Category archives: Religious Liberty

Kicking Jesus Off the Bus?

by Travis Weber

December 13, 2017

Last week, a federal court ruled that the Washington Metropolitan Area Transit Authority (WMATA) was permitted to reject an ad (pictured above) that the Roman Catholic Archdiocese of D.C. wanted to run on the sides of area buses during the Christmas season.

Now why would such an ad be excluded?

In holding that WMATA’s commercial advertising guidelines (under which the ad was excluded) did not violate the First Amendment and could be permitted to stand, the court reviewed the guidelines under a standard for speech in nonpublic forums (which public buses are generally considered to be). For nonpublic forums, the government can discriminate based on content but not on viewpoint, and here, WMATA has a policy of not allowing certain types of content on its buses, including religious content.

While WMATA would be able to eliminate religious content from its buses, the Archdiocese had argued that WMATA was discriminating based on viewpoint because it was happy to have other Christmas ads which are religiously related and which convey the view that Christmas is a commercial holiday, but that WMATA didn’t want to accept the Archdiocese’s view that Christmas is noncommercial and should be focused on the gift of Christ (as the above poster does).

The court rejected this view, ruling that the bus guidelines did not discriminate based on viewpoint but only on content—noting that “religion is excluded as a subject matter.”

But is all of “religion” really being excluded? It doesn’t seem so. WMATA permits Christmas-related ads from the Salvation Army, and ads from a religiously-focused yoga group.

Yet, as the court recognizes later in its opinion, the guidelines prohibit ads that “promote” or “oppose” religious beliefs. The court relies on these guidelines to distinguish the Archdiocese’s proposed ad from ads by the Salvation Army and a yoga studio, which WMATA permitted despite their religious overtones, claiming they don’t promote specific beliefs. So it is not religion per se that WMATA wants to prohibit, but rather messages opposed to or promoting religious belief. And since the Archdiocese is understandably seeking to promote its own religious belief in its own ad which it would be paying for, WMATA declared it off limits (thus, the court’s comment that “religion is excluded”—seeming to refer to religion generally—isn’t even correct).

We should be especially wary of government restrictions on one’s viewpoint. They are the most dangerous at their core, and go to the heart of why we have the First Amendment. In ruling for WMATA here, the court observed that under the lower standard of scrutiny applied, the government could rely on administrative convenience and the avoidance of controversy as a legitimate basis to exclude ads—as it and other authorities have done in response to Islam-related ads (indeed, the whole reason WMATA and other authorities have chosen to lower the level of scrutiny they have to meet and eliminate whole areas of discussion from their buses is to avoid legally having to host controversial Islam-related messages—now, the same ad which has run in years past in the D.C. metro system is not being permitted on buses). But suppressing a message for fear of the response is the essence of the heckler’s veto, and is no way for a free country to act.

If for no other reason, this is perhaps why the courts should be inclined to rule for the Archdiocese here, and be loath to affirm any policy which could be used to justify views the government doesn’t like.

A Three-Dimensional Case for Masterpiece Cakeshop — from Justice Kagan, No Less

by Peter Sprigg

December 12, 2017

I am not generally a fan of liberal Supreme Court Justice Elena Kagan. But after reading the entire transcript of the December 5 oral arguments in the Masterpiece Cakeshop case (in which a Christian baker was found guilty by Colorado of discrimination for declining to make a custom wedding cake for a same-sex couple), I thought one question she asked was especially insightful.

Most of the discussion on Jack Phillips’ free speech claim centered on a question distilled by Justice Stephen Breyer. Baker Jack Phillips argues that his First Amendment right to be free from compelled speech was violated by Colorado’s application of its public accommodations law to him, but Breyer asked, “[W]hat is the line? … [W]e want some kind of distinction that will not undermine every civil rights law.”

Kagan elaborated on that concern in a question posed to U.S. Solicitor General Noel Francisco, who was arguing in support of Phillips:

JUSTICE KAGAN: General, it — it seems as though there are kind of three axes on which people are asking you what’s the line? How do we draw the line? So one axis is what we started with, like what about the chef and the florist -

GENERAL FRANCISCO: Speech, non-speech.

JUSTICE KAGAN: — and — and, you know, everybody else that participates in a wedding? A second axis is, well, why is this only about gay people? Why isn’t it about race? Why isn’t it about gender? Why isn’t it about people of different religions? So that’s a second axis.

