Author archives: Travis Weber

Hobby Lobby: A clear win for RFRA, and a cautious rebuke of the HHS mandate

by Travis Weber

July 1, 2014

In Burwell v. Hobby Lobby Stores, the Supreme Court held in a 5-4 decision that closely held for-profit corporations can bring claims under the Religious Freedom Restoration Act (“RFRA”), and that the HHS mandate violated these corporations’ rights under RFRA by requiring them to provide contraceptives which they believe end human life. The Court faced two issues: (1) whether for-profit corporations are “persons” for purposes of RFRA protection, and if so, (2) whether the HHS mandate violated RFRA in this case. It decided the first clearly, and the second more cautiously.

RFRA protects corporations

Holding

RFRA protects a “person’s” religious exercise. The question is whether Hobby Lobby and Conestoga are “persons.” The Court held that they are—specifically that closely held for-profit corporations like those in this case clearly fall within the meaning of “person” in RFRA.

Analysis

The Court began by noting the broad protections Congress set in place by passing RFRA, which would indicate that closely held businesses are covered. In addition, the Dictionary Act indicates that for profit corporations are covered by RFRA, and there is no context surrounding RFRA to indicate otherwise (the Court rejected the government’s argument that RFRA merely codified pre-Smith case-law). The government had conceded that a nonprofit corporation can be a person for purposes of RFRA. Thus, there is no logical reason to conclude that for profit corporations are not protected by RFRA simply because they make a profit. As the majority opinion notes: “HHS would put these merchants to a difficult choice: either give up the right to seek judicial protection of their religious liberty or forgo the benefits, available to their competitors, of operating as corporations.” Majority op., at 17. Of course, the government has to recognize that individuals (sole proprietors) can exercise religion even though they make a profit. The government thus argued that these two elements—profit making and corporate form—added together are reason to deny Hobby Lobby and Conestoga RFRA protection. Yet the government ultimately had no sufficient basis for its argument, and the Court squarely rejected the government’s position and held that Hobby Lobby and Conestoga can bring claims under RFRA.

*NOTEResult is limited to closely held corporations: The Court expressly noted its ruling applied to closely-held for profit corporations like those in these cases. The Court did not decide clearly one way or the other whether publicly traded companies and other corporate forms are protected. Those determinations would have to be made in other cases. While this may be viewed as a “narrow” win, the Court regularly does not decide issues which are not before it, and the issue of a publicly traded company’s coverage under RFRA was not before it. Therefore, the Court was simply conducting its analysis as is typical in these cases, and the fact that it so clearly held that the businesses in this case are covered is a strong holding notwithstanding the Court’s statements limiting the holding to closely held companies. The issue of whether companies like Hobby Lobby are covered by RFRA was previously subject to dispute, but now it is settled. This significantly broadens RFRA’s reach.

RFRA claims in this case succeed

Holding

RFRA provides that the government may only substantially burden a person’s exercise of religion when the government’s action or regulation (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. The challengers had claimed that the HHS mandate violates RFRA by burdening their beliefs by requiring them to provide drugs they believe end life, all while not serving a compelling government interest and not being the least restrictive means. The government must make a showing on these elements, or the RFRA claim succeeds. The Court skipped the first question, and easily decided the second against the government because of the existence of less restrictive means. This grants the plaintiffs a win on their RFRA claims, but the Court arrived at its conclusion easily. If the legal trail had been more difficult to blaze, Hobby Lobby would not have been as assured of a win.

Analysis – religious beliefs, their sincerity, and whether they were burdened

Normally a court would determine if the religious beliefs at issue are sincere beliefs (courts never get into whether the exercise is actually in accord with the religion – that would meddle in the internal workings of religion), but the government did not dispute the plaintiffs’ sincerity in this case. Thus the first question for the court is whether there is a substantial burden to the plaintiffs’ exercise of religion. The Court looked at the fines which would be imposed and concluded the HHS mandate imposed a substantial burden, while dismissing the idea that there is no burden because the penalty is conceivably less than providing coverage for employees. The Court also rejected the government’s argument that the religious burden and HHS mandate were too attenuated, noting that the government is not to be in the business of assessing the religious belief, but only determining if it is sincerely held.

Analysis – compelling interest

The Court then assumed that the government may have a compelling interest in providing all the methods of birth control at issue—the Court simply didn’t decide whether there was a compelling government interest in this case. But the Court didn’t ultimately have to decide this issue, because it held that the government did not advance its regulation through the least restrictive means.

Analysis – least restrictive means

The Court continued by stating that even assuming the government has a compelling interest in advancing its HHS mandate, the government has not accomplished this goal through the least restrictive means. The Court rejected the argument that the ACA was akin to a scheme like social security in which it was very important for everyone to participate—the government did not have to compel employers to provide the drugs in order to advance its interests. Here, for instance, the government could directly provide the drugs in order to accomplish its goal through a less restrictive means. The Court also looked at the “accommodation” which has already been provided to other non-profits, and offered that as an example of something the government could have done to provide birth control coverage, while burdening the companies to a lesser degree. Because the government could have done this but did not, the challengers win and the HHS mandate as currently stands violates RFRA.

