Month Archives: June 2014

Burwell v. Hobby Lobby: The Good, the Bad, and the Ugly.

by James Wheeler

June 30, 2014

The decision of the Supreme Court today in the Hobby Lobby case protects the religious liberties of the closely held for-profit corporations objecting to providing abortifacient contraceptives. However, there is much else in the decision to be concerned about for future religious liberty challenges. There are also things in some of the opinions that ought to be downright frightening to religious liberty advocates.

First, there are several aspects of the decision that are good. The Court recognized that corporations are protected by the Religious Freedom Restoration Act (RFRA). Limited for now to closely held corporations, the Court embraced the important fact that corporations exist to further the interests of their constituents, such as shareholders and officers. If for-profit corporations could not exercise religion, religious individuals would be faced with a nigh impossible “Hobson’s choice” of maintaining their religious rights and forgoing the significant advantages of the corporate form, or incorporating and giving up their religious rights.

As importantly, the Court refused to accept the government’s attempt to re-characterize and minimize the Hahn’s and Green’s religious objection. The government sought to characterize the objection as only relating to the use of abortifacient contraceptives directly, ignoring completely the religious nature of their objection to complicity in providing access to the contraceptives at issues. The Court wisely refused to accept that re-characterization, stating that it was not the Court’s job to evaluate the validity of the individual’s belief.

Those two things are rightfully a cause for celebration, but the Court’s decision leaves much else to be desired. The first thing that should cause religious liberty advocates to be concerned is the Court’s treatment of the compelling interest test. Although the majority opinion, written by Justice Alito, expressed skepticism of the idea that providing contraception coverage was a compelling state interest in the face of all the other exception, Justice Alito expressly declined to rule on that question. He assumed for the purposes of the rest of the decision that the government had a compelling interest in providing universal contraceptive coverage. That is not necessarily a problem, the Court often assumes issues without deciding them if the case can be decided on other grounds. However, what is clear from Justice Kennedy’s concurrence is the reason they assumed that answer without deciding it: Justice Kennedy believes it is compelling government interest and therefore would not have joined the majority if they had decided against the government on that question.

Justice Kennedy’s concurrence provides another cause for concern. Because he necessarily provides the fifth vote in a 5-4 decision like this, his opinion, limiting the majority’s holding, controls. Unfortunately, he bases the decision that the contraceptive mandate is not the required “least restrictive means” on the availability of the accommodation provided to religious non-profits. That is, he decided that the government’s decision to allow religious non-profits to be exempt from coverage but force the insurance company to provide the abortifacient contraceptives was sufficient for for-profit corporations as well. This foreshadows a defeat in the case by some of those religious non-profits challenging the requirement that they be complicit in arranging the alternative coverage. Even though the 11th Circuit just sustained one such challenge based on today’s ruling, it appears likely the Supreme Court will not have a majority for upholding that decision. Although the majority of the Court expressly declined to decide that question, the Kennedy’s concurrence makes it unlikely he will join with the four others in today’s majority to rule in favor of those entities in a later decision.

Justice Ginsburg’s dissent provides what is the ugliest (and most frightening) part of today’s decision. Although she was in dissent, her manifest contempt for you and I should concern us. She dismisses as “ilk” those who believe in Biblical sexual morals and lumps them in with racists. Unfortunately, the majority, in dismissing her concerns, leaves the door open to holding the government can rightfully make Biblical sexual morals illegal in the workplace. Although the majority, rightfully, responds to Justice Ginsburg’s criticism by stating today’s decision does not threaten laws prohibiting racial discrimination, the majority doesn’t defend the right of individual’s to conduct their business in accord with Biblical sexual morals.

Although today’s decision is rightfully a cause to celebrate, it also leaves a lot to be desired for protecting religious liberty in the public square.

Supreme Court Delivers Momentous Religious Freedom Victory

by FRC Media Office

June 30, 2014

WASHINGTON, D.C.- Family Research Council (FRC) praised today’s ruling by the U.S. Supreme Court upholding religious liberty and protecting the conscience rights of family businesses who object to being forced to pay for the coverage of sterilizations, contraception and drugs that have the potential to destroy an unborn child.

FRC President Tony Perkins learned of the ruling this morning as he met with the Hahn family, founders and owners of Conestoga Wood Specialties, which were represented by Alliance Defending Freedom attorneys in this lawsuit challenging the Obama administration mandate.

Perkins made the following comments:

The Supreme Court has delivered one of the most significant victories for religious freedom in our generation. We are thankful the Supreme Court agreed that the government went too far by mandating that family businesses owners must violate their consciences under threat of crippling fines.

