Author archives: Travis Weber

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.

Judge to Public University: You Must Allow Pro-Life Views

by Travis Weber

February 16, 2015

In a bit of good news, a federal district court judge in Alabama has rejected a public university’s attempt to dismiss a lawsuit brought by pro-life students alleging that they were denied permission to demonstrate based on their views.

The university reportedly told the students in an e-mail:

As you know, your organization advocates for a position that involves political and social controversy. Placing the crosses in proximity to Shelby Hall carries with it an implication that the College of Engineering endorses that position.”

Yet this “political and social controversy” was due to the students’ position on abortion. If the university was concerned with “controversy” connected to the topic of abortion, it might be able to prohibit all speech on that topic in certain areas on campus. But if, as alleged, the university was actually targeting the “controversy” arising from pro-life views, it would be targeting these pro-life students for their position on the issue of abortion, and would thus be engaged in view-point discrimination—something the government is strictly prohibited from doing. As the court noted:

The plaintiff has evidence that permission was denied because the plaintiff “advocates for a position that involves political and social controversy.” The Court agrees with the plaintiff that this e-mail constitutes evidence that Mitchell and Steadman denied permission due to the plaintiff’s viewpoint (“position”) on abortion (pro-life). Because it was clearly established in February 2014 that such viewpoint discrimination violates the First Amendment, Mitchell and Steadman cannot receive qualified immunity with regard to these denials.”

Thus the students’ free speech claims will be allowed to proceed. At a time when free expression is often marginalized, it is good to see such clear and straightforward application of free speech law by courts, and observe the First Amendment doing what is designed to do—promote free expression and the exchange of ideas.

American Sniper and the Restoration of Man

by Travis Weber

February 11, 2015

Why has American Sniper struck such a chord with the American public? No doubt in part this is due to the incredible storyline and cinematography, but other factors are certainly at play in such a blockbuster hit. While critics have scrutinized various aspects of Chris Kyle’s story, something within us is still attracted to a man with integrity (that term being defined as consistency between one’s beliefs and actions). As Kyle heads off to war in Iraq, backing-up his fellow countrymen as a sniper, his simple conviction about the importance of defending good against evil—and his willingness to act on that belief—is attractive to the viewer. His skill as a sniper, and record as the all-time crack marksmen in U.S. military history, almost become secondary.

As Owen Strachan notes at the Patheos blog, this movie has “struck a chord” because:

We are in an age that does not want to believe in manhood, at least the traditional kind. Men are not supposed to be strong today. They are not supposed to lead their families. They are not supposed to take ownership of provision for their household. They are not supposed to be fearless. Modern men have had their innate manhood bred out of them.

As a result, many men today don’t want to sacrifice for others. They want to be nice, and liked by everyone, and to win the approval of their peers.”

Against this backdrop, American Sniper is a rather shocking entrée. It presents a simple man who lives by a black-and-white moral code. He is traditional. This is not existential manhood; this is non-existential manhood. Kyle does what he thinks he should do, and does not second-guess himself. He believes that he should use his God-given strength and ability to defend the weak and defeat the wicked. He believes, in fact, that there are wicked people in the world. He is not afraid to say so. He is not afraid to act on this conviction.”

Yet, “Kyle was no wilting flower. He was not a perfect man. He knew this. He was rough around the edges, he sometimes shot off his mouth, and he had a tough time with rules. In other words, he was a classically aggressive man. Our culture wants to anesthetize such men, to stick a tranquilizer in them and dose them up on medication to tame their natural aggression.”

Strachan continues, “[t]his is not what the church advocates, however. The church gives men a vocabulary for their aggression, their innate manliness. It funnels their God-given testosterone in the direction of Christlike self-sacrifice for the good of others (Eph. 5; 1 Tim. 3). It does not seek to tame men, or ask them to become half-men (or half-women). It asks them to channel all their energy and aggression and skill into the greatest cause of all: serving the kingdom of the crucified and risen Christ.”

Moreover, as men lead in this way, it is attractive to women. Strachan notes the presence of a number of young women in the movie theater, presumably excited to see this man in action.

Women are attracted to a man on this journey in which he fights courageously for Christ.

For Christ “was fearless. He was brave. We don’t know how big his shoulders were, or how handsome he was, or how fast he could run. We do know that he laughed in the face of evil, and gave no quarter to his opponents, and did not apologize for claiming that he was the way, the truth, and the life. Even as death took him down, he struck a climactic blow against the kingdom of darkness. He crushed it. He ended the reign of Satan, and began the true reign of the Son of God. Jesus was not a pacifist. He was a conqueror, and he will return to judge the quick and the dead.”

