Author archives: Alexandra McPhee

Seventeen Years Later, Controversy Emerges Over Painting of “Ground Zero Cross”

by Alexandra McPhee

January 14, 2019

In Camdenton, Missouri, a county commission is facing the threat of a lawsuit for a painting hung on a courthouse wall in remembrance of the terrorist attacks of September 11, 2001. A year after almost 3,000 people were killed in the worst terrorist attack on American soil, a local high school student painted an image of a firefighter and young girl pointing to the “Ground Zero Cross,” a cross-shaped steel beam pulled from the rubble of Ground Zero in New York City and mounted on a platform. After the attacks, rescue and recovery workers found comfort in this new memorial, and the Camden County community saw the painting as a marker for a period of renewed national unity after catastrophic loss of life.

Commissioners called a public hearing after an activist secularist legal group, Freedom From Religion Foundation (FFRF), demanded its removal. Despite the specter of high legal fees to defend the painting in court, residents are holding fast.

What say ye, if it costs Camden County a tremendous amount of money. Does the painting stay?” a commissioner asked.

Most, if not all, hands were raised. Voices from the crowd shouted: “We have people in the hall, too.” “Raise my taxes!”

Legal arguments grounded on the so-called principle of the “separation of church and state” are based on the First Amendment’s Establishment Clause of the U.S. Constitution.

FFRF argues that the painting’s depiction of a cross-shaped beam constitutes an endorsement of Christianity, and thus, a violation of the separation of church and state. It dismisses the fact that a federal appellate court held that the very Ground Zero Cross depicted in the Camden County courthouse painting passed constitutional muster after a challenge to its exhibition in the National September 11 Museum by another secularist legal group.

Recent letters released en masse by FFRF demonstrate that the group’s understanding of the Establishment Clause fails to account for Supreme Court precedent that grounds its reasoning in the original meaning of the text of the U.S. Constitution rather than cut-and-paste phrases from previous Court opinions. In Marsh v. Chambers (1983), Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012), and Town of Greece v. Galloway (2014), the Supreme Court shows that it is increasingly relying on legal history, which recognizes the role religion has played in our nation, to decide various government actions.

The Supreme Court has not made clear whether this look at historical practices will be the standard under which courts consider establishment clause challenges to religious symbols located on government property. Hopefully, this will change now that the Court is slated to decide whether a war memorial in the shape of a cross and maintained by a local government can stand under the Establishment Clause. We have submitted a brief in that case urging the Court to recognize the pivotal role of religion in society and commemoration and to let the cross stand.

But even under the most subjective legal standard, which the Court put forth in Lemon v. Kurtzman (1971) (looking at the primary effect of a government action, the purpose of the action, or the extent to which the action entangles government with religion), the courthouse painting passes muster. The local artist’s sister-in-law said it best: “I think it’s sad, that this many years later, we’re all here. I obviously see [a cross] . . . but I see it as a symbol of hope and a reminder to what we’ve lost.”

The Postal Service Stamps Out the Christmas Spirit

by Alexandra McPhee

December 26, 2018

Tavia Hunt was just trying to get into the holiday spirit when she decided to request through a private vendor a customized stamp with a family photo (above). Unbeknownst to Hunt, she made the mistake of choosing a picture of her family posing in front of St. Basil’s Cathedral in Moscow, Russia.

Hunt’s request was denied. She was told that the photo was a violation of a United States Postal Service (USPS) regulation that prohibits “content that is unsuitable for all-ages audiences, including . . . [a]ny depiction of political, religious, violent or sexual content.” The cathedral, apparently, was too religious.

According to USPS, it aims to “to limit content to family-friendly images or text that would not cause concern among mainstream, multi-generational users of the mail.”

It’s a bizarre state of affairs when even arguably religious content is considered as unsuitable as violent or sexual content or as cause for “concern.” First Liberty Institute, which has filed a demand letter on behalf of Hunt, pointed out the irony that St. Basil’s Cathedral “was secularized and converted into a museum decades ago.”

First Liberty rightly called out the USPS and said:

If the USPS insists that Tavia’s family photo in front of a historic cathedral contains religious content in violation of the USPS guidelines, then the guidelines raise significant First Amendment concerns that may require further legal action.

USPS has said the regulation prohibits any religious content to avoid “delegat[ing] unduly fine-grained distinctions to providers and increas[ing] First Amendment and [USPS] liability.”

Well, so much for that. The overbroad prohibition has created exactly the scenario USPS sought to avoid. Yet again, government treats religion as a leper, and now citizens are shut out from even being in the same picture with a cathedral if they want to appear on a stamp for their family Christmas card.

