Author archives: Travis Weber

Mike Pompeo Has the Correct Perspective on Human Rights

by Travis Weber

April 12, 2018

During his confirmation hearing for Secretary of State, Mike Pompeo was asked by Senator Chris Coons (D-Delaware) whether he thinks “LGBTQ rights are human rights.”

Pompeo responded:

I deeply believe LGBTQ persons have every right that every other person has.

This is exactly right. Mike Pompeo’s response accurately captures how international human rights law addresses the claims of the LGBT movement, expressed with care and charity.

As I stated several years ago:

All human beings possess rights because of our unique human nature as evidenced by reason and conscience. LGBT persons have the same human rights as others, because of their human dignity, evidenced by their endowed reason and conscience … .

Some may claim, as then-Secretary of State Hillary Clinton did, that “gay rights are human rights and human rights are gay rights.” This statement misleads by … implying that same-sex-attracted and transgendered persons do not currently enjoy human rights protections … .

The [Universal Declaration of Human Rights] and [International Covenant on Civil and Political Rights] protect every individual from arbitrary arrest, torture, and extrajudicial killing by the State, because all humans have human dignity, regardless of their sexual attraction or gender preference.

If any person is denied these rights (whether they identify as same-sex attracted or not), then UN human rights bodies should investigate and strengthen enforcement of their rights. Secretary Clinton names a problem that already has a solution.

Mike Pompeo shows he has the right perspective on international human rights law. Not everyone may like the law, but for the rule of law to be upheld, it must be respected. Considering how he was pressed to uphold the rule of law during his hearing—and how he promised (rightly) to do so—we have hope that he will take this principled approach to international law when implementing our foreign policy.

For the Sake of Our Security at Home, We Must Focus on Religious Freedom Abroad

by Travis Weber

April 5, 2018

In recent history, our foreign policy elites have primarily viewed religious freedom concerns as the parochial interest of humanitarian-minded pastors and religious freedom-focused human rights activists. Concerns were addressed when possible, yet the government handled problems on a one-off basis, usually to solve the annual flare-up over some imprisoned pastor somewhere. However, these religious freedom challenges haven’t been incorporated into any consistent, long-term, strategic thinking on foreign policy.

But what if they should be? One could argue the one-off approach hasn’t really advanced religious freedom worldwide, and that we should change the way we try to protect this right. Regardless, the assumption is that we are operating from a humanitarian basis. But what if the appeal was made on other grounds—that religious freedom is not simply a humanitarian concern, but that it is in the interest of our own security to advance it around the world?

Emerging evidence suggests that it is. As Professor William Inboden (who formerly served on the State Department’s Policy Planning staff and as senior director for strategic planning at the National Security Council) points out, “[t]here is not a single nation in the world that both respects religious freedom and poses a security threat to the United States.”

In a new FRC analysis released just yesterday, “Religious Freedom and National Security,” we make the case that the United States should not only promote religious freedom for its own sake, but also because it ultimately keeps us safer in the long run.

For a template, we can draw on the example of President Reagan, who unapologetically defended religious freedom on the world stage—confronting the Soviet Union, China, and others on this issue. Today, we face our own challenges posed by the spread of radical Islam and rising authoritarian governments—menaces whose suppression of religious freedom correlates with their threat to our national security.

With ongoing threats around the world which show no sign of abating, shouldn’t we at least be open to the possibility that we need to change our thinking on this issue, and address religious freedom violators because of their threat to our national security?

Just in the last several days, news has broken that China appears to be restricting the sale of Bibles and is also pushing a deal with the Vatican that would ultimately keep it in charge of appointing bishops.

It seems some of the same religious freedom problems President Reagan faced are rearing their heads today. It is time that we reclaim America’s historic role in engaging them, and firmly and strategically defend religious freedom around the world—for this will ultimately keep us safe at home.

