Posts Tagged ‘Conscience Protection’

Will Congress Make Some People More Equal than Others?

Wednesday, March 27th, 2019

A bill was introduced earlier this month in Congress that is deceptively called “The Equality Act” (H.R. 5 / S. 788). It is the latest and most robust version of bills that have been kicking around in Congress for many years. Its ostensible purpose is to add “sexual orientation” and “gender identity” to the list of protected categories under federal civil rights laws. Its effect will be to make Christians and others who adhere to traditional sexual beliefs into second-class citizens.

Certainly, every human person must be protected against unjust discrimination. This is a bedrock principle of human rights, and it has continually been upheld by the Church for many, many years. Specifically with regard to homosexual persons, the Church could not be clearer: “They must be accepted with respect, compassion, and sensitivity. Every sign of unjust discrimination in their regard should be avoided.” (Catechism of the Catholic Church, 2358).

But, despite its name, this bill will actually go much further than eliminating unjust discrimination in housing, education and employment. It is specifically designed to suppress the rights of religious people and institutions who dare to dissent from current progressive sexual dogma. This is done by one small section of the bill, which states “The Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et seq.) shall not provide a claim concerning, or a defense to a claim under, a covered title, or provide a basis for challenging the application or enforcement of a covered title.”

This is an astonishing provision to find in a proposed federal law. The Religious Freedom Restoration Act, which was passed by a virtually unanimous Congress, establishes that the federal government may not take any action that substantially burdens religious beliefs and practices unless there is a compelling reason and the offending action is done in the narrowest possible way. It was passed specifically to protect unpopular religions from oppression by majorities. But since 1993, society has changed dramatically, and it is no longer fringe religions like Santeria or Native American faiths that are unpopular with the powers-that-be. Now, its mainstream orthodox Christianity that is out of favor, particularly anyone who adheres to the traditional teachings of our faith about sex and sexuality.

By including this provision, the Equality Act would stigmatize and penalize any Christian who still believes that God made man and woman in His own image and likeness, that the differences between the sexes are significant and normative, and that morally acceptable sexual behavior is only between a man and a woman in the bonds of marriage. No matter how sincere your religious beliefs, no matter how severe the burden imposed on you, no matter how trivial the government policy, no matter how meritless the discrimination claim, you would never be able to assert your religious freedom as a defense if this bill passes. I’m not sure that there has ever been a single instance in American history in which such a fundamental right as religious liberty has been specifically eliminated by a federal statute. After all, a right without a remedy is no right at all – so if the Equality Act passes, it will effectively eliminate the right to religious freedom.

As for specifics about the kinds of harm that would be caused by this bill, in a letter to Congress, the US Bishops noted that it would:

  • Regulate thought, belief, and speech — It would compel people to conform to the new orthodoxy about sexuality or risk being sued for discrimination or creating a hostile environment. It will mandate inclusion of the new sexual orthodoxy in every training program in every workplace and school.
  • Hinder quality health care — It would require health professionals and institutions to perform medical procedures associated with “gender transition” that are objectively harmful, such as mutilation of genitals and hormone replacements. Catholic hospitals have already been sued over their refusal to maim patients because of their desire to change their “gender identity”.
  • Endanger privacy — Because there is no objective definition of “gender identity”, men and women would no longer be assured of personal privacy in traditionally sex-segregated spaces such as restrooms and locker rooms.
  • Threaten charitable services — It would force religious charitable agencies to either violate their principles or shut down. This is happening right now in Michigan to Christian adoption and foster care agencies, and it has happened in other locations as well.
  • Exclude people from various businesses, career paths and livelihoods — Professions like law, psychology and medicine will all be closed to those who do not wish to conform to gender ideology. Businesses will likewise be targeted to force conformity – just ask all those in the wedding industry who don’t want to participate in same-sex weddings and are being harassed by litigation or civil rights commissions.

In his great Memorial and Remonstrance,  James Madison made a powerful argument for religious freedom from any encroachment by the government. His words are worth quoting at length, because they embody the deep respect for the freedom of religions that was held by the Founders of our nation:

Because we hold it for a fundamental and undeniable truth, that Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence. The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right… It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society…We maintain therefore that in matters of Religion, no man’s right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority.

Because if Religion be exempt from the authority of the Society at large, still less can it be subject to that of the Legislative Body…The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves nor by an authority derived from them, and are slaves.

Our government is now sliding towards a kind of totalitarianism on sexual matters, propelled by a tiny minority of people who have managed to gain the allegiance of a very powerful political party that now holds a majority in the House of Representatives. We are already living under such a regime here in New York, and this special interest group is seeking to extend it across the nation.

We need to be  very clear about the injustice this Equality Act is seeking to bring about. It is seeking to reduce Christians into second-class citizens whose rights are not to be respected when they conflict with those of the favored few. That is not equality at all, but tyranny.

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.

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.