Category archives: Conscience protection

5th Circuit Rejects Effort to Take Down Conscience Protections

by Travis Weber

June 22, 2017

Today, in a unanimous opinion, the U.S. Court of Appeals for the Fifth Circuit rejected an activist effort to take down HB 1523, Mississippi’s conscience protection law. HB 1523 provides exemptions for those who conscientiously object to being forced to facilitate same-sex marriages and other matters related to human sexuality, and allows them to opt out of the process while providing for other government workers or entities to step in and fill the gap.

Despite the fact that it is nothing more than a reasonable accommodation paradigm, the law was violently attacked with allegations that it was standing in the way of LGBT people, and a lawsuit was launched on the theory that it “established” a religion in violation of the First Amendment and violated the Equal Protection Clause of the Fourteenth Amendment.

But in order to sue—under a doctrine known as “standing”—a plaintiff needs an injury, and all that was alleged in this case was that the plaintiffs were “stigmatized” and felt bad because of the law. Courts have been facing this type of tenuous, emotionally-based allegation of injury more and more in recent years, and they only bog down the judicial system with claims that were never meant to be brought in the first place. In addition, when such claims are allowed to proceed, and a law is struck down, the effect is that one more area of our democratic process is chiseled off and placed into the hands of activists who would happily destroy the process if that meant they could achieve their aims.

It is thus nice to see the Fifth Circuit properly scrutinize standing in this case, and hold that the plaintiffs here have no actual injury on which any lawsuit could be based. To bring suit, a plaintiff needs a “concrete” and “particularized” injury, and even in Establishment Clause religious display cases where standing rules are more liberal, a plaintiff still needs to have a “personal confrontation” with any allegedly offensive display. Yet as the court pointed out, “[j]ust as an individual cannot ‘personally confront’ a warehoused monument, he cannot confront statutory text.”

The Court also rejected the idea that “offense at the message Section 2 [of HB 1523]” could convey standing, noting that any “purported stigmatic injury” is insufficient. Likewise, there is no standing for any equal protection claim because “exposure to a discriminatory message, without a corresponding denial of equal treatment, is insufficient to plead injury in an equal protection case.”

All too often, activists without a mandate to achieve change through the democratic means set forth by our constitutional order will try to find some court through which to push their grievances against a law or policy. However, as is the case here, such “injuries” often constitute nothing more than general disagreement with the law and are subjective, lacking any actual harm. The unfortunate effect is that these activists’ methods chip away at and weaken our entire judicial system.

It is thus heartening to see this ruling, which not only leaves in place HB 1523’s religious exemptions which are quite necessary in a post-Obergefell world, but also strengthens the constitutional order by holding in check those who try to wield power through the courts simply because they can’t achieve their goals through democratic means.

Action #13 - Take Down the Title IX Waiver List

by Family Research Council

January 6, 2017

We are highlighting the top 20 ways that the Trump administration can address values issues in the first 100 days through administrative and agency actions in order to repair some of the damage that the Obama administration has inflicted on the dignity of life, natural marriage, and religious liberty.

Action #13 - Take Down the Title IX Waiver List

In accordance with the Obama administration’s hostility toward religion, and in response to requests from the Human Rights Campaign, the Department of Education issued a black list of religious institutions of higher education that requested waivers from Title IX requirements, as well as, in some cases, their applications and the Department’s responses. This list, linked from the Department of Education’s Office of Civil Rights “Religious Exemption” page, should not be subject to public search and should be taken down.

Action #11 - Rescind Hospital Requirements Regarding Treatment of People Identifying as Transgender

by Family Research Council

January 3, 2017

On June 16, 2016, the Centers for Medicare and Medicaid Services proposed a rule under the auspices of promoting innovation, flexibility, and improvement in patient care, but which is expected to require federally regulated health care entities to violate their conscience. The rule will force hospitals and other providers to implement policies to provide medical services related to gender identity or sexual orientation.

