Category archives: Religious Liberty

Setting the Record Straight on RFRA (Again)

by Travis Weber

September 8, 2016

A recent NBC article about Indiana’s RFRA and its use by religious minorities (in addition to highlighting the ACLU’s ongoing hypocrisy on religious freedom) fails to accurately describe how RFRA operates.

At one point, the article states:

One week later, after intense national criticism, Pence amended the law explicitly preventing businesses from denying service based on ‘race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity or United States military service.’ With this, the Indiana state law came closer to the federal religious law and similar laws in other states.”

This is false. The federal RFRA and almost all state RFRAs contain no such amendment. They’ve operated well for years, protecting individuals like the Muslim inmate highlighted in this article, and others.

The article also implies that RFRA without the “fix” could not help the inmate:

After Pence’s “fix” the law became largely disarmed from doing what many critics said was its original discriminatory intent. In fact, the opposite happened, the law has since become an extra tool to fight against religious discrimination, [Professor] Katz said.”

Yet a Muslim inmate bringing a claim under RFRA with the “fix” is not the “opposite” of what he could have done before the “fix.” The provision of RFRA he is using to bring his claim (the same provision which has been around since 1993 with little controversy) was not changed at all. His claim is the exact same under RFRA with or without the “fix.”

To its credit, the article did accurately frame RFRA in this quote by another law professor:

What people tend to forget is that the statute is not a ‘broad exemption or a get out of jail free card,’ he said. Even though there is an exemption for religious freedom under the law, it doesn’t mean the state will grant it, he said.”

That certainly seemed lost on the media in the public debate last year. This balancing test has been a part of RFRA since its inception, and is true regardless of whether the “fix” is part of the law. If only everyone would take the time to understand this.

Protect Your Military Chaplains from a Bully

by Chris Gacek

September 2, 2016

In the last several years, the religious freedoms of members of the military have suffered an almost constant threat of restriction and reduction. There have been several private organizations, including Family Research Council, and members of Congress who have worked to preserve the religious freedoms of those serving in our armed forces. One of the stalwarts in this endeavor has been Congressman Randy Forbes of Virginia.

Mr. Forbes is leaving Congress at the end of this term, and the Chaplain Alliance for Religious Liberty (Chaplain Alliance), a group dedicated to protecting the rights of military chaplains, chose to honor Mr. Forbes for his service to the nation at a private, after-work event on July 12, 2016. In attendance were several uniformed military chaplains. They included the Chief of Chaplains of the Air Force, Maj. Gen. (Chaplain) Dondi Costin, who delivered a benediction while in uniform. Several members of the House and one United States Senator were also in attendance. Photographs of the event were taken and posted online.

This allowed anti-Christian activist “Mikey” Weinstein an opportunity to attack Maj. Gen Costin and two other chaplains for their participation in the event by filing a complaint with the Inspector General of the Department of Defense, Glenn Fine. With typically histrionic and excessive rhetoric, Weinstein asked that all three be formally disciplined. Weinstein presents a pretext for attacking Rep. Forbes and the event based on the Congressman’s opposition to the repeal of “Don’t Ask, Don’t Tell,” and his orthodox Christian beliefs about sexuality and marriage. Given Weinstein’s longstanding track record of anti-Christian animus, his raising of LGBT issues is mere window-dressing. Forbes could have opposed funding for dog parks in Katmandu, and that would have served almost as easily in Weinstein’s mind as a pretext for his attack.

I point the reader to a nicely crafted blog post by attorney and former law professor Skip Ash who runs through the constitutional arguments involved and finds them, as with most of Weinstein’s hackneyed arguments, to be without merit.

What is of particular note is Weinstein’s complete and utter lack of perspective. Does he honestly believe that a retirement-type event honoring a member of Congress who has supported the needs of chaplains would not be attended by appreciative members of the military chaplaincy? Is he really so misguided as to think that the DOD IG is going to state that military chaplains attending a retirement event for a member of the House in the company of other House members and a U.S. Senator is a punishable offense? Sadly, he appears to be.

