Author archives: Alexandra McPhee

Supreme Court Refuses to Rule on State Decisions to Defund Planned Parenthood

by Travis Weber , Alexandra McPhee

December 10, 2018

Over the past several years, a number of states have tried to terminate Medicaid contracts with Planned Parenthood for various reasons, not the least of which because of videos released depicting Planned Parenthood officials engaging in the sale of fetal tissue and body parts. 

But how much discretion does a state have to terminate those contracts? Can an individual sue any time they disagree? This question goes beyond the topic of Planned Parenthood funding specifically. But today, the United States Supreme Court declined to review a set of cases that could have provided an answer, leaving in place several lower court decisions that have blocked state executive decisions to terminate Medicaid contracts with and defund Planned Parenthood.

In Gee v. Planned Parenthood of Gulf Coast (5th Cir.) and Andersen v. Planned Parenthood of Kansas & Mid-Missouri (10th Cir.), two circuit courts separately agreed that individuals have the right to sue states for withdrawing Medicaid funding from and thus limiting access to providers. Three other circuits agree—but this is not an opinion unanimously held. In Does v. Gillespie, the 8th Circuit held that individuals do not have this right.

In other words, in five circuits, according to Justice Clarence Thomas (writing in dissent from the court’s decision today (see pp. 9-12), “individuals could sue whenever a state changes medical product providers or services.” Sound like bad policy? At the very least, it’s one inconsistently applied across the circuits.

For one, states need clarity on this issue, and they still don’t have it.

Justice Thomas called it “the Supreme Court’s job” “to clarify the confusion in the law in this area.” True. The Court’s own rules—and caselaw—provide as much.

So what explains the Court’s refusal to do its job here?” Justice Thomas posited. “I suspect it has something to do with the fact that some respondents in these cases are named ‘Planned Parenthood.’”

As Justice Thomas notes, “the question presented here would not even affect Planned Parenthood’s ability to challenge the States’ decisions” to defund. But Justice Thomas suggests that the political cloud that hovers over the topics of abortion and Planned Parenthood prevent even the most sterile and noncontroversial legal issues from getting the attention they deserve. We’re inclined to agree.

This case “has nothing to do with abortion,” Justice Thomas points out. It’s just about a private right of action under Medicaid—involving whether individuals can sue, for instance, whenever a state changes medical product providers or services.

Are these cases considered hot potatoes because of their broader abortion defunding implications? Possibly.

Right now, 11 states have taken action to defund abortion in Medicaid programs: Alabama, Arizona, Florida, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Tennessee, and Texas. Florida’s measure wound up in the courts, and was blocked. Other cases, like a challenge to an Ohio funding law, involve payment to abortion providers in other contexts.

These cases are not directly affected by the Supreme Court’s actions today. But the optics certainly wouldn’t look good for Planned Parenthood if a Supreme Court decision, even on different legal grounds, meant that states could go forward with their decision to defund Planned Parenthood.

One of these days, the Supreme Court will have to confront the issue.

Religious Liberty and the “Wedding Vendor” Cases

by Alexandra McPhee

December 4, 2018

This year, the United States Supreme Court vindicated the free exercise rights of Jack Phillips, a cake baker from Colorado, who had suffered government discrimination after he declined to bake a cake for a same-sex commitment ceremony based on his conviction that a marriage is only between a man and a woman. Yet Jack’s ordeal wasn’t done; he was subsequently sued and has an ongoing case because he didn’t want to be forced to create a cake with a message about the transgender lifestyle he believed to be false.

Melissa and Aaron Klein, bakers from Oregon and formerly of Sweet Cakes by Melissa, are now asking the Supreme Court to review their case, which arose under similar circumstances. The Supreme Court could decide any day whether to review their case. If the Court does, they may get relief. If it doesn’t, the Kleins are stuck with an oppressive and unconstitutional state court ruling against them.

Their cases are not unique; attacks against traditional beliefs in marriage have been on the rise. Why is that?

