Category archives: Conscience protection

Religious Liberty and the “Wedding Vendor” Cases

by Alexandra McPhee

December 4, 2018

This year, the United States Supreme Court vindicated the free exercise rights of Jack Phillips, a cake baker from Colorado, who had suffered government discrimination after he declined to bake a cake for a same-sex commitment ceremony based on his conviction that a marriage is only between a man and a woman. Yet Jack’s ordeal wasn’t done; he was subsequently sued and has an ongoing case because he didn’t want to be forced to create a cake with a message about the transgender lifestyle he believed to be false.

Melissa and Aaron Klein, bakers from Oregon and formerly of Sweet Cakes by Melissa, are now asking the Supreme Court to review their case, which arose under similar circumstances. The Supreme Court could decide any day whether to review their case. If the Court does, they may get relief. If it doesn’t, the Kleins are stuck with an oppressive and unconstitutional state court ruling against them.

Their cases are not unique; attacks against traditional beliefs in marriage have been on the rise. Why is that?

Several years ago, the United States Supreme Court observed that “[m]any who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.” That quotation came from Justice Anthony Kennedy’s opinion in Obergefell v. Hodges (2015), the Supreme Court decision that ushered in a new era in the law surrounding religious liberty.

It is important that the Supreme Court recognized the sincerity of the orthodox belief that marriage is a sacred institution only available between one man and one woman. But by making marriage between two people of the same sex a constitutional right, Obergefell made it easier for courts and legislatures around the nation to conclude that same-sex couples have rights that somehow trump those of all who disagree—and thus violate their consciences.

We have seen this primarily in the wedding vendor industry, the subject of our newly updated publication released today, Religious Liberty and the “Wedding Vendor” Cases. Business owners across the country have had to face the unacceptable choice of violating their religious beliefs or losing their livelihoods—all because they will not use their skills to affirm or facilitate the celebration of a same-sex wedding.

Today, we bring to your attention fifteen cases where business owners have had to collectively endure thousands of hours of litigation and hundreds of thousands of dollars in fines for sticking to their beliefs in natural marriage. This is an unacceptable affront to every American’s constitutional right to the free exercise of their religion, and we must stand to ensure that this latest campaign against the freedom of conscience comes to an end.

For more information, read our newly updated publication.

Hacksaw Ridge and the Value of Conscientious Objectors

by Alexandra McPhee

October 12, 2018

Seventy-three years ago today, on October 12, 1945, President Harry S. Truman awarded Private First Class (then-Corporal) Desmond T. Doss the Medal of Honor for his heroic efforts during his service in the Pacific theater of World War II. He was the first conscientious objector to receive the Medal of Honor.

Doss was a Seventh-day Adventist. When he entered the military as a conscientious objector, he did so with the convictions that his faith required that he take a sabbath and that, under the biblical commandment “Thou shalt not kill,” he must never touch a weapon to kill another man, even in war.

The deeply-rooted, American value of religious liberty protected Doss’s beliefs. Rights of conscience have been considered a component of religious freedom since the origins of this nation. Indeed, from the time of the Colonies, the government has exempted conscientious objectors from service or from the bearing of arms.

When Doss entered the service during World War II, the Selective Training and Service Act of 1940 protected those “subject to combatant training and service . . . who, by reason of religious training and belief, [were] conscientiously opposed to participation in war in any form.”

The Act thus enabled Doss to participate in the war to the extent he believed his faith permitted. As his biography states, “He believed his duty was to obey God and serve his country. But it had to be in that order.”

While serving as a medic, Doss continually carried the wounded to safety during battle in the Philippines, Guam, and Japan, all without using any weapons. In Okinawa, Japan, Doss saved the lives of 75 men over the course of a single day. American soldiers had faced an unexpected counterattack by the Japanese and were ordered to retreat. Only one-third of the soldiers were able to escape from the counterattack. Despite the order to retreat, Doss remained, and he took each of the 75 men, one by one, off of the battlefield to safety.

