Category archives: Religious Liberty

How did the Washington State Supreme Court Get Barronelle Stutzman’s Case So Wrong?

by Travis Weber

February 16, 2017

Today the Washington Supreme Court ruled against Barronelle Stutzman, a florist who for years happily served her customer and friend Rob Ingersoll (who she clearly knew identified as gay), but could not in good conscience assist him in celebrating his same-sex marriage because it involved her creative talents and energies in furthering an activity she believed to be wrong. 

In response to this desire to honor her conscience, the Washington State government organs of “justice” teamed up with the ACLU to sue her for purported violations of nondiscrimination laws, putting her personal assets and home at risk as a result. Barronelle never asked for this controversy, but it was brought to her doorstep by activists who simply couldn’t live and let live, and she has stood strong through it. 

In its ruling today, the Washington Supreme Court first exposed its bias by spending a page and a half detailing the emotional toll on the same-sex couple, while spending a total of one sentence acknowledging similar harm to Barronelle (Hint: that toll is much more than one line’s worth). In addition to this discrepancy, there are major problems with the ruling. I want to focus on three of them. 

1. The court got it wrong by concluding Barronelle engaged in discrimination 

The state high court clearly erred by rejecting Barronelle’s claim that she did not engage in sexual orientation discrimination but rather objected to a certain activity (participation in the same-sex wedding). In rejecting her argument, the court heavily relied on cases minimizing any status/conduct distinction (the idea being that limiting the behavior of a certain class is discriminating against that class—a “tax on wearing yarmulkes is a tax on Jews”). Minimizing that distinction is a big error in this case, however. What makes the tax on yarmulkes reprehensible is the fact that it really is a back-door way of targeting Jews. Barronelle is not trying to “sneak in” discrimination against LGBT people by declining to participate in their marriages. She’s happily served these same people for years!

The court recognized she had no problem with “selling bulk flowers and “raw materials,’” for use in a same-sex wedding, and acknowledged “she would be happy to do” that in this case. The court seemed to miss how this shows her actions do not turn on whether the customer identifies as LGBT or not, but rather upon the specific activity she is asked to participate in, noting at one point it believes “[t]his case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches.” But the court already acknowledged Barronelle was not turning away customers because they identified as gay, as a sandwich counter would turn away any African-American who walked in. Barronelle only wanted to not be involved in their weddings. Is the court not willing to accept this? 

There actually is a status/conduct distinction that’s important to this case, and the Washington Supreme Court errs in minimizing it and relying on dissimilar situations and precedents. While the court acknowledges that cases highlighting the status/conduct distinction exist (see footnote 6 at the bottom of page 16 of the opinion), it does not discuss or address them. Barronelle honestly and simply has a conscience objection to facilitating certain marriages, and nothing else. Courts, activists, and everyone else involved in this discussion need to recognize this. 

2. The court hugely erred in rejecting Barronelle’s Free Speech claim 

Additionally, the Washington Supreme Court simply got it wrong in rejecting Barronelle’s Free Speech claim. Though beginning with soaring language probably meant to show its high regard for free speech, the court quickly puts a damper on the party, concluding her artistic creations are not “inherently expressive” protected speech. The court’s analysis has some gaping holes, however, as it heavily relies on Rumsfeld v. FAIR despite significant legal and factual differences with the present case. FAIR was an unconstitutional conditions case dealing with government funding—in the military, moreover—an area Congress has significant constitutional power to regulate. The Court in FAIR also noted the recruiting law does not force schools to accept members they did not desire, while nondiscrimination laws force complete compliance in admissions or service. FAIR is also distinguished because the case hinged on a funding conditions issue, while here, as in Boy Scouts of America v. Dale and Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, the primary issue is constitutional rights being pitted against nondiscrimination laws. 

