Category archives: Religious Liberty

New Poll Finds High Support for Religious Liberty

by Travis Weber

August 5, 2015

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

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

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

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

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

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

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

Craig James Files Suit Against Fox Sports Southwest

by Travis Weber

August 4, 2015

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

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

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

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

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

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

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

An Insufficient Accommodation

by Lindsey Keiser

August 3, 2015

Can an accommodation be accompanied by a requirement that essentially negates the accommodation and still be seen as sufficient?

To answer this question, we can use a simple example, which arises in the context of employment.

When you ask for a day off – and that day off is granted – you do not expect to be required to come in on your day off in order to tell your boss you won’t be there for the day. That would negate the grant of the day off.

The same is true when religious organizations ask for an accommodation from the employer mandate of the Affordable Care Act and the government offers an accommodation which does not fully meet the requests of these organizations regarding protection of their religious beliefs. Such an “accommodation” does not eliminate the burden on the religious organizations, yet courts have been approving the government’s “accommodation” as sufficient. Continuing the string of judicial denials of religious organizations’ requests, the Tenth Circuit recently denied an appeal from the Little Sisters of the Poor Home for the Aged (Little Sisters) finding that, with the “accommodation” offered by the government, there was no substantial burden on the group’s religious beliefs.

Religious organizations like Little Sisters, Priests for Life, and Notre Dame sincerely believe that life begins at conception so they object to providing abortive contraception as part of their employee health insurance plans. As a result of their sincere belief, these non-profits have asked for an accommodation under the HHS Mandate citing the protections of the First Amendment and the bar on the government substantially burdening the free exercise of religion. The religious non-profits have asked to not be required to participate in any aspect of the provision of abortive contraception.

Requiring these organizations to provide abortive contraception in contravention of their beliefs would be a substantial burden which HHS has recognized and for which HHS has created an accommodation. The current accommodation allows religious non-profits to voice their objection to providing abortive contraception by filling out a form or directly notifying HHS. After HHS receives notice of the objection, the insurance company offers and provides the abortive contraception to the employees.

The question remains, however, whether this “accommodation” is actually sufficient.

Yes, the organizations only have to fill out a form or notify HHS of their religious objection, but the mechanism of notification is not the problem. The problem is that the accommodation doesn’t change the end result. Abortive contraception is still being provided as a result of the fact that the organization provides health care for its employees.

As some dissenting judges in the Priests for Life stated, “Where the government imposes a substantial burden on religious exercise and labels it an accommodation, that burden is surely as distressing to adherents as it would be if imposed without such a designation.”

The answer to whether there is a substantial burden even with the current accommodation is tied to our understanding of an accommodation. When we look at the example in the graphic above, it is fairly clear that the agreement made by the boss does not adequately meet the employee’s request for a day off. Similarly, we should ask whether the current accommodation adequately meets the requests of religious organizations to not have to provide abortive contraception – or, as the Little Sisters have pointed out, to “take actions that directly cause others to provide them, or otherwise appear to participate in the government’s delivery scheme.”

The answer is no, the accommodation does not sufficiently meet the requests of these religious organizations and therefore, places a substantial burden on their religious exercise. The form or notification to HHS is an insufficient accommodation because the opting-out by the religious organizations is the direct cause of the receipt of coverage. The dissenting judges in the Priests for Life pointed out, “the harm plaintiffs complain of … is from their inability to conform their own actions and inactions to their religious beliefs without facing massive penalties from the government” (emphasis added by the dissenting judges). This harm does not disappear because their relationship to the provision of the abortive contraception becomes a little more attenuated.

Just as a day off from work which requires you to come into work is not really a day off, an insufficient accommodation is no accommodation at all.

Religious Liberty: The Prospect of Its Loss

by Rob Schwarzwalder

July 29, 2015

The managing editor of TheAtlantic.com, Emma Green, has published an important article, “Gay Rights May Come at the Cost of Religious Freedom.”

