Category archives: Religious Liberty

Sponsors of California’s AB 2943 Claim It Wouldn’t Ban the Bible. Maybe. But What About These Books?

by Peter Sprigg

May 10, 2018

It seems that we have gone from the culture wars to the “fact-check” wars. One has been underway in recent weeks over a bill making its way through the California legislature.

Put the words “California Bible ban” in a Google search and you will see what I mean.

The California Family Council and Alliance Defending Freedom were among the first to raise the alarm that Assembly Bill 2943 could be interpreted to ban sales of the Bible. Snopes, FactCheck.org, and PolitiFact all tried to debunk the claim. The FactCheck piece reproduces an April 22 tweet from the bill’s sponsor, Assemblyman Evan Low, stating, “It does not ban bibles nor does it ban the basic sales of books as some would have you believe.” But a number of careful and thoughtful conservative writers—such as Michael Brown, David French, Rod Dreher, my colleague at Family Research Council Travis Weber, and Robert Gagnon (here and here) have continued to express alarm about the bill (albeit with slightly different emphases). Does Assembly Bill 2943 actually “ban the Bible” in California? In one sense, no—but in another sense, maybe. Sometimes, what is needed is a not a “fact-check” with a simple true or false answer, but a “perspective check,” explaining why some people make a particular argument and what evidence they cite to support it.

What AB 2943 Does Not Do

Let me state a couple things that are definitely not true about AB 2943 and the Bible, which some of the more sensational headlines about “California wants to ban the Bible” might be misinterpreted to imply.

First of all, “banning the Bible” is definitely not the main purpose of AB 2943. Its purpose is to greatly expand an existing restriction (the first in the nation when enacted in 2012) upon the practice of “sexual orientation change efforts” (SOCE), now routinely referred to by critics (but rarely by practitioners) as “conversion therapy.” I have had concerns about some of the “Bible ban” talk, if only because the core issue—a ban on therapy for those with unwanted same-sex attractions—has sometimes been almost forgotten.

It is a fact that some people with same-sex attractions experience those feelings as unwanted; some of those have sought therapy or counseling to overcome those attractions; and some of those have testified to the success of such therapy in helping them overcome those attractions, and now identify as “ex-gay.” LGBT activists are offended that some people with same-sex attractions don’t want to be “gay,” so they are attempting to eliminate that option by claiming that such therapy is ineffective, as well as harmful to those who undertake it. (Family Research Council disputes those claims.) California’s 2012 law prohibited SOCE only for clients who are minors, and only when conducted by licensed mental health providers. AB 2943 would expand the ban to apply to clients of any age (including consenting adults), and any type of counselor (including religious ones), as long as there is an exchange of money for the service.

Secondly, there is no legislative language in AB 2943 that refers specifically to the Bible. As Snopes explained in its article debunking the supposed “Bible ban” claim, “California Assembly Bill 2943 does not mention the Bible, Christianity, or religion at all.” That sentence—with the key word being “mention”—is correct. (That does not mean it would not affect them, however.)

Thirdly, even if AB 2943 could have an effect upon the Bible, it would only be upon the sale of the Bible. The bill is in the form of an amendment to the state’s consumer fraud laws, so there must be some commercial transaction (involving an exchange of money) to trigger its provisions. The bill does not prohibit the possession, reading, publication, teaching, or free distribution of the Bible.

How Could AB 2943 Ban Sales of the Bible?

The concern that AB 2943 could be used to ban sales of the Bible is an inference from, rather than an explicit statement in, the language of the bill. However, the bill is thirteen pages long, most of which is just a recapitulation of the existing consumer fraud law. To understand the change that is being proposed, one has to search and extract the substantive language from the bill. Here are the key segments, with ellipses ( … ) where text has been omitted. First is the bill’s definition of “sexual orientation change efforts” (emphasis mine):

(i) (1) “Sexual orientation change efforts” means any practices that seek to change an individual’s sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.

Here is the actual language prohibiting SOCE:

1770. (a) The following unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or that results in the sale or lease of goods or services to any consumer are unlawful:

 . . .

(28) Advertising, offering to engage in, or engaging in sexual orientation change efforts with an individual.

Key Words: “Behaviors” and “Goods”

How does this apply to the Bible? Likely through two key words, highlighted in the bill text above.

The first of these is “behaviors.” When most people think of “sexual orientation change efforts,” they probably think of the second part of the bill’s definition: efforts “to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.” LGBT activists claim that such “attractions or feelings” are innate and immutable. The same, of course, cannot be said about “behaviors,” which can be changed at will. I suspect, however, that those activists worried that if therapy to help people change their “behaviors” were permitted, it would constitute a loophole that would allow SOCE to continue.

