Archive for the ‘Religious Liberty’ 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.

What Do You See In This Picture?

Tuesday, May 22nd, 2018

Last year, my Public Policy Office started a Facebook page, in hopes of spreading the Church’s position on important public issues and to encourage people to be better informed and more active citizens. Over the last nine months, our following has grown substantially — we are closing in on 3,200 “Likes” and our postings regularly reach well over 10,000 people each week. If you’re reading this and you’re not one of them, please visit our Facebook page and “like” us.

The reason for this growth has been a series of ads that consists of a slide show of photos, along with a message about an important issue, like abortion, assisted suicide, human trafficking, and so on. We choose photos because we think they’ll attract people to the ad and we also hope that they will make an important point that’s relevant to the issue.

We have repeatedly run ads on religious liberty. This is one of the most important issues facing the Church and all people of faith. Anyone who has read this blog, followed the US bishops’ statements, listened to the Cardinal, or just read the paper over the past few years should understand how serious the threat is.

Which brings me to our latest ad. The text of the ad says this:

Around the world, people are persecuted for their faith; even an ally, France, has banned personal expressions of faith from public spaces. The U.S. still upholds the value of religious freedom, though it’s under threat – especially conscience protections. Join us for live and social media discussions of religious liberty.

Here’s the first picture of the slide show:

What do you see in this picture?

The comments to our ad showed me that there were some people who didn’t see what I saw. I was astonished at the number of negative comments about Muslim people and Islam, and by  uninformed accusations that the Church does not defend our own religious liberty. I deleted many of the comments because they either used foul language or were so insulting that they had no place on a religious organization’s page. Just as an example of the ones I can repeat, there were blanket accusations that Muslims “hate us”, Islam was called a “demonic religion”, and we were laughably accused of being “politically correct”.

Is that what you see in this picture?

I see a young woman who, as an outward expression of her Muslim faith, has decided to wear the headscarf known as a hijab. She looks to me like a college student that I might see anywhere in America, or a young lady working in an office or store I might visit. I see someone who is proud of her faith, and unafraid to show it. I see someone who is admirable for that.

I also see Malala Yousafzai. She’s the youngest-ever recipient of the Nobel Peace prize, a young Muslim woman who was shot by Taliban fanatics because of her advocacy for the education of women. Fortunately, she survived and in all her appearances to speak up for women’s rights, she always wears a hijab as a statement of her faith. She is a tremendous witness to religious liberty and has received dozens of awards and honors, including the annual Mother Teresa Award.

I also see Samantha Elauf. She was the young woman who applied for a job at Abercrombie and Fitch but was denied employment solely because she wore the hijab as an expression of her faith. Her case went up to the Supreme Court in 2015 and thankfully, a unanimous Court upheld her right to wear religious clothing in public without being discriminated against. She is another witness to religious liberty.

I also see Suha Elqutt. She is a Muslim woman who wears a hijab according to her faith. She was going to court recently in Oklahoma to finalize her divorce from an abusive husband. But when she rang the metal detector, the court security officials refused her request to remove her headscarf in private and only in the presence of female officers. Instead they humiliated her by forcing her to uncover her head while crouching between cars in the parking lot where any man could have seen her at any time. Her religious liberty was violated and we all should stand up and defend her.

I also see people of faith in France and elsewhere in Europe. Those nations have been passing laws for over a decade that restrict the ability of people of faith — not just Muslims but anyone — to wear religious garb. Just last year the European Court of Justice (sic) ruled that employers can ban employees from wearing any outward signs of their faith. The specific case involved the hijab, but it would apply equally to a Jewish kippah, the veil of a religious sister or even just a crucifix. That is a frightening state of affairs.

Don’t get me wrong here — I’m not saying that all religions have equal value. I believe our Christian faith is the one true faith and that nobody is saved except by the name of Jesus Christ (Acts 4:12). While I respect Muslims as fellow worshipers of the One True God, I believe they have a fundamentally flawed understanding of the nature of God and are laboring under a false revelation. I also know very well that there are some Muslims who are violent and who persecute Christians and Westerners. And I absolutely believe that anyone who breaks the law or commits acts of violence in the name of any religion must be held accountable.

