FRC Blog

Good But Not Great: Don’t Be Fooled by the Masterpiece Decision

by Andrew Rock

June 12, 2018

While it is wonderful that the Supreme Court gave Jack Phillips long-overdue justice in Masterpiece Cakeshop v. Colorado, the battle for religious liberty is far from over. The Court only held that the Colorado Civil Rights Commission’s obvious bias against Phillips violated his right to a neutral decision maker. This means that future cases could undermine religious liberty so long as the decision makers appear neutral. What we need is a decision or a law that explicitly protects business owners like Jack Phillips, or better still, a repeal of misguided laws passed under the guise of “antidiscrimination.”

Jack Phillips runs Masterpiece Cakeshop in Colorado, and in 2012, he refused to create a cake for the wedding of a same-sex couple. The couple complained to the Colorado Civil Rights Commission, who sent the case to an Administrative Law Judge, who in turn found that Phillips had broken Colorado’s civil rights laws. The Supreme Court held that the Commission had violated Phillips’ rights under the First Amendment due to their blatant anti-faith bias.

The Commission brusquely dismissed Phillips’ arguments that his faith precluded him from endorsing a same-sex wedding without thoughtfully addressing their substance or nuance. One commission member went so far as to compare Phillips’ arguments for religious liberty to those of slave owners and people complicit in the Holocaust. In addition, the Commission granted exemptions to bakers who refused to bake cakes with Bible verses opposing homosexual behavior, holding that this was not unlawful discrimination. The Court held that the flagrant anti-faith bias shown in the Commission’s comments and decision-making invalidated its judgment in Phillips’ case, because the First Amendment requires the government to remain neutral on religious issues.

While it is good that the Court rebuked this blatant abuse of power, this decision does not bode well for future religious liberty cases. The Court merely held that someone like Phillips has the right to a hearing before a neutral decision maker, and if this occurs, outcomes in such cases “may well be different going forward.”

This means that the next case could go poorly for a Christian business owner, provided that the deciding body maintains a pretense of neutrality. If a court or commission can restrain themselves enough to avoid comparing ordinary Christians to slave-owners and Nazis, and then finds that their freedom of conscience subjects “gay persons to indignities,” (which is vague and subjective enough to mean just about anything), they could easily punish someone for refusing to participate in a same-sex wedding through cake or floral design, photography, or other creative service. This is poor precedent, as it leaves Christian businesses vulnerable to biased decisions by courts and commissions sly enough to conceal their prejudice when they apply laws such as Colorado’s.

Since a court that appears neutral could easily use these “antidiscrimination” laws to punish Christians who follow their conscience, religious freedom rights must be clarified in the context of these laws. Better yet, given the constant abuse of laws like Colorado’s to target anyone who disagrees with the politically correct orthodoxy, it would make sense to repeal them and avoid the problem entirely.

Jack Phillips received well-deserved relief in this case, and there is now clear precedent against open bias on the part of courts and commissions in similar instances. However, there is still an enormous risk that decision makers will simply stay quiet about their anti-Christian biases and continue to produce biased and skewed decisions based on current “antidiscrimination” laws. This means that we need to either craft protections in the context of these laws or repeal them outright.

Andrew Rock is a law student and an intern at Family Research Council.

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Warning to Northern Ireland: Science Without Faith is Dead

by Patrina Mosley

June 11, 2018

On May 25th, the world turned its eyes to Ireland for a historic vote. For the first time ever, a nation’s populace democratically voted to take away protections of the God-given right to life of unborn children, which had been established in Irish law since 1861. Now the pressure is upon Northern Ireland to do the same—members of Parliament have called for an emergency debate to decriminalize abortion.

Although Northern Ireland is a part of the United Kingdom, where abortion was legalized under The Abortion Act of 1967, that Act has not been extended to Northern Ireland as it has maintained its respect for life under their Offences Against the Person Act 1861. Opponents are seeking to repeal articles 58 and 59 of the Act which makes it a crime for any man or woman to procure or cause an abortion. This Act also covers other crimes such as “conspiracy to commit murder, manslaughter, assault and child abduction.”

Here’s what I would warn Northern Ireland about in the debate:

It’s hard to ignore the irony here—having a debate about whether a person should have a right to life as protected under the Offences Against the Person Act. What could possibly be more offensive to a person than killing them?

Abortion is not a “right” but a crime against humanity and denies what we already know in our natural consciences. Abortion is not “progress” as some have held in praise towards Ireland’s vote. Abortion is not a “woman’s right.” It is not “women’s healthcare.” Nor is it about “ women’s dignity,” as some have claimed. Abortion is the taking of innocent life for the convenience of another. There is no dignity in that.

Abortion does not make women’s lives better; it is often done because they don’t feel empowered to care for the child by their partners, parents, or community. Countless women have shared their experiences of how abortion has not made their lives better but only complicated it. Thousands of testimonies (see here and here), many anonymous, have been written by women who are left with the devastating psychological and emotional effects of abortion.

Emotional personal testimonies of women who had abortions due to physical ailments were shared during the debate, but according to the U.K.’s abortion statistics, less than one percent of abortions occur to save the life or health of the mother. Northern Ireland already has protections for instances like these when the physical or mental health or well-being of the mother is at risk. We should not use rare cases to justify the demand for the convenience of abortion.

Abortion is not progress, but instead permission to start a culture of death. Make no mistake, the legalization of abortion in the Western world has opened the door to the legalization of assisted suicide, the elimination of the weak or disabled in society, and so much more. It corrupts the value of life in all facets of society—look no further than the rampart mass shootings we’ve endured.