And there’s a third axis, which is why is it just about weddings? You say ceremonies, events. What else counts? Is it the funeral? Is it the Bar Mitzvah or the communion? Is it the anniversary celebration? Is it the birthday celebration?

So there are all three of these that suggest like, whoa, this doesn’t seem like such a small thing.

1. “Speech” vs. “non-speech” in the wedding industry

The core of the argument made by Kristen Waggoner, the Alliance Defending Freedom attorney representing Phillips, related to the first “axis” Kagan mentioned. The courts have previously found that under the First Amendment’s free speech protections, not only may the government not punish an individual for speaking his own opinions, but the government also may not compel an individual to communicate a message he disagrees with against his will. Using his talents to create a custom wedding cake is a form of artistic expression which is protected as “speech” under the First Amendment, Waggoner argued. Doing so for a same-sex wedding would constitute a message of endorsement of a homosexual relationship and of same-sex marriage, which violates Jack Phillips’ religious beliefs. Therefore, the state of Colorado may not compel Phillips’ to create such a cake without violating his First Amendment rights.

The justices demanded to know what other vendors providing goods and services for a wedding would or would not enjoy similar free speech protections. What type of commercial conduct constitutes “speech,” and what is “non-speech,” as Francisco put it? Waggoner suggested that the exemption would apply to a baker, florist, or calligrapher creating invitations; but might not apply to a hair stylist or makeup artist (more on that later).

Yet I think Kagan’s other two “axes” (plural of “axis,” not “ax”) are also significant. Unlike Kagan, however, I think they make the case easier to decide, not harder.

2. “Why is this only about gay people?”

The second axis of line-drawing has to do with any distinctions between various protected categories. Is there a difference between “discrimination” that is based on sexual orientation (“gay people”), and that based on race, sex, or religion? Attorneys on the other side and the more liberal justices hammered on the race analogy—if we allow a baker to refuse to bake a cake for a same-sex wedding, can he also refuse to bake a cake for a black child’s birthday?

Now, before discussing the question of whether “discrimination” based on “sexual orientation” is the same as racial discrimination, let me state my own view that refusing to participate in a same-sex wedding does not constitute discrimination based on “sexual orientation” at all. Phillips’ principal objection stems primarily from his religious beliefs about the definition of marriage (that it is inherently a union of one man and one woman) and his beliefs about the appropriate boundaries of sexual conduct (that it should only take place in the context of a marriage so defined). This has nothing inherently to do with the “sexual orientation” of the individuals involved.

Phillips would bake a cake for a wedding of two people who self-identify as homosexual—if they were of the opposite sex. And he would not bake a cake for a same-sex wedding, even if the individuals involved identified as heterosexual. If those examples sound absurd, it is only because in our time we have a cultural assumption that an indispensable purpose of marriage is the gratification of sexual desires. Yet that is an assumption about marriage that has by no means been universal in all times and all cultures, and the Court need not adopt it as a legal assumption today.

The Colorado public accommodations non-discrimination law that Phillips was charged with violating makes no distinctions among its protected categories. But that is not the legal question at issue. Phillips is asserting a claim under the U.S. Constitution, which (if successful) would override a state statute. The question is whether the “discrimination” he is accused of gives the government a compelling interest in overriding that federal constitutional claim. Under federal court precedents, there is a distinction to be made between race and sexual orientation. Classifications of individuals on the basis of race are subject to “strict scrutiny,” which means that they can very rarely be justified. The Supreme Court has never said that classifications based on “sexual orientation” are subject to the same high level of scrutiny.

I have argued elsewhere that the reason classifications based on race are subjected to the highest scrutiny is because race is, indisputably, a characteristic that is inborn, involuntary, immutable, innocuous, and in the Constitution. “Sexual orientation” does not meet the same criteria. In fact, its definition is not entirely clear, since depending on the context, it may refer to a person’s sexual attractions, their sexual behavior, or their self-identification, or some combination of the three. The three aspects of sexual orientation are also not always consistent in one individual at one time, or over the life course. A person’s sexual attractions may indeed be involuntary (I am not saying people “choose to be gay,” if “being gay” is defined based on attractions alone). However, a person’s sexual behavior and self-identification do not meet any of the criteria which justify strict scrutiny of racial classifications. For those who disapprove of homosexuality, it is almost entirely the conduct—not the attractions or even the self-identification—which is seen as problematic.