But that’s not what I see in this picture.

The trend in Europe shows why we have to defend the religious liberty of everyone. If it’s denied to anyone, it’s a threat to everyone, and the defense of religious freedom for everyone is in the finest tradition of our American history. It has never been said better than by George Washington, in his famous letter to the Jewish people of Rhode Island:

The Citizens of the United States of America have a right to applaud themselves for having given to mankind examples of an enlarged and liberal policy: a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.

I think that’s what everyone should see in this picture.

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.

What’s at Stake in the Cake Case

Monday, December 4th, 2017

A very important religious liberty and free speech case will be argued before the United States Supreme Court tomorrow. It involves a wedding cake artist, Jack Phillips, who does business in Colorado under the name Masterpiece Cakes. This decision will go a long way to determining how much freedom we will have to dissent from the current cultural orthodoxy — and not just on issues of “gay rights”.

A few years ago, before same-sex “marriage” was legalized in Colorado, Mr. Phillips was approached by two men who were planning a “wedding” in another state, and wanted to have a reception in Colorado. They asked him to bake and decorate a custom wedding cake for them. Mr. Phillips declined, citing his Christian faith and his beliefs about the true nature of marriage, and said that he could not use his artistic talent to promote an event that was contrary to his faith. The State of Colorado, acting through its Civil Rights Commission, took a dim view of Mr. Phillips’ religious objection and ruled that the state’s “public accommodation” law prohibited him from discriminating against a customer on the basis of sexual orientation.

The case has now been appealed through the courts and has now reached the Supreme Court. Mr. Phillips has two main arguments. First, he is arguing that being forced to decorate the wedding cake violates his First Amendment rights to free exercise of religion by requiring him to participate in an event that is contrary to his faith (the “wedding” reception). His second argument is based on the premise that his artistic cake decorations are a form of speech, so he should not be coerced into saying something that he does not wish to say (that this relationship is in fact a “marriage”).  Colorado is countering by denying that cake decorating is a form of speech or expressive conduct, and by contending that the state’s interest in eliminating discrimination outweighs Mr. Phillips’ right to free exercise of religion.

Our mainstream culture has adopted the notion that gay rights should trump all other legal interests. It holds that “error has no rights” when it comes to the newly-minted notion of same-sex “marriage”, and any dissident is a bigot with no rights bound to be respected by enlightened folk. The advocates for these views have been very busy whipping up fear and loathing and  predicting all sorts of deplorable consequences if Mr. Phillips wins. They have also been misrepresenting what the law actually is, and substituting their “wishful thinking” theory of what they want the law to be.

The Supreme Court’s prior rulings on the Free Exercise and Free Speech Clauses of the First Amendment make it clear that the government cannot easily impose laws upon people when they pose a serious conflict with the person’s religious beliefs or when they suppress their speech.  In other words, when a person claims a religious exemption or a free speech protection they are not breaking the law — they are merely asserting their basic human and constitutional rights.  If the government or a private party fails to recognize those rights, they are the ones who are breaking the law, not the religious believer.

Examples abound in both speech and religion cases, such as the Supreme Court ruling that upheld the right of Jehovah Witnesses to refuse to recite the Pledge of Allegiance. In that case, the Court made a famous statement of principle: “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.” In another case involving the right to say things that people found offensive, the Court said, “the mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense”.

Cases happen all the time that involve conflicts between free speech and religious freedom rights against other legal interests of the government or private parties. Every state and the federal government has a law that requires employers to give reasonable accommodations to employees if their work conditions violate their religious beliefs. The recent Supreme Court decisions in the challenges to the HHS Mandate (principally the Hobby Lobby case in 2014) affirmed the idea that burdens on a person’s religious belief can warrant an exemption from the law. In recent years the Supreme Court has also upheld a church’s ability to hire and fire its ministers, the right of a prisoner to grow a beard required by his faith, and the right of a prospective employee to wear a head covering mandated by her faith. In the lower courts, there have been hundreds of lawsuits where employers are required to recognize religious holidays or clothing, cities are banned from restricting street-corner evangelists, schools are prevented from closing religious clubs or newspapers, etc. There have been numerous free speech cases that carefully protected people’s right to express themselves without government censorship.

