Author archives: Travis Weber

Is Judge Granade scared of Alabama’s pushback on marriage?

by Travis Weber

May 29, 2015

Recent news from Alabama affirms that states can still have a voice and push back against efforts by the federal government to override them on marriage — in this case by resisting aggressive, unlawful assumptions of authority by federal courts.

U.S. District Court Judge Callie Granade recently issued another order barring certain probate judges from denying same sex marriage licenses, but stayed her order pending the Supreme Court’s imminent decision on same sex marriage.

Could Judge Granade’s stay be standard operating procedure given the upcoming decision? Possibly.

Could it also be that she stayed the decision because she is afraid of being again rebuked by the Alabama Supreme Court and receiving proper, lawful pushback? Also, possibly.

In this recent order, Judge Granade also still pretends that the Supremacy Clause requires lower federal court decisions be recognized as authoritative federal law, but this notion is nowhere near as settled as she makes it out to be. It could be that she knows this and doesn’t want to be exposed should the state of Alabama again lawfully defy her reasoning, so she has protected herself by staying her ruling.

In response to her ruling earlier this year, Alabama Chief Justice Roy Moore issued a two-part memorandum — the first part explaining who has authority to give orders to probate judges under Alabama law, and the second part explaining that probate judges are free independently to determine whether state laws and constitutional provisions violate the federal Constitution. For while the Supremacy Clause says that the Constitution is the “supreme law of the land,” it does not wholly place the power to interpret the federal Constitution with lower federal courts — a creation of Congress under Article III, Section 1, of the Constitution.

While some have dismissed Chief Justice Moore’s second argument as outmoded and long settled, their claims do not bear up under closer scrutiny. While his opponents claim to highlight his “defiance” of the federal government in the present context by drawing comparisons to civil-rights era race issues, their comparison is inapt, for the situations toward which they point involve Supreme Court rulings and clear federal law.

In this regard, critics of Chief Justice Moore’s position also have to consider the following: Imagine that after the Supreme Court’s Dred Scott ruling, a federal district court issues an order barring a northern state from enforcing a law providing that a slave voluntarily taken into that state becomes free. Are state officials required to comply with this federal court order? If you answer “no” to this question, you would be going even further than Chief Justice Moore’s argument that state officials can properly ignore the precedential effect of lower federal court decisions they regard as lacking a constitutional basis.

Opponents of this position — a group which appears to include Judge Granade — have failed to grapple with the fact that state court judges are not bound by and are not required to give precedential effect to lower federal court rulings on the federal Constitution. Rather, state court judges remain free to determine the meaning of the federal Constitution themselves. In so pointing out, Chief Justice Moore has not argued that state judges can ignore the Supremacy Clause or defy a court order with proper jurisdiction over them — rather, he is merely pointing out that lower federal court rulings do not clearly bind state court judges as to the meaning of the federal Constitution.

Legal experts like Professors Amanda Frost and Howard Wasserman have defended Chief Justice Moore’s views on the legal process at play here. Even such would-be critics as Emily Bazelon, writing in the New York Times, admit his position (that one federal district judge does not have the final say over Alabama) is well-grounded.

When both the states and lower federal courts have the authority to interpret the federal Constitution, conflicting interpretations may arise. But one thing is clear: those who designed our Constitution clearly intended that total power of its interpretation would not lie with either the states or federal government.

These developments surely were not missed by Judge Granade. While they may not be the reason she stayed her latest order, they may have also been in the back of her mind as she made that decision. Certainly, lawful resistance by states makes it more difficult to lower federal judges and the federal government to trump opponents of their agenda on marriage. This may have been just enough of a headache — a perfectly lawful headache — for Judge Granade that she preferred to avoid the issue at this point.

This should also serve as a lesson to those states which already have shown undue deference to lower federal court rulings or believe there is no way they can resist the unlawful assumptions of power by lower federal courts and the federal government regarding marriage. 

Kentucky Judge Affirms First Amendment

by Travis Weber

April 28, 2015

In an Opinion and Order released yesterday — and a model explanation of what the First Amendment is designed to protect — a Kentucky state court judge explained why a small business owner could not be forced to print a message to which he objected on t-shirts requested by a customer.

Hands on Originals (HOO) is a small business in Kentucky which makes promotional products like hats, shirts, bags, etc., and prints messages on these products for its customers. The business is owned and run by Blaine Adamson and other Christians who want to express their faith as they run their business.

HOO was asked to produce t-shirts for the “Lexington Pride Festival” organized by the GLSO (Gay and Lesbian Services Organization), but the owners had personal objections to promoting the message of the event and preferred not to.

For as the Kentucky court notes, “producing the t-shirts as requested would require HOO to print a t-shirt with the words ‘Lexington Pride Festival’ communicating the message that people should take pride in sexual relationships or sexual activity outside of a marriage between a man and a woman,” and “Adamson has consistently expressed his belief that this activity would disobey God if he were to authorize HOO to print materials expressing that message.”

Thus, Adamson told [GLSO] that HOO could not print the t-shirts because those promotional items did not reflect the values of HOO and HOO did not want to support the festival in that way.”

Based on the above, the Kentucky court clearly and unambiguously found that the First Amendment protected Adamson and HOO from government coercion requiring them to print the t-shirts.

