Author archives: Peter Sprigg

Of Guns and Prodigal Fathers

by Peter Sprigg

March 16, 2018

After a school shooter murdered 17 people at Marjory Stoneman Douglas High School in Parkland, Florida on February 14, the calls by liberals for new gun control laws were predictable, and received blanket coverage in the mainstream media.

Gun rights activists, in another unsurprising response, resisted efforts to blame the weapon rather than the killer, promoting instead ideas like arming teachers to defend their students.

I’ve been heartened to see that a number of pro-family conservatives have pointed out a third factor that must be addressed when examining violence in our society—the role of family structure, and specifically the negative effects of fatherlessness on boys and young men. The Parkland shooter (whose name I choose not to publicize) was fatherless, just like many other perpetrators of mass murders. Yet most of the media have not focused on this issue.

Susan L. M. Goldberg was one of the first to raise the issue, at PJ Media. Former Sen. Rick Santorum also raised it in a CNN interview. Unfortunately, one statistic that was cited multiple times turned out to be unverified (at this writing, it lives on in a headline at Patheos: “Of the 27 Deadliest Mass Shooters, 26 of Them Had One Thing in Common.”) Paul Kengor, a scrupulous scholar from Grove City College, apologized for having cited this number in a piece in Crisis Magazine. After studying the available (albeit incomplete) data more closely, Kengor said that

[W]e found maybe four or five of the 27 shooters that we could definitively conclude (without doubt) had been raised in an intact family, or a family that included the biological dad at home, or a biological father who was consistently at home… .

At this point, however, what is clear is the vast majority of shooters came from broken families without a consistent biological father throughout their rearing and development. Very few had good, stable, present dads.

(I would also note that the CNN list of the “deadliest mass shootings in modern U.S. history,” starting in 1949 and apparently first compiled in 2013, has now been updated to include 34 incidents, not 27. Only four of those, however, have been in schools, and another three at colleges.)

What is perhaps more compelling than the anecdotal evidence from the most extreme events is the overall data regarding the link between fatherlessness and crime and violence. Here is edited data I accessed from the National Fatherhood Initiative in 2015:

Father Factor in Emotional and Behavioral Problems

      • Children born to single mothers show higher levels of aggressive behavior than children born to married mothers. Source: Journal of Marriage and Family, 2007.

 . . .

Father Factor in Crime

      • A study of 109 juvenile offenders indicated that family structure significantly predicts delinquency.
        Source: Journal of Youth and Adolescence, 2000.
      • [H]igher social encounters and frequent communication with nonresident biological fathers decreased adolescent delinquency.
        Source: Child Development, 2007.
      • [A] more positive father-child relationship predicts a reduced risk of engagement in multiple first risky behaviors. The positive influence of the father-child relationship on risk behaviors seemed to be stronger for male than for female adolescents.
        Source: Journal of Family Issues, 2006.
      • [I]f the number of fathers is low in a neighborhood, then there is an increase in acts of teen violence. Source: Journal of Marriage and Family, 2005.
      • In a study of INTERPOL crime statistics of 39 countries, it was found that single parenthood ratios were strongly correlated with violent crimes. Source: Cross-Cultural Research, 2004.

NFI also offers these graphics as free downloads:



An infographic from the National Center for Fathering reports the following:

Fatherless children are:

  • 11 times more likely to have violent behavior
  • 20 times more likely to be incarcerated


  • 70% of adolescents in juvenile correctional facilities come from fatherless homes
  • 60% of rapists were raised in fatherless homes

It’s clear we have a problem of what we might call “prodigal dads” in our society. (Writer Doug Mainwaring used that term in a piece last year in Public Discourse, “May I Please Speak to My Daddy?”)

More powerful, though, than statistics may be a three-minute film produced recently by students at Gordon College, an evangelical school in Massachusetts (full disclosure: my son is one of those students). If you want to illustrate the pain of fathers and children who are separated, consider sharing “Prodigal.”

What an Idaho Federal Judge Should Have Said About Transgender Birth Certificates

by Peter Sprigg

March 13, 2018

On March 5th, a federal court in Idaho ordered that state to begin allowing persons who identify as transgender to obtain revised birth certificates which would designate them as male or female on the basis of their “gender identity” rather than their biological sex at birth.

This decision by U.S. Magistrate Judge Candy W. Dale was both legally and logically wrong.

Ironically, Judge Dale’s written decision contains within it all the facts necessary for a reasonable decision—but she ignored them. Let me begin by quoting two key passages from her actual decision (most source citations omitted):

As explained above, IDHW [Idaho Department of Health and Welfare] interprets Idaho vital statistics law to prohibit changes to the listed sex unless there was an error in recording the sex at birth. Notably, IDHW asserts that Idaho birth certificates reflect the “sex” of a person at birth and do not contain a “gender marker” designation. From this interpretation comes IDHW’s policy of automatically and categorically denying applications made by transgender individuals for the purpose of changing the listed sex to reflect their gender identity.

2. Biological Sex, Gender Identity, Transition

There is scientific consensus that biological sex is determined by numerous elements, which can include chromosomal composition, internal reproductive organs, external genitalia, hormone prevalence, and brain structure. [Footnote: The American Psychology [sic] Association defines sex as “one’s biological status as either male or female” that “is associated primarily with physical attributes such as chromosomes, hormone prevalence, and external and internal anatomy.” Transgender People, Gender Identity and Gender Expression, American Psychological Association (2018),] Sex determinations made at birth are most often based on the observation of external genitalia alone. For most people, this determination aligns with gender identity and gender expression. Of importance here, however, are instances where it does not.

Gender identity, also known as core gender, is the intrinsic sense of being male, female, or an alternative gender. Transgender is an adjective used to designate “a person whose identity does not confirm unambiguously to conventional notions of male or female gender.” Put another way, transgender is an adjective used to describe a person who has a gender identity that differs, in varying degrees, from the sex observed and assigned at birth.

 . . .


 1.      The Equal Protection Clause

The Equal Protection Clause of the Fourteenth Amendment requires that all similarly situated people be treated alike. Equal protection requirements restrict state legislative action that is inconsistent with bedrock constitutional guarantees, such as equality in treatment. An equal protection claim is established when plaintiffs show they were treated differently than other similarly situated people. Yet, states are given significant leeway to establish laws to effectively govern citizens and remedy societal ills. Because of this, successful equal protection claims additionally require plaintiffs to show the difference in treatment was the result of intentional or purposeful discrimination.

The whole case could have been settled at this point. Here is what Judge Dale could have said—but, unfortunately, did not:

Since there remains a scientific consensus that “sex” is an inherently different characteristic from “gender identity” or “core gender,” (the former being biological, the latter psychological), and since Idaho birth certificates note only the “sex” of the individual and not the “gender” or “gender identity,” the plaintiffs’ claims fail.

It is understandable that plaintiffs may experience hardships as a result of their “gender” or “gender identity” not matching the “sex” listed on their birth certificates. It is understandable that they might prefer that all identity documents, including birth certificates, should reflect only the male or female designation that they prefer as their “gender identity.” However, these are concerns that they must take to the legislature, not the courts.