Action #10 - Restore Healthcare Conscience Protections

by Family Research Council

January 2, 2017

Among our first freedoms, enshrined in the First Amendment, is the right to freedom of religion and of conscience. The Obama administration has often undermined religious freedom by refusing to enforce conscience protections in existing federal law to address violations in California, New York, and other states. On June 21, 2016, HHS issued a letter which narrowly reinterpreted the Weldon Amendment to exclude instances in which, for instance, California churches are being forced by the state to cover elective abortion in their health care plans. On February 23, 2011, the Obama administration also issued regulations that repealed the Bush rules enforcing federal conscience protection laws. One way to address these conscience issues is by rescinding the 2016 HHS letter regarding the Weldon Amendment. Another action which could be taken is restoring President George Bush’s December 19, 2008 regulation, “Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law.”

Supreme Court Denies Hearing and Curtails Freedom in Stormans Case

by Travis Weber

June 30, 2016

Sadly, earlier this week, the Supreme Court declined to take up the case of Stormans v. Wiesman.

In declining to hear this case, the Court missed an opportunity to shore up individual freedom and rebuke baseless government harassment of religious believers.

The Stormans owned a pharmacy and did not want to dispense certain drugs that can kill embryos due to their moral and religious beliefs, yet are happy to refer potential customers to other pharmacies who could dispense them. The drugs are carried by more than 30 other pharmacies within five miles of the Stormans’ pharmacy. It seems like there’s a way in this case for conscience to be honored, and the customer to receive their drugs.

Unfortunately, Washington State had put in place regulations barring pharmacies from referring customers elsewhere for religious or moral reasons, despite permitting them to do so for a host of secular reasons.

These regulations were challenged as a violation of the Free Exercise Clause due to their targeting of religious beliefs. The Supreme Court had an opportunity to hear the case, yet unfortunately declined. Justice Alito (joined by Chief Justice Roberts and Justice Thomas) dissented from this denial of certiorari.

As Justice Alito observed in his dissent, “none of [the Stormans’] customers has ever been denied timely access to emergency contra­ceptives.” At the end of the day, the only reason for this law is to disparage the moral objections of those who think differently and force these unwilling pharmacists to play a part in the government’s imposed regime by steamrolling their individual freedom. And now, in permitting a lower court decision against the Stormans to stand, Justices Kennedy, Breyer, Sotomayor, Kagan, and Ginsburg apparently see no problem with letting the state of Washington squash religious freedom by barring referrals tied to religious reasons but permitting them for non-religious reasons.

Now, as Justice Alito put it, the price we must pay is the continued existence of “regulations [which] are improperly designed to stamp out religious objectors.” This price may be acceptable to some for now—at least until it is turned around and applied against them.

Harvard law professor: “Don’t Let Mississippi Establish Anti-Gay Religion”

by Travis Weber

June 17, 2016

That’s actually the title of a piece by Harvard law professor Noah Feldman on Bloomberg View yesterday.

Our ability to reason together as a pluralistic nation has been sorely compromised by unashamed advocacy pieces like this. Those who know better like Noah Feldman will one day hopefully come to regret compromising their accuracy to try to achieve their objective. Sadly, much damage will be done in the meantime.

The harm done by his reckless characterizations of Mississippi’s Protecting Freedom of Conscience from Government Discrimination Act (HB 1523) demands a response.

What has Mississippi done in HB 1523? It has exempted people with certain beliefs from being forced to violate their conscience should the government make them complicit in a same-sex marriage celebration. That doesn’t sound like any “establishment” of religion to me, and it isn’t—under any reasonably understanding of what the Establishment Clause was meant to accomplish. Moreover, it would protect anyone who holds those beliefs—Muslims, Jews, Christians, or others. Establishment Clause law is primarily concerned with making sure the government doesn’t coerce or force people into a belief system with which they don’t agree.

