Category archives: Religion & Culture

Not just Sunday, but every day

by Brittany Jones

August 20, 2015

George Washington once said, “Religion and morality are the essential pillars of civil society.” Benjamin Franklin, deemed one of our nation’s most irreligious Founders, opined that “only a virtuous people are capable of freedom. As nations become corrupt and vicious, they have more need of masters.”

Once upon a time, through tax-exemptions and other initiatives, our nation sought to encourage religious groups to contribute to society by teaching the populace to be moral and to care for those who are less fortunate. However, in recent days, even leaders of the “free” world are calling for the faith community to ensconce their beliefs behind the four walls of the church. No longer are religious beliefs seen as a necessary support for society, but rather as discriminatory ideas set against the “public interest.” No longer does our society understand that Christianity is not only what a person does on Sunday but also the way he or she lives throughout the entire week; not only in one’s private life but also in one’s public life. In an age of multiculturalism, Christianity is seen as culture-killing rather than life-giving, and thus, many are trying to suppress it.

Presidential candidate Hillary Clinton even said that in order to promote a social agenda in Africa, “deep-seated cultural codes, religious beliefs and structural biases have to be changed.” Her remarks reveal the fact that Christian culture is increasingly viewed as a hindrance to society and thus orthodoxy at its best can be tolerated and at its worst ought to be suppressed. This shift has led to calls for the end of tax-exemptions for religious institutions.

More pointedly, while writing the majority opinion for the recent Supreme Court decision Obergefell v. Hodges, Justice Kennedy stated:

Those who adhere to religious doctrines…may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”

This does little to bolster a religious person’s trust in the ability to actually practice his or her faith. Justice Kennedy may as well have said, “You can teach about your beliefs, but we aren’t guaranteeing anything.” Faith permeates our whole being and should form our identity. Thus, it cannot be left at the door. We do not hold our beliefs as reactions to the culture, but rather as immutable principles from God. They cannot be thrown away to fit the culture’s whim.

The marginalization of Christians is not a new problem. William Wilberforce grew up in the Enlightenment era in Britain in which the majority of people went to church. However, church attendance did not typically correlate with a devout faith. Dietrich Bonhoeffer lived in pre-World War II Germany where the Gospel had been largely removed from the church. Phyllis Schlafly began her career in the 1950s, a time when the merging of faith and politics was foreign. Yes, even in the ‘Leave it to Beaver’ era, faith and politics were separated.

When faced with this opposition we can choose to run or enter the fray and fight for truth. William Wilberforce considered leaving politics, but his good friend William Pitt the Younger responded, “If a Christian may act in the several relations of life, must he seclude himself from them all to become so? Surely the principles as well as the practice of Christianity are simple, and lead not to meditation only but to action.” Dietrich Bonhoeffer fled to America to escape the rise of the Nazis but soon realized he could not watch his countrymen suffer from safety. He ultimately returned to Germany and joined the resistance. In the 1970s, America was rocked by both the Watergate scandal and the sexual revolution, and seemed completely devoid of any moral understanding. In the midst of this climate Phyillis Schlafly rallied thousands of Christians across the country to defend women and fight the proposed “Equal Rights Amendment.” She, along with many others, helped return religion to politics. So what did these leaders do when everything seemed to be against them? They fought on to incorporate faith into the public consciousness, and as a result, they changed the world.

Wilberforce fought for the next twenty years, Bonhoeffer until the Nazis took his life, and Schlafly continues to this day. They did not cave to the pressure to sequester their beliefs in their homes and houses of worship, but rather allowed their beliefs to permeate all of their life, even as society and government worked against them. We face similar challenges today. We must not stay hidden in our churches or our homes. True belief simply will not allow it. True belief calls us to come and die daily, not just on Sunday.

Religious Liberty in Action: A Lesson from Early America

by Rob Schwarzwalder

August 6, 2015

This week marks the 411th anniversary of the birth of John Eliot. Not familiar to you? Eliot, an Englishman by birth, came to the colony of Massachusetts where, so burdened for the salvation of the regional Indians, he translated all 66 books of the Bible - after developing an Algonquian grammar, no less - into the language of the Native Americans around him. The Eliot translation was published at Harvard College.

Sharing the Gospel with those who had never heard it was of Supreme importance to Eliot. And the religious liberty he enjoyed enabled Eliot to pursue his deep desire to enable the Algonquian Indians to read the good news about Jesus Christ in their own tongue.

