Author archives: Travis Weber

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.

Satire upon Satire upon Galloway

by Travis Weber

May 7, 2014

At the New Yorker, satirist Andy Borowitz provided his comments on the Town of Greece v. Galloway case. At first, I thought he was satirizing the dissent and its idea that the public square could be “religious free.” Then I caught myself and realized he was satirizing the majority opinion. Borowitz writes:

In what legal experts are calling a landmark decision, on Monday the United States Supreme Court struck down what many believe to be the main reason the country was started.

By a five-to-four vote, the Court eliminated what grade-school children have traditionally been taught was one of the key rationales for founding the United States in the first place.

The separation of church and state has been a cornerstone of American democracy for over two hundred years,” said Justice Samuel Alito, writing for the majority. “Getting rid of it was long overdue.”

Calling the decision “historic,” Justice Antonin Scalia was guarded in predicting what the Court might accomplish next.

Last year, we gutted the Voting Rights Act, and today we did the First Amendment,” he said. “We’ll just have to see what’s left.”

The reason for my initial (mistaken) impression in identifying the target of his satire, however, is that it SO eloquently describes Justice Kagan’s dissent in Galloway. Borowitz could have written (about the main dissent):

In what legal experts are calling a landmark decision, on Monday the United States Supreme Court struck down what many believe to be the main reason the country was started—[religious freedom].”

By a five-to-four vote, the Court eliminated what grade-school children have traditionally been taught was one of the key rationales for founding the United States in the first place—[freedom from government interference with their religious practices].”

The separation of church and state [Religious freedom] has been a cornerstone of American democracy for over two hundred years,” said Justice [Elena Kagan] Samuel Alito, writing for the majority. “Getting rid of it was long overdue.”

Calling the decision “historic,” Justice [Stephen Breyer] Antonin Scalia was guarded in predicting what the Court might accomplish next.

Last year, we gutted the [Defense of Marriage Act] Voting Rights Act, and today we did the First Amendment,” he said. “We’ll just have to see what’s left.”

[People have had the ability to pray according to their conscience for far too long,” Kagan continued. “It’s about time religious freedom is sidelined so the government can once again edit prayers for nonsectarian compliance, in accord with the proud Establishment traditions of the Old World].”

Borowitz might be disheartened (or perhaps heartened) to know his satire is actually (unwittingly) poking fun at the liberty-opposing dissent in Galloway. Nevertheless, it does. Indeed, it was Justice Kagan and her fellow dissenters who would have the government in the business of editing prayers for compliance with nonsectarian principles established by the government. Such government interference with religion was the very tyranny the Founders fled from. It was unconstitutional then, and is equally unconstitutional today.

Town of Greece v. Galloway

by Travis Weber

May 6, 2014

Yesterday, in a 5-4 decision in Town of Greece v. Galloway, the Supreme Court ruled in favor of the Town of Greece in a challenge to its legislative prayer practice. This is a major win for religious liberty, and for the free expression of religion in public spaces.

So what happened?

The Town of Greece, New York, had for years maintained a practice of permitting local ministers from the area to offer a brief prayer before town board meetings. The town opened these meetings to all ministers who would respond, and never exercised control over, edited, or censored the content of prayers. Even though the town opened the opportunity to ministers of all faiths, the town was overwhelmingly Christian, so the responding ministers happened to be Christian. Town of Greece v. Galloway, 572 U.S. ____ (2014) (slip op., at 1-3). After Susan Galloway and Linda Stephens complained, the town invited Jewish, Baha’i, and even a Wiccan priestess to give prayers. Id. at 3-4. Galloway and Linda Stephens still sued, claiming the town “preferred” Christianity — as a remedy, the plaintiffs asked the town to limit prayers to “inclusive and ecumenical” prayers referencing a “generic God” not associating the government with one belief. Id. at 4.

What did the Supreme Court say?

The Court began its analysis by relying on Marsh v. Chambers, 463 U.S. 783 (1983), in which it held that there was no Establishment Clause violation when a state legislature opened session with a prayer by a chaplain paid by state funds. Galloway, slip op., at 6. None of the Establishment Clause “tests” apply in this context, the Court continued, for “history support[s] the conclusion that legislative invocations are compatible with the Establishment Clause.” Id. at 7. “[I]t is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted.” Id. at 8. Setting the groundwork for future cases, the Court continued: “Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change.” Id. at 8. “A test that would sweep away what has so long been settled” — such as legislative prayer — “would create new controversy and begin anew the very divisions along religious lines that the Establishment Clause seeks to prevent.” Id. at 8.

After these preliminary remarks, the Court restated the question before it: to determine “whether the prayer practice in the town of Greece fits within the tradition long followed in Congress and the state legislatures.” Id. at 9. In doing so, it addressed the opponents’ two main arguments.