Stats Show People Still Want Reason for the Season This Christmas

by Alexandra McPhee

December 15, 2018

Think American citizens are ready to give Christ the boot this holiday season? Think again.

A 2018 report from LifeWay Research shows an overarching sentiment that “Christmas should be more about Jesus” (65 percent).

These numbers reflect the reality of a report from Ozark, Missouri, that many locals clamored to get the government to keep its traditional Christmas light display featuring a cross after the town received legal threats from an activist secular legal group about the display.

According to the Springfield News-Leader, Mayor Rick Gardner received “hundreds” of phone calls, text messages and other communications from members of the Ozark community following the town’s initial announcement [to take the cross down in the face of legal threats]. One person reportedly told Gardner that the cross “is a part of Ozark” and “this is Christian County, for Pete’s sake.”

The legal letter sent to officials claimed that the cross was a violation of the First Amendment. But the United States Supreme Court has said government can “recognize the role religion plays in our society.” And the question whether government can maintain displays depicting religious symbols—like the one in Ozark—is now before the United States Supreme Court.

The heckler’s veto—the one complaint that convinces public officials to cave on behalf of all citizens—might fly in some areas. After all, Ozark was essentially slapped with the same legal letter sent to Dover, Ravenna, and Streetsboro, Ohio, and Rehoboth Beach, Delaware. Officials in all but Ozark and Streetsboro caved.

But what makes the difference is when citizens—the majority of whom say Christmas should be more about Jesus—make their voices heard. And they say keep the cross up and baby Jesus in the manger.

Supreme Court Refuses to Rule on State Decisions to Defund Planned Parenthood

by Travis Weber , Alexandra McPhee

December 10, 2018

Over the past several years, a number of states have tried to terminate Medicaid contracts with Planned Parenthood for various reasons, not the least of which because of videos released depicting Planned Parenthood officials engaging in the sale of fetal tissue and body parts.

But how much discretion does a state have to terminate those contracts? Can an individual sue any time they disagree? This question goes beyond the topic of Planned Parenthood funding specifically. But today, the United States Supreme Court declined to review a set of cases that could have provided an answer, leaving in place several lower court decisions that have blocked state executive decisions to terminate Medicaid contracts with and defund Planned Parenthood.

In Planned Parenthood of Gulf Coast v. Gee (5th Cir.) and Planned Parenthood of Kansas & Mid-Missouri v. Andersen (10th Cir.), two circuit courts separately agreed that individuals have the right to sue states for withdrawing Medicaid funding from and thus limiting access to providers.

In other words, in five circuits, according to Justice Clarence Thomas (writing in dissent from the court’s decision today (see pp. 9-12)), “individuals could sue whenever a state changes medical product providers or services.” Sound like bad policy? At the very least, it’s one inconsistently applied across the circuits.

For one, states need clarity on this issue, and they still don’t have it.

Justice Thomas called it “the Supreme Court’s job” “to clarify the confusion in the law in this area.” True. The Court’s own rules—and caselaw—provide as much.

So what explains the Court’s refusal to do its job here?” Justice Thomas posited. “I suspect it has something to do with the fact that some respondents in these cases are named ‘Planned Parenthood.’”

As Justice Thomas notes, “the question presented here would not even affect Planned Parenthood’s ability to challenge the States’ decisions” to defund. But Justice Thomas suggests that the political cloud that hovers over the topics of abortion and Planned Parenthood prevent even the most sterile and noncontroversial legal issues from getting the attention they deserve. We’re inclined to agree.

This case “has nothing to do with abortion,” Justice Thomas points out. It’s just about a private right of action under Medicaid—involving whether individuals can sue, for instance, whenever a state changes medical product providers or services.

Are these cases considered hot potatoes because of their broader abortion defunding implications? Possibly.

Right now, 13 states have taken action to defund abortion in Medicaid programs: Alabama, Arizona, Arkansas, Florida, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, South Carolina, Tennessee, and Texas. Florida’s measure wound up in the courts, and was blocked. Other cases, like a challenge to an Ohio funding law, involve payment to abortion providers in other contexts.

These cases are not directly affected by the Supreme Court’s actions today. But the optics certainly wouldn’t look good for Planned Parenthood if a Supreme Court decision, even on different legal grounds, meant that states could go forward with their decision to defund Planned Parenthood.

One of these days, the Supreme Court will have to confront the issue.