According to a recent Pew Research report, nearly 80 percent of Irish adults identify as Christians, but church attendance rates have decreased from 54 percent in 2002 to 36 percent in 2017. What Ireland has shown us is that a society can have all the facts and science in the world, but without faith, there is no moral compass. Anything goes. It would appear that science without faith is dead.

In the words of Alexis de Tocqueville: “Liberty cannot be established without morality, nor morality without faith.” Northern Ireland, do not be deceived. I say it again, a disregard for life is not progress, but merely permission to start a culture of death.

More information on U.K. abortion statistics.

Keep up with live updates on the Northern Ireland abortion debate.

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Masterpiece Cakeshop: How Can a 7-2 Supreme Court Decision Be “Narrow?”

by Peter Sprigg

June 8, 2018

On June 4, the U.S. Supreme Court overturned a decision by the Colorado Civil Rights Commission (upheld by Colorado courts) that had found baker Jack Phillips of Masterpiece Cakeshop guilty of unlawful discrimination for declining to make a wedding cake for a same-sex couple. The vote was 7-2—that is, seven justices voted to overturn the Colorado decision, while only two voted to uphold it.

The New York Times’ online story about the ruling carried the headline, “In Narrow Decision, Supreme Court Sides With Baker Who Turned Away Gay Couple.” The Washington Post editorialized, “The Supreme Court’s narrow ruling on a wedding cake is a step in the right direction.”

Subsequently, I noticed some people on social media (especially conservative friends) grousing about the description of the 7-2 decision as “narrow,” as though the liberal media was trying to downplay Jack Phillips’ decisive victory. So I thought I would offer a short explanation.

Masterpiece Cakeshop is being described as a “narrow” ruling not because of its margin, but because of its reasoning. Neither side in the case got everything that it wanted.

Those supporting Colorado, and supporting Charlie Craig and Dave Mullins (the same-sex couple who had requested a cake from Phillips), wanted a broad ruling that 1) Phillips violated Colorado’s Anti-Discrimination Act by discriminating against the couple on the basis of “sexual orientation; and 2) that no claim of religious freedom or free speech can excuse that statutory violation by a business that qualifies as a “public accommodation.” In the end, only two justices (Ruth Bader Ginsburg, with Sonia Sotomayor joining her in dissent) adopted that view and considered it decisive.

Those supporting the baker Phillips, on the other hand, wanted a broad ruling that his rights to freedom of speech and the free exercise of religion, because they are fundamental rights under the U.S. Constitution, must take precedence over the statutory provisions of Colorado law. Yet the Court’s ruling in favor of the free exercise claim was a narrow one, and only two justices expressed support for the free speech claim as well (Clarence Thomas, with Neil Gorsuch joining his concurrence in the judgment).

(I should note as well that some key elements of the case remained in dispute. Phillips’ attorneys questioned whether the Anti-Discrimination Act even applied, arguing that Phillips did not, in fact, “discriminate” on the basis of “sexual orientation” at all, because he was happy to serve self-identified gay customers with products other than a wedding cake. Colorado’s attorneys questioned whether the First Amendment even applied, arguing that baking a cake cannot be considered a form of “speech” at all.)

Instead of clearly explaining that Jack Phillips’ has robust constitutional rights regarding the cakes he designs, the majority opinion found that the Colorado Civil Rights Commission simply didn’t behave well enough in this case, due to: (1) the hostility aimed specifically at his religious beliefs (evidenced in comments of the Commission), and (2) the different treatment the Commission gave a parallel case (one in which the Commission allowed bakeries to refuse to make cakes criticizing same-sex marriage). It was only because the Commission exhibited anti-religious bias in its proceedings against Jack Phillips that the Supreme Court threw out its ruling, on free exercise grounds. Justice Gorsuch also wrote a strong concurrence, joined by Justice Alito, elaborating on the strength of the free exercise claim here.

Although they joined the majority opinion, Justices Kagan and Breyer additionally wrote a concurrence explaining that their lukewarm support for Phillips was only based on the fact that he was treated really badly by members of the Commission in this case. They argued that the disparate treatment between the two bakery cases could have been justified, were it not for the overt anti-religious hostility exhibited by the Commission.

Justices Kennedy and Roberts—in writing and joining only the majority opinion, respectively—ruled in favor of Phillips, but not on the basis of a sweeping affirmation of his freedom of speech or of religion.

A definitive Supreme Court precedent, resolving the underlying dispute between “non-discrimination” principles and freedom of speech and religion, will have to await another case and another decision. That is why many are calling Masterpiece a “narrow” decision.

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Politically Motivated Research Underestimates Risk of Suicide After Abortion

by Martha Shuping

June 8, 2018

A study published recently in the American Journal of Psychiatry online claims that abortion does not increase the risk of suicide. If only that were true. The study by M. Antonia Biggs and colleagues (which I will refer to as “the Biggs study”) used data from the University of California San Francisco’s Turnaway Study. But the results are very questionable because they are inconsistent with many other studies, and the final results of this study are based on only 18 percent of the original sample.

The Turnaway Study was intended to provide a comparison between women who aborted and those unable to obtain an abortion due to waiting to come to the clinic until the pregnancy was too advanced (past the limits for the clinic chosen, or for their state). But only 38 percent of eligible women consented to participate in the research, with 15 percent of those dropping out before the first interview (see study). With further dropouts over the five years of the study, only 18 percent of the original sample remained—even though women received a $50 gift certificate for each telephone interview (see study).

