally out of bounds under the First Amendment.
  • “The agency isn’t being asked to do anything other than implement the rules set down by the government.”
Private organizations aren’t mindless puppets of the state. A foster care agency has to evaluate individual cases for the suitability of placement of individual children into individual homes. This takes discretion and adherence to particular principles, including the teachings of the Church mentioned above on the best interests of children. If the agency feels it cannot do that, it will refer the children and parents to another agency. Plus, we again have to remember the existence of the First Amendment, which says that churches are not mere instruments of the state. They are independent, and their internal affairs cannot be interfered with by the government.
  • “They’d rather the children suffer in orphanages than allow gay couples to foster them.”
No child is living in an orphanage, a la Oliver Twist, and there are 26 other agencies that are perfectly free to certify gay couples and place children with them. Since there are so many alternatives, why must the City insist on ideological submission by CCS?
  • “Haven’t Christian adoption agencies shut down just to prevent gay people from adopting?”
Catholic adoption agencies have been forced out of business in a number of places (Washington, Boston, San Francisco, Illinois) — state agencies denied them licenses because they disapproved of Catholic beliefs. What Philadelphia is doing is another example of the same kind of intolerance. Catholic Charities wants to conduct its affairs in keeping with our faith, while other agencies can operate according to their principles and place children with same-sex couples.
  • “Isn’t this the same as refusing to place kids in interracial homes?”
Race is completely different from sexual orientation — it has nothing whatsoever to do with the nature and structure of a family and the right of a child to have a mother and father to raise them. It’s interesting that in some states, like New York, agencies are required to give preference to placing children with adoptive parents of the same religion. Some people have argued that race and ethnicity  should also be considered. If it’s okay to consider those factors, why can’t Catholic agencies consider a religion-based factor that we consider important for the well-being of a child?
  • This is just another example of the Church trying to impose their morality on others.
Who’s using political and financial power to push forward an agenda? Who’s doing that based on a moral and political judgment about human sexuality and marriage? Answer — it’s the City of Philadelphia that’s using its political power to impose its morality. They’re the ones who have decided that CCS is morally unfit to place foster children. The Church is just asking to be left alone to operate our foster care agency according to our religious beliefs, which puts a burden on absolutely nobody.

The point here isn’t whether people think that children should be placed in foster homes with same-sex couples. It also isn’t whether people agree with the Church on this issue or not — in fact, I imagine that the vast majority of Americans don’t agree. The point here is that an intolerant government is using its political power to enforce ideological conformity upon a religious organization that dares to dissent from current sexual orthodoxy. All Americans, regardless of what they think about the underlying issues, should be appalled by this abuse of power.

It’s an interesting irony that this is happening in Philadelphia. The man who wrote the Declaration of Independence in that city later became President. While serving in that office, he received a letter from some Catholic nuns in New Orleans who were worried that they would lose title to their property after the United States bought the Louisiana Purchase territory. The letter President Thomas Jefferson wrote to them is worth quoting in full:

I have received, holy sisters, the letter you have written me wherein you express anxiety for the property vested in your institution by the former governments of Louisiana. The principles of the constitution and government of the United States are a sure guarantee to you that it will be preserved to you sacred and inviolate, and that your institution will be permitted to govern itself according to its own voluntary rules, without interference from the civil authority. Whatever diversity of shade may appear in the religious opinions of our fellow citizens, the charitable objects of your institution cannot be indifferent to any; and its furtherance of the wholesome purposes of society, by training up its younger members in the way they should go, cannot fail to ensure it the patronage of the government it is under. Be assured it will meet all the protection which my office can give it.

How far we have come from those days, when the “inalienable right” of freedom of religion was assured by such generous and liberal words – and by a man who was not a religious believer himself. Too bad that the city government of Philadelphia hasn’t learned that lesson.

Don’t Dishonor Columbus

Thursday, August 24th, 2017

The movement to remove some public historical monuments has gained considerable momentum after the tragic events in Charlotteville.

I am sympathetic to the removal of statues to Confederate leaders. These men fought for an evil and ignoble cause and their statues were for the most part erected to reinforce a wicked regime of white supremacy during the Jim Crow era. Calling attention to this, and cleansing the public square of these monuments, may help to reinforce the rejection of racism that our society clearly needs.