Religious Liberty and the “Wedding Vendor” Cases

by Alexandra McPhee

December 4, 2018

This year, the United States Supreme Court vindicated the free exercise rights of Jack Phillips, a cake baker from Colorado, who had suffered government discrimination after he declined to bake a cake for a same-sex commitment ceremony based on his conviction that a marriage is only between a man and a woman. Yet Jack’s ordeal wasn’t done; he was subsequently sued and has an ongoing case because he didn’t want to be forced to create a cake with a message about the transgender lifestyle he believed to be false.

Melissa and Aaron Klein, bakers from Oregon and formerly of Sweet Cakes by Melissa, are now asking the Supreme Court to review their case, which arose under similar circumstances. The Supreme Court could decide any day whether to review their case. If the Court does, they may get relief. If it doesn’t, the Kleins are stuck with an oppressive and unconstitutional state court ruling against them.

Their cases are not unique; attacks against traditional beliefs in marriage have been on the rise. Why is that?

Several years ago, the United States Supreme Court observed that “[m]any who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.” That quotation came from Justice Anthony Kennedy’s opinion in Obergefell v. Hodges (2015), the Supreme Court decision that ushered in a new era in the law surrounding religious liberty.

It is important that the Supreme Court recognized the sincerity of the orthodox belief that marriage is a sacred institution only available between one man and one woman. But by making marriage between two people of the same sex a constitutional right, Obergefell made it easier for courts and legislatures around the nation to conclude that same-sex couples have rights that somehow trump those of all who disagree—and thus violate their consciences.

We have seen this primarily in the wedding vendor industry, the subject of our newly updated publication released today, Religious Liberty and the “Wedding Vendor” Cases. Business owners across the country have had to face the unacceptable choice of violating their religious beliefs or losing their livelihoods—all because they will not use their skills to affirm or facilitate the celebration of a same-sex wedding.

Today, we bring to your attention fifteen cases where business owners have had to collectively endure thousands of hours of litigation and hundreds of thousands of dollars in fines for sticking to their beliefs in natural marriage. This is an unacceptable affront to every American’s constitutional right to the free exercise of their religion, and we must stand to ensure that this latest campaign against the freedom of conscience comes to an end.

For more information, read our newly updated publication.

Let There Be (Christmas) Lights

by Alexandra McPhee

November 27, 2018

For several years, Jeremy and Kristy Morris and their young children hosted a five-day long event on their property celebrating Christmas. When they decided to move to a new community and explained to the new HOA that they planned to host this event, communications with the HOA hit a discriminatory pitch. In 2014, the HOA explained in a letter that

It’s not the intention of the Board to discourage you from becoming part of our great neighborhood, but we do not wish to become entwined in any expensive litigation to enforce long standing rules and regulations and fill our neighborhood with the hundreds of people and possible undesirables. We have worked hard to keep our area peaceful, quiet, and clean . . . .

And finally, I am somewhat hesitant in bringing up the fact that some of our residents are non-Christians or of another faith. And I don’t even want to think of the problems that could bring up.

Though citing “rules and regulations,” the letter’s concluding paragraph made clear that the HOA’s true opposition to the Christmas event was the “Christ” part of the occasion.

The Morris’ filed suit once they realized that the HOA wanted to qualify the terms of their residence in the new community because they were Christians. They argued that the HOA was violating the Fair Housing Act by committing religious discrimination. The Fair Housing Act prohibits “discriminatory practices [that] make housing unavailable to persons because of . . . religion.” In other words, no person or organization has the right to exclude someone from something as essential as housing because of their religious beliefs.

The case went to trial, and the evidence exposed the true extent of the HOA’s hostility towards the Morris’ and their faith. The jury sided with the Morris’ and awarded a total of $75,000 to the family.

The facts of this case are troubling, especially because of the HOA’s express hostility. An earlier draft of the above letter showed that the HOA even referred to the potential Christmas event attendees as “the riff-raff you seemed to attract over by WalMart.”

But the jury vindicated the Morris’ civil rights and held the HOA accountable for its attack on religious expression. This case demonstrates that we must always be vigilant in defending our federally protected rights to express our faith.

In India, Twitter Gets a Taste of the True Danger of Viewpoint Suppression

by Alexandra McPhee

November 26, 2018

Last Thursday, Jack Dorsey, CEO of Twitter, was accused of violating India’s blasphemy law during his recent visit to the country. A legal group filed a petition against him asking a court to determine that Dorsey violated several penal laws, including section 295A, which prohibits the “outrage [of the] religious feelings of any class.” It could become a high-profile example of the active enforcement of blasphemy laws, which exist in dozens of countries and are still enforced today.