The low participation rate and the additional dropouts make the results questionable, because it is well known that the most distressed individuals are more likely to avoid participating. This has been reported in research on abortion and other reproductive losses, and in more general trauma research.*

The Biggs study concluded that rates of suicidal ideation were comparably low in women who obtained abortions and those who were refused abortions. The authors further conclude that their results show that state laws requiring informed consent about suicide risk should be scrapped as unnecessary. But we lack information on 82 percent of the women who either declined to participate or dropped out. The results may be meaningless if those women included those who were most distressed.

In addition, the Biggs study contradicts a large body of research on suicide and abortion. A study from Finland published in the British Medical Journal linked medical records to death certificates, showing that women having abortions had a 650 percent increased risk of suicide compared to women who gave birth.

One of the highest quality studies of abortion and mental health was done by Donald Sullins of the Catholic University of America in 2016 using data from The National Longitudinal Study of Adolescent to Adult Health (“Add Health”) which was funded by 18 different federal agencies and which provided a nationally representative sample of 8,005 women, with 81 percent of the sample completing this 13-year longitudinal study. In his analysis, Sullins controlled for 13 different potential confounders, and showed increased suicidal ideation in the women who had abortions compared to those who completed pregnancies. In addition, Sullins showed that women having abortions had increased risk for a total of seven different mental health outcomes. The results were statistically significant.

The Biggs study is an outlier, giving results that are very different from the results of a number of high quality studies of suicide risk and abortion. The truth is, we have the words of actual women who have attempted or completed suicide. The British artist Emma Beck said in her 2007 suicide note: “I told everyone I didn’t want to do it, even at the hospital … now it is too late … I want to be with my babies.” The authors of the Biggs study show their political bias in their conclusion that women like Beck have no need to be warned about suicide risk before their abortion.

Martha Shuping, M.D., is a practicing psychiatrist who lives in Winston-Salem, N.C.

 

*Broen, A.N., Moum, T., Bødtker, A.S., & Ekeberg, Ø. (2005). The course of mental health after miscarriage and induced abortion: a longitudinal, five-year follow-up study. BMC Medicine, 3,18. doi: 10.1186/1741-7015-3-18. Retrieved from http://www.biomedcentral.com/1741-7015/3/18   

Shuping, M. (2016). Counterpoint: Long-lasting distress after abortion. In R. MacNair (Ed.), Peace Psychology Perspectives on Abortion. Kansas City: Feminism and Nonviolence Studies Association.

Weisaeth, L. (1989). Importance of high response rates in traumatic stress research. Acta Psychiatrica Scandinavica Supplementum, 355, 131-137.

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Masterpiece Cakeshop: Summary of Each Supreme Court Opinion

by Peter Sprigg

June 7, 2018

In the U.S. Supreme Court’s decision in the Masterpiece Cakeshop case, finding by a 7-2 vote in favor of a baker who had declined to create a wedding cake for a same-sex wedding, there were five separate opinions written.

Here, I offer a brief summary (not a detailed legal analysis) of what each of these opinions contained. (For more, see this blog post by FRC’s Travis Weber.) In the five opinions:

  1. Justice Anthony Kennedy wrote for the Court, joined by Chief Justice John Roberts, Justice Stephen Breyer, Justice Samuel Alito, Justice Elena Kagan, and Justice Neil Gorsuch (six Justices; Justice Clarence Thomas wrote separately “concurring in part and concurring in the judgment,” but did not join the Court’s opinion);
  2. Justice Kagan wrote a concurrence which Justice Breyer joined;
  3. Justice Gorsuch wrote a concurrence which Justice Alito joined;
  4. Justice Thomas wrote an opinion “concurring in part and concurring in the judgment,” with which Justice Gorsuch joined;
  5. Justice Ruth Bader Ginsburg wrote in dissent, joined by Justice Sonia Sotomayor.

Here’s an overview of each opinion:

Kennedy for the Court (joined by Roberts, Breyer, Alito, Kagan, and Gorsuch):

Justice Kennedy ruled in favor of Masterpiece because “the Colorado Civil Rights Commission’s consideration of this case was inconsistent with the State’s obligation of religious neutrality.” He found this for two reasons:

  1. Comments made by members of the Commission in the course of its hearings, especially one notorious quote:

    “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”

    Kennedy noted that this statement disparages religion “in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere.”

  2. The difference in treatment between Phillips’ case and the cases of other bakers, who had refused to bake cakes communicating negative religious messages about same-sex marriage, but were found not to have discriminated against the customer (William Jack) on the basis of religion. He notes inconsistency in how the free speech claims were treated, but most notably in how the conscience objections were viewed, with the Commission accepting the secular objection to making anti-SSM cakes “because of the offensive nature of the requested message,” but rejecting Phillips’ religious objection to making a same-sex wedding cake. Kennedy says, “[I]t is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive,” yet the Colorado decision “elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips’ religious beliefs.”

Kagan concurring, with Breyer joining:

This short opinion (a little over three pages) concurs in the judgment—but goes out of its way to say that Colorado could have made a legitimate distinction between the Masterpiece case and the three cases of William Jack (who was refused cakes expressing opposition to same-sex marriage, but was not deemed a victim of discrimination). Kagan says explicitly that Jack Phillips of Masterpiece was guilty of discrimination:

Phillips sells wedding cakes. As to that product, he unlawfully discriminates: He sells it to opposite-sex but not to same-sex couples. And on that basis—which has nothing to do with Phillips’ religious beliefs—Colorado could have distinguished Phillips from the bakers in the Jack cases, who did not engage in any prohibited discrimination.