The problem with outlawing “efforts to change behaviors,” however, is that almost all moral and religious teaching about how we should live involves “efforts to change behaviors.” “Don’t lie.” “Don’t steal.” “Treat your father and mother with respect.” There are all sorts of religiously-rooted assertions directing people to modify “behavior.” Let us not forget the age-old admonition: “Behave!” When Leviticus 18:22 cites God telling Moses, “You shall not lie with a male as one lies with a female” (NASB), that clearly seems to be an “effort to change behaviors.”

The second key word is “goods.” As noted above, the main purpose of the bill is to outlaw a certain type (or more accurately, a goal) of therapy, which would generally be considered a “service.” However, the ban on change efforts applies to any “transaction intended to result or that results in the sale or lease of goods or services to any consumer.” Although one bill critic has suggested that the language about “the sale or lease of goods” does not apply to SOCE, the term “any practices” in the definition of SOCE appears to be broad enough to encompass the practice of selling books.

No, the text of AB 2943 does not mention the Bible. But since the “sale … of goods” could include the sale of books (such as the Bible), and since the moral teachings of the Bible include “efforts to change behaviors” (such as homosexual behavior), critics of AB 2943 have warned that it could, at least theoretically, be used to ban the sale of Bibles in California.

Possible vs. Likely

Now, if AB 2943 is enacted, is California likely to leap directly to banning sales of the Bible? Perhaps not, for several reasons. As noted above, banning Bible sales is not the main purpose of the bill,  and while the Bible supports sexual orientation change (see 1 Corinthians 6:9-11), that is hardly its main theme. At least initially, a prosecutor would likely seek an easier target, and one more directly relevant to sexual orientation change efforts. In addition, it is likely that the Supreme Court (at least in 2018, as currently constituted) would strike down any effort to ban sales of the Bible.

Still, the argument that AB 2943 could, even theoretically, be used to ban sales of the Bible is an important one, if only because it demonstrates how sweeping and poorly written the bill is. That should be reason enough for California legislators to oppose it.

While the Bible may be safe in the short run, I have less confidence in the long run. Zack Ford is a homosexual activist and writer with ThinkProgress who wrote a piece claiming it is “nonsense” that AB 2943 would “ban the Bible.” Yet ironically, that same piece links to a 2016 article Ford wrote asserting that “When Gay People Are Told That Homosexuality Is A Sin,” that “message alone is harmful.” The assertion that a piece of moral teaching from the Bible is not merely incorrect, but is tangibly “harmful,” seems like a way of laying the groundwork for legal restrictions upon that very biblical teaching.

Which Books Would Be Banned?

Even if sales of the Bible in California continue unhindered (for now), what about other books? As I have already stated, I think the argument is strong that AB 2943 could be used, generally, to ban the sale of certain books.

Take a look, for instance, at the books in the photo at the beginning of this post. This is just a sample of the books I pulled off my bookshelf, from the library I have accumulated in 17 years at Family Research Council. The books pictured are not just ones that deal generally with Christian moral teaching on sexuality. Unlike the Bible, these eight books are specifically and entirely about sexual orientation change efforts.

There can be no question that the sponsors of AB 2943 would prefer that books like this did not exist. Could the bill be used to ban their sale?

Some supporters of therapy bans (a number of which have been enacted in the wake of California’s action in 2012) have argued that they do not prevent someone from expressing the opinion that homosexuality is undesirable, or expressing the opinion that it can change, or even expressing the opinion that therapy can facilitate such change. All they ban is someone actually undertaking such efforts. So maybe a few of these books would escape California’s new censors.

But what about James E. Phelan’s Practical Exercises for Men in Recovery of Same-Sex Attraction (SSA)? This book appears to have no purpose other than actually bringing about sexual orientation change in the men who read it. Under AB 2943, how could California allow “any practice” that includes the “sale of” this particular “good?”

Banning Books is Totalitarian

In the past few weeks, Christians have been shocked by the possibility of a state banning the sale of the Bible.

But shouldn’t every American be shocked at the thought of a state banning the sale of any books based on their philosophical, religious, or moral viewpoint?

Banning books because one doesn’t like their message?

In the United States of America?

In this country, you can sell all kinds of books.

You can sell Mein Kampf, and The Communist Manifesto. Bookstores sell the celebration of sado-masochism of Fifty Shades of Grey, and the celebration of sodomy in Allen Ginsberg’s Howl.

But now, California might ban the sale of Practical Exercises for Men in Recovery of Same-Sex Attraction? Or ban Coming Out Straight—just because it says that for “those who struggle with their own same-sex attractions,” it will “open the door to a new, happier, and fulfilling heterosexual life”?

The idea of banning books—any books—because the authorities don’t like their message is totalitarian. In the United States of America, it should be unthinkable. California legislators should affirm that it is unthinkable—by voting “No” on AB 2943.