It isn’t exactly clear what Weinstein thinks chaplains should be doing. He has repeatedly complained about the public expression of Christian faith in the military. To me, this seems like the perfect event at which chaplains are entitled to work as men and women of the cloth and servants of the people.

Consequently, I would urge those who support chaplains and the vital work they do to assist a “Stop and Protect” petition drive organized by the Chaplain Alliance. The petition states:

As a deeply concerned citizen, I am calling on leaders in Washington, D.C. to stop these unprecedented attacks on military members exercising their freedom of religion and expression. Our servicemen and servicewomen put themselves in harm’s way to protect our freedom and God-given constitutional rights. It’s time for you to protect theirs!

Once 10,000 signatures have been gathered, Chaplain Alliance will hand deliver the petitions “to the offices of key leaders on Capitol Hill, including Secretary of Defense Ashton Carter (D), John McCain (R), who chairs the Senate Armed Services Committee, Mac Thornberry (R), who chairs the House Armed Services Committee, and others.”

Help protect our chaplains in their important work, and sign the Chaplain Alliance’s petition today.

Ending the Secular Witch Hunt

by Peter Sprigg

August 26, 2016

Review of:

It’s Dangerous to Believe: Religious Freedom and Its Enemies, by Mary Eberstadt (New York: Harper, 2016).

Mary Eberstadt offers a concise diagnosis of the growing problem of hostility to religious freedom in the Western world, in her new book, It’s Dangerous to Believe: Religious Freedom and Its Enemies.

Her historical analysis notes that, contrary to progressivist myths about Christians exercising “theocratic” power, the influence of religion has been generally in decline ever since the French Revolution. However, she cites two recent historical events as triggering a more virulent hostility to religion—the terrorist attacks of September 11, 2001, which raised concern about the dangers of religious fanaticism; and the Catholic priest sex abuse scandals revealed in 2002, which solidified cynicism about institutional religion.

Eberstadt also cites two key legal battles in which the secular left discounted the importance of protecting religious liberty—the HHS contraceptive mandate in Obamacare; and the Supreme Court’s 2015 redefinition of marriage to include same-sex couples in Obergefell v. Hodges.

The Obama administration’s insistence on forcing an order of Catholic nuns, the Little Sisters of the Poor, to pay for abortifacient contraceptives is cited as an example of how the poor—supposedly the subjects of progressive concern—are subordinated to other ideological goals. She points out the abundances of charitable works and social services provided by religious believers, and notes that these agencies simply cannot be replaced by their secular or government-run counterparts. Yet secular progressives prefer to shut such agencies down (like they have Catholic adoption agencies that dare give preference to mother-father households) rather than allow dissent from the progressive worldview. Another chapter highlights how Christian education—whether in the form of student groups, distinctively Christian institutions, or homeschooling—has also been in the crosshairs of the Left.

Eberstadt argues, however, that the secular progressivism is not merely anti-faith, but actually represents a competing faith, explaining that “the sexual revolution has given rise to a new secularist faith of its own whose founding principles are the primacy of pleasure and self-will.” This faith actually mirrors Christianity in some ways, with its own “secular saints” (Sanger, Kinsey), “foreign missionaries,” “quasi-demonology,” and “canon of texts and doctrine.”

They believe they are in possession of a higher truth,” Eberstadt explains, “and they fight to universalize it.” This helps explain the ferocity of their attacks upon those who hold to traditional Judeo-Christian morality—“the only remaining minority that can be mocked and denigrated … [n]ot to mention fired, fined, or otherwise punished for their beliefs.”

Eberstadt does not hesitate to describe the attacks on believers as a “witch hunt”—and to compare them directly and in detail with similar “moral panics” in the past, including the day-care sexual abuse hysteria of the 1980’s, the McCarthyism of the 1950’s, and the granddaddy of them all, the Salem witch trials of 1692. “‘Bigot’ and ‘hater’ are the new ‘wizard’ and ‘witch,’” she explains; “epithets that intentionally demean and dehumanize.” Yet even serious consequences—like the armed assault upon the Family Research Council offices in Washington in 2012—has not deterred activists like those at the Southern Poverty Law Center from employing such inflammatory language.