The First Amendment’s Free Speech Clause prevents the government from compelling and coercing private citizens to communicate a message or speak against their will. As the Supreme Court said in Wooley v. Maynard, these protections include “both the right to speak freely and the right to refrain from speaking at all.”

If the Supreme Court held in Wooley that the First Amendment ensured motorists could not be forced to display a license plate with the motto “Live Free or Die,” then Blaine Adamson cannot be forced to produce for a customer a t-shirt which he does not want to display.

As the Kentucky court correctly pointed out:

The Hearing Commissioner in its Order attempted to distinguish Wooley from the case at bar with the explanation that “In this case there was no government mandate that the Respondent (HOO) speak.” (Hearing Commissioner Order at p 14). If this is characterized as a Finding of Fact, it is inaccurate, is not supported by the Record and is clearly erroneous. In fact, HOO and its owners, because they refused to print the GLSO t-shirts that offended their sincerely held religious beliefs, have been punished for the exercise of their Constitutional rights to refrain from being forced to speak. The statement is not a fair or accurate Conclusion of Law either based upon precedent from the United States Supreme Court. HOO and its owners have a Constitutional right to refrain from speaking just as much as they enjoy the Constitutional right to speak freely. Wooley, supra.

The court dismissed the argument that HOO treated homosexual groups any differently from heterosexual groups by pointing out that HOO declined to print 13 orders based on the message — whether it was homosexual or heterosexual — over the course of several years. In all cases, HOO declined to print the message because of religious objections, not because of the sexual orientation of the customers.

Indeed, the facts reveal that “[a]t no time did GLSO representatives Lowe or Shepherd disclose their sexual orientation and no HOO representative inquired of them about that issue.”

Moreover, Adamson has a policy for his business, clearly stated on the website, that:

Hands on Originals both employs and conducts business with people of all genders, races, religions, sexual preferences, and national origins. However, due to the promotional nature of our products, it is the prerogative of Hands on Originals to refuse any order that would endorse positions that conflict with the convictions of the ownership.”

If Adamson employs people regardless of their sexual preferences, and at the same time has explicitly stated he rejected the t-shirts due to their message, how is it even conceivable that he made any decision (hence “discriminated”) on the basis of the sexual orientation of the customer?

The Kentucky court also found that the Supreme Court’s decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston — holding that under the First Amendment a private citizen cannot be required by the government to include a group in a parade and thus convey message the citizen did not desire to convey — required the same result in this case, where a private citizen could not be required by the government to print a shirt conveying a message the citizen did not desire to convey. Importantly, the Hurley Court held that public accommodations laws could not be used to trump the First Amendment rights of private speakers. Likewise, even though HOO is considered a place of public accommodation, its First Amendment rights cannot be trampled on that basis in this case.

The Kentucky court finally found that Kentucky’s Religious Freedom Restoration Act protected HOO’s rights. The statute covered corporations, and HOO and its owners have sincere religious beliefs which have been substantially burdened by the government decision here. Meanwhile, the government never even attempted to show a compelling government interest justifying its action; indeed, there cannot even be a compelling interest in making Adamson print the shirts when “[s]everal other printing companies later offered to print the t-shirts for GLSO for free or at a substantially reduced price,” and “HOO even offered to contact other printing companies to get the work done at the same price as quoted by HOO.”

Hopefully other courts facing issues regarding how constitutional rights intersect with nondiscrimination claims will look to this opinion as a model for how the First Amendment applies to these situations. We don’t give up individual liberty and the free expression of our beliefs just because we exercise those beliefs and seek to make a living. We must ensure that this continues to be the case.

What is the price of adhering to your faith?

by Travis Weber

April 24, 2015


At least according to the State of Oregon. For that is the amount of the fine an administrative law judge (ALJ) recommended be levied against Aaron and Melissa Klein in his Proposed Opinion released today.

What did they do to deserve this fine?

They hold the belief that marriage is between a man and a woman, and asked that they be left free to live according to that belief as they continued to live as they always had — in a quiet, peaceable manner, running their small business.

Too bad, according to the State of Oregon.

For when a couple walked into their shop requesting that Aaron and Melissa create a cake to celebrate their same-sex wedding, the Kleins refused to violate their consciences to do so, the couple sued and brought the weight of the State of Oregon down upon their heads. The State Bureau of Labor and Industries charged them under various provisions of state law for this act of obedience to their consciences. Never mind that the couple was able to obtain another cake for their wedding within days and even received a free cake from celebrity pastry chef Duff Goldman. Aaron and Melissa must be forced to comply. Now the State is trying to force their compliance to the tune of $135,000.00.

The Proposed Opinion contains many errors. It is built on and reaffirms the ALJ’s previous, shoddy reasoning that none of the Kleins’ constitutional rights were seriously implicated in this case.

But chief among the errors here is that the ALJ completely focused on the emotional and other damages the aggrieved couple experienced throughout this matter — while completely ignoring the hateful vitriol directed at the Kleins and other ways they suffered throughout this entire ordeal. An opinion which considers one but not the other is not just. Not only have the Kleins’ constitutional rights been trampled, but their true suffering is ignored.

Moreover, as reflected in the Proposed Opinion, the State of Oregon continued to hound the Klein with demands for more and more punishment:

The [State’s] theory of liability is that since [the Kleins] brought the case to the media’s attention and kept it there by repeatedly appearing in public to make statements deriding Complainants, it was foreseeable that this attention would negatively impact Complainants, making [the Kleins] liable for any resultant emotional suffering experienced by Complainants.”