The current law has certain characteristics that we need to understand if we are to appreciate the Cake Case and to separate the wheat from the chaff in the opinions of pundits and commentators:

  • The law requires judges to actually judge, and make fact-based case-by-case evaluations.There’s no blanket rule favoring anyone. So the claim by advocates that a ruling for Mr. Phillips will create a universal “get out of the law free card” for religious believers shows a complete lack of faith in our court system to do its job. It’s also not supported by any evidence that religious liberty or free speech claims win every case — in fact, the studies show quite the contrary.
  • It rejects the “tough luck” approach under which the religious person automatically always loses. Enemies of religion may wish it were otherwise, but the law has long recognized that there actually is some legitimacy to religious beliefs and that they occasionally have to be protected. In fact, studies show that in recent years that religious liberty plaintiffs win about half of the cases that are brought claiming a violation of the Religious Freedom Restoration Act and three-quarters of free speech cases. Legislatures also routinely grant religious exemptions. The sky has not yet fallen.
  • It protects against slippery slopes. Back to our original principle — our current law relies on judges being judges and making sensible distinctions between cases and to apply the rules sensibly. There has been no outpouring of religious liberty cases or massive instances of nullification of generally applicable laws. The study noted above found that there has been no significant change in the way the law is applied since the Hobby Lobby case in 2014, which upheld the religious freedom of a family business to refuse to comply with the HHS Mandate.
  • It does not require you give up your religious freedom by engaging in business. This has been settled law for decades. The Supreme Court in Hobby Lobby implicitly recognized it just a couple of years ago. In an earlier case, the court said: “It is well settled that a speaker’s rights are not lost merely because compensation is received; a speaker is no less a speaker because he or she is paid to speak.” Being in business doesn’t mean that Mr. Phillips suddenly became a second-class citizen.
  • It recognizes and protects against objections based on insincere religious beliefs. Such claims will inevitably happen. But again, the law trusts that judges will actually judge and discern which claims are legitimate and which are frivolous. Judges have been doing this for many years, and there’s no reason to believe that they will suddenly lose that ability if Mr. Phillips prevails.
  • It will not silence people’s speech just because somebody else is offended or it hurts their dignity. This is also well-established law. Our right to free speech does not stop when others’ sensibilities come into play. The Supreme Court has consistently upheld the right to “offensive speech”, including the right of Nazis to march in a Jewish neighborhood, the KKK to burn a cross, and a fringe anti-gay group to protest at soldiers’ funerals. The risk of hurt feelings is a price of freedom. Plus, why does the dignity of the gay couple have more legal weight than Mr. Phillips’ dignity and integrity?

Our nation was built on the notion of the inherent rights of individuals to live free from undue government control. That freedom applies to all sorts of people, including and especially those whose opinions are not favored by the majority and powerful. Mr. Phillips is defending his ability to make his cakes and decorate them as he pleases. Even those who disagree with him should defend that right.

Hatred of the Cross and Confusion in the Courts

Friday, October 20th, 2017

In his First Letter to the Corinthians, St. Paul spoke plainly about the difficulty that the cross presents to those who don’t believe: “For the word of the cross is folly to those who are perishing, but to us who are being saved it is the power of God… For Jews demand signs and Greeks seek wisdom, but we preach Christ crucified, a stumbling block to Jews and folly to Gentiles” (1 Cor. 1:18, 23-24).

He might well have added that the cross is the object of hatred to some militant atheists, and incoherent confusion to some federal judges. This can be seen in the latest example of atheistic hostility to Christianity and muddled reasoning by a court faced with a lawsuit challenging the existence of a war memorial.

