Category archives: Religious Liberty

The New Thought Police

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

August 24, 2016

Several things are notable about David Gushee’s recent column describing the marginalization of orthodox Christian teaching on sexuality. It may at first appear to be a review of legal and policy developments, but it quickly morphs into a cheerleading piece urging the marginalizing to keep on going. Perhaps Gushee simply takes glee in finding himself sitting on the side of the discriminator. The piece is saturated with policy preferences, not theological explanations. In this context, his mention of doctrine as a factor in the discussion makes no sense. If social and political trends and preferences are what matters, who cares about doctrine?

Yet it wasn’t any of these points which stood out the most as I read the piece, but rather the apparent celebration (or at least satisfaction) of the uniformity of the view Gushee saw developing across society. To him, it’s apparently no problem that everyone influential thinks alike—as long as they have the right thoughts.

As Rod Dreher has pointed out, Gushee’s thinking goes hand-in-hand with the suppression of freedom and religious liberty. As I read Dreher’s commentary and Gushee’s piece, my mind went to a book I’m currently reading: James Michener’s The Bridge at Andau—his nonfiction account of the Hungarian Revolution of 1956 against Soviet Communism. As Michener recounts in his book, pervasive throughout the secret police apparatus the Soviets helped establish in Hungary was a paranoia about being suspected of disloyalty, of being turned in for perhaps even a comment that could be construed as hostile to the authorities. Conformity was the goal. Disloyal suspects were interrogated and tortured until they “confessed”—until they admitted what the authorities wanted to hear. They had to think as the authorities thought or they were no good.

Yes, we are a far cry from such a system. But never for a moment should we think the evil and oppression underneath it can’t arise in other circumstances and in other forms to take us unawares. Such celebration of uniformity is a threat to the foundational freedoms of our society, and is much larger than any one policy issue. It is a way of thinking about society at large, and Gushee seems to be failing at it in his new piece. At a minimum, he should reconsider his celebration that our elites seem to be “confessing” what he likes to hear.

I invite him to read The Bridge at Andau and welcome a discussion at any time.

Religious Freedom at Home and Abroad

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

August 17, 2016

At Family Research Council, we have consistently made the point that religious freedom must be protected at home and abroad. It is a human right, protected in the United States most prominently by the Religious Freedom Restoration Act and the First Amendment’s Free Exercise Clause. Internationally, it is protected by Article 18 of the International Covenant on Civil and Political Rights and other instruments. While the language differs slightly, the right protected is the same. People are free to choose the faith they will have and live out that faith in their lives.

So we were pleased to see The Economist highlight the link between protecting religious freedom at home and abroad in a recent piece on the Ahmadiyya Muslims. Ahmadiyyas believe their founder was a prophet, and for this belief, are viewed as outcasts and non-Muslims by many others within Islam. They have come to the West in hope of peace, where they eagerly pledge allegiance to the civil governing authorities of those countries. The Ahmadiyyas seem to have developed a theology of separation of church and state (as Christians had to do hundreds of years ago) as we currently know it in Western countries—places where the Ahmadiyyas appear to appreciate the legal protections for all faiths. They certainly need it, being subject to legal discrimination, violence, and murder for their beliefs. Yet this no longer occurs only in their home countries:

This year anti-Ahmadi hatred seemed to break out in Britain, with the murder in March of a popular Glasgow shop-keeper called Asad Shah. His family had moved to Britain in the 1990s in the hope that life for Ahmadis would be easier than in Pakistan. But Pakistan’s religious passions have clearly been felt in Britain; it emerged in April that literature urging the killing of Ahmadis was being circulated in at least one London mosque. The assassin, from the northern English city of Bradford, openly declared his intention of punishing his victim for “disrespecting” Islam, and in particular, for having wished his Christian neighbours a happy Easter.”

The Economist continues:

The story suggests a wider point. Back in the 1990s, when American officaldom was first mandated by Congress to start making annual assessments of the state of religious liberty round the world, there was widespread confidence in Western capitals that liberal-democratic norms, including religious liberty, would steadily be established in those countries which still oppressed their citizens and curbed their freedom to believe and worship. That missionary confidence is now greatly diminished. But that makes it doubly important that Western governments use all their might at least to protect their own subjects from brutal assaults on freedom of thought. Families like that of Asad Shah, who look to Western democracies as a beacon, must not be disappointed. Or to put it another way, the Ahmadis should feel they are getting something in return for their loyalty to the flag.”

Indeed. This is all part of making sure that true religious freedom—not religious freedom curtailed by blasphemy laws, or religious freedom contained to one’s private life—is protected both in the West and around the world. The United States must do its part to protect this right at home, while revitalizing the role of religious freedom protection in foreign policy.

Question of the Week - August 9, 2016

by Daniel Hart

August 9, 2016

Question: In reading about Title IX and how the present administration is using it for their sexual experimentation, FRC repeatedly calls it a “law.” I thought it was a mandate that the schools could refuse, even though they might be losing their grant money from the government. Is it a law, since Obama has again overreached his powers by sidestepping Congress’ authority to make laws?