American religious liberty has been with us since the dawning of the country we have become. FRC’s Freedom to Believe site is a compilation of stories of men and women whose exercise of the God-given, constitutionally-guaranteed religious liberty we always have enjoyed has been placed at-risk. John Eliot would, I think have stood with them. FRC does. Join us. And look up the Eliot translation online to be reminded why this core liberty is so critical.

New Poll Finds High Support for Religious Liberty

by Travis Weber

August 5, 2015

A just-released poll shows very high support for religious freedom, especially in the context of that freedom being pitted against gay rights.

According to Caddell Associates, which conducted the poll, “[t]here is an overwhelming sense on the part of American voters that they want to find common ground in order to protect both the expression of religious freedom and the rights of gays and lesbians.  What is clearly being signaled is an aversion to having an all out cultural war between these competing interests.”

While poll respondents broadly supported protecting the rights of all, “when asked which was more important, by a four to one ratio, voters said protecting religious liberty (31%) over protecting gay and lesbian rights (8%).” Notably, over half of the respondents (53%) said both were important.

Support for religious freedom jumps even further in the context of wedding vendors. 83% said “yes” when asked whether a Christian wedding photographer with “deeply held religious beliefs opposing same sex marriage” as “the right to say no” to a same-sex couple asking him or her to photography their wedding. Amazingly, even “80% of Agnostic/Atheists said the photographer had the right to say no.”

The polling also found that a majority believe “that the military has no right to regulate the religious actions of military chaplains. “

According to a report by the Washington Examiner, the poll shows that “Americans reacting to the Supreme Court’s approval of same sex marriage desire a truce between religious freedom and gay rights.” However, “if pushed,” they “overwhelmingly side with protecting the liberty of their faith by a margin of 4 to 1.”

It is clear that a broad swath of Americans are demanding that individual rights must be on the table of protections as we move ahead in a world of legalized same-sex marriage.

Craig James Files Suit Against Fox Sports Southwest

by Travis Weber

August 4, 2015

Craig James filed suit this week against Fox Sports Southwest (and affiliated companies) for discriminating against him based on his religion when it fired him for earlier comments he made in support of natural marriage when campaigning for the U.S. Senate.

Soon after his firing, James acquired legal representation with our friends at Liberty Institute, and filed a complaint of religious discrimination that proceeded through a state law administrative process. That process is now complete, paving the way for him to file a legal complaint in state court.

If it is shown that James’ religious beliefs were a motivating factor in the decision to fire him, he has a successful case of religious discrimination. In his complaint, James alleges that Fox Sport specifically “informed [him] that they terminated him for his statement” in support of natural marriage: “I’m a guy that believes in a man and a woman … Adam and Eve — and what the Bible says.” James made several other statements at this time affirming his opposition to same-sex marriage, noting that people will have to answer to God, and that Christians need to stand up for marriage.

After firing him, Fox Sports Southwest told the media that James “couldn’t say those things here.” James also alleges that Fox Sports Southwest unlawfully breached its contract with him and has still not paid him for work he performed almost two years ago.

In the complaint, he also points out the ridiculous behavior of Fox Sports Southwest, which circulated an article stereotyping James, assuming he’s motivated by antipathy to gay people. But as James points out, his Christian faith, with its tenets of how God created human relationships, is the very thing which causes him to love all fellow mankind. He also points out that he employed an openly-gay chief political consultant — a fact seemingly missed by Fox Sports Southwest in its rush to caricature him. James has no anger towards gay people, but believes all people deserve love and respect regardless of their views. As he points out, he even has “personal friends, family members, and professional colleagues on both sides of marriage and family issues, some of whom are themselves gay, lesbian, and transgender.”

Fox Sports Southwest refuses to remove the blinders of political correctness and perceive the man for who he really is.

Let us hope that the courts are able to peer through this charade and see that Fox Sports Southwest discriminated against Craig James because of his religious beliefs.

ACLU Again Betrays its Support of Individual Freedom

by Travis Weber

July 21, 2015

The ACLU historically has not always opposed religious freedom. The organization did support RFRA in 1993, after all. It has long held itself out as a protector of individual rights, and has done that in a number of areas. However, it continues its now sad and all-too-familiar decline regarding First Amendment Free Exercise rights (and Establishment Clause jurisprudence).

