Category archives: Religious Liberty

H.B. 1228: Bringing Freedom to Arkansas

by Travis Weber

February 27, 2015

Down in Arkansas, opponents of individual rights and personal freedom are doing what they can to defeat H.B. 1228, the state Conscience Protection Act, a freedom-loving bill which is designed to ensure that individuals’ consciences and beliefs cannot be easily trampled by intrusive government regulation.

Human Rights Campaign proudly points to a statement by Apple in which the company opines on a religious rights bill it apparently does not understand—for H.B. 1228 does not diminish “equal treatment under the law” for anyone, certainly not based on their sexual orientation. The only thing it does is keep a powerful government in check. The idea that the company is demeaning the religious beliefs of the citizens of the same state whose business opportunities it is taking advantage of is apparently lost on Apple.

Here and elsewhere, opponents know they can’t defeat the bill by simply showing their hatred for anything religious. So here and elsewhere, some put forward religious figures as their “spokespeople” against the bill, trying to use religion for their ends. Meanwhile, these poor individuals don’t realize they are opposing a bill which would support their own individual rights and liberty when the government comes calling for them in the future.

Others don’t even pretend to focus on the actual issue, claiming “the point of the bill is to prevent equal treatment of gay people, even if it has no effect on anyone’s beliefs,” and implying H.B. 1228 would allow a gay person to be “denied a hamburger, an apartment or a job because of his or her sexuality.” Anyone who actually takes the time to understand how the bill works would know it does no such thing. It is precisely the “effect” on “beliefs” that has so many seeing the urgent need for such bills as forced conscience violations under penalty of law increasingly emerge elsewhere.

Enough about the misinformation on H.B. 1228. Let’s review the facts, for truth’s sake:

What does the bill actually do?

H.B. 1228 protects sincere conscientious objectors of all religions from over-intrusive government regulation burdening their religious practice, while winnowing out those using religion as a pretext to escape application of general laws. Neither the Conscience Protection Act nor similar laws protecting religious exercise would allow businesses to “turn away” customers or engage in “discrimination” as they see fit.

How does the bill actually work?

H.B. 1228 allows a person to appeal to their religious beliefs as a basis for their claim or defense in a judicial proceeding.

Under the bill, an individual first has to prove they have:

(1) A religious belief, and

(2) Which is also sincere, and

(3) Which has been substantially burdened by the government action in question. Only then can their claim move forward.

Only if the person making the religious claim satisfies those three elements does the claim move to the second stage. At this stage, the government must show that:

(1) It has a compelling interest in burdening the religious practice, and

(2) It has only burdened the practice in the least restrictive way possible.

If the government can make both of these showings, its law or regulation is allowed to infringe on the religious practice—even under H.B. 1228. However, if the government fails to make both of these showings, the religious claim will prevail, and at that point the person is entitled to legal protection for their religious beliefs and practices. Even then, the person must look to the court’s application of similar laws; in no cases would H.B. 1228 simply allow people to appeal to religion to act as they wish apart from judicial involvement. It is important to remember that just because someone brings a religious rights claim does not mean that the claim will win in every case.

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”)—all without any “discrimination” or pattern of abuses such as those claimed by the opponents of H.B. 1228.

This RFRA framework does not permit anyone to automatically do anything in the name of religion; they have to jump through all the hoops discussed above. RFRAs and laws like H.B. 1228 merely protect those of all faiths whose sincere beliefs are in danger of being unnecessarily burdened by the government, while winnowing out those using religion as a pretext to escape application of general laws. For all 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 opponents of these bills are engaging in baseless fabrication.

Who needs the bill’s protections?

Everyone with religious beliefs and a conscience—regardless of their religion, political views, the content of their beliefs, or how they apply those beliefs.

Religious freedom laws like H.B. 1228 never used to be (and still should not be) a partisan issue, as they protect those of all faiths and political persuasions. Indeed, when the federal RFRA was passed in 1993, a coalition of groups from across the religious, political, and legal spectrum—from the Southern Baptists to the ACLU—came together to support restoring strong protections for free exercise claims. 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 in the face of ever more intrusive government. Moreover, these laws are not political—they cut across racial and social lines, and apply in a variety of factual 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. H.B. 1228 and RFRAs like it are not fact-specific. They are not race-specific. They are not religion-specific. And they are not political party-specific.

Americans of all political persuasions and religions who care about individual freedom from government coercion should get behind H.B. 1228. The bill’s text and our established practices for analyzing religious claims show that H.B. 1228 will merely support conscience rights for all in the face of ever larger and more intrusive government—it does nothing more, and nothing less. That’s something all Americans can support.

Judge relies on decision upholding government¿s ability to regulate marriage as it suppresses conscience objections to same-sex “marriage”

by Travis Weber

February 19, 2015

Yesterday, in the consolidated cases of State of Washington v. Arlene’s Flowers and Ingersoll v. Arlene’s Flowers, a Washington state court judge held that a small wedding vendor defendant engaged in impermissible discrimination in seeking to honor her religious beliefs and not support the promotion of a same-sex wedding ceremony with her services.

In granting the plaintiffs’ motions for summary judgment, Judge Ekstrom of the Benton County Superior Court elevated nondiscrimination laws over free exercise and free speech rights.