FRC: The Obama administration has interpreted Title IX in a manner that is inconsistent with the Congressional intent in passing the legislation. Until that interpretation is either rescinded by a future administration or overridden by a Court, that interpretation has legal effect.

We encourage you to watch our recent lecture to learn about what is being done legislatively, educationally, and legally to stand for students and families in response to the new interpretation of Title IX. In addition, please refer to FRC’s paper, “Title IX and Transgendered Students,” for more information.

Parents should demand that school boards not sacrifice the safety of children out of fear of losing federal funding, which on average only amounts to about nine cents of every educational dollar. The recent victory in Fairfax County is an encouraging example of the powerful impact that parents have when they stand for truth. It is also time for Congressional leadership to act and rein in this administration. Bottom line, the president’s decree should be resisted with every legal and moral instrument we have available to us in this country.

Finally, please sign our petition to Congress, asking them to take action to protect America’s children.

Federal Judge Still Refuses to Let Mississippi Religious Freedom Law Go Into Effect

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

August 3, 2016

After Judge Carlton Reeves in Mississippi granted a preliminary injunction against HB 1523 and refused to let that state’s religious freedom law go into effect last month, Governor Bryant requested that the ruling be put on hold pending appeal. Judge Reeves refused to grant this request too, the other day declining to stay his ruling while the case is appealed. His opinion contains several weaknesses, and a failure to adequately address arguments in support of the law.

Judge Reeves claims that his opinion granting the preliminary injunction “laid out” why “HB 1523 is not like federal laws which permit persons to opt-out of going to war or performing abortions.” But that opinion did not adequately explain the distinction in the abortion context. He tried to argue that abortion dissenters have a problem with “all abortions,” while Mississippi clerks don’t have a problem with “all marriages licenses.” But it’s not for Judge Reeves to dictate whether someone’s conscience objections are correct. If someone has a guilty conscience, then they have a guilty conscience. Moreover, he still dodges the question of why conscience protections which only protect the pro-life view violate the Establishment Clause—which is the actual legal question anyway. The answer, of course, is that they don’t. In Harris v. McRae, the challengers to the Hyde Amendment (barring certain funding of abortions) had argued that it violated the Establishment Clause on the theory that it incorporated into law “the doctrines of the Roman Catholic Church concerning the sinfulness of abortion and the time at which life commences.” The Court responded that “it does not follow that a statute violates the Establishment Clause because it ‘happens to coincide or harmonize with the tenets of some or all religions.’ … That the Judaeo-Christian religions oppose stealing does not mean that a State or the Federal Government may not, consistent with the Establishment Clause, enact laws prohibiting larceny.”

On top of inadequately addressing these arguments, Judge Reeves’ initial opinion failed to even mention “laws which permit persons to opt-out of going to war,” much less “la[y] out” why they are different from HB 1523.

Of course, the answer is they are not. Judge Reeves bafflingly cites to Gillette v. United States, but Gillette actually supports Governor Bryant’s case, standing for the proposition that laws which protect only one side of a certain area of beliefs are perfectly consistent with the Establishment Clause. Judge Reeves claims that “issuing a marriage license to a gay couple is not like being forced into armed combat or to assist with an abortion. Matters of life and death are sui generis.” But this isn’t the issue. Judges have no role in providing their personal opinion as to the matter being objected to. If the objector has a conscience problem, the inquiry stops there. This is well-settled under our constitutional religious freedom framework, and prevents judges themselves from being tangled up in assessing religious beliefs. To do otherwise leads to Judge Reeves’ error: judging the conscience of the objecting clerk. Who is he to tell that clerk otherwise if they believe same-sex marriage causes grievous harm and they don’t want to be a part of facilitating it?

Judge Reeves continues this error in a footnote: “Allowing conscientious objectors was a win-win: good for soldiers and good for conscientious objectors. HB 1523 is different. Allowing people to opt-out of serving LGBT citizens comes at the expense of LGBT citizens.”

Aside from continuing to err by assessing the value of the conscience objection in the military context, he is just flat wrong. He can’t show any “expense” on the part of LGBT citizens. He tries to point to Estate of Thornton v. Caldor to argue that laws which burden “other citizens and entities” are unconstitutional, but that case involved an actual requirement being placed on private citizens regarding their employment practices. There is NO such requirement here. HB 1523 merely protects certain people from the government. Our Constitution itself does that, and laws are perfectly constitutional when they accomplish the same.

Illinois Governor Signs Bill Forcing Pregnancy Care Centers to Refer for Abortions

by Andrew Guernsey

August 3, 2016

Could you imagine a law forcing a vegetarian store clerk to tell customers about the benefits of eating meat and then to refer them to Burger King? A new Illinois law does worse than this—it forces pro-life doctors, nurses, pharmacists, and even the state’s 51 pregnancy care centers to become abortion advocates and escorts to abortion clinics like Planned Parenthood for the killing of innocent human life. Far from leaving abortion to the privacy of a woman and her doctor as pro-abortion politicians would have us believe, the new Illinois law tells pro-life health care personnel what to say and do.

