Author archives: Travis Weber

Blasphemy Laws” Violate Religious Liberty

by Travis Weber

May 24, 2017

Yesterday, the Christian governor of Jakarta, Indonesia – Basuki Tjahaja Purnama – decided to drop the appeal of his blasphemy conviction, for which he will now serve two years in jail. The reason? Fears of the possibility that the sentence may be lengthened, and concerns about continued violent clashes between factions on different sides of the case. Whatever the precise reason (and criminal defendants often have several reasons factoring into their decision), allowing outside social pressure to affect the continued incarceration of Mr. Basuki is an absolute tragedy.

Blasphemy laws – aside from being a violation of the human right of freedom of religion – are notoriously abused to target political and social opponents. In the past, Indonesia hasn’t been at the center of such misuse – as has Pakistan – and for this reason such developments are all the more concerning. While Mr. Basuki is obviously entitled to make his own decision regarding his case, the circumstances surrounding it are a bad omen for the future of Indonesian democracy and rule of law in that country, and do not set a good precedent for standing up to hardline Islamists favoring such laws.

The application of the laws themselves to people like Mr. Basuki – who though not Muslim was charged and convicted (and sentenced beyond what the prosecutor even asked for!) of the religious crime after he cited a Quranic verse in public debate (and after radical Muslims protested) – is bad enough. This is a human rights problem. It compounds the problem when such laws are abused and taken advantage of to eliminate political opponents – which is a rule of law problem. Both issues need to be corrected in Indonesia (and other places) going forward.

Think Slavery Has Been Eradicated in the 21st Century? You’d Be Wrong.

by Travis Weber

April 13, 2017

 

Living in the Western world, in our modern era, one might think that chattel slavery (the buying and selling of human beings as property) is a thing of the past. They would be mistaken.

Just yesterday, it was reported that widespread human smuggling operations are still ongoing inside Libya, with migrants arriving from West Africa being openly traded in “public slave markets” where they are bought and sold:

One survivor from Senegal spoke of how he was brought by smugglers across Niger in a bus to the southern Libyan city of Sabha, where he was due to risk a boat trip to Europe. When the middleman did not get his fee, the survivor was put up for sale along with other passengers.

He was taken to a prison where he worked without pay while the captors demanded 300,000 West African francs (about £380) before selling him on to a larger jail. Livia Manante, an IOM officer based in Niger, said migrants would be brought to a square where they were put up for sale.

 . . . 

Those who did not get their ransom paid were often taken away and killed while others would die of hunger and disease in unsanitary conditions.

If the number of migrants goes down, because of death or someone is ransomed, the kidnappers just go to the market and buy one,” Manente said.

The going rate for a migrant was between $200 (£160) and $500 (£400) each, with many forced into captivity for months before they are freed or sold on. So far this year more than 170 bodies have washed up on the shores of the Mediterranean while the Libyan Coast Guard has also rescued thousands more.

This is horrific.

Unfortunately, it is also the inevitable consequence of abandoning the idea that all human beings have been created in the image of God, and that they have inherent dignity for this reason.

What else does this show us? That worldview matters; that one’s view of God and of fellow human beings matters. What we believe about the dignity of the human race matters. If we believe that God created us in his own image, we will understand that we are accountable to God for how we treat fellow human beings.

Indeed, the whole idea of human rights flows from this notion. Because we have dignity as image-bearers of God, no government may transgress this dignity. From this truth flow certain rights which no government may override—these are called human rights. Among these are the freedom to exercise the religion of one’s choice—and the freedom to not be bought and sold as property!

If we ever forget this truth—may God help us!

Gorsuch on International and Foreign Law

by Travis Weber

April 6, 2017

It hasn’t gotten a lot of attention, but Judge Gorsuch’s exchange with Senator Ben Sasse about international and foreign law at his confirmation hearing offers helpful clues that he’d rule properly in this area:

SASSE: As a sitting Supreme Court justice tasked with upholding the U.S. Constitution, is it ever appropriate to cite international law? And if so, why?

