Category archives: Religious Liberty

The Peace Cross, the Establishment Clause, and Why the Separation of Church and State Fails to Adequately Protect Minority Religions (Part 1 of 5)

by Family Research Council

March 21, 2019

In 1925, a committee including Gold Star mothers and local veterans dedicated a memorial in Bladensburg, Maryland in honor of 49 servicemembers from Prince George’s County who gave their lives in service to World War I. They chose a Latin Cross to be the symbol of their loved ones’ sacrifice, and today, residents call it the Peace Cross.

Almost to the very day of the centennial of the first World War, the U.S. Supreme Court agreed to review whether the Peace Cross is a violation of the First Amendment’s Establishment Clause—more popularly though less accurately referred to as the separation of church and state—because it is in the shape of a cross and maintained on public property. The case of American Legion v. American Humanist Association is an important one. First Liberty Institute is involved in defending the memorial in court, and FRC filed an amicus brief in the case. Oral argument was held just about one month ago, on February 27, 2019. The case is currently under consideration, and the Supreme Court will issue its decision on or before June 2019.

As part of this case, several groups representing religious minorities argue that the current court precedents on this issue—which have put the Peace Cross in jeopardy—should stay in place, even if that means that the Peace Cross or memorials like it have to go. They say that this state of the law shields minority religions like theirs from political and cultural forces that may use their power to push minority religions out of the public square.

Family Research Council argues that this is not the case. First, the vague, subjective approach of current Establishment Clause precedents actually harms minority religions. Applying an original meaning of the Constitution instead would provide clarity for all—including religious minorities. Second, avenues outside of the courts, like the executive and the legislature at the federal, state, and local level, are better equipped to respond to the needs of minority religions.

In the coming days, we will be rolling out a special blog series highlighting these key points from the article and discussing how they help us understand true religious liberty in this age of deep confusion on the issue. Stay tuned!

This blog series is based on an article in Federalist Society Review by Alexandra M. McPhee, “Can a New Establishment Clause Jurisprudence Succeed in Protecting Religious Minorities Where Lemon Has Failed?”

Religious Displays Should Be On–Not Off–the Table

by Alexandra McPhee

March 19, 2019

In New Hampshire, an activist group has demanded the removal of a POW/MIA Remembrance Table located in the public space of a VA hospital because the table contains a Bible. The hospital, however, is perfectly within its rights to maintain the display. First Liberty, a religious liberty law firm representing the nonprofit that arranged the remembrance table, wrote a letter urging the facility to continue to honor the memory of those soldiers who never returned home.

The public display of items or symbols of religious significance is well within the ambit of constitutional government action. The problem is that the military, like any industry in the public sphere, is vulnerable to privatization. Privatization is the phenomenon that religion is expected to remain exclusively in the home or house of worship and to not affect how one carries oneself in public life, including one’s profession.

It is commonly argued that religious symbols should be removed from public property to accommodate all religions and remain “neutral.” While we should be respectful and accommodating of all faiths, the removal of religion symbols from the public square—which enables privatization—is not the answer.

In Fort Wayne, Indiana, actions by the local VA hospital hit a nerve with at least one veteran. FRC spoke with a concerned vet who expressed dismay at a recent decision by the hospital to remove the Christian iconography that previously adorned its in-house chapel. This same hospital, for one day last year, lowered the branch flags outside its building and raised an LGBT flag, apparently without the consultation of the vets staying at the facility.

Symbols like crosses are not alien to military chapels, though the VA does give individual facilities discretion in how to operate themselves in this area. The response to an increasingly pluralistic society, however, should rarely be the removal of all religious symbols from a common area. This fosters privatization. Instead, we should respond with openness to the representation of other faiths—not the extraction of faith—from the public square.

Washington State Shuns Houses of Worship

by Alexandra McPhee

March 11, 2019

There is a new reality for churches and religious organizations in Washington state. Thanks to a law passed with the help of Planned Parenthood and NARAL Pro-Choice Washington, any employer that wants to provide group health insurance for its employees must provide a plan that covers abortions and abortifacients.

Think there is an exemption for churches or other religious organizations with religious objections to such coverage? Think again. While there are numerous exemptions, religious exemptions are not available for such employers.