Progressives claim that conservative Christians are on “the wrong side of history”—but Eberstadt flips that argument on its head, declaring that “today’s ideological stalking and punishing of Christians is going to look contemptible in history’s rearview mirror.”

This leads to the most distinctive aspect of Eberstadt’s argument. Unlike others who have written on similar topics, Eberstadt does not say the solution is for Christians to mobilize and defend themselves. Other witch hunts were not ended by their victims, and she warns that this one will not be, either. Instead, she calls on liberals themselves to return to liberal values—such as tolerance, freedom of speech and association, and respect for true diversity. We must, she says, “agree to disagree”—affirming “the right to be wrong,” as author Seamus Hasson has put it.

American history already gives us the model for this resolution of the culture war, Eberstadt argues—Thomas Jefferson, whose misunderstood “wall of separation between Church & State” was intended to protect religious liberty, not to stifle it.

Empirical and philosophical critiques of the sexual revolution are legitimate subjects for debate,” Eberstadt asserts, and those who disagree with them should nonetheless “do the right thing by listening to what [critics] have to say, and acknowledging their American right to say it.”

People on both sides of the culture wars would gain by reading and heeding Eberstadt’s thoughtful analysis.

(Note: Chris Gacek and I interviewed Mary Eberstadt about her book on the FRC daily radio program, “Washington Watch with Tony Perkins,” on August 18. That interview can be heard here.)

The New Thought Police

by Travis Weber

August 24, 2016

Several things are notable about David Gushee’s recent column describing the marginalization of orthodox Christian teaching on sexuality. It may at first appear to be a review of legal and policy developments, but it quickly morphs into a cheerleading piece urging the marginalizing to keep on going. Perhaps Gushee simply takes glee in finding himself sitting on the side of the discriminator. The piece is saturated with policy preferences, not theological explanations. In this context, his mention of doctrine as a factor in the discussion makes no sense. If social and political trends and preferences are what matters, who cares about doctrine?

Yet it wasn’t any of these points which stood out the most as I read the piece, but rather the apparent celebration (or at least satisfaction) of the uniformity of the view Gushee saw developing across society. To him, it’s apparently no problem that everyone influential thinks alike—as long as they have the right thoughts.

As Rod Dreher has pointed out, Gushee’s thinking goes hand-in-hand with the suppression of freedom and religious liberty. As I read Dreher’s commentary and Gushee’s piece, my mind went to a book I’m currently reading: James Michener’s The Bridge at Andau—his nonfiction account of the Hungarian Revolution of 1956 against Soviet Communism. As Michener recounts in his book, pervasive throughout the secret police apparatus the Soviets helped establish in Hungary was a paranoia about being suspected of disloyalty, of being turned in for perhaps even a comment that could be construed as hostile to the authorities. Conformity was the goal. Disloyal suspects were interrogated and tortured until they “confessed”—until they admitted what the authorities wanted to hear. They had to think as the authorities thought or they were no good.

Yes, we are a far cry from such a system. But never for a moment should we think the evil and oppression underneath it can’t arise in other circumstances and in other forms to take us unawares. Such celebration of uniformity is a threat to the foundational freedoms of our society, and is much larger than any one policy issue. It is a way of thinking about society at large, and Gushee seems to be failing at it in his new piece. At a minimum, he should reconsider his celebration that our elites seem to be “confessing” what he likes to hear.

I invite him to read The Bridge at Andau and welcome a discussion at any time.

Religious Freedom at Home and Abroad

by Travis Weber

August 17, 2016

At Family Research Council, we have consistently made the point that religious freedom must be protected at home and abroad. It is a human right, protected in the United States most prominently by the Religious Freedom Restoration Act and the First Amendment’s Free Exercise Clause. Internationally, it is protected by Article 18 of the International Covenant on Civil and Political Rights and other instruments. While the language differs slightly, the right protected is the same. People are free to choose the faith they will have and live out that faith in their lives.