GORSUCH: It’s not categorically improper. There are some circumstances when it is not just proper but necessary. You’re interpreting a contract with a choice of law provision that may adopt foreign law. That’s an appropriate time . . .

Treaties sometimes require you to look at international law by their terms. But if we are talking about interpreting the Constitution of the United States, we have our own tradition and own history. And I don’t know why we would look to the experience of other countries rather than to our own . . .

And so as a general matter, Senator, I would say it is improper to look abroad when interpreting the Constitution . . .

Judge Gorsuch is absolutely right. In his answer to Senator Sasse, he has articulated a vision of the Constitution which guards against the surreptitious importation of standards from other countries which have no bearing on our Constitution (but which the Supreme Court has done from time to time).

Meanwhile, he properly admits that a foreign legal standard in a “choice of law” provision may be consulted (in these cases, the parties to the agreement have stipulated that the laws of another country shall be used to adjudicate disputes between them, and it is entirely proper to consult whatever source of foreign law has been stipulated).

He also made proper reference to treaties as a valid source of international law.

International law (laws between nations) is distinct from foreign law (the laws of a foreign nation), as properly understood, only consists of two areas.

The first is the treaty, or agreement between nations. When nations become parties to a treaty, they agree to be bound explicitly by the treaty’s terms. Yet legal activists, as they so often do in the United States with regard to the Constitution, recognize that their preferred radical policies aren’t contained within the treaty, so they twist its terms or use other mechanisms in the international legal order to push their policies, which they try to term as “law.” Yet the fact that they call them law doesn’t make them so. Just as we must guard against activist attempts to read new “rights” into statutes and the Constitution domestically, we must guard against efforts to read them into the text of treaties internationally.

The second area of international law is customary international law, which is defined as a longstanding practice engaged in by a very large number of states who engage in it because they believe they are legally bound to do so. This is a high standard and not much reaches it. But that doesn’t stop activists from trying to claim their radical policies are “customary international law.” Again, just because they say so over and over again doesn’t make it true.

Judge Gorsuch will not be hoodwinked by such shenanigans. He has articulated a limited (and proper) view of international and foreign law which shows he understands the dynamics in this area. Once again, he has shown that he will be a great originalist and is eminently qualified to be confirmed to the Supreme Court.

One Year Anniversary of the United States Declaring ISIS’ Actions to be Genocide

by Travis Weber

March 17, 2017

One year ago today, Secretary of State John Kerry declared ISIS’ actions against Christians, Yezidis, and others in Iraq and Syria to be genocide. The declaration was widely hailed, and was a helpful step in the right direction, but has produced little positive change on the ground.

In the year since, as veteran religious freedom advocate Nina Shea explains, those suffering genocide have continued to point out their dire situation. But it still has not been addressed in a manner corresponding to its gravity.

This was part of the focus yesterday at an event hosted by the group In Defense of Christians at the U.S. Capitol, which featured commentary from many speakers honoring this important declaration one year out. Members of Congress Jeff Fortenberry and Anna Eshoo, who led the way in getting Congress to label this a genocide several days before the State Department’s declaration a year ago, were present and offered remarks. The event also featured the stories of genocide survivors and those directly working with them.

One Yezidi woman told of her experience being held as a slave by ISIS. Another advocate told of the horrific trauma experienced by those even after they are liberated. One boy, suffering severely after his father had been killed by ISIS, tried to kill himself several times in a displaced persons camp. This latest time, the boy doused himself in gasoline, wrapped himself in blankets, and set himself on fire. His internal trauma was so severe he made no sound as he burned. His younger brother, standing nearby with his back turned, only became aware of what was going on once he smelled burning gas. He ran over and patted out the fire with his hands. By that time, both were badly burned, but alive.

As testified to yesterday, masses of these traumatized children in the camps have already been brainwashed by ISIS to kill themselves in service of violent jihad. They are walking time-bombs, waiting to be taken advantage of and used to wreak future violence and mayhem, while senselessly taking their own lives in the process. They are in the camps now, but we must reach them before it is too late.