However, she concurs because the State’s decisions must not be “infected by religious hostility or bias”—as in this case.

Gorsuch concurring, with Alito joining:

Gorsuch focused in specifically on the disparate treatment of the Masterpiece case as opposed to the three William Jack cases involving refusal to bake cakes opposing same-sex marriage. In contrast to both the Ginsburg/Sotomayor dissent and the narrow Kagan/Breyer concurrence, Gorsuch argued that there was a very close correspondence between the facts of the cases, saying that “the two cases share all legally salient features”:

  • bakers refused services to persons who bore a statutorily protected trait (religious faith or sexual orientation)”
  • they would not sell the requested cakes to anyone, while they would sell other cakes to members of the protected class (as well as to anyone else)”
  • the bakers in the first case [William Jack] were generally happy to sell to persons of faith, just as the baker in the second case [Jack Phillips/Masterpiece] was generally happy to sell to gay persons.”

Gorsuch concludes that “the Commission failed to act neutrally by applying a consistent legal rule,” and warns that “the one thing it can’t do is apply a more generous legal test to secular objections than religious ones.” In contrast to the four liberals, Gorsuch states explicitly that “the Commission must afford him [Jack Phillips/Masterpiece] the same result it afforded the bakers in Mr. Jack’s case.”

Thomas, “concurring in part and concurring in the judgment,” Gorsuch joining:

To me, one of the most notable facts of the decision is that at oral arguments, the ADF attorneys representing Masterpiece put their emphasis on arguments resting on First Amendment Free Speech grounds (not Free Exercise of Religion). They emphasized that designing custom wedding cakes is a form of artistic expression and therefore, requiring they be provided for same-sex weddings is an unconstitutional form of “compelled speech” by the government. This, however, turned out not to be the primary issue addressed by the court, which instead decided there was a Free Exercise violation because of the lack of religious neutrality.

Justice Thomas’ opinion was the only one that addressed the Free Speech issues at length. He acknowledges that the issue here is “expressive conduct” rather than pure speech as such, but says under Court precedents, “Once a court concludes that conduct is expressive, the Constitution limits the government’s authority to restrict or compel it.” He says that in this case, “Phillips’ creation of custom wedding cakes is expressive,” and concludes the following:

Forcing Phillips to make custom wedding cakes for same-sex marriages requires him to, at the very least, acknowledge that same-sex weddings are “weddings” and suggest that they should be celebrated—the precise message he believes his faith forbids.

Although declining to decide whether Colorado’s law satisfies “strict scrutiny,” Thomas warns, “States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified.”

Ginsburg dissenting, Sotomayor joining:

Like the Gorsuch/Alito concurrence, the Ginsburg/Sotomayor dissent focused specifically on the differing results given by the Colorado Civil Rights Commission in the case involving Jack Phillips and Masterpiece Cakeshop (where refusing to provide the cake requested by the customer was found to be illegal discrimination) as opposed to the cases involving customer William Jack (where refusing to provide the cakes requested by the customer was found not to be illegal discrimination). However, Justice Ginsburg reaches the exact opposite conclusion from that of Justice Gorsuch.

Ginsburg and Sotomayor agreed with their liberal colleagues Justices Kagan and Breyer in saying that the cases could be legitimately distinguished, but disagreed with the latter pair’s conclusion that anti-religious bias had impermissibly “infected” Colorado’s adjudication of the cases. Ginsburg writes:

The different outcomes the Court features do not evidence hostility to religion of the kind we have previously held to signal a free-exercise violation, nor do the comments by one or two members of one of the four decisionmaking entities considering this case justify reversing the judgment below. 

Commentary

The problem I see with the dissent is this statement (which was repeated, in various ways, several times): “Phillips did … discriminate because of sexual orientation; the other bakers did not discriminate because of religious belief.” Ginsburg argues that Phillips’ refusal of a same-sex wedding cake was “determined solely by the identity of the customer” whereas the refusal of William Jack’s request “was due to the demeaning message” he wanted displayed.

Since Phillips regularly serves customers who identify as gay (but would refuse a cake to celebrate a same-sex wedding regardless of who requests it), the first conclusion is questionable. The latter conclusion, however, is nothing short of astonishing. What Ginsburg calls a “demeaning message” may have been crude (including, among other things, “an image of two groomsmen, holding hands, with a red ‘X’ over the image”), but combined with biblical verses and quotations, its essential content was that 1) homosexual conduct is sinful, and 2) God does not approve of same-sex sexual relationships or consider them to be “marriage.” I fail to see how this “message” (however “demeaning” some may find it) can be seen as not representing a “religious belief.”

Note that this is not to say that the solution would be to force bakers to make cakes with messages they consider “demeaning,” as well as forcing them to make cakes for same-sex weddings. Instead, the opposite would be ideal. Baking cakes, whether to celebrate a specific event such as a same-sex wedding or to condemn that concept, is a form of expressive conduct that should not be compelled by the government. Even if Colorado believes that its Anti-Discrimination Act was violated, the provisions of this state statute cannot be allowed to override the bakers’ fundamental right to free speech under the U.S. Constitution.

No baker should be forced to communicate a message with which he or she disagrees. Although Jack Phillips prevailed in the Masterpiece Cakeshop case, the ruling does not clearly apply the Court’s compelled speech precedents to that context. The debate continues.