The latest marker of this decline is the organization’s opposition to proposed federal protections (the First Amendment Defense Act or “FADA”) ensuring the government can’t discriminate against people because they believe marriage is between a man and a woman. Yes, the ACLU is opposing a law protecting individuals from the government — a law which protects both religious and nonreligious people in exercising their beliefs. How did we get here?

While I don’t know all the ins-and-outs of the organization’s internal decision-making, it appears simply to have prioritized sexual liberty (and the individuals rights protections it sees as advancing this liberty) over other rights, including First Amendment religious protections. This is the reason that, in the interval since 1993, the ACLU has developed its concerns about RFRA. Nothing must interfere with sexual liberty, religious or otherwise.

The problem (among others) with this approach is contained in a simple question: What are the limits of this sexual liberty? By holding up such a loosely contoured and ill-defined right above all others, the ACLU (and others with the same aim) ultimately cannot say what these rights to sexual liberty they are protecting will look like in the long term. While the ability to “define and express” one’s “identity” (as the Supreme Court explained in creating a right to same-sex marriage) looks like one thing today, what will it look like tomorrow?

I wish I could say otherwise, but the ACLU is playing with fire as it loses the moorings on which it is able to secure any protection of any constitutional rights. When any rights develop such a nebulous character, they threaten the foundations of other constitutional and civil rights — and ultimately the very foundations and systems supporting these rights. Some of the first casualties are RFRA and First Amendment Free Exercise rights. Now it appears FADA will be thrashed next. And it’s not the last; there will be others. The philosophical assumptions adopted by the ACLU demand further application.

This is why my heart isn’t lifted by the ACLU’s promises regarding FADA:

Despite the claims of some marriage equality opponents, the First Amendment already protects the rights of churches and clergy to decide which unions to solemnize within their faith traditions. Since the founding of our country, no church has been forced to marry any couple in violation of its religious doctrine and that will not change now that same-sex couples can marry. And, the ACLU would be the first to rise in defense of these religious institutions if government ever tried to do that.”

Perhaps so, for now. But such promises can’t be sustained over the long term. The methodology and philosophy adopted (to my dismay) by the ACLU demands it.

Proud to Be

by Joshua Denton

July 8, 2015

I am proud to be an American. I am proud of many things my country has done throughout the course of its history. I do not approve of all of our policies or decisions our leaders or governing bodies have made, but I still firmly believe that I am blessed to have been born in America.

Our founding is richly rooted in Christianity and principles of religious liberty. Yet even as I rejoice to be a citizen of this great nation, I lament that we are in a national identity crisis. All around us it seems people are wondering who we are supposed to be as a nation. What principles are important to us? What is freedom? What is equality? Who are we as individuals? What is our role in society? What is our country’s role in the world?

Abraham Lincoln wrote that the equality of men was the “central idea” of our Republic.  In our time, that idea has been redefined wrongly and diminished cruelly – same-sex “marriage” and abortion, respectively, speak to these errors.

Yet Christian Americans - citizens of our republic - find their identity in Christ and in the nature of the humanity God has given us.  We should carry a confident humility in what God has created us to be.

1)  Proud to be one blood

From one man he made all the nations, that they should inhabit the whole earth; and he marked out their appointed times in history and the boundaries of their lands. God did this so that they would seek him and perhaps reach out for him and find him, though he is not far from any one of us.  ‘For in him we live and move and have our being.’ As some of your own poets have said, ‘We are his offspring. – Acts 17:26-28

We all were created of equal by and for God. Every person has intrinsic worth.

Historically, there have been prejudices of race, class, and gender. But Christians know that every person, from conception onward, possesses God’s image and likeness, even if it has been marred by the curse of the fall.

2) Proud to be one community

                So in Christ Jesus you are all children of God through faith, for all of you who were baptized        into Christ have clothed yourselves with Christ. There is neither Jew nor Gentile, neither slave            nor free, nor is there male and female, for you are all one in Christ Jesus. – Gal. 3:26-28

Through faith in Christ Jesus all are the children of God. We are all sinners saved by grace and without Christ we would be nothing.

Paul addresses all the prejudices that we deal with today. Race. Class or status. Gender. He tells us that as believers in Christ we are all equals regardless of the distinctions that our society is so prevalent to box us all into. One race is no better than another. Rich is not better than poor. Man is not better than woman, neither is woman better than man. The church is one community – one family. Paul writes, As a prisoner for the Lord, then, I urge you to live a life worthy of the calling you have received. Be completely humble and gentle; be patient, bearing with one another in love. Make every effort to keep the unity of the Spirit through the bond of peace. There is one body and one Spirit, just as you were called to one hope when you were called; one Lord, one faith, one baptism; one God and Father of all, who is over all and through all and in all.– Eph. 4:1-6

This passage describes how the church should interact with each other and those who have not yet come to know Christ.

