Author archives: Travis Weber

Think Progress implicitly endorses Texas RFRA

by Travis Weber

December 12, 2014

Think Progress reported yesterday on a decision by the city of Dallas to revise regulations on feeding the homeless. These revisions, which made it easier to feed and care for those living on Dallas streets, were motivated by a federal court ruling last year in favor of several religious ministries desiring to take food to the homeless and feed and care for them wherever they are found.

Years ago, Dallas had cracked down on feeding the homeless and placed restrictions on how it could be done, and several Dallas area ministries and individuals who were impacted by these changes sued. The Think Progress report discusses these events:

After Big Hart Ministries Association and Rip Parker Memorial Homeless Ministry sued the city, six years passed before a judge ruled that the law violated the charities’ religious liberties under a Texas statute. Wednesday’s City Council vote carries the judge’s logic further, softening the rules charities face and effectively ending Dallas’ effort to clamp down on on-the-street feeding programs for the indigent regardless of religious affiliation.” (emphasis added)

Big Hart Ministries Association, Rip Parker Memorial Homeless Ministry, and William Edwards had sued under the Texas Religious Freedom Restoration Act (“RFRA”). The Texas RFRA states that (1) sincere religious practices (2) cannot be substantially burdened by the government unless the government (3) has a compelling interest which it is (4) advancing by the least restrictive means possible. In their lawsuit, the plaintiffs had alleged that – in violation of the Texas RFRA – they had a sincere belief that their religion requires them to care for the homeless, and that the city was substantially burdening that belief by making it impossible to carry out with heavy regulations on feeding the homeless. Early in 2013, a federal judge ruled that the plaintiffs religious beliefs were indeed substantially burdened, and the city did not have a compelling interest in its regulations – thus, they violated the Texas RFRA. Finally, this past week, in response to this ruling, the Dallas City Council approved changes to regulations on feeding the homeless.

Think Progress does not refer to the Texas RFRA by name – but that’s the law which has benefitted the homeless in this situation. This is exactly what RFRAs – whether in Texas or elsewhere – are meant to accomplish: protect the exercise of sincere religious faith, in recognition of the valuable role it plays in society and benefits it brings to people around us. Furthermore, and contrary to many popular claims, RFRAs do protect religious exercise “regardless of religious affiliation.” A quick search of how the laws have been used in court will reveal that they have protected religious exercise for a variety of faiths.

It would be nice (and intellectually consistent) for Think Progress to extend this logic to other situations implicating RFRA. Indeed, the beauty of law is that it is blind to political preferences. This is why having RFRAs passed into law is so important to protecting religious freedom today. When religious freedom is diminished and made part of a political game, everyone suffers.

At Family Research Council, we fully support RFRA and what it stands for – protecting the exercise of faith for all in the face of often overreaching and too powerful governments.

To the business community: Religious freedom and you - perfect together

by Travis Weber

December 1, 2014

Writing at the Berkley Center’s Religious Freedom Project blog, Samuel Gregg explores the idea – and idea for which new evidence is consistently emerging – that religious freedom is good for business.

Gregg begins by noting historically that as certain religious groups have been marginalized in political life, they have turned their energies toward commerce – and prospered. In other cases, certain groups have been marginalized in their nation’s financial life – thus handicapping the economy. This isn’t good for growth, obviously. Gregg then focuses his attention on the more recently discovered correlation between economic growth and religious freedom:

[T]here is growing evidence that respect for religious freedom tends to correlate with greater economic and business development. One recent academic article, for instance, found (1) a positive relationship between global economic competitiveness and religious freedom, and (2) that religious restrictions and hostilities tended to be detrimental to economic growth.”

Moreover, other rights and freedoms are not entirely unaffected:

[T]he strongest interest that business has in being attentive to the religious freedom of individuals and groups is the fact that substantive infringements upon one form of freedom often have significant and negative implications for other expressions of human liberty. If, for instance, governments can substantially nullify religious liberty, then they are surely capable of repressing any other civil liberty. This included rights with particular economic significance, such as the right to economic initiative and creativity, property rights, and the freedom of businesses to organize themselves in ways they deem necessary to (1) make a profit and (2) treat employees in ways consistent with the owner’s religious beliefs.”