But the “progressives” in our nation have begun to turn their iconoclastic attention to other historical monuments, and in this they are not on such solid ground. In particular, by targeting Christopher Columbus, they have gone too far and have shown a deplorable lack of moral and historical sense. To dishonor Columbus would be a crime against our history.

Modern progressive ideology holds Columbus responsible for all that went wrong after the discovery of the New World. Those effects are undeniable and Columbus was certainly implicated in conduct that by modern standards are unacceptable (but which is also grossly exaggerated). Historians disagree about the extent of his involvement in that conduct, and we should leave it to them and their researches to provide the basic facts.

But on the moral level, the legacy and conduct of Columbus deserve great respect and honor. To understand Columbus, we have to appreciate the completely Christian mind with which he — along with all of his contemporaries — viewed the world. The modern mind cannot understand the centrality of faith to a man such as Columbus, a deeply devout Christian of the late Medieval era. His faith affected every part of his view of the world, and was the most significant motivation for all that he did. To him, the liberation of Jerusalem the Holy City of God and the conversion of non-believers to offer them salvation were moral imperatives of the highest order. In his view, the occupation of the Holy Land by Muslims and the fall of Constantinople were not just political and military matters, but were catastrophes that had apocalyptic significance and demanded a response by Christians.

Columbus’s nautical ventures were not purely commercial in nature, as our narrow modern economic obsession would view it. Nor was he bent on conquest and oppression, or seeking to discover a new continent, or to prove that the world was round, as our contemporary historical ignorance would suggest. It was never Columbus’s intention to spread disease or to commit genocide. Unlike Confederate generals, it was never a fundamental part of his mission to enslave anyone. To allege otherwise is to commit a vicious and ignorant historical slander.

Columbus’s mission always and at its heart was motivated by his deep Christian religious beliefs. To understand this we can just look to Columbus’ own diary, in which he explained that he sought the journey in hope that he would find enough gold and spices to finance a crusade to liberate the Holy Sepulcher, and he urged the King and Queen of Spain “to spend all the profits of my enterprise on the conquest of Jerusalem”.

His faith and trust in God was what led him to his great adventure. This is what gave him the courage never to give up on his goal, despite all the personal hardships and disappointments he suffered. He was impelled always by what he saw as God’s holy will for him, his part in the mission to bring the Gospel to the whole world, his role in preparation for the coming of the Kingdom of God.

It is clear that Columbus did not foresee the negative consequences of his journeys. But who among us can see all the results of our actions? How was he to know that the natives of the Americas would be vulnerable to European diseases (and vice versa) or that the new colonists would act as monsters? It’s also important to recall that we can say with absolute certainty that there have been enormous good consequences of Columbus’s intrepid journeys. The opening of a whole new world has offered people an abundance of material blessings and has spread the Gospel, offering the hope of salvation to billions of people. This cannot be discounted in our evaluation of Columbus. Indeed, it should be given the tremendous weight that it deserves.

It is certainly ironic to see Columbus denounced as a killer by people whose evil acts are so obvious that all can see them — particularly the remorseless killing of African American and handicapped babies in the womb, which is ardently defended and supported by so-called “progressives”. One can only hope that history — and God — will judge them with more mercy and fairness than they are judging Columbus.

Christopher Columbus was not perfect. The values of his time were not as “enlightened” or “liberal” as ours. But he was undoubtedly one of the great men of history. Even to consider removing a statue honoring Columbus would be an act of historical sacrilege, a denial of the very roots of our society, and a crime against our heritage.

Scurrilous Accusations Against Christians

Friday, July 14th, 2017

In the current state of political discourse in the United States, it seems as if we have moved beyond the point where we can actually have rational reasonable arguments with each other. All too many people have descended back to the schoolyard, and are simply calling people names.

The cause of my reflection on this lamentable trend is the appearance of several news stories about the Attorney General speaking to the group Alliance Defending Freedom. There’s certainly nothing remarkable about a high-ranking public official who is a prominent lawyer speaking to another group of attorneys. The Attorney General is a political and social conservative and Alliance Defending Freedom is a well-known defender of traditional moral values when it comes to life, marriage and religious liberty. So it’s hard to see anything newsworthy about such a commonplace event. And, in fact, the speech itself was nothing extraordinary. It was a well-balanced defense of the role of religion in our society and the importance of religious liberty.