At that point, this “true man, who redeemed us, will lead us into a world where heroes do not die, but live forever with their God.”

Until that time, Chris Kyle’s conviction can help serve as a reminder of what conviction truly means.

Atlanta Mayor Steps up Disparaging Attacks on Chief Cochran

by Travis Weber

January 29, 2015

Last week, Chief Cochran lodged a complaint (known as a “charge of discrimination”) with the Equal Employment Opportunity Commission (“EEOC”) alleging that the City of Atlanta discriminated against him for his religious beliefs when it fired him after he authored a book on Christianity which mentioned homosexuality.

Information emerging publicly to this point (such as the city’s own admission that no one has even alleged that Chief Cochran ever treated anyone unfairly based on their sexual orientation) reveals the chief’s already-strong case for religious discrimination. Chief Cochran’s allegations in his complaint only bolster his case:

After the complaint was filed, the city quickly released the following statement in response.

Former Chief Cochran filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) and declared under penalty of perjury that the statements in the charge are true and correct. Unfortunately, the only truthful portions are his statements about his tenure as Chief and the identity of those in the room with him during two meetings. Everything else is patently false.

The City will respond directly to the EEOC at the appropriate time to inform the agency that instead of “unspecified policies,” Mr. Cochran was informed at the time of his suspension that he had failed to follow the City Code in seeking to engage in an outside income-producing venture. He was also informed that the issue was not the religious nature of his book, but the fact that he was espousing theories about certain groups of people that were in conflict with the City’s policy of inclusiveness. He was further informed that there was an issue with his espousing these beliefs while identifying himself as the Atlanta Fire Chief and while falsely claiming that his job description required him to run the Atlanta Fire Rescue Department on the basis of these beliefs. Finally, Mr. Cochran was informed that distributing the book to members of his command staff in the workplace was improper and sent a message to his staffers that they were expected to embrace his beliefs.

Although Mr. Cochran continues to claim that the City Ethics Officer authorized his publication of the book, that claim is as untruthful today as it was when first uttered. Mr. Cochran was told that the City Code required him to get the approval of the Board of Ethics before publishing his book, something he admits he never did.

Mr. Cochran states in his EEOC charge that he was told his faith influenced his leadership style and that this was the reason for his termination. What he was actually told was that his distribution of a book about his beliefs within his department had caused his employees to question his ability to continue to lead a diverse workforce.

The religious nature of his book is not the reason he is no longer employed by the City of Atlanta. The totality of his conduct—including the way he handled himself during his suspension after he agreed not to make public comments during the investigation—reflected poor judgment and failure to follow clearly defined work protocols.

Mr. Cochran continues to make false statements and accusations, even under penalty of perjury to the EEOC. This is just further proof that he has shown himself to be the wrong person for a leadership role in the City of Atlanta.

The city’s response reveals several things:

  • The fact that the city feels it needs to immediately and publicly respond to this complaint shows that the city is aware of the public importance of this debate. Typically an immediate public response to a legal filing is more general and cursory than the city’s here. Typically specific and targeted responses like the city’s first appear in the legal response. Yet the city is coming out swinging, which shows it realizes that this public debate over Chief Cochran matters. The city’s behavior here is unusual because now these statements can be used against the city if it contradicts them at all in future legal proceedings (this is typically why lawyers don’t want their clients to talk). Perhaps the city realizes it is losing this battle though, and it is scrambling to catch up a diffuse public support for Chief Cochran.
  • The viciousness of the city’s response (accusing Chief Cochran of committing perjury, and the sharpness of the city’s language in disputing him) reveals the nerve that the EEOC complaint touched.
  • The city is very sensitive about this being perceived as religious discrimination, but that’s exactly what it is. Specifically, the city says Chief Cochran’s religion is not at issue, but that his “theories about certain groups of people” are a problem—as if those two can be divided. Aside from the fact that this misrepresents Chief Cochran (he didn’t say anything about “groups of people” but spoke of a variety of sexual conduct that any one or more persons may engage in), the city is trying to parse something which can’t be parsed. The chief’s orthodox and faithful Christian views on sexuality are what inform his views of a variety of sexual conduct, including but not limited to homosexual conduct, which he believes (in concert with historic and orthodox Christian teaching) departs from God’s standard. The city is trying to ignore the fact that faithful Christianity directly informs views on sexuality. When the chief is punished for these views, he’s being punished for his religion. Thus this case has everything to do with religion.

