Category archives: The Courts

Opponents of Freedom Reveal Their True Agenda: Intolerance

by Travis Weber

May 12, 2016

Before same-sex marriage was constitutionally enshrined, we heard about how it would not affect anyone’s religious freedom. It was just about access to the marriage license, we were told.

Anyone who thinks opponents of Christian morality are not interested in forcing everyone to conform to their views need only glance at a motion filed in federal court in Mississippi reacting to a law which provides, of all things, exemptions on conscience grounds.

In their motion, this group of opponents asks the court to make sure that anyone “recusing himself or herself under Section 3(8) of HB 1523” be forced to “desist from issuing any marriage licenses to any other couples, including opposite-sex couples.”

Why make this request if access is the only issue? No access to any licenses has been impeded. But we know it is not about that. These opponents are requesting clerks not issue any licenses because they just can’t stand the idea that someone would not agree with their same-sex marriage.

The opponents proceed to read into motives and offer blanket generalizations:

Thus, although the most recent efforts by the State of Mississippi to disregard the constitutional rights of LGBT Mississippians through HB 1523 may be somewhat more subtle than the “steel-hard, inflexible, undeviating official policy” of the past, see United States v. City of Jackson, Miss., 318 F.2d 1, 5 (5th Cir. 1963) (ordering end of racial segregation in bus and railway terminals), the underlying impulse is exactly the same.” (emphasis mine)

But calling all genuine Christians everywhere complete racists isn’t enough.

They also mischaracterize the law as “exhorting state residents to discriminate against their gay, lesbian and transgender neighbors in a wide variety of circumstances.” Where is this behavior “exhorted?”

They also want the state to be forced to “post all recusal notices to a prominent place” on a government website. Shaming, anyone?

The real motive is obvious. It’s to force those who now disagree to eventually agree. Nothing more (for now), and nothing less.

Reflections on Oral Argument in United States v. Sterling

by Travis Weber

April 27, 2016

After oral argument this morning in United States v. Sterling before the U.S. Court of Appeals for the Armed Forces, there is reason to remain hopeful that the court will see the clear Religious Freedom Restoration Act (RFRA) claim in this case and that the appellant will prevail on that claim. The case, concerning a Marine lance corporal’s posting of verses of scripture at her desk, and subsequent court martial for refusing to remove them, has significant implications for religious freedom in the military.

As Paul Clement, arguing for the appellant, pointed out: the RFRA analysis is straightforward in this case. RFRA protects “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” Clearly, posting Bible verses are an exercise of religion. And this exercise was substantially burdened in this case by the special court martial conviction imposed after the lance corporal refused to compromise her religious exercise by taking down the verses. The Supreme Court has found a substantial burden on much less punishment from the government. While not diminishing the unique needs of the military to maintain good order and discipline, Clement highlighted the clear religious freedom violation in this case.

The government tried to dispute the presence of a substantial burden, but the cases on this point are not helpful to the government. Its attorney tried to argue that a hypothetical religious belief requiring adherents to write in chalk on the sidewalk in front of the White House would not be allowed and is therefore not substantially burdened, but this is a flat-out misunderstanding of RFRA! Such a belief may in fact be substantially burdened, but would not be permitted because the government has a compelling interest in the security of that property.

The government also wanted to focus on the need of the lance corporal to obtain some sort of “accommodation,” claiming the way it was handled here showed the “lack of a substantial burden.” But this is a mere attempt to distract from the plain text of RFRA.

Upon questioning from the judges, the government expressly admitted the quite obvious fact that RFRA applies to the military. (One judge seemed to grasp that the government was in a tough spot because RFRA applies to the “government as a whole,” which includes the military.) The government also admitted it didn’t know this was a RFRA case in the trial below, which (if believable)—while not letting it off the hook—further highlights sloppy handling of the claim below. (The lance corporal invoked DODI 1300.17, which contains the same standard as RFRA, and other evidence clearly indicates she was bringing a religious exercise claim). While the government tried to shift attention away from RFRA because a straightforward RFRA analysis is harmful to its case, it is clear that the military knew religious exercise was at play here, and substantially burdened this exercise by court martialing the service member engaged in it.