He concludes by noting that, nevertheless:

[M]ore work needs to be done in this area. Correlation is not causation. While there do seem to be significant correlations between restrictions on religious liberty and the economic freedom of individuals and corporate bodies, the case for causation requires further elaboration.”

But, businesses take note!

If … the various forms of liberty are as interdependent as they seem to be, business surely has at least a high degree of self-interest in seeing substantive conceptions of religious liberty and the rights and protections associated with religious freedom prevail.”

Businesses take note, indeed.

Meddling Freedom From Religion Foundation Gets Tossed Out of Court

by Travis Weber

November 14, 2014

Thankfully, the U.S. Court of Appeals for the 7th Circuit, in Freedom from Religion Foundation v. Lew, refused to let stand a decision which had declared the clergy housing tax allowance unconstitutional.

This case began when the Freedom from Religion Foundation (FFRF) sued the U.S. government alleging that the government grants tax benefits based on religion. In a quite ill-advised lower court ruling, U.S. District Judge Barbara Crabb held that the FFRF could properly bring the lawsuit and that the tax allowance violated the Constitution. The case was then appealed to the 7th Circuit.

To understand how ridiculous the FFRF’s claim is, we must understand a little bit about the doctrine of “standing” to bring a lawsuit in federal court.

As the 7th Circuit explained, to bring a lawsuit, a party must show:

(1) they were injured in a concrete and personal way,

(2) that the injury can be fairly traced to the defendant’s action, and

(3) that the injury is likely to be remedied by a favorable judicial decision.

In addition, the court explained, merely being offended at the government’s action does not give one grounds to sue. Obviously, the fact that an atheist group is upset at other religious entities getting some tax relief for their ministers does not “injure” the atheist group at all. There is simply no personal injury present.

The 7th Circuit agreed, noting that the FFRF could not be injured by being denied any such tax exemption because the group never even asked for it.

The court also noted the FFRF’s own difficulty in arguing for liberal standing rules – almost anyone would have standing to sue for virtually any reason! This would result in over-clogged and over-worked federal courts, which, as they sift through heaps of frivolous suits, would have to take time away from truly meritorious suits where parties have been actually injured. To say this would be an injustice is an understatement.

The 7th Circuit concluded as follows:

To summarize, plaintiffs do not have standing to challenge the constitutionality of the parsonage exemption. A person suffers no judicially cognizable injury merely because others receive a tax benefit that is conditioned on allegedly unconstitutional criteria, even if that person is otherwise “similarly situated” to those who do receive the benefit. Only a person that has been denied such a benefit can be deemed to have suffered a cognizable injury. The plaintiffs here have never been denied the parsonage exemption be-cause they have never requested it; therefore, they have suffered no injury.”

Nevertheless, it’s troubling to think the FFRF’s claims could even be considered more seriously had it asked for and been denied the exemption. Such a possibly should serve to highlight the way the suppressors of any religious expression in public life manipulate our legal system in wasteful and unproductive ways.

The FFRF has hardly been “injured” here by any reasonable understanding of that term. Courts should take note of this when the FFRF is back before another judge claiming some other mental or psychological “injury.”

U.S. Court of Appeals for the Sixth Circuit: Upholding marriage and democracy

by Travis Weber

November 7, 2014

On November 6, 2014, the U.S. Court of Appeals for the Sixth Circuit, in an opinion written by Judge Jeffrey Sutton, held that the marriage laws of Kentucky, Michigan, Ohio, and Tennessee do not violate the federal Constitution.

The opinion is a model of judicial restraint. Judge Sutton declared that states may see fit to legalize same-sex marriage, as multiple states already have, but that decision is to be left to the people of the states; the Constitution does not permit a “poll” of federal judges about “whether gay marriage is a good idea.”

A number of arguments were raised by the challengers of the marriage laws. Judge Sutton confronted all of them, and methodically explained why they are each insufficient to entitle the challengers to relief.

The 6th Circuit is simply following precedent, which it is required to do

The Court first explained that its position as an intermediate court requires it to follow on-point precedent, which is readily available in the case of Baker v. Nelson. Even in light of Loving v. Virginia (which had been decided four years previous to Baker), the Minnesota Supreme Court in Baker held that there was no federal constitutional right to same-sex marriage, for “‘in commonsense and in a constitutional sense … there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.’” The losing party appealed to the Supreme Court, but the Court dismissed the constitutional same-sex marriage claim, thus establishing Supreme Court precedent binding the 6th Circuit in this case.

