Category archives: Religious Liberty

A good and balanced law

by Cathi Herrod, President, and Josh Kredit, General Counsel and Vice President of Policy, Center for Arizona Policy

June 2, 2015

Cross-posted by permission of the Center for Arizona Policy, part of a national network of partner organizations that advance faith, family, and freedom at the state level.

Many of you likely watched the scene unfold in Indiana last month where supporters of religious freedom sought to pass a fairly simple law called the Religious Freedom Restoration Act (RFRA).

The scene was eerily similar to what played out here in Arizona with the CAP-supported SB 1062. Ignoring the facts, opponents of religious freedom falsely claimed that the bill would allow individuals to have a license to do pretty much anything, all in the name of their free exercise of religion. Or in other words, they wrongly tried to say religious freedom would become the equivalent of Monopoly’s “Get Out of Jail Free Card.”

Yet what was lost in the debate, both here in Arizona and in Indiana is the reality of how these laws actually operate in a court-setting and in real life. They don’t provide a license to do whatever illegal activity somebody wants to do. Rather, they provide the court with a well-established and longstanding legal balancing test for analyzing competing interests.

To provide some background, Arizona has had a state-version of RFRA since 1999, and a nearly identical federal law has been in place since 1993. More than 20 states also have state RFRAs.

In a nutshell, RFRA ensures the government cannot force someone to violate their religious convictions unless the government meets a strict legal test. For the strict legal test, the government must show it has a really good reason for the law and that the law is narrowly tailored to achieve that objective. If the government does that, then the RFRA defense fails and the government law or action stands.

Although Indiana’s original version of RFRA was heavily amended after big business bullied the governor and legislature, the remaining law is still set to take effect on July 1, 2015.

This brings us to a recent story out of Indiana and a perfect example of how RFRA works. Calling his newly formed church the First Church of Cannabis, founder Bill Levin plans to break the law and openly smoke marijuana. If he is cited or arrested, he says he will claim Indiana’s RFRA for protection.

Unfortunately for Mr. Levin, this same ploy was attempted in Arizona already, and Arizona’s RFRA operated just like it’s supposed to.

In 2005, Danny Hardesty was arrested for possession of marijuana, and in court he claimed that the use of marijuana was a sacrament of his church, the Church of Cognizance. This case reached the Arizona Supreme Court in 2009, and in a unanimous ruling the Court ruled against Hardesty.

Even assuming Hardesty had a truly sincere religious belief to smoke marijuana, the Court found that the government has a good reason to prohibit marijuana use (the fact that it poses a real threat to individual health and social welfare, in addition to the public safety concern posed by unlimited use, particularly by those driving motor vehicles), and that “no less restrictive alternative [ ] would serve the State’s compelling public safety interests and still excuse the conduct for which Hardesty was tried and convicted.”

So there you go, RFRA is not a “Get Out of Jail Free Card,” and it does not provide a license to do whatever illegal activity someone wants. Rather, it is a time-tested and just law that allows for courts to acknowledge when the government overreaches and burdens someone’s free exercise of religion, and to balance that against the reasons for the government action.

Please watch for the launch of the 3rd edition of The Policy Pages later this fall, which will include a brief devoted solely to explaining how laws like the Religious Freedom Restoration Act work.

 

Telling the Stories

by Family Research Council

June 1, 2015

America has long protected the religious liberty of its citizens and we are blessed to possess the great freedoms that we do. But it is not enough to cling to nostalgic arguments about our history, we must reclaim our most sacred freedoms anew with each generation. Telling stories is one of the best ways to communicate values and encourage action. FRC has launched a new website that seeks to tell the stories of the many men and women in America who have experienced government bullying because of their faith. Religious liberty is sacred and we must listen to the stories of those who have seen it threatened. It is our duty to protect with vigilance what our forebears have passed on to us.