3)  Proud to be of one mission

Our purpose is to show forth the image of God so that His glory may be seen in us.

He told them, “This is what is written: The Messiah will suffer and rise from the dead on the third day, and repentance for the forgiveness of sins will be preached in his name to all nations, beginning at Jerusalem. You are witnesses of these things. I am going to send you what my Father has promised; but stay in the city until you have been clothed with power from on high.– Luke 24:46-49

This has come to be known as the Great Commission, and were some of Jesus’ last instructions to his disciples before his ascension. We are Christ’s image-bearers on earth.

 Therefore go and make disciples of all nations, baptizing them in the name of the Father and of the Son and of the Holy Spirit, and teaching them to obey everything I have commanded you. And surely I am with you always, to the very end of the age. – Matt. 28:19-20

I am grateful to be a Christian and because of Jesus Christ I share true equality of value with everyone – equal race, equal gender, equal mission, and equal status.

But by the grace of God I am what I am: and his grace which was bestowed upon me was not in vain; but I labored more abundantly than they all: yet not I, but the grace of God which was with me. – 1 Cor. 15:10

I am proud to be an American. But my faith in Christ transcends national loyalty and defines my very being. 

*This article was written using the author’s notes from a recent sermon delivered by Lead Pastor Deamon Scapin, of TriumphDC. Used with permission.

So Help them God!

by Robert Morrison

July 2, 2015

My wife and I attended “I” (for Induction) Day ceremony at the U.S. Naval Academy last night. We witnessed 1,139 of our best and brightest young people take the oath to defend the Constitution of the United States “against all enemies foreign and domestic.” We have seen plenty of evidence in recent days of just who those domestic enemies of the Constitution might be.

I was heartened to see those vital young people repeat the time-honored words: So help me God.

This was, of course, followed by the Academy’s song, Navy Blue & Gold and its most important military mission: BEAT ARMY!

For my wife, a retired commanding officer in the Navy, it is always a meaningful experience. She looks over the fresh-faced youth who are spending their first day in the Navy. “How young they look,” she remarks.

I survey the families of the incoming Midshipmen and reply: “How young their parents look!”

God bless and keep them all. And I thank them for their service.

Wise Thoughts on Christians Trying to Conform Jesus to the Culture

by Rob Schwarzwalder

July 2, 2015

From Tim Challies:

Many (Christians) … are redefining the terms of their friendship by redefining their friend. They are creating a new version of their friend Jesus, rewriting him in their own image, or in the image of the culture around them, making him into a figure who has been misunderstood and who is far more tolerant, far more accepting, far more palatable. This inoffensive Jesus loves without judgment, he gives without expectation, he proudly waves a rainbow flag.

But, of course, Jesus is unchanged and unchanging. He will not bow to the changing culture, he will not cede to the rising tide. Jesus will only ever be who he is and who he has always been. And each of us has a choice to make.

Laudato Si: Pope Francis Calls for a Deeper Love of God and Neighbor

by Christina Hadford

June 23, 2015

Pope Francis’ new encyclical Laudato Si is less controversial than people think. Although Francis heavily treads in an area previously only lightly touched by his predecessors he merely reiterates established Catholic doctrine. Moreover, Pope Francis’ fundamental message transcends climate change or political provocation: it laments the moral deterioration of man and societal institutions, and optimistically rallies for a purposeful revival of humility, selflessness, and love of God.

At the heart of his exhortation, Francis asks: “What kind of world do we want to leave for those who come after us, to children who are now growing up?”

In answering this question, Pope Francis addresses a number of environmental issues. But he does so in a context that all Christians share. God put Adam in Eden to till it and keep it (Genesis 2:15); He forbade man from polluting the earth (Numbers 35:33) or stripping it bear (Leviticus 19: 9-10). The Earth is a gift to man from God; it is a glimpse into God’s unfathomable glory and greatness. Any man that destroys the earth robs future generations of witnessing this piece of God’s glory.

Pope Francis seeks to reinvigorate these Biblical values in Christians everywhere. He does not condone the secular environmental movement that divorces human life from environmental improvement, nor does he support specific policies: “On many concrete questions, the Church has no reason to offer a definitive opinion; she knows that honest debate must be encouraged among experts, while respecting divergent views” (61).