Attacks on Counseling Threaten Pastors and Churches

by Travis Weber

March 23, 2018

Recently, California state legislators proposed a bill which would outlaw counseling—even that which is freely entered—for anyone who wanted help changing their unwanted same-sex attraction. We have seen such efforts before, but this one is noteworthy for how expansive it is—it covers individuals, associations, and “other group[s],” in addition to traditional businesses. As Alliance Defending Freedom points out, it could even implicate churches: “It could be a violation [of this proposed law] if a pastor encourages a congregant to visit the church bookstore to purchase books that help people address sexual issues, perhaps including the Bible itself, which teaches about the importance of sexual purity within the confines of marriage between a man and woman.” While outlawing such pastoral advice (the bill would consider it fraudulent “goods and services”), the bill completely endorses advice designed to cement same-sex attraction.

Masquerading as consumer protection and medical oversight, this is simply blatant and open discrimination against one side of our society’s debate on sexual ethics. Yet sin wants to suppress the truth, and even the idea that someone can help someone else change their sexual attractions implies that what one may be doing is not all good and healthy. This threat implicates not just businesses and Christians in the public eye, but all Christians who hold to a biblical position on these issues. It won’t matter how one approaches the issue. We should always speak the truth in love because that’s the right thing to do, but that won’t exempt us from being targeted. Our biblical beliefs themselves are the target. It is crucial that all Christians in America understand this social dynamic.

This legislative development in California echoes the situation involving Metro City Church in Michigan, which took heavy criticism for offering a program to help teens who are questioning their sexuality walk through their situation from a biblical perspective. The program approached the issue very cautiously—and was defined by merely discussing the matter of sexuality by looking at what the Bible had to say about it. Yet in response, numerous activists subjected the church and its pastor, Jeremy Schossau, to vitriolic online attacks, criticism, and threats (including potentially criminal behavior), and two state legislators have called for the church to be “investigated” for offering “conversion therapy.”

While we have seen such vitriol often directed at those who advocate a biblical worldview on this issue, direct targeting of churches and pastors has been relatively rare. Yet this incident serves as a reminder that many of the religious freedom struggles we are facing will eventually reach any church which teaches an orthodox biblical position on questions of sexuality.

Moreover, in this case, nothing remotely controversial was occurring; the church was just trying to go to the Bible for answers on this topic. Along with the proposed California legislation, these developments make clear that the problem is not the way something is said, but the Christian position on these issues itself is what is opposed.

We must defend the ability of pastors and their churches to decide what is said in church … not the government. The First Amendment makes absolutely clear that the government has no power to tell churches what advice they can give or require a license to give that advice, and the First Amendment to the Constitution still guarantees the freedom of speech and the free exercise of religion. Additionally, the Establishment Clause of the First Amendment prevents the government from assessing theology and targeting the theological beliefs it doesn’t like. This is the current law, but we must give voice to our rights to see them protected.

After the Supreme Court constitutionalized same-sex marriage in Obergefell v. Hodges, many wondered whether pastors would be pressured into performing same-sex marriages. Perhaps the bigger question now is whether they will be threatened into compromising their larger biblical perspective on sexuality.

FRC is standing with Pastor Jeremy, and attempting to raise awareness of the religious freedom implications of this situation. To stand with Pastor Jeremy, please sign our petition at FRC.org/Metro to tell these legislators they cannot prohibit this pastor or his church from exercising their First Amendment rights.

For more information on Pastor Jeremy’s situation, please see:

FRC Washington Update articles:

Also: 

 

Sixth Circuit Shows Why SOGIs Are a Threat to Religious Freedom

by Travis Weber

March 12, 2018

Last week, in EEOC v. R.G. & G.R. Harris Funeral Homes, the Sixth Circuit Court of Appeals rejected the religious freedom claim of a funeral home owner who wanted to run his business in accordance with his faith—and did not want to accede to the “gender identity” discrimination claim of an employee who desired to remain an employee while living out his transgendered lifestyle as he saw fit. The case is still ongoing (the appeals court ordered the case remanded for a lower court to continue sorting out), but there’s a very real possibility that business owner Thomas Rost may now be forced out of the marketplace rather than violate his faith.