Kentucky Judge Affirms First Amendment

by Travis Weber

April 28, 2015

In an Opinion and Order released yesterday — and a model explanation of what the First Amendment is designed to protect — a Kentucky state court judge explained why a small business owner could not be forced to print a message to which he objected on t-shirts requested by a customer.

Hands on Originals (HOO) is a small business in Kentucky which makes promotional products like hats, shirts, bags, etc., and prints messages on these products for its customers. The business is owned and run by Blaine Adamson and other Christians who want to express their faith as they run their business.

HOO was asked to produce t-shirts for the “Lexington Pride Festival” organized by the GLSO (Gay and Lesbian Services Organization), but the owners had personal objections to promoting the message of the event and preferred not to.

For as the Kentucky court notes, “producing the t-shirts as requested would require HOO to print a t-shirt with the words ‘Lexington Pride Festival’ communicating the message that people should take pride in sexual relationships or sexual activity outside of a marriage between a man and a woman,” and “Adamson has consistently expressed his belief that this activity would disobey God if he were to authorize HOO to print materials expressing that message.”

Thus, Adamson told [GLSO] that HOO could not print the t-shirts because those promotional items did not reflect the values of HOO and HOO did not want to support the festival in that way.”

Based on the above, the Kentucky court clearly and unambiguously found that the First Amendment protected Adamson and HOO from government coercion requiring them to print the t-shirts.

The First Amendment’s Free Speech Clause prevents the government from compelling and coercing private citizens to communicate a message or speak against their will. As the Supreme Court said in Wooley v. Maynard, these protections include “both the right to speak freely and the right to refrain from speaking at all.”

If the Supreme Court held in Wooley that the First Amendment ensured motorists could not be forced to display a license plate with the motto “Live Free or Die,” then Blaine Adamson cannot be forced to produce for a customer a t-shirt which he does not want to display.

As the Kentucky court correctly pointed out:

The Hearing Commissioner in its Order attempted to distinguish Wooley from the case at bar with the explanation that “In this case there was no government mandate that the Respondent (HOO) speak.” (Hearing Commissioner Order at p 14). If this is characterized as a Finding of Fact, it is inaccurate, is not supported by the Record and is clearly erroneous. In fact, HOO and its owners, because they refused to print the GLSO t-shirts that offended their sincerely held religious beliefs, have been punished for the exercise of their Constitutional rights to refrain from being forced to speak. The statement is not a fair or accurate Conclusion of Law either based upon precedent from the United States Supreme Court. HOO and its owners have a Constitutional right to refrain from speaking just as much as they enjoy the Constitutional right to speak freely. Wooley, supra.

The court dismissed the argument that HOO treated homosexual groups any differently from heterosexual groups by pointing out that HOO declined to print 13 orders based on the message — whether it was homosexual or heterosexual — over the course of several years. In all cases, HOO declined to print the message because of religious objections, not because of the sexual orientation of the customers.

Indeed, the facts reveal that “[a]t no time did GLSO representatives Lowe or Shepherd disclose their sexual orientation and no HOO representative inquired of them about that issue.”

Moreover, Adamson has a policy for his business, clearly stated on the website, that:

Hands on Originals both employs and conducts business with people of all genders, races, religions, sexual preferences, and national origins. However, due to the promotional nature of our products, it is the prerogative of Hands on Originals to refuse any order that would endorse positions that conflict with the convictions of the ownership.”

If Adamson employs people regardless of their sexual preferences, and at the same time has explicitly stated he rejected the t-shirts due to their message, how is it even conceivable that he made any decision (hence “discriminated”) on the basis of the sexual orientation of the customer?

The Kentucky court also found that the Supreme Court’s decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston — holding that under the First Amendment a private citizen cannot be required by the government to include a group in a parade and thus convey message the citizen did not desire to convey — required the same result in this case, where a private citizen could not be required by the government to print a shirt conveying a message the citizen did not desire to convey. Importantly, the Hurley Court held that public accommodations laws could not be used to trump the First Amendment rights of private speakers. Likewise, even though HOO is considered a place of public accommodation, its First Amendment rights cannot be trampled on that basis in this case.