I realize that in a 2010 case (Christian Legal Society v. Martinez), Justice Ruth Bader Ginsburg wrote for the 5-4 majority, “Our decisions have declined to distinguish between status and conduct in this context.” The “context” she referred to was a sexual orientation classification. (In that case, the University of California’s law school had denied recognition to a Christian student organization because they did not permit people who engaged in “unrepentant homosexual conduct” to serve in leadership positions.) “CLS contends that it does not exclude individuals because of sexual orientation,” reported Ginsburg, “but rather ‘on the basis of a conjunction of conduct and the belief that the conduct is not wrong.’” An analysis in the New York Times described Ginsburg’s sentence rejecting the distinction between “status and conduct” as a “time bomb” which could explode with broader implications in later cases (as it did in the later cases involving the definition of marriage).

Justice Anthony Kennedy himself, however (despite having been the decisive vote in the decisions striking down both federal and state definitions of marriage as the union of a man and a woman), seemed to hint that he might be willing to defuse the status-conduct “time bomb” in the context of the Masterpiece case. Here is part of an exchange with David D. Cole, the attorney representing the same-sex couple, after Cole repeatedly asserted that Jack Phillips’ action was “identity discrimination”:

JUSTICE KENNEDY: Well, but this whole concept of identity is a slightly—suppose he says: Look, I have nothing against—against gay people. He says but I just don’t think they should have a marriage because that’s contrary to my beliefs. It’s not –

MR. COLE: Yeah.

JUSTICE KENNEDY: It’s not their identity; it’s what they’re doing.

MR. COLE: Yeah.

JUSTICE KENNEDY: I think it’s — your identity thing is just too facile. [Emphasis added.]

Whether the court has distinguished between homosexual conduct and an “identity” or “status” as “gay” in prior decisions or not, the distinction clearly exists in the real world, and it makes sexual orientation different from race (or sex). It would be salutary for the Court to acknowledge that now.

3. “Why is it just about weddings?”

The third axis of line-drawing posited by Kagan has to do with the type of events which, hypothetically at least, might trigger a religious objection and therefore a religious or free-speech exception to anti-discrimination laws.

However, it is clear that the liberty Phillips is seeking in this case has specifically and narrowly to do with weddings because of the nature of that event. He and his attorneys have repeatedly made clear that Jack Phillips regularly serves customers who openly self-identify as gay. His policy of not creating custom cakes for same-sex weddings therefore bears no resemblance to racially segregated businesses in the Jim Crow south, which either did not serve black customers at all, or would only serve them in physically segregated facilities.

Phillips’ attorney Kristen Waggoner described his objection regarding weddings most succinctly in her final summation, when she said this:

A wedding cake expresses an inherent message that is that the union is a marriage and is to be celebrated, and that message violates Mr. Phillips’s religious convictions.

This single sentence makes two distinct points. The “message … that [a same-sex] union is a marriage … violates Mr. Phillips’s religious convictions” (because his Christian faith teaches him that “marriage” can only be defined as the union of a man and a woman). In addition, the “message … that [a homosexual] union … is to be celebrated” also “violates Mr. Phillips’s religious convictions” (because his Christian faith teaches that homosexual relationships are sinful—that is, always contrary to the will of God).

Neither of these objections, however, would apply to providing baked goods for a birthday celebration or a funeral reception for someone who identifies as gay, because neither a birthday nor a funeral sends “an inherent message” that marriage can be between people of the same sex, nor that sexual relations between people of the same sex are to be celebrated. Only a wedding (and potentially a wedding-related event, such as a shower or anniversary) sends that particular, and particularly objectionable, message.

In fact, Solicitor General Noel Francisco seemed to me to at least hint at an argument for an even broader exemption than what Phillips’ own attorney, Kristen Waggoner, was requesting. Waggoner argued narrowly that the specific act of creating a custom wedding cake was a form of creative, artistic expression that merits free speech protection. Francisco, however, made repeated reference (seven times, by my count) to the wedding itself as an “expressive event.” This, it seems to me, would suggest that any participation in the celebration of a same-sex wedding—even if it involves less creative artistry than the creation of a custom-made cake—could constitute implicit endorsement of the message in support of same-sex marriage and in support of homosexual unions that is inherent in the event itself.

The Three-Dimensional Solution

Justice Kagan’s concern was that drawing lines too broadly on all three axes she described would result in exceptions that would completely swallow the rule of Colorado’s public accommodation non-discrimination law. If we allow exceptions for bakers, what about other vendors? If we allow exceptions for sexual orientation, what about other protected categories? And if we allow exceptions for weddings, what about other events? If broad exemptions are granted in all three areas, then, as she said, “whoa, this doesn’t seem like such a small thing.”