Several years ago, the United States Supreme Court observed that “[m]any who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.” That quotation came from Justice Anthony Kennedy’s opinion in Obergefell v. Hodges (2015), the Supreme Court decision that ushered in a new era in the law surrounding religious liberty.

It is important that the Supreme Court recognized the sincerity of the orthodox belief that marriage is a sacred institution only available between one man and one woman. But by making marriage between two people of the same sex a constitutional right, Obergefell made it easier for courts and legislatures around the nation to conclude that same-sex couples have rights that somehow trump those of all who disagree—and thus violate their consciences.

We have seen this primarily in the wedding vendor industry, the subject of our newly updated publication released today, Religious Liberty and the “Wedding Vendor” Cases. Business owners across the country have had to face the unacceptable choice of violating their religious beliefs or losing their livelihoods—all because they will not use their skills to affirm or facilitate the celebration of a same-sex wedding.

Today, we bring to your attention fifteen cases where business owners have had to collectively endure thousands of hours of litigation and hundreds of thousands of dollars in fines for sticking to their beliefs in natural marriage. This is an unacceptable affront to every American’s constitutional right to the free exercise of their religion, and we must stand to ensure that this latest campaign against the freedom of conscience comes to an end.

For more information, read our newly updated publication.

Let There Be (Christmas) Lights

by Alexandra McPhee

November 27, 2018

For several years, Jeremy and Kristy Morris and their young children hosted a five-day long event on their property celebrating Christmas. When they decided to move to a new community and explained to the new HOA that they planned to host this event, communications with the HOA hit a discriminatory pitch. In 2014, the HOA explained in a letter that

It’s not the intention of the Board to discourage you from becoming part of our great neighborhood, but we do not wish to become entwined in any expensive litigation to enforce long standing rules and regulations and fill our neighborhood with the hundreds of people and possible undesirables. We have worked hard to keep our area peaceful, quiet, and clean . . . .

And finally, I am somewhat hesitant in bringing up the fact that some of our residents are non-Christians or of another faith. And I don’t even want to think of the problems that could bring up.

Though citing “rules and regulations,” the letter’s concluding paragraph made clear that the HOA’s true opposition to the Christmas event was the “Christ” part of the occasion.

The Morris’ filed suit once they realized that the HOA wanted to qualify the terms of their residence in the new community because they were Christians. They argued that the HOA was violating the Fair Housing Act by committing religious discrimination. The Fair Housing Act prohibits “discriminatory practices [that] make housing unavailable to persons because of . . . religion.” In other words, no person or organization has the right to exclude someone from something as essential as housing because of their religious beliefs.

The case went to trial, and the evidence exposed the true extent of the HOA’s hostility towards the Morris’ and their faith. The jury sided with the Morris’ and awarded a total of $75,000 to the family.

The facts of this case are troubling, especially because of the HOA’s express hostility. An earlier draft of the above letter showed that the HOA even referred to the potential Christmas event attendees as “the riff-raff you seemed to attract over by WalMart.”

But the jury vindicated the Morris’ civil rights and held the HOA accountable for its attack on religious expression. This case demonstrates that we must always be vigilant in defending our federally protected rights to express our faith.

In India, Twitter Gets a Taste of the True Danger of Viewpoint Suppression

by Alexandra McPhee

November 26, 2018

Last Thursday, Jack Dorsey, CEO of Twitter, was accused of violating India’s blasphemy law during his recent visit to the country. A legal group filed a petition against him asking a court to determine that Dorsey violated several penal laws, including section 295A, which prohibits the “outrage [of the] religious feelings of any class.” It could become a high-profile example of the active enforcement of blasphemy laws, which exist in dozens of countries and are still enforced today.

Though intended to protect “religious feelings,” blasphemy laws like India’s section 295A are used by the government and hostile private parties seeking retaliation to suppress people of minority faiths. In Pakistan, for instance, the country’s highest court overturned the conviction of Asia Bibi, a Christian mother who wallowed in jail for almost ten years on death row because of a dispute that resulted in an accusation of blasphemy when she drank water from a common well used by Muslim women.