The Washington Supreme Court gave inadequate attention to perhaps the most relevant case—Hurley—concluding it was “unavailing” to Barronelle simply because the Supreme Court in that case had recognized the parade organizing council was not a traditional public accommodation. But that was not the issue in Hurley; rather, it was whether there were constitutional rights in play that trumped any application of that state nondiscrimination law. On this point, the Hurley Court observed: “[w]hen the [public accommodations] law is applied to expressive activity in the way it was done here, its apparent object is simply to require speakers to modify the content of their expression to whatever extent beneficiaries of the law choose to alter it with messages of their own.” Thus, the Court concluded the application of the public accommodations law infringed on the parade organizers’ free speech, specifically the right to control the content of their message and be free from being compelled to speak a certain message. 

But the Washington Supreme Court skips all this analysis (indeed, the court mentions Hurley and Dale in Footnote 11 on the bottom of page 28, but sidesteps any discussion of how the federal constitutional rights in those cases trumped state law). The issue here is not, as the court believes, whether Barronelle’s business is the type that has “traditionally been subject” to nondiscrimination laws, but whether the First Amendment protects her as it did the parade organizer in Hurley. Barronelle’s expression should have been so protected, and the Washington Supreme Court erred in concluding it was not (oddly, it did so while spending several pages listing myriad examples of a variety of expressive activity which is protected—not all of which was more clearly “speech” than Barronelle’s activity). 

How it does this while at the same time quoting another Supreme Court case for the proposition that “[t]he government may not prohibit the dissemination of ideas that it disfavors, nor compel endorsement of ideas that it approves” is quite baffling. No same-sex marriage supporting florists are being threatened here. The state government is using the WLAD to go after those who disapprove of this “idea,” and the court goes along with this, while quoting a Supreme Court case which requires the opposite. 

The state high court concludes that the average observer of Barronelle’s action would not think it is meant to send any message and thus is not protected as “inherently expressive” activity. Yet one wonders how that same court would view the many who recently have protested President Trump in a variety of ways—most notably those refusing to design dresses for his family. I suspect they would most certainly believe that their actions were expressing a message. Would the Washington Supreme Court disagree with them if the issue arose as a legal question? 

3. The ruling validated concerns that same-sex marriage and SOGI laws will be used to suppress religious liberty 

First, in its analysis which concluded that Barronelle engaged in impermissible sexual orientation discrimination, the court cites the Supreme Court’s same-sex marriage decision in Obergefell v. Hodges. The state court claimed that denying marriage licenses is equal to sexual orientation discrimination, a conclusion it now foists upon Barronelle in her religious liberty case. With more of these wedding-related religious liberty cases likely to come, this part of the ruling should be noted by those who said Obergefell would not be used against such dissenters, and would not affect religious liberty. Indeed, the Supreme Court itself said in Obergefell: “[f]inally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths … .” Apparently, that may not be true after all, if more courts and advocates adopt the reasoning of the Washington Supreme Court. 

Second, on the bottom of page 52, the court’s reasoning validates the concerns of those who have long been claiming that SOGI laws are incompatible with religious liberty. Even when it comes to the most heartwarming religious liberty claimant around (an elderly grandmother who served her LGBT-identifying friend for years but didn’t want to be involved in his wedding), her rights are no match for state SOGI laws—which, the state high court concludes, are backed by a compelling government interest accomplished through the least restrictive means. Those putting much faith in compromise solutions between religious liberty and SOGI advocates should reexamine their assumptions in light of this portion of the opinion. 

Despite this ruling, Barronelle may yet be able to obtain relief from the United States Supreme Court. Hopefully, that Court will take up her case and uphold her federal constitutional rights in the face of the Washington State government’s oppressive action and its state courts’ acquiescence in this injustice. In thinking about how the U.S. Supreme Court will treat this case, it is a reminder of how important it is to have Judge Neil Gorsuch, who is good on religious liberty, confirmed as a replacement for the late Justice Antonin Scalia. 

Meanwhile, we must not let what has happened to Barronelle at the state level happen to others at the federal level. This ruling is all the more reason for President Trump to protect religious liberty through executive action. Please join our petition effort calling for such protections. 

 

What You May Not Know President Trump Said at the National Prayer Breakfast

by Travis Weber

February 3, 2017

The coverage of President Trump’s remarks yesterday at the National Prayer Breakfast was dominated by reference to his comments about Arnold Schwarzenegger. If you didn’t watch his speech or read the transcript, you may not realize what else was said.