All Americans can be thankful that the Court reaffirmed that freedom of conscience is a long-held American tradition and that the government cannot impose a law on American men and women that forces them to violate their beliefs in order to hold a job, own a business, or purchase health insurance.

The unfair HHS mandate gave family businesses two non-choices: either violate your deeply held moral beliefs and comply by paying for drugs and services to which you object, or pay crippling fines of up to $100 per day, per employee, for non-compliance. This mandate threatened the jobs, livelihood and healthcare of millions of Americans and forced those who stood up for their conscience, like Hobby Lobby and Conestoga Wood, to either comply or be punished.

Thankfully, the threat the HHS mandate imposed on Americans has been deemed unlawful today as a violation of core religious freedom rights. While we celebrate this landmark decision, it is our hope that lower courts will follow the Supreme Court’s lead and protect non-profits like Little Sisters of the Poor, Priests for Life, and Wheaton College from the unfair HHS Mandate,” concluded Perkins.

The Tenth Circuit’s Kitchen v. Herbert Flubs Fundamental Rights Analysis

by Chris Gacek

June 26, 2014

Yesterday, the U.S. Court of Appeals for the Tenth Circuit affirmed a federal district court’s decision striking down the definition of marriage found in Utah’s constitution. That definition limited Utah marriages to the union of one man and one woman. It was approved by referendum in November 2004 with 65.9% of the vote. In Kitchen v. Herbert, a 2-1 majority court struck down that definition by concluding, among other things, that there is a fundamental right to enter into a same-sex marriage. There is much more to the decision, but this note will focus on this key aspect of opinion.

As the U.S. Supreme Court instructed in Washington v. Glucksberg, 521 U.S. 702 (1997), the Due Process Clause of the Fourteenth Amendment guarantees more than fair process. It “also provides heightened scrutiny against government interference with certain fundamental rights and liberty interests.” Id. at 720. But, how does one determine what rights and interests are “fundamental?” Glucksberg is the key case in setting forth the constitutional law in this area.

Paul Linton summarized the Glucksberg standard in the Family Research Council’s amicus brief in Kitchen (pp. 3-5) (edits to text, notes, and citations have been made below):

In determining whether an asserted liberty interest (or right) should be regarded as fundamental for purposes of substantive due process analysis under the Due Process Clause of the Fourteenth Amendment[] (infringement of which would call for strict scrutiny review), the Supreme Court applies a two-prong test. First, there must be a “careful description” of the asserted fundamental liberty interest. Washington v. Glucksberg, 521 U.S. 702, 721 (1997). Second, the interest, so described, must be firmly rooted in “the Nation’s history, legal traditions, and practices.” Id. at 710. ….

As in other cases asserting fundamental liberty interests, it is necessary to provide a “careful description” of the fundamental liberty interest at stake. For purposes of substantive due process analysis, therefore, the issue here is not who may marry, but what marriage is. The principal defining characteristic of marriage, as it has been understood in our “history, legal traditions, and practices,” is the union of a man and a woman. Properly framed, therefore, the issue before this Court is not whether there is a fundamental right to enter into a marriage with the person of one’s choice, but whether there is a right to enter into a same-sex marriage. ….

This is the point at which the majority opinion runs off the rails. It dodges the hard edge of Glucksberg requiring a tight, accurate definition of the claimed right. The Kitchen court goes in another direction asserting baldly (p. 35), “But we cannot conclude that the fundamental liberty interest in this case is limited to the right to marry a person of the opposite sex.” They cannot do so because they will not to do so.

Of course, there is a fundamental right to marry a person of the opposite sex. See Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817 (1967). And, homosexuals are not precluded from marrying in any state. But, what is this national debate about? It is about the definition of marriage. Homosexual men and women assert that the laws of over thirty states should be nullified because, among other things, there is a fundamental right to marry members of the same sex. Furthermore, all states must be compelled to recognize male-male and female-female marriages.

Returning to the Glucksberg test it is manifestly clear that there is no such fundamental right, for it must be deeply embedded in “the Nation’s history, legal traditions, and practices.” How can this be possible with the claimed fundamental right to same-sex marriage? There is nothing about it that is firmly grounded in this country’s history, legal tradition, and practices. There were no same-sex marriages anywhere in the United States until the 21st Century.

Google is older than same-sex marriage.