So according to the State of Oregon, discussing something of public concern which involves an individual’s constitutional rights being trampled is reason to ask the ALJ for further damages against them? (Of course, the Kleins did not “deride[]” anyone — that’s the State’s characterization).

More importantly, the ALJ proceeded to find that “the record contains limited evidence of any events involving [the Kleins] in the media or social media that publicized the cake refusal.”

After reviewing all the allegations of harm supposedly perpetrated by the Kleins, the ALJ concluded that emotional damages related to media and social media attention are not legally recoverable anyway.

However, he then recommended awarding $60,000 and $75,000 to the two aggrieved parties, respectively, based on a summary statement of the legal standard with virtually no analysis:

In addition to the State of Oregon’s obvious bias here, let us not forgot — neither the State nor the ALJ have recognized the fact that the Kleins have faced unprecedented antagonism for merely holding to their beliefs. It seems the no one wants to take responsibility for that. Moreover, the Oregon legal system does not seem interested in considering the substantial harm to the Kleins in its quest for “justice” — thus, there is no justice at all here.

We can only hope that the Kleins achieve justice at some point. Until then, what does this case mean for religious liberty more broadly?

As marriage is being redefined, and governments begin to tell individuals what (in their view) marriage is, individuals will (respectfully) disagree. Many believe marriage is instituted by God and no one can change that. And they will not be forced to violate their consciences by acting against those beliefs.

If we are to alleviate at all the threats to religious liberty going forward, legislative protections for those who dissent from the State’s view of marriage must be enacted. The American public overwhelmingly supports this idea. Recent nation-wide polling tells us that 81% of Americans believe government should leave people free to follow their beliefs about marriage as they live their daily lives at work and in the way they run their businesses.

In the United States, we have long had to live with differences of view among a diverse population. This has not been controversial in the past, and it should not be controversial today.

If you’d like to help the Kleins cover the cost of their forthcoming fines, or otherwise support them, please visit here.

Muslim chooses to die alongside Christians

by Travis Weber

April 23, 2015

Greater love has no one than this, that one lay down his life for his friends” - John 15:13 (NASB)

The above-titled recent headline comes to us from the Vatican Insider, which brings us the startling and encouraging report of a Muslim who “offered himself as a hostage because he would not leave his Christian friend to die alone.” Who is the man? Jamal Rahman.

According to the story, Jamal “was among the 28 Ethiopians killed (by decapitation) by ISIS in Libya and shown in the latest terror video by Al Furqan, the caliphate’s propaganda machine.”

Jamal “was not spared, despite belonging to a Muslim family.”

Why was he not spared?

Because “[h]e offered himself as a hostage because he would not leave his Christian friend to die alone.”

It is a “great love” which causes us to give our lives for another.

Ultimately, Jamal was killed with all the Christians in the group.

While there is some haziness over why this was the case, it appears to be a sacrificial act of love.

According to reports given to the Pontifical Institute for Foreign Missions (PIME) — by a member of Al-Shabab, of all people — a certain “online newspaper of Somaliland” reports that Jamal “converted to Christianity on the road” and was killed for this reason.

Yet PIME regards as “much more plausible” the alternate explanation, which is “that amidst the jihadists, the Muslim Jamal ‘foolishly’ and willingly offered himself as a hostage to the jihadists, out of solidarity for a Christian friend he was travelling with.” For “[p]erhaps he believed the presence of a Muslim in the group might even have saved the lives of the others.”

Ultimately, “[t]his was not the case: Jamal was murdered alongside the Christians ‘as an apostate’.”

Jamal’s loyalty to his friend, loyalty to the point of death, is humbling, rare and beautiful. His act will undoubtedly serve as an example to others.

Most importantly, it is a model of our Lord Jesus himself, who laid down his life for us — his friends. If we are to be imitators of Christ, we must do likewise. Let us take this moment to reflect on this act of grace on the part of a Muslim to remember that Jesus himself told us:

If anyone wishes to come after Me, he must deny himself, and take up his cross and follow Me. For whoever wishes to save his life will lose it; but whoever loses his life for My sake will find it” Matthew 16:24-25 (NASB).

Only by His grace can we do that. But let us ask God for that grace. It will be needed, for God “desires all men to be saved and to come to the knowledge of the truth” (1 Timothy 2:4), even members of ISIS.

Until his truth comes to them, and He comes again, let us be thankful for reminders of his grace in men like Jamal.

Marriage and Conscience Act critic reveals his own hypocrisy and desire to discriminate

by Travis Weber

April 14, 2015

In a recent opinion piece on Louisiana’s Marriage and Conscience Act (HB 707), state representative and speaker pro tempore Walter J. Leger III tries to dictate morals to his constituents, but only ends up exposing his hypocrisy and desire to discriminate. Against who? Against religious people he doesn’t agree with, such as Richland, Washington florist Barronelle Stutzman, who has happily served gay customers but doesn’t want to be forced to service a same-sex wedding, and the owners of Memories Pizza in Indiana, who received death threats for simply holding traditional views on marriage. These people have never discriminated, but Rep. Leger doesn’t care. Why? Because he’s not interested in stopping discrimination. He’s interested in eliminating dissent and conforming all thoughts to his.