If the city forces Chief Cochran to modify his views of sexuality as part of his discussion of his religion in his book, it is forcing him to deny and suppress the expression of his religion. Whatever the city wants to say, this case is all about religion.

Tarnishing Freedom in Georgia

by Travis Weber

January 28, 2015

It is reported that down in Georgia, opponents of individual rights and personal freedom are ratcheting up their smear campaign against proposed religious liberty legislation known as the “Preventing Government Overreach on Religious Expression Act,” which is designed to ensure that individuals’ consciences cannot be easily trampled by intrusive government regulation.

A web page titled “Better Georgia” purports to state concerns with the legislation, House Bill 29, but is filled entirely with omissions and misrepresentations regarding H.B. 29 and how religious liberty law actually works. Let’s fact-check some of its ridiculous claims.

Claim:

This bill would open the door to people who would use their religion to opt out of laws from child welfare to discrimination. It would lead to legal chaos over whose religion is more important in the eyes of our courts and lawmakers. The legislation would give criminals who abusetheir children or spouses a new excuse and make it even more difficult for police officers to put abusers behind bars.”

Veracity Level:

False. Child abuse is evil, and no one defends it. However, it is indeed offensive for Better Georgia’s out-of-state backers to imply that religious believers in Georgia are to blame for such abuse. Moreover, no religious freedom laws, including H.B. 29, permit people to “opt out” of child welfare laws, nor do such laws allow people to abuse their children.

Better Georgia had better check its fact-checkers.

The truth is that under H.B. 29, as with any strict scrutiny application to religious claims, an individual first has to prove they 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, and has done so through the least restrictive means, it is allowed to burden the religious exercise in question.

Thus, H.B. 29 does not automatically permit religious claims to win, but does provide a method for sincere conscientious objectors to be protected, while winnowing out those using religion as a pretext to escape application of general laws. This standard 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 of the alleged “concerns” and “fears” RFRA opponents point to.

In its 1990 decision Employment Division v. Smith, the Supreme Court significantly restricted free exercise rights, holding that laws infringing on religious exercise did not violate the First Amendment as long as they were neutral and generally applicable. In Smith, an individual sought and was denied unemployment benefits by the State of Oregon because he used peyote—a criminalized, controlled substance—yet he claimed his use of peyote was a religious practice protected by the Free Exercise Clause. The Supreme Court rejected this claim, holding that if a neutral and generally applicable law (such as the uniformly applicable criminal law in this case) happens to infringes on religious practice, such a law does not violate the Free Exercise Clause.

Many rightly saw Smith as a reduction in the protection afforded religious liberty, and the reaction to the Court’s decision was overwhelming. In 1993, a coalition of groups from across the religious and legal spectrum—from the Southern Baptists to the ACLU—came together to urge Congress to pass a law restoring strong protections for free exercise claims. The political support for such a law was also overwhelming, including strong backing from Democratic Congressional leaders such as Senator Ted Kennedy and Representatives Nancy Pelosi, Chuck Schumer, and Jerry Nadler. RFRA was passed unanimously by the U.S. House, 97-3 by the Senate, and signed into law by President Clinton. In over 20 years that the federal RFRA has been in existence, there is been no documented pattern of abuses such as those no claimed by the opponents of H.B. 29. As others have asked, where are these alleged child abusers and discriminators who are supposedly walking away from criminal charges under RFRA? They simply do not exist.

RFRA never was and should not be a partisan issue, as it protects those of all faiths and political persuasions. A review of RFRA and free exercise case law reveals its benefit to everyone from Muslims to Jews, Christians to Santeria adherents, and Native Americans to more obscure sects (among others), as they seek to protect their beliefs and consciences from being burdened by an ever-more intrusive government. Moreover, RFRAs cut across racial and social lines, and apply in a variety of factual scenarios, such as property disputes, restrictions on caring from the homeless, conscience objections to abortion, and restrictions on using controlled substances in religious ceremonies. They are not fact-specific. They are not race-specific. They are not religion-specific. And they are not political party-specific.

