Author archives: Travis Weber

In Win for Religious Freedom, Fifth Circuit Court of Appeals Reminds Us Why Judicial Nominations Matter

by Travis Weber

July 17, 2018

Two days ago, in a 2-1 decision, the U.S. Court of Appeals for the Fifth Circuit ruled in favor of the freedom of the Texas Conference of Catholic Bishops to live out their faith as it pertains to pro-life issues. Close votes like this remind us of the importance of judicial nominations, along with why it matters that we have judges who understand religious freedom law.

After Texas passed a law requiring the remains of unborn children to be properly cared for, pro-abortion groups challenged it, and used the lawsuit to harass and compel information from the Texas Conference of Catholic Bishops (TCCB)—who had been supportive of caring for these babies’ remains. The TCCB wasn’t even a party to the case, but out of animus against its pro-life work, the pro-abortion groups tried to force it to turn over all sorts of internal communications which normally would not be disclosed as part of the discovery process. Unfortunately, in a bizarre sequence of actions for which we may never know the reason, a district court judge obliged the abortion groups, forcing the TCCB to turn over internal communications pertaining to the group’s motivations and religious workings in violation of the First Amendment—all under a ridiculously tight timeline—and all on a Sunday, Father’s Day, no less.

Thankfully, the Fifth Circuit reversed this absurd discovery order, with Judge Edith Jones penning the opinion, joined by Judge James Ho (a recent Trump appointee). Judge Jones wrote that the lower court’s “analysis was incorrectly dismissive of the seriousness of the issues raised by TCCB,” such as the inherent danger in forcing groups to disclose “internal communications within a religious body concerning its activities in the public square to advance and protect its position on serious moral or political issues”—which the First Amendment clearly protects.

Agreeing with Judge Jones, newly-confirmed Judge James Ho wrote in a separate concurrence that “[i]t is hard to imagine a better example of how far we have strayed from the text and original understanding of the Constitution than this case. The First Amendment expressly guarantees the free exercise of religion—including the right of the Bishops to express their profound objection to the moral tragedy of abortion, by offering free burial services for fetal remains. By contrast, nothing in the text or original understanding of the Constitution prevents a state from requiring the proper burial of fetal remains.”

He concluded that the “proceedings below” are “troubling,” and “leave this Court to wonder if this discovery is sought … to retaliate against people of faith for not only believing in the sanctity of life—but also for wanting to do something about it.”

Indeed. We have seen this type of harassment of religious groups before, when the City of Houston sought internal communications from pastors and churches during a lawsuit to which they were not parties—actions reasonably expected to harass these pastors and chill their activities in violation of the First Amendment.

The fact that the Fifth Circuit’s ruling was decided by one vote should remind us all of the importance of confirming good jurists like Judges Jones and Ho, and the cost of not doing so. Our religious freedom, and our nation’s fidelity to the Constitution, hang in the balance.

Are Justices Sotomayor and Ginsburg For or Against Religious Hostility?

by Travis Weber , Andrew Rock

June 29, 2018

On Tuesday, the Supreme Court upheld President Trump’s reasonable national security measures by a 5-4 vote in Trump v. Hawaii. In one of the dissents, Justice Sotomayor (joined by Justice Ginsburg) drew from the Court’s recent opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission to argue that President Trump’s “bias” against Muslims invalidated the travel ban because government actions cannot be motived by anti-religious sentiment. Yet less than a month ago, Justice Ginsberg (joined by Justice Sotomayor) dissented in Masterpiece, ignoring the blatant religious hostility against Jack Phillips that served as the basis for the Court’s ruling in his favor. The position of these two dissenters in Trump v. Hawaii would seem to lead to support for Jack Phillips, but it never materialized.

In Trump v. Hawaii, much biased media coverage obscured the facts of a relatively simple case. President Trump issued a proclamation that temporarily suspended entry into the U.S. of persons from countries which did not provide adequate background check information. It made no mention of any religion (six of the eight countries on the list are mostly Muslim, but the other two were not – and numerous Muslim-majority countries were not on the list). The Supreme Court held that it was well within President Trump’s authority to implement this measure as a matter of national security.

Justices Sotomayor and Ginsberg were having none of it. They insisted that the “ban” (another misnomer, since the regulations didn’t flatly ban anyone, but set up different requirements for different people trying to enter the U.S.) violated the First Amendment because of President Trump’s comments about Islam’s history of violence. The Justices reasoned that because religious hostility is not a valid basis for government action, and since these regulations were supposedly enacted out of some hostility to Muslims, then they are invalid. Justices Sotomayor and Ginsburg referenced Masterpiece, which relied on the principle that government hostility to religion violates the free exercise protections of the First Amendment, to support their argument that the Court should decide differently and to imply that the majority decision was hypocritical. They ignored the fact that they both dissented against the very decision they attempted to invoke.

