Category archives: Government

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.

Auschwitz Liberated 1.27.45

by Robert Morrison

January 27, 2015

The 2001 BBC film Conspiracy can be viewed on YouTube. The film opens servants preparing a great feast in an elegant mansion. Next, we see a snowy scene, looking down upon a forested lakeside villa The date of this gathering is January 20, 1942.

Black cars roll up to the front door of an elegant mansion. Out of those cars step dignified middle-aged European men who appear to be bankers or diplomats. They look sober and occupied in thought in their heavy topcoats and snap-brim fedoras.

Inside, the kitchens, halls, and conference room are being prepared. Tapestries and fine paintings line the walls, richly woven Oriental rugs are rolled out for the distinguished guests.

Liveried servants put out cut flowers—a festive touch for the dead of winter. At first, this film would appear to yet another episode of the popular PBS series Downton Abbey, with maids and butlers and footmen polishing the silver, placing name cards at each seat of the conference table. The best of salmon, meats and cheeses, caviar, wines and liqueurs are provided for the conferees.

A small plane circles above, preparing to land on the lake. On its wings we see Swastikas. This will be no party at a grand English country home. No, this is Wansee, a fashionable district in Berlin. As yet, this section on the outskirts of Hitler’s capital has not suffered bomb damage from nightly air raids by the Royal Air Force.

They are soon followed by an assortment of men in uniform. All the Mercedes have swastika flags. Out of these vehicles steps an assortment of men in military uniforms. Most are trim and fit. These are the notorious SS, the elite Nazi force with the Death’s Head on their high-peaked caps. Others of the conferees are fat and swinish. These are the Nazi party hacks.

British actor Kenneth Branagh, one of that nation’s greatest dramatic stars, plays SS General Reinhard Heydrich. Branagh makes no attempt at a German accent. But within minutes, he is Heydrich.

Slick, blond, affecting a hail-fellow-well-met manner, he moves the meeting along with Teutonic efficiency. Soon, very soon, it becomes clear what these men mean by the “Final Solution to the Jewish Question in Europe.” They are there to plan mass murder of the Jews.

One of the participants, the tall and courtly civilian, Dr. Friedrich Wilhelm Kritzlinger, is the Deputy Chief of the Reich Chancellery. He alone is troubled enough by what he is hearing to get up from the table and walk into the hallway. He comes back into the meeting, pale and shaken.

That we have determined to systematically annihilate all the Jews of Europe—that possibility has been explicitly denied to me by the Führer,” he says, expecting that Hitler’s personal assurances will stop the trains on their way to Auschwitz.

Heydrich does not miss a beat. Smiling benevolently, he says: “And it will continue to be.
Holocaust denial is born in that Wanseekonferenz—the same room in which the mass murders are planned in chilling detail.

We will outfit Auschwitz with “shower rooms.” They victims will be herded into the gas chambers, told they are there for de-lousing. They will be gassed and their bodies burned at the rate of 2500/hour. Sixty thousand innocent men, women, and children will be killed every day at Auschwitz.

Heydrich thanks the Americans—whom it is noted—have just come into the war against Germany. He notes with ironic detachment that American techniques of mass production—the assembly line invented by Henry Ford—will be used to effect genocide.

At 60,000 a day, we will advance the human race in a space of time so short Charles Darwin would be astonished,” says the grinning Heydrich. At his elbow is the ever eager to please SS Lt. Col. Adolf Eichmann. This conference is Eichmann’s project. So will be the Final Solution.

Agreeing grimly is a familiar face. Playing the part of SS Chief, Gen. Heinrich Müller is Brendan Coyle, known now to millions as John Bates, Lord Grantham’s faithful valet in the Downton Abbey series.

As Müller, he unsmilingly repeats Heydrich’s evolutionary message: Charles Darwin would be astonished.

Is there any one of these conferees who doubts that Darwin’s description of all Nature as a struggle for “the survival of the fittest” applies as well to the Nazis’ war on the Jews?

Within months, Heydrich will be known as the Butcher of Prague in Nazi-occupied Czechoslovakia. In June, 1942, Heydrich was assassinated by Czech resistance fighters parachuted in by the British. In reprisal, the entire Czech village of Lidice will be wiped off the face if the earth, even pets.