Despite this fact, many will attempt to manipulate the clear text of the law for partisan aims. Even a group of law professors writing in opposition to the bill can’t conceal their political agenda. They write:

The Federal RFRA, however, arose in a political context very different from the current one. The Federal RFRA responded directly to the U.S. Supreme Court’s decision in Employment Division v. Smith (1990), which many people perceived as a significant setback in constitutional protection for the religious liberty of vulnerable minority faith groups. The coalition that supported RFRA included Democrats and Republicans, people of all faiths, and groups that cared generally about civil liberties.”

So what these law professors—who might purport to neutrally explain the law and not promote partisan views—openly admit is that they only care about certain religious rights. Moreover, they imply that the people who supported RFRA in 1993 cared about “civil liberties” while those who support it now don’t. The truth is that some of those who supported it then still support it now. Shameful. These professors might as well just admit they are elevating their political preferences over the equal application of a neutral law. In addition, their position purporting high-minded concern that H.B. 29 might “invite” discrimination is contrary to a proper understanding of First Amendment law and its strict scrutiny standard (which RFRA codifies). The Supreme Court has consistently held that First Amendment rights are to be elevated over nondiscrimination principles—in Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston (pertaining to free speech) and in Boy Scouts of America v. Dale (pertaining to freedom of association).

Indeed, the text of H.B. 29 itself reveals an open-mindedness and neutrality which is at opposition to such political posturing, and at odds with the narrow-minded, politically-charged misrepresentations being thrown around on the internet by Better Georgia. Before unquestioningly getting on the bandwagon, everyone needs to take a deep breath and look at what actually is going on.

The alleged “incidents” highlighted by these scaremongers at Better Georgia are exactly that—scaremongering. The case of the toddler in Canada who died after severe application of Seventh-day Adventist dietary rules (aside from the issue that this is anything but a “pattern” of behavior) would not be an issue under H.B. 29 or any similar law—the government has the most compelling of interests in preventing deaths of children. The religious liberty claim would therefore flatly fail in that case. Rather than highlighting one scaremongering scenario which occurred in Canada, these purveyors of smear could focus on instances of suppression of religious practice closer to home. Georgians know better, as they recognize the threats illuminated by Fire Chief Kelvin Cochran’s termination due to his religious views.

Indeed, Chief Cochran’s recent firing clearly illustrates the threat to religious expression which is alive and well at home in Georgia. Despite the city’s assertion that Chief Cochran’s religion is not at issue in his termination (while his “discrimination” allegedly is), the city is trying to disconnect two areas—Chief Cochran’s religious beliefs, and human sexuality—which cannot be disconnected. The chief’s orthodox and faithful Christian views on sexuality are what inform his views of a variety of sexual conduct, including but not limited to homosexual conduct, which he believes (in concert with historic and orthodox Christian teaching) departs from God’s standard. The city is trying to ignore the fact that faithful Christianity directly informs views on sexuality. When the chief is punished for these views, he’s being punished for his religion. His case has everything to do with religion, and reveals the hostility to religion present in Atlanta.

Moreover, Better Georgia’s “example” of the Canadian child abuse scenario reveals a deeper issue—sloppy analysis and a lack of critical thinking. Better Georgia links to a story about a religious believer’s alleged child abuse, yet fails to point out that no religious claim was even brought in the case. Of course, the fact that this “example” took place in Canada with its entirely different legal system was lost on the group too. It’s almost as if Better Georgia has scoured the web for any information it can find which links bad things happening with religion. The group certainly has not come up with a legitimate example showing any serious danger of H.B. 29.

Even the group’s touting of an opinion piece by a Georgia district attorney misses the mark. The examples in that piece involve criminal prosecution for child abuse without any discussion of a successful religious defense. Child abuse and other cases involving bodily harm to human beings are prosecuted routinely nationwide every day. These take place in states with laws like H.B. 29. Yet how often have we heard about successful religious freedom defenses to such prosecutions? Why can’t Better Georgia or any of its opponents point to any?

The reason they cannot is that such defenses are not successful. Multiple courts in multiple states have held that preventing child abuse is a compelling government interest. Georgia courts have already held that the state has a compelling interest in the welfare of children. As noted above, under H.B. 29 and similar laws, the government can burden religious beliefs when it has a compelling government interest. In failing to discuss this point while asserting the dangers of H.B. 29, District Attorney Cooke has misrepresented the danger of the bill and needs to revisit his analysis.