It’s ironic that this is the precise protection HB 1523 ensures people receive. It’s doubly ironic that Noah Feldman would instead have everyone comply with the government’s “religion” of same-sex marriage acceptance. If Mississippi was doing what Feldman claims it’s doing, why the need for HB 1523’s protections from the government? There wouldn’t be any need. If we are going to use his line of thinking about “establishment,” he should see HB 1523 is needed precisely because our government is increasingly moving toward an “establishment” of support for same-sex marriage.

If Noah Feldman and others making his arguments actually believe such exemptions are constitutionally problematic, I’d expect them to argue against laws providing exemptions in a variety of contexts. Notably, their opposition only seems to arise when Christianity seeks protection.

The title to his piece also contains a misrepresentation of Christian belief: that Christianity is merely “anti-gay.” Actually discovering the truth here requires some study of Christianity, however. Christian teaching on sexuality is comprehensive, and contains a number of precepts for human flourishing and well-being in accordance with God’s design. Same-sex conduct is only one of the parameters. There is no such thing as mere “anti-gay” Christianity. Yet the Christian view of sexuality is consistently mischaracterized by this framing—because advocates who use it aren’t seeking the truth, and they know this propaganda works on people who don’t bother to seek it either.

Claiming the mantle of objectivity and reason in order to further an agenda is not new. But it removes the building blocks on which our pluralistic society can exist. It is especially disheartening when done by those who know better and are entrusted to do otherwise.

Opponents of Freedom Reveal Their True Agenda: Intolerance

by Travis Weber

May 12, 2016

Before same-sex marriage was constitutionally enshrined, we heard about how it would not affect anyone’s religious freedom. It was just about access to the marriage license, we were told.

Anyone who thinks opponents of Christian morality are not interested in forcing everyone to conform to their views need only glance at a motion filed in federal court in Mississippi reacting to a law which provides, of all things, exemptions on conscience grounds.

In their motion, this group of opponents asks the court to make sure that anyone “recusing himself or herself under Section 3(8) of HB 1523” be forced to “desist from issuing any marriage licenses to any other couples, including opposite-sex couples.”

Why make this request if access is the only issue? No access to any licenses has been impeded. But we know it is not about that. These opponents are requesting clerks not issue any licenses because they just can’t stand the idea that someone would not agree with their same-sex marriage.

The opponents proceed to read into motives and offer blanket generalizations:

Thus, although the most recent efforts by the State of Mississippi to disregard the constitutional rights of LGBT Mississippians through HB 1523 may be somewhat more subtle than the “steel-hard, inflexible, undeviating official policy” of the past, see United States v. City of Jackson, Miss., 318 F.2d 1, 5 (5th Cir. 1963) (ordering end of racial segregation in bus and railway terminals), the underlying impulse is exactly the same.” (emphasis mine)

But calling all genuine Christians everywhere complete racists isn’t enough.

They also mischaracterize the law as “exhorting state residents to discriminate against their gay, lesbian and transgender neighbors in a wide variety of circumstances.” Where is this behavior “exhorted?”

They also want the state to be forced to “post all recusal notices to a prominent place” on a government website. Shaming, anyone?

The real motive is obvious. It’s to force those who now disagree to eventually agree. Nothing more (for now), and nothing less.

What’s Next in a Blurry Culture

by Rob Schwarzwalder

April 21, 2016

Ideas have consequences, Richard Weaver reminded us years ago. What someone believes will affect his behavior. What society endorses will consummate in certain results.

We are living in a time when blurry is the new normal. As Christian rocker Randy Stonehill wrote years ago:

    Right is wrong and wrong is right
    White is black and black is white
    I think I just lost my appetite
    Stop the world I wanna get off

Well, his last plea cannot be fulfilled (and where would we go if it could?), but his larger point—moral confusion is one of the gods of the age—is more valid by the day. Here are some scenarios that are wholly possible at a time when gender is seen as “fluid,” petulant insistencies are seen as “rights,” and petty (and often fabricated) emotional duress is seen as “micro-aggressive.”

