Category archives: Religious Liberty

Turkey Is Accused of War Crimes in Syria. Here Are Three Questions Trump Should Ask Erdogan.

by Arielle Del Turco

November 12, 2019

Turkish President Recep Tayyip Erdogan is headed to the White House to meet with President Trump on Wednesday, November 13. Members of Congress have objected to this meeting due to the ongoing Turkish incursion into Northeast Syria, which has taken a significant toll on civilians and religious minorities, including Christians. Erdogan’s arrival on Wednesday is expected to be greeted by protests. In 2017, a small group protesting Erdogan’s visit in D.C. was assaulted by members of Erdogan’s security detail who overran D.C. police. In response to this incident two years ago, Rep. Dan Crenshaw is leading a joint letter urging the State Department and D.C. police to ensure that Erdogan and his security detail “are aware of and understand that Americans enjoy First Amendment rights to assembly and speech.”

It’s a controversial decision to meet with Erdogan, yet this gives President Trump the perfect opportunity to confront the authoritarian leader and pressure him to cease his country’s ongoing abuses in Northeast Syria. There’s still time to set the agenda of the two leaders’ November 13 meeting. To that end, here are three questions President Trump should pressure Erdogan to answer.

1) How will you rein in the Syrian militias, which the Turkish military is currently using in the offensive into Northeast Syria and who have committed documented war crimes and other violations?

Turkish-backed militias are doing a lot of the dirty work in Turkey’s incursion into Northeast Syria. In the ongoing assault in Northeast Syria, Turkish-backed forces have executed Kurdish prisoners, ambushed and brutally killed a female Kurdish politician, and killed many unarmed civilians. Videos and photos have surfaced showing Turkish-backed militia members executing civilians by the roadside—and U.S. officials confirmed their authenticity.

Dave Eubank of the Free Burma Rangers is shocked by their actions. He called them “a wicked force unleashing terror. You know we’ve seen them mutilate girls, torture civilians, yell ‘Allah Akbar’ just like we saw ISIS do against us. So, I would say they’re a wicked scourge being used by Erdogan to torment the people here. And they’ve got to be stopped.”

These extremist groups are funded by and are under the command of the Turkish military. Their grotesque actions are beyond unacceptable. Turkey is a NATO ally; they shouldn’t be funding extremists to commit atrocities against civilians in a neighboring country. President Erdogan should be made to answer for the actions of these forces, and President Trump is well within his rights to demand that Erdogan rein in these militias.

2) What are you going to do to fulfill your promise to protect Christians and other religious minorities that have been harassed and victimized by Turkish-backed Syrian militias?

Christians and other religious minorities have been targeted for attack by the Turkish military and Turkish-backed forces. CBN News reported that Turkish-backed forces are marking Christian homes with the Arabic letter “N” to label them as Christian for the purpose of confiscating their belongings, much like ISIS did.

Turkish bombardments have even appeared to target Christian sites and neighborhoods, including the largest Christian neighborhood in Qamishli, setting houses on fire and killing several civilians. Some Christians in Syria fear that the Turkish incursion will ultimately lead to the extinction of Christianity from the region as the situation becomes unlivable. This is especially disturbing, given that the region Turkey is attacking is led by the Autonomous Administration of North and East Syria, where (up until a month ago) religious minorities were protected and given equal political rights—an anomaly in the Middle East.

A statement from the White House on October 9 claimed, “Turkey has committed to protecting civilians, protecting religious minorities, including Christians, and ensuring no humanitarian crisis takes place—and we will hold them to this commitment.” Turkey has clearly failed to deliver on this promise. Erdogan’s government assured the U.S. that they would protect Christians and religious minorities—President Trump can remind him of that.

3) How will you ensure further war crimes aren’t committed by the Turkish military and Turkish-backed forces?

Credible reports indicate that Turkey is guilty of war crimes committed within the last month. A statement from Amnesty International noted “damning evidence of war crimes” committed by Turkish forces in Syria. Kumi Naidoo of Amnesty International said, “Turkish military forces and their allies have displayed an utterly callous disregard for civilian lives, launching unlawful deadly attacks in residential areas that have killed and injured civilians.” Dave Eubank also attests to war crimes committed by Turkish-backed forces. “Oh yes, killing prisoners, killing civilians, chasing people out of their homes, torture. Definitely.”