This is the first federal court case dealing with a Religious Freedom Restoration Act (RFRA) claim in the context of a sexual orientation and/or gender identity (SOGI) nondiscrimination claim (the only other such case is the state-level case of print shop owner Blaine Adamson in Kentucky), and SOGI came out the victor. The concerns of those who have warned of the religious freedom threat of SOGIs are validated by this decision.

The Sixth Circuit, in an opinion authored by Judge Karen Moore, got its analysis wrong on several levels. First, the court claimed it was somehow very clear that Title VII sex discrimination prohibitions include “gender identity”—despite the fact that no court considered such a possibility for decades. Even Supreme Court Justice Ruth Bader Ginburg, writing about the proposed Equal Rights Amendment decades ago, did not take “gender identity” under consideration as she dismissed concerns that sex nondiscrimination provisions could force bathrooms to be opened up to the opposite biological sex. So when the Sixth Circuit says “[n]or can much be gleaned from the fact that … statutes, such as the Violence Against Women Act, expressly prohibit discrimination on the basis of ‘gender identity,’ while Title VII does not,” it isn’t very convincing. If it was so clear, no court would ever have rejected the notion that “gender identity” falls under sex discrimination—yet many have.

The court continued to err when it analyzed the religious freedom issue here. The funeral home relied on RFRA as a defense to the SOGI claim, asserting that a sincere religious belief had been substantially burdened. At that point, the EEOC could only have prevailed if it had a compelling government interest which was accomplished through the least restrictive means.

Judge Moore incredibly (and erroneously) claimed it was not a “substantial burden” on religious exercise to “forc[e] [the Funeral Home] to violate Rost’s faith,” which “would significantly pressure Rost to leave the funeral industry and end his ministry to grieving people.” Yet it is an elementary principle of RFRA analysis to observe there is a substantial burden on someone who is told they must compromise their beliefs in order to retain their job. The court accepted that Rost sincerely believed he should not be “directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift,” but then summarily dismissed his concern, concluding that “tolerating [his employee’s] understanding of … sex and gender identity is not tantamount to supporting it.”

The court tries to rely on lower federal court adjudications in the HHS mandate contraceptive litigation, claiming that “[m]ost circuits, including this one, have recognized that a party can sincerely believe that he is being coerced into engaging in conduct that violates his religious convictions without actually, as a matter of law, being so engaged.” Yet this second-guessing of religious beliefs has been roundly repudiated by the Supreme Court in Employment Division v. Smith, where the Court observed decades ago that “[r]epeatedly and in many different contexts, we have warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim.” Moreover, despite citing HHS mandate cases from the lower courts, Judge Moore skips over the fact that when the Supreme Court handled those cases on appeal in Zubik v. Burwell, the justices told the parties to come to a resolution while honoring the religious exercise at issue, rather than flatly dismissing the substantial burden on the religious claimants.

After concluding there was no substantial burden on religious exercise, Judge Moore didn’t need to continue her analysis, but did so anyway, offering her view that it was a compelling interest to force the funeral home to accede to the transgendered employee’s demands: “Failing to enforce Title VII against the Funeral Home means the EEOC would be allowing a particular person—Stephens—to suffer discrimination, and such an outcome is directly contrary to the EEOC’s compelling interest in combating discrimination in the workforce.” The court did not want to “hoist automatically Rost’s religious interests above other compelling governmental concerns.” The Sixth Circuit then concluded that uniform enforcement of sex nondiscrimination provisions without religious exceptions was the least restrictive means to accomplish this compelling government interest of eradicating discrimination.

What are we to make of this? Aside from realizing that judges are not exempt from the temptation to arrive at a conclusion and then craft reasoning to help one get there, the court’s opinion shows us that businesses seeking religious freedom protections need to state clearly and regularly their religious nature (though part of a separate ministerial exemption analysis, the court did hold the business’s lack of numerous and overt religious indicia against it).

More relevant for our current religious freedom concerns, this case shows the inability of RFRA to adjudicate modern religious freedom disputes with certainty, as the statute allows judges the leeway to craft conclusions of their own liking, an even bigger danger when issues of sexuality—on which they want to be on the “right side of history”—are involved in the case.