The memorial in question sits in an intersection in the town of Bladensburg, Maryland. It is a cross, forty feet tall, decorated prominently with the symbol of the American Legion on both sides – a large gold star with the initials “U.S” in the middle. The base is inscribed with the words “valor,” “endurance,” “courage,” and “devotion.” On the base is a large plaque with the names of soldiers who gave their lives in World War I and an inspiring quotation from Woodrow Wilson. An American flag stands nearby. According to the town, the memorial is known as the “Peace Cross”.

A group of Christophobic atheists filed a lawsuit claiming that the memorial violates the Establishment Clause of the First Amendment of the Constitution.  They claimed that they “have faced multiple instances of unwelcome contact with the Cross. Specifically, as residents they have each regularly encountered the Cross while driving in the area, believe the display of the Cross amounts to governmental affiliation with Christianity, are offended by the prominent government display of the Cross, and wish to have no further contact with it.”

Aside from their delicate sensibilities, their legal theory was that the use of the cross somehow signifies that the State of Maryland has endorsed Christianity as a preferred state religion.

The Establishment Clause states “Congress shall make no law respecting an establishment of religion.” This provision originally bound only the federal government, but the Supreme Court has also held that it applies to all levels of government. The Founders who drafted the Constitution and the public who ratified it knew that they were using a term of art that had a specific legal meaning. They all understood that the Establishment Clause meant that there could be no “established church” — namely, a church that had enjoyed special legal status, that was specifically endorsed by the state, that received unique privileges under the law, that all citizens were either required to belong to or financially support, and failure to do so would result in some kind of legal penalties.  Established churches were the norm in most European countries at that time, so everyone knew well that the Amendment was designed to prevent coercion to belong to the church favored by the government or king.

Anyone who reads the Establishment Clause and considers its original plain meaning would find this an easy case. Having a war memorial in the shape of a cross at a public intersection does nothing to create a state church, it doesn’t endorse any church or Christianity in general, it doesn’t compel anyone to believe any doctrine or participate in any religious practice or worship, and there’s nothing in such a gesture that would coerce anyone into joining or supporting any such church or would penalize anyone for not joining.

Sadly, the Supreme Court’s religion jurisprudence is such a mess that a federal Court of Appeals has ruled that the memorial cross violated the Establishment Clause.  In a similar case a few years ago, Justice Clarence Thomas, commenting on the Supreme Court’s incoherent rulings, said:

Since the inception of the endorsement test, we have learned that a creche displayed on government property violates the Establishment Clause, except when it doesn’t… Likewise, a menorah displayed on government property violates the Establishment Clause, except when it doesn’t… A display of the Ten Commandments on government property also violates the Establishment Clause, except when it doesn’t… Finally, a cross displayed on government property violates the Establishment Clause… except when it doesn’t…  Such arbitrariness is the product of an Establishment Clause jurisprudence that does nothing to constrain judicial discretion.

This kind of case, like the Ten Commandment public display cases that frequently crop up, may seem like petty and arcane bits of legal doctrine, but they are highly relevant to a central issue facing us at this time. There is a concerted effort being pursued to purge religion from the public square. Policies and laws are being pursued that effectively disqualify Christians from full participation in business and professions, nominees to public offices are being questioned with great hostility about their faith, and there are serious penalties imposed on churches and private persons who disagree with or refuse to comply with government policies based on their religious beliefs.

This latest demonstration of hostility towards the Cross provides us with a moment of clarity about the stakes that are in play. It also provides is with an opportunity to remind ourselves of the power of the Cross as a symbol of our salvation.

A Major Victory for Religious Freedom

Friday, October 6th, 2017

After years of regulatory and courtroom battling, the Government has finally recognized that it was a violation of religious liberty to impose what we have long called the “HHS Mandate” on those with religious objections to contraception, abortion-causing drugs and sterilization. That mandate was cooked out of thin air by the previous Administration under the purported authority of the Affordable Care Act. The current Administration has now issued new rules that give relief to religious and other organizations, as well as individuals.

This is a major victory, and we should express our gratitude to the President and his Administration, particularly those in the Department of Health and Human Services.