These stories are only some of many which show a pattern of the horrific effects of ISIS’ genocide.

As was also mentioned at yesterday’s event, there is hope that the new administration will turn its attention to the plight of these genocide survivors, which have already been neglected for far too long. It is not too late, but we must act now.

The Refugee Implications of President Trump’s Executive Orders

by Travis Weber

March 13, 2017

This is Part 3 of a 3-part series. Here are Parts 1 and 2.

On March 6, President Trump signed a revised executive order restricting entry to the United States from certain countries, which followed heated controversy and legal battles arising from the initial executive order temporarily halting entry to the United States for certain groups of people. In light of the new order, and in the wake of the controversy surrounding the issue more broadly, it’s helpful to separate the multiple issues—often conflated with one another—playing a part in this discussion. One of these issues is the impact of the orders on refugees—who, though only one of the multiple groups affected—have occupied much of the discussion.

Issue #3: On Refugees – Good Arguments Require Precision

Putting aside the media hysterics and negligent or willful abuse of Scripture, there are many who are attempting to engage in well-meaning discussion of these orders and the immigration issue more broadly. Unfortunately, many people protesting President Trump’s actions do not really understand how the immigration system actually works, or what they would recommend if asked how to fix its security concerns. We all would benefit from learning before speaking into the haze and fog of this debate, and should go back to the actual sources. In this case, that is the initial executive order, and the new executive order.

What do the orders say?

Section 3 of the initial order covered the suspension of all visas to individuals from certain countries, and Section 5 covered the suspension of the refugee program. The other sections direct various actions to improve immigration security generally. Exactly what among these provisions is objectionable (and how) is often quickly lost in this discussion, and consequently, is often lost on many who seem to generally oppose the order.

The new order removes Iraq from the list of countries, removes the indefinite ban on Syrian refugees, and takes out language which prioritized those for admission who were persecuted for their faith. It also doesn’t ban lawful U.S. permanent residents, or prevent people from entering the United States traveling on valid visas already issued. The new order also lays out policy reasons for why this action has been taken.

Aside from the removal of protections for religious minorities (which would have been helpful to leave in—for the United States already considers religion in refugee law, and these minorities are in dire need of our help), the refugee admissions provisions remain virtually unchanged between the two executive orders.

Use of the term “refugee”

Throughout this immigration debate, the term “refugee” is often used carelessly. But it has a precise meaning in U.S. law. Individuals entering the United States can do so under a number of visa programs or claim asylum. Entering as a refugee is covered by a specific program, and this program is covered only by Section 5 of the initial order and Section 6 of the new order (the other provisions of the orders cover other avenues of entry). When we speak of “refugees” legally, we refer to people entering through this program. This does not include immigrants entering through other programs, crossing the border illegally, or even showing up at our border to claim asylum.

While many may agree that other elements of the orders and the immigration system overall (to include student and worker visas) certainly need scrutiny, there is a debate as to whether the refugee program alone can be improved, or whether we will achieve quite minimal gains from restricting access through this program while at the same time harming those who need our protection. There are arguments for and against the refugee restrictions in the orders.

Arguments for the refugee restrictions

It is clear that some Muslims with terrorist ties have entered the United States through our refugee program (and the new order notes that more than 300 people who entered the United States as refugees are currently under terrorism investigations by the FBI). Additionally, while vetting for refugees is already rigorous, the Obama administration accelerated the number of people who entered the country near the end of the term. In these circumstances, it’s a reasonable approach to ask how that was done. Some may claim that the vetting is already as strict as possible, and there is always the risk that terrorists slip through. New developments call for new assessments; we are aware, for instance, that Yezidi girls who have been rescued from ISIS captivity are still in touch with their captors due to Stockholm Syndrome. Have we accounted for the risk that one of them might maintain contact once given safe haven in the United States? It is a reasonable position for a U.S. citizen to want to continue to assess security risks until they are addressed.

