Category archives: Religious Liberty

Mississippi Continues to Fight for Religious Freedom

by Family Research Council

July 22, 2016

After Judge Carlton Reeves’ stubborn decision preventing his state’s religious freedom law from taking effect several weeks ago, Mississippi Governor Phil Bryant notified the court he would be swiftly appealing the ruling. The district court’s ruling had prevented H.B. 1523 from being applied to the people of Mississippi, meaning that clerks in state offices could now be forced to issue marriage licenses to those seeking same-sex unions, despite deep religious convictions that the clerks may have against aiding in a union that consists of two people of the same sex.

House Bill 1523 is a state law signed by Governor Bryant that allows a subset of business entities and government employees to opt out of being forced to violate their beliefs by participating in same-sex marriages, while mandating that the authorities ensure the couple still receive their services or benefits from some other government actor. The law seeks to protect religious organizations that have moral opposition to the practice of aiding in a process that promotes a lifestyle that goes against their religious core values. H.B. 1523 seeks to protect their core beliefs: That marriage is only between a man and a woman, that sex should only take place in such a marriage, and that a person’s gender is determined at birth and cannot be altered. It allows state clerks to exercise their religious freedom by not issuing marriage licenses to same-sex couples, and protects citizens of faith who are merchants by ensuring that they can still exercise their religious freedom. With these provisions, this law is a continuation of Mississippi’s long standing history of protecting religious freedom.

In the past, the state of Mississippi has exempted people who oppose all war for religious reasons from having to enter the draft. Mississippi has also exempted pro-life health care workers from performing some duties that are associated with terminating pregnancies. In his court filing opposing the renegade district court decision, Governor Bryant noted “[i]t is perfectly acceptable for the government to choose the conscientious scruples that it will protect and accommodate, while withholding those protections and accommodations from other deeply held beliefs.” Moreover, H.B. 1523 is not a drastic change in state law, he observes, because Mississippi lacks sexual orientation anti-discrimination laws. Thus, even without H.B. 1523, Mississippians in theory could suffer all sorts of adverse action because of their sexual orientation. Yet the fact that the opponents of H.B. 1523 can’t point to a record of this occurring shows they are hyping up supposed problems which do not exist.

Thankfully, Governor Bryant strongly disagreed with the outcome-based decision of Judge Reeves. He rightly pointed out that H.B. 1523’s challengers will not be affected if the law takes effect during the appeal period, as they have shown no real, concrete injury to themselves. Thus, his request that H.B. 1523 be applied to the people of Mississippi while its appeal is ongoing is quite sensible.

Question of the Week - July 18, 2016

by Daniel Hart

July 18, 2016

Question: Ok, so the House passed the Conscience Protection Act last week. Doesn’t the Senate have to do so as well, and then the President sign it? If Obama vetoes, will there be an override? If the above is true, why is FRC so happy at this point?

FRC: The Senate does have to pass the Conscience Protection Act (CPA). We don’t have the votes to override a veto by President Obama. However, this is the first time since 2004 that Congress has voted on conscience. This CPA vote gets members on record. In addition, if the Senate passes CPA, it builds momentum and puts pressure on President Obama. Finally, if support for CPA remains in Congress, then it hopefully has a strong chance of becoming law if we have a pro-life president in the future.

The Economist Magazine Highlights Progressives’ Religious Freedom Hypocrisy

by Travis Weber, J.D., LL.M.

July 15, 2016

We are glad to see last week’s article in The Economist accurately diagnosing the hypocrisy surrounding religious freedom which has infected the agitating political Left in the last several years. This reputable magazine has pinpointed the biggest trouble of the current political and policy dynamic surrounding religious freedom: the progressive Left just can’t bring itself to support traditional Christian claims of religious freedom—even when those claims are brought under the same laws and legal standards as others which modern liberals have supported.

As Family Research Council has consistently made clear, religious freedom laws have historically had bipartisan consensus. Sadly, this is no longer true, as in the last several years the progressive Left has abandoned its support for First Amendment principles in favor of new policy goals. Meanwhile, in an ironic twist, conservatives are attacked as only supporting religious liberty when it concerns them. We have shown this not to be true. Now, we are thankful The Economist has shed additional light on the religious freedom debate.

Ends Justify the Means in Ruling on HB 1523

by Travis Weber, J.D., LL.M.

July 1, 2016

Judge Reeves’ ruling striking down individual rights protections in Mississippi’s HB 1523 is a travesty for the rule of law and shows what happens when the judicial process justifies the means with the ends. It is quite unfortunate that the judge can’t see (despite the fact that no same-sex couple has been denied anything by Mississippi in the wake of Obergefell v. Hodges) that the law merely protects people from government coercion. It is doubly unfortunate that in his ruling, the judge’s denigrating and dismissive references to “Christians” exhibits an animus toward the people he is entrusted to rule over that is barely bottled up.