The Kentucky court finally found that Kentucky’s Religious Freedom Restoration Act protected HOO’s rights. The statute covered corporations, and HOO and its owners have sincere religious beliefs which have been substantially burdened by the government decision here. Meanwhile, the government never even attempted to show a compelling government interest justifying its action; indeed, there cannot even be a compelling interest in making Adamson print the shirts when “[s]everal other printing companies later offered to print the t-shirts for GLSO for free or at a substantially reduced price,” and “HOO even offered to contact other printing companies to get the work done at the same price as quoted by HOO.”

Hopefully other courts facing issues regarding how constitutional rights intersect with nondiscrimination claims will look to this opinion as a model for how the First Amendment applies to these situations. We don’t give up individual liberty and the free expression of our beliefs just because we exercise those beliefs and seek to make a living. We must ensure that this continues to be the case.

What is the price of adhering to your faith?

by Travis Weber

April 24, 2015

$135,000.00

At least according to the State of Oregon. For that is the amount of the fine an administrative law judge (ALJ) recommended be levied against Aaron and Melissa Klein in his Proposed Opinion released today.

What did they do to deserve this fine?

They hold the belief that marriage is between a man and a woman, and asked that they be left free to live according to that belief as they continued to live as they always had — in a quiet, peaceable manner, running their small business.

Too bad, according to the State of Oregon.

For when a couple walked into their shop requesting that Aaron and Melissa create a cake to celebrate their same-sex wedding, the Kleins refused to violate their consciences to do so, the couple sued and brought the weight of the State of Oregon down upon their heads. The State Bureau of Labor and Industries charged them under various provisions of state law for this act of obedience to their consciences. Never mind that the couple was able to obtain another cake for their wedding within days and even received a free cake from celebrity pastry chef Duff Goldman. Aaron and Melissa must be forced to comply. Now the State is trying to force their compliance to the tune of $135,000.00.

The Proposed Opinion contains many errors. It is built on and reaffirms the ALJ’s previous, shoddy reasoning that none of the Kleins’ constitutional rights were seriously implicated in this case.

But chief among the errors here is that the ALJ completely focused on the emotional and other damages the aggrieved couple experienced throughout this matter — while completely ignoring the hateful vitriol directed at the Kleins and other ways they suffered throughout this entire ordeal. An opinion which considers one but not the other is not just. Not only have the Kleins’ constitutional rights been trampled, but their true suffering is ignored.

Moreover, as reflected in the Proposed Opinion, the State of Oregon continued to hound the Klein with demands for more and more punishment:

The [State’s] theory of liability is that since [the Kleins] brought the case to the media’s attention and kept it there by repeatedly appearing in public to make statements deriding Complainants, it was foreseeable that this attention would negatively impact Complainants, making [the Kleins] liable for any resultant emotional suffering experienced by Complainants.”

So according to the State of Oregon, discussing something of public concern which involves an individual’s constitutional rights being trampled is reason to ask the ALJ for further damages against them? (Of course, the Kleins did not “deride[]” anyone — that’s the State’s characterization).

More importantly, the ALJ proceeded to find that “the record contains limited evidence of any events involving [the Kleins] in the media or social media that publicized the cake refusal.”

After reviewing all the allegations of harm supposedly perpetrated by the Kleins, the ALJ concluded that emotional damages related to media and social media attention are not legally recoverable anyway.

However, he then recommended awarding $60,000 and $75,000 to the two aggrieved parties, respectively, based on a summary statement of the legal standard with virtually no analysis:

In addition to the State of Oregon’s obvious bias here, let us not forgot — neither the State nor the ALJ have recognized the fact that the Kleins have faced unprecedented antagonism for merely holding to their beliefs. It seems the no one wants to take responsibility for that. Moreover, the Oregon legal system does not seem interested in considering the substantial harm to the Kleins in its quest for “justice” — thus, there is no justice at all here.