The sweep of the new rules is very broad. First, the admission that the original (and the many revised) rules violated the religious freedom of institutions and individuals (direct quotations from the new proposed rules are in italics):

  • “We have concluded that requiring certain objecting entities or individuals to choose between the Mandate, the accommodation, or penalties for noncompliance imposes a substantial burden on religious exercise under RFRA.” This corrects the error of the previous Administration, which stubbornly insisted that the Mandate did not impose a burden on religious belief.
  • “Our reconsideration of these issues has also led us to conclude… that the Mandate imposes a substantial burden on the religious beliefs of individual employees who oppose contraceptive coverage and would be able to obtain a plan that omits contraception…” Under the original Mandate, individuals with religious objections had no hope of any relief.
  • “the Departments have concluded that the application of the Mandate to entities with sincerely held religious objections to it does not serve a compelling governmental interest.”This is a huge concession, and reverses the adamant — and hardly credible — insistence by the previous Administration that riding roughshod over the religious objections served a vital public interest.
  • “In the Departments’ view, a broader exemption is a more direct, effective means of satisfying all bona fide religious objectors.” Note the new emphasis here of actually showing respect for religious objectors, instead of brushing them aside, which was the attitude of the previous Administration.

Now, the specifics, which also show a broad desire to protect religious liberty:

  • “With respect to employers that sponsor group health plans, the new language… provides exemptions for employers that object to coverage of all or a subset of contraceptives or sterilization and related patient education and counseling based on sincerely held religious beliefs.” This is the most significant provision, because it allows all employers with religious organizations to opt out of the offensive coverage without going through any bureaucratic process.
  • “Consistent with the restated exemption, exempt entities will not be required to comply with a self-certification process.” This removes one of the most objectionable provisions of the previous Mandate, which essentially required religious organizations to give a permission slip for offensive services to be provided — putting them in direct cooperation with evil.
  • “the Departments do not limit the Guidelines exemption with reference to nonprofit status… the rules extend the exemption to the plans of closely held for-profit entities. This is consistent with the Supreme Court’s ruling in Hobby Lobby… the rules extend the exemption to the plans of for-profit entities that are not closely held.” This is a huge expansion of the exemption, because it will not just be limited to organizations that are non-profit or to those for-profit entities that satisfy standards that vary from state to state to determine if they are “closely held”.
  • “These interim final rules extend the exemption… to health insurance issuers offering group or individual health insurance coverage that sincerely hold their own religious objections to providing coverage for contraceptive services.” This would also allow insurance companies with religious values to operate, providing a potential safe harbor from these and other morally offensive measures.
  • “This individual exemption allows plan sponsors and issuers that do not specifically object to contraceptive coverage to offer religiously acceptable coverage to their participants or subscribers who do object, while offering coverage that includes contraception to participants or subscribers who do not object.” Another major victory, this would permit — but not require — insurers to offer objecting individuals to opt out of the offensive coverage.

This is the result of steadfast opposition and litigation by many organizations and individuals who refused to surrender their religious principles  to over-reaching, ideologically-driven government regulation. Particuarly worthy of mention are the great defenders of religious freedom at Alliance Defending Freedom and Becket.

We can legitimately celebrate this victory, and thank God that our government has shown a new-found respect for our first and most precious freedom.

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.

A Religious Liberty Failure

Wednesday, May 10th, 2017

It is often difficult to know what to make of this very strange Administration. Every day seems to bring a new self-generated controversy and it is often difficult to discern what is going on and why.

Sometimes, though, it is very clear what has happened — or more accurately, what has not happened. The case in point is the alleged religious liberty executive order issued last week to great fanfare. It was a splendid photo op, with the President surrounded by Catholic prelates, the Little Sisters of the Poor, and other religious leaders. The President spoke wonderful words about how committed our government is to defending religious liberty. There were smiles all around and much applause.

The problem is that the executive order is virtually useless, it accomplishes nothing, it misses an opportunity to implement important reforms, and it delivers nothing more than vague promises of possible future actions at undefined times.

The order contains six paragraphs. The first contains hortatory language about the importance of religious liberty, which is virtually indistinguishable from proclamations issued by the prior Administration. The last two paragraphs deal with legal procedure that has no particular importance. The middle three paragraphs is where the substance is supposed to be, but isn’t.