There is a Supreme Court case that is instructive here, and it is Baker v. Nelson, 409 U.S. 810 (1972). Much blood in the same-sex marriage debate has been spilled over this case. In Baker, the Supreme Court dismissed an appeal from a decision by the Minnesota Supreme Court which had rejected arguments for same-sex marriage similar to those being considered presently in our courts. Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971).

The U.S. Supreme Court declined the invitation to consider the matter stating that there was a “want of a federal question.” It has been argued that Baker precludes lower federal courts from even considering these issues, but federal courts have brushed aside those arguments, especially in the post-Windsor environment. It should be noted that the dissenting judge in Kitchen did accept this argument. Judge Kelly would have dismissed the case and left it for the U.S. Supreme Court to decide whether it wanted to revisit this area of the law. That seems like the correct approach.

Laying aside the argument that Baker requires a dismissal by lower courts, Baker is highly instructive in answering whether any claimed right to same-sex marriage is “fundamental.”

In 1972, the fundamental right argument was presented to the U.S. Supreme Court, and it was rejected – as it had been in Minnesota. Because Glucksberg tells us that fundamental rights must be rooted in our nation’s legal history and traditions, such a right should have been extant only forty-two years ago when the Supreme Court considered the Baker appeal. Fundamental right questions are dyadic – you either have one, a 0, or not, a 1. Baker gives us the Supreme Court’s answer in 1972: 0. Both courts had the constitutional issues presented in a manner we would recognize today. The Minnesota Supreme Court quoted Loving noting “there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.” Baker, 291 Minn. at 315 (concluding the court’s equal protection analysis and discussing Loving).

Thus, the Baker Court had the core legal concepts and precedents before it that we now routinely see in same-sex marriage litigation (e.g., fundamental rights claim, arguments based on Loving), and it dismissed the appeal.

Of course, there are equal protection arguments to also consider, but one must reasonably conclude that the Kitchen majority’s fundamental rights analysis fails badly. This point is underscored by footnote 4 of the FRC amicus brief in Kitchen which provides a lengthy list of courts that have rejected the argument that any fundamental rights (Due Process) analysis supports the claims of the Utah plaintiffs challenging the state’s natural marriage definition.

McCullen v. Coakley: A Win (Somewhat) for Free Speech

by Travis Weber

June 26, 2014

Today, a unanimous Supreme Court held that a statute which limits access to traditional public forums outside abortion facilities violates the First Amendment. While the ruling is a victory for free speech rights in America’s public spaces, it’s only a halfhearted victory, and one which does not alleviate concern regarding treatment of free speech in the context of abortion.

How did we get here?

In Massachusetts, Eleanor McCullen and other women desired to stand outside of abortion clinics to be able to interact with women seeking abortions and dissuade them from having abortions. They politely shared their beliefs with the women seeking abortions. Eleanor would usually initiate a conversation with: “Good morning, may I give you my literature? Is there anything I can do for you? I’m available if you have any questions.” If a woman appeared receptive, Eleanor would provide additional information. Eleanor and other counselors believe it is important to maintain a caring demeanor, a calm tone of voice, and direct eye contact with the women considering abortions. Because their love and care is conveyed to these women, Eleanor and others claim to have persuaded hundreds to forgo abortions.

Yet many in Massachusetts did not like the fact that women were being dissuaded from having abortions. In an attempt to restrict Eleanor’s activity, the Massachusetts legislature passed a statute making it a crime to knowingly stand on a “public way or sidewalk” within 35 feet of an entrance or driveway to any place, other than a hospital, where abortions are performed. Employees acting within the scope of their employment and several other groups of people are exempt from this restriction. Massachusetts claimed its statute furthered public safety and order, but the real aim was restricting pro-life speech.

Eleanor did not fall within any of the categories of people exempted from the statute’s effect. Indeed, the statute was aimed at restricting people exactly like Eleanor, because abortion providers did not like having potential customers deterred from having abortions. Eleanor and others challenged the statute on constitutional grounds.

What did the Supreme Court say?

While the Supreme Court held that the Massachusetts statute violated the First Amendment, this ruling is not a strong victory for pro-life speech. The Court held that the statute in this case was not narrowly tailored—which is required when restricting speech in a “traditional public forum” like the sidewalk areas here—but it refused to rule that the statute contained a content-based restriction in that it only discriminated against abortion-related speech. If the statute contained a content-based restriction, it would have been subjected to strict scrutiny, a desirable standard for those seeking to communicate pro-life views in the face of hostile legislatures. The Court reasoned that the statute could be violated by someone standing in the restricted area outside abortion facilities, regardless of what subject or message they conveyed. Yet such thinking overlooks the issue of who is likely to stand outside abortion facilities.