The government wanted to argue that because the lance corporal (who did not have the helpful assistance of an attorney in the courts below, which the chief judge noted required granting her actions more deference) did not literally say “RFRA” or “Religious Freedom Restoration Act,” she has now waived the religious exercise claim. This is just silly. The government clearly was on notice that her claim was religious.

Paul Clement pointed this out in his closing argument, noting there is no “magic words” test in applying RFRA. In addition, the trial court clearly recognized the religious nature of the postings, he said. Finally, the “accommodation” issue does not decide the substantial burden question! (The government seemed to need help understanding this.) In summary, the lower court falsely applied a far too restrictive understanding of RFRA, and must be reversed, Clement argued.

A win for the appellant in this case is a win for both religious exercise and the readiness of our military as a whole, for our armed forces can only be strengthened as their individual members draw upon faith to face hardship and danger in battle.

What should happen here? As Clement noted, there should be an obvious application of the text of RFRA. When this analysis is conducted, the lance corporal wins. Let us hope the court sees this as clearly as it decides this case in the coming months.

Is Vice President Biden Against All “Culture?”

by Travis Weber

January 21, 2016

It is reported that Vice President Biden heatedly demanded LGBT supportive compliance—on the part of everyone, everywhere in the world—while in Davos, Switzerland recently.

Speaking to business leaders, he said:

When it comes to LGBT rights in the workplace the world is looking to you. I know that sounds like hyperbole, sounds like exaggeration, but they look to you. You have more impact than anything the federal government has done, or the Supreme Court of the United States has done, or that Barack Obama and Joe Biden have done, lighting up the White House. You have more impact. You have more impact in countries around the world than we do on those social issues. You literally can change the terms of the debate – not overnight – but collectively you can change the terms of the debate. And shift some public opinion. You actually put governments on notice.

I’ve had it up to HERE with culture. I really mean it. Culture NEVER JUSTIFIES rank, raw discrimination or violation of human rights. There is NO CULTURAL JUSTIFICATION. None. None. None.

Aside from the implicit admission that Vice President Biden and others are seeking to force compliance (a point which could involve a whole separate discussion) and his assertion that business has an incredible impact on these issues (he’s correct about that, as we have seen in the United States), what’s most striking is his condemnation of a “culture” which does not believe that certain sexual acts are pleasing to God.

We must assume that Vice President Biden is exempting himself from having “culture.” I doubt he would say that. Assuming that much, what he is really saying then is that certain cultures are the problem and others aren’t. And if he’s saying that, then in condemning other cultures and demanding acceptance of his own, he must then admit that he is demanding allegiance to the object of worship in his culture: its permission and approval of radical, individual, sexual autonomy.

But does any genuine analysis of culture here really matter anyway? We know that Vice President Biden, like so many others, seems eager to follow the political winds and to embrace, and be embraced by, social approval from cultural elites. After all, this is from the man who at one time voted in favor of the Defense of Marriage Act and “Don’t Ask, Don’t Tell.” 

Constitutional Resistance to Obergefell v. Hodges

by Travis Weber

October 13, 2015

Last week, a number of scholars and law professors released a statement calling on all officeholders to resist — within the grounds of their own constitutional authority — the Supreme Court’s illegitimate and groundless ruling in Obergefell v. Hodges. The scholars’ statement points to the grave consequences of letting this decision continue to be treated as legitimate and binding precedent on the entire nation, and urges public officials to exercise their independent authority to follow the Constitution regardless of Obergefell’s dubious claims:

One lacking anything remotely resembling a warrant in the text, logic, structure, or original understanding of the Constitution must be judged anti-constitutional and illegitimate. Obergefell should be declared to be such, and treated as such, by the other branches of government and by citizens of the United States.

The authors of the statement remind us that the Supreme Court is not the only branch of government granted authority by the Constitution. While the Supreme Court has the authority and responsibility to decide cases and controversies between parties, it does not have the authority to declare entirely new doctrines of law binding on parties not before the court.

Quoting President Lincoln, the authors observe:

In 1857, Abraham Lincoln said, “Judicial decisions are of greater or less authority as precedents, according to circumstances. That this should be so, accords both with common sense, and the customary understanding of the legal profession.” If a decision “had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.” If, however, a decision is “wanting in all these claims to the public confidence,” it is “not factious” to resist it.

The authors quite understandably conclude that “Obergefell is wanting in all these claims to the public confidence. It cannot therefore be taken to have settled the law of the United States.”