Though intended to protect “religious feelings,” blasphemy laws like India’s section 295A are used by the government and hostile private parties seeking retaliation to suppress people of minority faiths. In Pakistan, for instance, the country’s highest court overturned the conviction of Asia Bibi, a Christian mother who wallowed in jail for almost ten years on death row because of a dispute that resulted in an accusation of blasphemy when she drank water from a common well used by Muslim women.

Blasphemy laws also undermine speech and religious liberty by saddling convicted individuals with onerous penalties for expressing their beliefs. The law in Pakistan, which carries the death penalty, is the most extreme example.  But penalties commonly include years-long imprisonment and fines. A violation of India’s section 295A, for instance, is punishable by up to three years’ imprisonment, a fine, or both.

While six states in America still have blasphemy laws on the books, they are unenforced and the U.S. Constitution’s First Amendment protections would surely trump those laws if they were ever brought against someone in court. Countries like India and Pakistan also have provisions in their constitutions supposedly protecting the freedom of conscience or religious exercise, but those provisions obviously are not fully and effectively enforced.

Multiple news stories reveal that Twitter actively bans or censors users for expressing views with which the organization disagrees. Turnabout is fair play, perhaps. But, hopefully, this will serve as a wakeup call to the company about the true danger of suppressing the expression of beliefs.

No one should have to fear the sword of the government or blasphemy laws being used against them for expressing their beliefs. To ensure that all people can speak and worship according to their conscience, we must fight against blasphemy laws and guarantee protections for the freedom to believe.

Pray Tell: Atheist Sues to Lead Legislative Prayer

by Alexandra McPhee

November 1, 2018

In a peculiar turn of events, secularist organization Freedom From Religion Foundation (FFRF) has argued before a federal appeals court that an atheist has the right to pray on the floor of the U.S. House of Representatives.

Dan Barker, co-founder of FFRF, desired to serve as Rep. Mark Pocan’s (D-Wis.) guest in leading the opening prayer for the following legislative session. Barker is an atheist. His request was denied because it was determined that he did not meet the chaplain-policy requirements to give an invocation on the House floor. His lawsuit argues that the policy unconstitutionally discriminates against nonbelievers under the Establishment Clause of the United States Constitution.

It is ironic and hypocritical that the group that routinely seeks to box out religion from the public square is now invoking the principles of religious freedom in order to make a secular invocation in our national legislature.

This anomaly notwithstanding, the greater issue is that the current judicial precedent surrounding the Establishment Clause is so malleable (one federal circuit court judge called it “a hot mess” and “a wreck”) that even something as unobtrusive as prayer is no longer guaranteed protection in the public square. Coach Joe Kennedy of Washington is one example, and there are many more like him across the nation.

As the late Justice Antonin Scalia observed, 1970s-era Establishment Clause doctrine has created a “geometry of crooked lines and wavering shapes” in this area of constitutional law. So what should we expect out of the judges responsible for interpreting constitutional law at our nation’s highest court and in lower courts across the country?

To establish sound Establishment Clause (or any constitutional) doctrine, the most intellectually honest and sustainable approach is to look to the understanding of the Founders at the time they penned and ratified the U.S. Constitution. This means looking at history. As the U.S. Supreme Court once said, “The line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers.” This idea of looking at the understanding of the drafters of any law is as true for the latest entry of the U.S. Code as it is for the First Amendment.

Barker’s case involves legislative prayer, which is specially recognized for its undeniable historical precedent. In fact, legislative prayer, or “divine service,” has taken place as early as the 1700s. Largely because of its deep roots in history, legislative prayer is considered constitutional. It is an instructive example of how the courts have used and should use legal history to determine the constitutionality of religion in the public square. Unfortunately, the same is not true for judicial precedent surrounding religiously inspired monuments or certain tax exemptions, which some argue should fail constitutional muster under the Establishment Clause.

Fortunately, scholars have observed a resurgence in the role of legal history in modern judicial decision-making at the Supreme Court. What’s more, President Donald Trump’s laser-like focus on the appointment of judges has resulted in “appointees [that] are showing themselves to be strong spokespeople for what is generally described as the conservative viewpoint.” As such, law professor Arthur Hellman of the University of Pittsburgh said, “[n]ew blood reopens old issues.” And even though this use of legal history, or “originalism,” has become associated with “the conservative viewpoint,” the fact is that it is “ideologically neutral. On various stormy issues, both the conservative and liberal factions . . . have found safe harbor in historical reasoning.” What all this means is stable judicial precedent—not the confusion that exists today.

As with the doctrine of legislative prayer, we need to return to our legal historical roots and use what we find there as our guiding principles for understanding the constitutionality of religion in the public square.