For now, Idaho has made the policy decision that birth certificates should reflect the “sex” of the child, defined in biological terms. In the vast majority of cases, this is readily identifiable (and in the rare exceptions, Idaho law and policy already allows correction if the biological sex is identified incorrectly). This decision certainly has a rational basis, since it is hard to even conceptualize how anyone could identify or assign a “gender” or “gender identity” (as distinct from “sex”) to a newborn infant.

It would be within the power of the legislature to authorize retroactive changes to birth certificates in the way the plaintiffs desire. Some legislators may see an individual’s psychological “gender identity” as a more fundamental aspect of who the person is, and may favor the policy change requested by plaintiffs as a way of alleviating the inconvenience and suffering endured by transgender individuals. However, some legislators may see an individual’s biological “sex” as a more fundamental aspect of who the person is, and may prefer to preserve the integrity and accuracy of the birth certificate as a permanent factual record of the individual’s biological sex at birth.

This is a policy choice that only the legislature can make. The Constitution of the United States does not speak to the issue one way or the other. Plaintiffs argue that Idaho’s current policy violates the constitutional guarantee of “the equal protection of the laws.” Yet this claim surely fails, since the current policy treats everyone alike. All persons have their biological sex recorded at birth on their birth certificate. No one has the right to alter this portion of the birth certificate. And it cannot be claimed that this policy is “the result of intentional or purposeful discrimination” against transgender persons, since the policy was in place long before there was any legal or legislative awareness of “gender dysphoria.”

Plaintiffs may argue that the “unequal” treatment consists of the fact that transgender people are denied a birth certificate on which the designation of “sex” corresponds to their “gender identity,” while non-transgender people have birth certificates in which the two aspects of identity match. However, this situation is simply the result of the individual’s unusual transgender condition itself—not any intentional or irrational discrimination on the part of the state.

Case dismissed.

Unfortunately, this judge substituted her own hazy (but politically correct) philosophy for such a straightforward reading of the law. This philosophy does not reflect that “our medical understanding of biological sex and gender has advanced,” as Judge Dale asserts. In fact, her declaration that “there is medical consensus that gender identity plays a role in an individual’s determination of their own sex” is directly contradicted by her earlier acknowledgment that “sex” and “gender identity” remain defined by major medical and psychological associations as two different things. What her decision reflects is not the latest in medical science, but is instead a purely metaphysical view that the mind is everything and the body is nothing when it comes to deciding who is male or female.

She is entitled to hold (or blindly accept) this trendy opinion, but she has no right or power to impose it as law upon the state of Idaho.

How Billy Graham’s Invitation Forever Changed My Life

by Peter Sprigg

February 21, 2018

To honor the life of Billy Graham, here is a personal testimony from Peter Sprigg, FRC’s Senior Fellow for Policy Studies. This article originally appeared in The Washington Times on June 15, 2016.

Prayer—my own, and that of others—has played a crucial role in my spiritual development.

My parents were missionaries before I was born. My father served as a pastor and a denominational executive while I was growing up. I am sure that my parents prayed for me, including for my spiritual life. Ironically, those prayers did not bear their fullest fruit until I was in my mid-20’s—my mother had died, my father was again serving overseas, and I was living alone.

My passion growing up was not for my faith, but for politics. After getting my degree in political science and economics, I got a job with my Congressman. When that job ended because he did not seek re-election, I decided to take the plunge and run for office myself. At 24, I ran for the School Committee in my home town in Massachusetts.

My dreams were dashed, however, by a decisive defeat. That loss started me on a period of soul-searching—first in terms of my career goals, but eventually in a more literal, spiritual sense. Over a period of several months, a number of key events led me to a turning point in my life.

One of those events took place at my church, where I remained a regular attender. One Sunday, two men did a dramatic reading about the Lord’s Prayer—the one taught by Jesus to his disciples. One repeated the memorized words—while the other, off-stage with a microphone, played the voice of God, actually answering. The man would say, “Our father, who art in heaven …”—and the voice answered, “Yes, what can I do for you?” Startled, the man continues, “Hallowed be thy name.” The voice asks, “What do you mean by that?”

Continuing in the same vein, this short, humorous reading made me realize how easy it is to go through the motions of religion without thinking about it. I went home from church that day and began to pray and read my Bible daily—disciplines I had never before adopted.

Another event came when my pastor invited me to a special gathering. The Billy Graham Crusade was coming to Boston, and his team was working to mobilize pastors and churches to support it. The pastor knew of my interest in politics, and invited me to an event where the guest speaker was someone with political experience—Charles Colson, the former aide to President Richard Nixon who had spent time in prison, had come to Christ, wrote his story in the book Born Again, and then founded the ministry Prison Fellowship after his release. At the time, I found his politics distasteful, but his testimony compelling.

At the same event, we were urged to pray, and were given something to help us. It was a small round sticker to place on your watch. The challenge was to “pray on the spot when you see the dot”—in other words, every time you look at your watch.

Thus, my relatively new habit of daily prayer became one of nearly constant prayer throughout the day. Sometimes I would pray for Billy Graham, sometimes for loved ones, and sometimes just, “Lord, be with me.” And He was—as I became increasingly aware.

All of this climaxed for me when I attended the Billy Graham Crusade with others from my church in June of 1982. Although I was hesitant about going forward—having already attended church all my life!—those doubts were eliminated by Rev. Graham’s invitation, which directly addressed people like me. I went forward, giving my life to Jesus Christ in a decision that has shaped the remainder of my life.

A year or two later, I got to visit an aunt and uncle who lived far across the country from me, and shared with them my testimony. It turned out that my aunt was a long-time supporter of Billy Graham’s ministry and subscriber to his Decision magazine. When she saw that a Crusade was scheduled for Boston, knowing my location (but not my spiritual state), she began praying for me.

I will always be grateful that her prayers—and mine—were answered. 

New York Times Spreads Fake News About Sexual Orientation Therapy

by Peter Sprigg

January 30, 2018

On January 25, 2018, the New York Times ran an op-ed by Sam Brinton under the headline, “Tortured in Gay Conversion Therapy.” (The online version posted January 24 read, “I Was Tortured in Gay Conversion Therapy. And It’s Still Legal in 41 States.”) Brinton frequently speaks and testifies in favor of laws to prohibit licensed therapists from engaging in sexual orientation change efforts (which opponents refer to as “conversion therapy”) with minors. (FRC’s defense of the right to choose such therapy can be found here).

Brinton gives a shocking, first-person account. It includes this:

The therapist ordered me bound to a table to have ice, heat and electricity applied to my body. I was forced to watch clips on a television of gay men holding hands, hugging and having sex. I was supposed to associate those images with the pain I was feeling to once and for all turn into a straight boy.

I have just one question for the New York Times. Did you make any effort to fact-check Brinton’s claims?

This is an opinion piece, you might respond. Since it reflects the writer’s opinion, it does not require fact-checking the way a news story does—does it?

The truth is, newspapers fact-check opinion pieces all the time. Various publications and websites routinely ask for links or other documentation for factual claims made in an opinion piece.

Brinton’s piece, though, was a first-person account of his own experience. How can you “fact-check” someone’s personal life experience?