Doss’s feats in Okinawa were detailed in his Medal of Honor Citation and were the subject of the award-winning 2016 film Hacksaw Ridge, which Doss’s son said represents his father faithfully.

Thomas W. Bennett and Joseph G. LaPointe Jr. were also conscientious objectors, and they posthumously received the Medal of Honor for their acts of valor in the Vietnam War.

These men are proof that we do not accomplish freedom by boxing conscientious objectors or religious expression out of military service or the public square.

As Chief Justice Harlan F. Stone once said, “liberty of conscience” is “vital . .  to the integrity of man’s moral and spiritual nature,” and “nothing short of the self-preservation of the state should warrant its violation.” Even then, “it may well be questioned whether the state which preserves its life by a settled policy of violation of the conscience of the individual will not in fact ultimately lose it by the process.”

By defending the rights of conscience, we enable individuals like Doss, Bennett, and LaPointe to contribute, in accordance with their beliefs, towards the common good and the preservation of our country.

Attacks on Counseling Threaten Pastors and Churches

by Travis Weber

March 23, 2018

Recently, California state legislators proposed a bill which would outlaw counseling—even that which is freely entered—for anyone who wanted help changing their unwanted same-sex attraction. We have seen such efforts before, but this one is noteworthy for how expansive it is—it covers individuals, associations, and “other group[s],” in addition to traditional businesses. As Alliance Defending Freedom points out, it could even implicate churches: “It could be a violation [of this proposed law] if a pastor encourages a congregant to visit the church bookstore to purchase books that help people address sexual issues, perhaps including the Bible itself, which teaches about the importance of sexual purity within the confines of marriage between a man and woman.” While outlawing such pastoral advice (the bill would consider it fraudulent “goods and services”), the bill completely endorses advice designed to cement same-sex attraction.

Masquerading as consumer protection and medical oversight, this is simply blatant and open discrimination against one side of our society’s debate on sexual ethics. Yet sin wants to suppress the truth, and even the idea that someone can help someone else change their sexual attractions implies that what one may be doing is not all good and healthy. This threat implicates not just businesses and Christians in the public eye, but all Christians who hold to a biblical position on these issues. It won’t matter how one approaches the issue. We should always speak the truth in love because that’s the right thing to do, but that won’t exempt us from being targeted. Our biblical beliefs themselves are the target. It is crucial that all Christians in America understand this social dynamic.

This legislative development in California echoes the situation involving Metro City Church in Michigan, which took heavy criticism for offering a program to help teens who are questioning their sexuality walk through their situation from a biblical perspective. The program approached the issue very cautiously—and was defined by merely discussing the matter of sexuality by looking at what the Bible had to say about it. Yet in response, numerous activists subjected the church and its pastor, Jeremy Schossau, to vitriolic online attacks, criticism, and threats (including potentially criminal behavior), and two state legislators have called for the church to be “investigated” for offering “conversion therapy.”

While we have seen such vitriol often directed at those who advocate a biblical worldview on this issue, direct targeting of churches and pastors has been relatively rare. Yet this incident serves as a reminder that many of the religious freedom struggles we are facing will eventually reach any church which teaches an orthodox biblical position on questions of sexuality.

Moreover, in this case, nothing remotely controversial was occurring; the church was just trying to go to the Bible for answers on this topic. Along with the proposed California legislation, these developments make clear that the problem is not the way something is said, but the Christian position on these issues itself is what is opposed.

We must defend the ability of pastors and their churches to decide what is said in church … not the government. The First Amendment makes absolutely clear that the government has no power to tell churches what advice they can give or require a license to give that advice, and the First Amendment to the Constitution still guarantees the freedom of speech and the free exercise of religion. Additionally, the Establishment Clause of the First Amendment prevents the government from assessing theology and targeting the theological beliefs it doesn’t like. This is the current law, but we must give voice to our rights to see them protected.

After the Supreme Court constitutionalized same-sex marriage in Obergefell v. Hodges, many wondered whether pastors would be pressured into performing same-sex marriages. Perhaps the bigger question now is whether they will be threatened into compromising their larger biblical perspective on sexuality.