They conclude:

The proper understanding and definition of marriage is self-evidently a vital question affecting the whole people. To treat as “settled” and “the law of the land” the decision of five Supreme Court justices who, by their own admission, can find no warrant for their ruling in the text, logic, structure, or original understanding of the Constitution, would indeed be to resign our government into the hands of that eminent tribunal. That is something that no citizen or statesman who wishes to sustain the great experiment in ordered liberty bequeathed to us by our Founding Fathers should be willing to do.

At Family Research Council, we recognize the Supreme Court as the highest court in the land, charged with adjudicating disputes between parties and determining those parties’ rights under the Constitution. However, the Supreme Court lacks the authority to decide the meaning of certain matters, one of which is an institution — marriage — which predates civil government and is only defined by God.

This must not be forgotten — neither by public officials nor those they are supposed to serve.

Kim Davis: The Issues of Accommodation and Burden

by Rob Schwarzwalder

September 8, 2015

In Kentucky, Rowan County Clerk Kim Davis has just been released from jail for refusing to issue marriage licenses to same-sex couples.

There is a lot of misunderstanding about the nature of Mrs. Davis’s case. Various Christian writers have argued that she is embarrassing Evangelical faith, that she simply should resign, that Christian leaders’ rhetoric defending Mrs. Davis is overheated, etc.

What they are failing to consider are two essential concepts that underlie the Davis case. They are these:

Accommodation. Does not Mrs. Davis deserve some kind of accommodation? We accommodate so many other religious beliefs in both government and private-sector workplaces. Can we not find one for Mrs. Davis and others like her who, out of the integrity of their consciences, cannot do something that abrades the very core of their religious convictions?

That’s why FRC is asking Kentucky Gov. Steve Beshear to call “for a special legislative session and establishing statutory accommodations for clerks like Kim Davis.” As noted by legal scholars Craig Bertschi (Kilpatrick Townsend law firm) and Nathan S. Chapman (University of Georgia School of Law) in their brief on behalf of Hobby Lobby, “the Free Exercise Clause requires some religious accommodations;” in point of fact, some 2,000 such accommodations now exist. As they write in the conclusion of their brief, “When Congress provides religious accommodations consistent with the government’s compelling interests, including its interests in protecting third parties, it supplements, rather than contradicts, the Religion Clauses’ protection of religious liberty.”

The federal government has a “compelling interest” to honor the freedom of religion. As the Founders argued, duty to God precedes duty to the state. This precept is essential to the very heart of our system of government. The same can be said of state governments as well.

Burden. The same-sex couples seeking marriage licenses have many other venues from which to obtain them. There are other, simple, only marginally inconvenient ways for them to obtain them.

The Religious Freedom Restoration Act (RFRA), passed by the U.S. Senate 97-3 and signed by President Clinton in a major public ceremony, makes this clear.

At the signing ceremony, the President said, “This event assumes a more majestic quality because of our ability together to affirm the historic role that people of faith have played in the history of this country and the constitutional protections those who profess and express their faith have always demanded and cherished.” Note his choice of word – both “profess” and “express.” Faith that is merely emotional or intellectual but whose public expression is stultified is not the kind of active faith to which religious devotion calls its followers.

Additionally, Kentucky has a RFRA which similarly requires the state government to offer an accommodation to people like Mrs. Davis unless the government can prove it has a compelling interest to advance and is doing so in the least restrictive way possible.

Writing in The Public Discourse, Kim Colby, Director of the Center for Law and Religious Freedom at the Christian Legal Society, says RFRA “incentivizes government officials to find mutually beneficial ways to accomplish a governmental interest while respecting citizens’ religious exercise—a win-win solution for all.”

Put simply, Mrs. Davis is being burdened in a manner wholly unfamiliar to those advocates of religious liberty who drafted and enacted RFRA only 22 years ago. The burden imposed on her is an unfair one for a simple reason: There are other recourses for those same-sex couples seeking legal legitimation of their unions.

For example, as Newsweek reports, Mrs. Davis’s attorneys have argued there are options “other than mandating the clerk’s name on all marriage licenses. They (range) from having the county judge executive issue the licenses to allowing a deputy clerk to issue them devoid of Davis’s name or authority as Rowan County Clerk.” Indeed, as reported in today’s Washington Post, “The licenses issued Friday (September 4) were altered to remove Davis’s name. They now say they are issued in the office of ‘Rowan County, Rowan County County Clerk’.”

