Category archives: Religious Liberty

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.


by Rob Schwarzwalder

March 28, 2016

Yesterday, “Jamaat-e-Ahrar, a splinter faction of the Pakistani Taliban, claimed responsibility” for a suicide bombing in Lahore, Pakistan that killed at least 69 people and wounded about 300. Why? Jamaat-e-Ahrar makes its reason very clear: “Its spokesman, Ehsanullah Ehsan, said in a statement that Christians were the target.”

The Taliban murders Christians on Easter Sunday: This is the essential headline of myriad news reports, at home and abroad. But you’d never know that Christians were in the killers’ bulls-eye from the U.S. State Department’s news release. “The United States condemns in the strongest terms today’s appalling terrorist attack in Lahore, Pakistan. This cowardly act, which targeted innocent civilians in the Gulshan-e-Iqbal Park, has killed dozens and left scores injured,” says the statement. No mention of the Taliban. No mention of Islamism and it’s brutal aggression. And no mention of Christians.

What happened yesterday in Lahore was the mass murder of Christians by Muslim radicals. This is not a statement of bigotry or an overreaction to violence. It is not inflammatory or hostile or anti-Muslim. It is a statement of fact, based on the remarks of the killers’ official spokesman (a sickening thought — barbarians have a “spokesman”) and the indisputable carnage at a park where Christian children were playing after Sunday services.

Yet this administration cannot summon the moral courage to say what actually and obviously occurred. This is repulsive and a shame to our country, which proclaims itself “the home of the brave.”

Former federal prosecutor and expert on radical Islam Andy McCarthy, in a recent lecture at Hillsdale College, said, “In the real world, we must deal with the facts of Islamic supremacism, because its jihadist legions have every intention of dealing with us. But we can only defeat them if we resolve to see them for what they are.”

The Obama Administration lacks such resolve. Its fear of giving offense exceeds its willingness to defeat our enemies. Brussels, Lahore, San Bernardino, 9-11: the list goes on and on, as does the Islamists’ intention of destroying us.

It is hard to know how to destroy an ideology grounded in a fanatical faith. But at least we can destroy those of its adherents intent on spreading their faith through vicious brutality. We must do this, even if it necessitates a recognition that such destruction could be a multi-generational endeavor. The security of 320 million Americans and the dignity of human life worldwide demand it.

Listen to FRC’s Executive Vice-President, Lt. Gen. (ret) Jerry Boykin, talk with FRC President Tony Perkins about the threat of radical Islam in a March 21 broadcast of Tony’s “Washington Watch” radio program.

Supreme Court Oral Argument Leaves a Question Mark Hanging Over Little Sisters

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

March 23, 2016

My client would love to be a conscientious objector. The government insists they be a conscientious collaborator.”

That line, offered by attorney and former Solicitor General Paul Clement as he closed his argument for the Little Sisters today, perhaps best captures this saga of cases in one sentence.

Zubik v. Burwell, the case for which oral argument was held today, is consolidated with six other cases (including Little Sisters of the Poor) composed of dozens of plaintiffs. The ruling in this case stands to impact scores more of religiously-affiliated universities, organizations, and individuals who object to being forced by the HHS mandate to violate their consciences by providing contraceptive services that cause abortions. These challengers have brought claims under the Religious Freedom Restoration Act (RFRA), which, if they can show they have a sincere religious belief that has been substantially burdened, requires the government to show it has a compelling interest advanced by the HHS mandate and is pursuing that interest in the least restrictive way possible.

The argument heated up quickly, as Paul Clement, arguing for some of the religious challengers, was vigorously questioned by Justices Sotomayor, Ginsburg, and Kagan about how government could continue to function if religious actors were permitted to consistently object to regulatory schemes like the HHS mandate. Clement skillfully parried away their questions: “My clients do not object to objecting,” he observed, but they do have a problem with being forced to violate their religion by a process the government calls an accommodation. Just because the government “call[s] it an accommodation doesn’t mean its immune from RFRA analysis,” Clement noted.