*NOTEApplication to other scenarios: The Court also said its ruling pertained to contraception and the ACA, and did not necessarily apply to corporate religious objections to other issues like vaccines or taxes. Other considerations on the part of the government, such as controlling the spread of infectious diseases, would affect these determinations in ways different from the considerations pertaining to the HHS mandate. The Court does not give much of an indication on how it would rule on a RFRA claim objecting to a law requiring nondiscrimination on the basis of sexual orientation. It did say religious objections regarding hiring decisions based on race would not succeed, but the race issue is pretty well settled, and such an example does not really help predict how the court would rule on the sexual orientation issue. Many, including the dissent, will decry the majority opinion as sweeping (Justice Kennedy wrote a separate concurrence just to respond to this claim). And yet contrary to this doom and gloom about all manner of religious objections to come, the court recognized RFRA claims would continue to be assessed on a case by case basis as they arise. Majority op., at 46. The “sky is falling” response is not credible in light of the Court’s opinion.

**NOTEEffect on non-profit cases: The Court specifically discussed the “accommodation” as a possible less restrictive means for the government to use, and suggested it would not violate RFRA if used in the instant case—it notes that if the government provided for an “accommodation” similar to that which it provided non-profit entities, the impact on female employees of Hobby Lobby would be zero (thus this satisfies the less restrictive means requirement) Majority op., at 3-4.Justice Alito points out “[t]he principal dissent identifies no reason why this accommodation would fail to protect the asserted needs of women as effectively as the contraceptive mandate, and there is none.” Majority op., at 44. Yet the Court expressly said it was not deciding the “non-profit cases” and would have to decide those separately. In addition, those entities will be treated differently under the law, and involve different legal considerations and claims. It remains an open question whether the “accommodation” violates RFRA in the non-profit challenges, even though it appears such an accommodation would satisfy the Court in Hobby Lobby.

Concurrence

Justice Kennedy concurred in the judgment, and authored a concurrence to respond to the dissent’s characterization of the majority’s holding as very broad and sweeping. (Justice Kennedy appears sensitive enough on that point to want to defend himself).

While the Court skipped over the question of whether a compelling government interest in the HHS mandate exists, Justice Kennedy does seem sensitive about noting he is not deciding that question here: “[i]t is important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees.” What explains this statement? It is possible that Justice Alito (and maybe one or more of the other justices in the majority) would have been willing to find there is no compelling government interest in the HHS mandate, but Justice Kennedy was unwilling to do so. Yet Justice Kennedy was willing to find the least restrictive means requirement unsatisfied in this case, which is enough to find for the plaintiffs. So the majority avoided the compelling interest question, and Justice Kennedy confirms this point. Reading into the opinion slightly more, the “cautious win” for Hobby Lobby on this point could be due to Justice Kennedy.

On a more positive note, Justice Kennedy appears to support a slightly broader view of freedom of religion, noting that religious exercise includes “the right to express those beliefs and to establish one’s religious (or nonreligious) self-definition in the political, civic, and economic life of our larger community.” He obviously agrees that the Greens and Hahns can exercise religion in the face of contrary arguments from the government that non-profits exercise religion while for-profits do not: “RFRA is inconsistent with the insistence of an agency such as HHS on distinguishing between different religious believers—burdening one while accommodating the other—when it may treat both equally by offering both of them the same accommodation.” Justice Kennedy also cited Justice Kagan’s dissent from the Town of Greece in a statement supporting the diversity of religious exercise in the United States today—while this is good to see, it must be remembered that Justice Kennedy is considering this case easily decided because the existing “accommodation” is a clearly identifiable less restrictive means to advance the HHS mandate. Cases with other issues may not have easily identifiable less restrictive means. In addition, Justice Kennedy will also likely approach cases involving other rights differently.

Dissents

Justice Ginsburg authored the primary dissent, and was joined by Justice Sotomayor in deciding that the companies were not covered by RFRA, and by Justices Sotomayor, Breyer, and Kagan in deciding that the companies’ claims would fail anyway because they are not substantially burdened, the government has a compelling interest, and has satisfied the least restrictive means requirement. Justices Breyer and Kagan wrote a separate but short dissent in which they specifically stated they would not decide whether “for-profit corporations or their owners” may bring RFRA claims, perhaps recognizing the difficulty of the government’s argument on this point. Akin to the way the majority skipped the question of compelling interest and still ruled for the challengers, Justices Breyer and Kagan skipped the question of corporate coverage and held that even if the companies were covered by RFRA, their claims against the HHS mandate would fail. Therefore, notably, there are still seven members of the Court who recognize (through either affirmatively deciding or explicitly refusing to decide the question) the idea that you do not give up religious liberty when you engage in profit making activity.

Take away and future implications

This is a win. However, it is a narrow win. The ruling clearly applies to other closely held for profit entities objecting on RFRA grounds to any drugs required by the HHS mandate. It’s likely to apply to most of the potential fines for noncompliance, though Hobby Lobby’s may be larger than others’ fines. As long as the sincerity of the religious objection is not disputed, and the fines are relatively large, other cases featuring for profit businesses bringing RFRA claims will likely be decided along the same grounds as this opinion.

It is less clear as each of these aspects changes. If the company is another type, the result becomes less clear. If the objection is to a practice in which the government has an easier time showing a compelling interest, like tax collection, the challenge becomes more difficult. The Court offered the example of eradicating racial discrimination as a compelling government interest. We do not know what it will do with sexual orientation discrimination. The dissent did, however, offer Elane Photography as hypothetical future claim which the Court will have to decide. We can assume the four dissenting justices would have a problem with Elane Photography’s claim. Nothing else in the opinion provided a clue about how it would be decided, however.