But nothing is so simple in our modern age. Several major news outlets covered this story before the text of the speech was released, and prominently repeated a despicable slander against ADF propagated by an advocacy organization called the Southern Poverty Law Center. The SPLC is a self-appointed watchdog over “hate groups” around the country. There certainly are many hate groups around the country who are dedicated to violent action motivated by bias, and it’s a good thing that someone is keeping an eye on them. In reality though, the SPLC is not a neutral agency like the FBI, but is instead a partisan advocacy organization for socially progressive causes, especially so-called gay rights, and a prodigious fund-raiser based on that advocacy.

Because ADF has the temerity to disagree with SPLC on those issues, the SPLC has designated them a “hate group”, and the media has now compliantly parroted the calumny. All that you need to do to qualify as a so-called “hate group” in the eyes of the SPLC is to disagree with them about issues like the effects of sexual hedonism on society, or the morality of homosexual conduct, same-sex “marriage”, and “transgender” rights. In other words, if you’re not with the progressive program you are a “hater”.

Now the SPLC can call people any name they like, since it is still a free country. But what’s really outrageous is that so-called reputable news organizations uncritically repeat the outrageous calumnies of the SPLC as if they were credible and objective, rather than the ideological name-calling that they really are.

We really shouldn’t be too surprised at this though. The Supreme Court in its decisions about homosexuality has been slandering people for years who have the nerve to hold to traditional moral values on sexuality. In 1996, the Court said that the only conceivable reason for a law passed by referendum that excluded sexual orientation from civil rights laws was “a bare . . . desire to harm a politically unpopular group” — in other words, pure malice. In 2013, the Court upped the ante when it struck down the federal Defense of Marriage Act and said that the virtually unanimous Congress and the Democratic president who signed the law we’re motivated by a “bare . . . desire to harm”, “disparage and injure”, “demean”, and “impose a stigma” on homosexual people. Justice Scalia rightly dissented from that decision and accused the court of declaring anyone opposed to same-sex “marriage” an enemy of the human race. Finally, in 2015 when the Supreme Court invented a right to same-sex “marriage”, the Court again accused those of us who believe in authentic marriage as being motivated by a desire to “demean or stigmatize” homosexuals, and even to “disparage their choices and diminish their personhood”.

When the highest court in the land says such things, then the message goes out that anyone who disagrees with the progressive agenda is irrational and bigoted, with no legitimate motivations and no opinions worthy of respect. That gives the SPLC and their allies in the media carte blanche to slander groups like ADF as “haters”. Others have barely avoided the term “hate” by using other words of disapprobation, such as “odious”, “bigoted”, “unkind”, “hurtful”, “intolerant”, and “needlessly cruel”. But the message is the same.

What the Supreme Court, the SPLC, and the media have not — yet — come out to say, however, is that what they are describing as “hate” is normal, mainstream, traditional, historical, Christian belief. By the way, that includes the beliefs contained in the Catechism of the Catholic Church, which have been held and taught by the Church since its founding.

Make no mistake about it. The supposedly “hateful” position that traditional orthodox Christians are accused of holding is the firm conviction based in Revelation, science, reason and tradition that maleness and femaleness are not accidental or arbitrary, that they have a meaning and a purpose oriented to unity of man and woman in marriage and the procreation of children, that homosexual desires and homogenital activity are incompatible with that meaning and purpose, and that a person can live a healthy and fulfilling life without acting on all of their sexual desires.

That’s not hate, that’s truth embedded deep into human nature, and it cannot be changed no matter what courts or advocacy groups say. And it doesn’t mean hating anyone – those of us who hold those beliefs still love our relatives, friends and neighbors who disagree with us.

Let me get back to ADF. I am very familiar with their work. I have been to their legal Academies, I have collaborated with their attorneys, and I have friends who are closely associated with them. I admire many of those in leadership positions there. I have found that they are an altruistic, heroic group of committed Christians who have sacrificed much to defend life, marriage, and religious liberty. They have done nothing to deserve the calumnies of the SPLC and the media. In fact they have done much to deserve the applause and support of all Americans who cherish traditional morality and decency, and the freedom to live by those values — and of those who disagree with them but defend their rights to free expression. Maybe the reason that groups like SPLC dislike ADF so much is that they’re so successful – they’ve won a number of key victories in court, including major cases in the Supreme Court.