Noel Francisco, arguing for some other challengers, honed in on the fact that churches were already exempted under the HHS mandate. The existence of other such exemptions and whether they showed that the government did not actually have a compelling interest in imposing the HHS mandate’s requirement on the Little Sisters was a recurring theme throughout the argument. If the government has such a compelling interest, why not exempt the Little Sisters and others as it has exempted churches and large corporations?

When Solicitor General Donald Verrilli arose to argue for the government, Justice Kennedy showed surprising quickness in probing him about whether the government concedes that the exercise of religion was substantially burdened in this case. Verrilli conceded the exercise was sincere, but not substantially burdened. Why not? In the government’s view, the religious organizations are provided with a way to extricate themselves since the government authorizes the insurer to provide coverage. The religious groups can send the government an “exempting” document, and the government then authorizes the coverage. But the government needs the exempting document to authorize the coverage! The exempting document triggers acts against which the religious organizations have the most profound of objections. Sounds like an “authorizing document” to me.

The existence of other exemptions under the HHS mandate (showing that the government does not clearly have a compelling interest) and availability of other coverage (showing that the government is not working through the least restrictive means) were recurring themes throughout the argument. The government did not make a strong showing on these issues. At one point, Verrilli was stuck arguing that other alternatives to coverage, like the exchanges, do not provide the same coverage that is provided through the religious challengers’ insurers. Thus, in the government’s view, there were no less restrictive alternatives. It was almost as if the government had to concede the ineffectiveness of Obamacare as part of its argument before the Court today.

Also of note today were several references by the justices and advocates to the views of Professor Doug Laycock on whether RFRA supports the claims in this case. Nevertheless, as Paul Clement noted in closing, when Professor Laycock’s view is accurately restated, it supports the religious claims here.

One of the heartening things about today was seeing Justice Kennedy show support for the idea that if a religious belief is sincere (in this case, if the challengers believe the law makes them complicit in evil) and if there is a significant financial penalty attached to not following that law, there clearly is a substantial burden on religion. Justice Alito most vigorously disputed Verrilli’s arguments from the bench this morning, while Chief Justice Roberts also consistently hammered the government’s arguments. The Chief aptly characterized the government as “hijacking” the religious organizations’ insurance agreements to do its bidding. Justice Kennedy also observed the government was trying to “hijack the plans.”

Justice Thomas, along with these three, are likely votes for the religious challengers. Justices Kagan, Sotomayor, and Ginsburg will likely rule for the government, but a glimmer of hope remains: Justice Sotomayor appeared sympathetic to religious freedom in the context of a military conscientious objector. Justice Breyer appeared to struggle with which way to rule; if he can find sympathy for the position of the Little Sisters, the Court will offer relief to them later this spring. If the result is 4-4, however, the lower court decisions (many of which are negative) will stand until the issue is taken up again by the Supreme Court. While an outright win at this point is ideal, either of those results would be preferable to five justices ruling against the challengers here.

A Win for Religious Freedom in the Military

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

March 9, 2016

A federal judge notched a win for religious freedom last week by ruling in favor of a Sikh Army captain requesting an exemption to grow his hair and beard for religious reasons. This ruling is a positive reaffirmation of RFRA’s application in the military context, and is proof that the statute can be used to protect service-members’ rights while not impinging on the unique needs of the military.

In response to Captain Singh’s exemption request, the Army directed him to go through several batteries of tests with his gas mask and helmet on to determine how they would perform while fitted over his head and facial hair. This order was unique, however, for the Army regularly grants beard exemptions for all sorts of reasons without requiring the testing it directed Captain Singh to go through. Moreover, around the same time the Army was imposing these onerous burdens on Captain Singh, he successfully completed a previously scheduled standard gas mask test with other soldiers from his unit.