That leaves Eichmann to carry out the mass murder of the Jews.

All of this ended long ago. Threescore and ten years ago. Surely, the world wants no more of this kind of thing. Surely, the Liberation of Auschwitz on this date in 1945 means that the entire world has pledged “Never Again.”

Today, President Obama is in Riyadh, Saudi Arabia. He joins Saudi rulers who allow no Jews to live in their country. They are in mourning for King Abdullah, who refused to let the U.S. question Madani al-Tayyib in 1998. Al-Tayyib was the finance chief of al Qaeda. He might have helped us unravel the 9/11 plot before it occurred. Abdullah refused the urgent request of then-Vice President Al Gore. Abdullah’s refusal is documented on p. 122 of the 9/11 Commission Report.

Did President Obama know of this refusal to help us when he bowed to King Abdullah in London in 2009? Does he know that the Saudis are funding Islamist extremist throughout the world with their petrodollars?

King Abdullah was only upholding a family tradition in his refusal to help us or to even recognize the possibility of a Jewish state in the Mideast. Abdullah’s father was Abdul Aziz, the founder of Saudi Arabia. Abdul Aziz fathered all the kings of Saudi Arabia until today.

When President Roosevelt met with King Abdul Aziz on February 14, 1945, just a few weeks after the Liberation of Auschwitz, he pleaded with the Arab ruler to agree to let desperate Jews settle in their ancient homeland in Palestine. Nothing doing, the king told the president. But, millions of Jews have been murdered by the Nazis in Poland and Germany, FDR told the king, appealing to his humanitarian instincts.

Then there should be plenty of room in Poland and Germany to settle the remainder of the Jews, the Saudi king told Roosevelt. So much for humanitarian.

From that date until this—seventy years later—the official position of Saudi Arabia and virtually every member of the Arab League is their own translation of the Nazis’ call:

Juden raus. Jews get out! U.S. policy in the Mideast might be more successful and more honorable if we recognized that basic fact.

Appeasement of Hitler did not stop the trains rolling into Auschwitz. Appeasement of Islamists—whether of the Saudi or Iranian stripe—will not stop war or genocide now.

The most admired man in the Muslim majority lands is Hassan Nasrallah. This leader of Hezbollah in Southern Lebanon is armed and paid by Iran. He wants Jews to gather in Israel. But only so it will save him the trouble of “hunting them down.”

Is it any wonder Mr. Obama’s Mideast policy is in shambles?

What We Owe Winston Churchill-Liberty Itself

by Robert Morrison

January 26, 2015

I’m indebted to my good friend Mark Tooley of the Institute on Religion and Democracy for this excellent reminder of the 50th Anniversary of Winston Churchill’s funeral.

Fifty years ago, a great State Funeral was held in London for Winston Churchill. Britain’s Prime Minister in World War II, Churchill was the man who through the 1930s had been a voice crying in the wilderness against the rise of the Nazis (Nozzies). Then, when appeasement failed to stop Hitler, Churchill arose to fight him. President Kennedy would say: “He martialed the English language and sent it into battle.”

Half a century ago, Winston Churchill was laid to rest in a solemn ceremony in St. Paul’s Cathedral.

The subject of Churchill’s faith—or lack thereof—has been discussed for almost as long as Winston himself has been discussed. And that’s a very long time. He first became famous escaping from a South African prison during the Boer War, just weeks before the year 1900 dawned. Young Churchill hated every minute as a POW and contrived to climb out of a bathroom window and escape. As some would say later, he leaped out of the “Loo” and onto the stage of history.

And what a performance. Winston Churchill’s life was the most documented human life ever lived. When I made that claim to some of our FRC interns several years ago, one of the brighter ones challenged me. What about Prince William? We have even seen his ultra-sound picture. Good point. But we don’t know what William thought about matters—from the age of seven. And we do know that about Winston Churchill.