Blasphemy laws also undermine speech and religious liberty by saddling convicted individuals with onerous penalties for expressing their beliefs. The law in Pakistan, which carries the death penalty, is the most extreme example.  But penalties commonly include years-long imprisonment and fines. A violation of India’s section 295A, for instance, is punishable by up to three years’ imprisonment, a fine, or both.

While six states in America still have blasphemy laws on the books, they are unenforced and the U.S. Constitution’s First Amendment protections would surely trump those laws if they were ever brought against someone in court. Countries like India and Pakistan also have provisions in their constitutions supposedly protecting the freedom of conscience or religious exercise, but those provisions obviously are not fully and effectively enforced.

Multiple news stories reveal that Twitter actively bans or censors users for expressing views with which the organization disagrees. Turnabout is fair play, perhaps. But, hopefully, this will serve as a wakeup call to the company about the true danger of suppressing the expression of beliefs.

No one should have to fear the sword of the government or blasphemy laws being used against them for expressing their beliefs. To ensure that all people can speak and worship according to their conscience, we must fight against blasphemy laws and guarantee protections for the freedom to believe.

Pray Tell: Atheist Sues to Lead Legislative Prayer

by Alexandra McPhee

November 1, 2018

In a peculiar turn of events, secularist organization Freedom From Religion Foundation (FFRF) has argued before a federal appeals court that an atheist has the right to pray on the floor of the U.S. House of Representatives.

Dan Barker, co-founder of FFRF, desired to serve as Rep. Mark Pocan’s (D-Wis.) guest in leading the opening prayer for the following legislative session. Barker is an atheist. His request was denied because it was determined that he did not meet the chaplain-policy requirements to give an invocation on the House floor. His lawsuit argues that the policy unconstitutionally discriminates against nonbelievers under the Establishment Clause of the United States Constitution.

It is ironic and hypocritical that the group that routinely seeks to box out religion from the public square is now invoking the principles of religious freedom in order to make a secular invocation in our national legislature.

This anomaly notwithstanding, the greater issue is that the current judicial precedent surrounding the Establishment Clause is so malleable (one federal circuit court judge called it “a hot mess” and “a wreck”) that even something as unobtrusive as prayer is no longer guaranteed protection in the public square. Coach Joe Kennedy of Washington is one example, and there are many more like him across the nation.

As the late Justice Antonin Scalia observed, 1970s-era Establishment Clause doctrine has created a “geometry of crooked lines and wavering shapes” in this area of constitutional law. So what should we expect out of the judges responsible for interpreting constitutional law at our nation’s highest court and in lower courts across the country?

To establish sound Establishment Clause (or any constitutional) doctrine, the most intellectually honest and sustainable approach is to look to the understanding of the Founders at the time they penned and ratified the U.S. Constitution. This means looking at history. As the U.S. Supreme Court once said, “The line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers.” This idea of looking at the understanding of the drafters of any law is as true for the latest entry of the U.S. Code as it is for the First Amendment.

Barker’s case involves legislative prayer, which is specially recognized for its undeniable historical precedent. In fact, legislative prayer, or “divine service,” has taken place as early as the 1700s. Largely because of its deep roots in history, legislative prayer is considered constitutional. It is an instructive example of how the courts have used and should use legal history to determine the constitutionality of religion in the public square. Unfortunately, the same is not true for judicial precedent surrounding religiously inspired monuments or certain tax exemptions, which some argue should fail constitutional muster under the Establishment Clause.