So, when Cedar Park Assembly of God decided that it wanted to provide high quality group health insurance for its employees, it learned that it really only had three options:

  1. Violate its religious beliefs
  2. Violate the law
  3. Drop this crazy idea of providing health insurance for its employees like a hot potato

Fortunately, First Amendment law firm Alliance Defending Freedom has filed a lawsuit on behalf of Cedar Park Assembly of God for this violation of religious conscience rights. ADF Legal Counsel Elissa Graves stated:

No church should be coerced to pay for abortions, least of all a church that dedicates its ministry to protecting and celebrating life. Cedar Park believes and teaches that every human life begins at conception and is worthy of protection at every point until natural death. Further still, Cedar Park demonstrates its pro-life ethic in tangible ways: partnership with a local pregnancy care center, hosting an annual camp for children in foster care, operating a school that serves over 1,000 students, and ministering to hundreds of couples struggling with infertility. The state of Washington has no business strong-arming this church, or any other, into contradicting the deeply held beliefs that motivate its ministry.

The law was passed under the notion that so-called “restrictions” on abortion coverage (which, in this case, means absence of compelled coverage) interfere with the “constitutionally protected right to safe and legal medical abortion care.” What about the principles of religious freedom?

When the state of Washington enacted this bill without any religious conscience protections for houses of worship like Cedar Park, it created a moral standard that said that a faith-based pro-life ethic is not worth protecting. It said that only the government’s morals—not morals derived from a source higher than government—should prevail. This bill is a clear violation of the principles of the First Amendment and is being rightfully challenged.

A Tale of Two Lawsuits

by Alexandra McPhee

March 7, 2019

The attack on Jack Phillips has finally come to an end—hopefully it stays that way. Last year, Phillips obtained victory at the Supreme Court in a case about his decision to decline to create a cake for a same-sex wedding. Afterwards, the losing party, the Colorado Civil Rights Commission, pursued yet another complaint against Phillips for declining to make a cake celebrating a sex transition. The Commission agreed to dismiss its complaint once more evidence of its hostility emerged.

Alliance Defending Freedom, a religious liberty law firm, had helped Phillips fight back against the second complaint. They filed a lawsuit on his behalf against the Commission for demonstrating overt hostility towards his beliefs, though he agreed to drop his suit once the Commission dismissed its complaint.

This saga has no doubt involved a lot of suffering for Phillips, his family, and his business and employees. As Phillips stated,

When I set out to build my dream of opening my own cake shop, combining my love for art and baking in a family business, I never imagined this chapter would be part of the Masterpiece Cakeshop story … I have and will always serve everyone who comes into my shop; I simply can’t celebrate events or express messages that conflict with my religious beliefs. The Supreme Court affirmed that government hostility against people of faith is unconstitutional, and that Colorado was hostile to my faith. That hostility cost me 40 percent of my business and the wedding work that I love to do.

The story is certainly one of resilience in the face of suffering. But it also shows us how enduring pain in a Christ-like manner can influence others’ lives. Phillips’ nephew, Sean, “didn’t have a personal relationship with Jesus,” so “he didn’t fully grasp why Jack was willing to take such a stand.” What he did know, however, was that Phillips was “one of the most genuine, kind, and generous people” he knew.

Sean was also shocked at the hateful treatment Jack endured. In fact, it made him angry.

But in observing and talking with Jack, he saw a quiet example of what it looks like to live a life in obedience to Christ.

Over time, Sean let go of his anger. He dug into the Bible to understand the comfort that Jack had in Christ and how he could withstand such hardship with grace and peace. And eventually, God drew Sean to Himself.

Because of how Phillips reacted in the face of suffering, God was able to draw someone closer to Christ. So, even though it is good that these cases have a positive outcome, “Jack counts the eternal implications of his case as even greater and more precious.” Truly, it is a remarkable story of how God utilizes all things for the good of those who trust in Him. With so many people across America watching this case, we look forward to how God will use Jack Phillips’ story to draw more people even closer to Him.

Historic Churches Cut Off from State Funds

by Alexandra McPhee

March 6, 2019

In a series of two cases, the New Jersey state supreme court decided that the state constitution requires the exclusion of churches from state historic preservation grants. The state’s high court reached that conclusion even in light of the Supreme Court case from 2017, Trinity Lutheran Church of Columbia, Inc. v. Comer. The Court had held that it was a violation of the First Amendment’s Free Exercise Clause to exclude a church from a state playground resurfacing program just because the playground was run by a church.