What is going on with this ruling?

Why do the justices break down in the opinions as they do? This decision is ultimately about suppressing the exercise of religion in favor of a government scheme. This is why the government tried to force for profits to pay in this case. And this is why the accommodation is unsatisfactory for the Administration. Four justices ultimately see the ACA and HHS mandate as so important and such an advance of “rights” that they will subject these businesses to it. Justice Ginsburg uses dismissive language and asks whether RFRA would allow claims “of this ilk” just after mentioning Elane Photography and other cases regarding Christian views on sexuality—which shows an animus on her part toward Christian views associated with traditional values. She also says “[o]ne can only wonder why” the Court ignores (in her view) the reasoning underlying Title VII exemptions (limiting religious activity to nonprofit “religious corporations”) in its understanding of this case. This sharply worded question implies that the majority is deciding these cases according to the justices’ religious beliefs. She and the other liberal justices are likely to be increasingly aware and responsive to this perception. For many years the liberal justices were the ones siding with the free exercise claimant challenging government action. Now the conservative justices are. Admittedly, I think this case would be a closer call for some of the justices if they were deciding individuals’ RFRA claims (as opposed to those of corporations). But we do not have the benefit of that analysis.

Proper framing of this opinion:

Let us not forget that today’s ruling featured a showdown between individual religious liberty rights (constitutional rights, as embodied in RFRA) and an overly intrusive government scheme. Americans’ objections to such schemes, and the ability to seek judicial redress for their objections, lie at the core of American constitutional and civil rights jurisprudence. Americans’ consciences must not be sacrificed on the altar of legislative (or agency) action merely because they also happen to want to make a profit.

Whether corporations engaged in social responsibility initiatives, voluntary community initiatives, or religious practices, corporations have always done much more than just “make a profit.” Whether the case features a Jewish butcher, a Muslim financier, or the Green family’s decision to see their religious beliefs reflected in their business practices, corporations have always served to reflect the beliefs of the human beings behind them. The Court’s ruling today simply recognizes this principle.

In the middle of its opinion, the Court rhetorically asks: “Is there any reason to think that the Congress that enacted such sweeping protection put small-business owners to the choice that HHS sug­gests? Majority op., at 17. No, there is not. America has been built on the backs of small-business owning families like the Greens and the Hahns. Many of them are merely seeking to live free from government intrusion in accord with their beliefs without being forced to violate their consciences. That is not too much to ask. Thankfully the Court agreed.

McCullen v. Coakley: A Win (Somewhat) for Free Speech

by Travis Weber

June 26, 2014

Today, a unanimous Supreme Court held that a statute which limits access to traditional public forums outside abortion facilities violates the First Amendment. While the ruling is a victory for free speech rights in America’s public spaces, it’s only a halfhearted victory, and one which does not alleviate concern regarding treatment of free speech in the context of abortion.

How did we get here?

In Massachusetts, Eleanor McCullen and other women desired to stand outside of abortion clinics to be able to interact with women seeking abortions and dissuade them from having abortions. They politely shared their beliefs with the women seeking abortions. Eleanor would usually initiate a conversation with: “Good morning, may I give you my literature? Is there anything I can do for you? I’m available if you have any questions.” If a woman appeared receptive, Eleanor would provide additional information. Eleanor and other counselors believe it is important to maintain a caring demeanor, a calm tone of voice, and direct eye contact with the women considering abortions. Because their love and care is conveyed to these women, Eleanor and others claim to have persuaded hundreds to forgo abortions.

Yet many in Massachusetts did not like the fact that women were being dissuaded from having abortions. In an attempt to restrict Eleanor’s activity, the Massachusetts legislature passed a statute making it a crime to knowingly stand on a “public way or sidewalk” within 35 feet of an entrance or driveway to any place, other than a hospital, where abortions are performed. Employees acting within the scope of their employment and several other groups of people are exempt from this restriction. Massachusetts claimed its statute furthered public safety and order, but the real aim was restricting pro-life speech.

Eleanor did not fall within any of the categories of people exempted from the statute’s effect. Indeed, the statute was aimed at restricting people exactly like Eleanor, because abortion providers did not like having potential customers deterred from having abortions. Eleanor and others challenged the statute on constitutional grounds.

What did the Supreme Court say?

While the Supreme Court held that the Massachusetts statute violated the First Amendment, this ruling is not a strong victory for pro-life speech. The Court held that the statute in this case was not narrowly tailored—which is required when restricting speech in a “traditional public forum” like the sidewalk areas here—but it refused to rule that the statute contained a content-based restriction in that it only discriminated against abortion-related speech. If the statute contained a content-based restriction, it would have been subjected to strict scrutiny, a desirable standard for those seeking to communicate pro-life views in the face of hostile legislatures. The Court reasoned that the statute could be violated by someone standing in the restricted area outside abortion facilities, regardless of what subject or message they conveyed. Yet such thinking overlooks the issue of who is likely to stand outside abortion facilities.

Massachusetts argued that it had an interest in promoting safety and order in these sidewalk areas, and the Court recognized that this was a significant government interest. The Court merely ruled that this statute was too broad and restricted too much speech in addition to promoting safety—the statute had to be “narrowly tailored” to address Massachusetts’s safety concerns. The statute could be constitutional if it was modified to address safety concerns without catching people like Eleanor or others within its net.