We can only hope that the Kleins achieve justice at some point. Until then, what does this case mean for religious liberty more broadly?

As marriage is being redefined, and governments begin to tell individuals what (in their view) marriage is, individuals will (respectfully) disagree. Many believe marriage is instituted by God and no one can change that. And they will not be forced to violate their consciences by acting against those beliefs.

If we are to alleviate at all the threats to religious liberty going forward, legislative protections for those who dissent from the State’s view of marriage must be enacted. The American public overwhelmingly supports this idea. Recent nation-wide polling tells us that 81% of Americans believe government should leave people free to follow their beliefs about marriage as they live their daily lives at work and in the way they run their businesses.

In the United States, we have long had to live with differences of view among a diverse population. This has not been controversial in the past, and it should not be controversial today.

If you’d like to help the Kleins cover the cost of their forthcoming fines, or otherwise support them, please visit here.

Standing with my friend, Curt Smith

by Rob Schwarzwalder

April 7, 2015

In early 1991, Curt Smith hired me to serve in the press office of U.S. Sen. Dan Coats (R-IN).  He was my boss for more than three years, working in harness for one of the finest men to serve in the Senate in recent memory.

Curt is a gracious, soft-spoken man who has a deep love for people.  He was patient with me as I grew in my role and has been a friend for, now, nearly a quarter of a century.

He is also a committed follower of Jesus Christ  who, while working for the prestigious law firm Taft Stettinius & Hollister LLP, also served as head of the Indiana Family Institute.  Now, due to his support for Indiana Governor Mike Pence’s original religious liberty bill, Curt has lost his job.  As Indianapolis’s WISH-TV tells it:

Until last week Smith was the director of public policy at the Taft Law firm. One of its biggest clients is Cummins, the Columbus based engine manufacturer that was a leading opponent of the religious freedom law. Something had to give … (By) last week Smith was in the middle of a professional transition. As recently as Monday morning his Linkedin page showed him working at Taft Law. But an email sent to his law firm address came back with a message saying that he left Taft to join the Family Institute as President, even though his bio at the Family Institute website points out that he has actually held that position for 11 years. A spokesman for the law firm said that the purpose of the Family Institute didn’t match the purpose of the law firm but that it was Smith’s decision to leave … The Taft law firm, according the spokesman, has a principle of inclusiveness, and the when the Religious Freedom law was perceived to allow discrimination against gays and lesbians, that apparently posed an additional problem.

A “principle of inclusiveness?”  Really?  So inclusive that they part ways with the former state director of a sitting U.S. Senator who simply endorsed a bill signed by the democratically elected governor of one of the nation’s largest states?  A bill that mirrors the federal Religious Freedom Restoration Act (RFRA), signed into law by Bill Clinton and sponsored by then-Sen. Ted Kennedy?

It is a sad day for Indiana and for American law when a man as principled and talented as Curt Smith is de facto forced to leave his role with his employer because he believes that coercion and repression are not Hoosier values.  The moral cowardice of the leadership of Taft and its clients (including Cummins, about whose generous federal contracts I wrote myriad news releases when working for Sen. Coats) is repulsive. 

Curt Smith has the assurance of a loving God and the respect of many friends.  What do Taft, Cummins, and their compeers have?  Gaining the world at the cost of one’s soul is, according to Jesus, a bad bargain.  They might consider that a bit.

VIOLENT OR NON-VIOLENT, AT HOME OR ABROAD, IT’S STILL PERSECUTION

by Rob Schwarzwalder

April 2, 2015

As I write, militants from the Islamist Al-Shabab terrorist organization are holding Christian students hostage at a university in Kenya.  They are reported to have killed about 20 people so far.  Here’s a link to this breaking story: Al Shabab militants target Christians in Kenya university attack.