He died at age 90, seventy years to the day after his famous father had died. His father was Chancellor of the Exchequer in the Conservative Party government of Lord Salisbury. Lord Randolph Churchill had married a stunningly beautiful and sensuous American heiress. (Fans of PBS’s Downton Abbey will be familiar with the plan: British noble, down at the heels financially marries wealthy American beauty and, surprisingly, actually falls in love with her.)

Lord Randolph died in his forties. He may have suffered from tuberculosis of the brain, or, as some have suggested, from syphilis. Winston always expected to die young. Perhaps that accounted for his incredible energy.

During World War II, as Prime Minister, he was famous—or notorious—for sending out memos with red stickers saying “Action this Day” on them. He wanted a full report—on one side of a piece of paper, before sundown. Winston himself always worked two shifts. He would sleep late, work in bed before noon. And then every afternoon take a nap of 1-2 hours. By this method, he could go well into the wee hours of the morning.

He had almost no consideration for his staff. No holidays. No vacations. No breaks at all. He would smile mischievously at 10 or 11 pm and say “I shall need two young ladies tonight.” He meant as typists. He wore them out and roared at them if they ever got something wrong, failed to double-space everything, or dared to ask him to repeat something.

Now, he was forever chewing on a fine Havana cigar and he had a speech impediment. He could not properly pronounce the letter “S.” That, and the fact that he drank alcohol from the moment he awoke in the morning until well after midnight sometimes made it hard to make out what he was saying as he paced back and forth, dictating. His drinking led some to conclude, incorrectly, that he was alcoholic. “I’ve taken more out of whiskey than whiskey has taken out of me,” he said.

Those who knew him best knew that his whiskey and water was very weak. And it was probably true that it fueled his lightning imagination. [Don’t try this at home. The Lord makes only one such in a century!]

Standing atop the Air Ministry in London during an especially heavy bombing raid, Winston looked out on the city in flames. Suddenly and somewhat surprisingly, he turned to his young secretary and asked: “You’re not afraid, are you, Miss Holmes?” No sir, the intrepid young woman answered, “I could never be afraid with you, Sir.”

He had that effect on millions of people. His courage was contagious. After the war, a Polish survivor of the concentration camps said: “We didn’t have bread, but we had Churchill.”

That comment hurts me as an American. I want oppressed people around the world to say that of my President. When Ronald Reagan told the National Association of Evangelicals in 1983 they should not turn a blind eye to the “machinations of an evil empire,” those words rang around the world. Reagan never said the Soviet Union is an evil empire. He let the Communists howl in indignation. He let them scream in protest: “Reagan calls USSR ‘Evil Empire.” He hadn’t. But just like the demons, they knew who he was talking about. And they headlined it in Pravda and Izvestia. That’s how Natan Sharansky and other Jews and Christians in the Gulag found out what Reagan had said. Finally, an American president who gets it!

Churchill always got it. He denounced the Nozzie butchers from the first days. After barking at one of his subordinates, and hurting the young man’s feelings, he felt bad. He actually apologized and said: “I’m only fierce toward one.” It was Hitler.

Why do we keep bringing up leaders like Churchill and Reagan? Because they got it. They understood that regimes that started off persecuting Jews would soon come for the British and the Americans. They gave no encouragement to the appeasers of their day.

When I was young, we learned a song in school: Hail Columbia, the Gem of the Ocean. One of the lines in it is: “Thy banners make tyranny tremble.” Do our banners make tyranny tremble today? Or do they make tyranny comfortable?

President Obama heads the most anti-Israel administration in U.S. history. He has virtually ignored the deaths of tens of thousands of Christians while he bows to cruel Muslim rulers.

He is the leading protector of Iran’s Mullahs in the world. Shocking, but true. He shields Iran’s Mullahs from sanctions, even from the threat of sanctions.

Does anyone believe he would use military force to stop the Number One state-sponsor of terrorism from obtaining a nuclear weapon? He won’t even threaten to use economic sanctions. And he has long since given up any diplomatic sanctions.

Churchill’s weak predecessor, Prime Minister Neville Chamberlain, appeased Hitler only once—disastrously—at Munich. President Obama has appeased the Iranians every day for six years. All of this gravely threatens the cause of liberty throughout the world.