Opponents’ first argument: Any prayer must be nonsectarian, or not identifiable with any one religion (in this case the prayers “use[d] overtly Christian terms” or “invoke specifics of Christian theology”).

The Court’s response: The Court responded that “[a]n insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not consistent with the tradition of legislative prayer” in the Court’s jurisprudence. The Court found the prayers in Marsh consistent with the First Amendment not because they espoused only a generic theism but because our history and tradition have shown that prayer in this limited context could ‘coexis[t] with the principles of disestablishment and religious freedom.’” Id. at 10. The Court noted that specific Christian references during legislative prayers have been made throughout the history of our country, and Congress has also permitted Jewish, Buddhist, and Muslim prayers. Id. at 10-11. “[T]he contention that legislative prayer must be generic or nonsectarian” is “irreconcilable” with a proper reading of precedent, for “Marsh nowhere suggested that the constitutionality of legislative prayer turns on the neutrality of its content.” Id. at 11-12. In Marsh, and in its present ruling, “the Court instructed that the ‘content of the prayer is not of concern to judges,’ provided ‘there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.’” Id. at 12.

The Court drilled in on the precise issue: “To hold that invocations must be nonsectarian would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing or approving prayers in advance nor criticizing their content after the fact.” Id. at 12-13. Government-mandated prayer language would not be much different from legislatures requiring “chaplains to redact the religious content from their message in order to make it acceptable for the public sphere.” Id. at 13. “Government may not mandate a civic religion that stifles any but the most generic reference to the sacred any more than it may prescribe a religious orthodoxy” — this is a “contradiction that cannot be accepted.” Id. at 13 (quoting Lee v. Weisman, 505 U.S. 577, 590 (1992).

Indeed, it would be quite ironic for the government to “establish” its version of nonsectarian prayers in an effort to avoid violating the Establishment Clause. As the Court noted, such “‘untutored devotion to the concept of neutrality’ must not lead to ‘a brooding and pervasive devotion to the secular.’” Id. at 13 (quoting School Dist. of Abington Township v. Schempp, 374 U.S. 203, 306 (1963) (Goldberg, J., concurring)).

Ironically, while the opponents of the prayers in this case are upset that only “majority” religions will have their prayers recited, they violate their own principle of upholding minority religious interests in desiring to craft “non-sectarian” prayers acceptable to…..well, a majority of those present. The Court repudiated such thinking with the following reminder: “The First Amendment is not a majority rule, and government may not seek to define permissible categories of religious speech. Once it invites prayer into the public sphere, government must permit a prayer giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian,” so long as the prayer does not “denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion. Id. at 14-15. Indeed, the Court’s opinion upholding the “all comers” policy actually protects minority interest.

Finally, the Court noted, the town’s policy (which was open to prayers of all faiths) was not unconstitutional merely because nearly all the congregations in the town were Christian. As long as the town does not discriminate (which it did not), it is not required to search for some type of unattainable “religious balancing.” Id. at 17-18.

Opponents’ second argument: The opponents of the prayer also argued that the town’s prayer practice “coerces participation by nonadherents” because “the setting and conduct of the town board meetings created social pressures that force non adherents to remain in the room or even feign participation in order to avoid offending the representatives who sponsor the prayer and will vote on matters citizens bring before the board.” Id. at 18.

The Court’s response: The town of Greece, “through the act of offering a brief, solemn, and respectful prayer to open its monthly meetings,” did not “compel[] its citizens to engage in a religious observance.” Id. at 19. The Court acknowledged that “[t]he analysis would be different if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity,” yet “[n]o such thing occurred in the town of Greece.” Id. at 20. The opponents may have felt “offended,” but as the Court pointed out, “[o]ffense … does not equate to coercion. Adults often encounter speech they find disagreeable; and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum, especially where, as here, any member of the public is welcome in turn to offer an invocation reflecting his or her own convictions.” Id. at 21. “[L]egislative bodies do not engage in impermissible coercion merely by exposing constituents to prayer they would rather not hear and in which they need not participate.” Id. at 22.

It was heartening to see Justice Kennedy observe that “since this Nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond the authority of government to alter or define and that willing participation in civic affairs can be consistent with a brief acknowledgment of their belief in a higher power, always with due respect for those who adhere to other beliefs,” and thus, the prayer policy of the Town of Greece “is not an unconstitutional establishment of religion.” Id. at 23. The Court concluded: “The town of Greece does not violate the First Amendment by opening its meetings with prayer that comports with our tradition and does not coerce participation by nonadherents.” Id. at 24.