Evidence also suggests Turkish-backed forces have used munitions loaded with white phosphorus—a chemical that does enormous damage and can kill. Civilians, including children, appear to have been attacked by the chemical weapon. Kurdish General Mazloum has accused Turkey of ethnic cleansing of the Kurdish people to later replace them with Arab Syrians in the region they invaded, changing the demography of the region.

Turkey needs to answer for its targeting of civilians. U.S. drone feeds appeared to show Turkish-backed Arab gunmen targeting civilians during the invasion of Northeast Syria. Rojava Information Center has reported that Turkish forces targeted civilians fleeing the invasion and bombed a hospital which had to be taken out of service due to Turkish shelling. Erdogan must be made to explain the many reports of civilian causalities, especially after he promised the U.S. that Turkey would protect civilians.

Ultimately, this meeting should not be a simple photo op that Erdogan can use to show that the United States affirms Turkish actions in Northeast Syria. Instead, this is a perfect opportunity for President Trump to press Erdogan on Turkey’s actions and hold Turkey accountable for ongoing atrocities in Syria.

What We Can Do to Support Human Rights for Chinese Citizens

by Daniel Hart

November 6, 2019

As we have recently written about and discussed on Washington Watch, the evidence is overwhelming. China is forcibly harvesting the organs of its own citizens while they are still alive. The exact number of people that have been killed is not known, but estimates are in the tens of thousands. It is estimated that the organ market that is generated by forced organ harvesting is making China $10 to 20 billion.

As our just-released Issue Analysis points out, these unspeakable crimes against humanity have mostly been perpetrated against religious minorities in China, particularly adherents to Falun Gong and ethnically Muslim Uyghurs.

While forced organ harvesting is the most barbaric form of persecution that the Chinese Communist Party (CCP) has committed against religious minorities, it is far from the only crime they are guilty of. The CCP was built on an extended reign of terror and mass murder that is unprecedented in the history of the world, so it should come as no surprise that they are using almost any means necessary to suppress dissent—especially of religious minorities who they see as a threat to their goal of total adherence from every single citizen to the atheistic communist ideology.

As we discuss in our new Issue Analysis, hundreds of thousands of Chinese citizens whose only crime is the practice of a faith have been imprisoned. An estimated 800,000 to 2 million are being forcibly detained in “re-education” camps that are nothing more than forced indoctrination and torture camps. China has brutally enforced a one-child policy (it is now a two child policy) that was carried out through forced abortions and sterilizations for decades. The list of atrocities that the CCP has committed against its own people goes on and on.

What the American People Can Do to Affect Change

Despite the obvious evils that the CCP perpetrates on its own people, hundreds of American businesses continue to do business with China. It cannot be repeated enough: China is forcibly harvesting the organs of its own people for financial profit. The proof is as plain as day. How much more evil must the CCP commit to finally awaken the conscience of American businesses?

As we argue, there is much that can be done to pressure China from a public policy standpoint, including official condemnations, financial sanctions, renegotiating trade deals, and congressional action.

But the American people can do more than that. It is time for all American companies who do business with China to demand that basic human rights be restored to Chinese citizens or they will seriously consider ending their business partnerships.

American consumers have an important role to play in this. We can all contact the companies that we buy products from and demand that these companies do all they can to pressure the Chinese government to restore human rights to its citizens. Companies listen to the concerns of their customers. The more we demand change, the more companies will realize how concerned their customers are about the issue of human rights in China and the more likely it will be that they will consider changing their business dealings with China.

We American citizens have more power than we think we have. If we demand change from American companies who do business in China and use our purchasing power as leverage, we may be able to hasten the day when the Chinese people are finally free from government oppression.

Little Sisters of the Poor Are Once Again Denied Freedom of Conscience

by Katherine Beck Johnson

October 23, 2019

The Little Sisters of the Poor were back in court yet again yesterday, this time losing at the U.S. Court of Appeals for the Ninth Circuit.