As if that wasn’t enough, Rep. Leger abuses American history and our founding documents, claiming what is “happening today in Louisiana with the proposed Louisiana Marriage and Conscience Act is a perversion of the lawsthat have been established to reflect the beliefs of a moral and religious people.”

I’m not sure how that is. The Marriage and Conscience Act will protect the consciences of a minority group of citizens. This is the very purpose of the entire Bill of Rights. Besides, a “moral and religious people” would hold no belief but the belief that marriage is the union of a man and a woman. Indeed, that’s why our country has never seen anyone even seriously suggest the idea that marriage could be between two people of the same sex for over its first two hundred years. If someone is not reflecting the views of a “moral and religious people,” it’s those who want to destroy the entire idea of marriage and family, and then violate the consciences of those who disagree by making them support the idea.

Rep. Leger pharisaically tries to decree the “correct” religious views to his constituents. Instead, he ends up insulting them and revealing what he’s really about.

Indeed, it is “moral and religious” people who now need protection. And it is these people who HB 707 would protect. All the bill would do is prohibit the government from taking “any adverse action against a person” due to that person’s “religious belief[s] or moral convictions[s] about the institution of marriage.” HB 707 would prevent the government from discriminating against people because they believe marriage is the union of a man and a woman, and would prohibit the government from using its heavy hand to condition tax treatment, contracts, and other benefits on a person’s acceptance of the “acceptable” view in support of same-sex marriage.

HB 707 would also help protect those with religious objections to being forced by the government to play a part in same-sex marriage ceremonies under threat of fines and imprisonment.

This is too much for Rep. Leger, who has taken it upon himself to claim that “[m]oral and religious people do not discriminate.” As if that settles it. It doesn’t, and Rep. Leger glosses over the real issue and the bill’s protections as laid out above. The only one talking discrimination here is Rep. Leger, who’d want to discriminate against anyone who doesn’t agree with him (and who would be protected by this bill). The Marriage and Conscience Act would protect people from such discrimination at the hands of an intrusive government. Rep. Leger would rather remove their protections, and potential expose them to fines and imprisonment because they simply want to act in accord with their consciences.

People sharing Rep. Leger’s agenda showed their true colors recently in Indiana, where they harassed the family that owns Memories Pizza with death threats for simply holding traditional views on marriage. This family was minding their own business, just trying to live quietly and in peace and make a living. But reporters came to them and asked them about their religious views and how they exercise their faith. Only when asked did family member and owner Crystal O’Connor explain, “If a gay couple came in and wanted us to provide pizzas for their wedding, we would have to say no … . We are a Christian establishment.” Yet at the same time they made clear their establishment would continue to serve any gay person who walked in.

As a result of expressing their views on this hypothetical situation, outrage against this family ensued on the internet. Their business was trashed on Yelp. A high school girls golf coach in Indiana tweeted “Who’s going to Walkerton, IN to burn down #memoriespizza w me?” Many failed to grasp that the owners stated they would serve anyone who walked in; they just wanted their religious views protected. Consequently, the O’Connors closed their pizzeria temporarily. “I don’t know if we will reopen, or if we can, if it’s safe to reopen,” Crystal O’Connor told reporters. Kevin O’Connor told the L.A. Times, “I’m just a little guy who had a little business.”

Thankfully, the family had some supporters, and their shop appears to be re-opening. But this incident exposes the danger we are in and highlights the need for laws like HB 707 to protect those like the O’Connors who increasingly are holding a minority view.

If we can’t even protect unpopular views in law, and instead people are allowed to mete out mob justice like this more reminiscent of scenes overseas than in the United States, we are in serious trouble. The gravity of this matter only further highlights the need for laws like HB 707.

It is people like Barronelle Stutzman, who need the protection of laws like HB 707. Barronelle has happily served gay customers. She just doesn’t want to be forced to service a same-sex wedding, which her faith teaches her is wrong. Nevertheless, Barronelle was recently fined for refusing to use her floral skills in support of a same-sex union. She just doesn’t want to be forced to violate her conscience. But without a law like HB 707, she is left at the mercy of the all-powerful state should it seek to coerce her to act against her beliefs.

What would Rep. Leger say to Barronelle? In his opinion piece, he claims, “[f]ederal and state laws already exist to protect religious liberty.” Actually, there are no “federal and state laws” which would protect people such as those protected by HB 707. Rep. Leger is flat wrong here.

The only support he offers is his hyperlink to the federal Religious Freedom Restoration Act (RFRA)—which compounds the foolishness of his claim—for he is apparently ignorant of the fact that the federal RFRA does not protect against state-level action (which is the very reason states have been trying to pass their own RFRAs).

Alas, Rep. Leger also tries to be a theologian, claiming to be “appalled at the length to which some people will go to ignore the lessons of love and acceptance that Jesus lived and died for and twist them into an excuse to discriminate.” His exegetical errors aside, the point of civil laws is not to dictate individual moral behavior, but to protect individual rights and freedom (even for those we disagree with). He should be ashamed at misrepresenting God’s Word in this manner, and more ashamed at using it to suppress views he doesn’t like.

He then brings out this sledgehammer: “Would we have stores place “Heterosexuals Only” signs in their windows where “Whites Only” signs once hung?” Ah, yes…. Of course that would be horrible. But who can point to any law which would permit that? All HB 707 does is protect against government discrimination against people based on their beliefs on marriage.