One way might be by checking it against previous accounts that Brinton himself has given of his own story. He has, after all, been sharing these allegations in the public square since 2010. If there are inconsistencies in the way he has described his own experience on different occasions, it might at least raise some doubts about the credibility of the overall account.

Brinton’s Story Unverified

I first wrote about Brinton’s story three and a half years ago on the FRC Blog, in an August 2014 piece titled, “Truth Matters in Ex-Gay Debate.” Part of what follows is an edited version of what I wrote then, with added comments at the end.

Brinton’s story was apparently first captured, when he was a student at Kansas State, in a video interview by Nathan Manske of the “I’m from Driftwood” project, which seeks to create an “archive of stories” on “what it’s like to be LGBTQ throughout the world.” Brinton’s story was captured on video in 2010, but received a burst of attention in October of 2011, when Manske shared it in the Huffington Post. Although the Huffington Post article remains online, a passage I quoted in 2014 does not (the web page says it was “updated” December 6, 2017). However, a detailed recounting of Brinton’s story (along with an edited version of the original video) remains online at the website of The New Civil Rights Movement. That account includes these details:

Physical therapy was my hands being tied down and blocks of ice being placed on my hands. Then pictures of men holding hands would be shown to be so that way I would associate the concept of the pain of the ice with a man touching me.”

Then we went into heat. Coils would be wrapped around my hands and you would be able to turn the heat on or off. So now if we had a picture of a guy and a girl hugging, there was no pain. If we had a picture of a guy and a guy hugging, we had physical pain.”

We then went into the ‘Month of Hell,’” Brinton explains in the video below. “The ‘Month of Hell’ consisted of tiny needles being stuck into my fingers and then pictures of explicit acts between men would be shown and I’d be electrocuted.”

This report was so shocking that even some pro-“gay” media tried to verify this report—but couldn’t.

One of the inconsistencies pointed out by commenters on this article (on a gay website) was that “Brinton’s Facebook page ‘has a picture of the entire happy family at his college graduation ceremony, May 31, 2011’”—despite the fact that Brinton said on the video that “my dad has held a gun up to my head multiple times” and warned Brinton that “he would shoot me if I ever tried to walk in the door again.” (Brinton responded in the comments section that “my parents did come to my graduation since I am the very first person to graduate from college in my family. I am working on building a relationship to them … I was shocked they were there but so happy to see the love starting to rebuild.”)

The Mystery Therapist

More importantly, Brinton, had not (in 2011) and (as far as I know) still has not, identified the counselor who allegedly engaged in these horrific practices—not by name, not by address, not even by city and state where they occurred (more on that later).

Such omissions made even Wayne Besen, a prominent “anti-ex-gay” activist, reluctant to use Brinton’s story without further verification. Here’s the full statement Besen posted in the comments section of the Queerty article which questioned Brinton’s story.

[emphasis added] 

Wayne Besen

Samuel came forward and told a story presumably in an effort to help others. There are groups like mine who would be thrilled to use his example to demonstrate the harm caused by “ex-gay” therapy. We live for real life examples like this.

However, until he provides more information to verify his experience, he makes it impossible for us to use him as an example. Indeed, it would be grossly irresponsible for us to do so.

If a group like mine puts out or promotes a story that turns out to be exaggerated or fake, the religious right would rake us through the coals and by extension the entire LGBT community. This would cast an ominous shadow on all of the legitimate ex-ex-gay testimonies that have helped so many people come out of the closet.

So, for the sake of the movement he is trying to help — it is critical that Sam reveal exactly who the therapist was that tortured him. He could do this publicly or privately, but we need more information before we can use his narrative.

We very much hope he will provide enough information so we can help people by sharing his compelling story.


Wayne Besen

Truth Wins Out

Oct 11, 2011 at 8:51 pm

Here is part of Brinton’s reply to Besen:

I was indirectly in contact with Wayne and although I know he wants me to send the information of the therapist that is simply not an option. Counselor after counselor has seen me revert to near suicidal tendencies when I try to dig deep into the memories of that time and I simply don’t have his name. I can picture him clear as day in my nightmares but his name is not there. The movement can’t use me I guess.

I have no problem with people not believing my story. It is not for me to try to prove. I don’t want to be the poster-child of the anti-conversion therapy movement since graduate school at MIT is plenty tough as it is.

. . .

Oct 14, 2011 at 2:11 am

Memory and Forgetting

Note that Brinton says of his therapist, “I can picture him clear as day in my nightmares”—but, as far as I know, he has also never provided a physical description of this individual.

The entire subject of whether childhood trauma can result in repressed memories (as Brinton apparently asserts) is a controversial one. See, for example, the American Psychological Association’s Q&A on the topic here. It states:

Many clinicians who work with trauma victims believe that this dissociation is a person’s way of sheltering himself or herself from the pain of the memory. Many researchers argue, however, that there is little or no empirical support for such a theory.

Even if the former theory is accepted, in Brinton’s case his amnesia is hardly “sheltering [him] from the pain of the memory.” It seems illogical that Brinton would be able to remember—and repeatedly recount in detail before cameras, in paid speaking engagements, and at legislative hearings—the excruciating details of the “torture” he claims he experienced, while repressing (to the point of becoming “near suicidal” at efforts to retrieve them) only the memories of the details—such as name or city—which might allow some verification of his account.

Other Discrepancies in Brinton’s Story

Defenders of the right of people with same-sex attractions to pursue therapy aimed at reducing those attractions last year posted a YouTube video highlighting other problems with the story Brinton has told. For example, in one videotaped speech Brinton said that his therapy was provided by “a doctor.” Yet in one of the first written accounts of his story, from August of 2011, it says his therapy came at the hands of “the session leader¿who Sam specifies was a ‘religious therapist’ and not a doctor.” In yet another video—apparently of Brinton testifying in support of a legislative therapy ban—he says specifically that he was treated by “a licensed psychotherapist.” Note that legislative bans on “sexual orientation change efforts” or “conversion therapy” (a term never actually used by its practitioners) apply only to licensed professionals, not to “religious” counselors.

Even the state in which Brinton underwent his alleged therapy is unclear. In the 2010 “Driftwood” video, Brinton says he grew up in Perry, Iowa. When the video was re-posted at the Huffington Post in October 2011, the article repeated that “Sam was raised in rural Iowa.” However, the Bay Windows account from August 2011 (reposted at LGBTQ Nation) said that Brinton “endured years of reparative therapy designed to ‘cure’ him of his homosexuality while living in Kansas.” Only two paragraphs later, however, it says, “Sam was a pre-teen, living with his parents in a conservative religious mission in Florida,” when his ordeal began. In his New York Times op-ed, he says it all happened “when I was a middle schooler in Florida.” So which was it—Iowa, Kansas, or Florida?

Has Brinton Changed?

There is one more discrepancy. In his Times op-ed, Brinton says his “conversion therapy” was “a trauma that was meant to erase my existence as a newly out bisexual.” This is the first time I have heard Brinton refer to himself as “bisexual.” The August 2011 Bay Windows article begins with the sentence, “Samuel Brinton is not afraid to say he’s gay.”

Ironically, if Brinton went from identifying as gay in 2011 to identifying as “bisexual and gender fluid” in 2018, maybe he himself is proof that change is possible after all.