Back in 2011, the Department of Health and Human Services (HHS) issued a federal mandate as part of the Affordable Care Act (ACA). The mandate required employers to provide contraceptives, including the week-after pill, free-of-cost in their health insurance plans. HHS offered only a very narrow religious exemption. So narrow, it did not include non-profits—such as the Little Sisters of the Poor, a Catholic order of nuns who assist the impoverished who are at the end of their lives with nowhere else to go. These nuns have dedicated their lives to their faith and to serving the poor. Yet, these women were sued and told that they must violate their conscience by providing contraception through their insurance.

In May 2016, the Supreme Court unanimously overturned lower court rulings against the Little Sisters. The Court said the government should be provided an opportunity “to arrive at an approach going forward that accommodates the petitioners’ religious beliefs.” On May 4, 2017, President Trump issued an executive order that directed the secretaries of federal agencies to consider regulations that would address the conscience-based objections to the ACA’s contraceptive mandate. On November 7, 2018, the federal government complied with the Supreme Court’s ruling and the president’s executive order by issuing a new rule protecting religious liberty. This new rule provided religious ministries, entities, and persons holding sincere religious beliefs with an exemption to the contraceptive and sterilization coverage.

Soon after the rule was issued, states including Pennsylvania and California sued the federal government to ensure that the Little Sisters of the Poor would not be exempted from providing contraception. Even though these states have programs that provide contraceptives to women who want them, these states insist that non-profits, including the Little Sisters, must either be forced to violate their conscience or else cease to exist.  

In July 2019, the Third Circuit ruled against the Little Sisters of the Poor. The Third Circuit claimed that the Women’s Health Amendment to the ACA did not grant the Health Resources and Services Administration (HRSA, a component of HHS) the authority to exempt entities from providing insurance coverage for contraceptive services. On October 22, 2019, the Ninth Circuit issued a similar ruling and affirmed the preliminary injunction. The Ninth Circuit said, “the statute delegates to HRSA the discretion to determine which types of preventative care are covered, but the statute does not delegate to HRSA or any other agency the discretion to exempt who must meet the obligation.” Thus, the Ninth Circuit and the Third Circuit prevented relief for the Little Sisters of the Poor by issuing an injunction and blocking the implementation of a rule that would allow religious protections.

The Supreme Court needs to settle the debate and rule that the government cannot require people and groups to violate their conscience by providing contraceptive services. The Court should uphold the HHS rule, which protects the inherent human right of religious liberty. This liberty promotes the common good and allows society to flourish. The Little Sisters of the Poor certainly promote the common good as they assist the poorest in society. Violating their conscience ought not to be a precondition for the Little Sisters assisting those most in need.

Federal Court Ruling in Texas Is a Big Win for Religious Liberty

by Katherine Beck Johnson

October 16, 2019

An Obama-era regulation went to court recently at a U.S. federal courthouse in Texas. In Franciscan Alliance v. Azar, Judge Reed O’Connor issued an opinion striking down a Health and Human Services (HHS) mandate requiring doctors to perform gender transition procedures. Judge O’Connor held that the Rule violated the Religious Freedom Restoration Act (RFRA).

In May 2016, the federal government, through HHS, issued a mandate that would require a doctor to perform gender transition procedures on any patient, including a child. The Rule required doctors to provide these procedures even if the doctor believed it could harm the patient. In addition, the mandate required virtually all private insurance companies and many employers to cover gender reassignment therapy. If the insurance companies or employers refused, they would face severe penalties and legal action. While HHS exempted Medicare and Medicaid, they expressly prohibited religious exemptions. The Plaintiffs asked the District Court to vacate the Rule and convert its previously entered preliminary injunction to a permanent injunction.

Judge O’Connor held that the Rule violates RFRA. The Rule substantially burdened Plaintiffs’ sincere religious beliefs without a compelling interest. In addition, the Rule expressly prohibits religious exemptions.

The Plaintiffs’ refusal to perform, refer for, or cover transitions or abortions is a sincere religious exercise. In order to follow this sincere religious belief, the mandate requires extensive expenses. The Rule places significant pressure to perform and cover transition and abortion procedures, it forces Plaintiffs to provide the federal government an extremely persuasive justification for their refusal to perform or cover such procedures, and it requires them to remove the categorical exclusion of transitions and abortions. Judge O’Connor found that the Rule makes the practice of religion more expensive in the business context.  