The New Jersey grantmaking authorities that were sued for distributing grants to churches appealed the decision to the Supreme Court, but the Court denied review. While it is discouraging that a church can be cut off from public aid just because it is a church, a statement from Justice Kavanaugh and joined by Justices Alito and Gorsuch holds promise for the future: “Barring religious organizations because they are religious from a general historic preservation grants program is pure discrimination against religion.”

So why did the entire Court agree to deny review? As one outlet explains, although “Kavanaugh agreed with the court’s decision to decline to hear the case,” he noted “that factual uncertainty and the recency of his colleagues’ decision in Trinity Lutheran meant that neither the time nor the case was right for consideration.”

In other words, Justices Kavanaugh, Alito, and Gorsuch said it was the time to wait rather than act. In the meantime, it is important to emphasize why this is an important legal issue. In Trinity Lutheran, Chief Justice Roberts wrote that the consequence of the church’s exclusion from the playground resurfacing program was, “in all likelihood,” merely “a few extra scraped knees.” Similarly, the denial of historic preservation grants means that some churches will just have to ask private donors to take care of the termites, the rust, or the floorboards. However, as the Chief Justice reminded us, discrimination against religion in the public square would not be tolerated and is unconstitutional: the church’s exclusion “from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”

Why Communities, Not Courts, Should Resolve Longstanding Debates

by Alexandra McPhee

March 5, 2019

The Peace Cross is a veterans memorial in Bladensburg, Md. dedicated to 49 servicemembers who sacrificed themselves in service to WWI. When a committee including Gold Star mothers and veterans of the American Legion got together to create a homage to that loss, they chose the shape of a cross. That was almost one hundred years ago, and now that memorial is the subject of a Supreme Court case in which the Court is being asked to decide whether the memorial can constitutionally appear on public property.

Justice Brett Kavanaugh asked of the secularist legal group that started the case, “What is the role of this Court in a case like this?”

It is a discerning question that gets to the heart of at least one issue—how to deal with a feathertrigger culture that is ready to file a lawsuit and use a court order at a moment’s notice to encamp judicial precedent around its preferred social issue, isolating it from the normal push and pull of the political process.

Across the country, crosses and other religious symbols or displays are threatened with or subject to lawsuits because the current state of constitutional law permits a heckler’s veto over the presence of religious imagery on public property. Not only does current law allow almost anyone offended by a religious display to sue, it allows courts to inject themselves into a discussion about whether a monument is too religious to stay on public property with very little guiding principles.

As a result, longstanding debates about how a community should represent itself—by its veterans, by the holidays commonly celebrated, or by its history—are essentially taken out of the hands of the local government and put into the hands of the courts. Instead of a townhall with numerous residents advocating for multiple sides to an issue, it is a courtroom where all but the attorneys and the judge are forced to watch in silence as only the interests of the parties—and not the general community—are decided upon by a court.

This is not the democratic process that the Founders envisioned. The judiciary was supposed to be “the weakest of the three departments of power.” But current law leaves plenty of room for a court to make the call, enabling it to be used to replace the state legislature or city council. Important questions for local communities about displays in Bladensburg, Md., Pensacola, Fla., and other towns are consequently funneled to Washington, D.C.

We hope that this case will be an opportunity for the Court to finally decide its role in a case like this, and perhaps it will restore democracy to at least one social question.

Religious Freedom: Enshrined in the Hearts of the American People

by Alexandra McPhee

March 4, 2019

This past Friday, Vice President Mike Pence spoke before an audience at the annual CPAC Convention. He said:

You know, the freedom of religion is not just enshrined in our Constitution; it’s enshrined in the hearts of the American people.  But make no mistake about it: Freedom of religion is under attack in our country.  Lately, it’s actually become fashionable for media elites and Hollywood liberals to mock religious belief.

My own family recently came under attack just because my wife Karen went back to teach art to children at a Christian school….

But let me be clear on this point: This is not about us.  It’s about all of you.  It’s about the sincerely held belief of millions of Americans who cherish their Christian faith and Christian education.  And so I’ll make you a promise: Under this President and this administration, we will always stand with people of faith.  We will always defend the freedom of religion of every American of every faith, so help us God.

This administration has indeed taken the lead in religious liberty, an important step in a culture where it acceptable to mock and scorn religious beliefs. It’s not just media elites or Hollywood, either. Modern culture, CPAC panelist Matthew Spalding observed, “has tried to push religion into a smaller and smaller and smaller box. ‘You got to keep it at home or you got to keep it in the confessional.’”