A Three-Dimensional Case for Masterpiece Cakeshop — from Justice Kagan, No Less

by Peter Sprigg

December 12, 2017

I am not generally a fan of liberal Supreme Court Justice Elena Kagan. But after reading the entire transcript of the December 5 oral arguments in the Masterpiece Cakeshop case (in which a Christian baker was found guilty by Colorado of discrimination for declining to make a custom wedding cake for a same-sex couple), I thought one question she asked was especially insightful.

Most of the discussion on Jack Phillips’ free speech claim centered on a question distilled by Justice Stephen Breyer. Baker Jack Phillips argues that his First Amendment right to be free from compelled speech was violated by Colorado’s application of its public accommodations law to him, but Breyer asked, “[W]hat is the line? … [W]e want some kind of distinction that will not undermine every civil rights law.”

Kagan elaborated on that concern in a question posed to U.S. Solicitor General Noel Francisco, who was arguing in support of Phillips:

JUSTICE KAGAN: General, it — it seems as though there are kind of three axes on which people are asking you what’s the line? How do we draw the line? So one axis is what we started with, like what about the chef and the florist -

GENERAL FRANCISCO: Speech, non-speech.

JUSTICE KAGAN: — and — and, you know, everybody else that participates in a wedding? A second axis is, well, why is this only about gay people? Why isn’t it about race? Why isn’t it about gender? Why isn’t it about people of different religions? So that’s a second axis.

And there’s a third axis, which is why is it just about weddings? You say ceremonies, events. What else counts? Is it the funeral? Is it the Bar Mitzvah or the communion? Is it the anniversary celebration? Is it the birthday celebration?

So there are all three of these that suggest like, whoa, this doesn’t seem like such a small thing.

1. “Speech” vs. “non-speech” in the wedding industry

The core of the argument made by Kristen Waggoner, the Alliance Defending Freedom attorney representing Phillips, related to the first “axis” Kagan mentioned. The courts have previously found that under the First Amendment’s free speech protections, not only may the government not punish an individual for speaking his own opinions, but the government also may not compel an individual to communicate a message he disagrees with against his will. Using his talents to create a custom wedding cake is a form of artistic expression which is protected as “speech” under the First Amendment, Waggoner argued. Doing so for a same-sex wedding would constitute a message of endorsement of a homosexual relationship and of same-sex marriage, which violates Jack Phillips’ religious beliefs. Therefore, the state of Colorado may not compel Phillips’ to create such a cake without violating his First Amendment rights.

The justices demanded to know what other vendors providing goods and services for a wedding would or would not enjoy similar free speech protections. What type of commercial conduct constitutes “speech,” and what is “non-speech,” as Francisco put it? Waggoner suggested that the exemption would apply to a baker, florist, or calligrapher creating invitations; but might not apply to a hair stylist or makeup artist (more on that later).

Yet I think Kagan’s other two “axes” (plural of “axis,” not “ax”) are also significant. Unlike Kagan, however, I think they make the case easier to decide, not harder.

2. “Why is this only about gay people?”

The second axis of line-drawing has to do with any distinctions between various protected categories. Is there a difference between “discrimination” that is based on sexual orientation (“gay people”), and that based on race, sex, or religion? Attorneys on the other side and the more liberal justices hammered on the race analogy—if we allow a baker to refuse to bake a cake for a same-sex wedding, can he also refuse to bake a cake for a black child’s birthday?

Now, before discussing the question of whether “discrimination” based on “sexual orientation” is the same as racial discrimination, let me state my own view that refusing to participate in a same-sex wedding does not constitute discrimination based on “sexual orientation” at all. Phillips’ principal objection stems primarily from his religious beliefs about the definition of marriage (that it is inherently a union of one man and one woman) and his beliefs about the appropriate boundaries of sexual conduct (that it should only take place in the context of a marriage so defined). This has nothing inherently to do with the “sexual orientation” of the individuals involved.

Phillips would bake a cake for a wedding of two people who self-identify as homosexual—if they were of the opposite sex. And he would not bake a cake for a same-sex wedding, even if the individuals involved identified as heterosexual. If those examples sound absurd, it is only because in our time we have a cultural assumption that an indispensable purpose of marriage is the gratification of sexual desires. Yet that is an assumption about marriage that has by no means been universal in all times and all cultures, and the Court need not adopt it as a legal assumption today.

The Colorado public accommodations non-discrimination law that Phillips was charged with violating makes no distinctions among its protected categories. But that is not the legal question at issue. Phillips is asserting a claim under the U.S. Constitution, which (if successful) would override a state statute. The question is whether the “discrimination” he is accused of gives the government a compelling interest in overriding that federal constitutional claim. Under federal court precedents, there is a distinction to be made between race and sexual orientation. Classifications of individuals on the basis of race are subject to “strict scrutiny,” which means that they can very rarely be justified. The Supreme Court has never said that classifications based on “sexual orientation” are subject to the same high level of scrutiny.

I have argued elsewhere that the reason classifications based on race are subjected to the highest scrutiny is because race is, indisputably, a characteristic that is inborn, involuntary, immutable, innocuous, and in the Constitution. “Sexual orientation” does not meet the same criteria. In fact, its definition is not entirely clear, since depending on the context, it may refer to a person’s sexual attractions, their sexual behavior, or their self-identification, or some combination of the three. The three aspects of sexual orientation are also not always consistent in one individual at one time, or over the life course. A person’s sexual attractions may indeed be involuntary (I am not saying people “choose to be gay,” if “being gay” is defined based on attractions alone). However, a person’s sexual behavior and self-identification do not meet any of the criteria which justify strict scrutiny of racial classifications. For those who disapprove of homosexuality, it is almost entirely the conduct—not the attractions or even the self-identification—which is seen as problematic.

I realize that in a 2010 case (Christian Legal Society v. Martinez), Justice Ruth Bader Ginsburg wrote for the 5-4 majority, “Our decisions have declined to distinguish between status and conduct in this context.” The “context” she referred to was a sexual orientation classification. (In that case, the University of California’s law school had denied recognition to a Christian student organization because they did not permit people who engaged in “unrepentant homosexual conduct” to serve in leadership positions.) “CLS contends that it does not exclude individuals because of sexual orientation,” reported Ginsburg, “but rather ‘on the basis of a conjunction of conduct and the belief that the conduct is not wrong.’” An analysis in the New York Times described Ginsburg’s sentence rejecting the distinction between “status and conduct” as a “time bomb” which could explode with broader implications in later cases (as it did in the later cases involving the definition of marriage).

Justice Anthony Kennedy himself, however (despite having been the decisive vote in the decisions striking down both federal and state definitions of marriage as the union of a man and a woman), seemed to hint that he might be willing to defuse the status-conduct “time bomb” in the context of the Masterpiece case. Here is part of an exchange with David D. Cole, the attorney representing the same-sex couple, after Cole repeatedly asserted that Jack Phillips’ action was “identity discrimination”:

JUSTICE KENNEDY: Well, but this whole concept of identity is a slightly—suppose he says: Look, I have nothing against—against gay people. He says but I just don’t think they should have a marriage because that’s contrary to my beliefs. It’s not –

MR. COLE: Yeah.