Rep. Leger continues, “[p]reventing a business from discriminating does not hinder the freedom of the business owner to hold his sincere religious beliefs in his heart and in his home. A business operating in the public sphere, relying on public infrastructure, is not at liberty to pick and choose who it will allow to be its customers. Either it is open for business or not.”

Rep. Leger apparently thinks the First Amendment only applies in the “heart” and “home.” It seems we can assume he is for taking away the First Amendment rights of the New York Times corporation to speak and report freely? If not, well why would he take away someone’s religious rights just because they want to make a living? If he would, he’s just discriminating against religion specifically.

Those who believe marriage is the union of a man and a woman are increasingly becoming a powerless minority, especially in the face of media voices, big business, academics, and government elites who look down upon their views. All HB 707 does is protect these relatively powerless people from government discrimination against them based on their beliefs on marriage.

Rep. Leger again exposes his ignorance for criticizing Indiana for passing “similar legislation.” Indiana had actually passed a RFRA very similar to the federal one Rep. Leger hyperlinked when claiming “federal and state laws already exist to protect religious liberty.” Moreover, Louisiana has had a RFRA for some time. Has Rep. Leger spent energy criticizing it?

As if this wasn’t enough, he then insults the people who need the protection of HB 707 by inferring they are racists—as they would bring up “evil apparitions from the Deep South’s dark past.”

Rep. Leger closes with: “[r]eligious liberty by right should and ought to be protected, and it is.” He’s correct that it should be protected, but wrong that it currently is. HB 707 would protect it. Yet Rep. Leger opposes HB 707.

Rep. Leger can’t (and won’t) be allowed to get away with the heavy-handed moralizing of telling believers their religion really means differently than they think it does. He can’t (and won’t) get away with the hypocrisy of claiming he is against discrimination, while at the same time himself discriminating against religious views he doesn’t like by seeking to strip believers of potential protections like HB 707.

Rep. Leger simply can’t claim to support religious liberty and oppose HB 707. He must pick one or the other.

Georgia’s S.B. 129 would free all Georgians from the tentacles of government

by Travis Weber

March 19, 2015

Down in Georgia, opponents of individual rights and personal freedom are attempting to ratchet up their smear campaign against S.B. 129, the “Georgia Religious Freedom Restoration Act.”

This measure is simply designed to ensure that individuals’ consciences cannot be easily trampled by intrusive government regulation.

The claims against this common sense proposal are wild and confused. For example, some have claimed the bill gives businesses an absolute right to refuse service. This is patently false.

The truth is that S.B. 129 provides a method for sincere conscientious objectors of all religions to be protected, while winnowing out those using religion as a pretext to escape application of general laws.

To avail oneself of the protections of S.B. 129, you first have to prove you have a sincere religious belief which has been substantially burdened by the government action in question. Only then can the claim move forward. Even then, if the government can show it has compelling interest in burdening the religious practice — a religious practice of human sacrifice, for example, could be burdened — and has done so through the least restrictive means, it is allowed to burden the religious exercise in question.

This is a legal standard known as “strict scrutiny.” It has been used in constitutional law for decades, and has been applied to religious claims for over 20 years under the federal Religious Freedom Restoration Act (“RFRA”) without any documented pattern of abuses such as those claimed by the opponents of S.B. 129. As others have asked, where are these alleged “discriminators” who are supposedly walking away from criminal charges under RFRA? They simply do not exist.

RFRA simply restores previously strong protections for First Amendment rights. The federal RFRA does not apply to state or local action, so state RFRAs like S.B. 129 are needed. The Georgia RFRA under consideration here merely brings Georgia law into line with federal law.

Religious freedom laws like S.B. 129 never used to be (and still should not be) a partisan issue, as they protect those of all faiths and political persuasions.

The federal RFRA was supported by a broad coalition which cut across political and religious lines. This coalition was composed of groups with a diversity of interests, but they were united in protecting and bolstering the First Amendment.

Indeed, a review of RFRA and free exercise case law going back decades clearly shows its benefit to everyone from Muslims to Jews, Christians to Santeria adherents, and Native Americans to more obscure sects as they seek to protect their beliefs and consciences from being burdened by an ever-more intrusive government.

Now, sadly, many have subjugated their protection of the First Amendment to their political concerns. They have betrayed and slandered RFRA in order to advance their political interests, and in doing so, have compromised their stated principles of individual rights and freedom.

Moreover, RFRAs cut across racial and social lines, and apply in a variety of real-world scenarios, such as property disputes, social welfare (just this past year, the Texas RFRA served as protection for those seeking to care for the homeless), conscience objections to abortion, and restrictions on using controlled substances in religious ceremonies. They are not race-specific. They are not religion-specific. And they are not political party-specific.

By now it should be clear that S.B. 129, in merely applying the well-established strict scrutiny standard to claims of religious exercise, does not give anyone a “free pass” to “discriminate.” Indeed, it is notable that opponents cannot even cite to one instance of a business owner “openly deny(ing)” service, as it claims. The reason is that laws like S.B. 129 don’t provide any “free passes” — what they prescribe is that religious liberty claims must proceed through the framework described above.

For these same reasons, claims that the Michigan RFRA will “let EMTs refuse to serve gay people” and that the Arizona and Mississippi RFRAs from previous years are “right-to-discriminate” bills are completely misleading. When people are provided with a proper understanding of strict scrutiny’s application to religious claims, they can see that those making these “free pass” arguments are engaged in baseless fabrication.