Judge O’Connor ruled that the Defendants did not provide a compelling interest that would justify the burden on religious exercise. Those advocating in favor of the mandate argued that a compelling interest was specified in the preamble to the Rule, which states, “the government has a compelling interest in ensuring that individuals have nondiscriminatory access to health care and health coverage.” Judge O’Connor found that although that could arguably satisfy a categorical application of strict scrutiny, it cannot satisfy RFRA’s “more focused” inquiry. He said that even if those in favor of the mandate had provided a compelling interest, they failed to prove the Rule employs the least restrictive means.

The Rule was vacated (as opposed to a less severe permanent injunction) because it was found to be arbitrary and capricious. The Rule was found to be “contrary to law” under the APA due to its conflict with Title IX, its incorporated statute.

Judge O’Connor’s ruling is a huge win for religious liberty. HHS under President Trump is also working to take strides that further protect religious liberty. In May 2019, HHS proposed bringing its regulations into compliance with those decisions and ensuring that the government did not interfere and require a person to go against their convictions to provide gender transition procedures. The win in Texas coupled with the new rules from HHS provide optimism for the future of religious liberty.

Introducing Lecture Me! - A New Podcast from FRC

by Family Research Council

October 15, 2019

We all need to be lectured sometimes.

Family Research Council’s new weekly-ish podcast Lecture Me! features selected talks by top thinkers from the archives of the FRC Speaker Series. Our podcast podium takes on tough issues like religious liberty, abortion, euthanasia, marriage, family, sexuality, public policy, and the culture—all from a biblical worldview.

Listen with us to the lecture, then stick around afterward as we help you digest the content with a discussion featuring FRC’s policy and government affairs experts.

The first three episodes are now available. They include:

  • Nancy Pearcey: Love Thy Body

FRC’s Director of Christian Ethics and Biblical Worldview David Closson joins Lecture Me! to discuss Author Nancy Pearcey’s lecture about her book Love Thy Body, in which she fearlessly and compassionately makes the case that secularism denigrates the body and destroys the basis for human rights, and sets forth a holistic and humane alternative that embraces the dignity of the human body.

  • Military Mental Health Crisis

Currently, an average of 21 military veterans are taking their lives each day. FRC’s Deputy Director of State and Local Affairs Matt Carpenter joins the podcast to discuss Richard Glickstein’s lecture as he shares the compelling evidence that proves faith-based solutions reduce suicides, speed the recovery of PTSD, and build resiliency.

  • Repairers of the Breach

How can the conservative movement help restore America’s inner cities? FRC’s Coalitions Senior Research Fellow Chris Gacek joins the podcast to discuss Robert L. Woodson, Sr.’s lecture on how the conservative movement must identify, recognize, and support agents of individual and community uplift and provide the resources, expertise, and funding that can strengthen and expand their transformative work.

Lecture Me! is available at most places you listen to podcasts, including Apple Podcasts, Google Podcasts, Stitcher, and Castbox.

Death Comes to Northeast Syria: The Human Cost of Trump’s Withdrawal of Forces

by Travis Weber , Arielle Del Turco

October 9, 2019

Smoke is billowing from a small town in northeast Syria hit by Turkish airstrikes today, and hundreds of civilians are fleeing, unsure of where they’re headed.

The worst fears of those living under the Autonomous Administration of North and East Syria are becoming a reality after President Trump made the decision on Sunday to remove U.S. troops from the area. This decision followed a phone call with Turkish President Erdogan and paved the way for an unfolding Turkish military operation into Northeast Syria, which is controlled by the Kurds, who have been faithful U.S. allies.

Why is FRC, focused on our mission to advance faith, family, and freedom, weighing in on this situation far from home?