In other words, there are ways in which same-sex couples can obtain marriage licenses that respect Mrs. Davis’s religious conscience and that do not unduly burden those couples in their pursuit of marriage licenses. And clearly, Kentucky has not met its state RFRA’s requirement that the government advance any interest in the least restrictive way possible.

This situation casts into large and vivid relief the kinds of issues the Supreme Court’s 5-4 ruling redefining marriage has placed before the country. Religious liberty in its fullest sense is at stake.

Surely, for Kim Davis and myriad Americans like her, accommodations can be found and unnecessary burdens lifted.

Kentucky public officials can’t refuse to do their job … unless they’re liberal?

by Peter Sprigg

September 8, 2015

Kim Davis is the Kentucky county clerk who was recently jailed by a federal judge for her refusing to violate her Christian conscience by issuing marriage licenses under her name and by her authority for same-sex unions. One of the chief arguments made against her conduct is that public officials cannot refuse to do the duties of their job.

So as I was researching this story, I found this excerpt, from an Associated Press article shortly after the Supreme Court’s ruling ordering recognition of same-sex marriage in June, rather interesting:

It began in March 2014 when Kentucky Attorney General Jack Conway — a former U.S. Senate candidate who is now running for governor — decided not to appeal the initial federal court decision that overturned Kentucky’s same sex marriage ban. During an emotional news conference at the Capitol, he said that to appeal would be to defend discrimination.

However, Democratic Gov. Steve Beshear later overruled Conway and hired private attorneys to defend the state’s ban in federal court.

His job as governor was to take the emotion out of it and say, ‘What’s the rule of law going to be?” said Colmon Elridge, Beshear’s longtime aide. “And the only way to do that was to get a final ruling from the Supreme Court.”

 . . .

Conway, meanwhile, has faced critics who suggest he ignored his duties as attorney general. While Republican nominee for governor Matt Bevin criticized the Supreme Court’s ruling, he especially targeted Conway, who he said “abandoned his oath of office.” Bevin said Conway’s “failure to do his job … disqualifies him from being elected to the office of governor.”

How can voters trust him not to break his oath again?” Bevin said.

Whitney Westerfield, the Republican nominee for attorney general, also blasted Conway in his reaction to the court’s decision.

Unlike Attorney General Jack Conway, who failed in his responsibility to fight for the laws of this commonwealth, as Attorney General I will act to uphold the law even as it runs counter to my personal beliefs,” Westerfield said in a news release.

Did anyone try to put Attorney General Conway in jail for refusing to do his job?

Colorado Appeals Court Refuses to Protect Religious Freedom

by Travis Weber

August 18, 2015

The Colorado Court of Appeals recently ruled against Masterpiece Cakeshop and its owner Jack Phillips, affirming an administrative ruling that Phillips discriminated against homosexuals as a protected class, and directing him to bake a cake for a same-sex wedding—in spite of his religious objections to being forced to help celebrate a same-sex marriage. Phillips may now appeal to the Colorado Supreme Court, and possibly the U.S. Supreme Court, but his opportunities for vindicating his religious freedom in the courts are running out.

While David French does a good job of breaking down the ruling and summarizing its problems at National Review, I want to focus on one very problematic portion of the decision, buried at the end of Footnote 8: the court’s attempt to distinguish and reject a Kentucky judge’s decision earlier this year vindicating the right of a printing business, Hands on Originals, and its owner Blaine Adamson, to not be forced to print t-shirts for a gay pride parade. The Colorado Court of Appeals acknowledged the similarity of the Hands on Originals case, but then attempted to (unsatisfactorily) distinguish the two:

[In Hands on Originals], evidence established that the T-shirt printer treated homosexual and heterosexual groups alike… . Specifically, in the previous three years, the printer had declined several orders for T shirts promoting premarital romantic and sexual relationships between heterosexual individuals, including those portraying strip clubs and sexually explicit videos… .

Although [Hands on Originals], like Masterpiece, based its refusal on its opposition to a particular conduct—premarital sexual relationships—such conduct is not “exclusively or predominantly” engaged in by a particular class of people protected by a public accommodations statute… .