In holding that “[f]ree exercise is not … without its limits,” Judge Ekstrom relied on the Supreme Court’s proclamation in Reynolds v. United States that “[l]aws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices… . Can a man excuse his practices to the contrary because of his religious belief? The permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.”

True, the Supreme Court in Reynolds stated as much.

Equally interesting is the language from Reynolds which Judge Ekstrom excised from his quotation:

Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice? So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed.”

I don’t know why Judge Ekstrom chose to describe the Free Exercise Clause by quoting from Reynolds. Perhaps he thought it was his best source of authority; that seems unlikely though given that the decision is over 100 years old and is criticized right and left as “outdated.” Perhaps he thought he was being clever by using another case involving a rejection of religious rights in the context of sexuality.

If the latter, it’s quite ironic that the authority a judge relies on in restricting the rights of religious objectors to same-sex “marriage” is the same authority upholding limits on traditional marriage for the good of society.

For the Court in Reynolds rejected a free exercise challenge to a law criminalizing bigamy, and in doing so, noted the state’s significant interest in regulating marriage:

it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal.”

Today, if a state tried to uphold its natural marriage laws by relying on Reynolds it would be criticized loudly and clearly.

Regardless, Reynolds actually proves the utility and workability of strict-scrutiny religious rights frameworks being debated today, as the hypothetical human sacrifice and burning of the dead scenarios mentioned in Reynolds clearly would be barred by a compelling government interest, while other religious rights not seeking to override a compelling government interest would be protected under such frameworks. This is precisely the balance needed to sort out valid religious rights claims from invalid ones, and protect conscience objections like those of Ms. Stutzman — especially since judges like Judge Ekstrom won’t.

America’s Resilience

by Robert Morrison

February 19, 2015

Many of my friends, not surprisingly, consider these the worst of times. They tell me they fear for the survival of our country and certainly for the survival of civil and religious freedoms we cherish. There is no doubt that under this administration, our liberties have been imperiled. No administration in history has targeted religious freedoms.

For example, in the little-noticed case of Hosanna Tabor v. EEOC (2012), the Obama administration tried to order The Lutheran Church—Missouri Synod* (LCMS) to change its 170-year definition of who is and who is not a commissioned minister in that 2.4 million member church body. This was a stunning example of denial of religious freedom, but the Obama administration took its unprecedented interpretation of constitutional law all the way to the U.S. Supreme Court.

Happily for freedom, the Obama administration’s tortured reading of the laws was rejected by the High Court by a vote of 9-0. Such unanimous rulings are very rare in the Supreme Court, as we know. But it is an indication of the radicalism of this administration that it was so determined to crush freedom that it would boldly go where no administration in 223 years had gone before.

Members of our U.S. military—our all-volunteer force—are daily feeling the lash of political correctness. As President Obama seems to make every allowance for Islam at home and abroad, his administration has banned Bibles in military hospitals while covering up Christian symbols at VA hospitals and threatening chaplains with discipline if they even mention faith in Christ as part of suicide prevention programs. The United States Centers for Disease Control (CDC) confirmed for me that the high religiosity of Black women was a major factor in their low rates of suicide.

Several years ago, Coast Guard Admiral Dean Lee courageously stood up for freedom and faith at the National Prayer Breakfast. He said what so many in the military feel: That Christian faith is under attack.

The admiral reminded me of my own time in the Coast Guard and his courage encourages me still. It also reminds me of the hope we have for real change in our country.

The ship on which I served was in the news recently for an historic drug bust. The U.S. Coast Guard Cutter Boutwell (WHEC-719) seized $423 million worth of cocaine. When we consider that it cost about $20 million ($142 million in 2014 dollars) to build the Boutwell in 1967, and that she has been serving our country every since, it seems in this case, the American taxpayers certainly got their money’s worth.

I’m very proud to have served on the Boutwell. But I certainly wasn’t proud on my last day on that vessel. I was leaving the Coast Guard in Seattle in 1978 when I was given a ride home by some of my enlisted friends. These Quartermasters—highly intelligent guys who made the mid watches in the Bering Sea enjoyable—offered me a joint! I was heartbroken. No wonder we were never able to catch the pot smokers on our ship. They were being tipped off. It depressed me and filled with a sense of betrayal.

Four years later, I was living in Connecticut with my wife, a lieutenant commander in the Navy. She came home from Naval Hospital Groton and said we should take a tour of the Cutter paying a visit to the Coast Guard Academy across the Thames River in New London.

I hesitated. I was concerned as I recalled my last day in the service. But overcame my doubts and proudly accompanied my wife. She received a snappy salute from a “squared away” young Seaman Apprentice standing guard at the brow of the ship. He offered us a tour of the Cutter. From that first encounter through the hour-long visit, we saw nothing but hard-working seamen who seemed proud of their ship and their mission.

What had changed? The Navy and Coast Guard had dropped the lax attitude of the 1970s toward sideburns, mustaches, beer-in-the-barracks and had instituted a Zero Tolerance policy for drugs. I didn’t like the fact that my wife had to take drug tests in the presence of Navy Corps Waves, but the policy worked. It largely eliminated the abuse of drugs in the sea services.