Indeed, Justice Ginsberg (joined by Justice Sotomayor) penned a dissent in Masterpiece which dismissed the obvious religious hostility against Jack Phillips. The Colorado Civil Rights Commission had compared Christians like Mr. Phillips who wanted to follow their consciences to Nazis and slave owners. These inflammatory statements did not concern Justices Ginsburg and Sotomayor, who said that “whatever one may think of the statements in their historical context…I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins.”

Yet Justices Ginsburg and Sotomayor can’t have it both ways. If they believe religious hostility can serve as a basis for relief, as they state in Trump v. Hawaii, they also have to be prepared for to provide that relief for Jack Phillips. Conversely, if a decision can still be valid despite evidence of religious bias (as they argued in Masterpiece), then they should have supported the president’s reasonable national security regulations in Trump v. Hawaii. The Justices cannot ignore obvious religious bias when it is politically convenient, and turn around and use the same argument to attack other measures they don’t like.

Supreme Court Protects Jack Phillips’ Rights, Tells Colorado: “Not So Fast”

by Travis Weber

June 4, 2018

The Supreme Court’s much-awaited decision in the “wedding vendor” case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, was announced this morning. Ruling narrowly for Jack Phillips, owner of the bakery at issue, the Court focused squarely on the fact that the state of Colorado did not treat Phillips with “neutrality,” but rather “hostility,” due to the religious beliefs underlying his claims. Thus, the Court concluded, the state violated the Free Exercise Clause of the First Amendment—which prohibits the government from singling out, targeting, and discriminating against religion.

The Court featured two primary bases for this determination. First, the “Civil Rights Commission’s treatment of [Phillips’] case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection” to creating a same-sex wedding cake. Comparing him to a slave owner and Holocaust perpetrator (a comparison which was never objected to or disavowed in all the time leading up to the Court’s ruling), the Commission clearly disparaged Phillips’ beliefs in two ways: by calling them “despicable, and also by characterizing [them] as merely rhetori­cal—something insubstantial and even insincere.” Moreover, the commissioners who ruled on his case “endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community.” These “inappro­priate and dismissive comments” showed a “lack of due consideration for Phillips’ free exercise rights and the dilemma he faced.”

Second, the fact that Colorado treated other bakers (who were asked to make a cake condemning same-sex marriage and declined because the message was “offensive”) differently constituted further evidence of the state’s animus against Phillips’ beliefs. “A principled rationale for the difference in treatment of these two instances cannot be based on the government’s own assessment of offensiveness. Just as ‘no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,’ West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943), it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive. See Matal v. Tam, 582 U. S. ___, ___–___ (2017) (opinion of ALITO, J.) (slip op., at 22–23). The Colorado court’s at­tempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips’ religious beliefs.” It was on these two grounds that seven members of the Court concluded that the state of Colorado treated Jack Phillips harshly because of his religious beliefs.

Harkening back to another Justice Kennedy free exercise opinion from decades ago, Church of Lukumi Babalu Aye v. City of Hialeah, the Court elaborated upon principles that the government cannot single out and target religious beliefs for disfavored treatment. And though it went unmentioned in the Masterpiece opinion, the Court’s ruling in Trinity Lutheran Church v. Comer—holding that the government may not disfavor religion in public grant programs—from just last term affirmed this principle.

While the Court clarified that anti-religious animus was unacceptable (protecting Phillips for now), and while today’s opinion will likely be cited favorably by other wedding vendors who’ve experienced religious bias or animus from government actors, the opinion left other questions unanswered—namely, how the Court will handle free speech claims in the context of sexual orientation nondiscrimination regulation, or free exercise claims in the same circumstances absent such animus. The Court wasn’t exactly clear on how these matters would be decided, noting that clergy are protected (this is beyond debate), but expressing uncertainty on the myriad other matters which have arisen in the last few years as religious beliefs come into conflict with newly-mandated government requirements regarding same-sex marriage. In essence, the Court kicked that can down the road for another day.