Finally, and perhaps most significantly, this opinion demonstrates that when RFRA and SOGI claims intersect, the SOGI claims will likely win (and will almost certainly win in the hands of judges under social and cultural pressure to reach a certain result), thus vindicating many who have claimed that SOGI laws themselves are a threat to religious freedom.

Andrew Sullivan on Opioids: Pointing Us Toward God

by Travis Weber

February 23, 2018

Andrew Sullivan wrote a lengthy and illuminating piece recently digging deeper into the opioid crisis, in part by examining the attraction of the drug itself. One interesting aspect of the article was his observation about why opioids have been such a draw through the ages—they help us escape from pain, from reality. As Sullivan notes, if we simply attack the symptoms on the surface, we are missing a “deeper American story. It is a story of pain and the search for an end to it.”

For millennia, humans have searched for answers to life and the difficulty it brings. Some of these answers have involved God, and others have not. It is certainly clear that right now, America’s families have been hit hard by the opioid crisis.

Yet while we need to go to God, we often don’t, and we reject his advances. Like God trying to rescue us, the police officers trying to rescue the addict by administering antidotes “are hated,” for “[t]hey ruined the high.”

Marx’s claim that religion is the “opiate of the people” is old-hat. As Sullivan points out: “Opiates are now the religion of the people.”

We must go to God in our pain, not try to escape it by our own means—whether through opioids or otherwise. It must be said that prescription opioids (along with other pain management tools) can be used properly (like for the alleviation of chronic severe pain) alongside going to God in our pain.

Near the end of the piece, Sullivan again observes:

To see this epidemic as simply a pharmaceutical or chemically addictive problem is to miss something: the despair that currently makes so many want to fly away. Opioids are just one of the ways Americans are trying to cope with an inhuman new world where everything is flat, where communication is virtual, and where those core elements of human happiness — faith, family, community — seem to elude so many. Until we resolve these deeper social, cultural, and psychological problems, until we discover a new meaning or reimagine our old religion or reinvent our way of life, the poppy will flourish.

Indeed, in searching for “new meaning,” I believe Sullivan is yearning for God here, and I would point him toward the Good News: Though we have all strayed from and are separated from God (and part of this separation is pain), Jesus has paid the price for us to be restored to God. We just must accept him, choose to follow him, and submit our lives to him. This restoration then becomes our new eternal reality, even if we don’t see all its benefits immediately.

Sullivan continues:

We have seen this story before — in America and elsewhere. The allure of opiates’ joys are filling a hole in the human heart and soul today as they have since the dawn of civilization.

I would agree with this diagnosis, but only add that the medicine involves a spiritual element, most specifically the Good News discussed above. This is something Billy Graham, who recently passed away, would want us to remember. While the issue in all its facets is undoubtedly complex, it is clear that we must not neglect the spiritual aspect of the cure.

We as a nation need God, and need him publicly. Graham’s recent passing also reminds us of that. Let us remind ourselves again, and let us not forget it.

Fact-Checking Jimmy Kimmel on Christian Bakers: Two Big Errors, But Props for Trying

by Travis Weber

February 13, 2018

The other day, Jimmy Kimmel responded to a California Court ruling affirming Christian baker Cathy Miller’s First Amendment right to not be compelled to create a cake celebrating a same-sex wedding.

Here is a response to Jimmy Kimmel’s response, which I also presented on Facebook Live with our own Brynne Krispin (below).

First, I commend Kimmel for trying to tackle the issue, and for acknowledging the judge’s ruling in favor of the baker “sounded reasonable.” That’s a start.

But Kimmel then goes off track when trying to portray what happened.

In his skit, he plays a waiter who quizzes customers at his hypothetical restaurant, asking after they sat down but before serving them: “Are any of you gay?” After one woman says yes, he informs her his chef can’t make her a salad because he “believes homosexuality is a sin” (while offering her a salad made yesterday before “he knew you were gay”)—wrongly implying that the California baker did the exact same thing.

ERROR #1: Kimmel wrongly portrays business owners as refusing to serve people because they identify as LGBT

This is simply false. How many times do we have to say it?