Opposition to premarital romantic and sexual relationships, unlike opposition to same-sex marriage, is not tantamount to discrimination on the basis of sexual orientation.”

At best, this is sloppy analysis. At worst, it’s an intentional slight-of-hand to get rid of an unhelpful case. Unfortunately, I suspect it’s the latter.

What the court misses in its characterization above is that Adamson was not primarily acting out of opposition to any one activity or group, but was simply seeking to live out his faith—which might be manifested from time to time in specific situations as being in opposition to certain behaviors that he finds morally objectionable. Adamson’s refusal to print the t-shirts was not primarily “based … on [his] opposition to a particular conduct—premarital sexual relationships,” but was based on the exercise of his one cohesive set of religious beliefs—which apply to many different types of sexual conduct.

The court fails to mention that Hands on Originals was charged with sexual orientation discrimination for not wanting to make t-shirts for a gay pride parade. Adamson was able to point to other instances where he lived out his beliefs at work—beliefs, just like those of Phillips, which are opposed to any sexual activity outside of God’s design, which includes opposition to any sexual activity outside of marriage between a man and a woman.

Phillips sought to live out the same beliefs. The fact that he hasn’t had the “opportunity” to decline business from customers seeking to celebrate other types of sexual activity outside God’s design doesn’t convert his actions into discrimination against homosexuals as a class of people. The court didn’t seem to comprehend this point in erroneously distinguishing the Hands on Originals case. Indeed, Phillips was happy to serve customers regardless of sexual orientation; he just didn’t want to be implicated in their same-sex marriage.

Jack Phillips of Masterpiece Cakeshop was living out the same beliefs as Blaine Adamson of Hands on Originals. The Colorado Court of Appeals should have likewise recognized and protected his freedom of belief. We must hope that other courts will have the courage to do so.

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.

Obergefell Prompts Instant, Unflinching Resistance in the True Church Reaction of Tenth Presbyterian (Philadelphia)

by Chris Gacek

July 14, 2015

The Supreme Court’s decree in Obergefell v. Hodges redefining marriage was marked by a smug, self-satisfied “we know best” attitude. That must be obvious because one does not overturn the public policy choices of tens of millions of voters and millennia of human experience without being arrogant. That said, Obergefell has another dimension to it: there is the unspoken assumption that after the Supreme Court speaks those who object to its decision will roll over and submit.

In the vast majority of cases that would be true. In this instance, however, the Supreme Court has badly misjudged the situation because its edict explicitly contradicts the teaching of the Church on matters of the definition of marriage and the dual nature of human sexuality (male/female complementarity). These are not negotiable positions. The press trumpets announcements from every wayward church but ignores the real story.

The real story is that orthodox churches have almost instantly discerned the severity of the situation but have not retreated an inch in refusing to accept the redefinition of marriage. Here is one example.

Tenth Presbyterian in Philadelphia (“Tenth”) is a significant church in the history of American Protestantism in the last one-hundred years. Truly major figures including Donald Grey Barnhouse, James Montgomery Boice, and Philip G. Ryken have been the senior ministers there. On July 2, 2015, the current senior minister, Liam Goligher, wrote a pastoral letter to the congregation about the Obergefell Supreme Court decision.

It is a powerful letter that minces no words and leaves no door open for accommodation:

The world is hostile to God and its institutions eventually reflect the widespread rejection of his law— [a] “mystery of lawlessness” is at work and we have already seen this in the abortion horror that has swept away the lives of millions of American children, and we see this daily in our own instinct to do things our own way. Perhaps an even greater evil was perpetrated in the redefinition of “freedom” as each individual having the freedom to pursue their own vision of happiness no matter its impact on others. That irrational view is likely to come back to bite us. SCOTUS may have had its say for now but there is a higher court and a greater judge before whom they and we must one day stand. The law of God does not rely on any human court or cultural consensus for its legitimacy.

Pastor Goligher added, “Marriage between a man and a woman was [God’s] idea—it perfectly expresses unity in diversity—and it remains the revealed setting for the continuation of our race; the best context for the raising of our children; and the sure foundation of a sane society.”

The Tenth will not be retreating – like myriad other churches across the nation. Is this really the fight the Supreme Court wants? I guess so.

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