This is what concerned observers have been saying for years, especially in light of myriad examples of how free religious exercise has been penalized repeatedly when it conflicts with the “rights” of homosexuals (see FRC’s copiously documented “Free to Believe” site for numerous examples).  Just last week, Christian educational leaders from across the country joined FRC’s Travis Weber and Greg Baylor of the Alliance Defending Freedom on a nationwide webcast to explore how the Supreme Court’s Obergefell decision (finding a constitutional “right” to same-sex marriage) could well jeopardize the liberty and financial viability of religious schools and colleges. And I’ve just published an FRC Issue Brief on how the loss of tax exempt status could do profound harm to churches and religious organizations. 

Green’s article begins by noting a recent ruling by the Equal Employment Opportunity Commission that Green called “astounding:” It says that “sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.” This is, as Green notes, a “big deal” because it expands the definition of sex from one of biology to one of sexual “orientation,” meaning that homosexuality must now be regarded in federal law as such recognizably benign and immutable characteristics as race and ethnicity.

This should come as no surprise, really. The EEOC is led by Chai Feldblum, a former Georgetown Law professor who is reported to have said in 2006, “in almost all cases the sexual liberty should win because that’s the only way that the dignity of gay people can be affirmed in any realistic manner. I’m having a hard time coming up with any case in which religious liberty should win.”

Ms. Feldblum is, it would seem, as good as her word, a rare and laudable quality in the political class. Too bad that her commitment is to the side of anti-religious bigotry.

Many religious leaders, most particularly Evangelical Protestants and Catholics, have issued statements saying we will close our churches and schools and charities before bending the knee to any insistent demand we compromise the truth of Scripture and the self-apparent evidence of “the laws of nature and of nature’s God.” We have meant it. We continue to mean it.

The cost not only to the religious but to everyone who refuses to bow to subversions of our God-given liberties would be so high as to be difficult to imagine. They would render America a nation its Founders could never have imagined, a quasi-fascist state run by the repressive and coercive elites. 

It’s to avoid such a fate that we will use our “tools” with all the grace, truth, courage, wisdom, and tenacity we can muster.  We love our opponents too much to do otherwise.

Human Rights Campaign Doubles Down on Alternative Views

by Travis Weber

July 28, 2015

On Monday, the Boys Scouts of America voted to allow gay adults to lead troops and work in the organization, while still letting church-chartered troops make their own decisions on this issue. While this is disappointing considering the BSA had already won a long legal battle culminating in a Supreme Court win against those who wanted to disrupt the group’s First Amendment freedom of association and force it to admit those living lives inconsistent with its values, it was not unexpected considering the BSA’s other recent actions. Despite clearly having constitutional protection, the group gave it up anyway in order to be accepted and make the cultural tension go away. This latest decision is Exhibit A for the claim that law follows culture.

But perhaps even more troubling than giving up hard-won constitutional protections was the response of those who benefit from this change. Human Rights Campaign President Chad Griffin wasn’t totally satisfied with the change, but added: “Including an exemption for troops sponsored by religious organizations undermines and diminishes the historic nature of today’s decision. Discrimination should have no place in the Boy Scouts, period.”

Everyone should take note of such statements, as further claims by the HRC and their allies of wanting to protect religious liberty simply can’t be trusted. Maybe the HRC never cared about religious liberty in any form, but now just thinks it can get away with making such statements and doesn’t have to hide its disregard for the concept anymore. Who knows.

Regardless, as David French points out at National Review, the fact that the new BSA policy didn’t impose on religious liberty enough “displeased the lords of political correctness” like HRC, who “would rather destroy scouting than see it maintain its culturally and religiously conservative heritage.”

Roughly 70 percent of Boy Scout troops are chartered to religious institutions, most of them Catholic, Evangelical Protestant, and Mormon. If they are forced to choose between the moral teachings of their faiths and allegiance to a BSA that mandates acceptance of gay Scout leaders, they will opt for the latter. This will lead to the collapse of the Boy Scouts of America as a viable organization. However, this evidently is inconsequential to Chad Griffin and his allies in the LGBT movement.