Paragraph 2 purports to grant legal protection to the free speech of religious non-profits and churchs that are incorporated under section 501(c)(3) of the Internal Revenue Code. It directs the Treasury Department not to enforce a legal provision known as the Johnson Amendment, which prohibits those organizations from engaging in partisan political activity such as open endorsement of candidates. Opinions differ about the Johnson Amendment. I happen to think it’s a good idea but many others disagree. The problem is, though, that the government has virtually never enforced that provision and the President can’t do anything to change the law itself — it can only be repealed by an act of Congress. Future administrations could easily begin enforcing the rule at any time — which would be particularly dangerous for any organization that foolishly relies on this executive order and begins engaging in partisan politics.

So this part of the executive order is actually completely devoid of any real content. It’s merely a promise not to do something that isn’t being done, without preventing it from being done in the future. Hold your applause.

Paragraph 3 is a particularly frustrating diappointment to those of us who have been battling over religious liberty the past few years, especially over the HHS contraception and abortion mandate. That is the cause of voluminous litigation that culminated in a directive from the Supreme Court that the government find some way to accommodate the religious liberty concerns of religious non-profits who object to the mandate. This executive order directs the relevant agencies to “consider issuing amended regulations, consistent with applicable law, to address conscience-based objections”.

“Consider”? That’s all? Remember, you can’t overturn statutes or regulations with a mere executive order, so the HHS mandate and its offensive non-exemption continues to be the law of the land. But the President, with the stroke of a pen or even with a mere oral order, could easily have directed the Justice Department to immediately settle all the litigation by granting the religious non-profits the same full exemption that is enjoyed by churches, and further directing the relevant agencies to develop regulations that would formalize that settlement into law. That would have resolved the HHS mandate controversy completely and it would have established a strong precedent for further conscience protection laws and regulations.

This is a tragic missed opportunity, and it directly calls into question the Administration’s competence and/or its sincerity about protecting religious freedom. It is a complete and absolute failure to follow through on explicit campaign promises — somehave even called it a betrayal.

Paragraph 4 is hardly worth mentioning. It directs the Attorney General to “issue guidance interpreting religious liberty protections”. This won’t come any time soon, since virtually no sub-cabinet Justice Department officials have been confirmed by the Senate and there isn’t even a nominee for the head of the crucial Civil Rights Division. And in any event, “guidance” does not have the same force of law as regulations or statutes, it does not have to be accepted by the courts and it can be overturned at any time by this or any future Administration. So this is another post-dated check for something that may be delivered someday by someone. Yawn.

This much bally-hooed executive order is a major failure. It provides no actual protection for religious freedom. It does nothing to change the law. It does nothing to reverse the hostility of the prior Administration towards those with traditional religious beliefs. It does nothing to protect religious contractors from discrimination by government agencies that disapprove of their beliefs. It is such a non-starter that even the ACLU has decided that it’s not worth challenging in court.

Many people, particularly religious conservatives, supported the President because they rightly feared the consequences for religious liberty if Hillary Clinton had been elected. But the President’s executive order uttely fails to deliver on expectations for imporoved protection of religious liberty. All we can hope is that the Administration will eventually get its act together, appoint good people to crucial executive positions, and implement concrete reforms to statutes and regulations that will give genuine and lasting protection to people and organizations of faith. Meanwhile, despite all the fanfare in the Rose Garden, the very real threats to religious freedom remain.

Our Government is the Enemy of Religious Freedom

Wednesday, August 24th, 2016

Throughout American history, people have depended on our government to protect our basic liberties — our “unalienable rights”. Our Declaration of Independence was based on the premise that the purpose of government was to secure these rights, and that any government that sought to extinguish them was unjust and should be replaced. Our Constitution likewise contains numerous provisions that are specifically designed to protect individual liberties — especially the First and Fourteenth Amendments.

In recent years, it has become more and more clear that the current Administration harbors a settled hostility to religious liberty and freedom of speech, and a deep commitment to coercing compliance with their ideology of sexual liberation and gender theory. The history of the HHS contraception mandate shows the relentless commitment of the Administration to coerce all employers, including religious organizations, to offer insurance coverage for procedures and medications that are offensive to their religious beliefs, like abortifacient drugs and devices.