Washington has jumped on the bandwagon, too, as FRC reports—senators have doggedly questioned nominees for public office about their religious beliefs in order to “unmask particular tenets of potential (nominees’) religious faith that the interrogators fear run counter to their own political stances on issues such as abortion and gay rights,” as a Washington Post opinion piece points out.

The same could be said of the vilification of Second Lady Karen Pence and many of the latest attacks against people of faith. As our VP of Policy Travis Weber wrote, this should be a wake-up call to all Christians.

But Pence is also right about another thing—freedom of conscience and the ability to live out one’s faith is enshrined in the hearts of the American people, put in place by God himself. That is why in 1786 Thomas Jefferson and the Virginia General Assembly said in the timeless Act for Religious Freedom, “we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind.” Any political or cultural effort to renege on those values “will be an infringement of natural right.”

We are eager to stand with the administration to keep fighting for the right to exercise our faith. Click here for the full text of Pence’s remarks.

Of Crosses and Totem Poles

by Alexandra McPhee

February 28, 2019

Yesterday, the Supreme Court heard oral argument in the closely-watched case out of Bladensburg, Maryland about the Bladensburg WWI Veterans Memorial known as the Peace Cross. A secularist legal group challenged the memorial because it is in the shape of a cross, which the group argues is unconstitutional in light of the fact that it is owned by a local government and maintained on public property and despite coming into creation under private ownership and funding.

Though the case involves a religious symbol significant to Christians, the decision—and the reasoning the Court uses to reach it—could have implications for the place of symbols and practices of all religions in the public square. During oral argument, Chief Justice Roberts noted that for Native Americans, “totems have spiritual and religious significance.” His question signaled that a decision on the Peace Cross would affect such minority religious groups.

It is a relevant question, as suits are consistently brought against religious minorities’ symbolic displays. During the holiday season, menorahs symbolizing the Jewish holiday of Chanukah are almost as controversial as nativities. (Judges even have a hard time deciding whether menorahs are too religious for public display.) The crescent moon and star, used by some to acknowledge the Islamic practice of Ramadan, have been involved in legal challenges. A public statue of Quetzalcoatl, which has religious significance to some Mayan revolutionaries in southern Mexico, also faced a lawsuit under the Establishment Clause.

Government action related to Jewish traditions like eruvs, consumer fraud protections for the sale of kosher goods, and ritual slaughter have faced legal challenges under the Establishment Clause, too.

While courts have allowed some of these minority religious displays to stand, the analyses have been all over the place. Lower courts are forced to render decisions under very subjective standards, only further proving the need for a clear, bright-line rule that will protect all religious expression in the public square.

Though some may like to say otherwise, it’s not just pushy Christians who will suffer bruised egos if the Peace Cross is removed. In this case, what’s good for the goose is good for the gander, and everyone benefits from a public square left free to recognize the religious expression of its citizens. We’re hoping the Supreme Court will take this case as an opportunity to not only keep the Peace Cross at its current location, but to protect the role of religion—all religions—in the public square.

Fighting Religious Persecution with Mustard Seeds

by Caleb Seals

February 18, 2019

Due to security concerns, the location of this country cannot be disclosed.

For someone who has never been outside of America, I was pumped up about going on my first mission trip overseas. Before the journey, our group went through an intensive preparation course. This course required us to grow in our faith, prepare our armor, and know the laws of the land we were traveling to. We had to practice praying with our eyes open, talk in coded language, and have the ability to detect undercover law enforcement.

The country that we were going to was not Christian-friendly, to put it mildly. We were officially traveling as tourists in a hiking club. We would need to constantly be alert for authorities that could be following us. Per the country’s laws, we were banned from teaching the Bible or sharing the gospel. Of course, that wasn’t going to stop us.

After over 20 hours of flying, we finally arrived at our destination. The very next day, we left the city and went into the outer countryside to start our mission. For the first few days, we stayed in host homes that were a part of small villages on the mountainside. We used translators to speak and encourage believers in their walk with Jesus.

After news of our arrival spread, we were constantly stopped and asked to come in to people’s homes so that they could question us about our activities and take a group picture with their phones. It is also important to note that most of these people had other gods in their life. In almost every hut we went into, there were false idols that they would worship. Many people in these communities seemed to mostly put their hope in the local fortune teller.