Despite its unfortunate reasoning, the majority opinion does tell us something helpful. In several places Chief Justice Roberts makes note of and seems to lend support to the style and method of the speech at issue here—that of a quiet, compassionate counselor engaging in one-on-one interactions. While loud and abrasive speech is clearly protected just like other speech (of course subject to constitutional restrictions), the Court’s apparent support (if it can be deemed that) for this type of speech could be helpful to keep in mind when future free speech issues arise in the abortion context.

Troubling Majority Opinion, but Heartening Concurrences

While this case featured a good result, the Court is wrong to not find that the restriction here was content—and even possibly viewpoint—based. As Justice Scalia (joined by Justice Thomas, and importantly, Justice Kennedy) noted in a concurring opinion, “[e]very objective indication shows that the provision’s primary purpose is to restrict speech that opposes abortion.” It is not hard to believe that clinic employees—who are exempted from this law—will speak in favor of abortion near and around clinics when speaking to clients or potential clients. The majority avoided ruling the statute was unconstitutionally content-based because there was no evidence in this case of such activity occurring. Yet the majority opinion got this wrong. Justice Scalia’s point here is valid, as it is hard to believe that clinic employees would avoid speaking approval of abortion in the course of interacting with their clients. It is even harder to believe they would speak opposition to abortion.

Justice Scalia notes that contrary to Massachusetts’ assertion that it is concerned with safety and order, Planned Parenthood itself points to certain types of speech as the problem outside clinics. Planned Parenthood claims these protestors “hold signs, try to speak to patients entering the building, and distribute literature that can be misleading.” Justice Scalia rightly observes that the “safe space” provided by the Planned Parenthood escorts is protection from that unwelcome speech. He accurately ascertains that “[t]he obvious purpose of the challenged portion of the Massachusetts Reproductive Health Care Facilities Act is to ‘protect’ prospective clients of abortion clinics from having to hear abortion-opposing speech on public streets and sidewalks.”

Justice Alito went further in his concurring opinion, stating that the statute unconstitutionally discriminated against speech based on viewpoint by permitting clinic employees (who are of course going to express pro-abortion viewpoints) in the restricted zone, while excluding counselors from the zone who may express pro-life viewpoints.

What to make of all this?

The Court’s result is pleasing, but its opinion is troubling. The reasoning in the McCullen concurring opinions is solid and much more encouraging for pro-life free speech, and indeed, for free speech in general. The Massachusetts statute clearly aims at speech regarding a certain topic, and ultimately at a certain viewpoint on that topic. It is good to see that some justices agree with these conclusions. It is even more heartening to see Justice Kennedy so supportive of pro-life free speech.

While it is not heartening to see the Court issue such a weak ruling, a decision striking down this statute on First Amendment grounds is certainly better than the alternative. Hopefully next time the Court more clearly calls out content and viewpoint based restrictions on speech when it sees them.

Sudan must redress Meriam’s new plight along with its legal system, which is already leading to other apostasy charges

by Travis Weber

June 24, 2014

Just when it looked like Sudanese mother Meriam Ibrahim and her two children would finally be free from the grip of injustice, they were snatched back into the clutches of the Sudanese authorities, who detained them when they arrived at an airport to leave Sudan today. Though it’s unclear on what basis they are being detained, we call on Sudan to immediately release Meriam and her children. In addition, the United States government, specifically Secretary of State Kerry and the U.S. Embassy in Khartoum – must pursue high level engagement on Meriam’s case. Sudan needs to know that the United States and its high level officials are watching whether Sudan pursues justice or regresses backwards into permitting the unjust detention of Meriam and her children to occur once again.

Yesterday, in a heartening turn of events, a Sudanese appeals court overturned a lower court ruling in which Meriam had been sentenced to death for apostasy and 100 lashes for adultery. According to Sudan’s official SUNA news agency (as reported by the Independent), “The appeal court ordered the release of Mariam Yahya and the cancellation of the (previous) court ruling.”

This was certainly a good bit of news, as numerous human rights organizations and governments had pressured Sudan and called on the ruling to be reversed. The U.S. government had been slow to respond, however, only recently issuing statements bearing on the matter. Numerous groups had spoken and petitioned on Meriam’s case, including the Family Research Council. And in Sudan, Meriam’s attorneys had filed appeals and vowed to fight to the end.

It is important to note that the Sudanese court ordering Meriam’s release got this issue right. Yet her re-arrest appears arbitrary – no basis for her detention has been offered – and it will be increasingly harmful to Sudan’s relations with the United States and the other countries outraged by the original charges against Meriam. Moreover, in the eyes of the many of the activists and NGOs which have spoken out on her case, Sudan’s reputation as a just and reasonable country will continue to degrade until it safely releases this family and allows them safe passage out of the country. 

Many have made their voices heard around the world on Meriam’s case. In addition, however, voices within Sudan have made it known that they wanted justice for Meriam too. Here, Muslim men (Meriam’s Sudanese attorneys) are defending a Christian woman (Meriam) in her quest for justice. These attorneys strongly believe in her case, and despite receiving death threats for defending a Christian, they vowed to fight to the end and exhaust all appeals. Furthermore, other Muslims in Sudan have been demonstrating on Meriam’s behalf.