On the issue of standing, Judge Reeves can try to cover his reasoning in a legal swamp all he wants, but at the end of the day, his ruling pulls the law to its breaking point in order to find an actual, real injury to anyone at all. In reality, no one has been concretely affected by this law. That’s why he has to contort the matter to find an injury where someone “feels” affected. Yes, feelings get hurt in a democracy (this happens innumerable ways every day, which average American understand) but that’s part of living in a diverse country. Despite citing the Supreme Court’s Establishment Clause decision Town of Greece v. Galloway multiple times, he conveniently forgot to cite Justice Kennedy’s reminder in that case that “offense … does not equate to coercion.” Instead, Judge Reeves has opted in essence to deny the people their own right to govern. With such rulings, one can’t blame them with being fed up with federal judges and the elites who think like them.

Judge Reeves errs further in searching the woodwork to find constitutional violations. He admitted “discerning the actual motivation behind a bill can be treacherous.” He should have followed his own admonition. Instead, he somehow finds HB 1523 to be a violation of the Establishment Clause, despite the fact that it imposes no coercive religious requirement on anybody! (Town of Greece again relevant here). He claims that since the law doesn’t protect every type of Christian religious belief out there, it’s somehow invalid.

Yet amazingly, at the same time, the court dismisses the fact that members of non-Christian faiths also oppose same-sex marriage and would be protected by HB 1523 by arguing that those people don’t really believe their own religion:

Every group has its iconoclasts. The larger the group, the more likely it will have someone who believes the sun revolves around the Earth, a doctor who thinks smoking unproblematic, or a Unitarian opposed to same-sex religious marriage. But most people in a group share most of that group’s beliefs.

Aside from improperly delving into doctrine itself, the court’s statement is irrelevant, and by recognizing that some non-Christians would be protected by this law, it contradicts its entire grounding for this decision (that this is really just about the protection of Christians).

Under Judge Reeves’ thinking, any tailored conscience or religious rights protections would be invalid.

Additionally, his analysis of federal conscience protections is just flat wrong. He says the analogy of HB 1523 to these protections in 42 U.S.C.§ 300a-7 is not appropriate because they are “neutral” in that they protect pro-life and pro-abortion doctors, and cites to subsections c, d, and e of the statute. However, only subsection c makes reference to protection of both sides of the issue. Subsections d, e, (and a) protect doctors and facilities opposed to abortion from being forced to participate in it, and do not make mention of any pro-abortion views. The fact is that these conscience protections and similar types of exemptions have long been a part of our pluralistic society, and show how diverse people can live side-by-side while conscience is honored. When conscience is threatened, it can be protected. Yet Judge Reeves would stifle consciences that need protection in the name of protecting against some imaginary harm. He might be asked: Exactly whose consciences are being violated that he feels need additional protection in HB 1523?

In the midst of this long, contorted, and unfortunate ruling (supposedly based in part on the Establishment Clause), Judge Reeves could have at least cited the Supreme Court’s well-known pronouncement on this principle in West Virginia State Board of Education v. Barnette decades ago:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

Instead, he has imposed his own orthodoxy on them and heaped even more disenfranchisement on the heads of the people of Mississippi. “You may not like Obergefell,” the judge seems to say, “but I’m not even going to allow you to protect your own liberty in the face of it.” 

NPR Thinks Conservative Christians Are Grappling With Whether Religious Freedom Includes Muslims

by Travis Weber, J.D., LL.M.

June 30, 2016

In a recent story, NPR raised the question of who religious freedom applies to, and what conservative Christians think about its application to Muslims. Unlike NPR, I refuse to use quote marks to describe religious freedom—itself a recent development that the news media obediently follow, along with everyone else who all of a sudden wants to question the legitimacy of a constitutional principle over two hundred years old.

Turning to NPR’s story, the answer is: Yes, religious freedom goes for all faiths. This is clear enough from the positions most conservative, Christian advocacy groups take on the issue, confirmed by their support for RFRA and Free Exercise rights (which by their legal methodology naturally apply to all faiths). Family Research Council recently made this very clear in articulating our actual position on religious liberty, instead of what it is often perceived to be. Sensible people understand that security needs do not justify (and are even impaired by) blanket religious discrimination. Indeed, as security expert Dr. Sebastian Gorka pointed out the other day at FRC, one can address security concerns intelligently and efficiently, while preserving the religious liberty we hold dear for all faiths.

The NPR story simply tries to rustle up more than is there. The pastor cited as in opposition to religious freedom for Muslims reportedly says “he believes the U.S. Constitution protects all religions, including Islam”—he just wishes advocates would channel their energies slightly differently. Sounds like he does believe religious freedom is for all. Can we expect the media to interview some Imams who would say the same thing?