Neither does United States v. Windsor change the calculus, for Windsor and Baker dealt with different issues. As for the argument that Windsor and other cases constitute a “doctrinal development,” Judge Sutton relies on the explicit instruction of the Supreme Court in other cases to conclude, quite reasonably, that Supreme Court precedents (which include Baker) must be followed until the Supreme Court makes clear otherwise. Unless the Supreme Court expressly overrules Baker by name, or by outcome, the 6th Circuit is bound by it. In addition, Judge Sutton clearly repudiated the notion that Windsor controls the present question somehow – noting that Windsor did not decide whether there was a constitutional right to same-sex marriage.

This type of solid logic is great to see; and shows that judges who have ruled otherwise have recklessly picked their favorite cases and twisted them to fit a favorable narrative. These other rulings finding a federal right to same-sex “marriage” have torn logic from its moorings; this is all the more apparent when contrasted with Judge Sutton’s solid logic here.

Baker independently provides grounds to conclude there is no constitutional rights claim to same-sex marriage, but Judge Sutton continues to address the remainder of challengers’ arguments nevertheless.

The original meaning of the Constitution does not offer support for same-sex marriage

Considering that the Constitution is an agreement between the people of the United States and the political leaders entrusted to govern them, Judge Sutton noted, its terms can only be changed with the consent of the people. For this reason also, clarity in interpretation and understanding are all the more important. There is no clear provision or understanding of the Constitution’s terms conferring a right to same-sex marriage. The Supreme Court also clearly looks to long-established historical track records of how constitutional provisions are to be interpreted – as revealed by precedent on a number of different constitutional provisions. Therefore, with this understanding, states are permitted, but not required, to legally allow marriage between members of the same-sex. If lawyers still invoke the original meaning of the Magna Carta, is it too much to ask that the original meaning of the Constitution (which, as Judge Sutton noted, no party to the case has suggested permits same-sex marriage) be respected? Indeed, it is not. Judge Sutton concluded that the original meaning of the Constitution and the historical record of what it permits does not reveal any constitutional right to same-sex marriage.

The state marriage laws meet rational basis review

Judge Sutton next concluded that the state marriage laws at issue meet rational basis review, which is satisfied as long as there is “any plausible reason” for the laws. Indeed, “[a] dose of humility makes” the Court “hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the States.”

The Court noted it is clearly rational for the state to want to regulate the effects of sexual activity – which raises very important questions such as who is responsible for children produced by sexual activity, how many mates a person may have, and who is responsible for children which one or more of the partners helped to produce. The fact “[t]hat we rarely think about these questions nowadays shows only how far we have come and how relatively stable our society is, not that States have no explanation for creating such rules in the first place.” This alone is evidence of the rational basis of such laws. Moreover, “rational basis review does not permit courts to invalidate laws every time a new and allegedly better way of addressing a policy emerges,” Judge Sutton concluded. “By creating a status (marriage) and by subsidizing it (e.g., with tax-filing privileges and deductions), the States created an incentive for two people who procreate together to stay together for purposes of rearing offspring. That does not convict the States of irrationality.”

It is also clearly rational for the states to want to wait and see what happens as a result of the legalization of same-sex marriage before changing their own laws on a norm which has existed for centuries. Developments in the United States on this issue have been rapid-fire, and yet at the same time, many states have simply left in place the norms to which they have always held. This is certainly rational, for “[a] Burkean sense of caution does not violate the Fourteenth Amendment.”

Either of these two grounds would independently satisfy rational basis review. Yet even the challengers’ own “love-and-commitment” definition of marriage would fail under their view of rational basis review. For no state requires couples, whether gay or straight, to be in love. Yet on the other hand, their definition fails to account for plural marriages, for there is “no reason to think that three or four adults, whether gay, bisexual, or straight, lack the capacity to share love, affection, and commitment, or for that matter lack the capacity to be capable (and more plentiful) parents to boot.” The Court proclaimed, “[i]f it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage.” Judge Sutton noted that the challengers “have no answer” on this point. Yet “[w]hat they might say they cannot: They might say that tradition or community mores provide a rational basis for States to stand by the monogamy definition of marriage, but they cannot say that because that is exactly what they claim is illegitimate about the States’ male-female definition of marriage.