Banning Therapy is Totalitarian, Too

While the prospect of the Bible—or any books—being “banned” from sale has focused attention on AB 2943, I hope it will also bring people’s attention to the central issue:

Banning a client-chosen goal of therapy is just as totalitarian.

By framing their assault upon the freedom of therapists and clients as an exercise of the state’s power to regulate health care or (in the case of AB 2943) to prevent “consumer fraud,” LGBT activists have masked how unprecedented these therapy bans are in the history of American law or counseling.

Note that what these bills seek to outlaw is not a particular therapeutic technique. While advocates will tell stories (some of them far-fetched) about being victims of “aversion therapy” techniques that have not been used in 40 or 50 years, the prohibition is not limited to “aversion therapy.” When pressed, sponsors must admit that they seek to outlaw ordinary talk therapy as well. What these laws and bills target is nothing more or less than a goal: “to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.” This is extraordinary.

Supporters of the bans will also imply that people are “coerced” into undertaking SOCE. That problem (if it exists) could be resolved by requiring “informed consent” before therapy. The prohibitionists reject that, insisting on banning all therapy, even if the client desperately wants it. (Can you imagine the outcry from some of these same activists on the Left if conservatives argued, “Because some women are coerced into having abortions, the only solution is to prohibit any women from obtaining them”?)

Therapy bans violate freedom of speech for therapists, freedom of religion for clients and therapists, and the privacy of the therapist-client relationship.

They should outrage every freedom-loving American, and should be opposed by every legislator.

Religious Liberty and National Security Go Hand in Hand

by Family Research Council

May 3, 2018

There is a gaping hole in American foreign policy today, and it is negatively affecting our national security and the security of the world.

There has been a ‘religious freedom avoidance syndrome’ in the State Department,” said Dr. Tom Farr, President of the Religious Freedom Institute, during a recent FRC Speaker Series panel discussion held in Washington, D.C.“…The problem with that … is that the world is religious. And if it is the business of American diplomates, which it is, to defend American interests in a highly religious world, staying away from religion simply doesn’t make sense.”

Professor Robert Destro of Catholic University of America pointed out that we need to work with other countries to make them realize that granting their citizens more religious freedom will actually promote their own self-interests. Studies show that increased religious freedom leads to the absence of religious violence, economic growth, a reduction in corruption, a decrease in infant mortality, better health outcomes, more literacy, more empowerment of women, and more.

Professor Destro also made the case that America needs to help its own Muslim citizens present the benefits of religious freedom to their Muslim counterparts in the Middle East, because it’s obvious that someone of the same faith as them can make the case much more effectively than non-Muslims. As Dr. Farr pointed out, extremist ideologies cannot be destroyed with bullets, they must be destroyed by better ideas.

Don’t miss the full panel discussion.

Be sure to read FRC’s full analysis of the religious freedom/national security issue.

Faith-Based Adoption Providers Must Be Allowed to Serve Needy Children

by Family Research Council

April 26, 2018

In America today, over 400,000 children are languishing in foster homes or other institutions, waiting for a chance to be adopted by a loving family. To help solve this crisis, it is obvious that parents who want to adopt need all the help they can get in being matched with a child, which means they need an adoption agency that understands their needs.

Instead, adoptive families who are religious are finding themselves left out in the cold. In Massachusetts, Illinois, Washington, D.C., San Francisco, and now Philadelphia, faith-based adoption agencies like Catholic Charities and Bethany Christian Services have been forced out of serving needy children because of their religious beliefs by progressive activist organizations like the ACLU, who demand that faith-based organizations affirm same-sex relationships or be barred from offering adoption services.

However, since there are plenty of adoption agencies who already serve same-sex couples, barring faith-based agencies from serving needy children is simply outrageous and will only compound the foster care crisis. As Rep. Mike Kelly (R-Pa.) pointed out at a recent Speaker Series event at FRC, Christian churches are the ones who started healthcare and adoption services in the U.S. to begin with, so to bar them from practicing their religious beliefs as they serve the public is counter-productive and benefits no one. As he succinctly observed, “If it’s the truth, it can’t hurt anybody.”

Because of the activism of extremists on the Left, legislation is clearly needed to protect faith-based adoption providers from discrimination. That’s where the Child Welfare Provider Inclusion Act (CWPIA) comes in. CWPIA simply “ensures all available agencies can continue to serve the 440,000 children in the foster care system and the more than 100,000 awaiting adoption.”

Be sure to view Rep. Kelly’s full remarks here.

For a complete analysis of the benefits of CWPIA, click here.

Who Owns Free Speech on the Internet?

by Family Research Council

April 19, 2018

In a timely panel discussion held recently at FRC, the question of free speech on the internet and the threats it currently faces was explored. In an era when 69 percent of Americans use social media every day, with Google monitoring its user’s activities on over 200 different platforms and Facebook generating $40 billion in ad revenue off of user-generated data, it’s vital to ask questions about how the concerns that users have about free speech and privacy are being handled in the hands of only a few unregulated tech giants who have a monopoly on the industry.