While the majority opinion produced a good result, some of the real meat was in the concurrences. Justice Gorsuch penned a concurrence (joined by Justice Alito) in which he offered a clear defense of free expression (this principle being especially important when the expression is unpopular) and a clear explanation of what actually occurred here—Phillips had an objection to the message, not the messenger. As Phillips testified, “I will not design and create wedding cakes for a same-sex wedding regardless of the sexual orienta­tion of the customer” (emphasis mine). Justice Gorsuch made very clear that Phillips was objecting to the creative process, not how the customer identified.

Justice Thomas also concurred (joined by Justice Gorsuch), commenting in depth on the free speech protections he believed Phillips possessed. In doing so, he pointed out that the important free speech case Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston supported Phillips’ arguments, and noted that Rumsfeld v. Forum for Academic and Institutional Rights and PruneYard Shopping Center v. Robins were not applicable to scenarios like this (something I have argued separately), for they dealt with allowing other parties access to speech fora, not alterations to a party’s own message. Justice Thomas concludes:

In Obergefell, I warned that the Court’s decision would ‘inevitabl[y] … come into conflict’ with religious liberty, ‘as individuals … are confronted with demands to participate in and endorse civil marriages between same-sex couples.’ 576 U. S., at ___ (dissenting opinion) (slip op., at 15). This case proves that the conflict has already emerged. Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day. But, in future cases, the freedom of speech could be essential to preventing Obergefell from being used to ‘stamp out every vestige of dissent’ and ‘vilify Americans who are unwilling to assent to the new orthodoxy.’ Id., at ___ (ALITO, J., dissenting) (slip op., at 6). If that freedom is to maintain its vitality, reasoning like the Colorado Court of Appeals’ must be rejected.

The conclusion to his concurrence, describing all the First Amendment issues not resolved by today’s opinion (which really need a legislative remedy and not a judicial one), is also a fitting conclusion for us as we anticipate the many religious liberty cases surely to be confronted in the years ahead.

State Department Defends Actual Human Rights Instead of Made-Up Rights

by Travis Weber

April 24, 2018

Some activists are upset that the current State Department is going back to conducting worldwide reporting on violations of human rights law instead of the activist flavor of the day. “We are a nation founded on the belief that every person is endowed with inalienable rights. Promoting and defending these rights is central to who we are as a country” (emphasis added), the report began, before going on to report on human rights around the world.

Yet to hear international legal activists describe it, the Trump administration is taking us to the dark ages once again. The administration has allegedly “erase[d] reproductive rights” from the reporting. Over-used and hyperbolic language aside (the term “erase” must have poll-tested well), articles like this are entirely wrong about human rights law and fail to provide historic context on this issue.

If President Obama injected “reproductive rights” into the process in 2011, as the article admits, how was the issue dealt with before then? Is President Trump merely stopping the last administration’s activist approach to the issue, and bringing us back in line with the (bipartisan) approach we enjoyed for decades before? This would be nice to know. Yet we are left without any objective picture or understanding of human rights law from such “news” stories. The irony is that sites like Rewire only further cement and confirm the “fake news” narrative.

The truth is, as the State Department pointed out, the Trump administration was only returning to the clear requirements of international human rights law—which contains no “right to abortion.” In the face of this fact, abortion activist groups like Amnesty International USA could only try the feeble response: “Reproductive rights are human rights.” Except, they’re not. I welcome anyone at Amnesty to show me where such a notion is contained in international law.

It’s not for lack of trying on the part of those who want such a “right” in place. Abortion advocates ceaselessly push their agendas in international forums, eliciting public statements and “rulings” in the context of international organizations to try to claim there is a “right to abortion.” But none of this actually changes the law.

The State Department’s approach to human rights in this report is fair, neutral, and objective. Its critics should aspire to the same standard.

Mike Pompeo Has the Correct Perspective on Human Rights

by Travis Weber

April 12, 2018

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

Pompeo responded:

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

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

As I stated several years ago:

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

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

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

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

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

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

by Travis Weber

April 5, 2018

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

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

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

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

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

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

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

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

Attacks on Counseling Threaten Pastors and Churches

by Travis Weber

March 23, 2018

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

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

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

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

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

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

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

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

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

FRC Washington Update articles:

Also: 

 

Sixth Circuit Shows Why SOGIs Are a Threat to Religious Freedom

by Travis Weber

March 12, 2018

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

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

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

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

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

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

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

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

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

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

Andrew Sullivan on Opioids: Pointing Us Toward God

by Travis Weber

February 23, 2018

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

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

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

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

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

Near the end of the piece, Sullivan again observes:

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

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

Sullivan continues:

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

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

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

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

by Travis Weber

February 13, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So what should Kimmel’s skit have shown?

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

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

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