Because at risk is not just the massacre of our Kurdish allies, the potential resurgence of ISIS, the reputation of the United States, and another major conflict in the Middle East. Also at risk is the destruction of the one place in the Middle East (outside of Israel) where Christians, Muslims, and Yazidis live in peace and religious freedom thrives. Under the Syrian Democratic Forces (SDF) and the Autonomous Administration of North and East Syria, religious minorities in Northeast Syria found protection and equal political rights—an anomaly in the Middle East.

Out of the midst of the Syrian civil war, hope sprang in the form of a federal government system that represents and protects segments of society which are often neglected and abused in the Middle East, including women and the Christian minority.

In addition to other religious minorities, Syriac Christians have found safety under the Kurdish-led administration. This is one of the oldest Christian communities in the world, and they are trying to maintain a presence in the Middle East, the birthplace of the Christian faith. Syriac Christians still speak a dialect of Aramaic today, and Syriac Christian culture is experiencing a renaissance. As Turkish forces move into Northeast Syria, we shouldn’t expect that they will take care of this community. Even in the past few years, Turkey has allied itself with jihadist groups responsible for killing Christians elsewhere in Syria. With the present Turkish incursion, Christians in Northeast Syria face the potential of attack or displacement. It would be tragic to these Christians subjected to abuse or death as a result of Turkish actions, and it would also be tragic to see the loss of a historic Christian presence in this region.

The Kurdish forces that Turkey is attacking have been reliable allies to the Untied States. When the U.S. couldn’t find anyone else willing to fight ISIS, the SDF rose to the occasion, and lost approximately 11,000 fighters in the process. The Kurds feel betrayed by the U.S., and that feeling is understandable. They have been consistent allies, and we abandoned them overnight without warning. This won’t bode well for the next time the U.S. tries to recruit allies in the Middle East.

The successful religious freedom and pluralism found in Northeast Syria is something that we hope to see more of across the Middle East. To watch that newly-flourishing area ransacked by a Turkish authoritarian leader is disheartening. If the United States wants to see the prime example of religious freedom in the Middle East continue, it should continue to support our Kurdish allies.

It is difficult to watch these events unfold today. There have already been reports of civilian casualties, including Christians who were killed by the Turkish strikes.

As this situation develops, we need to be praying for the protection of the people of Northeast Syria, and that any attempted oppression or slaughter would be thwarted. We must also pray that God would give President Trump the wisdom to make the right decisions, and that he would ensure security for Syria’s Northeast.

BREAKING NEWS: Vice President Pence Revealed to Be Conservative!

by Peter Sprigg

September 13, 2019

News broke today that in 1993, Vice President Mike Pence—then with the Indiana Policy Review Foundation, a conservative think tank—opposed an effort to add “sexual orientation” as a protected category in a Lafayette, Indiana human relations ordinance.

The biggest surprise here may be that anyone found this discovery—in an old issue of the Lafayette Journal and Courier—to be the least bit newsworthy.

After all, even in 2019, after decades of LGBT (lesbian, gay, bisexual, transgender) activism, most of the country—28 of the 50 states, plus the U.S. Congress—has rejected the idea that “sexual orientation” should be treated as the equivalent of race under non-discrimination laws involving employment and public accommodations.

Pence said in 1993, “It represents a very bad move in public policy”—and 26 years later, most of the country agrees.

Pence added, “It opens up from a legal standpoint … a Pandora’s Box of legal rights and legal difficulties once you identify homosexuals as a discrete and insular minority.” The use of the phrase “discrete and insular minority”—drawn from a 1938 Supreme Court decision—showed a sophisticated understanding of civil rights law on the part of Pence, who is himself a lawyer.

Can anyone really deny that the LGBT rights movement has led to “legal rights” (such as same-sex civil “marriage”) and “legal difficulties” (such as lawsuits against wedding vendors to compel speech the vendors disagree with) that might not have been obvious in 1993? This was a prescient, and entirely accurate, forecast.

Pence noted—again, correctly—a key factor historically in whether certain minority groups have been protected by “strict scrutiny” from the courts or by legislation. “Up to this point,” Pence told the paper, “our legal tradition has drawn a line over those things. I do not choose whether I am a black American . . .”