So, today, I thank God for the life and legacy of Winston Churchill. When, at the end of his life, his daughter tried to cheer him up as the weight of age and infirmity quenched his indomitable fire, she said to him: “I owe you what every British man and woman owes you: Liberty itself.”

Millions in Eastern Europe could say that today about the leadership of Ronald Reagan. Who will say that about today’s U.S. leadership? 

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. 

C.S. Lewis on Mere Liberty and the Evils of Statism

by Rob Schwarzwalder

January 19, 2015

David Theroux, founder and president of The Independent Institute and the C.S. Lewis Society of California, recently gave a very thoughtful lecture titled C.S. Lewis on Mere Liberty and the Evils of Statism.” David’s perceptive analysis of Lewis’s critique of “government as God” is well worth viewing.  The Left continually tells us it knows what’s best and “cares” for us.  Lewis’s riposte to this pretentious excuse for metastasizing state power is compelling: “Of all tyrannies a tyranny sincerely exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.”  Take some time to watch David Theroux exposit this key insight and be reminded once again of the wisdom not only of C.S. Lewis but of America’s Founders: We have a limited government precisely because “absolute power corrupts absolutely.”

City of Atlanta: No orthodox Christians need apply

by Travis Weber

January 8, 2015

At a press conference held on Tuesday this week, Atlanta Mayor Kasim Reed fired Atlanta Fire Rescue Department Chief Kelvin Cochran. How did we get here?

One year ago, Chief Cochran wrote a book discussing orthodox Christianity, including a mention of how God views homosexual practice. The book had been around for a year, with no problems. Yet when one of Atlanta’s secret thought police secretly uncovered the not-so-secret book, a hullabaloo erupted. All the usual suspects contributed to a hearty round of hand-wringing and head-shaking.

Mayor Reed was “deeply disturbed” and indignantly proclaimed he would not tolerate such discrimination within his administration.

Unless that discrimination is against Christians, of course.

Perhaps the mayor should take up his feeling of being “deeply disturbed” with God. Chief Cochran was only quoting the Bible. He didn’t come up with the ideas he expressed.

The mayor’s office then opened an investigation because “there are a number of passages” in Chief Cochran’s book “that directly conflict with the city’s nondiscrimination policies.”

Well, who knew? The views one expresses in one’s own writings have to now conform to official city policies.

If this wasn’t bad enough, let’s turn to the chief’s firing. In a press conference held yesterday, the mayor claimed:

Chief Cochran’s “actions and decision-making undermine his ability to effectively manage a large, diverse workforce. Every single employee under the Fire Chief’s command deserves the certainty that he or she is a valued member of the team and that fairness and respect guide employment decisions. His actions and his statements during the investigation and his suspension have eroded my confidence in his ability to convey that message.”

I want to make my position and the city of Atlanta’s position crystal clear,” Reed continued. “The city’s nondiscrimination policy … really unequivocally states that we will not discriminate.” Thus, according the mayor, any individual who violates that policy or “creates an environment where that is a concern” will notcontinue his or her employment withthe city government.

The only problem is: there is no evidence here of any discrimination whatsoever! There never has been.

In essence, the chief was fired by the mayor and his allies because (if they were honest) they “think he might discriminate against gay people.” Never mind there is zero evidence of any such discrimination. Simply put, no one can point to any adverse action Chief Cochran has ever taken against someone based on their homosexuality! If they could, we certainly would have heard about it, given the frenzied fears of “potential” future discrimination and a “possible” hostile work environment. But because that’s all the mayor and his allies have to go on, all we’ve heard about is the “possibility” of future discrimination.

This is a clear case of someone being eliminated from their position because of their views alone. This is even worse than other recent cases of disapproval of orthodox Christian views among public figures in the United States. Without exaggeration, we can say we have just seen the government monitoring personal expression for approval or disapproval, backed up by power of law.

But if he’s going to bury Chief Cochran, Mayor Reed needs all the ammunition he can get. So he scrambles, and tacks on another “justification”: “Chief Cochran also failed to notify me, as Mayor and Chief Executive of the City of Atlanta and his employer, of his plans to publish the book and its inflammatory content. This demonstrates an irreconcilable lapse in judgment.”