Brent Skorup, a Senior Research Fellow in the Technology Policy Program at the Mercatus Center at George Mason University, warned against conservatives “opening the door to regulation” of internet social media platforms like Facebook and Twitter. He gave the historical example of the FCC’s “fairness doctrine,” which was introduced in 1949 as a “neutral rule” that required broadcasters to present opposing viewpoints of controversial matters, but as Skorup pointed out, it was eventually weaponized by bureaucrats and used to drive out conservative and religious broadcasters from the marketplace.

Craig Parshall, Special Counsel to the American Center for Law and Justice, pointed out the danger that a monopoly poses when it is providing platforms for opinions and information. He emphasized that all conservatives and Christians want is an equal opportunity in expressing their “whole truth” and “political philosophy” to the public, just as progressives have.

Rep. Marsha Blackburn (R-Tenn.) expressed concern about how Facebook and other platforms are using algorithms to censor out political content that they don’t agree with. She noted that the bipartisan Browser Act would introduce an “opt-in” template so that users can protect their data from being harvested online if they so choose.

Don’t miss this lively Q&A discussion on the very difficult topic of whether or not social media platforms should be regulated in order to protect free speech, as well as the continuing controversy over internet free speech and privacy.

For the Sake of Our Security at Home, We Must Focus on Religious Freedom Abroad

by Travis Weber

April 5, 2018

In recent history, our foreign policy elites have primarily viewed religious freedom concerns as the parochial interest of humanitarian-minded pastors and religious freedom-focused human rights activists. Concerns were addressed when possible, yet the government handled problems on a one-off basis, usually to solve the annual flare-up over some imprisoned pastor somewhere. However, these religious freedom challenges haven’t been incorporated into any consistent, long-term, strategic thinking on foreign policy.

But what if they should be? One could argue the one-off approach hasn’t really advanced religious freedom worldwide, and that we should change the way we try to protect this right. Regardless, the assumption is that we are operating from a humanitarian basis. But what if the appeal was made on other grounds—that religious freedom is not simply a humanitarian concern, but that it is in the interest of our own security to advance it around the world?

Emerging evidence suggests that it is. As Professor William Inboden (who formerly served on the State Department’s Policy Planning staff and as senior director for strategic planning at the National Security Council) points out, “[t]here is not a single nation in the world that both respects religious freedom and poses a security threat to the United States.”

In a new FRC analysis released just yesterday, “Religious Freedom and National Security,” we make the case that the United States should not only promote religious freedom for its own sake, but also because it ultimately keeps us safer in the long run.

For a template, we can draw on the example of President Reagan, who unapologetically defended religious freedom on the world stage—confronting the Soviet Union, China, and others on this issue. Today, we face our own challenges posed by the spread of radical Islam and rising authoritarian governments—menaces whose suppression of religious freedom correlates with their threat to our national security.

With ongoing threats around the world which show no sign of abating, shouldn’t we at least be open to the possibility that we need to change our thinking on this issue, and address religious freedom violators because of their threat to our national security?

Just in the last several days, news has broken that China appears to be restricting the sale of Bibles and is also pushing a deal with the Vatican that would ultimately keep it in charge of appointing bishops.

It seems some of the same religious freedom problems President Reagan faced are rearing their heads today. It is time that we reclaim America’s historic role in engaging them, and firmly and strategically defend religious freedom around the world—for this will ultimately keep us safe at home.

Ben Shapiro: America Must Have a Shared Duty to God to Survive

by Daniel Hart

March 28, 2018

In a stirring speech given to supporters of FRC yesterday, The Daily Wire editor-in-chief and well-known political commentator Ben Shapiro drew a stark picture of how the loss of religion in America has led to a harrowing host of problems, including the growing threats to religious freedom and traditional values.

As Shapiro noted, however, this loss of faith has led to an even more fundamental breakdown: a loss of the desire to live at all, especially among the young. “There’s a crisis of meaning that is happening among young people. That crisis of meaning is directly related to the loss of religion in the United States. There is no doubt about this. The suicide rates have tripled among young people between 2006 and 2016. There’s a reason for this. Right now, young American children [who] are growing up in the freest, most prosperous country in the history of mankind are killing themselves at record rates. It is happening for a very specific reason. It is happening because we are not providing them meaning.”

Shapiro went on to argue that if transcendent truth is not taught and handed down to us, we tend to latch on to whatever popular platitudes (such as “diversity” and “equality”) that are being fed to us by the culture, because we all have the inherent desire to fill the God-sized hole in our hearts with something meaningful. But without a common purpose, Shapiro pointed out, “diversity tears people apart, because people tend to fall back into ethnic stereotyping [and] tribalism, and in large part that is what’s happening in the United States right now. We’re tearing each other apart because we don’t have a common vision of what the United States is supposed to be, and what we are supposed to be as human beings.”