Pride in the uniform was restored. Gone were the sideburns. Gone, too, was the 1970’s policy of requiring civilian attire in Washington, D.C. for military officers going to and from work at Headquarters. Instead, officers and enlisted were required to wear their uniforms.

It almost goes without saying the change in those four years (1978-82) was dramatic. And it reflects in no small way the changes in leadership at the top. President Jimmy Carter had been swept out in a landslide and Ronald Reagan was swept in. Reagan loved and respected our all-volunteer military. He made our troops proud to serve again and proud of their uniforms.

When liberal reporters challenged Reagan the candidate in 1980, they said: “You seem to criticize a lot in the Carter administration, Governor. What would you do differently?”

Everything,” Reagan responded with a smile. And he did change everything.

America has been richly blessed by God. We are a resilient country and our hope for change has not died. All that is needed is a leader who will approach the tasks set before him or her with that same determination: Do everything differently.

*The author’s own denomination.

Cochran Complaint Paints Compelling Picture of Discrimination Based on Religious Beliefs

by Travis Weber

February 18, 2015

Today, Chief Cochran filed a complaint in federal court initiating a lawsuit against the City of Atlanta and Mayor Reed for firing him for holding Christian beliefs.

While we are all familiar with the background on Chief Cochran, and the City of Atlanta’s disappointing attempts to defend itself, the complaint reveals quite a compelling picture of Chief Cochran’s experience of religious discrimination.

It shows how Chief Cochran was motivated to excellence by firefighters who saved his house when he was growing up in a poor, single-parent family in Shreveport, Louisiana. From that point, he worked hard, guided by faith, to achieve excellence in what he did.

Chief Cochran had an exemplary career, going on to conduct firefighter training, lead Shreveport’s fire department, then lead Atlanta’s fire department, and finally head the U.S. Fire Administration in Washington, before returning to take charge of Atlanta’s fire department only after Mayor Reed himself “begged” him to come back to Atlanta.

The complaint continues by observing that Chief Cochran was awarded Fire Chief of the Year by Fire Chief magazine in 2012, for which he was showered with praise from Mayor Reed. And under Chief Cochran’s tenure, for the first time in Atlanta’s history, the Insurance Services Office gave the city a Class 1 Public Protection Classification (PPC) rating, an honor shared by only 60 cities nationwide, which resulted in lower insurance premiums.

In addition, as he explains, the chief promoted the development of workplace policies ensuring all his firefighters were treated fairly, and worked with LGBT employees (who he knew were LGBT) to make this happen. More than most, Chief Cochran knows what it’s like to be excluded; he had to overcome racial hostility earlier in his career.

Despite all this, when some protested Chief Cochran’s self-published Christian book, which had been in print for almost a year with no complaints, the city immediately suspended the chief without even discussing the matter with him beforehand. The book, which is about how to live for God, mentions human sexuality only in passing.

As described in his complaint, when the chief was suspended, the mayor explicitly distanced himself from Chief Cochran’s “beliefs” — thus revealing it is his religious beliefs which are the real problem here.

Yet the city is prohibited from firing Chief Cochran based on his religious beliefs. If Chief Cochran can prove that his beliefs were the reason he was fired, he will likely emerge victorious.

The chief will have plenty of avenues to prove the religious discrimination against him, having brought claims under the First Amendment’s Free Speech Clause for retaliation based on protected religious speech, along with allegations of viewpoint discrimination, over-breadth, prior restraint /unbridled discretion, and unconstitutional conditions. He follows these up with claims under the No Religious Tests Clause of Article VI of the Constitution, Free Exercise and Freedom of Association protections of the First Amendment, and an Establishment Clause claim based on hostility towards religion. Chief Cochran next alleges a Fourteenth Amendment Equal Protection violation based on unequal treatment based on his beliefs, and Fourteenth Amendment Due Process violations based on vagueness and deprivation of his liberty interests and procedural due process rights. He also plans on amending his complaint to include a Title VII religious discrimination claim at the appropriate time.

As a remedy, the chief asks to be reinstated in his job, that the city be prevented from taking such action against others, and that it admit it violated his rights here, in addition to other damages.

While his case is procedurally in the beginning stage, Chief Cochran’s complaint certainly paints a strong picture in support of his claims. Why would any mayor want to fire a man with his performance and history as a firefighter? They wouldn’t.

This part of the factual record — much of which is not disputable — makes it look like the chief was fired for the impermissible reasons described in his complaint. In addition, Chief Cochran paints a picture of how the city did not even follow proper procedures in terminating him.

Mayor Reed himself “begged” Chief Cochran to come back to Atlanta, and any mayor with a large fire department to run would want a man like the chief running it.

When this type of employee is fired, a reasonable observer is more likely to conclude they were fired for an impermissible reason — in this case, for their religious expression.

Atlanta Mayor Steps up Disparaging Attacks on Chief Cochran

by Travis Weber

January 29, 2015

Last week, Chief Cochran lodged a complaint (known as a “charge of discrimination”) with the Equal Employment Opportunity Commission (“EEOC”) alleging that the City of Atlanta discriminated against him for his religious beliefs when it fired him after he authored a book on Christianity which mentioned homosexuality.