Commenting on the denial of religious freedom in the Middle East, President Trump stated:

We have seen unimaginable violence carried out in the name of religion.  Acts of wanton slaughter against religious minorities.”

And:

We have seen peace-loving Muslims brutalized, victimized, murdered and oppressed by ISIS killers. We have seen threats of extermination against the Jewish people.”

Yes, President Trump recognized the fact that Muslims are being killed in the Middle East. This, however, is an inconvenient truth for biased mass media bent on portraying him as “anti-Muslim,” so it’s perfectly logical that the mass media don’t report it.

President Trump’s other reference—to minorities suffering violence—would include Yezidis, Christians, Baha’is, Shabak, Kaka’is, certain Muslims, and others. I enjoyed meeting many people from these groups when I conducted religious freedom training for civil society participants in Kurdistan, Iraq several years ago. They are fascinating people, and unknown to many outside that region. President Trump recognized their plight in his comments at the Prayer Breakfast, yet this has gone unreported, with the “mainstream” press choosing to focus on Arnold Schwarzenegger instead.

True religious freedom advocates support religious freedom for all people, both here in the United States and overseas. Indeed, U.S. and international law protect religious freedom for all people, in all contexts, within the bounds of an orderly, free society. In this sense, not only “justice is blind,” but “religious freedom law is blind.” Thus we can determine the true religious freedom advocates based on who values and supports these religious freedom laws, as opposed to those who try to limit them to certain contexts.

We have yet to see what the Trump administration will do to protect religious freedom overseas. Recognizing the problem, however, is a start.

At the Prayer Breakfast, it was also heartening to see President Trump recognize the source of religious freedom rights:

Our Republic was formed on the basis that freedom is not a gift from government, but that freedom is a gift from God.”

Indeed. Government does not create and grant human rights; it only recognizes them. Such human rights include the right of all people to choose their faith, and the freedom to live it out. This is a hopeful note on which we can proceed.

Action #20 - Increase American Influence on Religious Freedom Abuses Abroad

by Family Research Council

January 17, 2017

Here is the final action in our series of top 20 actions that the Trump administration must take to address values issues in the first 100 days 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 #20 - Increase American Influence on Religious Freedom Abuses Abroad

The new administration and Congress should seriously consider maintaining a list of prisoners persecuted abroad on account of their faith, and also identify foreign officials responsible for religious freedom abuses (and where appropriate, publish their names in the Federal Register). In addition, the government should compile a list of opportunities to condition visa grants and other actions based on their support of religious freedom.

Action #19 - Adhere to the International Religious Freedom Act

by Family Research Council

January 16, 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 #19 - Adhere to the International Religious Freedom Act

The Obama administration was woefully resistant to protecting religious freedom in its foreign policy stance, and was late to describe the persecution of certain religious minorities as genocide. The new administration and Congress should promote religious freedoms throughout the federal government engaged in overseas activities by calling attention to the International Religious Freedom Act of 1998 (Public Law 105-292, as amended by Public Law 106-55, Public Law 106-113, Public Law 107-228, Public Law 108-332, Public Law 108-458, Public Law 112-75, Public Law 113-271, and Public Law 114-71), and ensuring these laws are followed.

Action #18 - Strengthen DOD Religious Freedom Protection

by Family Research Council

January 13, 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 #18 - Strengthen DOD Religious Freedom Protection

The Obama administration issued regulations (AFI 1-1, SECNAVINST 1730.8B, and AR 600- 20) that limited the standards articulated in Section 532 and 533 of the FY2014 National Defense Authorization Act to protect expressions of belief reflecting conscience, moral principles, or religious beliefs. The strict scrutiny standard of religious liberty protection concerning the least restrictive means as articulated in DOD Instruction 1300.17 should also be included in the Air Force directive. In addition, this directive should require the Air Force to remove Section 2.12 from AFI 1-1.