I believe, however, that there are sound reasons for narrowing the exemption regarding protected categories only to sexual orientation—logically, because it involves primarily conduct, and legally, because it is not subject to strict scrutiny and is never mentioned in the text of the Constitution. As noted above, there are also reasonable grounds for treating a wedding differently from other events.

With the lines drawn narrowly with respect to those categories, I think there would be room for the line regarding which vendors can claim free speech protection to be drawn a bit more broadly. I would like to see the Supreme Court adopt Solicitor General Francisco’s view of a wedding itself as an “expressive event”—and therefore extend the protection against “compelled speech” to any vendor who provides wedding services—whether baker, florist, or photographer, or calligrapher; or even chef, hair stylist or makeup artist.

Such a decision would leave Colorado’s non-discrimination law intact, while still recognizing the elevated threat to freedom of conscience that arises in the narrow and unique situation of participation in celebrating a same-sex wedding.

Will the Supreme Court Recognize Consumable Beauty in Wedding Cake Case?

by Peter Sprigg

December 4, 2017

On Tuesday, December 5, the Supreme Court will hear arguments in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission. The latter agency ruled that baker Jack Phillips, a Christian, had violated a state law against discrimination based on sexual orientation in public accommodations when he declined to design a wedding cake for a same-sex couple.

One of the key arguments being made on Phillips’ behalf is that the creation of (or decision not to create) a custom-designed wedding cake is quite different from simply buying a product off the shelf, because it is an act of creative artistic expression—and is therefore protected by the First Amendment.

In light of that, one of the more fascinating briefs filed in the case came from a group of “cake artists as amici curiae in support of neither party.” While taking no position on the other arguments in the case, this brief does assert that “this Court should make clear … that cake artists are indeed practitioners of an expressive art and that they are entitled to the same respect under the First Amendment as artists using any other medium.”

Among the unique aspects of this brief are that it includes full color photographs of a number of unique, creative, and beautiful cakes for both weddings and other events. However, I also thought that this paragraph (on p. 33)—challenging the argument that cakes are not “art” because they are designed to be eaten—was a work of beauty in itself:

For example, cakes are perishable, designed to radiate beauty but for a moment, and then to be consumed. But the fact that any given cake is a vanishing work does not distinguish it from artistic performances on the stage (or, indeed, protests on the street). Nature’s beauty is no less revealed through the flower that blooms for a single day than through the tree that lives for a thousand years; likewise, an ice sculpture is not inherently less artistic than one carved from stone. The same is true of cakes—they are made from a canvas designed for consumption rather than permanent display. And like other vanishing works of art, cakes can be given a measure of permanence by being recorded—as with the pictures in this brief. Cake is not the only “art” than can be consumed—but the consumption of cake merges more senses (sight, taste, touch, smell) than the consumption of a speech or a song.

10th Circuit Lets Police Officers Off the Hook After Telling Woman She Could Not Pray in Her Own Home

by Travis Weber , Natalie Pugh

November 22, 2017

First Liberty, a non-profit law firm, recently filed a petition for certiorari with the Supreme Court on behalf of their client, Mary Anne Sause, after the 10th Circuit ruled that the police officers who told her she could not pray did not clearly violate her rights. As recounted by the court, and alleged in her complaint, the police officers entered Sause’s house to investigate a noise complaint. When one officer left to search the house, an action he did not provide a valid reason for, Sause became frightened and asked the officer with her if she could pray. The officer said she could and Sause knelt on her prayer rug and began to pray. Once the other officer returned to the room he allegedly ordered Sause to get up and stop praying as he and the other officer began to mock Sause for praying and tell her that she should leave the state since no one liked her. As recounted, the behavior of these officers is reprehensible in multiple ways. Yet it is also troubling that the 10th Circuit let the officers off the hook for their actions in this case.

In its opinion, the court held that even assuming the police officers violated Sause’s First Amendment rights when they told her to stop praying, the officers had qualified immunity and therefore could not be held responsible.

Qualified immunity is a legal doctrine that protects public officials, such as police officers, from liability if their actions did not violate a clearly established law or constitutional right. Because the specific circumstances of this case had never been presented to the 10th Circuit before, that court claimed the officers did not violate a clearly established law and were protected by qualified immunity.

Yet the right to exercise your religion, in this case the right to pray, is clearly established—in the Constitution. While it is difficult to expect police officers to perfectly understand the legal dynamics of every possible situation they might encounter with a civilian, and thus qualified immunity may be necessary in some contexts to allow police officers to do their jobs effectively, the violation in this case is nevertheless obvious and the officers responsible should not be allowed to hide behind qualified immunity.