Never mind that Chief Cochran plausibly describes how he not only notified the mayor of his plans to publish the book, but provided him in January 2014 with a pre-publication copy for his review, which the mayor told him he planned on reading during an upcoming trip.

Reed didn’t even stop there. He claimed Chief Cochran published his book in violation of standards of conduct which require approval from the Ethics Officer and the Board of Ethics.

Never mind that, as Cochran reports, not only did the director of Atlanta’s ethics office give him permission to write the book, but he was also given permission to mention in his biography that he was the city’s fire chief.

Well, which is it, Mayor Reed? The “nondiscrimination” issue. Or the ethics issue? On the latter, the chief and mayor offer contradicting testimony. On the former, the mayor doesn’t even offer any evidence whatsoever!

These developments are likely to cause widespread consternation among Christians, but they should alarm anyone concerned about freedom of expression in general.

At the press conference, the mayor was in vehement and repeated denial that Chief Cochran was fired for his religious beliefs. The mayor would have us believe that “[t]his is about judg[]ment” and “not about religious freedom” or “free speech.” According to the mayor, “[j]udg[]ment is the basis of the problem.” But Mayor Reed knows he is wrong, which is why he is so defensive about there being no “religious persecution”—he clearly knows it is taking place.

In addition, the mayor was accompanied by his cabinet and Alex Wan (the city’s lone gay council member) at the press conference. If the issue is about ethics, why have the lone gay council member flanking you as you make the announcement? For that matter, why not have an ethics officer?

Indeed, the issue is about orthodox Christian views. And if it’s about “judgment” on the expression of such views, we are in a brave new world.

Chief Cochran must vigorously stand for his rights. All who care about the right to free expression without government intrusion and interference should stand with him, even if they disagree with him in this case. For when the law fails to protect one, it soon fails to protect all.

As we are reminded by Martin Niemöller, a German pastor who was an outspoken opponent of Hitler and ultimately was confined to a concentration camp:

First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.
Then they came for the Trade Unionists, and I did not speak out—

Because I was not a Trade Unionist.
Then they came for the Jews, and I did not speak out—

Because I was not a Jew.
Then they came for me—and there was no one left to speak for me.

NOTE: Stand with Chief Cochran by signing our petition supporting him at http://frc.org/fired

An Active President: Obama on the March As the GOP Preps to Run Congress

by Rob Schwarzwalder

December 18, 2014

Since last month’s election, the President has been a busy fellow. He’s traveled to China, heralded what he called a “turning point” in American military affairs, “signed a Presidential Memorandum that prohibits future oil and gas drilling in Alaska’s Bristol Bay” and land areas near it and announced a new director for the White House Council for Strong Cities, Strong Communities, to boot.

FRC takes no formal position on these issues, or on those that follow (with one exception). Rather, they are listed to make the point that Mr. Obama is not going suddenly to become an inactive Chief Executive. He has an agenda the bulk of which is opposed by conservatives. Regardless, if conservatives think he will simply fold his hands and let the new Republican majorities in House and Senate do as they will, they kid themselves.

Following is a rundown of other significant post-November 4, 2014 actions by Mr. Obama; the last, on international religious liberty, is not explicitly presidential but relates to a key presidential appointment at the Department of State.

Environment: In addition to his largely unnoticed decision regarding Bristol Bay, “Obama’s most recent move is committing the U.S. to a $3 billion contribution to an international fund that seeks to help developing countries address climate change, which he will announce this weekend. It’s the president’s second major climate action in a week, following Wednesday’s announcement of a bilateral climate agreement with China. Under the agreement, the U.S. will cut its greenhouse gas emissions by 26 to 28 percent by 2025, while China will begin reducing its own emissions by 2030.”

Cuba: Senator Marco Rubio (R-FL), the son of Cuban immigrants, gave an eloquent and impassioned critique of the President’s announcement on normalizing relations with Cuba last evening; read his Wall Street Journal op-ed on the Obama decision, as well. The Washington Post also made a potent argument in an op-ed titled, “Obama gives the Castro regime in Cuba an undeserved bailout” (yes, that Washington Post; even a stopped clock is right twice a day): “The Vietnam outcome is what the Castros are counting on: a flood of U.S. tourists and business investment that will allow the regime to maintain its totalitarian system indefinitely. Mr. Obama may claim that he has dismantled a 50-year-old failed policy; what he has really done is give a 50-year-old failed regime a new lease on life.”