The new Congress and administration should also pressure the service chiefs to promulgate messages reaffirming the robust religious freedom and free speech rights of chaplains. These messages should include the articulation of such protections in Section 533 of the FY2013 and Section 532 of the FY2014 NDAA, and should note chaplains’ speech is not limited in the same manner that other government employee speech may be limited.

Frank R. Wolf International Religious Freedom Act Becomes Law

by Family Research Council

December 19, 2016

This past Friday, President Obama signed into law H.R. 1150, the Frank R. Wolf International Religious Freedom Act. (Congress had passed H.R. 1150 just a few days before on December 13th) The law was introduced by Congressman Chris Smith, a well-known defender of human rights, and named in honor of longtime religious freedom champion, retired Congressman Frank Wolf.

Everyone who helped this bill become law should be commended. It will strengthen ways for religious freedom to be better supported and protected around the world, and highlights the critical role religious freedom should play in U.S. foreign policy.

The passage of this law is a nice Christmas gift. We now hope it is acted upon and fully implemented.

Buzzfeed to Christians: No Freedom for You!

by Travis Weber

November 30, 2016

Much ink has been spilled over the assertion that the activist wing of the LGBT movement does not want to infringe on religious freedom, but only wants protections for itself.

Anyone who still seriously thinks this is true needs to wake up and look around.

The latest alleged outrage disproving this theory is a Buzzfeed “news” story titled: “Chip And Joanna Gaines’ Church Is Firmly Against Same-Sex Marriage.” The entire article is devoted to talking about how the well-liked and successful couple of the HGTV show Fixer Upper attend a Christian church that holds to the biblical view of marriage. The article then reviews the pastor’s comments reflecting this belief. If you’re waiting for more, you’ll be disappointed. That’s it. That’s the entire article.

Why this is a news story is unclear; there is nothing new or noteworthy in it. The church even told the reporter it has held the same views on marriage for 17 years. Where was Buzzfeed before when that “news” broke?

The entire point of this story appears to be to generate controversy and direct hostility toward the Gaines family. Thankfully, many Buzzfeed readers are quite dissatisfied with this approach, the top comment stating:

This is the dumbest story I have ever heard. It’s like a witch hunt for their beliefs, to try [to] stir the oil from a pot into the flames of the stove. This kind of article is exactly what is wrong with the media. Don’t go reaching out for a reason to hate people. The Gaines seem to be a wonderful couple and unless they are hurting anyone why does it matter. Also their beliefs are their own just like every other person. Don’t touch and don’t spew hate, this article is asking for hate to be spewed.”

Exactly. This is why most Americans can’t stand the intolerance of the modern progressive media and their allies in the activist wing of the LGBT movement. Most Americans want to be left alone to live in peace, and believe it’s ok for people to have different views. That’s the whole point of America. Not so for modern progressives. They have to force you to believe as they do.

This should be a lesson for Christians who think they can ignore the society around them. The Gaines have done nothing here—nothing except attend an orthodox Christian church and do their job well enough to draw the attention of busybody “news” sources. Christians who think radical progressive activists and their allies in the LGBT movement will not bother them are mistaken. At this time, those trying to live out their Christian faith in the marketplace and government are under scrutiny. But when the activists are done with them they will turn their attention to the churches. After all, that’s what happened here. Would there be a “story” if the Gaines’ church caved to pressure and abandoned its biblical position on marriage?

Countless Christians across our land wake up every day and do exactly what the Gaines have done here—work hard at their job and participate in the life of their local church. Most just haven’t been famous enough to be noticed. However, they won’t be able to live in peace forever.

Those who hear about religious freedom and think it’s still an issue for everyone else to deal with must grapple with what is happening to the Gaines’s. They won’t be able to avoid it forever.

Marine Corps: Spiritual Fitness Is a Necessary Component of Effective Military Service

by Travis Weber

November 22, 2016

Recently, the Marine Corps announced it is planning to develop a program of “spiritual fitness training” in order to “build the kind of mental resilience necessary for war,” according to chaplain Rear Admiral Brent Scott.

This is a welcome development, and it is good to see the military formally recognize a very basic truth about the human person: we are more than just a collection of muscle, bones, and tissue.