FRC is standing with Pastor Jeremy, and attempting to raise awareness of the religious freedom implications of this situation. To stand with Pastor Jeremy, please sign our petition at FRC.org/Metro to tell these legislators they cannot prohibit this pastor or his church from exercising their First Amendment rights.

For more information on Pastor Jeremy’s situation, please see:

FRC Washington Update articles:

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Sixth Circuit Shows Why SOGIs Are a Threat to Religious Freedom

by Travis Weber

March 12, 2018

Last week, in EEOC v. R.G. & G.R. Harris Funeral Homes, the Sixth Circuit Court of Appeals rejected the religious freedom claim of a funeral home owner who wanted to run his business in accordance with his faith—and did not want to accede to the “gender identity” discrimination claim of an employee who desired to remain an employee while living out his transgendered lifestyle as he saw fit. The case is still ongoing (the appeals court ordered the case remanded for a lower court to continue sorting out), but there’s a very real possibility that business owner Thomas Rost may now be forced out of the marketplace rather than violate his faith.

This is the first federal court case dealing with a Religious Freedom Restoration Act (RFRA) claim in the context of a sexual orientation and/or gender identity (SOGI) nondiscrimination claim (the only other such case is the state-level case of print shop owner Blaine Adamson in Kentucky), and SOGI came out the victor. The concerns of those who have warned of the religious freedom threat of SOGIs are validated by this decision.

The Sixth Circuit, in an opinion authored by Judge Karen Moore, got its analysis wrong on several levels. First, the court claimed it was somehow very clear that Title VII sex discrimination prohibitions include “gender identity”—despite the fact that no court considered such a possibility for decades. Even Supreme Court Justice Ruth Bader Ginburg, writing about the proposed Equal Rights Amendment decades ago, did not take “gender identity” under consideration as she dismissed concerns that sex nondiscrimination provisions could force bathrooms to be opened up to the opposite biological sex. So when the Sixth Circuit says “[n]or can much be gleaned from the fact that … statutes, such as the Violence Against Women Act, expressly prohibit discrimination on the basis of ‘gender identity,’ while Title VII does not,” it isn’t very convincing. If it was so clear, no court would ever have rejected the notion that “gender identity” falls under sex discrimination—yet many have.

The court continued to err when it analyzed the religious freedom issue here. The funeral home relied on RFRA as a defense to the SOGI claim, asserting that a sincere religious belief had been substantially burdened. At that point, the EEOC could only have prevailed if it had a compelling government interest which was accomplished through the least restrictive means.

Judge Moore incredibly (and erroneously) claimed it was not a “substantial burden” on religious exercise to “forc[e] [the Funeral Home] to violate Rost’s faith,” which “would significantly pressure Rost to leave the funeral industry and end his ministry to grieving people.” Yet it is an elementary principle of RFRA analysis to observe there is a substantial burden on someone who is told they must compromise their beliefs in order to retain their job. The court accepted that Rost sincerely believed he should not be “directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift,” but then summarily dismissed his concern, concluding that “tolerating [his employee’s] understanding of … sex and gender identity is not tantamount to supporting it.”

The court tries to rely on lower federal court adjudications in the HHS mandate contraceptive litigation, claiming that “[m]ost circuits, including this one, have recognized that a party can sincerely believe that he is being coerced into engaging in conduct that violates his religious convictions without actually, as a matter of law, being so engaged.” Yet this second-guessing of religious beliefs has been roundly repudiated by the Supreme Court in Employment Division v. Smith, where the Court observed decades ago that “[r]epeatedly and in many different contexts, we have warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim.” Moreover, despite citing HHS mandate cases from the lower courts, Judge Moore skips over the fact that when the Supreme Court handled those cases on appeal in Zubik v. Burwell, the justices told the parties to come to a resolution while honoring the religious exercise at issue, rather than flatly dismissing the substantial burden on the religious claimants.