Immigration: With respect to his Executive Order on immigration, my personal take is not on the content of the orders but instead their basis in the U.S. Constitution: “Mr. Obama hasn’t gotten what he wants, so he is acting like a monarch unconstrained by legality. This is not constitutional, republican governance. It is something else altogether – something that should evoke in everyone who values his Constitution-based liberty apprehension about what might come next.”

Internet: “Net neutrality” demands a bit more explaining. Mr. Obama has asked “the Federal Communications Commission to regulate broadband Internet service as a public utility,” writes Michael Hendrix in National Review. “All Internet traffic would be treated equally, no matter the size or pace of demand. Net neutrality is a relatively young concept based on the much older notion of ‘common carriage,’ which required providers of basic infrastructure to offer common service to all.”

Yet as Nancy Scola notes in the Washington Post, At the center of the debate is a service known as IANA, or the Internet Assigned Numbers Authority. Operating almost entirely out of the public eye, IANA keeps tabs on the numerical directory that makes sure the global Internet runs smoothly.” And, Scola continues, though “Republicans in Congress managed to slip a provision into the massive $1.1 trillion spending bill passed by the Senate this (past) weekend that would prevent the Obama administration from giving up part of its oversight of how the Internet runs. Observers say, though, that there’s little chance that the GOP’s legislative language will actually slow the process at all.

Religious Liberty: FRC does take a position on international religious liberty: We’re absolutely, unequivocally for it. Earlier this month, the Senate confirmed Rabbi David Saperstein to be the State Department’s new U.S. Ambassador-at-Large for International Religious Freedom. In his comments at his Senate confirmation hearing in September, the Rabbi said, “Religious freedom faces daunting and alarming challenges worldwide,” Saperstein said at his confirmation hearing in September. “If confirmed, I will do everything within my abilities and influence to engage every sector of the State Department and the rest of the U.S. government to integrate religious freedom into our nation’s statecraft and foreign policies.”

Amen. Christians should be praying for the Rabbi and his team as they work to advance religious liberty around the world. It’s in the interest of our country, not to mention one of the great moral imperatives of our time.

This President means no less business today than he did on January 20, 2009. That means that conservatives will have to think carefully about how we advance our priorities on issues involving faith, family and freedom in the coming two years leading up to the next presidential election. We have to consider our larger strategy as well as issue-specific tactics and also decide what our priorities are and aren’t.

Conservative leaders and activists are, of course, doing this. Let’s hope they coalesce around what issues are of highest importance and then move forward both boldly and wisely, aware that President Obama is a shrewd and determined political foe.

It’s not enough to be right. We also have to be smart.

 

Schwarzwalder previously was chief-of-staff for two Members of Congress and was a presidential appointee in the George W. Bush Administration.

Suicide Prevention? Try the “BFPF!”

by Robert Morrison

December 18, 2014

I was puzzled. The Centers for Disease Control (CDC) in Atlanta had sent me an entire briefing book on suicide rates. The thick 3-ring binder had statistics on suicide for every demographic group—from Aleuts and Ashkenazi Jews to Zuni Indians. But the figure for Black Females was less than 1 per 100,000. Could this be? I called a desk officer at CDC to learn if there was some mistake. “No mistake,” I was assured as the staffer on the other end of the line smoothly told me “we call it the ‘BFPF—Black Female Protection Factor—they’re very religious.”

The U.S. Government knows this to be true. Or at least it used to know this in the Reagan years when I was tasked with studying “Suicide among Youth” for the federal education department.

If the government cannot promote religion, one would think that at least the government would not try to impede religion. (And isn’t that what even the Supreme Court has said?) 

Especially, it would seem, the government should not try to impede religion in its efforts to prevent suicide. 