Judicial deference to the people is a serious issue under rational basis review. Indeed, as Judge Sutton noted, the Supreme Court has held that a “State’s interest in maintaining close ties among those who steer ships in its ports justifies denying pilotage licenses to anyone who isn’t a friend or relative of an incumbent pilot. Can we honestly say that traditional marriage laws involve more irrationality than nepotism?”

Ultimately, rational basis review is clearly satisfied here because either the regulation of sexual activity or a decision to proceed with caution on marriage laws would satisfy the constitutional standard. Thus the Court could dispose of the case at this point. But Judge Sutton continues to address the many arguments raised by the challengers – who no doubt are hoping that one of them would stick.

The voters in the states cannot be painted with the broad brush of “animus”

Judge Sutton next dismissed the idea that the state marriage laws are driven by animus, noting that the laws (which there are plenty of legitimate reasons to support) merely hold in place norms which have been around for the entire history of civilization. As the Court noted, “if there was one concern animating the initiatives, it was the fear that the courts would seize control over an issue that people of good faith care deeply about. If that is animus, the term has no useful meaning.” How could the voters be blamed for feeling this way, when judges around the country were starting to strike down these laws out of the blue? It was at this time that voters decided to codify these long-held traditions in law – an act which the Supreme Court itself affirmed to be their prerogative to decide sensitive public policy issue in Schuette v. Coalition to Defend Affirmative Action. Painting the voters of the states with the broad brush of animus is “no less unfair” than portraying all supporters of same-sex marriage as intent on destroying American families to the core. Thus the idea that animus has driven state marriage laws, and that this serves as a reason to find them unconstitutional, fails entirely.

There is no fundamental right to same-sex marriage in the Constitution

The Court next tackled the question of whether there was a fundamental right to same-sex marriage, beginning by noting that it does not appear explicitly in the Constitution, and next by finding it is not historically “deeply rooted” as necessary to “ordered liberty.” Loving does not support the idea that this right historically existed. Loving did not use the term “opposite-sex” marriage, but that would have been redundant. For in Loving the Court proclaimed that marriage was “fundamental to our very existence and survival” – referring to the procreative aspect of marriage. Judge Sutton reasoned:

Had a gay African-American male and a gay Caucasian male been denied a marriage license in Virginia in 1968, would the Supreme Court have held that Virginia had violated the Fourteenth Amendment? No one to our knowledge thinks so, and no Justice to our knowledge has ever said so. The denial of the license would have turned not on the races of the applicants but on a request to change the definition of marriage. Had Loving meant something more when it pronounced marriage a fundamental right, how could the Court hold in Baker five years later that gay marriage does not even raise a substantial federal question? Loving addressed, and rightly corrected, an unconstitutional eligibility requirement for marriage; it did not create a new definition of marriage.”

Neither do Zablocki v. Redhail or Turner v. Safley supporter the challengers’ claim here, for “[i]t strains credulity to believe that a year after each decision a gay indigent father could have required the State to grant him a marriage license for his partnership or that a gay prisoner could have required the State to permit him to marry a gay partner. When Loving and its progeny used the word marriage, they did not redefine the term but accepted its traditional meaning.”

Judge Sutton also noted that the Supreme Court has chosen not to subject laws regulating other aspects of marriage – such as divorce laws, polygamy laws, and laws regulating the age and familial status of those entering marriage – to strict scrutiny. As is the case with same-sex relationships, there are other areas of action intersecting with marriage laws which do not implicate fundamental rights subject to strict scrutiny.

In conclusion, there is no fundamental right to same-sex marriage – it is not mentioned in the Constitution, and cannot be recognized under the applicable legal standard.