In other words, the characteristics which have merited the special protection of non-discrimination laws have usually been those which are inborn, involuntary, immutable, or innocuous. Those criteria apply to race and sex in a way they do not to “sexual orientation.” In the article, a Purdue political science professor made the same point—“that equating the path of sexual orientation ordinances with the civil rights movement, or to a lesser extent women’s rights, is misleading.”

A few of the quotes attributed to Pence could have used greater elaboration. For example, he is quoted as saying that “homosexuality at a very minimum is a choice by the individual.” LGBT activists insist, with reason, that most people do not choose to experience same-sex attractions. (This does not mean, however, that such attractions are innate. A recent study of the connections between genetics and homosexual conduct has disproved the claim, in an article to which CNN linked, that “homosexuality is largely determined by heredity.”)

Pence’s remarks seem to reflect what I have elsewhere referred to as the “homosexual conduct paradigm,” within which the word “homosexuality” is primarily a reference to homosexual conduct. Such conduct, along with self-identifying as gay or lesbian, clearly is a choice.

Pence is also quoted as saying, “Once you identify homosexuals as a … minority, then by definition they would need to be afforded constitutional protection.” Of course, homosexuals have, and have always had, the same rights under the U.S. Constitution that every other American has—rights such as freedom of speech, freedom of the press, and freedom of religion. I’m sure that Vice President Pence would agree.

The constitutional question, however, is whether laws perceived as having some impact based on “sexual orientation” must be subjected to “heightened scrutiny”—rather than just a “rational basis” test—when analyzed under the equal protection clause of the 14th Amendment. Pence was right in forecasting that enshrining sexual orientation as a protected category in statutory law would have an impact on how courts would view it from a constitutional perspective—and might distort that view in cases like the one ordering a redefinition of marriage.

Pence also told the paper that the effort in Lafayette was part of “a grassroots-generated movement for recognition of homosexual rights …” This is no conspiracy theory—it was a simple and accurate statement that the push for such legislation was part of a movement active at both the national and local levels. Pence said, “I suspect [homosexual rights] will be one of the biggest issues of the ‘90’s”—which was true, and has continued to be true in the decades since.

Most of the arguments Pence offered in 1993 are the same arguments that we at Family Research Council and other social conservatives make today in opposing radical LGBT rights legislation like the proposed federal Equality Act.

What would be news is if Mike Pence had ever taken any other position.

Senate Condemns China’s Abuses Against Religious Minorities

by Arielle Del Turco

September 13, 2019

The Chinese regime’s gross human rights violations against Uyghurs were recognized by the U.S. Senate late Wednesday night with the passage of the Uyghur Human Rights Policy Act. The measure couldn’t come at a more critical time as the Uyghur crisis continues to deteriorate. In what one U.S. official has called China’s “war on faith,” the Chinese government is responsible for a brutal crackdown on Uyghurs, a Turkic, mostly Muslim ethnic group.

China has used a variety of measures to suppress the Uyghur community. The government monitors social media, and arrests Uyghurs for information found on their phones, including simply having religious content on them. It is estimated that China has forcibly detained at least 880,000 and possibly more than 2 million Uyghurs who are detained in what China calls “re-education” camps. Uyghurs at these camps are indoctrinated with Chinese Communist Party propaganda designed to pressure them to abandon their Muslim faith and their unique culture. Some detainees who have been released describe their experience being tortured in the camps.

This bill is the first piece of legislation from any nation that specifically responds to the Uyghur crisis. The provisions of this act will require U.S. federal agencies and foreign policy institutions to report on the Uyghur crisis, and how it impacts U.S. citizens and national security. Formal and routine U.S. recognition of the horrors of China’s treatment of Uyghurs will send a powerful message to Beijing—that the U.S. will not ignore the atrocities taking place in the Uyghur region, and that we will continue to highlight Chinese human rights violations on the world stage.

The Chinese government is already getting the message. The Chinese foreign ministry spokesperson responded yesterday to this bill passing in the Senate. Spokesperson Hua Chunying expressed China’s opposition to the passage of this bill and to U.S. criticisms of China’s Xinjiang policies. Though she accused the U.S. of misrepresenting the human rights situation in China, we know that Chinese leaders have a long track record of lying about their actions in the Uyghur region. Regardless of the spin from Chinese officials, their hostile response indicates that they have already felt pressure from this bill, which means it has done exactly what it was meant to do.