Concurring opinions:

Justice Alito was joined by Justice Scalia in his concurring opinion, where he responded to the dissent’s charges that the town should have required nonsectarian prayers and brought in representatives from different religions. Obviously, one of the concerns of adopting a policy of general nonsectarian prayers is facing the question of who screens such prayers and decides exactly what level of “nonsectarian” quality is required before permitting the prayer. Galloway, slip op., at 5 (Alito, J., concurring). Justice Alito also reiterated that requiring local governments to compile a list of potential prayer-givers in a certain way would only confuse already confusing Establishment Clause jurisprudence. Id. at 7.

Justice Thomas wrote a concurring opinion (joined by Justice Scalia) in which he argued the Establishment Clause was not meant to be incorporated as to the states, but even if it was, the prayer policy here does not violate it. Galloway, slip op., at 1-5 (Thomas, J., concurring). Justice Thomas argued that in accordance with the Founders’ positions on this issue, only legal coercion regarding a certain religious belief would violate the Establishment Clause. Id. at 7.

Dissenting opinions:

Justice Breyer dissented and ultimately concluded — albeit based on his “legal judgment” as opposed to any standard or legal test — that because the prayers were almost all Christian, the Town of Greece did “too little to reflect the religious diversity of its citi­zens.” Galloway, slip op., at 5-6 (Breyer, J., dissenting).

Justice Kagan also dissented for similar reasons, and was joined by Justices Ginsburg, Breyer, and Sotomayor in her dissent. She believed the Town of Greece violated the “norm of religious equality” conferred by the First Amendment, Galloway, slip op., at 1 (Kagan, J., dissenting), by not doing enough to ensure diverse prayers of various faiths were presented. According to Justice Kagan, the town could have also presented more nonsectarian prayers, which in her view, it did not. Justice Kagan argued that the Town of Greece, in permitting explicitly Christian prayers, caused citizens who came before the town to conduct business to feel compelled to participate in order to not interfere with their government business. Id. at 2-8. She believed the prayers here were “addressed directly to the Town’s citizenry,” as opposed to being addressed to the legislators like in Marsh, and “were more sectarian, and less inclusive, than anything this Court sustained in Marsh.” Id. at 9. In essence, like Justice Breyer, Justice Kagan believed the town did not do enough to promote religious diversity, and thus its prayer policy was unconstitutional.

What do I say?

The main dispute between the majority and the dissenters in this case was over whether the Town of Greece was required to take active steps to ensure more religious diversity in the prayers offered before meetings. None of the justices could dispute the prayer policy permitted all comers — it clearly permitted those of all faiths to come and offer prayers in accordance with their beliefs. For the majority such a policy was constitutional. Justice Kagan and her fellow dissenters, however, would have required the policy to be more highly publicized to representatives of all faiths to ensure they knew they could come and pray, and would have liked the town to take additional steps to ensure more faiths were represented. For the justices in the majority, a policy of nondiscrimination between religions was enough (thus permitting the town to remain passive and out of religious determinations), while the dissenters are promoting active government interference in religion by requiring the town to determine what efforts are sufficiently “inclusive.”

Here’s my problem with the dissenters’ view — it would have required the town to (1) either mandate a sufficiently nonsectarian prayer (thus requiring the town to be the active arbiter of what is sufficiently nonsectarian) or (2) take steps to ensure more diversity (thus actively involving the town in deciding how and what religious views are solicited). In either case, town is taking proactive steps as regards religion.

If a town is drafting a “nonsectarian” prayer, who decides what is sufficiently nonsectarian? Who decides what words are included, and what phrases are used? There is obvious opportunity for abuse and unnecessary interference with religion by the government in such a scenario, which, thankfully, the majority recognized when it stated, “[t]o hold that invocations must be nonsectarian would force the legislatures … to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree … .” Galloway, slip op., at 12-13. Moreover, the problem with nonsectarian prayers is in seeking to associate the government with all beliefs, you water them down, and associate the government with nothing but muzzled incoherency.

If mandating more religious inclusivity, who decides what steps are needed? What methods are used? Should a town conduct a search within a fifty mile radius for ministers of different faiths? Is a phone call notifying those ministers sufficient? Or must the ministers be incentivized to come and pray? How many different faiths are required — four or five? Ten or eleven? Should ministers be invited in accordance with the percentage of the local population adhering to that religion? As is obvious, such questions are not only ridiculous, but involve the government in religious decision making, and all the opportunity for abuse that entails. In addition, Justice Kagan’s requirement of more religious inclusivity is open-ended, and would leave local governments guessing at what is required of them. The dissent’s position would open the door for more lawsuits regarding exactly what proactive steps are required.

In either scenario, the dissenters promote active government involvement in religious decision making, and thus interference with religion, the very things they claim to be against. Justice Kagan’s position would not do away with the problem of the government “align[ing] itself with, and plac[ing] its imprimatur on, a particular religious creed,” Galloway, slip op., at 5 (Kagan, J., dissenting), but would merely shift the legal battleground into how much government promotion of religious diversity is required.

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