Fortunately, scholars have observed a resurgence in the role of legal history in modern judicial decision-making at the Supreme Court. What’s more, President Donald Trump’s laser-like focus on the appointment of judges has resulted in “appointees [that] are showing themselves to be strong spokespeople for what is generally described as the conservative viewpoint.” As such, law professor Arthur Hellman of the University of Pittsburgh said, “[n]ew blood reopens old issues.” And even though this use of legal history, or “originalism,” has become associated with “the conservative viewpoint,” the fact is that it is “ideologically neutral. On various stormy issues, both the conservative and liberal factions . . . have found safe harbor in historical reasoning.” What all this means is stable judicial precedent—not the confusion that exists today.

As with the doctrine of legislative prayer, we need to return to our legal historical roots and use what we find there as our guiding principles for understanding the constitutionality of religion in the public square.

Moreover, with mid-term elections on the horizon, it is critical that we vote in U.S. Senators who will help appoint judges that protect our constitutional rights. Our Republican-controlled Senate has faithfully stewarded its advice-and-consent powers by helping appoint judges who value historical reasoning. We ought to vote for candidates who will continue this trend.

Public prayer in schools and the government workplace, for instance, is more constitutional than it’s given credit for. You can feel assured in this by looking no further than Article III of the Northwest Territory Ordinance of 1787, in which the Founding-era Congress stated, “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”

As for Barker and his legislative prayer case—we’ll have to see whether the judges in his case conclude that history is on his side.

Ala. Supreme Court Justice: Roe Cuts Off the Unborn’s Full Right to Life

by Alexandra McPhee

October 31, 2018

In a concurring opinion, Justice Tom Parker of the Supreme Court of Alabama called on the nation’s highest court to overturn Roe v. Wade (1973) and remove the last major obstacle to the states’ right to enact protections for the unborn.

Earlier this month, the Supreme Court of Alabama affirmed that Jesse Livell Phillips will face the jury-recommended death penalty for the murder of his young wife and their unborn child. Prosecutors used Alabama’s Brody Act, one of several laws in Alabama that legally recognize the personhood of the unborn.

Justice Parker agreed with the outcome and wrote separately to denounce what he calls the “Roe exception.” Because of the U.S. Supreme Court’s holding in Roe, he writes, “the only major area in which unborn children are denied legal protection is abortion.” The “unborn child’s fundamental, inalienable, God-given right to life is the only right the states are prohibited from ensuring . . . .”

His proffer comes at a time when advocates on both sides of the life debate are keeping a close watch on the new makeup of the U.S. Supreme Court and how it might rule in a case that allows it to revisit the holding in Roe. But for years Justice Parker has urged that the decision in Roe is outmoded, that the holding in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) meant to address the decision in Roe only created more issues, and that the unborn are “entitled to the full protection of law at every stage of development.”

Many (though not all) state legislatures agree. Americans United for Life comprehensively documents the “legal recognition of the unborn and newly born” available in every state. Another article covers the numerous state laws governing crime, tort, health care, property, and guardianship that recognize the personhood of the unborn.

But Justice Parker points out that “in spite of voluminous state laws recognizing that the lives of unborn children are increasingly entitled to full legal protection, the isolated Roe exception stubbornly endures.”

At least two courts have ruled on the side of life in cases about statutes requiring abortion clinics to have hospital admitting privileges. But a case from the U.S. Court of Appeals for the Seventh Circuit may present the opportunity to strike at the heart of the matter and revisit the aberrational decision in Roe. If the justices on the U.S. Supreme Court take up the case on this ground, we hope they heed Justice Parker’s call for the restoration of the power of the states to protect the lives of the unborn in all areas of the law.

Atlanta’s Kelvin Cochran Settles the Score

by Alexandra McPhee

October 17, 2018

Though former Atlanta Fire Chief Kelvin Cochran lost the position he worked his whole life to achieve, a $1.2 million settlement on October 15 in his favor is closure to his multi-year saga defending his faith.

In January 2015, the decorated former chief and Obama-appointee was fired for authoring a religious book for men, which focused on biblical principles of marriage and sexuality. Mayor Kasim Reed had placed him on suspension and required sensitivity training before his ultimate termination.