It is essential that officers understand basic rights—including our First Amendment rights—named in the Constitution, which every student learns in public school. To claim that a police officer shouldn’t be expected to know that an American citizen has the right to pray in a context like that alleged in this case is a dangerous turn.

The Supreme Court should take up this case and declare to the nation that religious freedom is a vital constitutional right which should be respected by all public officials. No individual in a country which claims to protect the religious liberty of its citizens should ever be told that they cannot pray.

Why It Is Unnecessary to Force Jack Phillips to Bake a Wedding Cake

by Travis Weber

November 21, 2017

There are actually a number of answers to this question, but one of them is quite simple: because there are so many others nearby who are happy to do so.

One amicus brief filed in support of Jack Phillips by numerous law and economics scholars, including the esteemed Richard Epstein, makes this point quite nicely.

That brief points out that according to a search on Gayweddings.com, there are 67 other bakeries in the Denver area alone that are willing to create a same-sex wedding cake, including one that is only 1/10 of a mile from Jack Phillips’ Masterpiece Cakeshop. Forty-two of these bakeries are shown below; notice where they are compared to Jack’s shop, marked by the orange circle:

Given all these shops that are happy to create a wedding cake for a prospective same-sex couple, is it really necessary to force Jack Phillips to be the one to do so?

While the prospective customers may be offended at Jack’s beliefs, part of living in a free country is that we interact with people who believe differently than us.

Yet they can easily travel nearby and obtain the cake from someone else—someone happy to help create it.

Meanwhile, forcing Jack Phillips to create the cake comes with the heavy cost of forcing him to violate his conscience or stop designing wedding cakes (and potentially go out of business).

Regardless of our personal views on the issue, that is not a vision of American “freedom” that any of us should want to be a part of.

 

Religious Freedom for Bakers is Common Ground for Most Americans

by Natalie Pugh

November 13, 2017

The Cato Institute published their Free Speech and Tolerance Survey for 2017 at the end of October. In their research, they asked over 2,000 United States citizens about their opinions on free speech. Their study revealed that 50% of Americans think businesses with religious objections should still be required to serve those who identify as gay and lesbian as a general rule (which the wedding vendors who have been sued are happy to do), but 68% believe a baker should not be required to bake a custom wedding cake for a same-sex wedding ceremony. These results show that, at least on this issue, Americans can identify and support a genuine desire to live according to one’s religious beliefs.

The survey also revealed that most Americans feel that political correctness is preventing important discussions (71%) and feel afraid to voice their opinions (58%). Additionally, while an overwhelming majority (79%) of Americans find hate speech “morally unacceptable,” only 40% believe the government should prevent public expressions of hate speech.

If most Americans believe in the value of free speech, even to the point of allowing hate speech, why is there so much outrage over speech in our society? The problem lies in the conflicting ideas of what Americans find offensive. In the survey, people’s answers followed closely to party values. Despite their support for free speech as an idea, most strong liberals (51%) think it’s acceptable to punch Nazis; and most conservatives (53%) support revoking citizenship status of individuals who burn the American flag. While both sides of the political spectrum would like to punish specific speech that they find offensive, they need to recognize that taking away free speech would hurt each other equally.

There is no clear consensus on what classifies as “hateful” or “offensive” speech among Americans. A majority of liberals (59%) think saying people who identify as transgender have a mental disorder is hate speech, however the majority of conservatives disagree. While 39% of conservatives think saying the police are “racist” is hate speech, only 17% of liberals agree. Given the highly partisan viewpoint that individuals are placing on speech, any laws to censor speech would be completely dependent on which political party was currently holding a majority on Capitol Hill. This would destroy the basic principle of free speech.

The right to speak freely is a foundational right of our nation. It allows citizens to voice their displeasure with our current government, society, or situation, and through dialogue, devise a plan for improvement. Without this right, citizens would lose the ability to hold their government accountable or merely express their opinions, as the party in power could suppress the spread of any ideas they disliked. This could have devastating effects on Americans’ right to assemble, right to protest, freedom of the press, and religious freedom.

Has society already destroyed the acceptance of free speech? A majority of Americans are afraid to publicly voice their opinions. It’s not hard to imagine why when 59% of Democrats believe employers should punish their employees for offensive Facebook posts. However, freedom of speech is still a constitutional right for every American citizen. While an argument for censorship can sound convincing in today’s divisive climate, it is important to remember the equality that freedom of speech gives to each citizen.