After a long time in the Middle East, Scott said he “found that much of the resilience we saw was not necessarily attributed to something that somebody could do in the gym. A lot had to do with the heart and soul of the individual.” Training is needed to develop this spiritual component of our humanity as it relates to military service. It will be a success, Scott notes, “if Marines begin talking about spiritual fitness and maintaining spiritual health as openly as they discuss physical fitness and physical training.”

A moral compass doesn’t just come from a faith foundation; it’s not enough to make a decision based on what is legally right or wrong,” Scott said. “Chaplains will help Marines discover that compass for themselves—that center of gravity that comes from their own upbringing, personal experiences, and religious teaching.” 

The message on the subject from the Commandant of the Marine Corps states as follows:

  1. Fitness is a vital part of being a United States Marine. Although we all understand the importance of being physically fit, it is also important to remember the other three aspects of overall fitness: spiritual, mental, and social. All of these aspects are essential to the well-being of each individual Marine and Sailor, and our Corps as a whole.
  2. As Americas force in readiness, we must be prepared to answer our Nation’s call on a moment’s notice. A large part of that ability is our capacity for resilience. Regardless of the battle we just fought, we must be ready for our next success. Research indicates that spiritual fitness plays a key role in resiliency, in our ability to grow, develop, recover, heal, and adapt. Regardless of individual philosophy or beliefs, spiritual well-being makes us better warriors and people of character capable of making good choices on and off duty.
  3. Beginning in October, the Marine Corps will be emphasizing all components of fitness, particularly the physical and spiritual aspects. During this time, I ask each of you to reflect on what you and the Marines and Sailors you lead are doing to achieve and maintain an optimal level of strength and resilience. Your leaders and chaplains at all levels stand ready to engage with you in this task. By attending to spiritual fitness with the same rigor given to physical, social and mental fitness, Marines and Sailors can become and remain the honorable warriors and model citizens our Nation expects.

Exactly right. This observation of the importance of spiritual fitness for our service members follows a long tradition of recognizing the importance of faith in our military. Early in our country’s history, George Washington recognized the need for chaplains in the military (and also that they be of a variety of faiths). Today, former Army Ranger Jeff Struecker describes how his spiritual strength helped him through the intense and traumatic moments of the Battle of Mogadishu, Somalia: “I had a very strong Christian faith before joining the Army. It gave me this overwhelming sense of peace when most people were around me panicking. The next day, many people were asking me how I kept it together. God was leading me. I became an Army chaplain. It was directly a result of the day after this battle in Mogadishu.”

In addition, spirituality is a crucial component of medicine and wellness,[1] and can’t be separated from the healing process which our veterans and service members undergo after returning from war.

As we continue to face instances of religion being scrubbed from the military, whether through the removal of Bibles from public displays in military facilities, or the censorship of religious references by commanders, the Marine Corps’ action reminds us of the potentially detrimental effects of the elimination of the spiritual aspect of military service.

It is undeniable that the spiritual component of our human nature plays an important role in the business of warfare. It must be addressed, and we neglect it at our own peril. For these reasons and more, the Marine Corps’ announcement recognizing its importance is welcome indeed.



[1] See David A. Lichter (D. Min.), “Studies Show Spiritual Care Linked to Better Health Outcomes,” Literature Review, Catholic Health Ass’n of the United States (March-April 2013); and, for example, Christina M. Puchalski (M.D.), “The Role of Spirituality in Health Care,” Proc (Baylor Univ Med Cent), 2001 Oct; 14(4): 352-7; Christina M. Puchalski (M.D.), “Improving the Spiritual Dimension of Whole Person Care: Reaching National and International Consensus,” J Palliat Med, 2014 June 1; 17(6): 642-656 (doi: 10.1089/jpm.2014.9427). Puchalski (2001), n.2, observes: The Joint Commission on Accreditation of Healthcare Organizations has a policy that states: “For many patients, pastoral care and other spiritual services are an integral part of health care and daily life. The hospital is able to provide for pastoral care and other spiritual services for patients who request them” (26).