What Kimmel portrayed is exactly what is NOT happening in the California case, Jack Phillips’ case, or any other.

Neither Cathy Miller nor any of the other Christians being dragged into court over this issue is quizzing customers to see who identifies as LGBT or not, and sending them on their way if they say they are gay. They are only drawing the line at creating items and sending messages which violate their conscience.

Nor is the issue when the item was baked; Jack Phillips and others are happy to sell a person identifying as LGBT cookies, cakes, brownies, etc.—whether made yesterday or today. Rather, the issue is whether the person of faith is being conscripted into using their talents in service of a proclamation against their will.

Indeed, in his brief to the Supreme Court, Jack Phillips clearly stated that he “would decline to create a wedding cake celebrating a same-sex marriage regardless of whether the customer is a same-sex couple or a heterosexual parent purchasing the cake” (emphasis mine). Yet at the same time, he “would celebrate a marriage between a man and a woman even if one or both spouses identified as gay, lesbian, or bisexual” (emphasis mine).

In other words: this is not about the person; it’s about the message.

ERROR #2: Kimmel tells the story of the potential customers, but not the business owners of faith.

In doing this, Kimmel missed a big opportunity to tell the stories of business owners of faith like Jack Phillips and Cathy Miller—and how they are being harassed by government agencies and dragged into court over this issue right now.

So what should Kimmel’s skit have shown?

The waiter should have played the government and the customer could have played the wedding vendor, and it would have been largely on-point. Jack Phillips and others are simply seeking to stay in the marketplace (the table), yet the government is coming to them and telling them to get out unless they modify their Christian beliefs. This is also happening at the hands of the ACLU in Michigan, where Christian adoption providers have a seat at the table along with pro-LGBT providers. Yet the ACLU is suing the state to force the Christian groups to leave because of their beliefs.

Kimmel’s own skit helps show this. Near the end, he referenced a Hindu chef who didn’t want to prepare a steak for a potential customer because of his religious beliefs. Now, just imagine if that Hindu chef’s job had been to simply prepare vegetable side dishes, and then one day all of a sudden his boss tells him to start preparing steaks—or be fired. Cathy Miller’s story is like this chef’s, and it is a story that needs to be told. If Jimmy Kimmel doesn’t tell it, we gladly will.

Generation Z – Seeking Answers to Good and Evil

by Travis Weber

February 13, 2018

Generation X and Millennials are old news; we are now turning our attention to Generation Z, the youngest generation of all. One research outfit recently conducted a groundbreaking study of the way this group sees the world, including ultimate matters of life—faith, meaning, and the existence of God. (Though Gen Z is defined as those born between 1999 to 2015, for the purpose of this study only those between ages of 13 and 18 were included.)

When looking at differences between Christian and non-Christian members of Gen Z, the study’s authors report one of their major findings to be that “the problem of evil is a major barrier to faith” for 29 percent of non-Christian members of Gen Z.

While this finding is in a new study, the objection raised by Gen Z has been around much longer. Decades ago, British author and scholar C.S. Lewis, who was a non-believer for years during his youth, dealt with the problem of evil in his book The Problem of Pain. In its introduction, Lewis writes: “I never noticed that the very strength and facility of the pessimists’ case at once poses us a problem. If the universe is so bad, or even half so bad, how on earth did human beings ever come to attribute it to the activity of a wise and good Creator?”

Indeed, the reality that human beings are able to recognize evil at all shows us that we are comparing it to something else—that which is good. And if we acknowledge that we recognize we have a moral compass, we should ask where its reference point is.

By appealing to God (or against God) to correct those things which our moral compass tells us are off course, don’t we already recognize him as the source? And if he is the source, he exists indeed.

This may seem counterintuitive, but the fact that members of Gen Z are struggling over the problem of evil is actually a hopeful sign. In raising this objection, as Lewis once did, they show they are at least on the road to faith—as Lewis was as a young man. Let us pray and seek out opportunities to help them arrive at their destination.