It was obvious to anyone that the Army was making Captain Singh jump through hoops, and the Court granted his request to stop the Army from making these burdensome demands on him after concluding his RFRA claim would likely succeed. He had shown a sincere belief that was substantially burdened by the testing, and while the Court recognized the Army “unquestionably has a compelling interest in ensuring the health and safety of military personnel,” the specific tests required of Captain Singh are not the least restrictive means of accomplishing this interest. As the Court noted, “[i]ndeed, conducting or commissioning a study of the efficacy of helmets and gas masks for soldiers donning a variety of unshorn hair, beards, and/or head coverings, which does not target one particular Sikh soldier merely because of his request for a religious accommodation, would be more effective in furthering the government’s compelling interest in ensuring the health and safety of its soldiers.” The Court also observed that “medical exceptions and ‘relaxed grooming standards’ are granted without such specialized information” as the Army claimed it needed from Captain Singh.

On balance, this ruling reaffirms the principle that robust religious exercise for those of all faiths can occur in the military consistent with the unique demands it must impose on its members in order to maintain readiness and accomplish its mission.

11th Circuit Rejects Religious Liberty in Favor of Government-Mandated Contraception

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

February 19, 2016

In yesterday’s opinion in EWTN v. Burwell, the 11th Circuit Court of Appeals caused double the damage by rejecting a clear religious liberty claim and trying to save the HHS contraception mandate at the same time. This is not the court’s job. It was supposed to objectively analyze a Religious Freedom Restoration Act (RFRA) claim, which it not only rejected in an attempt to set religious liberty back in time, but then jumped through hoops to justify the government’s contraception and abortion-related services scheme which wasn’t even passed by Congress and instead was imposed by executive fiat.

In its opinion, the 11th Circuit recognized:

We accept that the plaintiffs truly believe that triggering contraceptive coverage or being complicit in a system providing contraceptive coverage violates their religious beliefs.”

However, the court then amazingly concluded:

But our objective inquiry leads us to conclude that the government has not put plaintiffs to the choice of violating their religious beliefs or facing a significant penalty. We hold there is no substantial burden.”

The court now looks foolish. It already admitted religious liberty was violated in this case, and is now left trying to claim there is no “significant penalty” when the government threatens religious actors with thousands of dollars in fines if they don’t violate their consciences.

The court continues:

The ACA and the HRSA guidelines—not the opt out—are … the “linchpins” of the contraceptive mandate because they entitle women who are plan participants and beneficiaries covered by group health insurance plans to contraceptive coverage without cost sharing. In other words, women are entitled to contraceptive coverage regardless of their employers’ action (or lack of action) with respect to seeking an accommodation.”

If this is so true, why the need to involve EWTN in this scheme? Why not just provide the coverage directly? The government seems to need (or want) EWTN and others to be involved themselves.

In sum, the court acknowledged that the HHS contraception mandate “accommodation” forces EWTN to violate its religious beliefs or pay government penalties, but still found no substantial burden on religious freedom. This is nonsense. Surrendering your religious beliefs in order to avoid government penalties is the definition of “substantial burden” if there ever was one. Hopefully the Supreme Court will get these cases right when it considers them in the next few months, and settle once and for all that the government is substantially burdening religious exercise by threatening thousands of dollars in fines against religious actors if they don’t violate their consciences, and has no need to even involve them at all in providing drugs and services they believe cause abortions, but can leave religious groups out of the process entirely as it already does for other types of organizations.

Bigots?” Memories Pizza Demonstrates its Tolerance.

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

October 9, 2015

It is hard to miss recent media portrayals of anyone who voices or acts on their religious beliefs regarding same-sex marriage in how they run their business as “bigoted” and seeking a “license to discriminate.” This consistent narrative has judged their motives without reason, roundly rejecting small business owners’ (often wedding vendors) claims that they are simply living out their faith with love, but can’t be a part of a ceremony that violates their consciences.

When the owners of Memories Pizza — a small town pizzeria in Indiana — were posed a hypothetical question about whether they would cater a same-sex wedding last year, the “intolerance” of their simple response that they would not resulted in a threat to burn down their shop. They didn’t react in turn, but continued to explain that they would happily serve customers who identify as homosexual; they just didn’t want to be a part of the wedding. Of course none of this mattered to those not seeking the facts.