So we were pleased to see The Economist highlight the link between protecting religious freedom at home and abroad in a recent piece on the Ahmadiyya Muslims. Ahmadiyyas believe their founder was a prophet, and for this belief, are viewed as outcasts and non-Muslims by many others within Islam. They have come to the West in hope of peace, where they eagerly pledge allegiance to the civil governing authorities of those countries. The Ahmadiyyas seem to have developed a theology of separation of church and state (as Christians had to do hundreds of years ago) as we currently know it in Western countries—places where the Ahmadiyyas appear to appreciate the legal protections for all faiths. They certainly need it, being subject to legal discrimination, violence, and murder for their beliefs. Yet this no longer occurs only in their home countries:

This year anti-Ahmadi hatred seemed to break out in Britain, with the murder in March of a popular Glasgow shop-keeper called Asad Shah. His family had moved to Britain in the 1990s in the hope that life for Ahmadis would be easier than in Pakistan. But Pakistan’s religious passions have clearly been felt in Britain; it emerged in April that literature urging the killing of Ahmadis was being circulated in at least one London mosque. The assassin, from the northern English city of Bradford, openly declared his intention of punishing his victim for “disrespecting” Islam, and in particular, for having wished his Christian neighbours a happy Easter.”

The Economist continues:

The story suggests a wider point. Back in the 1990s, when American officaldom was first mandated by Congress to start making annual assessments of the state of religious liberty round the world, there was widespread confidence in Western capitals that liberal-democratic norms, including religious liberty, would steadily be established in those countries which still oppressed their citizens and curbed their freedom to believe and worship. That missionary confidence is now greatly diminished. But that makes it doubly important that Western governments use all their might at least to protect their own subjects from brutal assaults on freedom of thought. Families like that of Asad Shah, who look to Western democracies as a beacon, must not be disappointed. Or to put it another way, the Ahmadis should feel they are getting something in return for their loyalty to the flag.”

Indeed. This is all part of making sure that true religious freedom—not religious freedom curtailed by blasphemy laws, or religious freedom contained to one’s private life—is protected both in the West and around the world. The United States must do its part to protect this right at home, while revitalizing the role of religious freedom protection in foreign policy.

Question of the Week - August 9, 2016

by Daniel Hart

August 9, 2016

Question: In reading about Title IX and how the present administration is using it for their sexual experimentation, FRC repeatedly calls it a “law.” I thought it was a mandate that the schools could refuse, even though they might be losing their grant money from the government. Is it a law, since Obama has again overreached his powers by sidestepping Congress’ authority to make laws?

FRC: The Obama administration has interpreted Title IX in a manner that is inconsistent with the Congressional intent in passing the legislation. Until that interpretation is either rescinded by a future administration or overridden by a Court, that interpretation has legal effect.

We encourage you to watch our recent lecture to learn about what is being done legislatively, educationally, and legally to stand for students and families in response to the new interpretation of Title IX. In addition, please refer to FRC’s paper, “Title IX and Transgendered Students,” for more information.

Parents should demand that school boards not sacrifice the safety of children out of fear of losing federal funding, which on average only amounts to about nine cents of every educational dollar. The recent victory in Fairfax County is an encouraging example of the powerful impact that parents have when they stand for truth. It is also time for Congressional leadership to act and rein in this administration. Bottom line, the president’s decree should be resisted with every legal and moral instrument we have available to us in this country.

Finally, please sign our petition to Congress, asking them to take action to protect America’s children.

Federal Judge Still Refuses to Let Mississippi Religious Freedom Law Go Into Effect

by Travis Weber

August 3, 2016

After Judge Carlton Reeves in Mississippi granted a preliminary injunction against HB 1523 and refused to let that state’s religious freedom law go into effect last month, Governor Bryant requested that the ruling be put on hold pending appeal. Judge Reeves refused to grant this request too, the other day declining to stay his ruling while the case is appealed. His opinion contains several weaknesses, and a failure to adequately address arguments in support of the law.