After visiting multiple villages, we then set out to a region that no other group had gone to before us. This area had never even heard the name of Jesus, let alone knew what a Bible was. Due to the threat of being compromised, we simply spoke to the people in this area and did prayer walks. During our prayer walks, we would drop mustard seeds, hoping that the Holy Spirit would fill that area (Matthew 17:20).

At the camp, there were undercover officers who posed as fishermen that were sent there by the government to observe our activities and document who we were in contact with. Most of our friends in the country that traveled with us had left so that they would not be endangered.

One night, after an interesting encounter with a fortune teller, we arrived back to our camp. Our host, along with the law enforcement officers, told us that our time staying there was over. I had no idea what to expect. I had heard of several stories in the news about Christians being persecuted and had no idea what would happen to us. We immediately thought of the worst possible outcomes. Are they going to arrest us? Will we be able to return home? What will happen to the contacts we made in the area? The authorities then told us that we were required to leave the area immediately, but we had no idea where to go.

We loaded up the van and had to leave in the middle of the night to a hotel hours away. To securely inform our church of what had just transpired, we had to talk in the bathroom and turn the water on to avoid eavesdroppers. Eventually, we found out that the government compensated visiting tourists to find out information about us. We eventually left the country without any further problems.

On our flight home, I reflected on our journey and prayed that it was not a waste of time. We were all a little discouraged because we did not know why God would send us there only to be shipped right back home again.

Several months after we returned home, we got an update from our contact in the country where we had spent our mission trip. Our contact stated that since our departure, hundreds of people had been saved in the same area where we did not even mention the name of Jesus and had merely prayed while dropping mustard seeds. It was awesome to see how God revealed himself through only the faith of a mustard seed!

Since then, we continue to pray for the Holy Spirit to move every day in that country. It is obvious from the news that not all stories about international religious persecution end as safely as ours did. You saw what happened with Pastor Brunson. You see what is happening with the persecution of our brothers and sisters by ISIS. You see what is happening in China. We need to remember that we have millions of brothers and sisters in Christ all over the world who risk their freedom and their lives every day, merely for being Christian. I hope that you will join me in praying for the persecuted Christians around the globe.

Caleb Seals is an intern at Family Research Council.

10 Nominees Have Faced Unconstitutional Religious Tests in Less Than 2 Years

by Alexandra McPhee

February 11, 2019

Imagine that one day you sit down for a job interview. You are prepared to answer your interviewer’s questions and demonstrate your qualifications for the position.

Then imagine getting asked a question that has nothing to do with whether you are qualified for the job. In fact, though irrelevant, the question has to do with something very personal—your faith.

Do you personally believe that gay relationships are a sin?”

Do you intend to end your membership with this faith-based organization to avoid any appearance of bias in your new position?”

As your interviewer keeps probing for an answer, you realize that whether you get the job depends entirely on your answer to this irrelevant question. And you realize that no matter what your answer is, the interviewer has already made up her mind.

After all, how do you respond to comments like “I think whatever a religion is, it has its own dogma” or “religion has been used as a ruse to discriminate”?

You have just imagined the job interviews for 10 presidential nominees and their experience before the United States Senate. Not only were they questioned about their faith—they were questioned publicly and by senators who had every intention of casting them in a negative light based on their answers. And on more than one occasion, senators relied on the mischaracterizations of faith-based organizations perpetuated by groups like the Southern Poverty Law Center, a group hostile to several faith-based organizations.

FRC’s new Issue Brief Rebels Without a Clause: When Senators Run Roughshod Over the “No Religious Test” Clause of the U.S. Constitution catalogs a disturbing trend by senators of interrogating nominees about the particulars of their beliefs or affiliations that demonstrate a hostility towards religion. The questions go beyond a reasonable inquiry into whether the nominee can remain impartial if faced with circumstances that conflict with her personal values. They aim to paint the nominee as discriminatory, partial, and incapable of faithfully carrying out her official duties.

Regardless of the political party of the senator, the nominee’s religious beliefs, or the particular office, these questions deter qualified candidates from pursuing public office at a time when we need them most. Faith and religion, after all, are often the foundation of integrity and character. The hostility and mistrust of religion that underlies these questions threaten to create a deficit of true leaders who are often such great role models because of their faith.

As commentators continue to draw attention to this flagrant display of bias against certain religious beliefs, we hope our elected leaders will understand that voters will not tolerate attacks against qualified candidates in exchange for fleeting political gain.

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