While her attorneys and others in Sudan were on her side, not everyone was happy with Meriam’s freedom. When she was released, Meriam had to go into hiding due to threats against her life. Now, as she is trying to leave the country along with her family, she is being detained by Sudanese national security forces for an unknown reason. We call on Sudan to immediately release Meriam in accordance with the court order overturning her conviction and sentence. In addition, Secretary of State Kerry and the U.S. Embassy in Sudan must pursue high level engagement on Meriam’s case. Sudan needs to know that the United States and its high level officials are watching whether Sudan pursues justice or regresses backwards into permitting the unjust detention of Meriam and her children to occur once again. Sudan is close to bringing justice to Meriam, and must not fail her now.

We have witnessed Meriam’s attorneys and the protesting crowds expressing their support for Sudan to take ownership of this issue and be ready to handle religious freedom challenges when they inevitably arise in the future, for this issue is not going away. Indeed, it has already shown itself again: On April 2, 2014, Sudanese police arrested Faiza Abdalla near Sudan’s eastern border. Though details are scant, it appears that Abdalla, whose parents converted to evangelical Christianity before her birth and raised her in the same faith, was arrested because she has a Muslim name and yet professed Christianity. Her Catholic husband fled Sudan two years ago because of persecution, Morning Star News reported. As in the case of Meriam Ibrahim, Sudanese officials voided her marriage and accused her of apostasy when she refused to deny Christianity.[1]

There is no reason for these cases to recur—Sudan’s apostasy laws are inconsistent in light of the commitments it has made under its Constitution and international agreements, and must be repealed. Sudan’s 2005 Interim Constitution states that the government “shall respect the religious rights to … worship or assemble in connection with any religion or belief and to establish and maintain places for these purposes.”[2] Article 18 of the International Covenant on Civil and Political Rights, to which Sudan is a party, states: “[e]veryone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.”[3] The African Charter on Human and Peoples’ Rights states, to which Sudan is a party, states that the “[f]reedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.”[4]

 

Sudan’s apostasy laws are in conflict and inconsistent with these legal authorities, which provide a religious freedom that includes the freedom to choose one’s beliefs. Sudan has given its word and agreed to abide by these sources of authoritative law, and yet the apostasy laws under which Meriam was jailed and Faiza is detained are still being used to work injustice in Sudan. As a matter of integrity for the Sudanese nation and its legal system, and to avoid ongoing and future injustices like Meriam’s and Faiza’s, Sudan must repeal its apostasy laws.



[1] 2nd Sudanese Woman Jailed for Her Faith, Baptist Press, May 28, 2014, http://www.bpnews.net/printerfriendly.asp?id=42656.

[2] 2005 Interim National Constitution of the Republic of Sudan, art. 6.

[3] International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), art. 18, 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976 [hereinafter ICCPR].

[4] Organization for African Unity, African Charter on Human and Peoples’ Rights, art. 8, June 27, 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982).

Meriam Ibrahim to be Freed

by Travis Weber

June 23, 2014

In a heartening turn of events, it appears a Sudanese appeals court has overturned a lower court ruling in which Sudanese mother Meriam Ibrahim had been sentenced to death for apostasy and 100 lashes for adultery. According to Sudan’s official SUNA news agency (as reported by the Independent),

The appeal court ordered the release of Mariam Yahya and the cancellation of the (previous) court ruling.”

This is certainly a good bit of news, as numerous human rights organizations and governments had pressured Sudan and called on the ruling to be reversed. The U.S. government had been slow to respond, however, only recently issuing statements bearing on the matter. Numerous groups had spoken and petitioned on the matter, including the Family Research Council. And in Sudan, Meriam’s attorneys had filed appeals and vowed to fight to the end.

Though what exactly caused the ruling to be reversed remains unclear, we are appreciative of all who spoke out against this blatant human rights violation. No one in the world today, no matter where and under what system of positive law they live, should be compelled to adhere to certain religious beliefs under threat of death or any other punishment. Thankfully, Meriam is now free.

Yet, this matter is not concluded. Though there are some in Sudan supportive of Meriam (Sudanese have demonstrated on her behalf, and her attorneys are Sudanese Muslims), there are others who are not. There have been threats to her life. Once she is freed, she will be in a position to leave Sudan. At that point, it will matter what the U.S. government has or has not done. As Family Research Council asked in its White House petition, available here - https://petitions.whitehouse.gov/petition/act-case-meriam-ibrahim-sudan-and-her-baby-and-toddler-prison/D1x1q4VG - we again call upon President Obama to heed the thousands of petitioning Americans who have asked that he grant Meriam and her two children expedited safe haven in the United States.

Churches in Denmark Forced to Perform Same-Sex “Marriages”

by Travis Weber

June 12, 2014

Just when we think things are getting bad here in the United States, we observe the Danish Parliament passing a law requiring all churches to perform same-sex “marriages.” Although with this development, religious liberty is almost non-existent in Denmark, individual ministers can still opt out of performing the wedding. In that case, the church must find another minister to perform the required duties. This is no small consolation, however, for such a law in one blow nullifies any freedom of an organization or church to define itself according to its own religious values.

Some Danes are holding strong, though:

Marriage is as old as man himself, and you can’t change something as fundamental,” … church spokesperson Christian Langballe said … . “Marriage is supposed to be between a man and a woman.”

In support of the law, one prominent businessman said “[w]e have felt a little like we were living in the Middle Ages… . I think it is positive that there is now a majority for [the law], and that there are so many priests and bishops who are in favour of it, and that the Danish population supports up about it [sic]. We have moved forward. It’s 2012.”