Transgender use of restrooms and showers: A man, clothed in attire traditionally identified as masculine and short, crisply-parted hair, walks into a women’s locker room at a gym. The women there are upset and demand he leave. His response: “I am a transgendered man who prefers wearing men’s clothing and cutting my hair in a manner consistent with accepted norms for professional male hairstyles. But I identify as a woman and have every right to be here.”

Marriage: Three men and two women insist upon the right to marry. They argue that the definition of marriage as the union of only two people is arbitrary and culturally-based. They assert that their affection for and commitment to one another, and their free volitional choice to unite in matrimony, entitle them to legal marriage. They cite Supreme Court Justice Anthony Kennedy’s statement in his Obergefell opinion that “In forming a marital union, two people become something greater than once they were.” If two people become something greater than once they were, how much greater will five? Who is anyone to say that the five of them don’t mutually fill one another’s needs uniquely?

Legal accountability: “A Connecticut judge declined on (April 14) to dismiss a lawsuit brought against the maker of the assault-style rifle that a gunman used in the 2012 massacre at Sandy Hook Elementary School to fatally shoot 26 people before killing himself,” reported the New York Times earlier this month.

How about this: A woman is hit by a drunk driver and experiences physical trauma. She sues the manufacturer of the vehicle’s tires for enabling the guy behind the wheel to automate his car and, in his drunken state, hit her.

Hate speech and coercive silence: Is it hateful to quote a Bible verse, express a controversial opinion, or hold an unpopular view? Fascism was supposed to have been America’s enemy in the Second World War; is it now our accepted modus vivendi?

The University of California, Los Angeles Graduate Student Association approved a resolution Wednesday calling those who do not support a pro-Palestine agenda ‘Islamophobic’,” according to reporter Peter Fricke. This is but one example of hundreds, even thousands, of how the Left is seeking to compel uniform cultural allegiance to its agenda and the silencing of those who resist it.

Chai Feldblum, a Georgetown Law Center professor and an Obama appointee to the U.S. Equal Employment Opportunity Commission, makes it very clear that religious liberty is subordinate to the special privileges of people who identify as lesbian or gay:

For all my sympathy for the evangelical Christian couple who may wish to run a bed-and-breakfast from which they can exclude unmarried, straight couples and all gay couples, this is a point where I believe the “zero-sum” nature of the game inevitably comes into play. And, in making that decision in this zero-sum game, I am convinced society should come down on the side of protecting the liberty of LGBT people.

What’s next? How about these:

  • Teaching the eternal destruction of those who refuse to trust in Christ as their Savior and Lord is made illegal as it is “hateful.”
  • Telling one’s daughter she must dress as a girl is deemed “oppressive” and “genderist.”
  • Preventing people from eating certain foods because they are deemed inherently unhealthy, or in some way tracking the eating habits of ordinary citizens so as to restrict their intake of various kinds of foods.
  • The Supreme Court voiding all laws against full legal recognition of same-sex unions as marriages.

Oh, wait…

How hard is it to flip on a light switch on a Saturday?

by Travis Weber

May 9, 2014

That was the essence of the rhetorical question posed by attorney Noel Francisco, counsel for the D.C. Archdiocese, to the 3-judge panel hearing oral arguments yesterday at the U.S. Court of Appeals for the D.C. Circuit in the consolidated cases of Priests for Life v. Sebelius and Archdiocese of Washington, D.C. v. Sebelius. The plaintiff organizations in these cases object on religious grounds to being forced by law to provide coverage to certain contraceptives — contraceptives that would otherwise be required under the Affordable Care Act (ACA) and associated regulations. The organizations are challenging the government’s requirement that they “certify” they have objections to these contraceptives by signing a form, thus entitling them to an “accommodation” from the law’s scheme under which employers must ensure their insurers provide ACA-compliant coverage. The signed form then triggers government coverage of such contraceptives for the employees of the objecting organizations.