Moreover, we must be prudent and remain aware of the motivations of different actors. Some large refugee assistance groups may see funding cut under the orders, and it is understandable if they feel pressure to oppose them for that reason in addition to their convictions regarding refugees. At a minimum they have a conflict of interest on this point.

Additionally, we should be careful of a mentality which assumes that large-scale immigration is most helpful to people. Many displaced persons overseas want to stay in their countries. Solutions which help create peace and stability where they live are just as helpful, if not more so, than uprooting them to bring them to a different culture in the United States. Those arguing for widespread and aggressive immigration on grounds of compassion should ensure they are not assuming it is the only compassionate solution.

Arguments against the refugee restrictions

While the executive orders contain many provisions that will improve security overall in the visa-granting process, those halting the refugee program may do little to improve security, while stunting an important program for those fleeing persecution. The United States is currently vulnerable to terrorists seeking to exploit different avenues of entry: H1Bs, student visas, and claims to asylum, for instance. The refugee program, in which vetting occurs outside the country, is the last place terrorists would go if they were trying to enter the United States.

While Europe has experienced difficulty due to increasing numbers of refugees, the situation is not analogous to that of the United States, as the way refugees enter the United States mitigates many of those risks Europe faces. The term “refugee” has been applied to those flooding into Europe but it is inaccurate to think of those same people as refugees to the United States—a point I discuss above. If these people flooded our shores like they’ve done to Europe’s, they would be asylum seekers, not refugees covered by the United States Refugee Admissions Program (USRAP). To enter the United States through the USRAP, a potential refugee first has to go to a country where he or she can apply through the United Nations, go through the UN process, then be chosen by the UN to be resettled in the United States (the UN picks their country of resettlement, not the refugee). This process often takes four years. Thus, if people are concerned about “refugees” arriving and “flooding” our shores, they are not really concerned about refugees as that term is used in law and policy (and the USRAP), but are concerned about other types of entrants—either asylum seekers, or those entering illegally.

While the risk of a terrorist entering through the USRAP is not zero, compared to other avenues of entry, it’s much more difficult and terrorists are much less likely to use it. A significant area of risk is the database system used to assess refugees, which could be bolstered and improved; but fixing this may not require a pause in the USRAP program as the orders require. While we obtain a bare minimum of security gains by restricting the USRAP, the argument goes, we cause significant suffering to those who do need our help. In Lebanon, for instance, Christian Syrian women are prostituting themselves and selling their daughters into child marriages to survive. These people need our help, and we shouldn’t shut off their lifeline when the security risks of that lifeline are already minimal. We should address any security risk as soon as possible so we can get our refugee program back up and running so it can help those it is meant to help.

Conclusion

The initial executive order was not without its problems. It seems that the roll out and implementation could have been accomplished more smoothly. There were reports of lawful permanent residents and U.S. military translators being held up; these matters should have been addressed before the order was issued to avoid confusion. By now, certain steps have been taken to smooth out some of these bumps, but they could have been addressed from the beginning. Thankfully, the new executive order does not bar holders of valid visas or lawful permanent residents from entering the United States, and the new order will take effect on March 16 (hopefully allowing for smooth roll out and implementation), as opposed to the initial order which took effect immediately.

These changes in the new order go a long way toward fixing some of the problems in the initial one, though obviously many will still disagree about immigration policy more broadly. At the end of the day, we should acknowledge that reasonable people (including fellow Christians) may disagree about immigration policy and the executive orders (including their refugee provisions).

Reaching that conclusion alone would go a long way toward promoting rational discourse and easing the emotional gridlock in the public debate on this and other issues.

A Biblical Perspective on Immigration

by Travis Weber

March 10, 2017

This is Part 2 of a 3-part series.

On March 6, President Trump signed a revised Executive Order restricting entry to the United States from certain countries, which followed heated controversy and legal battles arising from the initial Executive Order (EO) temporarily halting entry to the United States for certain groups of people. In light of the new order, and in the wake of the controversy surrounding the issue more broadly, it’s helpful to separate the multiple issues—often conflated with one another—playing a part in this discussion. The relationship of refugee and immigration policy to international religious freedom advocacy, in particular, has revealed some glaring hypocrisies and deficiencies over the course of the recent public debate. Another issue at play is the question of what a Christian should be saying on the question of immigration in general, and the Executive Order in particular.