Notice the appeal to the idea of “majority support.” This is the very type of tyranny the Bill of Rights in the United States is meant to protect against.

While such a law would never survive a constitutional challenge in the United States, it still serves as a sober warning of forces seeking to attack a biblical worldview.

Trampling on the UN’s Noble Heritage

by Travis Weber

June 9, 2014

On October 24, 1945, the nations of the world rose from the ashes of the Holocaust to come together in the United Nations, in part to ensure that individual human rights were protected across national borders in the face of tyrannical governments, and that such genocide as had been perpetrated by the Nazis would not happen again. Coming out of the Holocaust, the United Nations and its treaty and human rights framework naturally focused heavily on the freedom of the individual to their religion and political activity. The Universal Declaration of Human Rights, the Genocide Convention, and later the International Covenant on Civil and Political Rights all focused on the individual and the individual’s civil liberties — a focus which has served as the building block for Western Civilization’s rich cultural heritage and its prosperous economies.

The United States was a leader in many of these developments. Yet in 2014, the United States finds itself in the position of having nominated an individual to be its representative to the UN’s Committee Against Torture — Felice Gaer — who openly tramples on the very rights on which the United Nations was founded. Ms. Gaer recently told the Holy See’s UN representative reporting on Vatican compliance with the Torture Convention that the Holy See was coming dangerously close to committing torture merely through its positions on abortion. Much of this was apparently driven by the Center for Reproductive Rights, which sent a letter — itself misrepresenting basic principles of international law in furtherance of its own agenda — to the UN committee overseeing implementation of Torture Convention. The flawed reasoning of this letter was then propagated upon the international scene via the Committee Against Torture.

Ms. Gaer previously served as the chair of the US Commission on International Religious Freedom, in which capacity she said that “the right [to freedom of thought, conscience, and religion] includes the freedom of every person to hold, or not to hold, any religion or belief, and to manifest his or her religion or belief either individually or in community with others.” She appears to now be directly contradicting her own views in her statement to the Holy See. More likely, she is losing a sense of proportion and reality. Representatives to such UN committees are supposed to objectively monitor country compliance with the treaties signed by those countries, in accordance with the plain meaning of the treaty, while respecting countries’ declarations and reservations — and NOT take words with an obvious meaning, twist them into something nonsensical, and ramrod them down a signatory country’s throat, all while demonstrating a blatant disregard for a country’s reservations and express conditions for its submission to a treaty’s authority.

Thankfully, the Vatican has struck back, noting that contrary to the view that regulation of abortion could constitute “torture,” the practice of late-term abortion is a much more obvious example of torture. In addition, several UN committee members have clarified they hold a more reasoned position than Ms. Gaer. Nevertheless, it’s troubling that the U.S. representative’s extreme views are being moderated by non-U.S. representatives to the committee. The United States has historically held a very grounded position with regard to international human rights. Though it has already shown cracks and signs of change, Ms. Gaer should not be permitted to further smear that position on the world stage.

Humanist “Chaplain”? — Not all Worldviews are Religions

by Travis Weber

May 30, 2014

We were heartened to see today that the Navy decided to adopt the common sense position of refusing to commission a humanist “chaplain.” Besides the failure of the chaplain under review to meet the requirements of current Department of Defense regulations, the whole notion of filling a limited number of Navy billets for individuals to counsel service members on their relationship with God with individuals who instead explicitly deny the existence of a God should strike anyone with a head on their shoulders as downright silly. As Travis mentioned in an interview on the subject, the Navy charted the proper course here, and avoided implementing an oxymoronic policy of giving a self-professed non-religious officer a religious commission.

The Navy confirmed that the humanist chaplain candidate was not offered a commission but was not able to elaborate due to privacy concerns. However, we hope the Navy simply recognized that a humanist could not by definition meet the religious and ecclesiastical qualifications for service as a military chaplain as established in DOD regulations including DOD Instruction 1304.28. When attempts were made last year in the House of Representatives to change DOD policy to allow for the service of atheist chaplains, Members of Congress rejected such proposals by a wide, bi-partisan margin, recognizing that individuals who do not believe in a God cannot fulfill the core spiritual and pastoral role of a military chaplain. Both the House and the Senate this year included report language accompanying their respective versions of the Fiscal Year 2015 National Defense Authorization Act praising the role that the military chaplaincy has played since its creation under General Washington in providing spiritual comfort to our Armed Forces and counsel to commanders on how to provide for the free exercise of religion. The Navy’s decision today ensures that the core mission of the chaplaincy will not be undermined.

Lest the perennial grumblers start to complain again about preferring one religion over another, it should be pointed out that we are absolutely for freedom of religion for all, and fully support chaplains from diverse religions. But the key word in all of this is “religion.” Religion — defining man’s relationship to God — cannot be maintained by removing God from the equation. What remains is not a religion, but only a worldview. And no one here is seeking to suppress any worldview or prevent discussion about any and all philosophical outlooks within the military ranks. But not all worldviews are automatically entitled to be deemed to meet the requirements of a military position created with an explicitly religious focus.

FREEDOM TO PROGRESSION vs. Freedom of Religion

by Travis Weber

May 29, 2014

Recently, two UVA undergrads — Gregory Lewis and Stephanie Montenegro — sent a letter to one of the most esteemed UVA law professors telling him he doesn’t realize how his opinions on religion and marriage are impacting the real world (read: hurting their cause).They also submitted a FOIA request seeking “university-funded travel expenses and cellphone records for the past two-and-a-half years,” among other things. You see, they desperately needed “a full, transparent accounting of the resources used by Professor Laycock which may be going towards halting the progress of the LGBT community and to erode the reproductive rights of women across the country.”