Information emerging publicly to this point (such as the city’s own admission that no one has even alleged that Chief Cochran ever treated anyone unfairly based on their sexual orientation) reveals the chief’s already-strong case for religious discrimination. Chief Cochran’s allegations in his complaint only bolster his case:

After the complaint was filed, the city quickly released the following statement in response.

Former Chief Cochran filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) and declared under penalty of perjury that the statements in the charge are true and correct. Unfortunately, the only truthful portions are his statements about his tenure as Chief and the identity of those in the room with him during two meetings. Everything else is patently false.

The City will respond directly to the EEOC at the appropriate time to inform the agency that instead of “unspecified policies,” Mr. Cochran was informed at the time of his suspension that he had failed to follow the City Code in seeking to engage in an outside income-producing venture. He was also informed that the issue was not the religious nature of his book, but the fact that he was espousing theories about certain groups of people that were in conflict with the City’s policy of inclusiveness. He was further informed that there was an issue with his espousing these beliefs while identifying himself as the Atlanta Fire Chief and while falsely claiming that his job description required him to run the Atlanta Fire Rescue Department on the basis of these beliefs. Finally, Mr. Cochran was informed that distributing the book to members of his command staff in the workplace was improper and sent a message to his staffers that they were expected to embrace his beliefs.

Although Mr. Cochran continues to claim that the City Ethics Officer authorized his publication of the book, that claim is as untruthful today as it was when first uttered. Mr. Cochran was told that the City Code required him to get the approval of the Board of Ethics before publishing his book, something he admits he never did.

Mr. Cochran states in his EEOC charge that he was told his faith influenced his leadership style and that this was the reason for his termination. What he was actually told was that his distribution of a book about his beliefs within his department had caused his employees to question his ability to continue to lead a diverse workforce.

The religious nature of his book is not the reason he is no longer employed by the City of Atlanta. The totality of his conduct—including the way he handled himself during his suspension after he agreed not to make public comments during the investigation—reflected poor judgment and failure to follow clearly defined work protocols.

Mr. Cochran continues to make false statements and accusations, even under penalty of perjury to the EEOC. This is just further proof that he has shown himself to be the wrong person for a leadership role in the City of Atlanta.

The city’s response reveals several things:

  • The fact that the city feels it needs to immediately and publicly respond to this complaint shows that the city is aware of the public importance of this debate. Typically an immediate public response to a legal filing is more general and cursory than the city’s here. Typically specific and targeted responses like the city’s first appear in the legal response. Yet the city is coming out swinging, which shows it realizes that this public debate over Chief Cochran matters. The city’s behavior here is unusual because now these statements can be used against the city if it contradicts them at all in future legal proceedings (this is typically why lawyers don’t want their clients to talk). Perhaps the city realizes it is losing this battle though, and it is scrambling to catch up a diffuse public support for Chief Cochran.
  • The viciousness of the city’s response (accusing Chief Cochran of committing perjury, and the sharpness of the city’s language in disputing him) reveals the nerve that the EEOC complaint touched.
  • The city is very sensitive about this being perceived as religious discrimination, but that’s exactly what it is. Specifically, the city says Chief Cochran’s religion is not at issue, but that his “theories about certain groups of people” are a problem—as if those two can be divided. Aside from the fact that this misrepresents Chief Cochran (he didn’t say anything about “groups of people” but spoke of a variety of sexual conduct that any one or more persons may engage in), the city is trying to parse something which can’t be parsed. The chief’s orthodox and faithful Christian views on sexuality are what inform his views of a variety of sexual conduct, including but not limited to homosexual conduct, which he believes (in concert with historic and orthodox Christian teaching) departs from God’s standard. The city is trying to ignore the fact that faithful Christianity directly informs views on sexuality. When the chief is punished for these views, he’s being punished for his religion. Thus this case has everything to do with religion.

If the city forces Chief Cochran to modify his views of sexuality as part of his discussion of his religion in his book, it is forcing him to deny and suppress the expression of his religion. Whatever the city wants to say, this case is all about religion.

Tarnishing Freedom in Georgia

by Travis Weber

January 28, 2015

It is reported that down in Georgia, opponents of individual rights and personal freedom are ratcheting up their smear campaign against proposed religious liberty legislation known as the “Preventing Government Overreach on Religious Expression Act,” which is designed to ensure that individuals’ consciences cannot be easily trampled by intrusive government regulation.

A web page titled “Better Georgia” purports to state concerns with the legislation, House Bill 29, but is filled entirely with omissions and misrepresentations regarding H.B. 29 and how religious liberty law actually works. Let’s fact-check some of its ridiculous claims.

Claim:

This bill would open the door to people who would use their religion to opt out of laws from child welfare to discrimination. It would lead to legal chaos over whose religion is more important in the eyes of our courts and lawmakers. The legislation would give criminals who abusetheir children or spouses a new excuse and make it even more difficult for police officers to put abusers behind bars.”

Veracity Level:

False. Child abuse is evil, and no one defends it. However, it is indeed offensive for Better Georgia’s out-of-state backers to imply that religious believers in Georgia are to blame for such abuse. Moreover, no religious freedom laws, including H.B. 29, permit people to “opt out” of child welfare laws, nor do such laws allow people to abuse their children.