Issue #2: Theology

Many immigration advocates point to biblical commands to love the foreigner (Leviticus 19:34), and care for those different than us (Luke 10:25-37). They’re right. Those verses are in the Bible. What else is in there? Plenty of Old Testament law, which these same advocates are happy to overlook. For example, we see that God requires immigrants to assimilate or, in other words, live by the customs of the land they now call home in order to receive equal status (Exodus 12:48-49).

The point here is not to arrive at the precise theological implications of these passages, but to point out the hypocrisy of those who wish to suddenly have the government cite the Bible as a basis for policy. Are these same individuals prepared to tell us what the Bible has to say about shutting down public school Bible studies because of supposed Establishment Clause violations? Many suddenly seem to have developed a zeal for the fusion of Christianity and State, and try to justify their arguments for opposing this executive order by simply attaching a Christian reference to them.

The truth is, it is incumbent on Christians to open their hearts toward the foreigner—and all our neighbors. But living a Christian life is not so monolithic. The Bible also says government is to punish wrong and protect the good (Romans 13:1-7). Even the organization Sojourners believes this verse means “government is supposed to protect its people. That certainly means protecting its citizens’ safety and security.” Loving my neighbor as myself (Mark 12:31) means all neighbors. Allowing Christianity to inform public policy is a worthwhile endeavor, but it must be done prudently and carefully, not merely as a pretext.

Primarily lost in this discussion is the question of how this controversy intersects with the larger issue of religious freedom around the world. Where has this energy and attention been when it comes to care for those suffering around the world for their religious beliefs? Where has the outcry been when the United States has stood by much of the time?

Where have Christians in the United States been as their brothers and sisters have been tormented overseas? Are they prepared to cite Scripture in defense of their apathy?

Those who are careless about their country’s borders while careful about locking their house at night are operating with a logical disconnect. This disconnect must be worked out. The policy implications of our theological sources are not always clear, and no one should be denigrated for reasonably disagreeing.

The question of what Christianity has to say about this issue is a valid one, but the inquiry must be done properly, not recklessly and carelessly.

Part 3 will examine arguments for and against refugee restrictions in President Trump’s executive orders.

President Trump’s Executive Orders on Immigration: Religious Freedom and Other Implications

by Travis Weber

March 9, 2017

This is Part 1 of a 3-part series.

On Monday, President Trump signed a revised Executive Order restricting entry to the United States from certain countries, which followed heated controversy and legal battles arising from the initial Executive Order (EO) temporarily halting entry to the United States for certain groups of people. In light of the new order, and in the wake of the controversy surrounding the issue more broadly, it’s helpful to separate the multiple issues—often conflated with one another—playing a part in this discussion. The relationship of refugee and immigration policy to international religious freedom advocacy, in particular, has revealed some glaring hypocrisies and deficiencies over the course of the recent public debate.

Issue #1: Media Hysteria

People of good will can disagree on immigration policy. Christians may disagree among themselves on what to do. It’s not a simple topic, and those on various sides of different discussions should work out how their religious beliefs—if they hold any—apply to their position.

But the absolute hysteria of the media on this issue doesn’t help rational discourse, and only further discredits an already-discredited institution. Do we really believe President Obama would have been subjected to similar treatment if he had issued anything close to what President Trump did? Everyone knows the hype purportedly about immigration is really just a political statement about President Trump—and this discredits the media and distracts from a worthwhile conversation in which people on both sides may wish to engage.