Earlier this year, the Supreme Court sent a very clear message to the Administration that they wanted them to come to some kind of compromise over the HHS contraception mandate. But rather than heeding that suggestion, the Administration has instead intensified its assault on religious liberty.

In May, the Department of Health and Human Services issued new regulations that are astonishing in their breadth and daring. The regulations rely on an interpretation of the term “sex” in current anti-discrimination laws, and stretch that clear term to encompass “gender identity” — which the regulation defines as a person’s “internal sense of gender, which may be male, female, neither, or a combination of male and female”, which would even include people with “non-binary gender identities”. A definition that includes so much is no definition at all — it is hopelessly broad and vague, and ultimately incoherent. But that is gender ideology at its heart.

The regs go on to require every doctor, hospital and other health care entity that receives federal funds (e.g., Medicare) — in effect, virtually every single health provider in the US —  to cover all procedures and interventions related to a person’s “gender transition”. Just to be clear, that means medical procedures like massive doses of hormones and the removal or mutilation of health body parts (i.e., hysterectomies, castration, penectomies, mastectomies, plastic surgery to create fake sex organs, etc.) — all so that a man can pretend he is a woman, and vice versa. This coercive mandate will override the medical judgment of a doctor that such acts are not medically necessary or appropriate, and they permit no exceptions based on religious or moral values.

It gets even worse. The regs also interpret the notion of “sex discrimination” to mean that a health provider cannot refuse to perform abortions, and must cover abortions and all those “gender transitioning” procedures in their health insurance plans.

All of this was done through the administrative law process, which is an arcane and undemocratic way to make law. Instead of having a bill passed by both Houses of Congress, all this requires is a regulatory agency plublishing proposed rules, allowing people to comment for a short time, and then promulgating whatever rules they wish. No public hearings are needed, so the entire process is hidden deep in the pages of a massive publication called the “Federal Register”, which no normal person can read and understand (even lawyers, who are far from normal, have a hard time). It is extremely difficult to overturn regulations, because our courts have abandoned their duty of constitutional oversight and give extreme deference to the agencies putting forth the regs.

Our government has been increasingly using this undemocratic process to impose their ideology on the nation. In fact, they go even further by issuing “guidances”, which are purportedly not binding but which in fact are just as coercive as regulations and statutes.

A lawsuit has been filed by the Becket Fund for Religious Liberty, representing a number of states, religious health institutions, and health professionals. If the government follows its previous practice, they will fight tooth and nail against any compromises, and will never concede any ground. No religious objection is ever enough for them, and no demand by gender ideologues is too much. That is the regime under which we live.

In the Declaration of Independence, the Founders stated clearly that when a government no longer secures basic rights, and instead seeks to usurp or repress them, it can only be described as a tyranny. Our government may not be comparable to the wicked despotisms around the world, but it has clearly crossed a line with its relentless attacks religious freedom.

Supreme Court to Religious Liberty — Drop Dead

Thursday, July 7th, 2016

In the last few decades, legal scholars and those interested in religious liberty have questioned whether the Free Exercise Clause of the Constitution is on its way to extinction. The question stems from the Supreme Court’s 1990 decision in the case of Employment Division v. Smith, in which it held that a neutral law of general applicability does not violate the Free Exercise Clause, even if it imposes a burden on a person’s religious beliefs or practices.

At this point, the Supreme Court has give a pretty clear answer to this question. For all intents and purposes, the Free Exercise Clause is a dead letter, with as much life to it as the Third Amendment’s ban on the quartering of troops in private houses.