Ultimately, we need to remember the origin of the Bill of Rights that our Founding Fathers fought so hard to achieve. Being occasionally offended is a small price to pay to ensure freedom of speech for all citizens, regardless of their political party. 

Georgetown University’s Identity Crisis

by Kelly Marcum

October 27, 2017

In today’s bitter and vitriolic political climate, there are few labels more intellectually lazy than “hate group.” When you label an entity as a “hate group,” you automatically demonize it. In so doing, you immediately remove from your shoulders any mantle of responsibility to dialogue or engage in civil discourse with this denounced entity. “They” are haters and must be sacrificed at the altar of tolerance without any further question.

This cowardly melodrama is currently playing out at our nation’s oldest Catholic university, where a student group has come under attack for taking the allegedly “hateful” position that Christianity got it right when it said sexual relations were meant for marriage, and that marriage was meant to be between a man and woman.

Students at Georgetown University founded Love Saxa, an affiliate of the Love & Fidelity Network, because they saw a gaping void on campus. In the face of the ubiquitous hookup culture, widespread pornography usage, increasing sexual assaults, and attacks on the institution of marriage, Love Saxa sought to be a voice that would argue for the cultivation of healthy relationships, the repossession of sexual integrity, and the defense of traditional marriage.

Love Saxa’s position is not a popular one, particularly on a D.C. campus of politically active millennials. But one would hope that its place at a Catholic university, even one so liberal as Georgetown, would provide some level of security.

Alas, however, when the utter complacency of the Georgetown University administration is combined with the insatiable appetite of social justice warriors, no strand of orthodox Christianity can be left unthreatened.

On Monday, members of Georgetown’s Pride group filed a petition to sanction Love Saxa and strip it of its university funding and ability to operate on campus. Several days earlier, the editorial board of Georgetown’s student paper The Hoya—whose staff clearly hold up CNN and The New York Times as paragons of journalistic integrity—penned an op-ed accusing Love Saxa of fostering hostility and intolerance because of their commitment to the Christian view of procreative marriage.

The authors of the article at least recognize that Love Saxa’s mission statement is in line with the Catholic Church’s view of marriage and sexuality; however, their faculties of logic fail them when they go on to claim that despite upholding the same faith as their university, Love Saxa is violating the university’s code of conduct by arguing against same-sex marriage.

But then, logic and rationality needn’t play a large role when one can simply bandy about “hate group” terminology. The Left’s modus operandi appears to be to toss out words like “intolerant” and “dehumanizing” alongside a few accusations of “hostility” and “bigotry” and hope that in the subsequent maelstrom of indignant outcries, no one notices the utter lack of coherency in their position.

Unfortunately, their ploy has proven successful far too frequently. Even now, in the face of this sham of a petition, Georgetown’s official statement is predictably weak, and they even appear to be giving a semblance of credence to the calls to silence Love Saxa:

As a Catholic and Jesuit institution, Georgetown listens deeply and discerningly to the plurality of voices that exist among our students, faculty, and staff and is committed to the care of each member of our community,” Rachel Pugh, a university spokesperson, said.

Pugh provides no further clarification of how the school will deal with a “plurality of voices” when only one voice is defending the faith it purports to believe. G.K. Chesterton wrote that “tolerance is the virtue of the man without conviction,” and, speaking as a Georgetown alumnae and a founding board member of Love Saxa, it is unfortunate—though I confess not entirely unexpected—that Georgetown is once again revealing the tepidity of its own commitment to Catholicism, and choosing the “tolerant” path over that of conviction.

Perhaps they think doing so will quiet the liberal voices calling for the disbanding of Love Saxa, but that is a position so naive as to be indefensible. The Left has proven that it does not stop in its quest to silence its opposition, no matter how “discerningly” that opposition hears its complaints. No compromise is sufficient for them. Once given an inch, these forces of illiberal liberalism demand a mile. Chad Gasman, a sophomore at Georgetown and the president of GU Pride, told The Hoya that this petition, which he helped to file, will “force Georgetown University to actually be queer-friendly and queer-affirming.” Such a statement reveals that nothing short of an open endorsement of all same-sex relationships, including marriage, will be enough, no matter how much it defies the faith of the institution they have chosen to attend.

If Love Saxa is banned from defending the Christian vision of sexuality and marriage, how will the Jesuits of Georgetown be able to refrain from referring to their own Church as a “hate group”? How long before they will be called on to condemn the doctrinal tenets of Catholicism?