Massachusetts argued that it had an interest in promoting safety and order in these sidewalk areas, and the Court recognized that this was a significant government interest. The Court merely ruled that this statute was too broad and restricted too much speech in addition to promoting safety—the statute had to be “narrowly tailored” to address Massachusetts’s safety concerns. The statute could be constitutional if it was modified to address safety concerns without catching people like Eleanor or others within its net.

Despite its unfortunate reasoning, the majority opinion does tell us something helpful. In several places Chief Justice Roberts makes note of and seems to lend support to the style and method of the speech at issue here—that of a quiet, compassionate counselor engaging in one-on-one interactions. While loud and abrasive speech is clearly protected just like other speech (of course subject to constitutional restrictions), the Court’s apparent support (if it can be deemed that) for this type of speech could be helpful to keep in mind when future free speech issues arise in the abortion context.

Troubling Majority Opinion, but Heartening Concurrences

While this case featured a good result, the Court is wrong to not find that the restriction here was content—and even possibly viewpoint—based. As Justice Scalia (joined by Justice Thomas, and importantly, Justice Kennedy) noted in a concurring opinion, “[e]very objective indication shows that the provision’s primary purpose is to restrict speech that opposes abortion.” It is not hard to believe that clinic employees—who are exempted from this law—will speak in favor of abortion near and around clinics when speaking to clients or potential clients. The majority avoided ruling the statute was unconstitutionally content-based because there was no evidence in this case of such activity occurring. Yet the majority opinion got this wrong. Justice Scalia’s point here is valid, as it is hard to believe that clinic employees would avoid speaking approval of abortion in the course of interacting with their clients. It is even harder to believe they would speak opposition to abortion.

Justice Scalia notes that contrary to Massachusetts’ assertion that it is concerned with safety and order, Planned Parenthood itself points to certain types of speech as the problem outside clinics. Planned Parenthood claims these protestors “hold signs, try to speak to patients entering the building, and distribute literature that can be misleading.” Justice Scalia rightly observes that the “safe space” provided by the Planned Parenthood escorts is protection from that unwelcome speech. He accurately ascertains that “[t]he obvious purpose of the challenged portion of the Massachusetts Reproductive Health Care Facilities Act is to ‘protect’ prospective clients of abortion clinics from having to hear abortion-opposing speech on public streets and sidewalks.”

Justice Alito went further in his concurring opinion, stating that the statute unconstitutionally discriminated against speech based on viewpoint by permitting clinic employees (who are of course going to express pro-abortion viewpoints) in the restricted zone, while excluding counselors from the zone who may express pro-life viewpoints.

What to make of all this?

The Court’s result is pleasing, but its opinion is troubling. The reasoning in the McCullen concurring opinions is solid and much more encouraging for pro-life free speech, and indeed, for free speech in general. The Massachusetts statute clearly aims at speech regarding a certain topic, and ultimately at a certain viewpoint on that topic. It is good to see that some justices agree with these conclusions. It is even more heartening to see Justice Kennedy so supportive of pro-life free speech.

While it is not heartening to see the Court issue such a weak ruling, a decision striking down this statute on First Amendment grounds is certainly better than the alternative. Hopefully next time the Court more clearly calls out content and viewpoint based restrictions on speech when it sees them.

Common Core Support Cools

by Family Research Council

June 26, 2014

Common Core support among those with school age kids is rapidly declining. Government bureaucrats have long made the argument that they can better educate children than parents can. It appears that parents in America disagree. Nearly everyone agrees that getting a quality education is important but there is a sharp disagreement between those who believe the state should direct educational activities and those who believe parents should direct the education of their children. Look for soon-to-be-released details on an upcoming Common Core event hosted by FRC and featuring some of the key players in this national discussion.

Press Release: Courts Will Not Have Final Say on Marriage

by FRC Media Office

June 25, 2014

WASHINGTON, D.C.- Family Research Council (FRC) President Tony Perkins released the following statement in response to two rulings today - one being a two-to-one ruling from a 10th Circuit Court of Appeals panel striking down Utah’s marriage amendment and another one from a federal judge striking down Indiana’s Defense of Marriage Act:

While disturbing, today’s rulings come as no surprise given the rising disdain for the rule of law promoted by the Obama administration. These latest rulings are not just about redefining marriage but they are a further attempt by the courts to untether our public policies from the democratic process, as well as the anthropological record.