Even in an era of debased public conversation, accusing people of “hatred” is a sign of intellectual bankruptcy, and indicates that you’ve lost the argument or that you don’t have enough confidence in your position to defend it. If you disagree with our positions on life, marriage and religious freedom, oppose us openly in the public square, legislatures and the courts. Don’t hide behind schoolyard insults.

Approaching a Dangerous Threshold

Wednesday, April 1st, 2015

Many years ago, the Supreme Court of the United States took up a case involving people who did not wish to conform to a law that they considered to be an imposition on their religious beliefs.  The government, backed by strong public opinion sought to enforce the law, and to compel this religious group to comply.

But they persisted in defending their civil rights, particularly their freedom of religion.  It was a time when it was widely understood that freedom of religion was actually a civil right, essential to well-ordered liberty.   People recalled that the freedom of religion was so important that it was explicitly enshrined in the United States Constitution in two separate places — in the Free Exercise and Establishment clauses of the First Amendment, and in the ban on religious tests for public office.  It was a time when freedom of religion was under attack around the world, with people of some faiths being openly and brutally persecuted.

But it was also a time when unpopular religions still faced legal obstacles in the United States.  Some faiths were considered to be out of step with American values, out of the mainstream of acceptable opinion, and were widely criticized and even derided in the popular media.

The group in that case was the Jehovah’s Witnesses, and the law required their children to recite the Pledge of Allegiance.  They took the issue all the way to the Supreme Court, in hopes that the highest court of our land would defend their right to live in keeping with their faith, and would grant them an exemption from the law.  The Supreme Court agreed with them, and reversed an earlier decision that gave their religious interests little respect.  In doing so, the Supreme Court, in the words of Justice Jackson, said something very significant about the nature of our government, and the importance of respecting dissent:

[F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.  If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.  (West Virginia State Board of Education v. Barnette, 1943)

We are now at a point in American history where this foundational principle is under direct attack, and it is not clear whether it will survive.  The long-standing conflict between the Christian faith and the forces of sexual liberation and radical egalitarianism is approaching a threshold that will be very dangerous to cross.

The battle right now is being conducted over religious freedom restoration statutes (“RFRA’s”) that have been enacted in twenty states (and which are the law by judicial decision in eleven others).  Those laws reflect the values expressed by the Supreme Court in the Jehovah’s Witness case.  RFRA laws recognize the civil rights of religious people to an exemption from certain general laws.  They would only get an exemption if they can prove that the law imposes a substantial burden on their religious beliefs.  However, they would still have to obey the law if the government has a compelling interest in enforcing it and there are no reasonable alternatives.  A RFRA law essentially creates a balancing test that courts would have to apply to a fact-based situation.  It does not grant a  blanket or automatic exemption to religious people.

The real dispute is, of course, whether Christians can be compelled to recognize same-sex “marriages” and to provide direct services to ceremonies that purport to create such unions.  A reasonable argument can be held about this question.  But that’s not what’s happening, and that’s precisely why we are in such a dangerous moment.

There has been an amazing amount of hysterical, ill-informed opposition to these RFRA laws that fail to take into account their true, limited nature.  But what really concerns me is the dismissive attitude that’s being displayed about religious freedom and the freedom to dissent.  People are speaking as if the category of “civil rights” didn’t even include freedom of religion, and that it must always be suppressed in favor of the supposed right to same-sex “marriage”.  One of our major political parties, most of the mainstream media, many of our courts, and a number of large corporations have already crossed the line into official intolerance towards religious liberty.   Public opinion polls show a shrinking number of people (albeit still a majority) who respect the right to dissent based on religion.  Gone are the days when dissent was considered a legitimate form of patriotism.

Basic respect for the right to dissent from official orthodoxy is under threat, and may not survive much longer.  When, as I expect, the Supreme Court invents the imaginary “right” to a same-sex “marriage”, this conflict will grow even more intense, and the danger to dissent based on religious beliefs will be even more acute.