But, no! The atheizers and the pink panzers of  political correctness have so cowed our military that we actually have senior officers who want to punish chaplains for the grave offense of including spiritual and secular resources in a program for the troops seeking to prevent suicide.

Does the Army want more suicide? You have to wonder when you see the infamous actions of Col. David Fivecoat at Fort Benning, Georgia. Here’s a news report from FRC’s communications department. This is a verified report on the disciplining of a military Chaplain: 

Capt. Joseph Lawhorn, U.S. Army Chaplain at Fort Benning, participated in a mandatory suicide awareness and prevention briefing in which he gave a presentation describing resources – both spiritual and secular – that were available for handling such grave mental health situations. He went further and discussed his personal struggles with depression, describing the spiritual and religious steps that helped him during those dark times in his life.

As a result of the chaplain’s discussion of his faith, he was called into his brigade commander’s office on Thanksgiving Day. There Col. David G. Fivecoat issued Chaplain Lawhorn a Letter of Concern that is to remain in his personnel file for the duration of his stay at Fort Benning. This type of letter can be devastating for career military personnel and would likely prohibit further professional advancement of Chaplain Lawhorn.

We can contrast this Fort Benning colonel’s despicable action with the brave stance of Coast Guard Rear Admiral Dean Lee. The admiral spoke at the National Day of Prayer recently on this very question of spiritual resources shared with young volunteers in our military who are in danger of suicide. Admiral Lee spoke truth to power. He showed undaunted courage in the face of a rising storm.

Admiral Lee doubtless knows the toll of suicide—and not just on the young victim’s family and fellow service members. Those of us who served in the Coast Guard—like many first responders—have on occasion been called upon to deal with the tragic results of a suicide.

I will never forget having to pick up the body of a “floater” who had been in the water for weeks. I was a young enlisted Coast Guardsman more than thirty years ago. I can still remember the sight, the smell, the feel, and the sounds of that bloated and crab-eaten corpse.

As vivid and unforgettable as that experience was, I am not scarred by it. That is because it was also in the Coast Guard and in that same year that I came to faith in Jesus Christ. I thank God every day for that.

I hope those of you reading this column will sign FRC’s urgent petition calling for a reversal of this cruel and unjust discipline of a brave Army Chaplain. Be a lifesaver! 

DC Council votes in support of forcing abortion coverage

by Travis Weber

December 18, 2014

Yesterday, the DC Council passed a bill called the “Reproductive Health Non-Discrimination Act of 2014,” which could force employers in the District of Columbia (including the Family Research Council) to cover abortions.

The actual language of the bill would prevent employers from “discriminat[ing] against” an individual with respect to the “compensation, terms, conditions, or privileges of employment” because of an individual’s “reproductive health decisions.” The definition of “reproductive health decisions” includes but is not limited to “a decision by an employee … related to the use or intended use of … contraception or fertility control or the planned or intended initiation or termination of a pregnancy.” In plain terms, no employer would be able to say they don’t want to cover an abortion.

There is no exemption in the bill for any employer who might object to such coverage. This would have drastic consequences for a number of employers and organizations in the District who not only might object to such coverage on conscience grounds, but whose actual purpose for existing is to stop abortion because they believe it is a moral evil. This is the essence of a Freedom of Association violation – disrupting the very purpose of autonomous, private groups through legislative bulldozing tactics, thus rendering the groups’ existence meaningless.

Aside from this injustice, there are a number of legal problems with the bill. As pointed out by Alliance Defending Freedom, the bill would violate the Religious Freedom Restoration Act, the Weldon Amendment, and the First Amendment protections of Free Speech, Free Exercise, and Freedom of Association.

Even the mayor’s office recognized the legal problems with the bill. Yet, more interested in ramming its policies down every District employer’s throat, the DC Council went ahead and passed the bill in defiance of the mayor’s concerns. One of the mayor’s concerns was a potential Equal Protection violation because the bill only addressed protections for women. In response, the Council reportedly added protections for men as well. That the Council would make this correction, and leave other groups who expressed religious and associational concerns hanging out to dry, only confirms the devious nature of the DC Council.

If following one’s conscience is to retain any meaning at all for those living and working in the District, the mayor absolutely must veto this bill!

Archives