The Mormon church has already expressed concern about this new policy. And many churches behind troops would rather just give up their troops than compromise their beliefs. According to another report on this decision, the “BSA has vowed to provide legal support to any church-backed chartered organizations that are challenged in court over the continued ban.” Far from being heartwarming, however, this statements seems to be a tacit acknowledgement that such suits will be forthcoming. Intolerance always takes its toll on democracy.

Contrast Griffin’s position with that of Michael Harrison, a businessman who led Boy Scouts in Orange County, California, who (though still supporting the resolution) said:

There are differences of opinion, and we need to be respectful of them … . It doesn’t mean the Mormons have to pick a gay scoutmaster, but please don’t tell the Unitarians they can’t.”

While still troublesome in light of the fact that the BSA didn’t need to voluntarily give up its protections, at least such a statement shows some respect for democratic pluralism, unlike Chad Griffin’s.

If the HRC and others are going to take the official position of not tolerating private free association in a democratic society, then we must start describing these groups as they have described themselves by their own free adoption of such a position: authoritarian, conformist, and Orwellian.

ACLU Again Betrays its Support of Individual Freedom

by Travis Weber

July 21, 2015

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

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

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

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

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

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

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

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

Federal Judge and the ACLU Agree that RFRA Protects Religious Exercise in the Military

by Travis Weber

July 1, 2015

In another affirmation that the Religious Freedom Restoration Act (RFRA) protects the constitutional right of free exercise for military service members, a federal judge recently ruled that the statute protected the rights of a Sikh to receive a grooming accommodation while enrolled as an Army ROTC cadet at Hofstra University.

After the Army denied the student’s accommodation request which was made when he sought to enter ROTC, the ACLU filed suit on behalf of the student, alleging that the denial violated RFRA (and citing the standard under the recent DOD Instruction 1300.17). In its complaint, the ACLU asserted the Army policy “substantially burdens his religious exercise because it mandates conduct that is prohibited by his religious beliefs and substantially pressures him to modify his behavior in violation of his faith.”

In ruling on these claims, the federal court in the District of Columbia noted that while there is judicial deference to military decision making, RFRA also clearly applies to the military; indeed, “[t]he Department of Defense expressly incorporated RFRA into its own regulations effective January 22, 2010.”

Under RFRA, if an individual can show that government action has substantially burdened their religious exercise, then the government has to show it has a compelling reason for burdening the belief, and has done so in the least restrictive way possible.

In this case, there was no dispute that the plaintiff’s religious beliefs were sincere, and the court found that they were substantially burdened:

Therefore, there is no dispute that the Army’s refusal to grant plaintiff the accommodation that would enable him to enroll in ROTC while maintaining his religious practice was a government action that required plaintiff ‘to choose between following the tenets of [his] religion and receiving a governmental benefit.’” Such a denial “constitutes a ‘substantial burden’ under RFRA.”

The court acknowledged that the military is a distinct area of society with very unique concerns regarding order and discipline. However, Congress clearly meant RFRA to apply to the military and the statute clearly applies to situations like this.

Its analysis continued: “This case appears to be the first to squarely present the question of how a court is supposed to incorporate traditional deference to the military into the RFRA strict scrutiny analysis.” Therefore, the court looked to an area to which Congress also clearly meant RFRA to apply—prisons. In that context, the Supreme Court ruled earlier this year in Holt v. Hobbs that a sister statute with the same standard—the Religious Land Use and Institutionalized Persons Act—required the strict scrutiny standard to be applied to each situation in a “‘more focused’ inquiry” assessing whether the religious exemption can be granted.

The court dismissed the Army’s arguments that earlier cases—including Goldman v. Weinberger—require deference here, noting that “those cases predate RFRA.” Instead, the court chose to look to the framework laid out in Holt.