On the other side of this threshold is real persecution, like that shown to the Jehovah’s Witnesses in the old days.  People are already being forced to recognize same-sex “marriages”, or face crippling fines and loss of businesses.  Institutions that resist will be punished by loss of public funding, access to public programs, and tax exemptions.  Individuals who dissent will be shunned and excluded from certain professions, and even from public office.

The right to dissent is essential to American liberty.  The Supreme Court saw that in the Jehovah’s Witness case.  Will our nation continue to see that now?

A Welcome, Disappointing Decision

Monday, June 30th, 2014

Pro-Lifers rarely win court cases, so it is very gratifying to win one in the Supreme Court. Unfortunately, even in victory, there is disappointment, and a sense that the constitutional rights of pro-life people have been relegated to second-class status.

The case was McCullen v. Coakley, and it arose out of a terrible Massachusetts law that established a 35-foot buffer zone around abortion clinics. Pro-lifers were prohibited from entering that zone, which effectively banned any attempt to speak to women seeking abortions (“sidewalk counseling”) completely. However — and this is crucial — abortion clinic staff were permitted to be in the zone and speak to the women who were approaching the clinic.

The Supreme Court, by a unanimous decision, found that the law was unconstitutional. However, the Court’s unanimity is actually deceiving — although all nine justices agreed that the law was invalid, the Court was actually split 5 to 4 on the reasoning. And the reasoning of the majority is very troubling.

One of the fundamental principles of the First Amendment guarantee of free speech is that the government cannot pass a law that is based on the content of a person’s speech, and that discriminates against one particular point of view. The principle is called “viewpoint neutrality”.  The majority found that the Massachusetts law did not violate the requirement of neutrality, but still found the law unconstitutional because it burdened speech more than was necessary to fulfill the government’s legitimate objectives.

But that reasoning is gravely flawed.  Take it out of the abortion context for a second. Consider the hypothetical case of a law that places a buffer zone around a mine entrance where there is a highly contentious strike taking place. Imagine that the law prohibits striking miners from being in that zone, but allows management employees to be in the zone and speak openly to strike-breaking workers seeking to enter the plant. Can anyone imagine a court upholding such an obviously biased law? Of course not — it would be a clear case of the government taking sides in a strike, and showing favoritism towards one point of view.

The Massachusetts statute is exactly the same, and is clearly not “viewpoint neutral”. It was specifically designed and intended to prosecute and deter only pro-life speakers, while giving pro-abortion speakers free reign to speak and act.

Nevertheless, the majority of the Court, led by the Chief Justice, implausibly concluded that the law was “viewpoint neutral”, because on its face it did not single out pro-life speech. This is absurd — everybody understands very clearly what the goal and effect of this law is.  As Justice Scalia stated in his concurring opinion,

The obvious purpose of the challenged portion of the Massachusetts Reproductive Health Care Facilities Act is to “protect” prospective clients of abortion clinics from having to hear abortion-opposing speech on public streets and sidewalks.

In short, although the Court unanimously struck down the law, there is only a minority of Justices who believe that pro-lifers deserve the full protection of the Constitution. This follows a disturbing trend in the Supreme Court, in which abortion distorts the Constitution — indeed, abortion corrupts everything it touches.

Again, to quote Justice Scalia:

Today’s opinion carries forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents. There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion.

So, while it’s good that we’ve won a big case, it’s clear that pro-lifers continue to be treated as second-class citizens in our courts.

 

Another Attempt to Silence Pro-Lifers

Tuesday, December 13th, 2011

A bill is pending before the Westchester County Board of Legislators that is designed to silence pro-life witness outside of abortion clinics.  It is similar to the bill that was passed by New York City a few years ago, about which I wrote here and here.  The bill hasn’t yet been voted on, but it remains a significant risk.

Here is the statement that I submitted to the Board, at its hearing last night:

I submit this statement in opposition to the proposed legislation concerning access to so-called “reproductive health care facilities”.

First, the proposed changes to the law are unnecessary.  There is no evidence that there is a substantial problem that needs to be addressed by this bill.  According to statistics provided by the New York State Division of Criminal Justice Services, there has been only one arrest in the entire state since 2000 for violations of the State clinic access law, and no criminal convictions. There is no need to strengthen laws that are never used, since there is no problem that needs to be addressed.