The violent persecution of Christians around the world is one of the crises of our time.  Doubt it?  Consider the following headlines from the past 10 days or so:

Suicide bombers kill 15 people outside Pakistani churches, mob attacks suspects in aftermathU.S. News and World Report

New Evidence of War Crimes, Genocide against Iraqi Christians, Yazidis – Christianity Today

China jails Christian pastor for protesting cross removal – Fox News

Strangers In Their Own Land’: Dilemma Of The Christian Populace In India – CounterCurrents

Christians in the Middle East May Disappear Within Two Years: Lebanese Leader – Assyrian International News Agency

Red Cross: ISIS Cutting Off Water Supply to Christians, Kurds as War Tactic – Breitbart

Here at home?  Consider this story, published this morning, about a restaurant in Indiana:

A small-town pizza shop in Indiana has closed its doors after the owners’ support of the state’s “religious freedom” law and pronouncement they would not cater a gay wedding brought fierce backlash. Kevin O’Connor, 61, who owns Memories Pizza with his two children in Walkerton, Ind., has closed the shop’s doors in hopes the furor will die down, but the family fears it will never reopen … O’Connor’s daughter, Crystal, says the family is considering leaving the state. On Tuesday, WBND Channel 57 interviewed members of the O’Connor family, who said they agreed with Gov. Mike Pence’s decision to sign the Religious Freedom Restoration Act. The family said the pizzeria is a “Christian establishment.” “If a gay couple came in and wanted us to provide pizzas for their wedding, we would have to say no,” Crystal O’Connor said. “We’re not discriminating against anyone, that’s just our belief and anyone has the right to believe in anything.” The family said it would serve gays or a non-Christian couple in the restaurant.

Brutal physical attack, imprisonment, and cutting-off water are persecution of a different type than that experienced by the Hoosiers described above.  But the O’Connors are being non-violently persecuted for their commitment to living-out their faith.

Georgia’s S.B. 129 would free all Georgians from the tentacles of government

by Travis Weber

March 19, 2015

Down in Georgia, opponents of individual rights and personal freedom are attempting to ratchet up their smear campaign against S.B. 129, the “Georgia Religious Freedom Restoration Act.”

This measure is simply designed to ensure that individuals’ consciences cannot be easily trampled by intrusive government regulation.

The claims against this common sense proposal are wild and confused. For example, some have claimed the bill gives businesses an absolute right to refuse service. This is patently false.

The truth is that S.B. 129 provides a method for sincere conscientious objectors of all religions to be protected, while winnowing out those using religion as a pretext to escape application of general laws.

To avail oneself of the protections of S.B. 129, you first have to prove you have a sincere religious belief which has been substantially burdened by the government action in question. Only then can the claim move forward. Even then, if the government can show it has compelling interest in burdening the religious practice — a religious practice of human sacrifice, for example, could be burdened — and has done so through the least restrictive means, it is allowed to burden the religious exercise in question.

This is a legal standard known as “strict scrutiny.” It has been used in constitutional law for decades, and has been applied to religious claims for over 20 years under the federal Religious Freedom Restoration Act (“RFRA”) without any documented pattern of abuses such as those claimed by the opponents of S.B. 129. As others have asked, where are these alleged “discriminators” who are supposedly walking away from criminal charges under RFRA? They simply do not exist.

RFRA simply restores previously strong protections for First Amendment rights. The federal RFRA does not apply to state or local action, so state RFRAs like S.B. 129 are needed. The Georgia RFRA under consideration here merely brings Georgia law into line with federal law.

Religious freedom laws like S.B. 129 never used to be (and still should not be) a partisan issue, as they protect those of all faiths and political persuasions.

The federal RFRA was supported by a broad coalition which cut across political and religious lines. This coalition was composed of groups with a diversity of interests, but they were united in protecting and bolstering the First Amendment.

Indeed, a review of RFRA and free exercise case law going back decades clearly shows its benefit to everyone from Muslims to Jews, Christians to Santeria adherents, and Native Americans to more obscure sects as they seek to protect their beliefs and consciences from being burdened by an ever-more intrusive government.