Neither would S.B. 129 legalize child abuse, as opponents outlandishly claim. Child abuse and other criminal cases involving bodily harm are prosecuted routinely nationwide every day. These take place in states with laws like S.B. 129. Yet how often have we heard about successful religious freedom defenses to such prosecutions?

These S.B. 129 opponents have discredited themselves and revealed their political agenda by ignoring other instances of oppression to which the bill could bring relief right in their own backyard — like the state of Georgia’s termination of Dr. Eric Walsh for expressing his Christian views. Dr. Walsh preached sermons in his private capacity in his home church. Yet state government agents scoured his sermons for disapproved views on sexuality, and summarily terminated his employment when they found what they didn’t like. When Dr. Walsh is punished for his views, he’s being punished for his religion — right at home in Georgia.

The protections in S.B. 129 are the very protections needed to ensure the exercise of all religions — including that of Jews, Hindus, Muslims, and others — is protected. If its opponents had cared to represent this fact accurately, they would have observed that only this month, the U.S. Supreme Court ruled unanimously in favor of a Muslim inmate’s religious rights under a law applying the same standard as S.B. 129 — the federal Religious Land Use and Institutionalized Persons Act. Yet there is no mention of this or other such cases; this truth is too inconvenient for those leading opposition to the bill.

RFRA never was and should not become a partisan issue, as it protects those of all faiths and political persuasions. All Americans of every political party and any religious faith who care about individual freedom from government coercion should support S.B. 129. The bill’s text and our established practices for analyzing religious claims show that S.B. 129 will merely support conscience rights for all in the face of ever more intrusive government.

S.B. 129’s opponents, including an outfit called “Better Georgia” (which itself is backed by out-of-state groups), should be ashamed of what they have said about RFRA. Georgia does deserve better.

H.B. 1228: Bringing Freedom to Arkansas

by Travis Weber

February 27, 2015

Down in Arkansas, opponents of individual rights and personal freedom are doing what they can to defeat H.B. 1228, the state Conscience Protection Act, a freedom-loving bill which is designed to ensure that individuals’ consciences and beliefs cannot be easily trampled by intrusive government regulation.

Human Rights Campaign proudly points to a statement by Apple in which the company opines on a religious rights bill it apparently does not understand—for H.B. 1228 does not diminish “equal treatment under the law” for anyone, certainly not based on their sexual orientation. The only thing it does is keep a powerful government in check. The idea that the company is demeaning the religious beliefs of the citizens of the same state whose business opportunities it is taking advantage of is apparently lost on Apple.

Here and elsewhere, opponents know they can’t defeat the bill by simply showing their hatred for anything religious. So here and elsewhere, some put forward religious figures as their “spokespeople” against the bill, trying to use religion for their ends. Meanwhile, these poor individuals don’t realize they are opposing a bill which would support their own individual rights and liberty when the government comes calling for them in the future.

Others don’t even pretend to focus on the actual issue, claiming “the point of the bill is to prevent equal treatment of gay people, even if it has no effect on anyone’s beliefs,” and implying H.B. 1228 would allow a gay person to be “denied a hamburger, an apartment or a job because of his or her sexuality.” Anyone who actually takes the time to understand how the bill works would know it does no such thing. It is precisely the “effect” on “beliefs” that has so many seeing the urgent need for such bills as forced conscience violations under penalty of law increasingly emerge elsewhere.

Enough about the misinformation on H.B. 1228. Let’s review the facts, for truth’s sake:

What does the bill actually do?

H.B. 1228 protects sincere conscientious objectors of all religions from over-intrusive government regulation burdening their religious practice, while winnowing out those using religion as a pretext to escape application of general laws. Neither the Conscience Protection Act nor similar laws protecting religious exercise would allow businesses to “turn away” customers or engage in “discrimination” as they see fit.

How does the bill actually work?

H.B. 1228 allows a person to appeal to their religious beliefs as a basis for their claim or defense in a judicial proceeding.

Under the bill, an individual first has to prove they have:

(1) A religious belief, and

(2) Which is also sincere, and

(3) Which has been substantially burdened by the government action in question. Only then can their claim move forward.

Only if the person making the religious claim satisfies those three elements does the claim move to the second stage. At this stage, the government must show that:

(1) It has a compelling interest in burdening the religious practice, and

(2) It has only burdened the practice in the least restrictive way possible.

If the government can make both of these showings, its law or regulation is allowed to infringe on the religious practice—even under H.B. 1228. However, if the government fails to make both of these showings, the religious claim will prevail, and at that point the person is entitled to legal protection for their religious beliefs and practices. Even then, the person must look to the court’s application of similar laws; in no cases would H.B. 1228 simply allow people to appeal to religion to act as they wish apart from judicial involvement. It is important to remember that just because someone brings a religious rights claim does not mean that the claim will win in every case.

This is a legal standard known as “strict scrutiny.” It has been used in constitutional law for decades, and has been applied to religious claims for over 20 years under the federal Religious Freedom Restoration Act (“RFRA”)—all without any “discrimination” or pattern of abuses such as those claimed by the opponents of H.B. 1228.