The Founders understood this. Shapiro quoted George Washington, who said there exists “in the course of nature an indissoluble union between virtue and happiness, between duty and advantage. The propitious smiles of heaven can never be expected on a nation that disregards the eternal rules of order and right which heaven itself has ordained.”

We have decided to abandon [faith] in the United States,” Shapiro said, “but this is where we have to fight back.” How do we do this? By trusting in the Wisdom that has come down to us through millennia, which is the foundation of western civilization. Ultimately, Shapiro concluded, we are in a fight about what is most fundamental: “We are fighting about the meaning of human life. We are fighting about what human dignity is worth, and what our purpose is in the universe. And if we lose that battle, there are no other battles to be fought.”

View Ben Shapiro’s entire speech here.

Attacks on Counseling Threaten Pastors and Churches

by Travis Weber

March 23, 2018

Recently, California state legislators proposed a bill which would outlaw counseling—even that which is freely entered—for anyone who wanted help changing their unwanted same-sex attraction. We have seen such efforts before, but this one is noteworthy for how expansive it is—it covers individuals, associations, and “other group[s],” in addition to traditional businesses. As Alliance Defending Freedom points out, it could even implicate churches: “It could be a violation [of this proposed law] if a pastor encourages a congregant to visit the church bookstore to purchase books that help people address sexual issues, perhaps including the Bible itself, which teaches about the importance of sexual purity within the confines of marriage between a man and woman.” While outlawing such pastoral advice (the bill would consider it fraudulent “goods and services”), the bill completely endorses advice designed to cement same-sex attraction.

Masquerading as consumer protection and medical oversight, this is simply blatant and open discrimination against one side of our society’s debate on sexual ethics. Yet sin wants to suppress the truth, and even the idea that someone can help someone else change their sexual attractions implies that what one may be doing is not all good and healthy. This threat implicates not just businesses and Christians in the public eye, but all Christians who hold to a biblical position on these issues. It won’t matter how one approaches the issue. We should always speak the truth in love because that’s the right thing to do, but that won’t exempt us from being targeted. Our biblical beliefs themselves are the target. It is crucial that all Christians in America understand this social dynamic.

This legislative development in California echoes the situation involving Metro City Church in Michigan, which took heavy criticism for offering a program to help teens who are questioning their sexuality walk through their situation from a biblical perspective. The program approached the issue very cautiously—and was defined by merely discussing the matter of sexuality by looking at what the Bible had to say about it. Yet in response, numerous activists subjected the church and its pastor, Jeremy Schossau, to vitriolic online attacks, criticism, and threats (including potentially criminal behavior), and two state legislators have called for the church to be “investigated” for offering “conversion therapy.”

While we have seen such vitriol often directed at those who advocate a biblical worldview on this issue, direct targeting of churches and pastors has been relatively rare. Yet this incident serves as a reminder that many of the religious freedom struggles we are facing will eventually reach any church which teaches an orthodox biblical position on questions of sexuality.

Moreover, in this case, nothing remotely controversial was occurring; the church was just trying to go to the Bible for answers on this topic. Along with the proposed California legislation, these developments make clear that the problem is not the way something is said, but the Christian position on these issues itself is what is opposed.

We must defend the ability of pastors and their churches to decide what is said in church … not the government. The First Amendment makes absolutely clear that the government has no power to tell churches what advice they can give or require a license to give that advice, and the First Amendment to the Constitution still guarantees the freedom of speech and the free exercise of religion. Additionally, the Establishment Clause of the First Amendment prevents the government from assessing theology and targeting the theological beliefs it doesn’t like. This is the current law, but we must give voice to our rights to see them protected.

After the Supreme Court constitutionalized same-sex marriage in Obergefell v. Hodges, many wondered whether pastors would be pressured into performing same-sex marriages. Perhaps the bigger question now is whether they will be threatened into compromising their larger biblical perspective on sexuality.

FRC is standing with Pastor Jeremy, and attempting to raise awareness of the religious freedom implications of this situation. To stand with Pastor Jeremy, please sign our petition at FRC.org/Metro to tell these legislators they cannot prohibit this pastor or his church from exercising their First Amendment rights.

For more information on Pastor Jeremy’s situation, please see:

FRC Washington Update articles:

Also: 

 

Sixth Circuit Shows Why SOGIs Are a Threat to Religious Freedom

by Travis Weber

March 12, 2018

Last week, in EEOC v. R.G. & G.R. Harris Funeral Homes, the Sixth Circuit Court of Appeals rejected the religious freedom claim of a funeral home owner who wanted to run his business in accordance with his faith—and did not want to accede to the “gender identity” discrimination claim of an employee who desired to remain an employee while living out his transgendered lifestyle as he saw fit. The case is still ongoing (the appeals court ordered the case remanded for a lower court to continue sorting out), but there’s a very real possibility that business owner Thomas Rost may now be forced out of the marketplace rather than violate his faith.