While judges can, by judicial fiat, declare same-sex ‘marriage’ legal, they will never be able to make it right.  The courts, for all their power, can’t overturn natural law. What they can do is incite a movement of indignant Americans, who are tired of seeing the foundations of a free and just society destroyed by a handful of black-robed tyrants. The Left has long believed packing the federal courts with liberal jurists is the means of fulfilling a radical social agenda, as the American people refuse to endorse that agenda at the polls or through their elected representatives.

As we saw with Roe v. Wade in 1973 - despite the Left’s earnest hopes, the courts do not have the final say. The American people will have the final word as they experience the consequences of marriage redefinition and the ways in which it fundamentally alters America’s moral, cultural and political landscape,” concluded Perkins.

Three Reasons Why It Is Wrong to Assume the Supreme Court Will Redefine Marriage

by Peter Sprigg

June 25, 2014

Two more federal courts have now ruled that the natural definition of marriage as the union of one man and one woman violates the U.S. Constitution—a District Court in Indiana, and the U.S. Court of Appeals for the Tenth Circuit in a case out of Utah.

There is a growing consensus among the liberal elites that it is “inevitable” that the U. S. Supreme Court will eventually declare a constitutional “right” to marry someone of the same sex. Here are three quick reasons to believe they are wrong:

1) The Court was already asked to declare such a right last year—and it refused. The supposed legal superstars Ted Olson and David Boies teamed up to challenge California’s Proposition 8 before the Supreme Court—but that case, Hollingsworth v. Perry, ended with a whimper instead of a bang. The Court issued a narrow technical ruling that the proponents of Proposition 8 did not have legal standing to defend it in Court in place of state officials, who refused to do so. This ruling had the end result of allowing same-sex “marriages” to resume in California, but it established no precedent at all.

If it were clear to a majority of the Court that the U.S. Constitution requires states to allow same-sex “marriages,” it would have been easy enough to declare as much last year. The fact that they did not may indicate at least some reluctance to do so.

2) In the case of U.S. v. Windsor, the Supreme Court did strike down the federal definition of marriage as the union of a man and a woman in the federal Defense of Marriage Act (DOMA). However, that decision was based largely on DOMA’s deviation from the tradition of the federal government deferring to state definitions of marriage. That same tradition would suggest that the Court should allow states to continue defining marriage as they choose.

3) When the current flurry of federal court decisions redefining marriage began last year, several of the lower courts involved refused to even issue a stay of their ruling pending appeal. However, the Supreme Court did issue such stays—suggesting that they are not in nearly so much of a rush to get same-sex couples to the altar or the justice of the peace as other judges are.

I’m not making bets or even predictions as to what the Supreme Court will do if and when one of these new cases reaches them. The court has issued bad, unjustified, unprecedented decisions before. I am just pointing out that there is reasonable evidence to suggest that the Court is not eager to overturn the very constitutions of a majority of these United States.

Washington Watch Interview on Nigeria & Boko Haram

by FRC Media Office

June 24, 2014

On Friday’s edition of “Washington Watch with Tony Perkins,” Congressman Louie Gohmert (R-Texas) guest hosted for Tony and had a very special guest on the program. Referred to as “Marie” during the interview because revealing her true identity could put her in great danger, she is one of the most important influencers on the ground in Nigeria. Marie is working to secure the rescue, and subsequent restoration, of the nearly 300 Nigerian schoolgirls captured by Boko Haram two months ago. She is working with the captured girls’ mothers and with several of the girls who have escaped from Boko Haram’s custody in order to raise awareness of the situation and to call the Nigerian government to act on behalf of the innocent girls. Join FRC in praying for Marie and for this deplorable situation in Nigeria. Take a moment to listen to Congressman Gohmert’s fascinating interview with Marie here.

Sudan must redress Meriam’s new plight along with its legal system, which is already leading to other apostasy charges

by Travis Weber

June 24, 2014

Just when it looked like Sudanese mother Meriam Ibrahim and her two children would finally be free from the grip of injustice, they were snatched back into the clutches of the Sudanese authorities, who detained them when they arrived at an airport to leave Sudan today. Though it’s unclear on what basis they are being detained, we call on Sudan to immediately release Meriam and her children. In addition, the United States government, specifically Secretary of State Kerry and the U.S. Embassy in Khartoum – must pursue high level engagement on Meriam’s case. Sudan needs to know that the United States and its high level officials are watching whether Sudan pursues justice or regresses backwards into permitting the unjust detention of Meriam and her children to occur once again.