This RFRA framework does not permit anyone to automatically do anything in the name of religion; they have to jump through all the hoops discussed above. RFRAs and laws like H.B. 1228 merely protect those of all faiths whose sincere beliefs are in danger of being unnecessarily burdened by the government, while winnowing out those using religion as a pretext to escape application of general laws. For all these same reasons, claims that the Michigan RFRA will “let EMTs refuse to serve gay people” and that the Arizona and Mississippi RFRAs from previous years are “right-to-discriminate” bills are completely misleading. When people are provided with a proper understanding of strict scrutiny’s application to religious claims, they can see that opponents of these bills are engaging in baseless fabrication.

Who needs the bill’s protections?

Everyone with religious beliefs and a conscience—regardless of their religion, political views, the content of their beliefs, or how they apply those beliefs.

Religious freedom laws like H.B. 1228 never used to be (and still should not be) a partisan issue, as they protect those of all faiths and political persuasions. Indeed, when the federal RFRA was passed in 1993, a coalition of groups from across the religious, political, and legal spectrum—from the Southern Baptists to the ACLU—came together to support restoring strong protections for free exercise claims. A review of RFRA and free exercise case law going back decades clearly shows its benefit to everyone from Muslims to Jews, Christians to Santeria adherents, and Native Americans to more obscure sects, as they seek to protect their beliefs and consciences in the face of ever more intrusive government. Moreover, these laws are not political—they cut across racial and social lines, and apply in a variety of factual scenarios, such as property disputes, social welfare (just this past year, the Texas RFRA served as protection for those seeking to care for the homeless), conscience objections to abortion, and restrictions on using controlled substances in religious ceremonies. H.B. 1228 and RFRAs like it are not fact-specific. They are not race-specific. They are not religion-specific. And they are not political party-specific.

Americans of all political persuasions and religions who care about individual freedom from government coercion should get behind H.B. 1228. The bill’s text and our established practices for analyzing religious claims show that H.B. 1228 will merely support conscience rights for all in the face of ever larger and more intrusive government—it does nothing more, and nothing less. That’s something all Americans can support.

In the Footsteps of Jesus

by Travis Weber

February 20, 2015

In the New York Times, David Brooks asserts that followers of ISIS are looking for purpose, fulfillment, and destiny, and that attempting to address these needs with materialistic solutions misses the mark. In order to lessen the appeal of ISIS, Brooks suggests, its followers must be offered an even greater opportunity for fulfillment:

[P]eople don’t join ISIS, or the Islamic State, because they want better jobs with more benefits.”

They’re not doing it because they are sexually repressed. They are doing it because they think it will ennoble their souls and purify creation.”

You can’t counter a heroic impulse with a mundane and bourgeois response. You can counter it only with a more compelling heroic vision… . Terrorism will be defeated only when they find a different fulfillment, even more bold and self-transcending.”

He’s right about all of that.

But he’s wrong about the solution:

[Nationalism has offered that compelling vision. We sometimes think of nationalism as a destructive force, and it can be. But nationalism tied to universal democracy has always been uplifting and ennobling. It has organized heroic lives in America, France, Britain and beyond.”

Brooks proposes that followers of ISIS “will walk away when they can devote themselves to a revived Egyptian nationalism, Lebanese nationalism, Syrian nationalism, some call to serve a cause that connects nationalism to dignity and democracy and transcends a lifetime.”

Perhaps, though unlikely. And ultimately, it is only a half-solution to their real need.

Nationalism alone does not appeal to humanity’s deepest spiritual needs — which transcend life on earth and mere physical existence. These young followers know, at some level, that there’s more to life than the here and now. Many of us know that too. The followers of ISIS already have an “explanation” for life after death. Nationalism would seem bland and unappealing to them, for it only addresses earthly purpose, earthly satisfaction, and earthly fulfillment.

The answer for followers of ISIS is to walk in the footsteps of Jesus Christ, who offers all human beings (regardless of skin color, ideology, political party, nationality, prior life choices, or past faith) the chance for complete devotion, both in the here and ever after: “My Kingdom is not an earthly kingdom… . my Kingdom is not of this world” (John 18:36). He says to us, “if you give up your life for my sake, you will save it” (Matthew 16:25). For “this world is fading away, along with everything that people crave. But anyone who does what pleases God will live forever” (1 John 2:17).

How can we have this assurance?

For this is how God loved the world: He gave his one and only Son, so that everyone who believes in him will not perish but have eternal life” (John 3:16).

Only Jesus offers all human beings the chance to completely fill all our human longings and desires, for he offers the chance for complete devotion in response to his complete sacrifice for our complete salvation, beginning now and continuing ever after into eternity. Only in Jesus does death have no power, for he already defeated death for us.

David Brooks properly identifies the problem, but he misses the (ultimate) solution.

Judge relies on decision upholding government¿s ability to regulate marriage as it suppresses conscience objections to same-sex “marriage”

by Travis Weber

February 19, 2015

Yesterday, in the consolidated cases of State of Washington v. Arlene’s Flowers and Ingersoll v. Arlene’s Flowers, a Washington state court judge held that a small wedding vendor defendant engaged in impermissible discrimination in seeking to honor her religious beliefs and not support the promotion of a same-sex wedding ceremony with her services.

In granting the plaintiffs’ motions for summary judgment, Judge Ekstrom of the Benton County Superior Court elevated nondiscrimination laws over free exercise and free speech rights.

In holding that “[f]ree exercise is not … without its limits,” Judge Ekstrom relied on the Supreme Court’s proclamation in Reynolds v. United States that “[l]aws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices… . Can a man excuse his practices to the contrary because of his religious belief? The permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.”