This is the first federal court case dealing with a Religious Freedom Restoration Act (RFRA) claim in the context of a sexual orientation and/or gender identity (SOGI) nondiscrimination claim (the only other such case is the state-level case of print shop owner Blaine Adamson in Kentucky), and SOGI came out the victor. The concerns of those who have warned of the religious freedom threat of SOGIs are validated by this decision.

The Sixth Circuit, in an opinion authored by Judge Karen Moore, got its analysis wrong on several levels. First, the court claimed it was somehow very clear that Title VII sex discrimination prohibitions include “gender identity”—despite the fact that no court considered such a possibility for decades. Even Supreme Court Justice Ruth Bader Ginburg, writing about the proposed Equal Rights Amendment decades ago, did not take “gender identity” under consideration as she dismissed concerns that sex nondiscrimination provisions could force bathrooms to be opened up to the opposite biological sex. So when the Sixth Circuit says “[n]or can much be gleaned from the fact that … statutes, such as the Violence Against Women Act, expressly prohibit discrimination on the basis of ‘gender identity,’ while Title VII does not,” it isn’t very convincing. If it was so clear, no court would ever have rejected the notion that “gender identity” falls under sex discrimination—yet many have.

The court continued to err when it analyzed the religious freedom issue here. The funeral home relied on RFRA as a defense to the SOGI claim, asserting that a sincere religious belief had been substantially burdened. At that point, the EEOC could only have prevailed if it had a compelling government interest which was accomplished through the least restrictive means.

Judge Moore incredibly (and erroneously) claimed it was not a “substantial burden” on religious exercise to “forc[e] [the Funeral Home] to violate Rost’s faith,” which “would significantly pressure Rost to leave the funeral industry and end his ministry to grieving people.” Yet it is an elementary principle of RFRA analysis to observe there is a substantial burden on someone who is told they must compromise their beliefs in order to retain their job. The court accepted that Rost sincerely believed he should not be “directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift,” but then summarily dismissed his concern, concluding that “tolerating [his employee’s] understanding of … sex and gender identity is not tantamount to supporting it.”

The court tries to rely on lower federal court adjudications in the HHS mandate contraceptive litigation, claiming that “[m]ost circuits, including this one, have recognized that a party can sincerely believe that he is being coerced into engaging in conduct that violates his religious convictions without actually, as a matter of law, being so engaged.” Yet this second-guessing of religious beliefs has been roundly repudiated by the Supreme Court in Employment Division v. Smith, where the Court observed decades ago that “[r]epeatedly and in many different contexts, we have warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim.” Moreover, despite citing HHS mandate cases from the lower courts, Judge Moore skips over the fact that when the Supreme Court handled those cases on appeal in Zubik v. Burwell, the justices told the parties to come to a resolution while honoring the religious exercise at issue, rather than flatly dismissing the substantial burden on the religious claimants.

After concluding there was no substantial burden on religious exercise, Judge Moore didn’t need to continue her analysis, but did so anyway, offering her view that it was a compelling interest to force the funeral home to accede to the transgendered employee’s demands: “Failing to enforce Title VII against the Funeral Home means the EEOC would be allowing a particular person—Stephens—to suffer discrimination, and such an outcome is directly contrary to the EEOC’s compelling interest in combating discrimination in the workforce.” The court did not want to “hoist automatically Rost’s religious interests above other compelling governmental concerns.” The Sixth Circuit then concluded that uniform enforcement of sex nondiscrimination provisions without religious exceptions was the least restrictive means to accomplish this compelling government interest of eradicating discrimination.

What are we to make of this? Aside from realizing that judges are not exempt from the temptation to arrive at a conclusion and then craft reasoning to help one get there, the court’s opinion shows us that businesses seeking religious freedom protections need to state clearly and regularly their religious nature (though part of a separate ministerial exemption analysis, the court did hold the business’s lack of numerous and overt religious indicia against it).

More relevant for our current religious freedom concerns, this case shows the inability of RFRA to adjudicate modern religious freedom disputes with certainty, as the statute allows judges the leeway to craft conclusions of their own liking, an even bigger danger when issues of sexuality—on which they want to be on the “right side of history”—are involved in the case.

Finally, and perhaps most significantly, this opinion demonstrates that when RFRA and SOGI claims intersect, the SOGI claims will likely win (and will almost certainly win in the hands of judges under social and cultural pressure to reach a certain result), thus vindicating many who have claimed that SOGI laws themselves are a threat to religious freedom.

Remarks by Tony Perkins at the 2018 NRB Convention

by Tony Perkins

March 1, 2018

The following are prepared remarks by Tony Perkins at the National Religious Broadcasters 75th Annual Convention on March 1, 2018.