The second reason for our opposition to this bill is that  it is unconstitutionally overbroad and vague.  It is a established principle of constitutional law that any attempted regulation of speech be content-neutral, and narrowly tailored to meet a compelling state interest.  This is particularly true when the speech occurs on a public sidewalk, which has been described by the Supreme Court as a “public forum” where citizens generally have a First Amendment right to speak and gather together.  This bill fails to satisfy this standard, and creates a significant risk that people would be prosecuted or sued for the mere exercise of their right to free speech and assembly.

This bill is not neutral, because it specifically targets the conduct and speech of those who oppose abortion.  It is also vague and ambiguous, so that persons could not possibly know what kinds of behavior or speech are prohibited.  One of the provisions would make it a crime to “interfere” with the operations of “reproductive health care facilities”.  Yet that term is undefined and utterly subjective in meaning, and would thus chill the free speech rights of those who wish to speak to women seeking to enter those facilities.

Even if one were to ignore the lack of any history of problems at these facilities and assume that there was a “compelling state interest” here, this bill cannot be fairly described as “narrowly tailored”.  The bill would create a zone that goes far beyond any statute that has been approved by the courts.  No law has included such areas as public parking lots and bus stops that are within 200 feet of a facility, and created a large “bubble zone” around the “spaces” — whatever that term means — between those locations and the facility.  There can be no justification for such a broad zone where the free speech rights of citizens will be restricted.

This unnecessary bill is clearly aimed at suppressing speech, because that speech is disfavored by the owners and operators of abortion clinics.  This discriminatory legislation should be rejected.

A Major Victory for Life and for Free Speech

Thursday, July 14th, 2011

I have blogged a number of times about Intro 371, the New York City bill that targeted pregnancy centers for unfair and discriminatory regulations, with an aim towards silencing them and putting them out of business.

Pro-lifers from our city, and leaders of national pro-life groups all lobbied very hard to prevent the passage of that bill.  At a public hearing, and in repeated communications with the Council, we warned them that the bill was unconstitutional.  But they didn’t care.  Even when two courts in Maryland struck down similar bills as being unconstitutional, they were undeterred.  Spurred on by the abortion industry and the anti-life ideologues of NARAL, Planned Parenthood, and the New York Civil Liberties Union, the Council heedlessly went forward with the bill, and the mayor imprudently signed it into law.

A lawsuit was filed by several pregnancy centers, challenging the law.  And today, just days before the law was to go into effect, the court issued its ruling — a preliminary injunction, barring the implementation of the law.

The case isn’t over — it still has to be fully litigated.  But in the meantime, this iniquitous law will not go into effect.  This is a great victory for the pro-life cause, and for free speech.

The court accepted all the same constitutional arguments that the pro-lifers presented at the public hearing last fall.  It found that the law was an infringement upon the free speech rights of the centers and their staffs, and that it was also so vague that it created a grave risk of being arbitrarily enforced.

Most importantly, the court utterly rejected the City’s arguments that the speech of the pregnancy centers could be regulated as if it was “commercial speech”, a category of speech that can be subjected to fairly broad regulation by the government.  Instead, the court held that the speech of the centers was to be given the highest degree of protection under the Constitution, and that laws infringing upon their speech could only be valid if they pass muster under the extremely stringent “strict scrutiny” standard — which few laws can survive.

In fact, the court rebuked the City for its position, saying:

Defendant’s second argument — that Plaintiffs engage in commercial speech because they are provided an audience to whom they can espouse their beliefs — is particularly offense to free speech principles… that proposition would permit the Government to inject its own message into virtually all speech designed to advocate a message to more than a single individual and thereby eviscerate the First Amendment’s protections.

Even better, the court called out the New York Civil Liberties Union for their failure to defend the free speech rights of the centers. The court said,

Given the New York Civil Liberties Union’s (“NYCLU’s) usual concern for First Amendment rights, its amicus brief supporting Defendants’ expansive view of the commercial speech doctrine is puzzling.

True, one might expect the NYCLU to be unyielding in the defense of anyone’s First Amendment rights.  But they are in the grips of such an uncompromising pro-abortion ideology that they cannot conceive that the speech of pro-lifers deserves protection.  This is not the first time that their hypocrisy has been put on display, but it may be one of the first times a court took the trouble to note it.