Apparently, differences of opinion are fine when they don’t impact anything, but once opinions impact life, we can no longer have differences in opinion. Yet the students went too far, and their agenda is rather obvious. Their actions, reminiscent of Soviet-era government control, have drawn opposition from across political, legal, and cultural isles.

Brian Leiter, an influential law professor at the University of Chicago Law School, says:

[S]tudents requesting [Laycock’s] e-mails are engaged in harassment and intimidation that infringe upon his academic freedom. Cut it out, kids! No good will come of this kind of mischief. (You also won’t succeed in stifling Prof. Laycock, so you’re also wasting your time. Try talking to him! He’s not that scary.)”

Professor Stephen Bainbridge of the UCLA School of Law notes:

You don’t start a dialogue with FOIA requests. This is a blatant effort at deterring public participation by anyone who does not hew 100% to the most radical version of the gay rights movement.”

Walter Olson chimes in:

It’s simply a matter of trying to arm-twist a tenured, well-recognized scholar who takes a position that the Forces of Unanimity consider wrong.”

Dahlia Lithwick at Slate points out: “[W]e should be careful about throwing around disingenuous terms like “dialogue” and “transparency” and “conversation” when we are really attempting to lecture and embarrass and chill.”

What unites this opposition is a recognition the civil liberties are important. People are (and should be) upset with the UVA students for abusing a respected public university system in their attempt to move public life in the United States one step closer to a totalitarian system, in which dissent is not permitted and disagreement is not authorized.

In their letter, Lewis and Montenegro write: “As leaders on the UVA campus, we strongly believe in engaging in dialogue … .” Baloney. Professor Laycock said he would welcome such a dialogue. Yet there was no dialogue, only an “open letter” and a FOIA request. Who sends a “letter” instead of walking across campus to express one’s concerns to Professor Laycock? People without the fortitude to have their beliefs challenged, or people who know their ideas would lose on intellectual and constitutional merit, and would rather force others to adopt them through naming and shaming.

The students continue: “It is vitally important to balance the collective work of our academic community with the collective impact of that work in communities across the country.” Whatever that means, it doesn’t sound like anything much in support of individual civil liberties.

Contrast the students’ drivel with Professor Laycock’s view: “My position is civil liberties applies to both sides. It applies to all Americans.” Apparently not, according to his opponents.

The student’s “letter” barely tries to hide its political ends, which all but dispose of constitutional rights as legal protections for the civil liberties of all Americans. The students write: “Your recent legal theories around religious liberty have occasionally placed you on the same side as progressives in terms of free speech and public prayer. But your work has also been cited, by you and by others, in attempts to erode progress for LGBT Americans and to erode protections for women. These efforts to roll back progress and protections for LGBT folks and women has drastic, real-life consequences.” (emphasis added). So much for Professor Laycock’s “free speech” when it “occasionally place[s]” him “on the [other] side” of “progressives.”

Lewis comments: “The strategy of the FOIA request is to put everything on the table,” he said. “We don’t think he’s doing anything wrong; it’s just looking at whether he knows how it’s being used.” Yeah, I’m sure Professor Laycock needs to be reminded of who he’s called on his phone over the past two and a half years, and once such information is “on the table,” he’ll realize the error of his ways and completely repent. I’m less sure whether idiocy or arrogance is more prevalent in the students’ comments.

Now, on to the rather obvious point regarding FOIAs, which has already been pointed out: “The purpose of the [FOIA] requests is to allow citizens and taxpayers to keep track of what their public servants are doing, not to hassle public servants whose opinions you don’t like.”

As Professor Laycock says, “There’s a whole range of positions here, there is no anti-gay rights position in any of them.” What Laycock means is he is for religious liberty and for gay rights. This statement lies at the crux of the matter, for the gay rights advocates opposing Laycock here see his pro-religious liberty positions as “anti-gay rights.” Whether the country chooses to believe this falsehood, and adopt the view that required compliance with pro-gay rights policies trumps all free speech and free exercise, and all other rights protected by the Constitution, will ultimately affect the larger ordering of our society around civil liberties and tolerance and will determine nothing less than the fate of our civilization.

A Christian coalescence of dissent in the face of intolerance

by Travis Weber

May 15, 2014

In USA Today, Kirsten Powers has noted (accurately) that the censorship police of public thought are stepping up their surveillance activities once again, to the point that the “guidelines” for what is deemed “acceptable” are becoming incoherent. She states: “Don’t bother trying to make sense of what beliefs are permitted and which ones will get you strung up in the town square. Our ideological overlords have created a minefield of inconsistency. While criticizing Islam is intolerant, insulting Christianity is sport.”

Among a number of illuminating examples of this ridiculousness, Ms. Powers cites the Benham brothers having their HGTV show cancelled, and Brendan Eich being forced to resign from Mozilla, simply because they both politely, respectfully, took positions in support of what the Bible says about marriage, and refused to budge from those positions. The censors are infuriated that anyone would dare have such opinions (never mind they are politely and respectfully articulated).