It is worth observing that many of the same news organizations and advocacy groups getting worked into a tizzy about immigration are absent and silent on the issue of ongoing religious persecution around the world. Where were many of these suddenly zealous religious discrimination advocates when, year-after-year, those of various faiths were persecuted and even killed around the world? Where were they in calling for the release of Pastor Saeed Abedini in Iran, and Meriam Ibrahim in Sudan? Where were they when others labored tirelessly to help fix troubled hotspots? Where were they in calling attention to the need for “safe zones” in the same areas from which many are fleeing to Western Europe and the United States (which by their inaction arguably helped create the horrible conditions in the Middle East)? Indeed, many refugees would prefer to stay where they are, but are forced to flee due to horrific circumstances (including a lack of religious freedom) where they live.

Would immigration advocates work to stop the international religious freedom problems that are causing increasing refugee flows in the first place? Or could they care less about that as long as our borders remain open?

Just this month, Open Doors USA hosted a press conference detailing what is happening to Christians around the world. Many of the same news outlets and advocacy groups claiming a responsibility to love the foreigner were absent from this press event where persecution of foreigners was discussed.

A dose of humility and fair-mindedness, along with a more charitable and rational approach to this discussion, would go a long way toward solving whatever other issues are tangled up in this debate.

Part 2 will discuss the Christian perspective on immigration.

How did the Washington State Supreme Court Get Barronelle Stutzman’s Case So Wrong?

by Travis Weber

February 16, 2017

Today the Washington Supreme Court ruled against Barronelle Stutzman, a florist who for years happily served her customer and friend Rob Ingersoll (who she clearly knew identified as gay), but could not in good conscience assist him in celebrating his same-sex marriage because it involved her creative talents and energies in furthering an activity she believed to be wrong. 

In response to this desire to honor her conscience, the Washington State government organs of “justice” teamed up with the ACLU to sue her for purported violations of nondiscrimination laws, putting her personal assets and home at risk as a result. Barronelle never asked for this controversy, but it was brought to her doorstep by activists who simply couldn’t live and let live, and she has stood strong through it. 

In its ruling today, the Washington Supreme Court first exposed its bias by spending a page and a half detailing the emotional toll on the same-sex couple, while spending a total of one sentence acknowledging similar harm to Barronelle (Hint: that toll is much more than one line’s worth). In addition to this discrepancy, there are major problems with the ruling. I want to focus on three of them. 

1. The court got it wrong by concluding Barronelle engaged in discrimination 

The state high court clearly erred by rejecting Barronelle’s claim that she did not engage in sexual orientation discrimination but rather objected to a certain activity (participation in the same-sex wedding). In rejecting her argument, the court heavily relied on cases minimizing any status/conduct distinction (the idea being that limiting the behavior of a certain class is discriminating against that class—a “tax on wearing yarmulkes is a tax on Jews”). Minimizing that distinction is a big error in this case, however. What makes the tax on yarmulkes reprehensible is the fact that it really is a back-door way of targeting Jews. Barronelle is not trying to “sneak in” discrimination against LGBT people by declining to participate in their marriages. She’s happily served these same people for years!

The court recognized she had no problem with “selling bulk flowers and “raw materials,’” for use in a same-sex wedding, and acknowledged “she would be happy to do” that in this case. The court seemed to miss how this shows her actions do not turn on whether the customer identifies as LGBT or not, but rather upon the specific activity she is asked to participate in, noting at one point it believes “[t]his case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches.” But the court already acknowledged Barronelle was not turning away customers because they identified as gay, as a sandwich counter would turn away any African-American who walked in. Barronelle only wanted to not be involved in their weddings. Is the court not willing to accept this? 

There actually is a status/conduct distinction that’s important to this case, and the Washington Supreme Court errs in minimizing it and relying on dissimilar situations and precedents. While the court acknowledges that cases highlighting the status/conduct distinction exist (see footnote 6 at the bottom of page 16 of the opinion), it does not discuss or address them. Barronelle honestly and simply has a conscience objection to facilitating certain marriages, and nothing else. Courts, activists, and everyone else involved in this discussion need to recognize this. 