Pro-lifers espouse a counter-cultural message that is sternly disapproved by the elites who deign to govern and advise us (e.g, the editorial board of the New York Times).  Legislatures and courts across the nation have expressed this disapproval by restricting the rights of pro-lifers to speak to women outside of abortion clinics, to give prayerful witness outside those clinics, and to offer alternatives to abortion.  It is a constant battle to defend our rights against these forces.

For once at least — and in New York City of all places! — a court got it right, and has recognized that pro-lifers have the same constitutional rights as any other citizen.

Congratulations to those who fought this bill before the Council, to the fine attorneys at the Alliance Defense Fund and the American Center for Law and Justice who pursued the lawsuit so ably, and to the pregnancy centers that kept up the fight.

I have a friend who likes to recall the story of Gideon from the Book of Judges.  Hopelessly outnumbered by a mighty foe, he trusted the Lord and was victorious.   Yes, indeed, all praise and glory to Him who never fails to comes to the aid of his people in need.

Varia

Friday, December 3rd, 2010

The following are some of the highlights from the daily email briefing about news and events, which  I send out to some of my friends and contacts (if you’re interested in subscribing to the daily mailing, leave your email address in the comments box):

  • The Holy Father conducted the first-ever world-wide Vigil for All Nascent Human Life.  Here’s an early, unofficial translation of the homily.  And here’s an unofficial translation of the special prayer written by the Holy Father for the Vigil.
  • Opponents of same-sex “marriage” — like the Family Research Council and the National Organization for Marriage — have now been labeled as “hate groups” by a prominent advocacy group.  The “sit down and shut up” phase of the debate over marriage continues.  Next will come prosecutions for “hate crimes” and “human rights” violations, based solely on politically-incorrect speech.  Oh, wait — that’s happening already in Mexico.
  • Maggie Gallagher and Robert George respond to having pro-marriage organizations — and traditional Christianity — branded as “hate groups”.
  • The indispensible Kathryn Jean Lopez puts the Holy Father’s condom and sex comments in the context of the importance of marriage and true human sexuality and interviews Fr. Robert Williams and sheds some clear light on the Holy Father’s condom comments.
  • More good news on the stem cell front.  A child has been fully cured from leukemia thanks to treatment by adult stem cells from umbilical cords.  And scientists have “tricked” cells to convert from one kind to another, which may make stem cell research unnecessary.  Reaction from the media:       .
  • The American College of Obstetricians and Gynecologists (and Abortionists) is once again trying to force doctors to refer or perform abortions, under the rubric of “professional ethics”.  Hence the need for a federal comprehensive conscience protection statute.  GOP leaders, are you listening?
  • I’m a Mac, iPod and iTunes user, so it’s nice to know that in return for all the money I’ve given them, the Apple Corporation thinks I’m a bigot, merely because I subscribe to the principles in the Manhattan Declaration.  For a reminder of what’s in this “hate speech” declaration (which is all about defending life, marriage, and religious liberty), go here.  While you’re there, join over 34,000 others in signing the petition protesting Apple’s intolerance.
  • It has become ever more clear that the Administration is failing in its duty to defend the Defense of Marriage Act from attack by same-sex “marriage” advocates.
  • The perfect proof that reproductive medicine treats human life as a commodity:  they’re putting bar codes on IVF embryos.
  • A terrible story about the modern sex slave trade, right here in New York City.  Why is this not a high priority for law enforcement?
  • Interesting how the Times buries a story about how Cardinal Ratzinger tried, as far back as 1988, to streamline the procedures to punish abusive priests.  No room for the story on the front page, where they’ve previously put the “exposes”, although they manage to squeeze in a story about obesity surgery.  It’s not so newsworthy if it’s favorable to the Holy Father, I guess.
  • The Bishop of Springfield, Illinois, publicly rebukes the Catholic governor for his comments that his faith impels him to sign a bill legalizing same-sex “civil unions”.  The governor replies, in classic modern fashion, “I follow my conscience. I think everyone should do that. I think that’s the most important thing to do in life, and my conscience is not kicking me in the shins today.”  He needs a new, authentically Catholic conscience.
  • When the world throws God out the window, there’s no stopping the descent into madness.  A “family law expert” in the UK says that sex offenders should be allowed to work with children, and even adopt or serve as foster parents.  As the Safe Environment Director of the Archdiocese, all I can say is, “over my dead body”.
  • Can You Call it a Hearing if Nobody is Listening?