Better Georgia had better check its fact-checkers.

The truth is that under H.B. 29, as with any strict scrutiny application to religious claims, an individual first has to prove they 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, and has done so through the least restrictive means, it is allowed to burden the religious exercise in question.

Thus, H.B. 29 does not automatically permit religious claims to win, but does provide a method for sincere conscientious objectors to be protected, while winnowing out those using religion as a pretext to escape application of general laws. This standard 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 of the alleged “concerns” and “fears” RFRA opponents point to.

In its 1990 decision Employment Division v. Smith, the Supreme Court significantly restricted free exercise rights, holding that laws infringing on religious exercise did not violate the First Amendment as long as they were neutral and generally applicable. In Smith, an individual sought and was denied unemployment benefits by the State of Oregon because he used peyote—a criminalized, controlled substance—yet he claimed his use of peyote was a religious practice protected by the Free Exercise Clause. The Supreme Court rejected this claim, holding that if a neutral and generally applicable law (such as the uniformly applicable criminal law in this case) happens to infringes on religious practice, such a law does not violate the Free Exercise Clause.

Many rightly saw Smith as a reduction in the protection afforded religious liberty, and the reaction to the Court’s decision was overwhelming. In 1993, a coalition of groups from across the religious and legal spectrum—from the Southern Baptists to the ACLU—came together to urge Congress to pass a law restoring strong protections for free exercise claims. The political support for such a law was also overwhelming, including strong backing from Democratic Congressional leaders such as Senator Ted Kennedy and Representatives Nancy Pelosi, Chuck Schumer, and Jerry Nadler. RFRA was passed unanimously by the U.S. House, 97-3 by the Senate, and signed into law by President Clinton. In over 20 years that the federal RFRA has been in existence, there is been no documented pattern of abuses such as those no claimed by the opponents of H.B. 29. As others have asked, where are these alleged child abusers and discriminators who are supposedly walking away from criminal charges under RFRA? They simply do not exist.

RFRA never was and should not be a partisan issue, as it protects those of all faiths and political persuasions. A review of RFRA and free exercise case law reveals its benefit to everyone from Muslims to Jews, Christians to Santeria adherents, and Native Americans to more obscure sects (among others), as they seek to protect their beliefs and consciences from being burdened by an ever-more intrusive government. Moreover, RFRAs cut across racial and social lines, and apply in a variety of factual scenarios, such as property disputes, restrictions on caring from the homeless, conscience objections to abortion, and restrictions on using controlled substances in religious ceremonies. They are not fact-specific. They are not race-specific. They are not religion-specific. And they are not political party-specific.

Despite this fact, many will attempt to manipulate the clear text of the law for partisan aims. Even a group of law professors writing in opposition to the bill can’t conceal their political agenda. They write:

The Federal RFRA, however, arose in a political context very different from the current one. The Federal RFRA responded directly to the U.S. Supreme Court’s decision in Employment Division v. Smith (1990), which many people perceived as a significant setback in constitutional protection for the religious liberty of vulnerable minority faith groups. The coalition that supported RFRA included Democrats and Republicans, people of all faiths, and groups that cared generally about civil liberties.”

So what these law professors—who might purport to neutrally explain the law and not promote partisan views—openly admit is that they only care about certain religious rights. Moreover, they imply that the people who supported RFRA in 1993 cared about “civil liberties” while those who support it now don’t. The truth is that some of those who supported it then still support it now. Shameful. These professors might as well just admit they are elevating their political preferences over the equal application of a neutral law. In addition, their position purporting high-minded concern that H.B. 29 might “invite” discrimination is contrary to a proper understanding of First Amendment law and its strict scrutiny standard (which RFRA codifies). The Supreme Court has consistently held that First Amendment rights are to be elevated over nondiscrimination principles—in Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston (pertaining to free speech) and in Boy Scouts of America v. Dale (pertaining to freedom of association).

Indeed, the text of H.B. 29 itself reveals an open-mindedness and neutrality which is at opposition to such political posturing, and at odds with the narrow-minded, politically-charged misrepresentations being thrown around on the internet by Better Georgia. Before unquestioningly getting on the bandwagon, everyone needs to take a deep breath and look at what actually is going on.

The alleged “incidents” highlighted by these scaremongers at Better Georgia are exactly that—scaremongering. The case of the toddler in Canada who died after severe application of Seventh-day Adventist dietary rules (aside from the issue that this is anything but a “pattern” of behavior) would not be an issue under H.B. 29 or any similar law—the government has the most compelling of interests in preventing deaths of children. The religious liberty claim would therefore flatly fail in that case. Rather than highlighting one scaremongering scenario which occurred in Canada, these purveyors of smear could focus on instances of suppression of religious practice closer to home. Georgians know better, as they recognize the threats illuminated by Fire Chief Kelvin Cochran’s termination due to his religious views.