JUSTICE KENNEDY: It’s not their identity; it’s what they’re doing.

MR. COLE: Yeah.

JUSTICE KENNEDY: I think it’s — your identity thing is just too facile. [Emphasis added.]

Whether the court has distinguished between homosexual conduct and an “identity” or “status” as “gay” in prior decisions or not, the distinction clearly exists in the real world, and it makes sexual orientation different from race (or sex). It would be salutary for the Court to acknowledge that now.

3. “Why is it just about weddings?”

The third axis of line-drawing posited by Kagan has to do with the type of events which, hypothetically at least, might trigger a religious objection and therefore a religious or free-speech exception to anti-discrimination laws.

However, it is clear that the liberty Phillips is seeking in this case has specifically and narrowly to do with weddings because of the nature of that event. He and his attorneys have repeatedly made clear that Jack Phillips regularly serves customers who openly self-identify as gay. His policy of not creating custom cakes for same-sex weddings therefore bears no resemblance to racially segregated businesses in the Jim Crow south, which either did not serve black customers at all, or would only serve them in physically segregated facilities.

Phillips’ attorney Kristen Waggoner described his objection regarding weddings most succinctly in her final summation, when she said this:

A wedding cake expresses an inherent message that is that the union is a marriage and is to be celebrated, and that message violates Mr. Phillips’s religious convictions.

This single sentence makes two distinct points. The “message … that [a same-sex] union is a marriage … violates Mr. Phillips’s religious convictions” (because his Christian faith teaches him that “marriage” can only be defined as the union of a man and a woman). In addition, the “message … that [a homosexual] union … is to be celebrated” also “violates Mr. Phillips’s religious convictions” (because his Christian faith teaches that homosexual relationships are sinful—that is, always contrary to the will of God).

Neither of these objections, however, would apply to providing baked goods for a birthday celebration or a funeral reception for someone who identifies as gay, because neither a birthday nor a funeral sends “an inherent message” that marriage can be between people of the same sex, nor that sexual relations between people of the same sex are to be celebrated. Only a wedding (and potentially a wedding-related event, such as a shower or anniversary) sends that particular, and particularly objectionable, message.

In fact, Solicitor General Noel Francisco seemed to me to at least hint at an argument for an even broader exemption than what Phillips’ own attorney, Kristen Waggoner, was requesting. Waggoner argued narrowly that the specific act of creating a custom wedding cake was a form of creative, artistic expression that merits free speech protection. Francisco, however, made repeated reference (seven times, by my count) to the wedding itself as an “expressive event.” This, it seems to me, would suggest that any participation in the celebration of a same-sex wedding—even if it involves less creative artistry than the creation of a custom-made cake—could constitute implicit endorsement of the message in support of same-sex marriage and in support of homosexual unions that is inherent in the event itself.

The Three-Dimensional Solution

Justice Kagan’s concern was that drawing lines too broadly on all three axes she described would result in exceptions that would completely swallow the rule of Colorado’s public accommodation non-discrimination law. If we allow exceptions for bakers, what about other vendors? If we allow exceptions for sexual orientation, what about other protected categories? And if we allow exceptions for weddings, what about other events? If broad exemptions are granted in all three areas, then, as she said, “whoa, this doesn’t seem like such a small thing.”

I believe, however, that there are sound reasons for narrowing the exemption regarding protected categories only to sexual orientation—logically, because it involves primarily conduct, and legally, because it is not subject to strict scrutiny and is never mentioned in the text of the Constitution. As noted above, there are also reasonable grounds for treating a wedding differently from other events.

With the lines drawn narrowly with respect to those categories, I think there would be room for the line regarding which vendors can claim free speech protection to be drawn a bit more broadly. I would like to see the Supreme Court adopt Solicitor General Francisco’s view of a wedding itself as an “expressive event”—and therefore extend the protection against “compelled speech” to any vendor who provides wedding services—whether baker, florist, or photographer, or calligrapher; or even chef, hair stylist or makeup artist.

Such a decision would leave Colorado’s non-discrimination law intact, while still recognizing the elevated threat to freedom of conscience that arises in the narrow and unique situation of participation in celebrating a same-sex wedding.

Will the Supreme Court Recognize Consumable Beauty in Wedding Cake Case?

by Peter Sprigg

December 4, 2017

On Tuesday, December 5, the Supreme Court will hear arguments in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission. The latter agency ruled that baker Jack Phillips, a Christian, had violated a state law against discrimination based on sexual orientation in public accommodations when he declined to design a wedding cake for a same-sex couple.

One of the key arguments being made on Phillips’ behalf is that the creation of (or decision not to create) a custom-designed wedding cake is quite different from simply buying a product off the shelf, because it is an act of creative artistic expression—and is therefore protected by the First Amendment.

In light of that, one of the more fascinating briefs filed in the case came from a group of “cake artists as amici curiae in support of neither party.” While taking no position on the other arguments in the case, this brief does assert that “this Court should make clear … that cake artists are indeed practitioners of an expressive art and that they are entitled to the same respect under the First Amendment as artists using any other medium.”

Among the unique aspects of this brief are that it includes full color photographs of a number of unique, creative, and beautiful cakes for both weddings and other events. However, I also thought that this paragraph (on p. 33)—challenging the argument that cakes are not “art” because they are designed to be eaten—was a work of beauty in itself:

For example, cakes are perishable, designed to radiate beauty but for a moment, and then to be consumed. But the fact that any given cake is a vanishing work does not distinguish it from artistic performances on the stage (or, indeed, protests on the street). Nature’s beauty is no less revealed through the flower that blooms for a single day than through the tree that lives for a thousand years; likewise, an ice sculpture is not inherently less artistic than one carved from stone. The same is true of cakes—they are made from a canvas designed for consumption rather than permanent display. And like other vanishing works of art, cakes can be given a measure of permanence by being recorded—as with the pictures in this brief. Cake is not the only “art” than can be consumed—but the consumption of cake merges more senses (sight, taste, touch, smell) than the consumption of a speech or a song.

Remembering Mike Penner

by Peter Sprigg

December 4, 2017

On November 20, LGBT activists observed this year’s “Transgender Day of Remembrance.”

For the most part, they call upon people to remember those who identified as transgender who have been murdered in anti-transgender hate crimes. Such crimes deserve clear condemnation—like that offered in May by Attorney General Jeff Sessions, who declared “the importance of holding individuals accountable when they commit violent acts against transgender individuals.”

More numerous than those murdered in hate crimes, however, are those who have identified as transgender but died by their own hand.

So on this Day of Remembrance, I was remembering Mike Penner.

Mike Penner was a well-respected sportswriter at the Los Angeles Times. On April 26, 2007, Penner became the story instead of the reporter, by announcing to readers in his column that after a vacation, he would return to his work as a woman. He adopted the name Christine Daniels.