The real story lies in the currents underlying the NPR story. The Muslims who stand for religious freedom are courageous and deserve our support. But there are many within the Muslim world—as Muslims define it—who don’t have any concept of civil liberties for people of all faiths, and are willing to die fighting against such a concept. Dr. Gorka referenced this war within Islam the other day at Family Research Council. The largest group of victims of Jihadists are other Muslims. Those within the world of Islam who refuse to support religious freedom for all need to be confronted, and the media who ignore them and give them a free pass deserve to be called out.

Instead of trying to create a sensation where none exists, perhaps the media can focus on the religious freedom story that does exist.

Harvard law professor: “Don’t Let Mississippi Establish Anti-Gay Religion”

by Travis Weber, J.D., LL.M.

June 17, 2016

That’s actually the title of a piece by Harvard law professor Noah Feldman on Bloomberg View yesterday.

Our ability to reason together as a pluralistic nation has been sorely compromised by unashamed advocacy pieces like this. Those who know better like Noah Feldman will one day hopefully come to regret compromising their accuracy to try to achieve their objective. Sadly, much damage will be done in the meantime.

The harm done by his reckless characterizations of Mississippi’s Protecting Freedom of Conscience from Government Discrimination Act (HB 1523) demands a response.

What has Mississippi done in HB 1523? It has exempted people with certain beliefs from being forced to violate their conscience should the government make them complicit in a same-sex marriage celebration. That doesn’t sound like any “establishment” of religion to me, and it isn’t—under any reasonably understanding of what the Establishment Clause was meant to accomplish. Moreover, it would protect anyone who holds those beliefs—Muslims, Jews, Christians, or others. Establishment Clause law is primarily concerned with making sure the government doesn’t coerce or force people into a belief system with which they don’t agree.

It’s ironic that this is the precise protection HB 1523 ensures people receive. It’s doubly ironic that Noah Feldman would instead have everyone comply with the government’s “religion” of same-sex marriage acceptance. If Mississippi was doing what Feldman claims it’s doing, why the need for HB 1523’s protections from the government? There wouldn’t be any need. If we are going to use his line of thinking about “establishment,” he should see HB 1523 is needed precisely because our government is increasingly moving toward an “establishment” of support for same-sex marriage.

If Noah Feldman and others making his arguments actually believe such exemptions are constitutionally problematic, I’d expect them to argue against laws providing exemptions in a variety of contexts. Notably, their opposition only seems to arise when Christianity seeks protection.

The title to his piece also contains a misrepresentation of Christian belief: that Christianity is merely “anti-gay.” Actually discovering the truth here requires some study of Christianity, however. Christian teaching on sexuality is comprehensive, and contains a number of precepts for human flourishing and well-being in accordance with God’s design. Same-sex conduct is only one of the parameters. There is no such thing as mere “anti-gay” Christianity. Yet the Christian view of sexuality is consistently mischaracterized by this framing—because advocates who use it aren’t seeking the truth, and they know this propaganda works on people who don’t bother to seek it either.

Claiming the mantle of objectivity and reason in order to further an agenda is not new. But it removes the building blocks on which our pluralistic society can exist. It is especially disheartening when done by those who know better and are entrusted to do otherwise.

Question of the Week - June 7, 2016

by Daniel Hart

June 7, 2016

Question: I tried calling the Fort Riley base to tell them about my feelings regarding the fact that they would cancel the prayer breakfast and disinvite Gen. Boykin, but their lines are completely full and it won’t let you leave a message. Are there any other numbers to contact the base? 

FRC: Thank you for trying to call Fort Riley. Many others have told us they could not get through on the phones as well. You can try calling the Commanding General of the 1st Infantry Division, Maj. Grisby, at (785) 239-3516.

You can also send a message through Fort Riley’s contact form on their website at http://www.riley.army.mil/Contact-Us/.

In addition, you can write to Fort Riley in the Visitor Posts section of their Facebook page at https://www.facebook.com/FortRiley/.

Thank you for all that you’re doing to help us stand for faith, family, and freedom in the public square!

Question of the Week - June 1, 2016

by Daniel Hart

June 1, 2016

Question: Where can I find a suggested letter to send to my local school board about my outrage over Obama’s transgender bathroom agenda?

FRC: We are unaware of a suggested letter to send to your school board. However, our friends at Alliance Defending Freedom have legal resources that your school can use to fight this policy. They are also willing to legally represent local school districts for free. Thank you for standing up for children’s safety and religious freedom.

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Send us your questions about how you can better live out your faith beyond the four walls of your church, or about any specific value that FRC continues to stand for, whether it be life, marriage and family, or religious liberty. Go to frc.org/contact-frc and enter “Question of the Week” in the Subject line. Thank you for standing with us!

Opponents of Freedom Reveal Their True Agenda: Intolerance

by Travis Weber, J.D., LL.M.

May 12, 2016

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

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

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

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

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

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

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

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

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

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

Reflections on Oral Argument in United States v. Sterling

by Travis Weber, J.D., LL.M.

April 27, 2016

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

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

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

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

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

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

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

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

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

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