Yesterday, in a heartening turn of events, a Sudanese appeals court overturned a lower court ruling in which Meriam had been sentenced to death for apostasy and 100 lashes for adultery. According to Sudan’s official SUNA news agency (as reported by the Independent), “The appeal court ordered the release of Mariam Yahya and the cancellation of the (previous) court ruling.”

This was certainly a good bit of news, as numerous human rights organizations and governments had pressured Sudan and called on the ruling to be reversed. The U.S. government had been slow to respond, however, only recently issuing statements bearing on the matter. Numerous groups had spoken and petitioned on Meriam’s case, including the Family Research Council. And in Sudan, Meriam’s attorneys had filed appeals and vowed to fight to the end.

It is important to note that the Sudanese court ordering Meriam’s release got this issue right. Yet her re-arrest appears arbitrary – no basis for her detention has been offered – and it will be increasingly harmful to Sudan’s relations with the United States and the other countries outraged by the original charges against Meriam. Moreover, in the eyes of the many of the activists and NGOs which have spoken out on her case, Sudan’s reputation as a just and reasonable country will continue to degrade until it safely releases this family and allows them safe passage out of the country. 

Many have made their voices heard around the world on Meriam’s case. In addition, however, voices within Sudan have made it known that they wanted justice for Meriam too. Here, Muslim men (Meriam’s Sudanese attorneys) are defending a Christian woman (Meriam) in her quest for justice. These attorneys strongly believe in her case, and despite receiving death threats for defending a Christian, they vowed to fight to the end and exhaust all appeals. Furthermore, other Muslims in Sudan have been demonstrating on Meriam’s behalf.

While her attorneys and others in Sudan were on her side, not everyone was happy with Meriam’s freedom. When she was released, Meriam had to go into hiding due to threats against her life. Now, as she is trying to leave the country along with her family, she is being detained by Sudanese national security forces for an unknown reason. We call on Sudan to immediately release Meriam in accordance with the court order overturning her conviction and sentence. In addition, Secretary of State Kerry and the U.S. Embassy in Sudan must pursue high level engagement on Meriam’s case. Sudan needs to know that the United States and its high level officials are watching whether Sudan pursues justice or regresses backwards into permitting the unjust detention of Meriam and her children to occur once again. Sudan is close to bringing justice to Meriam, and must not fail her now.

We have witnessed Meriam’s attorneys and the protesting crowds expressing their support for Sudan to take ownership of this issue and be ready to handle religious freedom challenges when they inevitably arise in the future, for this issue is not going away. Indeed, it has already shown itself again: On April 2, 2014, Sudanese police arrested Faiza Abdalla near Sudan’s eastern border. Though details are scant, it appears that Abdalla, whose parents converted to evangelical Christianity before her birth and raised her in the same faith, was arrested because she has a Muslim name and yet professed Christianity. Her Catholic husband fled Sudan two years ago because of persecution, Morning Star News reported. As in the case of Meriam Ibrahim, Sudanese officials voided her marriage and accused her of apostasy when she refused to deny Christianity.[1]

There is no reason for these cases to recur—Sudan’s apostasy laws are inconsistent in light of the commitments it has made under its Constitution and international agreements, and must be repealed. Sudan’s 2005 Interim Constitution states that the government “shall respect the religious rights to … worship or assemble in connection with any religion or belief and to establish and maintain places for these purposes.”[2] Article 18 of the International Covenant on Civil and Political Rights, to which Sudan is a party, states: “[e]veryone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.”[3] The African Charter on Human and Peoples’ Rights states, to which Sudan is a party, states that the “[f]reedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.”[4]

 

Sudan’s apostasy laws are in conflict and inconsistent with these legal authorities, which provide a religious freedom that includes the freedom to choose one’s beliefs. Sudan has given its word and agreed to abide by these sources of authoritative law, and yet the apostasy laws under which Meriam was jailed and Faiza is detained are still being used to work injustice in Sudan. As a matter of integrity for the Sudanese nation and its legal system, and to avoid ongoing and future injustices like Meriam’s and Faiza’s, Sudan must repeal its apostasy laws.



[1] 2nd Sudanese Woman Jailed for Her Faith, Baptist Press, May 28, 2014, http://www.bpnews.net/printerfriendly.asp?id=42656.

[2] 2005 Interim National Constitution of the Republic of Sudan, art. 6.

[3] International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), art. 18, 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976 [hereinafter ICCPR].

[4] Organization for African Unity, African Charter on Human and Peoples’ Rights, art. 8, June 27, 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982).

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