In some ways, Penner’s “gender transition” went as smoothly as he could possibly have hoped. The Times—both management and his colleagues—were supportive. He was anxious the day his column (headlined “Old Mike, new Christine”) appeared, but his editor had urged him to write it in order to control the release of the news. In advance of the article, Penner’s editor reportedly shared the news individually with 45 other members of the staff, and “not one person expressed discomfort.” According to an account in the Times the next day, “by day’s end, Daniels said she had received only two negative responses out of 538 e-mails.” Nearly a thousand readers commented online, and the responses “were overwhelmingly positive.” Penner/Daniels told a staff writer that “a day I dreaded all my life has ended up being one of the best days I’ve ever had.”

It didn’t last. Penner’s last column under the name Christine Daniels was published on April 4, 2008, after which he went on disability leave. When he finally returned to work in October, it was as Mike Penner. Penner wanted every trace of his female alter ego erased from the Times’ website. He was told it couldn’t be done, that it violated their policy on archived material. But eventually, the material disappeared. Christine was gone.

A little over a year later, so was Mike. On the day after Thanksgiving in 2009, Mike Penner took his own life.

There have been at least three long feature articles on the tragic story of Mike Penner. Christopher Goffard wrote one for the Times, Nancy Hass for GQ, and Steve Friess for LA Weekly. This post is based primarily on information drawn from those three articles.

Of course, every person’s story is unique, so there are limits to how much you can generalize about a group of people from what happened to one individual. Nevertheless, Penner’s sad story should serve as a cautionary tale to those—whether transgender or not—who assume that a “gender transition” is automatically the best solution for someone experiencing “gender dysphoria” (an unhappiness with their biological sex at birth).

According to the Friess account (told mostly from the perspective of others who identify as transgender who knew Penner as “Christine”), Penner’s feelings of gender dysphoria began in childhood, when “[h]e would sneak into his mother’s closet in their Anaheim home to try on shoes and dabble with her makeup, then scrub it off shamefully before vowing never to do it again.” According to the Hass account, “Christine” told friends about “playing princess dress-up with her male cousins as a child.”

However, the transgender community in Los Angeles was unaware of Penner until 2004, when he first showed up at “Countessa’s Closet”—essentially a women’s clothing store that caters to men. In August of 2005 he made his first appearance in a public place as a woman, going out to a restaurant with Susan Horn, another male-to-female transgender friend whom Penner met at Countessa’s.

Between that time and Penner’s public “coming out” as transgender in April 2007, he apparently did not reveal his real (male) name to others who identified as transgender. Horn deduced that “Christine” was actually the sportswriter Mike Penner in June of 2006—but when confronted, Penner became frightened and angry.

By early 2007, however, it appears that Penner had begun dressing as Christine full-time, and had begun taking female hormones. He had also started attending the Metropolitan Community Church, which is actively affirming of LGBT lifestyles. In February, he spoke to his boss, the sports editor of the Times, Randy Harvey, about transitioning (Penner usually worked from home). It was Harvey—in a recommendation some later questioned—who urged Penner to explain the transition publicly in a column. It was bound to become a subject of comment, and Harvey said, “I think you need to write it. Don’t let anybody else write it first.”

After the column appeared, “Christine Daniels” was widely celebrated. While remaining in the sports department, Penner also began a blog for the Times about his transition, titled “A Woman in Progress.” In a June interview with an LGBT website, Penner was asked, “Money can buy hormones and a closet full of fabulous shoes, but does it buy happiness?” He responded, “Hormones + legal name change + setting the stage for a new life = happiness, no doubt about that.”

In July, Penner’s friend and noted sportswriter Rick Reilly wrote a supportive piece for Sports Illustrated. That same month, Penner made his own public debut as “Christine” when covering the Los Angeles debut of British soccer star David Beckham, who had been signed to play for the Los Angeles Galaxy. And on July 19, 2007, Penner’s name was legally changed from “Michael Daniel Penner” to “Christine Michelle Daniels.”

Christine received many invitations to speak and to attend fundraisers. Perhaps a high point was speaking at the convention of the National Lesbian and Gay Journalists Association in the late summer. In September, Christine met Dr. Marci Bowers, a gender reassignment surgeon who had transitioned from male to female himself, and began making plans to have surgery, which was scheduled for July 2008.

Why did things go downhill? One related to something unique to Penner—his relative celebrity. Even before his coming-out column appeared, he told one friend, “I feel as if I am being used as a pawn by the trans community (and maybe the Times as well).” That feeling would increase as the months went on.

Two other factors, however, were ones that may often, if not always, be relevant to others who change their public gender identity as well.

One was the question of Christine’s appearance. The first to say publicly what many may have thought was Paul Oberjuerge, a writer for the San Bernardino County Sun. After the Beckham press conference, he commented on the paper’s website:

She looks like a guy in a dress, pretty much. Except anyone paying any attention isn’t going to be fooled — as some people are by veteran transvestites. Maybe this is cruel, but there were women in that room who were born women in body, as well as soul. And the difference between them and Christine was, in my mind, fairly stark. It seemed almost as [if] we’re all going along with someone’s dress-up role-playing.

More troubling to Christine was an October 2007 photo shoot for a planned article in Vanity Fair (recall that Olympic star Bruce Jenner first came out as “Caitlyn” in a 2015 cover story for Vanity Fair). According to Friess, “Accounts of what occurred there vary so starkly that they are hard to reconcile.”

But the photographer, Robert Maxwell, said later, “I was trying to say all the right things. How do you tell someone who looks like a man, ‘You’re a beautiful woman’? I don’t know.” Goffard’s piece for the Times noted:

The profile writer, Evan Wright, said that to write an honest article, he would have to observe that the sportswriter did not pass as a woman. “I thought, ‘Bottom line, she has a fantasy conception. She doesn’t accept who she is.’”

In an email to friends, Christine lamented:

It was a total debacle, probably the worst experience of my transition. [The] photographer apparently wanted to portray me as a man in a dress, my worst fear, as I expressed numerous times.

After Penner abandoned his female persona, but before he committed suicide, writer Steve Friess wrote about the phenomenon of “sex change regret” in an article in USA Today. He quoted Denise Leclair of the International Foundation for Gender Education, who acknowledged, “The average male-to-female transsexual is taller, has bigger hands and feet, has more facial hair than most women. There are a lot of physical attributes that are hard to hide …” One friend recalled of “Christine,” “She would say that she had spent forty-five minutes putting on her makeup and still she saw Mike staring back.”

The other crucial factor in the “failure” of Penner’s transition was the end of his marriage. When he made the announcement that he was becoming a woman, he had been married for twenty years to a woman who also wrote for the Times (I am choosing not to identify her here, out of respect for her privacy). She has never spoken publicly about Penner—neither after his transition, nor after his death. The published reports are somewhat unclear, but it appears that the two separated at the beginning of 2007, after Penner began hormone treatments and started dressing consistently as a woman. According to Friess, Penner’s wife filed for divorce on May 23, 2007—the same day that Penner first appeared in the Times’ offices as a woman.

Penner—naively—seemed not to accept that his gender transition would mean the end of his marriage. But his wife reportedly was blunt: “I don’t want to be associated with it. I don’t ever want to see you that way.”

And according to Friess, “Penner repeatedly told friends his return to a male lifestyle was a last-ditch effort to reunite with his wife in some way.” Hass says that after Penner returned to a male identity, his wife “was willing to see him again, to have lunch or a cup of coffee.” But even those contacts became less frequent—“She’s moved on,” he told one friend. “I had the perfect life with [my wife], and I threw it all away,” he lamented.