Another “case” cited by H.B. 29 opponents is a situation involving parents beating their son to death. According to Better Georgia, these parents might be able to walk away from criminal charges because of H.B. 29. Not only is this an absolute distraction from the issue, but it is an insult to Georgians’ intelligence that they might consider H.B. 29 to legitimately offer a defense to such actions. Better Georgia claims “abusers will be able to hide behind religion in court.” Really? How would they do that under H.B. 29? This group, which is shamefully playing on Georgians’ fears based on cooked-up nonexistent situations, has not pointed to one legitimate explanation of how this scenario would be permitted under the strict scrutiny standard laid out above.

Indeed, Better Georgia does not even highlight any attempted legal defense using a religious freedom claim. The fear that there would be one appears nonexistent. Yet, sadly, this simplistic reduction of how religious freedom law works manipulates human passion and deliberately confuses in order to promote division and hatred of religious people—based entirely on misrepresentations. Better Georgia should be ashamed. Georgia does deserve better.

It’s unclear what Better Georgia is even specifically basing its claims on in these alleged “concerning scenarios.” Perhaps it is looking at language in Section 50-15A-3 to exclude the bill’s application to parental rights regarding “the care and custody of such parent’s minor children.” But any simple reading of this provision reveals that it is stating the area of parental rights as it currently exists is to be left unrestricted by the additional protections of H.B. 29. Therefore, the state will continue to be able to regulate parental rights as it currently does, and this bill does not alter that. Indeed, H.B. 29 notes that these parental rights issues are to be left unrestricted “as provided for under the laws of this state and of the United States.”

Yet the Better Georgia “advocacy” does not stop there. Alas, more fact checking is needed.

Claim:

Georgia House Bill 29 would provide a free pass for business owners who believe homosexuality is a sin to openly deny gay Americans employment or service.”

Veracity Level:

False. Neither H.B. 29 nor other similar laws applying strict scrutiny to claims of religious exercise give anyone a “free pass.” As pointed out above, the religious liberty claim has to go through multiple hurdles before receiving protection under the law. Moreover, the evidence of such “free passes” being permitted is simply nonexistent. A cursory evaluation of how other similar laws have been interpreted reveals no “free passes.” Indeed, it is notable that Better Georgia can’t even cite to one instance of a business owner “openly deny[ing]” such service!

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.

More fact-checking is needed.

Claim:

A restaurateur could deny service to an out-of-wedlock mother, a cop could refuse to intervene in a domestic dispute if his religion allows for husbands beating their wives, and a hotel chain could refuse to rent rooms to Jews, Hindus or Muslims.”

Veracity Level:

False. Indeed, the opposite is true. The protections in H.B. 29 are the very protections needed to ensure the exercise of all religions—whether Jews, Hindus, or Muslims—is protected. If the smear campaign had cared to accurately represent this point, it would have seen that only this month, the U.S. Supreme Court protected a Muslim inmate’s right to religious practice under the same strict scrutiny standard in RFRA’s cousin—the federal Religious Land Use and Institutionalized Persons Act.

Indeed, H.B. 29 and similar laws protect religious exercise regardless of religion. These laws do NOT discriminate, nor do they discriminate between religions, but protect individual religious claims under the framework explained above. Moreover, they protect religious exercise in a variety of situations—such as the Texas RFRA’s protection of those seeking to feed the homeless—which are not cited in this attempt to incite hatred against religion. Any simple reading of the law will reveal all this. But apparently Better Georgia did not even do that.

RFRA never was and should not become a partisan issue, as it protects those of all faiths and political persuasions. Thankfully, some liberal organizations are willing to more fairly represent it. Aside from what Better Georgia thinks, all Americans of political persuasions and religions who care about individual expression should be supporting H.B. 29. The bill’s text and our own judicial system’s well-grounded history of analyzing religious claims lend support to this conclusion. Meanwhile, Better Georgia’s conclusions have no support whatsoever.

The Supreme Court, prisoner rights, religious liberty, and human dignity

by Travis Weber

January 20, 2015

Today, in Holt v. Hobbs, the Supreme Court issued a unanimous opinion (authored by Justice Alito) holding that the Religious Land Use and Institutionalized Persons Act (“RLIUPA”) provided a Muslim inmate the right to exercise his religion by growing a ½ inch beard.

Like RFRA, RLIUPA applies strict scrutiny to prisoners’ religious rights claims, and provides that the government may not burden prisoners’ religious exercise (even through a law of general applicability) unless the government can show that the burden furthers a compelling government interest by the least restrictive means.