Kelly Marcum is the Government Affairs office coordinator at Family Research Council. A founding member of Love Saxa, she graduated from Georgetown’s School of Foreign Service in 2015.

In Today’s Media Environment, It’s “News” When the Department of Justice Actually Enforces the Law

by Travis Weber

October 19, 2017

When Attorney General Jeff Sessions announced that he was sending an experienced DOJ attorney to prosecute the murder of a transgendered individual in Iowa, while at the same time announcing that the DOJ would properly interpret Title VII’s prohibition on sex discrimination as not including “gender identity” or any other category, progressive activists and some media outlets were confused.

Slate called this “a move that surprised some familiar with his record on LGBTQ rights,” and The New York Times observed, “[i]n taking th[is] step, Mr. Sessions, a staunch conservative, is sending a signal that he has made a priority of fighting violence against transgender people individually, even as he has rolled back legal protections for them collectively.”

Yet the real story here is how media and activists are puzzled by the supposed “contradiction” in these steps—a contradiction which only exists if one is looking at law as an activist does—as a means to an end. All AG Sessions is doing in both of these situations is simply enforcing the laws on the books.

The reason for the confusion in some quarters is that the modern progressive activist, who looks at law as nothing more than a tool to accomplish policy preferences, cannot conceive of the idea of an attorney general and DOJ that would actually fairly and faithfully apply the laws that currently exist—even if such application cuts across the usual social and political dividing lines. They can’t conceive of those in power actually looking at their job objectively and simply enforcing the law, regardless of whether they agree with it as a policy matter. Yet a constitutional conservative, who understands the Constitution as the Framers did, looks at this as the only right approach.

The fact that these two decisions by AG Sessions cut across social and political lines thus causes confusion in the activist’s mind.

Regardless of one’s policy position on transgenderism, federal criminal law does currently consider murders of individuals which the perpetrator allegedly targets because of their perceived or actual gender identity to be a separate criminal offense. Regardless of Jeff Sessions’ personal views on gender identity, he is bound to enforce that law. That’s what he is doing in this case.

Meanwhile, regardless of one’s policy position on transgenderism, federal employment law does currently consider sex discrimination to be prohibited—and only sex discrimination. Unlike the federal criminal law, Title VII does not list “gender identity” as a separate class. Thus AG Sessions will enforce the law as written—prohibiting sex discrimination—and nothing more.

This is in stark contrast to the previous administration’s approach, which cherry-picked which laws to enforce and which laws to ignore based on their political ideology. Under AG Holder, the Obama administration unilaterally decided to include gender identity in sex discrimination protections. Now, all AG Sessions is doing is returning us to the status quo.

This is only remarkable if one views everything—including the law—through an ideological lens out of which one must achieve uniform policy results. The rule of law itself has no value, and makes no sense, to such a person.

But AG Sessions’ actions make perfect sense if law is to be followed, not twisted to serve a purpose. Until and if Congress changes the law, the DOJ will enforce what is currently written. This is a welcome change for all who want to live under the rule of law.

Is the Air Force Finished With People of Faith?

by Travis Weber

October 18, 2017

Is it really possible that the Air Force no longer has room for people of faith? Based on the matter of Colonel Bohannon, that may sadly be the case.

Leland Bohannon is a decorated colonel who has devoted decades of his life to serving our Air Force, including flying missions in the B-2 stealth bomber. He’s been ranked first on his performance reports, has been bestowed numerous honors, and trusted with oversight of nuclear weapons. In other words, he’s the model Air Force officer.

Yet Colonel Bohannon’s career may be flushed down the drain by the Air Force simply because of a subordinate who wanted approval of a same-sex marriage. When he was handed several awards and certificates to sign for the subordinate’s retirement ceremony, Colonel Bohannon signed all of them except a “certificate of spouse appreciation”—which he couldn’t in good conscience sign because the certificate was for a spouse of the same sex. He sought advice about what to do from his chaplain and attorney; the chaplain told him to ask for a religious accommodation. He submitted one but it was returned six weeks later “without action.” In the meantime, a major general offered to sign the certificate instead, and it was signed and presented to the subordinate. Yet when the subordinate saw that Colonel Bohannon was not the signatory, he filed an Equal Opportunity complaint against him, alleging discrimination on the basis of sexual orientation.