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The Ethical Imperative of Adult Stem Cell Research

by Hannah Borchers

June 6, 2018

On June 15th of 2017, a bill cited as the “Patients First Act” (H.R.2918) was introduced by Rep. Jim Banks (R-Ind.) and Rep. Dan Lipinski (D-Ill.). As FRC has stated: “This [bill] not only reinforces our belief that all life is sacred and should be protected, but it will also allow the NIH to prioritize non-embryonic stem cell research that has been proven to have the greatest benefits for treating disease.” The bill seeks to intensify stem cell research and improve the understanding of treatment while protecting the dignity of life. Strictly referencing the National Institutes of Health’s annual budget, the bill would continue to fund and encourage stem cell studies with ethically obtained stems cells.

The stem cell battle has been waging since the 1980’s as research regarding both human embryonic stem cells and adult stem cells has advanced. However, despite the great success of adult stem cell research (ASCR) and its continual increase in funding, the push for human embryonic stem cell research (hESCR) has remained. The success of hESCR is often touted by proponents, but the lack of funding due to its inability to produce successful therapies for patients does not match these statements. In fact, funding for non-human embryonic stem cell research has more than doubled that of hESCR for years.

The largest issue with hESCR is the ethical procedures of obtaining human cells. While many scientists have clearly stated that human embryos are not considered lives, the language used by hESCR proponents seems to contradict this notion. In NIH’s brief overview of hESCR, they specifically state that embryonic stem cells “are not derived from eggs fertilized in a woman’s body.” This statement may seem like a simple explanation of experimental procedure, but the fact that NIH felt the need to address the location of fertilization as an ethical clarification already hints that they know full well of the ethical dilemma at stake. Even in the realm of science, NIH is admitting that there is something wrong with experimenting on an egg fertilized in a woman’s womb. Still, lab fertilization should not be the solution.

The solution is not that we should remove stem cell research from the agenda of scientific advancement, but rather that it be done in a way that respects all ethical boundaries. There are other ethical options within the realm of stem cell research—the growth and success of ASCR being evidence of this. The Charlotte Lozier Institute published a factsheet pointing out that “effective, economical, and ethical alternatives to embryonic stem cell research exist. Adult stem cells are the gold standard for stem cell treatment, having been used to help over one million patients worldwide.” While proponents of hESCR claim that it is more cost effective and accessible, the scientific community and the people need to decide if ease of access is going to be the deciding factor in medical research.

NIH’s mission is to “exemplify and promote the highest level of scientific integrity, public accountability, and social responsibility in the conduct of science,” all with the intention of serving patients and people. However, the core of hESCR ignores this very goal. The Patients First Act not only calls science to pursue excellence, but also calls the research field to protect human embryonic life while at the same time seek to save the lives of patients. It asks science to put “patients first” by pursuing both excellence and integrity.

For more on the Patients First Act, be sure to view FRC’s Speaker Series event with Rep. Jim Banks as he discusses the bipartisan bill he introduced.

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Supreme Court Protects Jack Phillips’ Rights, Tells Colorado: “Not So Fast”

by Travis Weber

June 4, 2018

The Supreme Court’s much-awaited decision in the “wedding vendor” case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, was announced this morning. Ruling narrowly for Jack Phillips, owner of the bakery at issue, the Court focused squarely on the fact that the state of Colorado did not treat Phillips with “neutrality,” but rather “hostility,” due to the religious beliefs underlying his claims. Thus, the Court concluded, the state violated the Free Exercise Clause of the First Amendment—which prohibits the government from singling out, targeting, and discriminating against religion.

The Court featured two primary bases for this determination. First, the “Civil Rights Commission’s treatment of [Phillips’] case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection” to creating a same-sex wedding cake. Comparing him to a slave owner and Holocaust perpetrator (a comparison which was never objected to or disavowed in all the time leading up to the Court’s ruling), the Commission clearly disparaged Phillips’ beliefs in two ways: by calling them “despicable, and also by characterizing [them] as merely rhetori­cal—something insubstantial and even insincere.” Moreover, the commissioners who ruled on his case “endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community.” These “inappro­priate and dismissive comments” showed a “lack of due consideration for Phillips’ free exercise rights and the dilemma he faced.”

Second, the fact that Colorado treated other bakers (who were asked to make a cake condemning same-sex marriage and declined because the message was “offensive”) differently constituted further evidence of the state’s animus against Phillips’ beliefs. “A principled rationale for the difference in treatment of these two instances cannot be based on the government’s own assessment of offensiveness. Just as ‘no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,’ West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943), it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive. See Matal v. Tam, 582 U. S. ___, ___–___ (2017) (opinion of ALITO, J.) (slip op., at 22–23). The Colorado court’s at­tempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips’ religious beliefs.” It was on these two grounds that seven members of the Court concluded that the state of Colorado treated Jack Phillips harshly because of his religious beliefs.

Harkening back to another Justice Kennedy free exercise opinion from decades ago, Church of Lukumi Babalu Aye v. City of Hialeah, the Court elaborated upon principles that the government cannot single out and target religious beliefs for disfavored treatment. And though it went unmentioned in the Masterpiece opinion, the Court’s ruling in Trinity Lutheran Church v. Comer—holding that the government may not disfavor religion in public grant programs—from just last term affirmed this principle.