Sexual orientation is not a “discrete and insular class without political power”

As the Court noted, rational basis review applies to sexual orientation classifications. The Supreme Court has never held that heightened review applies, and has not recognized a new suspect class in over four decades. Windsor does not support any contrary conclusion; rather, Windsor overwhelmingly supports the conclusion that marriage law and policy is to be left in the hands of the states. If it wasn’t clear enough, Judge Sutton emphasized the point again: Windsor does not support a federal constitutional right to same-sex marriage – any other reading “would require us to subtract key passages from the opinion and add an inverted holding.” Thus there is no heightened review applied in this case.

The notion of “evolving meaning” cannot support the legalization of same-sex marriage

Even if changing mores are examined for whether they can support new judicial decision-making, they do not support the idea that laws upholding natural marriage must be struck down. Such considerations are dependent on society’s values (not judges’ values), and thirty-one states would continue to permit only natural marriage if given the choice. If the “pacing” of the change of this issue in society is to be considered, and the challengers desire is to examine judicial decisions as part of this trend, what about the “pacing” of state legislatures’ decisions and the deference due to their interest in caution?

Moreover, even if international legal regimes are examined on this point, Judge Sutton observed that the great majority of countries have retained natural marriage. The European Court of Human Rights even held that European human rights laws do not guarantee a right of same-sex marriage. The Court makes a good point: “What neutral principle of constitutional interpretation allows us to ignore the European Court’s same-sex marriage decisions when deciding this case? If the point is relevant in the one setting, it is relevant in the other, especially in a case designed to treat like matters alike.”

In concluding this section of his opinion, Judge Sutton noted “[i]t is dangerous and demeaning to the citizenry to assume that we, and only we, can fairly understand the arguments for and against gay marriage.” Indeed, even if evolving mores are considered, they do not support a wholesale forced acceptance of same-sex marriage.

For all these reasons, the marriage laws at issue in this case are perfectly constitutional.

The challengers had also argued, however, that state laws banning recognition of out-of-state marriages violated constitutional guarantees of equal protection and due process.

The Constitution does not require inter-state recognition of same-sex marriages

The Court stated that (as explained above) because states may constitutionally define marriage between men and women as they see fit within their borders, they may also constitutionally define how they will recognize out of state marriages. States have always decided how and when they will recognize other states’ laws based on choice of law doctrines. This situation is no different. Indeed, states already for a long time have refused to recognize invalid out of state marriages in other contexts – like incestuous or polygamous marriages, or others opposed to state law. States may decide what marriages to recognize as a matter of policy in those contexts, and this one is no different. If there is no constitutional right forcing a state to modify its own marriage laws, there is no constitutional right forcing a state to modify its laws regarding recognition of marriages performed in other states.

The challengers also argued that such bans violate the constitutional right to travel – which protects the right to leave and enter states, be welcomed, and, if a permanent resident, be treated like a citizen of the state. Yet, as the Court noted, state laws banning recognition of out of state marriage violate none of these rules. People can still move freely across boundaries, and are treated just like those inside the state who would violate the marriage laws. Thus, the right to travel does not require invalidation of state marriage laws on this point.

Conclusion

For all these reasons (explained above and summarized below), the Court held that state laws upholding natural marriage are fully legal and constitutional:

  • Baker requires that this Court dismiss the constitutional rights claims here.
  • Even if not dismissed, these laws meet rational basis review. There is no animus or suspect classification which would require any greater review.
  • There is also no fundamental right here – explicitly protected or deserving to be recognized.
  • There is no original meaning or “evolving meaning” support for a same-sex marriage right which would change any of the above analyses.
  • Additionally, no legal principle changes the constitutional calculus regarding laws pertaining to recognition of out-of-state marriages.

Judge Sutton reiterated one final time that such sensitive issues, especially when considering the abrupt timeline of change and legalization of same-sex marriage, should be left to the voters to decide. Only then can voters on both sides of the issue makes their voices heard in a manner befitting them as ultimate arbiters in a self-governing democracy, as opposed to making judges the “heroes” (or villains) they were never meant to be.

Dissent

Dissenting Judge Daughtrey repeats all the same arguments advanced by the challengers – arguments which have been repeated elsewhere by rogue judges striking down marriage laws. She accuses the majority of setting up a “false premise” of “who should decide” this issue – the voters or judges. Perhaps she is grasping at straws, for this is not a false premise at all, but a legitimate question that is actually before the court – whether there actually is a right to same-sex marriage at all – which, if absent, indeed permits the voters to decide. For much of her opinion, she spends time on items not even central to the legal issues – she discusses the various factual scenarios of the challengers’ lives, then takes shots at the expert testimony offered by the defending states (without equally scrutinizing plaintiffs’ experts), and finally simply recounts other recent circuit court rulings (which themselves have been crafted out of thin air in the past year with specious reasoning).