Finally, Penner’s mental health was clearly fragile for most of the last two years of his life. It is clear that after the euphoria of his first six months living openly as a “woman,” Penner’s mental state went downhill, and resuming his male identity did nothing to stabilize it. It appears that stress was manifesting in abdominal distress with no clear organic cause. Goffard reports that when Penner went on disability leave in April 2008, “close friends knew [he] was manic depressive.” Manic depression is an older term for what is now known as “bipolar disorder,” and it is unclear whether Penner was ever treated for that specific condition. Friess reports that in the summer of 2008, Penner “was diagnosed as severely depressed. Doctors prescribed a regimen of powerful psychotropic drugs that included the antipsychotic Zyprexa and the antidepressant Elavil.” He was also hospitalized at least once in 2009 in a psychiatric hospital, and friends reported “wild mood swings and suicidal chatter” well before he finally took his life.

Friess reported, “No studies have been conducted to determine whether withdrawal from the hormones can cause depression, but mental-health professionals who work with transgender people say patients who have stopped taking the drugs report feelings of distress.” Friess also reports that Bowers, the transgender surgeon, “believes Penner put one foot in the grave by abandoning the transition.” In a thoroughly self-serving statement, Bowers declared, “If we had done surgery, it probably would have saved her life. Now she died as an unhappy soul who never got a chance to align her body and soul.”

The opposite would seem to be the case. As Hass reports, Penner “had been convinced that becoming a woman would solve everything.” Even a transgender-identified friend had tried to warn him “that the act of becoming a woman itself wouldn’t make you happy.” Yet this fiction seems to be at the very heart of the transgender movement and the growing mania for self-defined “gender identity.”

I would suggest that the tragic story of Mike Penner holds three key lessons for those struggling with gender dysphoria and considering a “transition” away from identifying with their biological sex at birth:

  1. Completely erasing your inborn sex in the eyes of others may not be possible. Clothes, hormones, and even gender reassignment surgery do not make a woman. There are aspects of appearance—size, bone structure, muscle mass, etc.—that simply differ between the sexes and are not amenable to change.
  2. You may be forfeiting important relationships in your life. It is naïve to suppose that someone who has always known you as a son or brother will readily define you as a daughter or sister instead. And it is even more naïve to suppose that a beloved spouse who married someone of the opposite sex will suddenly be fine being in a “same-sex” marriage.
  3. Finally, mental health problems such as depression or bipolar disorder, which frequently accompany gender dysphoria, need to be treated in their own right before considering a “gender transition.” Even the World Professional Association for Transgender Health (WPATH), in their “Standards of Care,” warns, “If significant medical or mental concerns are present, they must be reasonably well controlled.”

In his “coming out” column in 2007, Mike Penner said the decision followed “hundreds of hours of soul-wrenching therapy.” He had reportedly sought counseling at the Los Angeles Gender Center—yet it is possible that such overtly pro-transgender facilities place greater emphasis on facilitating a client’s desired gender transition than on “controlling” co-existing mental health problems.

Anyone who thinks that undergoing a “gender transition” is the only and obvious response to the presence of gender dysphoria should look closely at the tragic story of Mike Penner.

Concern for “Rights” Is Nothing New for Social Conservatives

by Peter Sprigg

November 8, 2017

The Religion News Service (RNS) recently ran an interview with the author of a new book who claims, in the words of the RNS summary, “that in recent years, the Religious Right has moved away from discussing morality to ‘rights,’ especially the ‘rights of the unborn.’” This is portrayed as an ironic development, given that “[t]alking in terms of individual rights used to be primarily the purview of liberals.” The book is The Rights Turn in Conservative Christian Politics: How Abortion Transformed the Culture Wars, by political scientist Andrew Lewis.

But is the discussion of “‘rights,’ especially the ‘rights of the unborn’” among social conservatives really a “recent” move?

Not exactly. For example, one of the leading “anti-abortion” groups in America is the National Right to Life Committee, which was founded in 1968. Furthermore, the use of “rights” language with respect to abortion was not unique to one organization, or to activists. For example, in the original New York Times article reporting the Supreme Court’s January 1973 Roe v. Wade decision striking down abortion laws, they said that in May of 1972 President Richard Nixon had written a letter to Cardinal Terence Cooke, the Roman Catholic Archbishop of New York, in which the president spoke out for “the right to life of literally hundreds of thousands of unborn children.”

It appears that the Religion News Service had simply mis-characterized author Lewis’ position by referring to the shift toward using “the rights of the unborn” as “recent.” Indeed, in the interview, Lewis himself suggests the change occurred “[o]nce Roe v. Wade happened, and the decade after,” which would hardly be “recent.” But, as indicated above, even that assertion is inaccurate.

Another odd assertion is Lewis’s statement in the interview regarding the relationship between the language used by those supportive of legal abortion and the language used by those who oppose it: “They began countering the left’s ‘right to choose’ language with their own potent language.” As noted above, conservatives have talked about the “right to life” all along. It is the Left that has had to scramble to find new language. Around the time of Roe, liberals did not hesitate to call themselves “pro-abortion,” or at least to speak about a “right to abortion.” But over time they found out that “pro-abortion” was a losing term for them, and it was their language that evolved to avoid talking about the real subject (abortion), and instead to use a euphemism like “the right to choose.”

Another example of the Left’s shifting language is the name of the well-known pro-abortion group that is often just referred to by the acronym “NARAL.” This group went from being dubbed the “National Association for the Repeal of Abortion Laws” to being the “National Abortion Rights Action League” (adding “rights” to their name) to being the “National Abortion and Reproductive Rights Action League” (expanding the range of “rights” they purport to defend) to now calling themselves “NARAL Pro-Choice America.”

Also odd is this statement by Lewis: “As conservative Christians start engaging on a wider array of things, particularly issues that might be controversial and the base might not be sure what to do with, the leadership always ties it to abortion.”

He makes it sound as though looking for the implications for abortion in various pieces of legislation (such as, for example, Obamacare) is merely a political strategy. Does it not occur to him that we really believe the things we say, and that although there are many aspects of the sexual revolution which bother us, abortion is objectively the worst, because it involves the mass slaughter of millions of innocent unborn human beings?

Lewis offers this explanation for the shift toward “rights” language he claims to have identified:

[T]he big picture is that as the cultural status of conservative Christianity declines, they no longer have the cultural power that they once had. They move from taking cultural majority positions to thinking about rights and minority positions.

His thesis, and his explanation for it, makes somewhat more sense in the context of the homosexual movement—where opposition to redefining marriage was argued in part on the basis of the “right of a child to a mom and a dad,” and opposition to sexual orientation and gender identity laws has been supported in part by arguments about the “right to religious liberty.”

However, Lewis fails to give social conservatives enough credit for the sincerity of the arguments we make, including “rights” arguments. And when it comes to the abortion debate, the facts and chronology simply do not support his thesis.

The New Religious Exemptions from the HHS Contraceptive Mandate Are a Victory for Personal Freedom (and Responsibility) Over State Coercion

by Peter Sprigg

October 12, 2017

Linda Greenhouse of the New York Times has written a column critical of the Trump administration’s recent announcement of broad religious and moral exemptions to the HHS mandate under Obamacare that required employers to provide free contraception as part of any health insurance plan.