While the Court clarified that anti-religious animus was unacceptable (protecting Phillips for now), and while today’s opinion will likely be cited favorably by other wedding vendors who’ve experienced religious bias or animus from government actors, the opinion left other questions unanswered—namely, how the Court will handle free speech claims in the context of sexual orientation nondiscrimination regulation, or free exercise claims in the same circumstances absent such animus. The Court wasn’t exactly clear on how these matters would be decided, noting that clergy are protected (this is beyond debate), but expressing uncertainty on the myriad other matters which have arisen in the last few years as religious beliefs come into conflict with newly-mandated government requirements regarding same-sex marriage. In essence, the Court kicked that can down the road for another day.

While the majority opinion produced a good result, some of the real meat was in the concurrences. Justice Gorsuch penned a concurrence (joined by Justice Alito) in which he offered a clear defense of free expression (this principle being especially important when the expression is unpopular) and a clear explanation of what actually occurred here—Phillips had an objection to the message, not the messenger. As Phillips testified, “I will not design and create wedding cakes for a same-sex wedding regardless of the sexual orienta­tion of the customer” (emphasis mine). Justice Gorsuch made very clear that Phillips was objecting to the creative process, not how the customer identified.

Justice Thomas also concurred (joined by Justice Gorsuch), commenting in depth on the free speech protections he believed Phillips possessed. In doing so, he pointed out that the important free speech case Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston supported Phillips’ arguments, and noted that Rumsfeld v. Forum for Academic and Institutional Rights and PruneYard Shopping Center v. Robins were not applicable to scenarios like this (something I have argued separately), for they dealt with allowing other parties access to speech fora, not alterations to a party’s own message. Justice Thomas concludes:

In Obergefell, I warned that the Court’s decision would ‘inevitabl[y] … come into conflict’ with religious liberty, ‘as individuals … are confronted with demands to participate in and endorse civil marriages between same-sex couples.’ 576 U. S., at ___ (dissenting opinion) (slip op., at 15). This case proves that the conflict has already emerged. Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day. But, in future cases, the freedom of speech could be essential to preventing Obergefell from being used to ‘stamp out every vestige of dissent’ and ‘vilify Americans who are unwilling to assent to the new orthodoxy.’ Id., at ___ (ALITO, J., dissenting) (slip op., at 6). If that freedom is to maintain its vitality, reasoning like the Colorado Court of Appeals’ must be rejected.

The conclusion to his concurrence, describing all the First Amendment issues not resolved by today’s opinion (which really need a legislative remedy and not a judicial one), is also a fitting conclusion for us as we anticipate the many religious liberty cases surely to be confronted in the years ahead.

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Book Review: When Harry Became Sally: Responding to the Transgender Movement

by Hannah Borchers

May 22, 2018

The growth of the transgender movement has left many unanswered questions, but the media never seems to accurately represent both sides. In 2015, Family Research Council’s Peter Sprigg collaborated with Dale O’Leary to produce a comprehensive 42-page policy paper, “Understanding and Responding to the Transgender Movement.” Now, Ryan Anderson of the Heritage Foundation has provided an even more comprehensive treatment of the topic with a 251-page book. When Harry Became Sally is a fair and informed assessment of the transgender ideology written not to convert the activists, but rather to inform the average American that the implications of gender identity, gender fluidity, and transitioning may go beyond what we have been told by the media. In an engaging walkthrough of every aspect of this growing movement, Anderson makes it clear that we have much more to learn.

The stories of psychologists, biologists, and philosophers give the book more depth than any other response to the transgender movement thus far. In a crusade dominated by emotion and skewed statistics, it is refreshing to readdress the core meaning of male and female and the differences between the sexes. Anderson moves beyond statistics and engages with literature of both sides, seeking to give readers the tools to address this movement in an informed and persuasive way.

Even more moving are the testimonies of men and women who found “transitioning” was not the answer. Often squelched and silenced, the voices of these “detransitioners” are shared with no sense of bias, allowing raw experiences to do the talking and the readers to make their own conclusions.

When one looks at the dangers of gender transition and accompanying reckless treatment plans, it becomes clear that transgenderism is turning medicine into a playground with no rules. Anderson draws from the care plans of physicians and psychologists to give us the data our newspapers would never publish. He tells the stories of doctors ambushed for asking questions and children being given more authority than an average adult. Things are changing, medicine is being politicized, and children are becoming the choosers, even though all the research points in the opposite direction as the path to comprehensive health.

This deviates from the typical brash narratives of transgenderism. As Anderson makes clear, he is not seeking to destroy a movement, but to save lives. Never failing to speak with love, the author has given us one of the most systematic and sensitive approaches to gender identity. As we follow the different waves of feminism and philosophy, it is evident that this ideology had been percolating for years, but our society is only now coming to face the ramifications. His brilliant overview of policy shows that everyone is affected by this movement. While legislative bans and surgical operations seem like the simplest solution to our problem, they only put a Band-Aid on a very large wound and drive a wedge deeper into a cracked foundation.

With grace and humility, Anderson acknowledges that our society is not perfect. In fact, he admits that societal stereotypes greatly contribute to many distortions of gender identity. Anderson is not seeking to validate stereotypes, but to illuminate how complex the issue is. We have rushed to medical and political decisions that have radical implications, without truly understanding what we have done. Anderson asks us to think, not simply with our hearts, but with our heads.

Anderson’s main goal is to inform and encourage, reminding us that taking a position is not enough. There is still much to be done, still much to be explained, still much to be researched. In the meantime, we are doing irreparable damage and silencing voices, rather than empowering them. Anderson proves that we must hold on to the reality of humans being embodied as male or female, even while society diminishes the importance of human nature altogether. Our culture believes that breaking foundations is the only form of progress, but this will only destabilize the moral architecture of society.