    Thursday, November 18th, 2010

    On Tuesday, I appeared as a witness at the hearing held by the Women’s Issues Committee of the New York City Council.  The committee was supposed to be taking evidence and evaluating the merits of Intro 371, the unfair and discriminatory bill that would regulate pregnancy resource centers. (For more information about the bill, click here)

    In reality, the “hearing” was little more than a demonstration of what happens when ideological obsession, duplicity, and raw political power intersect.

    The tone for the day was set at the beginning, when the lead sponsor of the bill declared that it was all about “truth in advertising”.  She and other sponsors of the bill went on to slander the centers by falsely alleging that their entire purpose was to mislead pregnant women into believing that they are medical centers, in order to deny them “the full range of reproductive health services.”

    Yet there was no evidence about any false statements in any advertising, and, in fact, neither the Council nor any public agency had ever conducted an inquiry into the content of the centers’ advertising.  There was no evidence that any woman had been misled or harmed in any way by visiting the centers.  There was no evidence that any center had ever held itself out to be a medical facility.  There was no evidence that any of the centers had ever revealed any private information.

    No evidence.  None.

    If this were a courtroom, the case for the bill would have been laughed at and summarily dismissed.

    All that was offered in support of this bill were the bald allegations by the real sponsors of the bill — NARAL, Planned Parenthood, the New York Civil Liberties Union, and the hive of radical pro-abortion advocates — about how the centers allegedly misrepresent themselves to be medical facilities.  This was their entire “case”, together with a blindness to the scientific and clinical evidence of negative side effects of abortion (including an increased risk of breast cancer, and post-abortion trauma), and imaginary allegations of deception (including the laughable statement by a NYCLU staff member that the mere name of one of the centers, “EMC”, sounded to her like a medical office).  Underlying it all was the bizarre attitude by the sponsors that the only way to prevent abuses that have never occurred is to drag private citizens under the power of government regulation.

    To give you an idea of the absurdity of the hearing, the first witnesses were from two New York City Government agencies.  They gave official support to the bill, even though neither agency had regulatory authority over the centers, neither had ever conducted an investigation into the centers or had received any complaints about them, and they openly professed ignorance about what the centers did.  In fact, the representative of the Health Department was so woefully unprepared that she didn’t even know how many abortions take place in New York City every year.  (Psst.  Health Department?  It’s about 89,000.  All you have to do is look at the report your own department puts out.  You can do it — it’s not that hard.)

    Here’s another indication of the ideological blindness of the committee, and their lack of genuine concern for women’s health.  I testified about the provisions of the bill that would require the centers to keep client information confidential.  This provision would prevent the centers from notifying the authorities if they had reason to believe that a teenager had been sexually abused or raped.  The reaction by the sponsors when they learned that their bill would shield rapists and child abusers?  Silence.  After all, why let facts get in the way of ideology and lust for power?

    There were some bright spots in the hearing.  Many pro-lifers sat for hours in a hot, crowded room to give witness to the wonderful work being done by these centers.  One Councilmember, Daniel Halloran, was prepared for the hearing and asked intelligent, searching and even-handed questions.  Stalwart defenders of life like Chris Slattery, Chris Bell, and Teresa Bonapartis put the lie to the Council’s prejudices against the centers and demonstrated what true concern for women was like.  Excellent lawyers from national organizations, like the American Center for Law and Justice, gave learned testimony about how the bill would violate the free speech rights of the centers and their staffs.

    Not that the Committee members cared about our side of the bill.  In most cases, they didn’t even bother to disguise their disinterest and disdain for the pro-life witnesses, rudely chatting among themselves and with staff instead of paying attention.  And they called it a “hearing”.

    The Committee will now take the bill under consideration, and may vote on it as early as this December, with action by the full Council to follow.  All citizens who care about free speech and the defense of life should contact the Council to let them know what they think of this prejudiced, ideological power-grab of a bill.