True, the Supreme Court in Reynolds stated as much.

Equally interesting is the language from Reynolds which Judge Ekstrom excised from his quotation:

Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice? So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed.”

I don’t know why Judge Ekstrom chose to describe the Free Exercise Clause by quoting from Reynolds. Perhaps he thought it was his best source of authority; that seems unlikely though given that the decision is over 100 years old and is criticized right and left as “outdated.” Perhaps he thought he was being clever by using another case involving a rejection of religious rights in the context of sexuality.

If the latter, it’s quite ironic that the authority a judge relies on in restricting the rights of religious objectors to same-sex “marriage” is the same authority upholding limits on traditional marriage for the good of society.

For the Court in Reynolds rejected a free exercise challenge to a law criminalizing bigamy, and in doing so, noted the state’s significant interest in regulating marriage:

it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal.”

Today, if a state tried to uphold its natural marriage laws by relying on Reynolds it would be criticized loudly and clearly.

Regardless, Reynolds actually proves the utility and workability of strict-scrutiny religious rights frameworks being debated today, as the hypothetical human sacrifice and burning of the dead scenarios mentioned in Reynolds clearly would be barred by a compelling government interest, while other religious rights not seeking to override a compelling government interest would be protected under such frameworks. This is precisely the balance needed to sort out valid religious rights claims from invalid ones, and protect conscience objections like those of Ms. Stutzman — especially since judges like Judge Ekstrom won’t.

Cochran Complaint Paints Compelling Picture of Discrimination Based on Religious Beliefs

by Travis Weber

February 18, 2015

Today, Chief Cochran filed a complaint in federal court initiating a lawsuit against the City of Atlanta and Mayor Reed for firing him for holding Christian beliefs.

While we are all familiar with the background on Chief Cochran, and the City of Atlanta’s disappointing attempts to defend itself, the complaint reveals quite a compelling picture of Chief Cochran’s experience of religious discrimination.

It shows how Chief Cochran was motivated to excellence by firefighters who saved his house when he was growing up in a poor, single-parent family in Shreveport, Louisiana. From that point, he worked hard, guided by faith, to achieve excellence in what he did.

Chief Cochran had an exemplary career, going on to conduct firefighter training, lead Shreveport’s fire department, then lead Atlanta’s fire department, and finally head the U.S. Fire Administration in Washington, before returning to take charge of Atlanta’s fire department only after Mayor Reed himself “begged” him to come back to Atlanta.

The complaint continues by observing that Chief Cochran was awarded Fire Chief of the Year by Fire Chief magazine in 2012, for which he was showered with praise from Mayor Reed. And under Chief Cochran’s tenure, for the first time in Atlanta’s history, the Insurance Services Office gave the city a Class 1 Public Protection Classification (PPC) rating, an honor shared by only 60 cities nationwide, which resulted in lower insurance premiums.

In addition, as he explains, the chief promoted the development of workplace policies ensuring all his firefighters were treated fairly, and worked with LGBT employees (who he knew were LGBT) to make this happen. More than most, Chief Cochran knows what it’s like to be excluded; he had to overcome racial hostility earlier in his career.

Despite all this, when some protested Chief Cochran’s self-published Christian book, which had been in print for almost a year with no complaints, the city immediately suspended the chief without even discussing the matter with him beforehand. The book, which is about how to live for God, mentions human sexuality only in passing.

As described in his complaint, when the chief was suspended, the mayor explicitly distanced himself from Chief Cochran’s “beliefs” — thus revealing it is his religious beliefs which are the real problem here.

Yet the city is prohibited from firing Chief Cochran based on his religious beliefs. If Chief Cochran can prove that his beliefs were the reason he was fired, he will likely emerge victorious.

The chief will have plenty of avenues to prove the religious discrimination against him, having brought claims under the First Amendment’s Free Speech Clause for retaliation based on protected religious speech, along with allegations of viewpoint discrimination, over-breadth, prior restraint /unbridled discretion, and unconstitutional conditions. He follows these up with claims under the No Religious Tests Clause of Article VI of the Constitution, Free Exercise and Freedom of Association protections of the First Amendment, and an Establishment Clause claim based on hostility towards religion. Chief Cochran next alleges a Fourteenth Amendment Equal Protection violation based on unequal treatment based on his beliefs, and Fourteenth Amendment Due Process violations based on vagueness and deprivation of his liberty interests and procedural due process rights. He also plans on amending his complaint to include a Title VII religious discrimination claim at the appropriate time.

As a remedy, the chief asks to be reinstated in his job, that the city be prevented from taking such action against others, and that it admit it violated his rights here, in addition to other damages.

While his case is procedurally in the beginning stage, Chief Cochran’s complaint certainly paints a strong picture in support of his claims. Why would any mayor want to fire a man with his performance and history as a firefighter? They wouldn’t.

This part of the factual record — much of which is not disputable — makes it look like the chief was fired for the impermissible reasons described in his complaint. In addition, Chief Cochran paints a picture of how the city did not even follow proper procedures in terminating him.

Mayor Reed himself “begged” Chief Cochran to come back to Atlanta, and any mayor with a large fire department to run would want a man like the chief running it.

When this type of employee is fired, a reasonable observer is more likely to conclude they were fired for an impermissible reason — in this case, for their religious expression.