Judge Reeves claims that his opinion granting the preliminary injunction “laid out” why “HB 1523 is not like federal laws which permit persons to opt-out of going to war or performing abortions.” But that opinion did not adequately explain the distinction in the abortion context. He tried to argue that abortion dissenters have a problem with “all abortions,” while Mississippi clerks don’t have a problem with “all marriages licenses.” But it’s not for Judge Reeves to dictate whether someone’s conscience objections are correct. If someone has a guilty conscience, then they have a guilty conscience. Moreover, he still dodges the question of why conscience protections which only protect the pro-life view violate the Establishment Clause—which is the actual legal question anyway. The answer, of course, is that they don’t. In Harris v. McRae, the challengers to the Hyde Amendment (barring certain funding of abortions) had argued that it violated the Establishment Clause on the theory that it incorporated into law “the doctrines of the Roman Catholic Church concerning the sinfulness of abortion and the time at which life commences.” The Court responded that “it does not follow that a statute violates the Establishment Clause because it ‘happens to coincide or harmonize with the tenets of some or all religions.’ … That the Judaeo-Christian religions oppose stealing does not mean that a State or the Federal Government may not, consistent with the Establishment Clause, enact laws prohibiting larceny.”

On top of inadequately addressing these arguments, Judge Reeves’ initial opinion failed to even mention “laws which permit persons to opt-out of going to war,” much less “la[y] out” why they are different from HB 1523.

Of course, the answer is they are not. Judge Reeves bafflingly cites to Gillette v. United States, but Gillette actually supports Governor Bryant’s case, standing for the proposition that laws which protect only one side of a certain area of beliefs are perfectly consistent with the Establishment Clause. Judge Reeves claims that “issuing a marriage license to a gay couple is not like being forced into armed combat or to assist with an abortion. Matters of life and death are sui generis.” But this isn’t the issue. Judges have no role in providing their personal opinion as to the matter being objected to. If the objector has a conscience problem, the inquiry stops there. This is well-settled under our constitutional religious freedom framework, and prevents judges themselves from being tangled up in assessing religious beliefs. To do otherwise leads to Judge Reeves’ error: judging the conscience of the objecting clerk. Who is he to tell that clerk otherwise if they believe same-sex marriage causes grievous harm and they don’t want to be a part of facilitating it?

Judge Reeves continues this error in a footnote: “Allowing conscientious objectors was a win-win: good for soldiers and good for conscientious objectors. HB 1523 is different. Allowing people to opt-out of serving LGBT citizens comes at the expense of LGBT citizens.”

Aside from continuing to err by assessing the value of the conscience objection in the military context, he is just flat wrong. He can’t show any “expense” on the part of LGBT citizens. He tries to point to Estate of Thornton v. Caldor to argue that laws which burden “other citizens and entities” are unconstitutional, but that case involved an actual requirement being placed on private citizens regarding their employment practices. There is NO such requirement here. HB 1523 merely protects certain people from the government. Our Constitution itself does that, and laws are perfectly constitutional when they accomplish the same.

Illinois Governor Signs Bill Forcing Pregnancy Care Centers to Refer for Abortions

by Andrew Guernsey

August 3, 2016

Could you imagine a law forcing a vegetarian store clerk to tell customers about the benefits of eating meat and then to refer them to Burger King? A new Illinois law does worse than this—it forces pro-life doctors, nurses, pharmacists, and even the state’s 51 pregnancy care centers to become abortion advocates and escorts to abortion clinics like Planned Parenthood for the killing of innocent human life. Far from leaving abortion to the privacy of a woman and her doctor as pro-abortion politicians would have us believe, the new Illinois law tells pro-life health care personnel what to say and do.

Late last week, Illinois’ Republican governor Bruce Rauner signed the draconian and anti-religious freedom bill, SB 1564, despite not receiving a single Republican vote. The law forces pro-life doctors, nurses, pharmacists, and even pregnancy care centers, who object to abortion, to tell their patients about the alleged “benefits” of abortion and abortifacient drugs, against all evidence to the contrary, and then to refer or transfer those patients to an abortionist, or provide written information about where they can obtain an abortion or abortion inducing drugs or devices. Victims of illegal pro-abortion hospital policies like Illinois nurse Sandra Mendoza, who was forced out of her long-time job in June 2016 as a pediatric nurse for refusing to participate in abortion, will also no longer be able to sue under the state’s Health Care Right of Conscience Act.