Although the Smith rule appears to leave open the possibility of challenging laws, in reality it has rendered the Free Exercise Clause virtually useless in defending religious liberty. In fact, in the recent cases that have reached the Supreme Court on religious freedom during Chief Justice Roberts’ tenure (since 2005), virtually all have completely ignored the  Free Exercise Clause. Instead, the very few religion cases that have been taken by the Court were decided on other grounds, such as the Free Speech Clause, the Religious Freedom Restoration Act, the Religious Land Use and Institutionalized Persons Act, or Title VII. The lone possible exception was an ambiguous decision regarding the ability of churches to have discretion over religious employment decisions; it isn’t clear whether it rested on the Establishment Clause or the Free Exercise Clause. In any event, it’s as if the Court doesn’t want to hear about the Free Exercise Clause.

If that weren’t clear already, the Court made it perfectly plain this term. A very significant religious freedom case was presented to the Court, involving a serious infringement upon religious freedom. But the Court didn’t think the case was even worth considering.

The case involved a small family-owned pharmacy in the State of Washington. The owners of the pharmacy, the Stormans family, are Christians, and they have religious objections to dispensing so-called “emergency contraception”, because it can cause an early abortion. Other nearby pharmacies are willing to dispense those drugs, so they are easily available to anyone who wants them.

That wasn’t good enough for the pro-abortion zealots in the Washington government. They adopted regulations that their Human Rights Commission interpreted to specifically rule out moral and religious objections to the dispensing of drugs, even though they permitted (either explicitly or by practice) a host of non-religious reasons that a pharmacy can decline to dispense a particular drug. This was the result of a concerted campaign by abortion advocates to rule out any conscience-based objections to “emergency contraception”. In fact, the Governor of Washington invited Planned Parenthood to collaborate in the drafting of the regulations. The Governor even threatened the members of the Human Rights Commission being fired, and with violations of anti-discrimination laws if they allowed conscience objections. Once the rules were adopted, Planned Parenthood targeted this pharmacy for complaints.

It would be hard to imagine a clearer case of the government using its power to punish people of faith for exercising their religious beliefs in the way they conduct their business. There is no doubt that the government of Washington was trying to enforce a pro-abortion orthodoxy, and was willing to put people out of business if they dared to dissent.

The Stormans family challenged these regulations, and were initially victorious. But the Ninth Circuit Court of Appeals — a notoriously liberal bench — overturned the lower-court decision. The Stormans then appealed to the Supreme Court. They were represented by Alliance Defending Freedom, the great defenders of religous liberty and human life. Thirty-three state pharmacy associations urged the Court to take the case. Many others — including the US Bishops Conference and forty-three members of Congress — filed briefs in support of the Stormans’ petition.

Even under the restrictive Smith rule, this should have been an easy case. There was clearly a substantial burden on religious beliefs — being forced to cooperate directly in a possible abortion. The law was far from neutral — it specifically targeted only those who had moral or religious objections, and nobody else. And it absolutely wasn’t generally applicable — all sorts of secular exceptions were permitted, and only moral or religious ones prohibited.

But on the very last day of the Court’s term, it refused to hear the Stormans’ case. Five Justices — Kennedy, Ginsberg, Breyer, Kagen and Sotomayor — didn’t think that the Stormans deserved their day in Court. (I have to add that Justice Sotomayor joining that group is a particular disgrace — she is a graduate of Cardinal Spellman High School, my alma mater, and she obviously didn’t learn the same things that I was taught about the importance of our Catholic faith.)

The three remaining Justices — Roberts, Alito, and Thomas — dissented from the denial of the appeal, and Justice Alito wrote a blistering opinion. His opening paragraphs are worth quoting at length:

This case is an ominous sign.

At issue are Washington State regulations that are likely to make a pharmacist unemployable if he or she objects on religious grounds to dispensing certain prescription medications. There are strong reasons to doubt whether the regulations were adopted for — or that they actually serve — any legitimate purpose. And there is much evidence that the impetus for the adoption of the regulations was hostility to pharmacists whose religious beliefs regarding abortion and contraception are out of step with prevailing opinion in the State. Yet the Ninth Circuit held that the regulations do not violate the First Amendment, and this Court does not deem the case worthy of our time. If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern.

By refusing to hear this case, the Supreme Court said to the Stormans and to the Free Exercise Clause that they can just drop dead. That is bad news for religious liberty, for the equal administration of the law, and for the health of our society. An ominous sign, indeed.