After concluding there was no substantial burden on religious exercise, Judge Moore didn’t need to continue her analysis, but did so anyway, offering her view that it was a compelling interest to force the funeral home to accede to the transgendered employee’s demands: “Failing to enforce Title VII against the Funeral Home means the EEOC would be allowing a particular person—Stephens—to suffer discrimination, and such an outcome is directly contrary to the EEOC’s compelling interest in combating discrimination in the workforce.” The court did not want to “hoist automatically Rost’s religious interests above other compelling governmental concerns.” The Sixth Circuit then concluded that uniform enforcement of sex nondiscrimination provisions without religious exceptions was the least restrictive means to accomplish this compelling government interest of eradicating discrimination.

What are we to make of this? Aside from realizing that judges are not exempt from the temptation to arrive at a conclusion and then craft reasoning to help one get there, the court’s opinion shows us that businesses seeking religious freedom protections need to state clearly and regularly their religious nature (though part of a separate ministerial exemption analysis, the court did hold the business’s lack of numerous and overt religious indicia against it).

More relevant for our current religious freedom concerns, this case shows the inability of RFRA to adjudicate modern religious freedom disputes with certainty, as the statute allows judges the leeway to craft conclusions of their own liking, an even bigger danger when issues of sexuality—on which they want to be on the “right side of history”—are involved in the case.

Finally, and perhaps most significantly, this opinion demonstrates that when RFRA and SOGI claims intersect, the SOGI claims will likely win (and will almost certainly win in the hands of judges under social and cultural pressure to reach a certain result), thus vindicating many who have claimed that SOGI laws themselves are a threat to religious freedom.

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.”

5th Circuit Rejects Effort to Take Down Conscience Protections

by Travis Weber

June 22, 2017

Today, in a unanimous opinion, the U.S. Court of Appeals for the Fifth Circuit rejected an activist effort to take down HB 1523, Mississippi’s conscience protection law. HB 1523 provides exemptions for those who conscientiously object to being forced to facilitate same-sex marriages and other matters related to human sexuality, and allows them to opt out of the process while providing for other government workers or entities to step in and fill the gap.

Despite the fact that it is nothing more than a reasonable accommodation paradigm, the law was violently attacked with allegations that it was standing in the way of LGBT people, and a lawsuit was launched on the theory that it “established” a religion in violation of the First Amendment and violated the Equal Protection Clause of the Fourteenth Amendment.

But in order to sue—under a doctrine known as “standing”—a plaintiff needs an injury, and all that was alleged in this case was that the plaintiffs were “stigmatized” and felt bad because of the law. Courts have been facing this type of tenuous, emotionally-based allegation of injury more and more in recent years, and they only bog down the judicial system with claims that were never meant to be brought in the first place. In addition, when such claims are allowed to proceed, and a law is struck down, the effect is that one more area of our democratic process is chiseled off and placed into the hands of activists who would happily destroy the process if that meant they could achieve their aims.

It is thus nice to see the Fifth Circuit properly scrutinize standing in this case, and hold that the plaintiffs here have no actual injury on which any lawsuit could be based. To bring suit, a plaintiff needs a “concrete” and “particularized” injury, and even in Establishment Clause religious display cases where standing rules are more liberal, a plaintiff still needs to have a “personal confrontation” with any allegedly offensive display. Yet as the court pointed out, “[j]ust as an individual cannot ‘personally confront’ a warehoused monument, he cannot confront statutory text.”

The Court also rejected the idea that “offense at the message Section 2 [of HB 1523]” could convey standing, noting that any “purported stigmatic injury” is insufficient. Likewise, there is no standing for any equal protection claim because “exposure to a discriminatory message, without a corresponding denial of equal treatment, is insufficient to plead injury in an equal protection case.”

All too often, activists without a mandate to achieve change through the democratic means set forth by our constitutional order will try to find some court through which to push their grievances against a law or policy. However, as is the case here, such “injuries” often constitute nothing more than general disagreement with the law and are subjective, lacking any actual harm. The unfortunate effect is that these activists’ methods chip away at and weaken our entire judicial system.