While the Uyghur Human Rights Policy Act has passed the Senate, its companion bill in the House of Representatives is still in committee. Senator Marco Rubio (R-Fla.) demonstrated great leadership in getting this bill passed in the Senate. In the House, Rep. Chris Smith (R-N.J.) is leading the charge on this bill. As we commend the Senate’s action on this issue, the House should take note and work to swiftly pass the House version of this bill. It is vital that Congress take this step to hold China accountable for their egregious human rights abuses.

The Real “Fairness for All” is Freedom from Government Coercion

by Peter Sprigg

September 12, 2019

Concerns about religious liberty are one of the chief obstacles to passage of “non-discrimination” laws that would make “sexual orientation” and “gender identity” (“SOGI”) into protected categories at the local, state, and federal level. Only 20 of the 50 states have enacted SOGI protections for both employment and public accommodations, and a comprehensive (and radical) federal bill, the Equality Act (H.R. 5), has stalled in the Senate since its passage in May by the Democrat-controlled House of Representatives.

Utah Rep. Ben McAdams, a Democrat who voted for the Equality Act, recently told that state’s Deseret News that he thinks the bill “still needs work”—and he supports a so-called “compromise” called “Fairness for All.” The theory is that both “LGBT (lesbian, gay, bisexual, transgender) rights” and “religious liberty” could be protected by enacting a single bill that includes both SOGI protections and religious exemptions.

The model for “Fairness for All” proposals at the federal level is the “Utah compromise” that was adopted by that state’s legislature in 2015. It added SOGI protections to the state’s nondiscrimination laws regarding employment and housing (public accommodations were omitted), while creating exemptions for religious non-profit organizations and protections for some employee speech.

Unique factors in Utah—notably, the power and influence of the Church of Jesus Christ of Latter-Day Saints, which endorsed the “compromise”—make it doubtful whether this approach could be replicated elsewhere. LGBT groups at the national level seem determined to press forward the existing Equality Act, which contains no religious liberty protections and explicitly strips away those that might be asserted under the Religious Freedom Restoration Act (RFRA).

Nevertheless, because some may be tempted to believe that such a “compromise” provides a “win-win” solution in the clash between LGBT rights and religious liberty, it is important to reiterate why we believe this would be a serious mistake.

First, the fundamental presumption behind “Fairness for All” is that there is a balance or symmetry between “rights” or “protections” for people who identify as LGBT and “rights” or “protections” for people of faith. This is a fallacy. The “free exercise” of religion is guaranteed by the First Amendment, but there is no provision of the Constitution that references sexual orientation or gender identity.

The fundamental rights found in the U.S. Constitution—such as freedom of speech and the press and the free exercise of religion—do not place any limits on the actions of private individuals and organizations; on the contrary, they protect such actions against interference by the government. “Civil rights” laws that bar discrimination in employment and public accommodations, however, do not merely limit the government; they place a restriction upon the action of private entities (such as small businesses) in carrying out their private activity.

There is a place for non-discrimination laws (especially regarding characteristics that are clearly inborn, involuntary, and immutable, such as race). However, the burden of proof in every case must rest on those who seek to increase the number of categories or characteristics protected under such laws. That’s because the extension of laws against private discrimination is less a “win-win situation” than a “zero-sum” game. When one (such as an employment applicant) wins more protection, another (the employer) actually loses a corresponding measure of freedom.

The most publicized cases highlighting the clash between LGBT non-discrimination laws and religious liberty in recent years have involved businesses in the wedding industry that are owned and operated by Christians who prefer not to participate in the celebration of same-sex weddings. (Although one such business, Colorado’s Masterpiece Cakeshop, won an important decision at the U.S. Supreme Court in 2018, the decision was on narrow grounds and did not settle this area of the law.) It is not clear that religious liberty protections in any proposed compromise legislation would protect these businesses.