In this case, Gregory Holt, also known as Abdul Maalik Muhammad, wished to grow a ½ inch beard in accordance with his religious beliefs. Prison policy only permitted ¼ inch beards, however, and even then only for medical reasons. The Arkansas Department of Corrections (“DOC”) did not dispute the sincerity of Holt’s belief, or that its regulation burdened this belief.

However, the DOC argued that it had a compelling interest in its policy in order to prevent contraband in the prison, and that it advanced this interest through the least restrictive means.

While the Court agreed that correctional facilities have a compelling interest in eliminating contraband, it disagreed that the DOC’s policy here advanced that interest, noting that not much could be hidden in a ½ inch beard. Additionally, the Court observed that if a ½ inch beard could hide contraband, a prisoner could also hide contraband in his hair (which could be longer than ½ inch). Indeed, contraband could be hidden in longer hair (or in clothing) much more easily. Yet the DOC did not require prisoners to go around with shaved heads or without clothing. The DOC contended that the ½ inch beard requested by Mr. Holt is longer than the ¼ inch beard permitted for medical reasons, but the DOC has failed to show how this ¼ difference would cause a security risk. In addition, the DOC argued that few inmates request medical exemptions, while many would request religious exemptions. But the Court rejected this reasoning because the DOC had not argued that its refusal to allow religious exemptions was based on cost control or for administrative reasons.

While Justice Alito recognized that deference is due to prison officials’ policy decisions because of the unique and dangerous environment in which they operate, he also noted that such officials still must be held to RLUIPA’s statutory requirements. They did not meet those requirements in this case.

Moreover, as the Court noted, even if the DOC could show this compelling interest was advanced by its policy, it was not advancing it via the least restrictive means. For instance, its security concerns could be satisfied by searching Mr. Holt’s beard rather than making him cut it. The DOC already searches all prisoners’ hair and clothing; why couldn’t it search a beard just the same? The DOC argued that guards could be cut by razors while searching a beard, but they could also be cut during searches of hair and clothing. Even assuming that searching a beard is unsafe for guards, the DOC never showed why it could not have Holt run a comb through his beard to search for contraband.

The DOC also argued it could restrict beards because it had a compelling interest in preventing prisoners from disguising their identities, and escaping or avoiding capture. While the Court did not disagree that the DOC has an interest in quickly and efficiently identifying prisoners, the DOC had not shown why it could not take photos of prisoners so they could be identified with and without beards. The DOC also argued that while this method may work with escaped prisoners, photos would be unhelpful in preventing prisoners from quickly shaving and entering restricted areas in prison. Yet the Court was unpersuaded by the DOC’s arguments; in its view, the DOC failed to explain why the photo method would not work when it had worked at other prisons, and failed to show how a prisoner with a ¼ inch beard for medical reasons could not also pose the same security risk as that purportedly posed by Mr. Holt.

The Court observed that while deference to prison officials is justified, blind deference is not. While the DOC is not required to show in every respect why it has not adopted the procedures of other prison systems, its rejection of them without a good reason is persuasive evidence of its failure to meet RLUIPA. The Court made sure to point out that this does not put prisons in an impossible position; they still have reason to restrict religious practices when they are being used to cloak prohibited conduct or abused in a manner which undermines the prison’s compelling interests.

While the Court was unanimous, Justice Ginsburg took the opportunity to write a one-paragraph concurring opinion (which Justice Sotomayor joined) stating she joined the Court’s opinion with the “understanding” that “[u]nlike the exemption this Court approved in Burwell v. Hobby Lobby, … accommodating petitioner’s religious belief in this case would not detrimentally affect others who do not share petitioner’s belief.” This statement likely refers to Justice Ginsburg’s belief that the successful RFRA claim in Hobby Lobby “harmed” women seeking contraceptives, while Mr. Holt’s claim does not. I disagree with Justice Ginsburg on this point, but I’ll reserve that discussion for another time.

Showing some sympathy to prison officials, Justice Sotomayor also wrote a concurring opinion in which she emphasized her understanding that the Court was not repudiating the idea that prison officials’ justifications should be offered some deference; rather, the Court was rightly skeptical of the justifications offered in this case. Indeed, the DOC’s “failure to demonstrate why the less restrictive policies [Mr. Holt] identified in the course of the litigation were insufficient to achieve its compelling interests” was what was ultimately fatal to its case, not the Court’s “independent judgment” of these matters. In addition, “least restrictive means,” in Justice Sotomayor’s opinion, did not mean that government officials need to consider and reject every conceivable alternative to satisfy RLUIPA; rather, they must consider the alternatives posed. In this case, the DOC failed to do that.