Indeed, Chief Cochran’s recent firing clearly illustrates the threat to religious expression which is alive and well at home in Georgia. Despite the city’s assertion that Chief Cochran’s religion is not at issue in his termination (while his “discrimination” allegedly is), the city is trying to disconnect two areas—Chief Cochran’s religious beliefs, and human sexuality—which cannot be disconnected. The chief’s orthodox and faithful Christian views on sexuality are what inform his views of a variety of sexual conduct, including but not limited to homosexual conduct, which he believes (in concert with historic and orthodox Christian teaching) departs from God’s standard. The city is trying to ignore the fact that faithful Christianity directly informs views on sexuality. When the chief is punished for these views, he’s being punished for his religion. His case has everything to do with religion, and reveals the hostility to religion present in Atlanta.

Moreover, Better Georgia’s “example” of the Canadian child abuse scenario reveals a deeper issue—sloppy analysis and a lack of critical thinking. Better Georgia links to a story about a religious believer’s alleged child abuse, yet fails to point out that no religious claim was even brought in the case. Of course, the fact that this “example” took place in Canada with its entirely different legal system was lost on the group too. It’s almost as if Better Georgia has scoured the web for any information it can find which links bad things happening with religion. The group certainly has not come up with a legitimate example showing any serious danger of H.B. 29.

Even the group’s touting of an opinion piece by a Georgia district attorney misses the mark. The examples in that piece involve criminal prosecution for child abuse without any discussion of a successful religious defense. Child abuse and other cases involving bodily harm to human beings are prosecuted routinely nationwide every day. These take place in states with laws like H.B. 29. Yet how often have we heard about successful religious freedom defenses to such prosecutions? Why can’t Better Georgia or any of its opponents point to any?

The reason they cannot is that such defenses are not successful. Multiple courts in multiple states have held that preventing child abuse is a compelling government interest. Georgia courts have already held that the state has a compelling interest in the welfare of children. As noted above, under H.B. 29 and similar laws, the government can burden religious beliefs when it has a compelling government interest. In failing to discuss this point while asserting the dangers of H.B. 29, District Attorney Cooke has misrepresented the danger of the bill and needs to revisit his analysis.

Another “case” cited by H.B. 29 opponents is a situation involving parents beating their son to death. According to Better Georgia, these parents might be able to walk away from criminal charges because of H.B. 29. Not only is this an absolute distraction from the issue, but it is an insult to Georgians’ intelligence that they might consider H.B. 29 to legitimately offer a defense to such actions. Better Georgia claims “abusers will be able to hide behind religion in court.” Really? How would they do that under H.B. 29? This group, which is shamefully playing on Georgians’ fears based on cooked-up nonexistent situations, has not pointed to one legitimate explanation of how this scenario would be permitted under the strict scrutiny standard laid out above.

Indeed, Better Georgia does not even highlight any attempted legal defense using a religious freedom claim. The fear that there would be one appears nonexistent. Yet, sadly, this simplistic reduction of how religious freedom law works manipulates human passion and deliberately confuses in order to promote division and hatred of religious people—based entirely on misrepresentations. Better Georgia should be ashamed. Georgia does deserve better.

It’s unclear what Better Georgia is even specifically basing its claims on in these alleged “concerning scenarios.” Perhaps it is looking at language in Section 50-15A-3 to exclude the bill’s application to parental rights regarding “the care and custody of such parent’s minor children.” But any simple reading of this provision reveals that it is stating the area of parental rights as it currently exists is to be left unrestricted by the additional protections of H.B. 29. Therefore, the state will continue to be able to regulate parental rights as it currently does, and this bill does not alter that. Indeed, H.B. 29 notes that these parental rights issues are to be left unrestricted “as provided for under the laws of this state and of the United States.”

Yet the Better Georgia “advocacy” does not stop there. Alas, more fact checking is needed.

Claim:

Georgia House Bill 29 would provide a free pass for business owners who believe homosexuality is a sin to openly deny gay Americans employment or service.”

Veracity Level:

False. Neither H.B. 29 nor other similar laws applying strict scrutiny to claims of religious exercise give anyone a “free pass.” As pointed out above, the religious liberty claim has to go through multiple hurdles before receiving protection under the law. Moreover, the evidence of such “free passes” being permitted is simply nonexistent. A cursory evaluation of how other similar laws have been interpreted reveals no “free passes.” Indeed, it is notable that Better Georgia can’t even cite to one instance of a business owner “openly deny[ing]” such service!

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.

More fact-checking is needed.

Claim:

A restaurateur could deny service to an out-of-wedlock mother, a cop could refuse to intervene in a domestic dispute if his religion allows for husbands beating their wives, and a hotel chain could refuse to rent rooms to Jews, Hindus or Muslims.”

Veracity Level:

False. Indeed, the opposite is true. The protections in H.B. 29 are the very protections needed to ensure the exercise of all religions—whether Jews, Hindus, or Muslims—is protected. If the smear campaign had cared to accurately represent this point, it would have seen that only this month, the U.S. Supreme Court protected a Muslim inmate’s right to religious practice under the same strict scrutiny standard in RFRA’s cousin—the federal Religious Land Use and Institutionalized Persons Act.

Indeed, H.B. 29 and similar laws protect religious exercise regardless of religion. These laws do NOT discriminate, nor do they discriminate between religions, but protect individual religious claims under the framework explained above. Moreover, they protect religious exercise in a variety of situations—such as the Texas RFRA’s protection of those seeking to feed the homeless—which are not cited in this attempt to incite hatred against religion. Any simple reading of the law will reveal all this. But apparently Better Georgia did not even do that.