She fails to confront the precedential hurdles she faces in Baker (which have been discussed by the majority). She also fails to even examine the proper standard for rational basis review – whether there is “any plausible reason” for traditional marriage. Instead, she just skips the question, choosing instead to complain about the majority’s arguments without engaging them, and without applying the appropriate legal standard. For instance, at one point, she focuses on the level of difficulty of amending a state constitution – a question entirely irrelevant to the legal standard she is supposed to be considering.

She then claims the voters could be exhibiting “animus” if they have a “general, ephemeral distrust of, of discomfort with, a particular group.” Under that standard, we might as well be forced to legitimize virtually every behavior for which we currently incarcerate people.

It goes without saying further that the dissent is poorly constructed and lacks objectivity. That alone would be sufficient reason to criticize it; the cheap shots which she takes at the judges in the majority (and to some extent the voters) further discredit the dissent.

7 Points of Reflection: Responding to the Houston Mayor’s Press Conference Announcing the Withdrawal of the Subpoenas Targeting the Five Houston Pastors

by Travis Weber

October 29, 2014
  1. The mayor says the subpoenas were “legal, valid, and appropriate,” but is withdrawing them anyway.

No, they are not legal, valid, and appropriate. They requested irrelevant and privileged material, and had the purpose of harassing the pastors – these very qualities make them quite inappropriate.

  1. She says it is “extremely important” to protect her special rights ordinance.

What about free speech rights so essential to open democracy and religious liberty rights protected by the First Amendment? She didn’t mention it was important to protect these.

  1. She claims the pastors she met with (who were not the subject of the subpoenas nor authorized to speak on behalf of those who were) didn’t plan a “rally” to “attack me” or the city.

While she tries to paint herself as above the political fray, she’s the one who invalidated the signatures. At its heart, this entire situation is a political matter. She tries to separate her subpoena withdrawal from the politics here, but she ultimately can’t do this. It comes down to this – if the pastors had been speaking for the bathroom bill instead of against it, she’d be fine with that. This IS about political intimidation – no matter how much she says it isn’t.

  1. She cares about “broader concerns” implicated here so she dropped the subpoenas.

What about the “concern” of Houston citizens being able to democratically repeal a law they don’t like? That seems pretty “broad” to me.

 

  1. She says she had a good conversation about “rendering unto Caesar” with the pastors she met with (who, again, are not even the pastors who were targeted by the mayor’s office).

This isn’t a determination for her to make. Ultimately, this entire situation arose because the Houston 5 have not rendered unto the City what the City would like for them to – their views on sexuality.

  1. She believes she has “removed that discussion about freedom of religion from the local arena.”

No, she hasn’t. She’d prefer that “religion” have nothing to say about the versions of sexuality protected by HERO – the very thing which is driving the lawsuit – which she has vowed to defend. Thus her logic defeats itself.

  1. She also became defensive when asked why she wouldn’t just allow the citizens to vote on repealing HERO. She was asked a question expressing concern that the Houston 5 may still feel intimidated.

She attempted an answer, but did so unsatisfactorily. If the mayor wants to clear up the intimidation issue, she can allow the citizens she was elected to represent to actually vote on whether to repeal the ordinance – it’s that simple.

Federal Judge: Revised “Accommodation” for Religious Organizations Still not Good Enough

by Travis Weber

October 29, 2014

For the first time since the Obama Administration “tweaked” its HHS mandate “accommodation” this past August, a federal judge has issued a preliminary injunction blocking the government from enforcing the mandate on certain religious organizations. This is welcome news.

After the Hobby Lobby opinion came down, and after the Supreme Court issued its interim order in Wheaton College v. Burwell, the Administration revised it’s “accommodation” to permit religious objectors to HHS of their objection directly in addition to filling out the EBSA Form 700, if they chose. As we have argued before, however, this alternative step still leaves those with sincere religious objections in the position of having facilitated and played a part in matters which they believe are morally evil. The “revised accommodation” still forces these religious objectors to violate their conscience. Whether one government form is placed between them and the moral evil, they are still forced to take action which sets the objectionable activity in motion.