Rather than prescribing policy to improve the ecological environment, Francis focuses on solutions to fix the human environment, the heart of the crisis:

Christian thought sees human beings as possessing a particular dignity above other creatures; it thus inculcates esteem for each person and respect for others. Our openness to others, each of whom is a “thou” capable of knowing, loving and entering into dialogue, remains the source of our nobility as human persons. A correct relationship with the created world demands that we not weaken this social dimension of openness to others, much less the transcendent dimension of our openness to the “Thou” of God. Our relationship with the environment can never be isolated from our relationship with others and with God. Otherwise, it would be nothing more than romantic individualism dressed up in ecological garb, locking us into a stifling immanence. (119)

Our environment is indeed in crisis. Mothers kill their own children, children are taught to choose their own gender, families are torn apart, and material wealth stands as the mark of success. Why, then, should we be surprised that man is indifferent to others’ needs? Mankind has been calloused to his neighbor’s suffering.

In Laudato Si, Pope Francis shows that there is a simple and expedient solution for our environmental crisis: the love of Jesus Christ. As St. Francis of Assisi said in the encyclical’s namesake, “Laudate e benedicete mi’ Signore et rengratiate,” “Praise and bless my Lord and give Him thanks and serve Him with great humility.”

Overview of Reed v. Town of Gilbert: Pastor Wins Supreme Court Case Against Local Government Trying to Restrict His Church Signs

by Travis Weber

June 18, 2015

In its opinion issued today in Reed v. Town of Gilbert, the Supreme Court handed a solid victory to Pastor Jack Reed and Good News Community Church, unanimously holding that the town’s regulation of signs to church meetings violated the Free Speech protections of the First Amendment.

A Gilbert, Arizona sign ordinance had discriminated against certain signs based on the content of the signs—whether they were political, ideological, and directional. Directional signs were placed under more severe restrictions than the other types.

Good News Community Church and its pastor, Clyde Reed, needed to announce the times and locations of their services, but because their announcement signs (which directed individuals to a public school where services were being held) were considered directional, the church was severely hampered in speaking its message. Pastor Reed and Good News Community Church filed suit after unsuccessfully seeking an accommodation from the town. The lower courts ruled against them, so they took their case to the Supreme Court. Family Research Council filed an amicus brief with the Court siding with Pastor Reed and his church to make the case for a robust interpretation of our First Amendment rights.

Writing for the Court, Justice Thomas held that Gilbert’s sign code engaged in content discrimination and thus had to meet strict scrutiny, which it failed to do.

Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed,” Justice Thomas wrote. If regulation is content based, it must meet strict scrutiny, meaning the government must have a compelling interest behind its regulation and the regulation must be done in the least restrictive way possible.

The Court noted that “[t]his commonsense meaning of the phrase “content based” requires a court to consider whether a regulation of speech “on its face” draws distinctions based on the message a speaker conveys… . Some facial distinctions based on a message are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose. Both are distinctions drawn based on the message a speaker conveys, and, therefore, are subject to strict scrutiny.”

In this case, “[t]he restrictions in the Sign Code that apply to any given sign thus depend entirely on the communicative content of the sign. If a sign informs its reader of the time and place a book club will discuss John Locke’s Two Treatises of Government, that sign will be treated differently from a sign expressing the view that one should vote for one of Locke’s followers in an upcoming election, and both signs will be treated differently from a sign expressing an ideological view rooted in Locke’s theory of government.”

Here, “the Church’s signs inviting people to attend its worship services are treated differently from signs conveying other types of ideas. On its face, the Sign Code is a content-based regulation of speech.”

In essence, Gilbert treated directional signs differently than others. It thus regulated signs based on their content. “We thus have no need to consider the government’s justifications or purposes for enacting the Code to determine whether it is subject to strict scrutiny.”

Justice Thomas continued by noting the Ninth Circuit’s reasoning to the contrary was unpersuasive. Content based regulation occurs if it is present on the face of the regulation, regardless of the government’s motive. “In other words, an innocuous justification cannot transform a facially content-based law into one that is content neutral,” and the Court rejected any reliance on Ward v. Rock Against Racism for the notion that government purpose is relevant when a law is content based on its face: “[W]e have repeatedly ‘rejected the argument that discriminatory … treatment is suspect under the First Amendment only when the legislature intends to suppress certain ideas.’ … We do so again today.”