Now it appears that a man ordered two pizzas from Memories Pizza, without stating his reasons (as is quite normal when ordering pizza), and brought them back to serve at his same-sex wedding. He’s recorded the event, and claimed Memories “catered” his gay wedding — without knowing it. In response, Memories owner Kevin O’Connor hasn’t threatened to burn anything down. He hasn’t called anyone a bigot. He’s actually not really too interested in what happened.

So what’s the point?

Memories Pizza served a man regardless of his sexual orientation. The owners did not deny him service. They didn’t “turn him away.” And the fact that their pizzas were served at a gay wedding isn’t too bothersome to them. They didn’t quiz the man when he came in, asking him what he would use the pizza for. Those truly seeking to understand the conflicts in the “wedding vendor cases” should study what happened here, for they will see that no one involved is interested in simply turning away customers based on their sexual orientation.

What else can we learn?

It’s important to note that Kevin O’Connor didn’t run around claiming “my conscience was violated here!” Conscience is not violated merely by the occurrence of events; there must be knowledge of what one is getting oneself into. Thus, conscience is violated when someone is forced to knowingly participate in something they believe is wrong. Kevin wasn’t forced to participate in anything here; thus he wasn’t upset. He had no problem with serving a person in his shop, whether or not that person identifies as homosexual.

This is an important teaching moment on the role of conscience in the “wedding vendor cases” and beyond. The small business owners involved are not asking to simply “turn people away” or for a “blank check” to do whatever they want; they are advancing sincere conscience claims in certain circumstances. Memories Pizza’s unproblematic “catering” of this same-sex wedding shows that. Those who sincerely care to understand more about such religious freedom claims can learn from this development.

Pope Francis’s Words Confound Liberal Orthodoxies

by Daniel Hart

October 6, 2015

The mainstream media seems to be in a constant battle to try and wrest control of who they think Pope Francis is and what he stands for. What the media often fail to do is to quote the Pope’s actual words when he speaks against the modern orthodoxies that they are so fixated on upholding, in particular that of same-sex marriage.

During his homily at the Mass in Rome celebrating the opening of the Ordinary Assembly of the Synod of Bishops on the family on October 4, Pope Francis reflected yet again, as he has done throughout his papacy, on the central and indisputable truth and beauty of the family, that is, of one man, one woman, and their children:

In the first reading we also hear that God was pained by Adam’s loneliness. He said: “It is not good that the man should be alone; I will make him a helper fit for him” (Gen 2:18). These words show that nothing makes man’s heart as happy as another heart like his own, a heart which loves him and takes away his sense of being alone. These words also show that God did not create us to live in sorrow or to be alone. He made men and women for happiness, to share their journey with someone who complements them, to live the wondrous experience of love: to love and to be loved, and to see their love bear fruit in children, as the Psalm proclaimed today says (cf. Ps 128).

This is God’s dream for his beloved creation: to see it fulfilled in the loving union between a man and a woman, rejoicing in their shared journey, fruitful in their mutual gift of self. It is the same plan which Jesus presents in today’s Gospel: “From the beginning of creation, ‘God made them male and female’. For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh. So they are no longer two but one flesh” (Mk 10:6-8; cf. Gen 1:27; 2:24).

But the Pope did not stop there. He went on to point out the ills that modern society currently suffers from in regard to its understanding of what marriage actually is:

For God, marriage is not some adolescent utopia, but a dream without which his creatures will be doomed to solitude! Indeed, being afraid to accept this plan paralyzes the human heart.

Paradoxically, people today — who often ridicule this plan — continue to be attracted and fascinated by every authentic love, by every steadfast love, by every fruitful love, by every faithful and enduring love. We see people chase after fleeting loves while dreaming of true love; they chase after carnal pleasures but desire total self-giving.