For this reason, we are heartened to see that Judge James Moody from the Middle District of Florida has blocked the administration from forcing its Interim Final Regulations on Ave Maria University, which had filed suit to avoid being forced to violate deeply held religious beliefs under threat of heavy fines. Judge Moody noted that the same consideration on which the 11th Circuit relied in granting relief for EWTN in Eternal Word Television Network, Inc. v. Sec’y, U.S. Dep’t of Health & Human Services, 756 F.3d 1339 (11th Cir. 2014) earlier this year was at play here – imminent harm to a religious organization which would be forced to violate its principles of conscience once the organization’s insurance plan year kicked in and the HHS mandate applied. Judge Moody thus granted relief for Ave Maria University. The school’s freedom of religion is protected – at least for now.

Ministers: Beware

by Travis Weber

October 20, 2014

As if the over-stepping Houston major’s office subpoenaing sermons and other private communications of pastors wasn’t enough, we now receive news of two elderly ministers being told by city officials that any refusal to marry a same-sex couple could cause them to face up to 180 days in jail and $1,000 in fines for each day they decline to do so.

For many years, the husband and wife team of Donald and Evelyn Knapp have presided over wedding services across the street from the local county clerk’s office in Coeur d’Alene, a beautiful city in North Idaho. Now, they are told they have to conform to their city’s iron-fisted demand that they “marry” men to men and women to women.

In other words, from the city to the ministers: Your religious liberty doesn’t really mean a thing when it comes to the new sexuality; you must come into line in accord with our views. When the city says something related to human sexuality should be accepted, that’s the final word.

For years, we have also been told by gay-marriage advocates that no harm would come from legalizing same-sex marriages. No one would be forced to participate.

Yet it seems that day has arrived. Court-issued stays have been lifted, and gay marriages have started to proceed in Idaho. Now a minister is being told by his government that he must officiate at these “marriages.”

Now that we are past the point where we were told the gay-rights crusade would stop, should we expect it to just stop here? I’ve grown doubtful of such expectations, as the advocacy and pressure for acceptance continue full steam. No, this crusade will likely continue until all are forced to approve.

These developments have occurred incrementally. As Albert Mohler points out, “[t]his is how religious liberty dies. Liberties die by a thousand cuts. An intimidating letter here, a subpoena there, a warning in yet another place. The message is simple and easily understood. Be quiet or risk trouble.”

How true. We are more in danger of remaining apathetic to threats to our freedom when the individual threats just don’t appear to be a big deal. The danger is in the accumulation, though. Hopefully, for many, this latest “increment” will be too big to ignore.

In the name of religious rights for prisoners

by Travis Weber

October 7, 2014

Today oral argument will be heard by the Supreme Court in Holt v. Hobbs, a case in which a Muslim prisoner is seeking to grow a ½ inch beard in compliance with his religious faith. The prison policy at issue actually permits ½ inch beards, but only for medical reasons. For this marginalization of his religion, Mr. Holt has sued under the Religious Land Use and Institutionalized Persons Act (RLUIPA), and is asking the Court to apply strict scrutiny (the same high standard of protection for religious rights required by RFRA and affirmed by the Supreme Court in Hobby Lobby) and protect his religious rights in the face of a discriminatory prison policy.

Many see the importance of protecting religious rights for prisoners, including those who have personally benefitted and come to faith through access to religious programs in prison. My law school colleague Jesse Wiese, now advocating for prisoners at the Justice Fellowship, is one of these; he has written about his experiences in support of Mr. Holt’s religious claim in this case. A win for Mr. Holt under RLUIPA in this case will protect all prisoners, regardless of faith. Along with protecting a Muslim prisoner who wants to grow a beard to a reasonable length (in keeping with the prison’s need to maintain order and discipline), the application of strict scrutiny here will strengthen the law’s protections for Jewish prisoners seeking dress or grooming accommodations, or those seeking access to Bible studies in prison. As it is said, a win for religious freedom for one is a win for religious freedom for all.