Winston Churchill once said, “During their lifetimes, every man and woman will stumble across a great opportunity. Sadly, most of them will simply pick themselves up, dust themselves down and carry on as if nothing ever happened.”

The apostle Paul spoke to the issue of opportunity in his letter to the Ephesians when he wrote in chapter 5: “Look carefully then how you walk, not as unwise but as wise, making the best use of the time because the days are evil.”

Now, if Paul had grown up in this country, he might have told the Ephesians “Make hay while the sun is shining.”

The sun is shining right now in American when it comes to our First Amendment freedoms. We need to be wise and act quickly, not only using these freedoms to spread the good news, but also to put in place policies that will protect and promote these essential freedoms, not just for ourselves but those yearning for freedom around the globe and generations yet unborn. 

Some of our brethren remain skeptical or indifferent about our engagement in the political process. Don’t be foolish. Elections have consequences, many far-reaching as we continue to see from the years of President Obama.

But we also see the consequences of the election of Donald Trump and Mike Pence. 

Let me put it in a format that many who track this administration are accustomed to – I’ll put it in the form of a tweet:

President Trump has:

  • Appointed Excellent Judges like Neil Gorsuch
  • Enacted Unparalleled pro-life policies;
  • Cut taxes & is Growing our economy

President Trump is:

  • Restoring religious freedom
  • Moving the U.S. Embassy to Jerusalem
  • Rebuilding our military

This is happening because many of you in this room used your influence and your platforms to communicate what was at stake in the last election. I believe America dodged not a bullet in the 2016 election, but a political and cultural H-bomb.

Evangelicals, especially the subset that George Barna calls SAGE Cons—Spiritually Active Governmentally Engaged Conservatives (many of your listeners and viewers)—turned out in record-setting numbers and were unified. Ninety-one percent of SAGE Cons representing 20 million U.S. adults voted, and 94 percent of them voted for Donald Trump.

By the way, almost every time I see the president I don’t have to remind him that evangelicals were the margin for his victory—he reminds me that evangelicals voted for him and they love him!

And by the way, in post-election polling, 59 percent said they voted for the Trump/Pence ticket based on the GOP platform’s position on life and religious liberty. This is important. Despite what the media would say, evangelical voters are sophisticated.  They were able to separate personality from policy.

Evangelicals understood what was at stake and voted.

But the election was not the end of our responsibility, but rather the beginning of our opportunity.

First by acting upon it, but also preserving it.

We need to preserve it by communicating to those who look to and listen to us about what is really happening. We have to counter the narrative of the Fake News—which is real. I’ve been in conversations and meetings with this administration, which somehow got into the media based on their sources which were not only inaccurate but if I didn’t know better, I would think there were intentionally misleading.

Because of the importance of the evangelical voter, there is an intense effort on the Left to suppress their turnout in the upcoming elections, by dampening the enthusiasm of conservative voters. If they succeed and your listeners and viewers get discouraged and stay home in the midterm election, the reform is over. The restoration of religious freedom and the freedom of speech will end.

Nancy Pelosi needs just 24 seats to switch from Republican to Democrat to retake the gavel of the House. In every midterm election since the Civil War, the president’s party has lost, on average, 32 seats in the House and two in the Senate. There are more than 40 Republicans that have and will announce that they are retiring. 

If conservatives and in particular evangelical voters do not turn out, it will happen, and one of the first orders of business will be the impeachment of President Trump. They most likely will not succeed in removing him from office, but they will most likely succeed in stopping what this administration is doing.

What are they doing? The Trump administration is not just enacting conservative policies in line with the Constitution. President Trump is the first Republican President to not just stop the liberal policies of his predecessor; he is dismantling, slowly, but dismantling none-the-less parts of the framework of big, liberal government which has been expanded with the election of each Democratic administration since FDR

That is why the Left is unhinged. They won’t be able to jump back in the driver’s seat of big government and restart their programs, they will have to rebuild, and that will take time, especially if they don’t have the courts to help them in their activism. This is why every judicial confirmation is a fight.

We have to act upon the opportunity that we have, to fortify our freedoms, to ensure government does not again try to quarantine our Christian faith within the walls of our churches. A lot has been done, but there is still plenty to do:

  • The Johnson Amendment has to be totally eliminated.
  • The forced partnership between taxpayers and Planned Parenthood must be ended.
  • Patient-centered healthcare must be restored and,
  • God must be welcomed back into our public life.

The president ran and has governed by the theme “Making America Great Again.” But America will only be great again when it has become good again, and that is not government’s mission, but ours, followers of Jesus Christ.    

Benjamin Franklin said, “History will also afford frequent opportunities of showing the necessity of a public religion, from its usefulness to the public; the advantage of a religious character among private persons; the mischiefs of superstition, and the excellency of the Christian religion above all others, ancient or modern.” 