Can the LGBT Movement Own a Phrase?

by Travis Weber

January 26, 2018

In response to a recent video from the ministry Anchored North featuring a girl named Emily explaining sin, forgiveness, and the truth about God’s view of sexuality, The Guardian published a story titled: “‘Love Is Love’: media firm uses LGBT language to send anti-gay message.”

Whoa, stop right there! Whoever decided that “LGBT language” was a thing? And who made who the arbiter of it?

Well, no one did, but the animated response of The Guardian reminds us of an important point: the LGBT movement has indeed been using language, very purposefully, to advance its goals over the years.

In its article, The Guardian reports: “At one point in the video, Emily uses the popular LGBT-affirming phrase ‘born this way,’ but twists it to say that all humans are born with sin, but there is hope in Jesus.”

Who gave the LGBT movement ownership of the phrase “born this way?” No one did, but they took it and used it. However, words are words, and they can describe things besides what the LGBT movement wants them to describe. Some of these things are sin, repentance, and forgiveness.

While it accuses Christians of twisting “LGBT language,” the Guardian piece simply regurgitates terms frequently twisted by the LGBT movement itself to advance its ends. Yet that movement has no monopoly on language. From the animosity shown toward this threat to its hold over certain terminology, however, one realizes the importance of emotive language and certain images to the LGBT movement achieving its ends.

As reported later in the Guardian piece, one woman responded to Emily’s story by saying:

Any attempt to change someone’s sexual or gender identity, even through something as subtle as prayer, is conversion therapy.” (emphasis added)

Let this be a cultural moment for Christians in America to wake up and mark the importance of language and how we use it, along with recognizing the seriousness of the opposition to the gospel and God’s truth displayed here. If Americans who share these basic Christian beliefs on sexuality think they can side-step the cultural battles, they need to remind themselves of the above woman’s hostility to even prayer being a solution. That should wake us all up.

Oregon State Appeals Court Rules Against Aaron and Melissa Klein

by Travis Weber

January 5, 2018

On December 28th, the Oregon Court of Appeals ruled against Aaron and Melissa Klein, upholding a determination under state law that forced them to create a cake for a same-sex wedding against their consciences.

The court threw cold water on the Kleins’ First Amendment defenses, claiming that if it allowed them to proceed, then others seeking to defend racial discrimination through religious freedom claims would also be allowed to prevail.

The Court also goes overboard by accepting and recounting wholesale the feelings and perceptions of the upset same-sex couple, coloring bias into the entire narrative—while failing to do the same courtesy for the feelings and perceptions of Aaron and Melissa, who no doubt have been seriously harmed throughout this case. Moreover, Aaron and Melissa had to endure a barrage of hateful rhetoric directed at them as this incident developed, yet none of this is built into the court’s recounting of events, which ultimately supported highly excessive damages against the Kleins built on nothing more than the couple’s flimsy emotional narrative.

Yet there were a couple of bright spots in the opinion.

The one finding the court reversed was the part of the administrative ruling which acted as a “gag order” on the Kleins being able to speak about what happened to them. This finding was outrageous, and rightly reversed by the court of appeals.

Second, even though the court ruled against the Kleins’ freedom of expression claim, it recognized that to the degree such cake creations are artistic, they are very likely protected. Noting that “[i]t appears that the Supreme Court has never decided a free-speech challenge to the application of a public accommodations law to a retail establishment selling highly customized, creative goods and services that arguably are in the nature of art or other expression,” the court said that “[i]f BOLI’s [Bureau of Labor and Industry—the administrative entity which ruled against the Kleins] order can be understood to compel the Kleins to create pure ‘expression’ that they would not otherwise create, it is possible that the Court would regard BOLI’s order as a regulation of content, thus subject to strict scrutiny, the test for regulating fully protected expression.” This also “would be a different case if BOLI’s order had awarded damages against the Kleins for refusing to decorate a cake with a specific message requested by a customer (‘God Bless This Marriage.’)”

Well, the Supreme Court is about to decide this very issue in Jack Phillips’ case—Masterpiece Cakeshop v. Colorado Civil Rights Commission—in the upcoming months. When his case is decided, the Kleins’ case may be too. Indeed, at oral argument in Phillips’ case, the exact message “God Bless This Marriage” was mentioned by the justices as implicating protected expressive conduct (one wonders if the Oregon Court of Appeals specifically cited it in order to leave itself an “out”).