The city gave several superficially objective reasons for giving this public servant the pink slip. But a later investigation concluded that there was no evidence that Cochran’s beliefs compromised his leadership. Cochran pursued litigation to defend his right to express his faith in his private capacity.

What it comes down to is that Cochran was fired for his articulation of long-held beliefs on marriage and sexuality. As one city council member tellingly said in response to the book, “when you’re a city and those thoughts, beliefs and opinions are different from the city’s, you have to check them at the door.” As it turns out, the city council member would have to check his own opinions at the door in the face of the $1.2 million city-council-approved payout issued with a vote of 11-3.

Last year, a federal district court ruled that the city “can’t force its employees to get its permission” to engage in free speech.

The court acknowledged Cochran’s reputation as “an excellent Fire Chief” and his mission to “assemble a group of firefighters . .  who represented diverse backgrounds, characteristics, and beliefs,” including at least two employees who identified as LGBT under his leadership.

Not all of Cochran’s constitutional arguments were accepted by the court. But Cochran’s large settlement is a signal that the city knows that it has the losing side of the argument.

The government is here for the people, not the other way around. No American should be punished simply for holding beliefs that are different from the government. As Cochran’s case demonstrates, making such a mistake can come at a price.

Hacksaw Ridge and the Value of Conscientious Objectors

by Alexandra McPhee

October 12, 2018

Seventy-three years ago today, on October 12, 1945, President Harry S. Truman awarded Private First Class (then-Corporal) Desmond T. Doss the Medal of Honor for his heroic efforts during his service in the Pacific theater of World War II. He was the first conscientious objector to receive the Medal of Honor.

Doss was a Seventh-day Adventist. When he entered the military as a conscientious objector, he did so with the convictions that his faith required that he take a sabbath and that, under the biblical commandment “Thou shalt not kill,” he must never touch a weapon to kill another man, even in war.

The deeply-rooted, American value of religious liberty protected Doss’s beliefs. Rights of conscience have been considered a component of religious freedom since the origins of this nation. Indeed, from the time of the Colonies, the government has exempted conscientious objectors from service or from the bearing of arms.

When Doss entered the service during World War II, the Selective Training and Service Act of 1940 protected those “subject to combatant training and service . . . who, by reason of religious training and belief, [were] conscientiously opposed to participation in war in any form.”

The Act thus enabled Doss to participate in the war to the extent he believed his faith permitted. As his biography states, “He believed his duty was to obey God and serve his country. But it had to be in that order.”

While serving as a medic, Doss continually carried the wounded to safety during battle in the Philippines, Guam, and Japan, all without using any weapons. In Okinawa, Japan, Doss saved the lives of 75 men over the course of a single day. American soldiers had faced an unexpected counterattack by the Japanese and were ordered to retreat. Only one-third of the soldiers were able to escape from the counterattack. Despite the order to retreat, Doss remained, and he took each of the 75 men, one by one, off of the battlefield to safety.

Doss’s feats in Okinawa were detailed in his Medal of Honor Citation and were the subject of the award-winning 2016 film Hacksaw Ridge, which Doss’s son said represents his father faithfully.

Thomas W. Bennett and Joseph G. LaPointe Jr. were also conscientious objectors, and they posthumously received the Medal of Honor for their acts of valor in the Vietnam War.

These men are proof that we do not accomplish freedom by boxing conscientious objectors or religious expression out of military service or the public square.

As Chief Justice Harlan F. Stone once said, “liberty of conscience” is “vital . .  to the integrity of man’s moral and spiritual nature,” and “nothing short of the self-preservation of the state should warrant its violation.” Even then, “it may well be questioned whether the state which preserves its life by a settled policy of violation of the conscience of the individual will not in fact ultimately lose it by the process.”

By defending the rights of conscience, we enable individuals like Doss, Bennett, and LaPointe to contribute, in accordance with their beliefs, towards the common good and the preservation of our country.