Moreover, a win for Mr. Holt here will strengthen protections for religious exercise in public spaces in the United States, something that groups like the Freedom From Religion Foundation just can’t stand. Religion always has occupied a unique role in the public life of our country. We can expect the Supreme Court to again affirm that principle with a ruling for Mr. Holt in this case.

FRC Files Amicus Brief in Reed v. Town of Gilbert

by Travis Weber

September 22, 2014

Today, Family Research Council filed an amicus brief with the U.S. Supreme Court in the case of Reed v. Town of Gilbert.

In this case, a Gilbert, Arizona sign ordinance discriminated against certain signs based on the content of the signs — whether they were political, ideological, and directional. Directional signs were placed under more severe restrictions.

A local church — Good News Community Church — and its pastor — Clyde Reed – needed to announce the times and locations of their services, but because their announcement signs (which directed individuals to a public school were services were being held) were deemed directional, the church was severely hampered in getting its message out.

Pastor Reed and Good News Community Church sued to vindicate their constitutional rights. The lower courts ruled against them, so they have now taken their case to the Supreme Court.

In our brief, filed in support of Pastor Reed and Good News Community Church, we argue that the town does regulate signs differently based on their content, for politics, ideology, and directions are all matters of differing content. Well-established Supreme Court jurisprudence bars content-based restrictions on speech unless the government can meet strict scrutiny — which says that unless the government regulation advances a compelling government interest, and this is done in the least restrictive way possible – the government regulation cannot stand. We conclude that because there are content-based restrictions on speech in this case, the Supreme Court should send this case back to the district court to determine if the town can meet strict scrutiny.

A win for Pastor Reed and Good News Community Church in this case will help advance a strong interpretation of First Amendment free speech rights, which is good not only for small congregations like Good News Community Church, but for all who wish to speak free from government interference. Ensuring an open marketplace of ideas in which all voices are protected and can speak freely is what the First Amendment is all about.

Our press release is here, and our brief can be read here.

A Tale of Two…Groups Which Voluntarily Relinquished their Freedom to Associate

by Travis Weber

September 3, 2014

Several days ago, the organizers of the New York City St. Patrick’s Day Parade announced they will permit a group composed of gay NBC employees to march in their annual event with a banner identifying themselves as gay. By now, we are used to such tidbits of news. But this is significant for other reasons.

Back in the 1990’s, the U.S. Supreme Court issued an important free speech ruling in a case called Hurley v. Gay, Lesbian, and Bisexual Group of Boston. In Hurley, the Court held that private associations communicating a message (through a parade, for instance) could not be forced to include unwanted groups in their parade, for this would compel the parade organizers to communicate a message against their will and make free speech and freedom of association protections meaningless. Such forced speech cannot be accomplished even in the name of eradicating discrimination, the Court held.

The Hurley case dealt with the Boston parade, but it settled almost the same issue for the NYC parade. Thus, the NYC parade organizers are not forced by law to do what they just decided to do – include the gay group and its banner. Nevertheless, they are doing exactly that. Thus, here we see an example of cultural pressure superseding legal requirements and causing a group to do what it isn’t required by law to do.

This same phenomenon occurred in the Boy Scouts of America v. Dale case and its aftermath. There, the Supreme Court held that the scouts were protected by the freedom to associate and did not have to permit homosexual scouts or scout masters. Despite being constitutionally protected, the Scouts reversed course in permitting gay scouts (while retaining the ban on gay scout masters). Alas, another high profile entity ceded to cultural pressure that which the law does not require.

Though these are only two situations, they are high profile matters which illustrate my point: it is highly important to address cultural trends over the long-term, and the thinking that underlies them, in addition to fighting legal battles and addressing matters through the legislature. These cases are monumental constitutional rulings, and many who still wish to speak freely can rely on them. But we can win great court battles and still lose the culture (as these cases illustrate) without properly addressing these trends at the roots. The “how” of addressing these trends is more difficult. One might start by studying how those advancing “anything goes” sexuality have been so successful over the past decades, and after properly understanding the context and our opponents’ messages, we can ascertain the best long-term language to communicate the importance of religious liberty and other issues. Only when we have acquired the proper ammunition for re-shaping our culture over the long-term, can we begin to use it.

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