Corporations Can Push Back Against Anti-Religious Freedom Activists

by Travis Weber

November 18, 2016

One important bit of recent religious liberty news which hasn’t gotten much attention is the pushback by Proctor & Gamble shareholders against anti-religious freedom activists seeking to eliminate corporate neutrality and enlist large firms in their culture war exploits. This is a promising development, and shows that large corporations abandoning their neutrality and enlisting in the battle against religious freedom is not inevitable.

When it was recently proposed that the “company should join Apple, PayPal, Disney, and others in the political fight against religious freedom laws in Mississippi and Tennessee and should take a stand against North Carolina’s transgender restroom policy,” 94% of shareholders rejected the idea. Such a rejection shows there is sanity in the corporate world, after all.

In recent years, large corporations have almost universally abandoned their cultural neutrality and sided against religious freedom laws at the state level, many times issuing threats to pull out of the state or not expand if such laws are not eliminated. State officials often capitulate, believing resistance is futile.

This development within Proctor & Gamble shows that the struggle is not in vain, however, and all citizens and government officials alike should take heart and understand that this is a fight worth having.

State-Sanctioned Discrimination in Georgia

by Mandi Ancalle

November 4, 2016

A new type of discrimination seems to be at play in Georgia, and it appears to be sanctioned by the state. Two African-American Christian men have been fired from their roles serving the state and its municipalities for holding religious views about human sexuality. People with sincere religious views are now being marginalized in Georgia, where just last year, Governor Nathan Deal vetoed a religious liberty bill saying, “I find it ironic that today some in the religious community feel it necessary to ask the government to confer upon them certain rights and protections.”

What is ironic is the fact that Governor Deal could “find no examples” of discrimination based on religion in Georgia, despite the existence of the ongoing case of Fire Chief Kelvin Cochran. Chief Cochran was removed from the Atlanta Fire Department for expressing his religious views about marriage in a devotional book he wrote on his own time. A non-profit litigation firm is litigating his discrimination case against the City of Atlanta.

It is also ironic that Governor Deal quipped, “If indeed our religious liberty is conferred by God and not by man-made government, we should heed the ‘hands-off’ admonition of the First Amendment to our Constitution.” Indeed, Georgia should follow the hands-off admonition of the First Amendment, rather than discriminating against people simply for exercising their religion and terminating those individuals’ public service.

In fact, mere months after Governor Deal made that statement, the state of Georgia fired yet another public servant because of his religious views. Dr. Eric Walsh was fired from the Georgia Department of Public Health for statements he made during sermons he delivered at his church. His sermons, delivered over a period of years prior to his being hired, included his religious beliefs and viewpoints on social and cultural issues such as health, music, marriage, sexuality, world religions, science, politics, and other matters of concern. Dr. Walsh and Georgia’s other public servants are in need of explicit statutory protections that ensure their First Amendment rights will be respected by the state.

The legislature can easily address the concerns of Dr. Walsh, Fire Chief Cochran, and Georgians across the state, particularly as it relates to their religious views about human sexuality by passing the Government Non-Discrimination Act. The Government Non-Discrimination Act is a simple bill that would ensure that the state respects Georgia’s first freedom, the freedom of religion.

Specifically, the Government Non-Discrimination Act says, “the State shall not take any discriminatory action against a person, wholly or partially on the basis that such person believes, speaks, or acts  in accordance with a sincerely held religious belief or moral conviction that: (1) marriage is or should be recognized as the union of one man and one woman; (2) sexual relations are properly reserved to such a marriage; or (3) male (man) and female (woman) refer to distinct and immutable biological sexes that are determinable by anatomy and genetics by time of birth.” The Government Non-Discrimination Act goes on to define types of “discriminatory action,” which includes withholding and terminating employment, the type of discrimination Dr. Walsh and Fire Chief Cochran have experienced.

By passing the Government Non-Discrimination Act and sending it to Governor Deal’s desk, the legislature has the opportunity to reassure Georgians that religious freedom is of the utmost importance in the Peach State. And, as people relocate to the cities and countryside of Georgia to work for the state, they can rest assured that they will not be oppressed because of their religious beliefs.

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