Moreover, with mid-term elections on the horizon, it is critical that we vote in U.S. Senators who will help appoint judges that protect our constitutional rights. Our Republican-controlled Senate has faithfully stewarded its advice-and-consent powers by helping appoint judges who value historical reasoning. We ought to vote for candidates who will continue this trend.

Public prayer in schools and the government workplace, for instance, is more constitutional than it’s given credit for. You can feel assured in this by looking no further than Article III of the Northwest Territory Ordinance of 1787, in which the Founding-era Congress stated, “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”

As for Barker and his legislative prayer case—we’ll have to see whether the judges in his case conclude that history is on his side.

Ala. Supreme Court Justice: Roe Cuts Off the Unborn’s Full Right to Life

by Alexandra McPhee

October 31, 2018

In a concurring opinion, Justice Tom Parker of the Supreme Court of Alabama called on the nation’s highest court to overturn Roe v. Wade (1973) and remove the last major obstacle to the states’ right to enact protections for the unborn.

Earlier this month, the Supreme Court of Alabama affirmed that Jesse Livell Phillips will face the jury-recommended death penalty for the murder of his young wife and their unborn child. Prosecutors used Alabama’s Brody Act, one of several laws in Alabama that legally recognize the personhood of the unborn.

Justice Parker agreed with the outcome and wrote separately to denounce what he calls the “Roe exception.” Because of the U.S. Supreme Court’s holding in Roe, he writes, “the only major area in which unborn children are denied legal protection is abortion.” The “unborn child’s fundamental, inalienable, God-given right to life is the only right the states are prohibited from ensuring . . . .”

His proffer comes at a time when advocates on both sides of the life debate are keeping a close watch on the new makeup of the U.S. Supreme Court and how it might rule in a case that allows it to revisit the holding in Roe. But for years Justice Parker has urged that the decision in Roe is outmoded, that the holding in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) meant to address the decision in Roe only created more issues, and that the unborn are “entitled to the full protection of law at every stage of development.”

Many (though not all) state legislatures agree. Americans United for Life comprehensively documents the “legal recognition of the unborn and newly born” available in every state. Another article covers the numerous state laws governing crime, tort, health care, property, and guardianship that recognize the personhood of the unborn.

But Justice Parker points out that “in spite of voluminous state laws recognizing that the lives of unborn children are increasingly entitled to full legal protection, the isolated Roe exception stubbornly endures.”

At least two courts have ruled on the side of life in cases about statutes requiring abortion clinics to have hospital admitting privileges. But a case from the U.S. Court of Appeals for the Seventh Circuit may present the opportunity to strike at the heart of the matter and revisit the aberrational decision in Roe. If the justices on the U.S. Supreme Court take up the case on this ground, we hope they heed Justice Parker’s call for the restoration of the power of the states to protect the lives of the unborn in all areas of the law.

Atlanta’s Kelvin Cochran Settles the Score

by Alexandra McPhee

October 17, 2018

Though former Atlanta Fire Chief Kelvin Cochran lost the position he worked his whole life to achieve, a $1.2 million settlement on October 15 in his favor is closure to his multi-year saga defending his faith.

In January 2015, the decorated former chief and Obama-appointee was fired for authoring a religious book for men, which focused on biblical principles of marriage and sexuality. Mayor Kasim Reed had placed him on suspension and required sensitivity training before his ultimate termination.

The city gave several superficially objective reasons for giving this public servant the pink slip. But a later investigation concluded that there was no evidence that Cochran’s beliefs compromised his leadership. Cochran pursued litigation to defend his right to express his faith in his private capacity.

What it comes down to is that Cochran was fired for his articulation of long-held beliefs on marriage and sexuality. As one city council member tellingly said in response to the book, “when you’re a city and those thoughts, beliefs and opinions are different from the city’s, you have to check them at the door.” As it turns out, the city council member would have to check his own opinions at the door in the face of the $1.2 million city-council-approved payout issued with a vote of 11-3.

Last year, a federal district court ruled that the city “can’t force its employees to get its permission” to engage in free speech.

The court acknowledged Cochran’s reputation as “an excellent Fire Chief” and his mission to “assemble a group of firefighters . .  who represented diverse backgrounds, characteristics, and beliefs,” including at least two employees who identified as LGBT under his leadership.

Not all of Cochran’s constitutional arguments were accepted by the court. But Cochran’s large settlement is a signal that the city knows that it has the losing side of the argument.

The government is here for the people, not the other way around. No American should be punished simply for holding beliefs that are different from the government. As Cochran’s case demonstrates, making such a mistake can come at a price.

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