Hannah Borchers is an intern at Family Research Council.

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Alfie Evans and the Continued Influence of the Eugenics Movement

by Arielle Del Turco

May 17, 2018

After winning a legal battle to take a toddler off life support against the wishes of his parents, a children’s hospital in the U.K. denied oxygen and nutrition to a sick child in their care for over 24 hours. Twenty-three-month-old Alfie Evans defied the expectations of his doctors and survived for five days. He died on April 28th.

What could make a hospital so determined to watch a toddler die? They claimed in court that it was in Alfie’s “best interest.”

Alfie Evans had a degenerative neurological condition which doctors were unable to definitively diagnose. All that Alfie’s parents wanted was the chance to transfer the child to a hospital in Italy that was willing to treat him. They wanted to explore treatment options before giving up on their child. The U.K. courts refused to let that happen. This shows that the courts did not simply think that Alfie was incapable of surviving due to his condition. It exposes the fact that the government believes in its ability to make life and death pronouncements for those requiring medical treatment.

This assertion that living isn’t in the “best interest” of someone who is ill or disabled might sound familiar from history class.

The American eugenics movement in the Progressive Era (1890’s-1920’s) wanted to create a socially advanced society by better “breeding.” To achieve this genetically superior population, advocates of eugenics had a simple solution. It was to intervene in the family life of those lacking “usefulness”—people viewed as unable to contribute to society, economically or otherwise. Eugenics policies sought to eliminate these people from society through forced sterilizations and marriage restrictions to prevent procreation by those deemed “socially inadequate.”

Eugenicists were confident they could manage human evolution to produce a more intelligent and productive population. Today, medical advances are making it easier to discover and abort unborn children with disabilities and other “unwanted” traits. As a result, the same ethical questions that surrounded the American eugenics movement remain relevant today.

In pursuit of a more “perfect” society, the United States forcibly sterilized more than 60,000 Americans, mostly from 1907 to the early 1940’s, all to reduce the number of disabled or otherwise “undesirable” members of society.

The disabled were a primary target of eugenicists. It was argued that their lives were of no use to society or to themselves. That’s a lot like saying it’s not in the “best interest” of an ill toddler to explore treatment options, but to die instead.

This is the essence of the brutality of the eugenics mindset. Hospitals are places intended for healing and recovery. Yet, they weren’t places for disabled patients to receive that kind of treatment in the Progressive era. Instead, they were places where physicians targeted the vulnerable.

To prevent the vision of the eugenics movement from becoming a reality, we must make sure no group of people become our contemporary “socially inadequate” class.

It can be comforting to think about the evil of eugenics as a problem buried in the distant past. Western culture is more enlightened and tolerant now, right?

Alfie Evans’ situation demonstrates that the West is not immune to the hate and condescension toward human life that was present in the eugenics movement of the Progressive Era.

The way a society treats its most vulnerable members speaks to its moral health. The American eugenics movement sought to rid society of the weak. Our response to situations like Alfie’s should be to affirm that every life is worth living, and that the value of a life is not determined by the financial hardships or inconveniences it might cause.

The government should not and cannot determine when life is worth living or when death is in someone’s “best interest.” All people have dignity as image bearers of God, who has granted us the right to live out the life He gave us.

All persons deserve to be protected by our laws and accepted into our families. Neither the government nor physicians have the moral authority to say otherwise.

Ronald Reagan often quipped, “A government big enough to give you everything you want is big enough to take it all away.” Alfie’s case shows just how true this is. The U.K.’s state-run National Health Service is big enough to grant health care to the entire population. We’re now finding out it is also powerful enough to deny that health care when they see fit.

Governments that hold this type of power will inevitably abuse it. George Santayana’s maxim that “those who don’t know history are doomed to repeat it” is dead right. Currently, the U.K.’s handling of Alfie Evans’ situation echoes the talking points of the eugenics movement. This should terrify us.

Arielle Del Turco graduated from Regent University in 2018.

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Social Conservative Review - May 16, 2018

by Daniel Hart

May 16, 2018

Dear Friends,

Bishop Robert Barron recently wrote a concise yet profound reflection on John 17:1-11. Here it is in full (emphasis mine):

Friends, Jesus’ prayer in today’s Gospel sums up his wonderful work as he is about to return to his Father. Jesus was, in his very person, the meeting of heaven and earth. God and humanity came together in him, and his entire ministry was the outward expression of that inward identity. By calling a scattered Israel to unity, inviting the poor to table fellowship, healing the sick in body and heart, and embodying the path of forgiveness and love, Jesus was bringing God’s will and purpose to earth.

Now, in his Passion and Death, Jesus brought heaven all the way down into the world. He carried the divine light into the darkest places of the human condition—hatred, cruelty, violence, corruption, stupidity, suffering, and death itself—and thereby transformed them. And the proof that heaven is able to transform earth is, of course, the Resurrection.

Now we know that cruelty, hatred, violence, fear, suffering, and death are not the most powerful forces in the world. Now we know that the divine love is more powerful. God’s kingdom has, in principle, broken the kingdoms of the world, which thrive upon, and in turn produce, those very negativities.”

This is a great reminder for believers to not be afraid of witnessing this divine love to those who do not believe. Christ has transformed even the worst thing that can possibly happen in life—death. We truly have nothing to fear.

Thank you for your prayers and for your continued support of FRC and the family.