The EO investigator found that Col Bohannon violated Air Force regulations and “unlawfully discriminated against the MSgt based on sexual orientation.” The EO investigator recognized that a religious accommodation had been sought, but claimed that “even had the accommodation been granted, Col Bohannon would nonetheless be guilty of unlawful discrimination.”

As a result, his superior “suspended Col Bohannon from command, withheld his decoration, and submitted a letter to the Air Force Brigadier General promotion board—the rank for which Col Bohannon is eligible—recommending that Col Bohannon not be promoted.”

Not only is this entire side-show an absurd waste of time, it is clearly unlawful and unconstitutional. The EO investigator is apparently ignorant of the law in this area; if a religious accommodation is granted, that means by definition that he’s not “guilty of unlawful discrimination”—because he’s been granted an accommodation. Moreover, religious freedom law and military policy demand that he be granted an accommodation in an instance like this—where the objective is easily fulfilled with another signature on the certificate.

At best, this entire matter is a distraction for Colonel Bohannon. At worst, it could end his career. That’s the track this train is currently proceeding on.

Thankfully, our friends at First Liberty are on the case, and those in the media like Todd Starnes are calling attention to this. Let us hope the Air Force fixes the issue before the entire situation is derailed and the military environment only grows more toxic for people of faith. 

The New Religious Exemptions from the HHS Contraceptive Mandate Are a Victory for Personal Freedom (and Responsibility) Over State Coercion

by Peter Sprigg

October 12, 2017

Linda Greenhouse of the New York Times has written a column critical of the Trump administration’s recent announcement of broad religious and moral exemptions to the HHS mandate under Obamacare that required employers to provide free contraception as part of any health insurance plan.

Greenhouse begins her column this way: “Saudi women are gaining the right to drive. American women are losing the right to employer-provided birth control.”

At least she was honest enough to not use the hyperbole of saying, “American women are losing birth control.” The government remains powerless to prevent women (or men) from purchasing and/or using birth control if they choose to. The vast majority are not even losing “employer-provided birth control,” since the percentage of employers likely to claim either a religious or moral objection is always likely to be tiny. No, they are only losing “the right to employer-provided birth control”—meaning the government will no longer coerce said employers into providing birth control.

However, this admirable precision in language means that her analogy with Saudi women simply does not work. American women are not losing “the right to use birth control,” which might be analogous to “the right to drive.” For the analogy to work, she would have to say, “Saudi women are gaining the right to employer-provided automobiles.”

But this, of course, is ridiculous. No one—in Saudi Arabia, or in the United States—has ever had “the right to employer-provided automobiles.” This, despite the fact that (I would argue) access to transportation is far more fundamental to having a free and prosperous life in the modern world than is access to birth control. We simply expect people who want to own automobiles to purchase them themselves. Of course, some people are too poor to buy a car, and must often rely on public transportation—but even that is not provided for free, but requires payment of a fare. What is so exceptional about birth control that private employers should be forced by the government to provide it at absolutely no cost to the user?

Greenhouse says, “I used to think … that the resistance to the contraception mandate was fueled by cultural conservatives’ determination not to let federal policy normalize birth control.” If this were the case, the new administration’s policy would still fall short. Since pregnancy is not a disease, contraception, when used merely as a method of family planning, is by definition an elective item or service, rather than a medically necessary one that should be subject to any coverage mandate. Yet the Trump administration has actually left the HHS mandate intact—while simply allowing a much more expansive exemption for the small number of employers with religious or moral objections.

Now, however, Greenhouse goes further in reading the minds of conservatives, declaring, “The problem they have is with what birth control signifies: empowering women — in school, on the job, in the home — to determine their life course.” This paranoid Handmaid’s Tale view of the world is simply bizarre. I guess Greenhouse is oblivious to the many conservative women— empowered and powerful, every one of them—who have led the fight against the HHS mandate from its beginning.

The headline on Greenhouse’s piece online reads, “On Contraception, It’s Church Over State.” Yet no church dogma has been imposed on anyone. It remains perfectly acceptable (in the eyes of the federal government) for women and men to purchase and use birth control. But now, it is also acceptable (as it always should have been, under the First Amendment) for some religious people to object to materially participating in the process. In reality, the new rules mean, “It’s Personal Freedom (and Responsibility) over State Coercion.”

I suspect what Greenhouse is really upset about is the Trump administration setting back the Left’s attempts to “establish” their own religion—the Church of the Sexual Revolution—whose most fundamental doctrine is the unlimited right not only to sex, but to sex without consequences, with the federal government as the guarantor of that “right.”

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