Let’s be wise and make the best use of this moment in time, this opportunity.

In the wake of the tragic shooting in Parkland, Florida, there is a national discussion about how to protect our children in their classrooms. The focus has been on the instruments of destruction. We continue in a defensive posture with almost every school in America now having active shooter drills. 

In some ways, it is reminiscent of their grandparent’s generation that had duck and cover drills in their classrooms as Americans feared a nuclear attack from Russia in the 1950s.

While that threat was external, and today’s is internal, might we learn from how they responded?

In February of 1954, Reverend George M. Docherty, pastor of the New York Avenue Presbyterian Church in Washington, D.C., delivered a sermon on the subject of the pledge of allegiance, with President Eisenhower sitting in the front pew. The sermon was about the absence of the words “Under God” in our pledge. America was at the height of the Cold War with Russia, and a bold declaration was needed to show that there was a difference between America and the atheistic communists.

Three days after that sermon, a bill was introduced in Congress to add the words “under God.”

And on Flag Day, June 14, 1954, Eisenhower signed the bill into law, saying, “From this day forward, millions of school children will daily proclaim the dedication of our nation and our people to the Almighty.”

America will not be great again until it is good again, and that means America must once again not only acknowledge but live as one nation under God. 

Let us redeem the time.

Let us make the most of this moment.

Let us seize this opportunity!

Fact-Checking Jimmy Kimmel on Christian Bakers: Two Big Errors, But Props for Trying

by Travis Weber

February 13, 2018

The other day, Jimmy Kimmel responded to a California Court ruling affirming Christian baker Cathy Miller’s First Amendment right to not be compelled to create a cake celebrating a same-sex wedding.

Here is a response to Jimmy Kimmel’s response, which I also presented on Facebook Live with our own Brynne Krispin (below).

First, I commend Kimmel for trying to tackle the issue, and for acknowledging the judge’s ruling in favor of the baker “sounded reasonable.” That’s a start.

But Kimmel then goes off track when trying to portray what happened.

In his skit, he plays a waiter who quizzes customers at his hypothetical restaurant, asking after they sat down but before serving them: “Are any of you gay?” After one woman says yes, he informs her his chef can’t make her a salad because he “believes homosexuality is a sin” (while offering her a salad made yesterday before “he knew you were gay”)—wrongly implying that the California baker did the exact same thing.

ERROR #1: Kimmel wrongly portrays business owners as refusing to serve people because they identify as LGBT

This is simply false. How many times do we have to say it?

What Kimmel portrayed is exactly what is NOT happening in the California case, Jack Phillips’ case, or any other.

Neither Cathy Miller nor any of the other Christians being dragged into court over this issue is quizzing customers to see who identifies as LGBT or not, and sending them on their way if they say they are gay. They are only drawing the line at creating items and sending messages which violate their conscience.

Nor is the issue when the item was baked; Jack Phillips and others are happy to sell a person identifying as LGBT cookies, cakes, brownies, etc.—whether made yesterday or today. Rather, the issue is whether the person of faith is being conscripted into using their talents in service of a proclamation against their will.

Indeed, in his brief to the Supreme Court, Jack Phillips clearly stated that he “would decline to create a wedding cake celebrating a same-sex marriage regardless of whether the customer is a same-sex couple or a heterosexual parent purchasing the cake” (emphasis mine). Yet at the same time, he “would celebrate a marriage between a man and a woman even if one or both spouses identified as gay, lesbian, or bisexual” (emphasis mine).

In other words: this is not about the person; it’s about the message.

ERROR #2: Kimmel tells the story of the potential customers, but not the business owners of faith.

In doing this, Kimmel missed a big opportunity to tell the stories of business owners of faith like Jack Phillips and Cathy Miller—and how they are being harassed by government agencies and dragged into court over this issue right now.

So what should Kimmel’s skit have shown?

The waiter should have played the government and the customer could have played the wedding vendor, and it would have been largely on-point. Jack Phillips and others are simply seeking to stay in the marketplace (the table), yet the government is coming to them and telling them to get out unless they modify their Christian beliefs. This is also happening at the hands of the ACLU in Michigan, where Christian adoption providers have a seat at the table along with pro-LGBT providers. Yet the ACLU is suing the state to force the Christian groups to leave because of their beliefs.

Kimmel’s own skit helps show this. Near the end, he referenced a Hindu chef who didn’t want to prepare a steak for a potential customer because of his religious beliefs. Now, just imagine if that Hindu chef’s job had been to simply prepare vegetable side dishes, and then one day all of a sudden his boss tells him to start preparing steaks—or be fired. Cathy Miller’s story is like this chef’s, and it is a story that needs to be told. If Jimmy Kimmel doesn’t tell it, we gladly will.

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