Now, sadly, many have subjugated their protection of the First Amendment to their political concerns. They have betrayed and slandered RFRA in order to advance their political interests, and in doing so, have compromised their stated principles of individual rights and freedom.

Moreover, RFRAs cut across racial and social lines, and apply in a variety of real-world scenarios, such as property disputes, social welfare (just this past year, the Texas RFRA served as protection for those seeking to care for the homeless), conscience objections to abortion, and restrictions on using controlled substances in religious ceremonies. They are not race-specific. They are not religion-specific. And they are not political party-specific.

By now it should be clear that S.B. 129, in merely applying the well-established strict scrutiny standard to claims of religious exercise, does not give anyone a “free pass” to “discriminate.” Indeed, it is notable that opponents cannot even cite to one instance of a business owner “openly deny(ing)” service, as it claims. The reason is that laws like S.B. 129 don’t provide any “free passes” — what they prescribe is that religious liberty claims must proceed through the framework described above.

For these same reasons, claims that the Michigan RFRA will “let EMTs refuse to serve gay people” and that the Arizona and Mississippi RFRAs from previous years are “right-to-discriminate” bills are completely misleading. When people are provided with a proper understanding of strict scrutiny’s application to religious claims, they can see that those making these “free pass” arguments are engaged in baseless fabrication.

Neither would S.B. 129 legalize child abuse, as opponents outlandishly claim. Child abuse and other criminal cases involving bodily harm are prosecuted routinely nationwide every day. These take place in states with laws like S.B. 129. Yet how often have we heard about successful religious freedom defenses to such prosecutions?

These S.B. 129 opponents have discredited themselves and revealed their political agenda by ignoring other instances of oppression to which the bill could bring relief right in their own backyard — like the state of Georgia’s termination of Dr. Eric Walsh for expressing his Christian views. Dr. Walsh preached sermons in his private capacity in his home church. Yet state government agents scoured his sermons for disapproved views on sexuality, and summarily terminated his employment when they found what they didn’t like. When Dr. Walsh is punished for his views, he’s being punished for his religion — right at home in Georgia.

The protections in S.B. 129 are the very protections needed to ensure the exercise of all religions — including that of Jews, Hindus, Muslims, and others — is protected. If its opponents had cared to represent this fact accurately, they would have observed that only this month, the U.S. Supreme Court ruled unanimously in favor of a Muslim inmate’s religious rights under a law applying the same standard as S.B. 129 — the federal Religious Land Use and Institutionalized Persons Act. Yet there is no mention of this or other such cases; this truth is too inconvenient for those leading opposition to the bill.

RFRA never was and should not become a partisan issue, as it protects those of all faiths and political persuasions. All Americans of every political party and any religious faith who care about individual freedom from government coercion should support S.B. 129. The bill’s text and our established practices for analyzing religious claims show that S.B. 129 will merely support conscience rights for all in the face of ever more intrusive government.

S.B. 129’s opponents, including an outfit called “Better Georgia” (which itself is backed by out-of-state groups), should be ashamed of what they have said about RFRA. Georgia does deserve better.

The Threat to Domestic Religious Liberties

by FRC Media Office

March 2, 2015

Anyone keeping a relatively close eye on the religious liberties landscape in this country cannot fail to sense a growing tension developing. Whether it’s anti-discrimination laws restricting the full extent of religious conscience, federal abortion coverage mandates demanding compliance from private catholic charities, or the tenacious Freedom From Religion Foundation mailing complaint letters to administrators demands the installment of laïcité in our public schools, the culture clash between church and state is anything but boring. The Christian Legal Society was fortunate to have Travis Weber of the Family Research Council come speak to us on the topic of Domestic Threats to Religious Liberty. We thank him for his time and for his commitment to fight for our first freedom.

Click here to listen to his remarks.

Archives