Late last week, Illinois’ Republican governor Bruce Rauner signed the draconian and anti-religious freedom bill, SB 1564, despite not receiving a single Republican vote. The law forces pro-life doctors, nurses, pharmacists, and even pregnancy care centers, who object to abortion, to tell their patients about the alleged “benefits” of abortion and abortifacient drugs, against all evidence to the contrary, and then to refer or transfer those patients to an abortionist, or provide written information about where they can obtain an abortion or abortion inducing drugs or devices. Victims of illegal pro-abortion hospital policies like Illinois nurse Sandra Mendoza, who was forced out of her long-time job in June 2016 as a pediatric nurse for refusing to participate in abortion, will also no longer be able to sue under the state’s Health Care Right of Conscience Act.

Anti-religious freedom initiatives like Illinois’ pro-abortion law are spreading in liberal states around the country, emboldened by the Health and Human Services’ (HHS) refusal to enforce the federal conscience law, known as the Weldon Amendment, to stop California and New York from forcing even churches to cover abortion. Illinois’ new abortion promotion and referral law directly violates the federal conscience law (the Weldon Amendment), which prohibits any state that receives federal funding from conducting “discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” This harmful, anti-life discrimination must not stand!

Thankfully, there is meaningful legislation waiting for a vote in the Senate, and has already passed the House, which would provide pro-life health care providers relief from the new Illinois law: the Conscience Protection Act (S. 2927, “CPA”), introduced by Sen. James Lankford (R-OK). CPA would codify the Weldon Amendment and provide a critical private right of action so that health care providers and organizations facing discrimination in any state for refusing to participate in abortion can sue in court to protect their conscience rights. In light of HHS’ refusal to enforce the law in California and now Illinois, the Senate should follow the House’s example and pass CPA. The pro-life doctors, nurses, pharmacists, and pregnancy centers of Illinois deserve to have their rights protected.

Religion in Immigration: How to Handle it Properly

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

August 2, 2016

An opinion by Judge Reinhardt out of the Ninth Circuit Court of Appeals yesterday shows how to properly view the role of religion in asylum and immigration matters.

Kurniawan Salim had first filed for asylum in 2006 when he was a Buddhist on the grounds that he feared returning to Indonesia because of his Chinese ancestry. His claim was rejected. Still in the United States, he has since converted to Catholicism, and now asserts a fear of persecution based on religion if he returns to Indonesia. Yet the Board of Immigration Appeals (BIA) rejected his request to reopen his case, claiming the evidence offered was “largely cumulative” of that offered in his first case.

Thankfully, Judge Reinhardt reversed the BIA, which had apparently missed the significance of the fact that Kurniawan was now a Christian and had offered significant evidence he would be persecuted on that basis. As Judge Reinhardt observed, the BIA’s “reasoning makes little sense where, as here, the motion to reopen presents a different basis for relief than was relied upon during the prior hearing. In such cases, the evidence related to the new claim for relief is necessarily “qualitatively different” from that offered at the earlier hearing.”

Kurniawan had submitted significant evidence that hostility toward Christians in Indonesia had dramatically increased since his first case, with a letter from his sister in Jakarta describing the immediate threat of attacks against Christians in her area. Judge Reinhardt additionally found that the BIA erred by failing to examine the evidence that Christians were threatened in light of Kurniawan’s membership of this specific religious group.

Judge Reinhardt accurately diagnosed the religious freedom threat for this asylum applicant, while the BIA showed an ignorance of the role religion plays in this type of case. If those at the BIA can’t understand that evidence of threats against Christians matter because someone is a Christian and not a Buddhist, we are in trouble. It is not sufficient to merely recognize the role of religion generally (though that is not always properly done), but government officials must also understand the religious freedom component of these cases as informed by the social, political, and interreligious dynamics of specific areas around the world. They must also bring this clear-headed approach to the broader context of immigration and security, which needs our objectivity and understanding much more than our simple, one-size-fits-all “solutions.”

This case is a glimpse into how international religious freedom as a human right should inform our values as they play out in our immigration system. America has been and will hopefully remain a beacon around the world for the freedom to choose one’s beliefs and live them out without fear of harm. Kudos to Judge Reinhardt for protecting this freedom today.

Question of the Week - July 25, 2016

by Daniel Hart

July 25, 2016

Question: I was told that California’s Senate Bill 1146 will strip the state’s faith-based colleges and universities of their religious liberty to educate students according to their faith convictions. Is this something that FRC is fighting? How can I get involved?

FRC: SB 1146 is something that we are fighting to defeat. We wrote about it in our June 10th Washington Update. This bill is an attack on the religious liberty of Californians and could set a dangerous precedent for other states to enact similar laws restricting the religious freedom of faith-based colleges and universities to set their own policies. Please go to the “Oppose SB 1146” website to learn how you can help stop this bill from becoming law.

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.

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