2. The court hugely erred in rejecting Barronelle’s Free Speech claim 

Additionally, the Washington Supreme Court simply got it wrong in rejecting Barronelle’s Free Speech claim. Though beginning with soaring language probably meant to show its high regard for free speech, the court quickly puts a damper on the party, concluding her artistic creations are not “inherently expressive” protected speech. The court’s analysis has some gaping holes, however, as it heavily relies on Rumsfeld v. FAIR despite significant legal and factual differences with the present case. FAIR was an unconstitutional conditions case dealing with government funding—in the military, moreover—an area Congress has significant constitutional power to regulate. The Court in FAIR also noted the recruiting law does not force schools to accept members they did not desire, while nondiscrimination laws force complete compliance in admissions or service. FAIR is also distinguished because the case hinged on a funding conditions issue, while here, as in Boy Scouts of America v. Dale and Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, the primary issue is constitutional rights being pitted against nondiscrimination laws. 

The Washington Supreme Court gave inadequate attention to perhaps the most relevant case—Hurley—concluding it was “unavailing” to Barronelle simply because the Supreme Court in that case had recognized the parade organizing council was not a traditional public accommodation. But that was not the issue in Hurley; rather, it was whether there were constitutional rights in play that trumped any application of that state nondiscrimination law. On this point, the Hurley Court observed: “[w]hen the [public accommodations] law is applied to expressive activity in the way it was done here, its apparent object is simply to require speakers to modify the content of their expression to whatever extent beneficiaries of the law choose to alter it with messages of their own.” Thus, the Court concluded the application of the public accommodations law infringed on the parade organizers’ free speech, specifically the right to control the content of their message and be free from being compelled to speak a certain message. 

But the Washington Supreme Court skips all this analysis (indeed, the court mentions Hurley and Dale in Footnote 11 on the bottom of page 28, but sidesteps any discussion of how the federal constitutional rights in those cases trumped state law). The issue here is not, as the court believes, whether Barronelle’s business is the type that has “traditionally been subject” to nondiscrimination laws, but whether the First Amendment protects her as it did the parade organizer in Hurley. Barronelle’s expression should have been so protected, and the Washington Supreme Court erred in concluding it was not (oddly, it did so while spending several pages listing myriad examples of a variety of expressive activity which is protected—not all of which was more clearly “speech” than Barronelle’s activity). 

How it does this while at the same time quoting another Supreme Court case for the proposition that “[t]he government may not prohibit the dissemination of ideas that it disfavors, nor compel endorsement of ideas that it approves” is quite baffling. No same-sex marriage supporting florists are being threatened here. The state government is using the WLAD to go after those who disapprove of this “idea,” and the court goes along with this, while quoting a Supreme Court case which requires the opposite. 

The state high court concludes that the average observer of Barronelle’s action would not think it is meant to send any message and thus is not protected as “inherently expressive” activity. Yet one wonders how that same court would view the many who recently have protested President Trump in a variety of ways—most notably those refusing to design dresses for his family. I suspect they would most certainly believe that their actions were expressing a message. Would the Washington Supreme Court disagree with them if the issue arose as a legal question? 

3. The ruling validated concerns that same-sex marriage and SOGI laws will be used to suppress religious liberty 

First, in its analysis which concluded that Barronelle engaged in impermissible sexual orientation discrimination, the court cites the Supreme Court’s same-sex marriage decision in Obergefell v. Hodges. The state court claimed that denying marriage licenses is equal to sexual orientation discrimination, a conclusion it now foists upon Barronelle in her religious liberty case. With more of these wedding-related religious liberty cases likely to come, this part of the ruling should be noted by those who said Obergefell would not be used against such dissenters, and would not affect religious liberty. Indeed, the Supreme Court itself said in Obergefell: “[f]inally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths … .” Apparently, that may not be true after all, if more courts and advocates adopt the reasoning of the Washington Supreme Court. 

Second, on the bottom of page 52, the court’s reasoning validates the concerns of those who have long been claiming that SOGI laws are incompatible with religious liberty. Even when it comes to the most heartwarming religious liberty claimant around (an elderly grandmother who served her LGBT-identifying friend for years but didn’t want to be involved in his wedding), her rights are no match for state SOGI laws—which, the state high court concludes, are backed by a compelling government interest accomplished through the least restrictive means. Those putting much faith in compromise solutions between religious liberty and SOGI advocates should reexamine their assumptions in light of this portion of the opinion. 