Sincerely,

Dan Hart
Managing Editor for Publications
Family Research Council

 

FRC Media

One Year Later: The Impact of President Trump’s Executive Order Protecting Religious Liberty – Travis Weber

Fairfax County School Board to Teach Kids: “Biological Sex Is Meaningless” – Cathy Ruse

Remembering the Little Ones Up Above on Mother’s Day – Dan Hart

Sponsors of California’s AB 2943 Claim It Wouldn’t Ban the Bible. Maybe. But What About These Books? – Peter Sprigg

Death Panels” Are Now a Reality – Patrina Mosley

Speaker Series: NIFLA: Preserving Free Speech for Those Who Advocate for Women and the Unborn – Rep. Andy Harris (R-Md.)

Religious Liberty and National Security Go Hand in Hand

 

Religious Liberty

Religious Liberty in the Public Square

How a ‘Far-Left Propaganda Machine’ Got a Respected Legal Group Expelled by Amazon – Greg Scott, The Daily Signal

Study: Trump Religious Freedom Order Helps 13.7 Million Receive Health Care and Social Services – Tyler O’Neil, PJ Media

Tony Perkins appointed to US panel on international religious freedom – Jack Jenkins, Religion News Service

Catholic Marriage Counselor Fired Because of her Religious Beliefs – ToddStarnes.com

LGBT Activists Falsely Smear Those Protecting Children in Need – Monica Burke, The Daily Signal

Businesses to Avoid If You Can – Mark Bauerlein, First Things

5 Reasons The Southern Poverty Law Center Is A Hate-Mongering Scam – Joy Pullmann, The Federalist

Trump Religious Freedom Order Helps Charities Serve Over 13.7 Million in Need, Analysis Finds – Samuel Smith, The Christian Post

College demands student remove Jesus, Bible references from graduation speech. Then she fights back – Dave Urbanski, The Blaze

Fight over cross at Florida public park resumes before appeals court – Kim Chatelain, The Times-Picayune

International Religious Freedom

North Korea’s Prisoner Release: 3 Down, 119,997 to Go – Olivia Enos, The Daily Signal

Explosions at 3 Indonesian churches leave at least 2 dead: reports – Max Greenwood, The Hill

Arrested in Chengdu – June Cheng, WORLD

State Department knocks China over church harassment – Joel Gehrke, Washington Examiner

Military Religious Freedom

Lawmakers Say Army May Have Violated Law by Targeting Baptist Chaplain – ToddStarnes.com

 

Life

Abortion

Iowa legislature votes to ban abortions once a fetal heartbeat is detected – Nancy Flanders, Live Action

Planned Parenthood sues Iowa for banning abortion of babies with beating hearts – Claire Chretien, LifeSiteNews

New Device Lets Pregnant Moms Take Ultrasound Pictures of Their Baby on Their Phone – Micaiah Bilger, LifeNews

Thousands protest Trudeau’s abortion agenda at Canadian March for Life – Lianne Laurence, LifeSiteNews

I Had an Abortion. Here’s the Message I Want to Share With Other Women. – Victoria Robinson, The Daily Signal

Adoption

4 Things a Birth Mom Wants Adoptive Families To Know – Adrian Collins, Her View From Home

10 things that will kill your orphan care ministry: Part 4 – Rick Morton, Ethics & Religious Liberty

Commission

Will Placing Fewer Children in Foster Care Fix the System? – Naomi Schaefer Riley, Family Studies

The Ache While We Wait to Adopt – Caroline Saunders, Her View From Home

Bioethics

Judge Overturns California Law Legalizing Assisted Suicide – Steven Ertelt, LifeNews

 

Family

Marriage

Daily Rituals Cultivate Lasting Love – Amber Lapp, Family Studies

He’s My Husband, Not My Savior – Kelli Bachara, Her View From Home

Encouragement for New Moms – Alysse ElHage, Family Studies

Economics/Education

New Data Show California Kids’ Math Achievement Took A Nosedive After Common Core – Joy Pullmann, The Federalist

Why Employers Are Ignoring The Untapped Potential Of Stay-At-Home Moms – Joy Pullmann, The Federalist

This Is a Bad Look: In Current Farm Bill, Conservatives Prop Up Rich Farmers – Daren Bakst, The Daily Signal

Straight Talk About the Success Sequence, Marriage, and Poverty – W. Bradford Wilcox, Family Studies

Faith/Character/Culture

The War on Wisdom – Dennis Prager, The Daily Signal

You Can Pursue Your Dreams and Love Your Family – Katie Warner, National Catholic Register

The Democrats’ God Gap – David French, National Review

Nevada bank robber, FBI agent who arrested him, pray at White House – Debra J. Saunders, Las Vegas Review-Journal

Every Day With Her Was the Best Day:’ Remembering My Mom – Armstrong Williams, The Daily Signal

The Childhood Quality That’s the Best Predictor of Health, Wealth, and Happiness – Annie Holmquist, Intellectual Takeout

Human Sexuality

Male Sexlessness is Rising, But Not for the Reasons Incels Claim – Lyman Stone, Family Studies

Why A Compromise On Transgender Politics Would Be Capitulation – Walt Heyer, The Federalist

Consent is No Cure – Craig Michael White, Ethika Politika

Human Trafficking

Uncovering The Silent Sex Trafficking Epidemic In New York City – Fight the New Drug

Christian Rocker Risks Life in Undercover Mission to Rescue Victims in Sex Trade – Jeannie Law, The Christian Post

Pornography

You Can Write An Open Letter to the Pornography Industry – National Center on Sexual Exploitation

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