In the organizations’ view, however, this scheme forcing them to play a part in the provision of such contraceptives compels them by law to directly violate Catholic Church teaching by making them complicit in the moral wrong of abortion, and thus constitutes a “substantial burden” on their religious practice. This injury led them to bring claims under the Religious Freedom Restoration Act, under which the government can only “substantially burden a person’s exercise of religion” when its regulation “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

The substantial burden still exists even if all the organizations had to do was sign a form certifying they had such objections. It was not the act of picking up the pen and signing the paper that constituted a substantial burden, Mr. Francisco told the judges, but rather the crushing weight of conscience accompanying such an action which violated the very core of their being. It was not the relative ease or difficulty of a specific act which led to the burden, but rather the crushing moral and spiritual compulsion of knowing one is complicit in a moral wrong with the exercise of that one, small, physical act.

Enter Mr. Francisco’s question from my title here. Just like his clients, who feel compelled to violate beliefs going to the core of who they are even by the small act of signing a piece of paper, a Jewish business owner who believes his religion demands he rest on the Sabbath is compelled to violate his conscience when forced to work on Saturday by the small, bur significant, physical act of flipping on the light switch at his business. He is not substantially burdened merely by the physical act of flipping on the switch, but rather by the heavy weight of conscience telling him he is violating all he lives for once he accomplishes that one little flick of his finger.

Conscience, Convenience or Misguided Conviction?

by Sherry Crater

November 1, 2013

Commuting and working in Washington, D.C. affords many opportunities to engage in lively conversations with people who hold diverse opinions on controversial issues. With religious liberty currently being a hot topic, a recent discussion on First Amendment rights and religious expression turned into an instructive session for a group of adult men and women.

The conversation began with a recounting of the case of a New Mexico photographer who was fined $7000 for declining to photograph a same-sex “commitment” ceremony due to her deeply held religious beliefs. The discussion then turned to the provision in the Affordable Care Act (“Obamacare”) which mandates that businesses and organizations provide contraceptives, abortion inducing drugs and sterilization procedures in their insurance plans.

Against this backdrop, the question was posed, “If you are the only pharmacist in a community and you don’t believe in the use of contraceptives, do you have an obligation to distribute contraceptives to the community regardless of your personal beliefs?” The consensus of the group, with a couple of exceptions including me, was yes; the pharmacist should comply and distribute the contraceptives for the “common good” of the community. One gentleman asked why the individuals seeking contraceptives could not simply travel to the next town to purchase them. A young woman responded, “It isn’t fair that I should be inconvenienced in getting my contraceptives.“

Her response raises a couple of important thoughts. First, why should the pharmacist have to violate his or her conscience for the convenience of others who can easily obtain abortion- inducing drugs or contraceptives elsewhere? The purchaser probably would not have to go far to obtain them, as access to contraceptives is certainly not a problem. Birth control and emergency contraceptives are available at grocery stores, every major retailer like Wal-Mart and Target, or online. Why does the purchaser’s convenience trump the pharmacist’s conscience?

Second, the assumption was made that the pharmacist would just be willing to acquiesce to the law, discard his or her moral convictions and distribute the objectionable pharmaceuticals. This assumption underestimates the strength and sacred nature of religious or moral convictions. A person with deeply held religious beliefs may very well choose to find another profession or move to another community rather than violate their conscience about such high priority personal matters. In such a case, the attempt to force the pharmacist to dispense the contraceptives against his or her will ends with the pharmacist taking their business to another community, thus leaving the original community potentially without a pharmacist at all.

Many well-intentioned but misguided people could benefit by better understanding the ramifications of limiting the freedom of people to live out their religious beliefs. Perhaps what seems best for one individual’s notion of the “common good” might have unfortunate consequences for many other members of the community. Americans have recognized since our founding the fundamental right of all citizens to free expression of religion and exercise of conscience as inherent, unalienable rights granted to us by God and secured and protected by the Constitution.

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