RFRA never was and should not become a partisan issue, as it protects those of all faiths and political persuasions. Thankfully, some liberal organizations are willing to more fairly represent it. Aside from what Better Georgia thinks, all Americans of political persuasions and religions who care about individual expression should be supporting H.B. 29. The bill’s text and our own judicial system’s well-grounded history of analyzing religious claims lend support to this conclusion. Meanwhile, Better Georgia’s conclusions have no support whatsoever.

At the Supreme Court: A Small Church and a Big Case

by Travis Weber

January 13, 2015

On January 12th, I attended Supreme Court oral arguments in a case—Reed v. Town of Gilbert—which will determine how easily the government can restrict signs giving directions to church services. Specifically, the Court is set to decide whether, under free speech protections of the First Amendment, a local government’s mere assertion that its sign code (despite on its face discriminating based on content) lacks a discriminatory motive renders the sign code content-neutral and justifies the code’s differential treatment of signs pointing the way to a church’s meeting location.

In this case, the Town of Gilbert had divided signs up based on whether they were ideological, political, or directional—and imposed different restrictions on each category of sign. Good News Community Church in Gilbert, Arizona, and its pastor, Clyde Reed, sued, claiming that signs pointing the way to their Sunday morning service (which contained religious speech and directions, and thus resulted in them being placed in the directional sign category) were treated less fairly and that this unfair treatment violated the First Amendment.

At oral arguments yesterday, both sides received their fair share of questions, but the justices were noticeably more skeptical of the town’s argument—especially its claim that it could severely restrict a sign containing ideological content announcing an event if the sign also included directions to that event, while at the same time easing restrictions on a sign containing the same exact ideological content and yet lacking directions.

The town attempted to defend itself by arguing it had an interest in preventing roadside clutter arising from numerable directional signs. But then it admitted it was granting preference to ideological and political signs because of the special First Amendment protection offered them, which prompted questions from the justices asking how the town was not impermissibly discriminating based on the content of the signs.

A breakthrough moment occurred when the town’s counsel admitted under questioning by Justice Breyer that the town could put up a sign saying: “Come to the next service next Tuesday, 4th and H Streets,” but could not add “three blocks right and two blocks left” to that same sign because that would make it a directional sign. Justice Breyer’s response: “Well, my goodness. I mean—I mean, on that, it does sound as if the town is being a little unreasonable, doesn’t it?”, pretty well captured the justices’ view of the case.

The justices will now consider the legal issues and issue a written opinion deciding the case sometime before the end of June 2015.

While seeming more innocuous than some of the other high profile social issues which have reached the court over the last year or so, this case matters (significantly) to free speech law. It therefore matters a lot to Americans of all opinions and interests who want to take part in public debates and discussions over numerable issues in our country. Even if it doesn’t matter to them personally, it should—for it affects their legal rights under the First Amendment.

This issue is also incredibly important to the ability of churches to communicate when and where they meet, and will thus heavily impact their flourishing and wellbeing. Our local churches serve as nerve centers for communities of faith across America, and must be supported and allowed to prosper. For all these reasons, Family Research Council filed an amicus brief with the Supreme Court last September asking it to rule in favor of Pastor Reed and Good News Community Church in this case.

As we argued in our brief, and as the church’s attorney argued before the Court yesterday, the Supreme Court should rule in favor of the plaintiffs and strike down the town’s ordinance here as unconstitutional. Such a ruling would not only protect the First Amendment rights of Pastor Reed and Good News Community Church, but those of any person or group our government wants to marginalize and silence in the public debate.

Family Research Council’s amicus brief in Reed v. Town of Gilbert is available here: http://downloads.frc.org/EF/EF14I59.pdf

An Active President: Obama on the March As the GOP Preps to Run Congress

by Rob Schwarzwalder

December 18, 2014

Since last month’s election, the President has been a busy fellow. He’s traveled to China, heralded what he called a “turning point” in American military affairs, “signed a Presidential Memorandum that prohibits future oil and gas drilling in Alaska’s Bristol Bay” and land areas near it and announced a new director for the White House Council for Strong Cities, Strong Communities, to boot.

FRC takes no formal position on these issues, or on those that follow (with one exception). Rather, they are listed to make the point that Mr. Obama is not going suddenly to become an inactive Chief Executive. He has an agenda the bulk of which is opposed by conservatives. Regardless, if conservatives think he will simply fold his hands and let the new Republican majorities in House and Senate do as they will, they kid themselves.

Following is a rundown of other significant post-November 4, 2014 actions by Mr. Obama; the last, on international religious liberty, is not explicitly presidential but relates to a key presidential appointment at the Department of State.

Environment: In addition to his largely unnoticed decision regarding Bristol Bay, “Obama’s most recent move is committing the U.S. to a $3 billion contribution to an international fund that seeks to help developing countries address climate change, which he will announce this weekend. It’s the president’s second major climate action in a week, following Wednesday’s announcement of a bilateral climate agreement with China. Under the agreement, the U.S. will cut its greenhouse gas emissions by 26 to 28 percent by 2025, while China will begin reducing its own emissions by 2030.”