The Army also tried to argue for deference on the theory that it was better equipped to deal with social changes on its own (such as the repeal of “Don’t Ask, Don’t Tell”), but the court rejected that argument, noting that “even if it involves an important matter of public policy and evolving social norms, Congress has already placed a thumb on the scale in favor of protecting religious exercise, and it has assigned the Court a significant role to play.”

The court continued by ruling that the Army has not shown that denying the accommodation here (while granting numerous such accommodations in other cases) advances any compelling interest of the military. Notably, “[t]he Army conducted an internal examination of the effect of [another Sikh’s] religious accommodation on his service, and the study concluded that “the Soldier’s religious accommodations did not have a significant impact on unit morale, cohesion, good order, and discipline,” and that it “had no significant impact on his own, or any other Soldier’s, health and safety.”

The Army’s heavy reliance on uniformity in denying this accommodation and assertion that “compliance with Army grooming standards facilitates ‘the ability to assess a Soldier’s competency and attention to detail’” is irrelevant to the religious basis of the requested accommodation here and fails to satisfy “the individual assessment that is fundamental under RFRA.”

For “the accommodation this plaintiff seeks does not stem from any lack of self-control, dedication, or attention to detail. To the contrary: plaintiff seeks an accommodation because he faithfully adheres to the strict dictates of his religion. So even if, in some cases, a soldier’s failure to follow the Army’s standards might signal a rebellious streak or reflect a lack of impulse control or discipline, LTG McConville’s decision fails to grapple with the fact that any deviation from the rules on plaintiff’s part flows from a very different source. And therefore, the decision lacks the individual assessment that is fundamental under RFRA.”

In concluding, the court affirmed that it would not give blind deference to the claims of even very senior military decision makers as sufficient to trump religious exercise rights:

Notwithstanding [LT General McConville’s] thirty-four years of experience in the Army … and his superior judgment about military matters, adopting his conclusion [that the accommodation should be denied] without more would entail abdicating the role that RFRA requires the Court to play.

Finally, the court noted that even if there was a compelling interest here, the Army had not accomplished it by the least restrictive means—it had rejected the plaintiff outright, instead of at least permitting him to initially enroll in the ROTC program (during which time he is not yet commissioned).

The ACLU did well in laying out robust religious freedom arguments so far in this case. It merely remains for the organization (and others like it) to do so in other contexts. These advocates must see that after (rightly) supporting the Sikh’s religious exercise in this case, such support must flow to all religious exercise in order to consistently support religious freedom and the First Amendment. Anything short of that is picking and choosing the contexts in which the advocate wants the First Amendment to apply—and that is certainly not supportive of constitutional rights for all.

This case is certainly a win for the free exercise of religion in the military. It is also a case likely to produce odd bedfellows; the ACLU is supporting robust free exercise in a case involving a Sikh, but conservative Christians, Muslims and others concerned about religious freedom in the military will see it as helpful to their own causes. And rightly so. Congress passed a statute restoring strong free exercise protections. It did so with strong bi-partisan support, and made clear the law applies to the military. At least for now, a court has affirmed that the statutory law on religious freedom in the military supports a strong and robust free exercise of religion.

Parental Opt-Outs and Conscience Exemptions

by Travis Weber

June 23, 2015

It’s a long-established principle that parents can “opt-out” of having their children take part in certain sex education classes they may find objectionable for a variety of reasons. Recently, some have even proposed “opt-in” requirements. One proposal in Utah reportedly “would require all public schools in the state to obtain written consent before providing human sexuality instruction to students, holding harmless those students who don’t enroll.” Such a presumption maximizes freedom; it expands the distance between the heavy hand of the state and individual rights. It doesn’t entirely disconnect the two, but certainly keeps a healthy distance between them. And these parental “opt-out” requirements have widespread support; many understand why they exist: we want to protect individual rights and the freedom of families to raise their children and govern their family unit as they see fit.