Of note, the Ninth Circuit opinion which the Court so clearly rejected here relied on Hill v. Colorado for similarly dubious reasoning. This rejection confirms our observation about Hill in our amicus brief:

[T]he Hill majority was wrong to treat ‘protest, education, [and] counseling,’ the activities forbidden by the Colorado statute in Hill, merely as modes of speech rather than as distinct subjects of messages… . [T]hat the Hill majority’s analysis would lead a federal court of appeals to conclude that the Gilbert ordinance—an ordinance that on its face differentiates expression by content and imposes different restrictions based solely on content—is somehow content-neutral is one more reason … to overrule Hill.”

Indeed, as Justice Thomas realizes, “[i]nnocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech. That is why the First Amendment expressly targets the operation of the laws—i.e., the ‘abridg[ement] of speech’—rather than merely the motives of those who enacted them.” He presciently quotes Justice Scalia’s dissent in Hill: “[t]he vice of content-based legislation … is not that it is always used for invidious, thought-control purposes, but that it lends itself to use for those purposes.”

The Court then analyzed the sign code under strict scrutiny, and found that the code’s differential treatment of certain signs based on how it characterized their content did not serve any compelling interest in a narrowly tailored way. The town offered two reasons for its regulation—“aesthetics” and “traffic safety”—neither of which persuaded the Court. “Aesthetics” did not serve as a sufficient reason to draw the distinctions as the code drew them, the Court said. Neither is “traffic safety” advanced by limiting certain content more than others. As the Court noted, local governments can further legitimate interests in traffic and pedestrian safety, among other interests, through content neutral restrictions which are narrowly tailored. The Town of Gilbert’s did not meet that standard.

Justice Alito wrote a concurring opinion in Reed, joined by Justices Kennedy and Sotomayor, outlining simple ways that municipalities can still regulate signs consistent with this opinion.

Justice Breyer also wrote a concurring opinion, cautioning against using content as an “automatic … trigger” for strict scrutiny, and argued for more “judicial sensitivity” to the First Amendment’s objectives. He opined that because speech is so often regulated by the government, the ruling in this case will result in “judicial management” of all sorts of government activity.

However, while Justice Breyer makes an attempt to articulate an alternative standard, it is convoluted and confusing:

The better approach is to generally treat content discrimination as a strong reason weighing against the constitutionality of a rule where a traditional public forum, or where viewpoint discrimination, is threatened, but elsewhere treat it as a rule of thumb, finding it a helpful, but not determinative legal tool, in an appropriate case, to determine the strength of a justification. I would use content discrimination as a supplement to a more basic analysis, which, tracking most of our First Amendment cases, asks whether the regulation at issue works harm to First Amendment interests that is disproportionate in light of the relevant regulatory objectives. Answering this question requires examining the seriousness of the harm to speech, the importance of the countervailing objectives, the extent to which the law will achieve those objectives, and whether there are other, less restrictive ways of doing so.”

Unfortunately, such a vague standard would likely invite more judicial management (at least leaving more discretion in the hands of judges) then the majority’s clear rule here. In addition, “substituting judicial judgment for that of administrators” is precisely what we need the separation of powers for. In this case, “administrators” saw their clearly content based regulation as permissible, and needed the Supreme Court to articulate the correct standard—which it did.

Justice Kagan also concurred, joined by Justices Ginsburg and Breyer, and argued that the majority’s rule would capture all types of regulation within its net which is not necessary, and instead the “content-regulation doctrine” should be administered “with a dose of common sense, so as to leave standing laws that in no way implicate its intended function.”

While there likely are a number of regulations which may be implicated by the majority’s ruling, it is better to resolve doubts in the ruling in favor of individual rights, if nowhere more than when the First Amendment is at issue. Regardless, the problem remains: who gets to say what common sense is?

Does Justice Kagan have a point that the town’s regulation here could have been failed on tailoring alone, instead of being declared invalid under a rigid holding which she believes we “will regret” down the road after seeing how intrusively it requires courts to review sign codes? Perhaps so. But at this juncture it’s better to have clear constitutional guidelines laid out by the Court. Finally, the regulations which hypothetically concern the concurring Justices may not devolve into litigation, thus minimizing this ruling’s actual effect.

In sum, the ruling today is a Free Speech victory, and should be celebrated by all adherents to a strong First Amendment and individual rights.

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