Despite this ruling, Barronelle may yet be able to obtain relief from the United States Supreme Court. Hopefully, that Court will take up her case and uphold her federal constitutional rights in the face of the Washington State government’s oppressive action and its state courts’ acquiescence in this injustice. In thinking about how the U.S. Supreme Court will treat this case, it is a reminder of how important it is to have Judge Neil Gorsuch, who is good on religious liberty, confirmed as a replacement for the late Justice Antonin Scalia. 

Meanwhile, we must not let what has happened to Barronelle at the state level happen to others at the federal level. This ruling is all the more reason for President Trump to protect religious liberty through executive action. Please join our petition effort calling for such protections. 

 

UN: Religious Persecution of Rohingyas Reaches Horrific Levels

by Travis Weber

February 7, 2017

Many in the West may not know about it, but the persecution of the Rohingya Muslims in Myanmar has been occurring for some time at the hands of their own government, which wants them forced out of the country. A new report by the United Nations reviews recent developments and documents the cruelty to the group, which includes horrific killings of children and gang-rapes of women—often perpetrated by security forces.

While the facts on the ground are almost always more complex that what we can capture in reports and news stories, it is certainly true that religious persecution is a major element of what is occurring here. Religious freedom is a human right held by all, wherever they live and whatever they believe. All are entitled to be free to choose their faith and manifest it in their lives free from government interference, as articulated in Article 18 of the International Covenant on Civil and Political Rights. This goes for Muslims in Myanmar as much as it does for Christians in the Middle East.

Just because we don’t hear much about this situation in the Western press doesn’t make it any less horrible, or mean religious freedom violations are not occurring.

What You May Not Know President Trump Said at the National Prayer Breakfast

by Travis Weber

February 3, 2017

The coverage of President Trump’s remarks yesterday at the National Prayer Breakfast was dominated by reference to his comments about Arnold Schwarzenegger. If you didn’t watch his speech or read the transcript, you may not realize what else was said.

Commenting on the denial of religious freedom in the Middle East, President Trump stated:

We have seen unimaginable violence carried out in the name of religion.  Acts of wanton slaughter against religious minorities.”

And:

We have seen peace-loving Muslims brutalized, victimized, murdered and oppressed by ISIS killers. We have seen threats of extermination against the Jewish people.”

Yes, President Trump recognized the fact that Muslims are being killed in the Middle East. This, however, is an inconvenient truth for biased mass media bent on portraying him as “anti-Muslim,” so it’s perfectly logical that the mass media don’t report it.

President Trump’s other reference—to minorities suffering violence—would include Yezidis, Christians, Baha’is, Shabak, Kaka’is, certain Muslims, and others. I enjoyed meeting many people from these groups when I conducted religious freedom training for civil society participants in Kurdistan, Iraq several years ago. They are fascinating people, and unknown to many outside that region. President Trump recognized their plight in his comments at the Prayer Breakfast, yet this has gone unreported, with the “mainstream” press choosing to focus on Arnold Schwarzenegger instead.

True religious freedom advocates support religious freedom for all people, both here in the United States and overseas. Indeed, U.S. and international law protect religious freedom for all people, in all contexts, within the bounds of an orderly, free society. In this sense, not only “justice is blind,” but “religious freedom law is blind.” Thus we can determine the true religious freedom advocates based on who values and supports these religious freedom laws, as opposed to those who try to limit them to certain contexts.

We have yet to see what the Trump administration will do to protect religious freedom overseas. Recognizing the problem, however, is a start.

At the Prayer Breakfast, it was also heartening to see President Trump recognize the source of religious freedom rights:

Our Republic was formed on the basis that freedom is not a gift from government, but that freedom is a gift from God.”

Indeed. Government does not create and grant human rights; it only recognizes them. Such human rights include the right of all people to choose their faith, and the freedom to live it out. This is a hopeful note on which we can proceed.

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