Such “opt-out” requirements have an analogue in conscience exemptions in the abortion context. For years, although abortion has been legally protected as a right under the Constitution (erroneously, I might add), our law has also protected the consciences of those who disagree and ensured they are not forced to take part in practices which violate their beliefs. This also maximizes freedom for all Americans.

Similarly, such exemptions naturally follow in the context of same sex marriage, should it be declared to be protected as a constitutional right. In that case, it would be the default position that individuals desiring such marriages would be able to legally enter them, and thus legislation protecting those who disagree from being forced to violate their beliefs through compelled participation in the process of such marriages would be absolutely necessary. Such legislation has already been proposed. At the federal level, the First Amendment Defense Act would provide such conscience exemptions. Similar protections are needed at the state level.

Like parents who want to (and are able to) “opt-out” of having their children exposed to certain matters at school, many have wanted to (and have been able to) similarly “opt-out” of forced complicity in abortion. It is quite logical that many will likewise want to (and should be able to) “opt-out” of forced participation in the process of same-sex “marriage.” In all these cases, the “opt-out” protects individual rights and maximizes personal liberty. It is the quite natural, logical, and freedom-loving position.

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

by Travis Weber

June 18, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Establishment of a New Religion

by Travis Weber

June 17, 2015

Today in The Hill blog, Chaplain Alliance for Religious Liberty Executive Director Ron Crews drills down on the “almost cult-like determination to advance the hyper-homosexualization of the military,” which “is tearing apart the good order and discipline which holds our armed forces together.”

He aptly notes that “since the repeal of the so-called ‘don’t ask, don’t tell’ policy, homosexual advocacy has become a sort of ‘religious’ force, and the American military gives it preferential treatment to established faiths in violation of its very own regulations.”

No one would be accused of lacking logic or common sense if they claimed it appears the military (indeed, our executive branch at large) is “establishing” a State orthodoxy, er, a State “religion.”

The Establishment Clause is cited all the time for all sorts of perceived “violations,” but one of the things it actually was meant to prohibit was the federal government designating a set of religious beliefs to be the only “approved” beliefs, and using those to discriminate against people whose beliefs don’t line up.

Indeed, the Supreme Court, in ruling on the Establishment Clause in West Virginia Board of Education v. Barnette, has stated: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.”

Is it too much of a stretch to see that the government is doing that very thing here (indeed, is trying to carve out an “exception”) in the context of requiring certain beliefs about homosexuality?

As Crews notes, Army Regulation 360-1, Section 3.2(a) states, “Army participation must not selectively benefit (or appear to benefit) any person, group, or corporation (whether profit or nonprofit); religion, sect, religious or sectarian group, or quasi-religious or ideological movement; fraternal organization; political organization; or commercial venture.”

Yet “[s]ince the day that the commander in chief insisted on the repeal of the ‘don’t ask, don’t tell’ policy, the movement to advance homosexual legal and social demands within the military has taken on every hallmark of a ‘quasi-religious or ideological movement.’ It is by definition at least an ideological movement. But, in addition, it evangelizes, promises benefits to those who believe ‘the right view,’ and decrees punishment for those whose consciences don’t fall in line.”

This certainly seems like establishing an orthodoxy to me.

This is to say nothing of the Constitution’s prohibition on religious tests being “required as a Qualification to any Office or public Trust under the United States.” How is the spirit of this clause not violated here? Religious beliefs are often framed broadly under constitutional law, and beliefs driving one’s ultimate life choices and going to the core of one’s being sometimes qualify as religious. Given this fact, if one’s beliefs in LGBT promotion are the significant driver of one’s life choices, and these beliefs gain the approval of government “elites” (while rejection of such beliefs results in their disapproval), how is the religious test clause not implicated in this scenario?

It would seem the military (and the executive branch of the federal government) has some answering to do here.

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