Anti-religious freedom initiatives like Illinois’ pro-abortion law are spreading in liberal states around the country, emboldened by the Health and Human Services’ (HHS) refusal to enforce the federal conscience law, known as the Weldon Amendment, to stop California and New York from forcing even churches to cover abortion. Illinois’ new abortion promotion and referral law directly violates the federal conscience law (the Weldon Amendment), which prohibits any state that receives federal funding from conducting “discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” This harmful, anti-life discrimination must not stand!

Thankfully, there is meaningful legislation waiting for a vote in the Senate, and has already passed the House, which would provide pro-life health care providers relief from the new Illinois law: the Conscience Protection Act (S. 2927, “CPA”), introduced by Sen. James Lankford (R-OK). CPA would codify the Weldon Amendment and provide a critical private right of action so that health care providers and organizations facing discrimination in any state for refusing to participate in abortion can sue in court to protect their conscience rights. In light of HHS’ refusal to enforce the law in California and now Illinois, the Senate should follow the House’s example and pass CPA. The pro-life doctors, nurses, pharmacists, and pregnancy centers of Illinois deserve to have their rights protected.

Religion in Immigration: How to Handle it Properly

by Travis Weber

August 2, 2016

An opinion by Judge Reinhardt out of the Ninth Circuit Court of Appeals yesterday shows how to properly view the role of religion in asylum and immigration matters.

Kurniawan Salim had first filed for asylum in 2006 when he was a Buddhist on the grounds that he feared returning to Indonesia because of his Chinese ancestry. His claim was rejected. Still in the United States, he has since converted to Catholicism, and now asserts a fear of persecution based on religion if he returns to Indonesia. Yet the Board of Immigration Appeals (BIA) rejected his request to reopen his case, claiming the evidence offered was “largely cumulative” of that offered in his first case.

Thankfully, Judge Reinhardt reversed the BIA, which had apparently missed the significance of the fact that Kurniawan was now a Christian and had offered significant evidence he would be persecuted on that basis. As Judge Reinhardt observed, the BIA’s “reasoning makes little sense where, as here, the motion to reopen presents a different basis for relief than was relied upon during the prior hearing. In such cases, the evidence related to the new claim for relief is necessarily “qualitatively different” from that offered at the earlier hearing.”

Kurniawan had submitted significant evidence that hostility toward Christians in Indonesia had dramatically increased since his first case, with a letter from his sister in Jakarta describing the immediate threat of attacks against Christians in her area. Judge Reinhardt additionally found that the BIA erred by failing to examine the evidence that Christians were threatened in light of Kurniawan’s membership of this specific religious group.

Judge Reinhardt accurately diagnosed the religious freedom threat for this asylum applicant, while the BIA showed an ignorance of the role religion plays in this type of case. If those at the BIA can’t understand that evidence of threats against Christians matter because someone is a Christian and not a Buddhist, we are in trouble. It is not sufficient to merely recognize the role of religion generally (though that is not always properly done), but government officials must also understand the religious freedom component of these cases as informed by the social, political, and interreligious dynamics of specific areas around the world. They must also bring this clear-headed approach to the broader context of immigration and security, which needs our objectivity and understanding much more than our simple, one-size-fits-all “solutions.”

This case is a glimpse into how international religious freedom as a human right should inform our values as they play out in our immigration system. America has been and will hopefully remain a beacon around the world for the freedom to choose one’s beliefs and live them out without fear of harm. Kudos to Judge Reinhardt for protecting this freedom today.

Question of the Week - July 25, 2016

by Daniel Hart

July 25, 2016

Question: I was told that California’s Senate Bill 1146 will strip the state’s faith-based colleges and universities of their religious liberty to educate students according to their faith convictions. Is this something that FRC is fighting? How can I get involved?

FRC: SB 1146 is something that we are fighting to defeat. We wrote about it in our June 10th Washington Update. This bill is an attack on the religious liberty of Californians and could set a dangerous precedent for other states to enact similar laws restricting the religious freedom of faith-based colleges and universities to set their own policies. Please go to the “Oppose SB 1146” website to learn how you can help stop this bill from becoming law.

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