The Supreme Court ruled correctly in holding that Mr. Holt’s right to religious exercise under RLUIPA was violated because the DOC could not show it was advancing a compelling government interest, or that it was doing so through the least restrictive means.  RLUIPA clearly sets forth the hurdles the government has to overcome when burdening a prisoner’s religious beliefs, and the DOC failed to meet them here.

But this case is significant for another reason: It affirms our belief that religious liberty is intricately connected to and flows from our inherent human dignity. It cannot be taken away from us, even if we are imprisoned. While prisons have legitimate interests of their own, incarceration does not eliminate the fundamental human right of freedom of religion.

This case is a win for Mr. Holt. But the next time an inmate (perhaps with different beliefs) is facing some other burdensome regulation, he’ll be able to draw support from Mr. Holt’s precedent. In this way, a bulwark of religious liberty protections continues to be built, one component at a time. As it is said, a win for religious liberty for one is a win for religious liberty for all. 

At the Supreme Court: A Small Church and a Big Case

by Travis Weber

January 13, 2015

On January 12th, I attended Supreme Court oral arguments in a case—Reed v. Town of Gilbert—which will determine how easily the government can restrict signs giving directions to church services. Specifically, the Court is set to decide whether, under free speech protections of the First Amendment, a local government’s mere assertion that its sign code (despite on its face discriminating based on content) lacks a discriminatory motive renders the sign code content-neutral and justifies the code’s differential treatment of signs pointing the way to a church’s meeting location.

In this case, the Town of Gilbert had divided signs up based on whether they were ideological, political, or directional—and imposed different restrictions on each category of sign. Good News Community Church in Gilbert, Arizona, and its pastor, Clyde Reed, sued, claiming that signs pointing the way to their Sunday morning service (which contained religious speech and directions, and thus resulted in them being placed in the directional sign category) were treated less fairly and that this unfair treatment violated the First Amendment.

At oral arguments yesterday, both sides received their fair share of questions, but the justices were noticeably more skeptical of the town’s argument—especially its claim that it could severely restrict a sign containing ideological content announcing an event if the sign also included directions to that event, while at the same time easing restrictions on a sign containing the same exact ideological content and yet lacking directions.

The town attempted to defend itself by arguing it had an interest in preventing roadside clutter arising from numerable directional signs. But then it admitted it was granting preference to ideological and political signs because of the special First Amendment protection offered them, which prompted questions from the justices asking how the town was not impermissibly discriminating based on the content of the signs.

A breakthrough moment occurred when the town’s counsel admitted under questioning by Justice Breyer that the town could put up a sign saying: “Come to the next service next Tuesday, 4th and H Streets,” but could not add “three blocks right and two blocks left” to that same sign because that would make it a directional sign. Justice Breyer’s response: “Well, my goodness. I mean—I mean, on that, it does sound as if the town is being a little unreasonable, doesn’t it?”, pretty well captured the justices’ view of the case.

The justices will now consider the legal issues and issue a written opinion deciding the case sometime before the end of June 2015.

While seeming more innocuous than some of the other high profile social issues which have reached the court over the last year or so, this case matters (significantly) to free speech law. It therefore matters a lot to Americans of all opinions and interests who want to take part in public debates and discussions over numerable issues in our country. Even if it doesn’t matter to them personally, it should—for it affects their legal rights under the First Amendment.

This issue is also incredibly important to the ability of churches to communicate when and where they meet, and will thus heavily impact their flourishing and wellbeing. Our local churches serve as nerve centers for communities of faith across America, and must be supported and allowed to prosper. For all these reasons, Family Research Council filed an amicus brief with the Supreme Court last September asking it to rule in favor of Pastor Reed and Good News Community Church in this case.

As we argued in our brief, and as the church’s attorney argued before the Court yesterday, the Supreme Court should rule in favor of the plaintiffs and strike down the town’s ordinance here as unconstitutional. Such a ruling would not only protect the First Amendment rights of Pastor Reed and Good News Community Church, but those of any person or group our government wants to marginalize and silence in the public debate.

Family Research Council’s amicus brief in Reed v. Town of Gilbert is available here: http://downloads.frc.org/EF/EF14I59.pdf

Archives