The wedding industry cases are by no means the only context in which this conflict arises, however. There have been cases challenging the right of Christian adoption agencies to decline to place children with same-sex couples; cases where Christian counseling students were punished for declining to affirm and support homosexual relationships; and cases in which Christian employees of government agencies were fired for privately expressing disapproval of  homosexual conduct. It is not clear that any of them would be protected by such “Fairness for All” proposals.

Further, “gender identity” protections would undermine the rights of organizations and businesses to set dress and grooming standards or have separate private spaces (e.g., in bathrooms, locker rooms, showers, dormitories, etc.) for biological men and women. These rights stand ready to be compromised by “Fairness for All” proposals.

Family Research Council believes that combining religious liberty and special privileges for sexual orientation and/or gender identity (SOGI) is unsustainable, for three primary reasons.

1)      It is wrong, in principle, to include sexual orientation and gender identity as protected categories, because they are unlike historically protected categories such as race. Historically, protections were reserved for characteristics that are inborn, involuntary, immutable, and innocuous, such as race, and/or in the U.S. Constitution (such as religion). None of these criteria apply to the choice to engage in homosexual conduct or the choice to present one’s self as the opposite of one’s biological sex.

2)      There is no religious exemption that would be acceptable to LGBT activists and would also be adequate to fully protect against all the likely threats to religious freedom.

3)      Non-discrimination laws always implicate moral beliefs. They send the message that it is morally wrong to disapprove of homosexual or transgender conduct. For such laws to be endorsed by citizens who believe that it is morally wrong to engage in homosexual or transgender conduct is a logical contradiction.

What would truly reflect “Fairness for All” would be to reject SOGI laws containing special privileges, and allow real religious liberty—the freedom to hold to one’s personal beliefs and to act on them without government interference or coercion.

Eighth Circuit: Minnesota Can’t Force Small Business to Make Same-Sex Wedding Videos

by Peter Sprigg

September 5, 2019

National media gave scant attention to an important court decision on August 23. The ruling in Telescope Media Group v. Lucero, by a three-judge panel of the U.S. Court of Appeals for the 8th Circuit, was another landmark in the ongoing debate about whether governments can force small businesses in the wedding industry to participate in same-sex weddings, over the conscientious objection of their owners.

Last year, the U.S. Supreme Court ruled in favor of Jack Phillips of Masterpiece Cakeshop, a baker who had declined to create a custom wedding cake for a same-sex couple. However, the court ruled that Phillips had been a victim of specific anti-religious discrimination by the Colorado tribunal that sought to punish him, so they did not definitively address the fundamental free speech concerns that his attorneys had raised.

Telescope Media Group (TMG) is a business founded by Carl and Angel Larsen, videographers who wished to create a business that would make wedding videos, and in the process promote natural marriages between one man and one woman. They sued Minnesota public officials to prevent them from using the Minnesota Human Rights Act to force the couple to make videos of same-sex weddings as well.

In a 2-1 decision, the 8th Circuit panel ruled in the Larsens’ favor, saying that “the First Amendment allows the Larsens to choose when to speak and what to say.” Perhaps that’s why it was largely ignored by the national media.

The breakdown of the vote also shows how important judicial appointments are. The opinion was written by David Stras, a 45-year-old Trump appointee, on the bench since January 2018. He was formerly on the Minnesota Supreme Court (having been appointed by former Republican Governor Tim Pawlenty). The other judge in the majority was 67-year-old Bobby Shepherd, appointed by George W. Bush and on the bench since 2006. Meanwhile, there was a dissent by Judge Jane L. Kelly, a 54-year-old Obama appointee who has been on the bench since 2013.

This was on appeal of the District Court’s decision to deny a preliminary injunction, so it is not a final decision on the merits. However, it is an encouraging decision in that it is based squarely on the free speech claims (or in this case, the right to be free from government-compelled speech) made by the plaintiffs. The court also accepted a “hybrid rights” claim incorporating the free exercise of religion.

Since precedent has established that videos represent a form of speech, whether the principles articulated would apply with equal force to bakers or florists may still have to be argued in other cases. However, the fact that this case was decided (at least for now) on free speech grounds, rather than the anti-religious discrimination grounds used in Masterpiece, makes it a stronger precedent for those concerned about protecting free speech and religious liberty.

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