Cuba: Senator Marco Rubio (R-FL), the son of Cuban immigrants, gave an eloquent and impassioned critique of the President’s announcement on normalizing relations with Cuba last evening; read his Wall Street Journal op-ed on the Obama decision, as well. The Washington Post also made a potent argument in an op-ed titled, “Obama gives the Castro regime in Cuba an undeserved bailout” (yes, that Washington Post; even a stopped clock is right twice a day): “The Vietnam outcome is what the Castros are counting on: a flood of U.S. tourists and business investment that will allow the regime to maintain its totalitarian system indefinitely. Mr. Obama may claim that he has dismantled a 50-year-old failed policy; what he has really done is give a 50-year-old failed regime a new lease on life.”

Immigration: With respect to his Executive Order on immigration, my personal take is not on the content of the orders but instead their basis in the U.S. Constitution: “Mr. Obama hasn’t gotten what he wants, so he is acting like a monarch unconstrained by legality. This is not constitutional, republican governance. It is something else altogether – something that should evoke in everyone who values his Constitution-based liberty apprehension about what might come next.”

Internet: “Net neutrality” demands a bit more explaining. Mr. Obama has asked “the Federal Communications Commission to regulate broadband Internet service as a public utility,” writes Michael Hendrix in National Review. “All Internet traffic would be treated equally, no matter the size or pace of demand. Net neutrality is a relatively young concept based on the much older notion of ‘common carriage,’ which required providers of basic infrastructure to offer common service to all.”

Yet as Nancy Scola notes in the Washington Post, At the center of the debate is a service known as IANA, or the Internet Assigned Numbers Authority. Operating almost entirely out of the public eye, IANA keeps tabs on the numerical directory that makes sure the global Internet runs smoothly.” And, Scola continues, though “Republicans in Congress managed to slip a provision into the massive $1.1 trillion spending bill passed by the Senate this (past) weekend that would prevent the Obama administration from giving up part of its oversight of how the Internet runs. Observers say, though, that there’s little chance that the GOP’s legislative language will actually slow the process at all.

Religious Liberty: FRC does take a position on international religious liberty: We’re absolutely, unequivocally for it. Earlier this month, the Senate confirmed Rabbi David Saperstein to be the State Department’s new U.S. Ambassador-at-Large for International Religious Freedom. In his comments at his Senate confirmation hearing in September, the Rabbi said, “Religious freedom faces daunting and alarming challenges worldwide,” Saperstein said at his confirmation hearing in September. “If confirmed, I will do everything within my abilities and influence to engage every sector of the State Department and the rest of the U.S. government to integrate religious freedom into our nation’s statecraft and foreign policies.”

Amen. Christians should be praying for the Rabbi and his team as they work to advance religious liberty around the world. It’s in the interest of our country, not to mention one of the great moral imperatives of our time.

This President means no less business today than he did on January 20, 2009. That means that conservatives will have to think carefully about how we advance our priorities on issues involving faith, family and freedom in the coming two years leading up to the next presidential election. We have to consider our larger strategy as well as issue-specific tactics and also decide what our priorities are and aren’t.

Conservative leaders and activists are, of course, doing this. Let’s hope they coalesce around what issues are of highest importance and then move forward both boldly and wisely, aware that President Obama is a shrewd and determined political foe.

It’s not enough to be right. We also have to be smart.

 

Schwarzwalder previously was chief-of-staff for two Members of Congress and was a presidential appointee in the George W. Bush Administration.

Fashion Isn¿t the Most Important Thing to Come Out of Milan

by Chris Gacek

November 19, 2014

If you have some time, watch FRC’s lecture with Jim Tonkowich discussing his new book, The Liberty Threat: The Attack on Religious Freedom in America Today. One particularly interesting aspect of the talk was Tonkowich’s discussion of the rise of religious freedom during the Roman Empire. Of particular importance was the Edict of Milan of 313 A.D. Read George Weigel’s First Things blog on this important document. Referencing the great church historian Robert Louis Wilken (The First Thousand Years), Weigel describes the document’s foundational significance in Western political thought and practice:

[The Edict] involved all religions, not just Christianity; it went beyond mere toleration and embodied a more robust idea of religious freedom, based on the conviction that true faith and true worship cannot be compelled; and it treated the Church as a corporate body with legal rights, including property-owning rights. Thus the not-really-an-Edict of Nicomedia and Elsewhere cemented into the foundations of the West ideas first sketched by the Christian philosopher Lactantius: that coercion and true religious faith don’t mix because “God wishes to be adored by people who are free” (as Joseph Ratzinger would rewrite Lactantius a millennium and a half later, in the 1986 Instruction on Christian Freedom and Liberation). The rather humane provisions of the mis-named “Edict of Milan” were not infrequently ignored in subsequent Western history; but that doesn’t alter the fact that the “Edict” had a profound and, in many respects, beneficial influence on the future of the West.

(Weigel quotes a passage from Wilken revealing that the Milanese origins of the documents putting the policy into effect arose from meetings between Emperors Constantine and Licinius during a state wedding.)

So, watch the lecture and learn other interesting things that will impress your friends and confound your opponents.

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