It is heartening to see Ms. Powers bring attention to people being marginalized merely for holding such views. During the furor over HB 1062 which would have amended the Arizona RFRA to protect business owners of conscience from having such censorship rammed down their throats, Ms. Powers opposed the bill and claimed it was in essence a right to discriminate. As I stated then and as I hold now, HB 1062 was falsely characterized as such and this error was repeated through outlandish levels of media hype and venting without much considered thought. In truth, the bill merely extended constitutional free exercise protections explicitly to businesses, and to individuals facing the impact of nondiscrimination laws in lawsuits to which the government is not a party. The courts would always have decided (and still do decide) the merits of such claims. Such a bill was (and is) needed in the face of public opinion that is simply intolerant of anyone who stands up and says (respectfully or not): “I believe what the Bible says about marriage is true.” The wave of intolerance of such a view will not voluntarily cease upon achieving legal or political goals. It will stamp out all dissent, and laws are needed to protect dissenters (which now includes Christians holding to the view that marriage should be between a man and a woman).

Ms. Powers may disagree with my suggestion that her recent column reveals her support for the principles behind HB 1062. It could be that she views her recent column as arguing for individual rights and the right to object, while she opposed HB 1062 as a majority imposition (in her view) on individual rights. However, as I suggested above, the bill is not and never was a majoritarian imposition of any views. Perhaps Ms. Powers was proceeding (as many were) under the mass media’s snow job misrepresenting the Arizona bill, and really didn’t understand that it protects the very people she defends here. But I know she’s sharp, and could have investigated the bill’s application of constitutional strict scrutiny a bit more before expressing her views. It could also be that her views are genuinely changing, as she observes the culture and filters it through her moral compass to conclude how law should apply (if only all Americans would do this). Again, all this is speculation, as I have not had the opportunity to ask her about her views directly. But Ms. Powers’ recent recognition of the very troubling issues regarding tolerance in our democracy is heartening. More need to make the same recognition.

Recently, in the City Journal, Michael Totten describes the laparoscopic invasion of citizens’ private lives by Cuba’s communist government which he observed during a visit to that country. He finds his view of Havana consistent with that of Cuban dissident author Yoani Sánchez, who sarcastically notes: “Buses are stopped in the middle of the street and bags inspected to see if we are carrying some cheese, a lobster, or some dangerous shrimp hidden among our personal belongings.”

The United States has not reached that level of overt government intrusion. Indeed, its citizens would revolt. But our culture is reaching dangerous levels of “tolerance” for intolerance. As discussed in the Wall Street Journal, and as noted by Ms. Powers, Christine Lagarde, the Managing Director of the International Monetary Fund, recently withdrew as the Smith College commencement speaker after students started a petition objecting to her invitation. The offense? Ms. Lagarde’s “work directly contributes” to “imperialistic and patriarchal systems that oppress and abuse women worldwide.”

Christians holding to Biblical views have long been unwelcome in certain spheres. The intolerance is increasing, however. And as those who hold to Biblical truth find themselves ousted from more and more areas of society, they will naturally be forced to coalesce together in an opposition to the Orwellian views espoused by many today.

If the antics surrounding Ms. Lagarde and others accurately demonstrate the level to which “tolerance” has become intolerance, our America — what used to be a classical liberal democracy — is in need of serious help. It’s all hands on deck. Thankfully, Ms. Powers is on board.

How hard is it to flip on a light switch on a Saturday?

by Travis Weber

May 9, 2014

That was the essence of the rhetorical question posed by attorney Noel Francisco, counsel for the D.C. Archdiocese, to the 3-judge panel hearing oral arguments yesterday at the U.S. Court of Appeals for the D.C. Circuit in the consolidated cases of Priests for Life v. Sebelius and Archdiocese of Washington, D.C. v. Sebelius. The plaintiff organizations in these cases object on religious grounds to being forced by law to provide coverage to certain contraceptives — contraceptives that would otherwise be required under the Affordable Care Act (ACA) and associated regulations. The organizations are challenging the government’s requirement that they “certify” they have objections to these contraceptives by signing a form, thus entitling them to an “accommodation” from the law’s scheme under which employers must ensure their insurers provide ACA-compliant coverage. The signed form then triggers government coverage of such contraceptives for the employees of the objecting organizations.

In the organizations’ view, however, this scheme forcing them to play a part in the provision of such contraceptives compels them by law to directly violate Catholic Church teaching by making them complicit in the moral wrong of abortion, and thus constitutes a “substantial burden” on their religious practice. This injury led them to bring claims under the Religious Freedom Restoration Act, under which the government can only “substantially burden a person’s exercise of religion” when its regulation “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

The substantial burden still exists even if all the organizations had to do was sign a form certifying they had such objections. It was not the act of picking up the pen and signing the paper that constituted a substantial burden, Mr. Francisco told the judges, but rather the crushing weight of conscience accompanying such an action which violated the very core of their being. It was not the relative ease or difficulty of a specific act which led to the burden, but rather the crushing moral and spiritual compulsion of knowing one is complicit in a moral wrong with the exercise of that one, small, physical act.

Enter Mr. Francisco’s question from my title here. Just like his clients, who feel compelled to violate beliefs going to the core of who they are even by the small act of signing a piece of paper, a Jewish business owner who believes his religion demands he rest on the Sabbath is compelled to violate his conscience when forced to work on Saturday by the small, bur significant, physical act of flipping on the light switch at his business. He is not substantially burdened merely by the physical act of flipping on the switch, but rather by the heavy weight of conscience telling him he is violating all he lives for once he accomplishes that one little flick of his finger.

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