He followed this by quoting his predecessor Pope Benedict XVI (then Cardinal Ratzinger), who cuts to the heart of modern society’s ill-conceived notion of “freedom”:

Now that we have fully tasted the promises of unlimited freedom, we begin to appreciate once again the old phrase: “world-weariness”. Forbidden pleasures lost their attraction at the very moment they stopped being forbidden. Even if they are pushed to the extreme and endlessly renewed, they prove dull, for they are finite realities, whereas we thirst for the infinite.”

Despite the media’s best efforts in pigeonholing him to fit their agenda, Pope Francis will continue to confound them with what he actually says. Only time will tell if they will ever listen.

On Religious Liberty, Pope Francis Reminds Americans to Be American

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

October 5, 2015

There has been much media discussion over what the Pope said or did on his brief visit to the United States last month. Some topics drowned in the news coverage of others. However, one thing the Pope was certainly not confused about was his stance on religious liberty. Before Independence Hall in Philadelphia, Pope Francis clearly proclaimed:

One of the highlights of my visit is to stand here, before Independence Hall, the birthplace of the United States of America. It was here that the freedoms which define this country were first proclaimed. The Declaration of Independence stated that all men and women are created equal, that they are endowed by their Creator with certain inalienable rights, and that governments exist to protect and defend those rights.”

He continued:

History also shows that these or any truths must constantly be reaffirmed, re-appropriated and defended.”

Concluding his speech, he stated:

Let us cherish freedom. Freedom of conscience, religious freedom, the freedom of each person, each family, each people, which is what gives rise to rights. May this country and each of you be renewed in gratitude for the many blessings and freedoms that you enjoy. And may you defend these rights, especially your religious freedom, for it has been given to you by God himself.”

In so clearly restating the American vision of religious liberty which has existed for over two centuries, Pope Francis reaffirmed the human right of religious liberty, given by God to all people, everywhere. In clearly restating this right, Pope Francis reiterated and reaffirmed an American ideal.

And by reminding us to defend and uphold religious freedom, Pope Francis simply reminded Americans to be American.

President Obama: Patiently Chiseling Away at Religious Liberty

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

September 28, 2015

At a recent Democratic Party fundraiser, President Obama reportedly said:

We affirm that we cherish our religious freedom and are profoundly respectful of religious traditions … . But we also have to say clearly that our religious freedom doesn’t grant us the freedom to deny our fellow Americans their constitutional rights.”

This is a perfect example of the incrementalism by which rights are diminished, relegated to second-class status, and eventually dismissed altogether.

President Obama’s comment may sound innocuous on its face, but what he’s actually saying is the First Amendment is to be subjugated to his own vision of society as implemented through his own view of the Fourteenth Amendment — a view which for our nation’s entire history was never even seriously considered right up to a few years ago.  It’s noteworthy that President Obama also publicly opposed same-sex marriage in the not-too-distant past — a fact which should tell us (and his current swooning supporters) something about his convictions. The “constitutional rights” to which he now so confidently refers are actually nonexistent in the text or meaning of the Constitution, only imposed on the nation through one ill-formed opinion of the Supreme Court.

On the other hand, the First Amendment (which he fails to even mention) has plainly and openly provided protection as the first of our Bill of Rights for centuries (since the founding of our country), clearly protects wide-ranging and robust religious practice, speech, and action, explicitly protects the “free exercise” of religion (which protects far more than the “religious traditions” and “religious institutions” the president references), explicitly prevents the government from “establish[ing]” what citizens must believe (in West Virginia State Board of Education v. Barnette, the Court said, “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”), and has been consistently held by the courts to provide strong and wide-ranging protection from government interference and coercion in religious matters.

Thus, with one off-putting comment, President Obama attempts to use “rights” which aren’t even mentioned in our primary written legal authority (the Constitution) to denigrate rights which are clearly protected by the first provision of the Bill of Rights of that same Constitution.

As it’s said: “Where there’s a will, there’s a way.”