It is thus heartening to see this ruling, which not only leaves in place HB 1523’s religious exemptions which are quite necessary in a post-Obergefell world, but also strengthens the constitutional order by holding in check those who try to wield power through the courts simply because they can’t achieve their goals through democratic means.

Action #13 - Take Down the Title IX Waiver List

by Family Research Council

January 6, 2017

We are highlighting the top 20 ways that the Trump administration can address values issues in the first 100 days through administrative and agency actions in order to repair some of the damage that the Obama administration has inflicted on the dignity of life, natural marriage, and religious liberty.

Action #13 - Take Down the Title IX Waiver List

In accordance with the Obama administration’s hostility toward religion, and in response to requests from the Human Rights Campaign, the Department of Education issued a black list of religious institutions of higher education that requested waivers from Title IX requirements, as well as, in some cases, their applications and the Department’s responses. This list, linked from the Department of Education’s Office of Civil Rights “Religious Exemption” page, should not be subject to public search and should be taken down.

Action #11 - Rescind Hospital Requirements Regarding Treatment of People Identifying as Transgender

by Family Research Council

January 3, 2017

On June 16, 2016, the Centers for Medicare and Medicaid Services proposed a rule under the auspices of promoting innovation, flexibility, and improvement in patient care, but which is expected to require federally regulated health care entities to violate their conscience. The rule will force hospitals and other providers to implement policies to provide medical services related to gender identity or sexual orientation.

Action #10 - Restore Healthcare Conscience Protections

by Family Research Council

January 2, 2017

Among our first freedoms, enshrined in the First Amendment, is the right to freedom of religion and of conscience. The Obama administration has often undermined religious freedom by refusing to enforce conscience protections in existing federal law to address violations in California, New York, and other states. On June 21, 2016, HHS issued a letter which narrowly reinterpreted the Weldon Amendment to exclude instances in which, for instance, California churches are being forced by the state to cover elective abortion in their health care plans. On February 23, 2011, the Obama administration also issued regulations that repealed the Bush rules enforcing federal conscience protection laws. One way to address these conscience issues is by rescinding the 2016 HHS letter regarding the Weldon Amendment. Another action which could be taken is restoring President George Bush’s December 19, 2008 regulation, “Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law.”

Supreme Court Denies Hearing and Curtails Freedom in Stormans Case

by Travis Weber

June 30, 2016

Sadly, earlier this week, the Supreme Court declined to take up the case of Stormans v. Wiesman.

In declining to hear this case, the Court missed an opportunity to shore up individual freedom and rebuke baseless government harassment of religious believers.

The Stormans owned a pharmacy and did not want to dispense certain drugs that can kill embryos due to their moral and religious beliefs, yet are happy to refer potential customers to other pharmacies who could dispense them. The drugs are carried by more than 30 other pharmacies within five miles of the Stormans’ pharmacy. It seems like there’s a way in this case for conscience to be honored, and the customer to receive their drugs.

Unfortunately, Washington State had put in place regulations barring pharmacies from referring customers elsewhere for religious or moral reasons, despite permitting them to do so for a host of secular reasons.

These regulations were challenged as a violation of the Free Exercise Clause due to their targeting of religious beliefs. The Supreme Court had an opportunity to hear the case, yet unfortunately declined. Justice Alito (joined by Chief Justice Roberts and Justice Thomas) dissented from this denial of certiorari.

As Justice Alito observed in his dissent, “none of [the Stormans’] customers has ever been denied timely access to emergency contra­ceptives.” At the end of the day, the only reason for this law is to disparage the moral objections of those who think differently and force these unwilling pharmacists to play a part in the government’s imposed regime by steamrolling their individual freedom. And now, in permitting a lower court decision against the Stormans to stand, Justices Kennedy, Breyer, Sotomayor, Kagan, and Ginsburg apparently see no problem with letting the state of Washington squash religious freedom by barring referrals tied to religious reasons but permitting them for non-religious reasons.

Now, as Justice Alito put it, the price we must pay is the continued existence of “regulations [which] are improperly designed to stamp out religious objectors.” This price may be acceptable to some for now—at least until it is turned around and applied against them.

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