Greenhouse begins her column this way: “Saudi women are gaining the right to drive. American women are losing the right to employer-provided birth control.”

At least she was honest enough to not use the hyperbole of saying, “American women are losing birth control.” The government remains powerless to prevent women (or men) from purchasing and/or using birth control if they choose to. The vast majority are not even losing “employer-provided birth control,” since the percentage of employers likely to claim either a religious or moral objection is always likely to be tiny. No, they are only losing “the right to employer-provided birth control”—meaning the government will no longer coerce said employers into providing birth control.

However, this admirable precision in language means that her analogy with Saudi women simply does not work. American women are not losing “the right to use birth control,” which might be analogous to “the right to drive.” For the analogy to work, she would have to say, “Saudi women are gaining the right to employer-provided automobiles.”

But this, of course, is ridiculous. No one—in Saudi Arabia, or in the United States—has ever had “the right to employer-provided automobiles.” This, despite the fact that (I would argue) access to transportation is far more fundamental to having a free and prosperous life in the modern world than is access to birth control. We simply expect people who want to own automobiles to purchase them themselves. Of course, some people are too poor to buy a car, and must often rely on public transportation—but even that is not provided for free, but requires payment of a fare. What is so exceptional about birth control that private employers should be forced by the government to provide it at absolutely no cost to the user?

Greenhouse says, “I used to think … that the resistance to the contraception mandate was fueled by cultural conservatives’ determination not to let federal policy normalize birth control.” If this were the case, the new administration’s policy would still fall short. Since pregnancy is not a disease, contraception, when used merely as a method of family planning, is by definition an elective item or service, rather than a medically necessary one that should be subject to any coverage mandate. Yet the Trump administration has actually left the HHS mandate intact—while simply allowing a much more expansive exemption for the small number of employers with religious or moral objections.

Now, however, Greenhouse goes further in reading the minds of conservatives, declaring, “The problem they have is with what birth control signifies: empowering women — in school, on the job, in the home — to determine their life course.” This paranoid Handmaid’s Tale view of the world is simply bizarre. I guess Greenhouse is oblivious to the many conservative women— empowered and powerful, every one of them—who have led the fight against the HHS mandate from its beginning.

The headline on Greenhouse’s piece online reads, “On Contraception, It’s Church Over State.” Yet no church dogma has been imposed on anyone. It remains perfectly acceptable (in the eyes of the federal government) for women and men to purchase and use birth control. But now, it is also acceptable (as it always should have been, under the First Amendment) for some religious people to object to materially participating in the process. In reality, the new rules mean, “It’s Personal Freedom (and Responsibility) over State Coercion.”

I suspect what Greenhouse is really upset about is the Trump administration setting back the Left’s attempts to “establish” their own religion—the Church of the Sexual Revolution—whose most fundamental doctrine is the unlimited right not only to sex, but to sex without consequences, with the federal government as the guarantor of that “right.”

20 Principles of Religious Liberty

by Peter Sprigg

October 10, 2017

On May 4, President Trump signed an Executive Order declaring, “It shall be the policy of the executive branch to vigorously enforce Federal law’s robust protections for religious freedom.” This order, barely more than a page long, gave few details about what such protections would entail.

However, in it, President Trump also instructed, “In order to guide all agencies in complying with relevant Federal law, the Attorney General shall, as appropriate, issue guidance interpreting religious liberty protections in Federal law.”

That promised guidance was released on Friday, October 6 by the Department of Justice, in the form of a 25-page memorandum for executive departments and agencies on the topic of “Federal Law Protections for Religious Liberty.”

In that memo, Attorney General Jeff Sessions lays out twenty “Principles of Religious Liberty.”

Family Research Council praised the memorandum in a press release here.

However, since most people will not read the 8-page memo or the 17-page appendix laying out its legal rationale, FRC here offers the text just of the introduction and the twenty principles.

Principles of Religious Liberty

Religious liberty is a foundational principle of enduring importance in America, enshrined in our Constitution and other sources of federal law. As James Madison explained in his Memorial and Remonstrance Against Religious Assessments, the free exercise of religion “is in its nature an unalienable right” because the duty owed to one’s Creator “is precedent, both in order of time and in degree of obligation, to the claims of Civil Society.” Religious liberty is not merely a right to personal religious beliefs or even to worship in a sacred place. It also encompasses religious observance and practice. Except in the narrowest circumstances, no one should be forced to choose between living out his or her faith and complying with the law. Therefore, to the greatest extent practicable and permitted by law, religious observance and practice should be reasonably accommodated in all government activity, including employment, contracting, and programming. The following twenty principles should guide administrative agencies and executive departments in carrying out this task. These principles should be understood and interpreted in light of the legal analysis set forth in the appendix to this memorandum.

  1. The freedom of religion is a fundamental right of paramount importance, expressly protected by federal law.
  2. The free exercise of religion include the right to act or abstain from action in accordance with one’s religious beliefs.
  3. The freedom of religion extends to persons and organizations.
  4. Americans do not give up their freedom of religion by participating in the marketplace, partaking of the public square, or interacting with government.
  5. Government may not restrict acts or abstentions because of the beliefs they display.
  6. Government may not target religious individuals or entities for special disabilities based on their religion.
  7. Government may not target religious individuals or entities through discriminatory enforcement of neutral, generally applicable laws.
  8. Government may not officially favor or disfavor particular religious groups.
  9. Government may not interfere with the autonomy of a religious organization.
  10. The Religious Freedom Restoration Act [RFRA] of 1993 prohibits the federal government from substantially burdening any aspect of religious observance or practice, unless imposition of that burden on a particular adherent satisfies strict scrutiny.
  11. RFRA’s protection extends not just to individuals, but also to organizations, associations, and at least some for-profit corporations.
  12. RFRA does not permit the federal government to second-guess the reasonableness of a religious belief.
  13. A governmental action substantially burdens an exercise of religion under RFRA if it bans an aspect of an adherent’s religious observance or practice, compels an act inconsistent with that observance or practice, or substantially pressures the adherent to modify such observance or practice.
  14. The strict scrutiny standard applicable to RFRA is exceptionally demanding.
  15. RFRA applies even where a religious adherent seeks an exemption from a legal obligation requiring the adherent to confer benefits on third parties.
  16. Title VII of the Civil Rights Act of 1964, as amended, prohibits covered employers from discriminating against individuals on the basis of their religion.
  17. Title VII’s protection extends to discrimination on the basis of religious observance or practice as well as belief, unless the employer cannot reasonably accommodate such observance or practice without undue hardship on the business.
  18. The Clinton Guidelines on Religious Free Exercise and Religious Expression in the Federal Workplace provide useful examples for private employers of reasonable accommodations for religious observance and practice in the workplace.
  19. Religious employers are entitled to employ only persons whose beliefs and conduct are consistent with the employers’ religious precepts.
  20. As a general matter, the federal government may not condition receipt of a federal grant or contract on the effective relinquishment of a religious organization’s hiring exemptions or attributes of its religious character.