Finally, in another bright moment in its opinion, the Oregon Court of Appeals observed that the Kleins’ case (and therefore many of these wedding vendor cases) are unlike FAIR v. Rumsfeld, in which the Supreme Court said law schools must allow military recruiters (the military was under the “Don’t Ask, Don’t Tell” policy at the time) access to campus if they wanted to continue to receive federal funds. Opponents of the Kleins and others often claim their cases are like FAIR, and it was good to see the Court here dismiss that notion, observing that the law schools never objected to being forced to speak a message with which they disagree, while the Kleins and other wedding vendors do.

Despite these few promising points, the Oregon Court of Appeals ruling is a blow to freedom for all, and will only perpetuate the current culture war by suppressing the religious freedom of many people of good will who just want to live their lives in peace. The Kleins’ opponents could have easily obtained a cake from a nearby bakery, and the problem would be solved. Instead, once again, everyone has been dragged into years of litigation. Until a different approach to these conflicts is taken, we can only expect more of the same results.

Kicking Jesus Off the Bus?

by Travis Weber

December 13, 2017

Last week, a federal court ruled that the Washington Metropolitan Area Transit Authority (WMATA) was permitted to reject an ad (pictured above) that the Roman Catholic Archdiocese of D.C. wanted to run on the sides of area buses during the Christmas season.

Now why would such an ad be excluded?

In holding that WMATA’s commercial advertising guidelines (under which the ad was excluded) did not violate the First Amendment and could be permitted to stand, the court reviewed the guidelines under a standard for speech in nonpublic forums (which public buses are generally considered to be). For nonpublic forums, the government can discriminate based on content but not on viewpoint, and here, WMATA has a policy of not allowing certain types of content on its buses, including religious content.

While WMATA would be able to eliminate religious content from its buses, the Archdiocese had argued that WMATA was discriminating based on viewpoint because it was happy to have other Christmas ads which are religiously related and which convey the view that Christmas is a commercial holiday, but that WMATA didn’t want to accept the Archdiocese’s view that Christmas is noncommercial and should be focused on the gift of Christ (as the above poster does).

The court rejected this view, ruling that the bus guidelines did not discriminate based on viewpoint but only on content—noting that “religion is excluded as a subject matter.”

But is all of “religion” really being excluded? It doesn’t seem so. WMATA permits Christmas-related ads from the Salvation Army, and ads from a religiously-focused yoga group.

Yet, as the court recognizes later in its opinion, the guidelines prohibit ads that “promote” or “oppose” religious beliefs. The court relies on these guidelines to distinguish the Archdiocese’s proposed ad from ads by the Salvation Army and a yoga studio, which WMATA permitted despite their religious overtones, claiming they don’t promote specific beliefs. So it is not religion per se that WMATA wants to prohibit, but rather messages opposed to or promoting religious belief. And since the Archdiocese is understandably seeking to promote its own religious belief in its own ad which it would be paying for, WMATA declared it off limits (thus, the court’s comment that “religion is excluded”—seeming to refer to religion generally—isn’t even correct).

We should be especially wary of government restrictions on one’s viewpoint. They are the most dangerous at their core, and go to the heart of why we have the First Amendment. In ruling for WMATA here, the court observed that under the lower standard of scrutiny applied, the government could rely on administrative convenience and the avoidance of controversy as a legitimate basis to exclude ads—as it and other authorities have done in response to Islam-related ads (indeed, the whole reason WMATA and other authorities have chosen to lower the level of scrutiny they have to meet and eliminate whole areas of discussion from their buses is to avoid legally having to host controversial Islam-related messages—now, the same ad which has run in years past in the D.C. metro system is not being permitted on buses). But suppressing a message for fear of the response is the essence of the heckler’s veto, and is no way for a free country to act.

If for no other reason, this is perhaps why the courts should be inclined to rule for the Archdiocese here, and be loath to affirm any policy which could be used to justify views the government doesn’t like.

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