Reversing Roe—Or Ignoring Her?

by Alexandra McPhee

October 5, 2018

This past weekend, I microwaved some popcorn, took to Netflix, and streamed Reversing Roe, a documentary on “the state of abortion and women’s rights in America.”

The film aims to track the historical movement of the abortion debate into the political sphere, and it does so with a pro-abortion slant. It at least tries to give voice to leaders in the pro-life movement, however, with speakers that include our own Tony Perkins.

Among the documentary’s slew of pro-abortion advocates is Sarah Weddington, the attorney who argued Roe v. Wade. Remarkably, it makes no mention of the story of perhaps her most well-known client, Norma McCorvey (pictured). McCorvey is the eponymous “Jane Roe” in Roe v. Wade. What you don’t learn is that McCorvey eventually gave birth to the child she sought to abort and later became a pro-life advocate because of her Christian faith. 

It’s a disappointing omission in a documentary that otherwise makes an effort to fairly represent the pro-life stance. (Even if it fails to fully represent the idea that pro-lifers are advocating for the unborn—not government control over women’s bodies or back-alley abortions. Or the idea that demographics other than old, white men can be pro-life.)

Arguably, the film doesn’t have the time to explore the integrity of or the moral basis for the views of all the major players in the abortion debate. But it does find screen time for a Protestant minister who supports legal abortion, a doctor who believes that his abortion practice is an act of compassion, and shrewd politicos who used Roe v. Wade to channel the passion of conservative evangelicals into votes for Ronald Reagan. 

What about the young woman who wanted an abortion and then changed her mind?

As a result, the absence of McCorvey and her story paints an incomplete picture of key figures in the abortion debate, the role of faith, and advocates for the sanctity of life. In a documentary with her assumed name in the title, Norma McCorvey and her story could have and should have been given a voice.

U.S. Courts of Appeals: No Vacancy

by Alexandra McPhee

September 24, 2018

You’ve probably seen a lot of press lately surrounding the United States Supreme Court, our nation’s court of last resort. This past weekend at the Values Voter Summit, Senate Majority Leader Mitch McConnell highlighted another issue that he considers a top priority: the confirmation and appointment of circuit court judges, the judges that sit on the United States Courts of Appeals.

President Trump and the Republican-led Senate have coordinated a system of confirmation and appointment of high-caliber judicial conservatives to our circuit courts with unparalleled efficiency. Since President Trump has been in office, 26 new judges have ascended the bench of circuit courts across the nation. Under the Obama administration, the Senate did not confirm a 24th judge until the fourth year of Obama’s presidency.

The Supreme Court issues many consequential decisions that have had an impact on pro-life policies, traditional marriage, and the free expression of religion. But the Majority Leader explained before the VVS audience that “a very, very small number of cases make it to the Supreme Court. The circuit courts are where most complex litigation ends.” As one article notes, judicial decisions from the circuit court “span a wide range of issues, from hot-button topics such as abortion, gay rights and the death penalty to voting rights, regulatory and business disputes, employment law and the environment.”

It is important that circuit court judges apply the law rather than seek to make the law based on their personal preferences. “These are lifetime appointments,” Senator McConnell emphasized. They will have a “longtime impact on what kind of country we’re going to have for the next generation.” In other words, five, ten, or twenty years from now, presently undecided areas of the law affecting our faith, family, and freedom will be decided by the circuit court judges appointed and confirmed today.

As Senator McConnell explained, “Republicans have only had the Senate, the House, and the White House for 20 of [the past] 100 years.” If we lose the Senate Republican majority, the influx of judges who will defend our constitutional rights will screech to a halt.

The Values Voter Summit is a yearly gathering of the most civically engaged and pro-family voters in our nation. All of us who have just gathered are participants, not spectators. The time is now to mobilize our friends and family to vote to keep a unified executive and legislative branch and fill our circuit courts with people “who believe that the job of a judge is to follow the law.”

Alexandra McPhee is the Director of Religious Freedom Advocacy at FRC.

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