Category archives: Religious Liberty

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

by Andrew Rock

June 12, 2018

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

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

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

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

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

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

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

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

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

by Peter Sprigg

June 8, 2018

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

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

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

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

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

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

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

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

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

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

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

Masterpiece Cakeshop: Summary of Each Supreme Court Opinion

by Peter Sprigg

June 7, 2018

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

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

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

Here’s an overview of each opinion:

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

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

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

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

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

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

Kagan concurring, with Breyer joining:

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

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

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

Gorsuch concurring, with Alito joining:

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

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

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

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

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

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

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

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

Ginsburg dissenting, Sotomayor joining:

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

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

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

Commentary

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

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

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

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

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

by Travis Weber

June 4, 2018

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

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

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

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

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

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

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

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

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

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

by Peter Sprigg

May 10, 2018

It seems that we have gone from the culture wars to the “fact-check” wars. One has been underway in recent weeks over a bill making its way through the California legislature.

Put the words “California Bible ban” in a Google search and you will see what I mean.

The California Family Council and Alliance Defending Freedom were among the first to raise the alarm that Assembly Bill 2943 could be interpreted to ban sales of the Bible. Snopes, FactCheck.org, and PolitiFact all tried to debunk the claim. The FactCheck piece reproduces an April 22 tweet from the bill’s sponsor, Assemblyman Evan Low, stating, “It does not ban bibles nor does it ban the basic sales of books as some would have you believe.” But a number of careful and thoughtful conservative writers—such as Michael Brown, David French, Rod Dreher, my colleague at Family Research Council Travis Weber, and Robert Gagnon (here and here) have continued to express alarm about the bill (albeit with slightly different emphases). Does Assembly Bill 2943 actually “ban the Bible” in California? In one sense, no—but in another sense, maybe. Sometimes, what is needed is a not a “fact-check” with a simple true or false answer, but a “perspective check,” explaining why some people make a particular argument and what evidence they cite to support it.

What AB 2943 Does Not Do

Let me state a couple things that are definitely not true about AB 2943 and the Bible, which some of the more sensational headlines about “California wants to ban the Bible” might be misinterpreted to imply.

First of all, “banning the Bible” is definitely not the main purpose of AB 2943. Its purpose is to greatly expand an existing restriction (the first in the nation when enacted in 2012) upon the practice of “sexual orientation change efforts” (SOCE), now routinely referred to by critics (but rarely by practitioners) as “conversion therapy.” I have had concerns about some of the “Bible ban” talk, if only because the core issue—a ban on therapy for those with unwanted same-sex attractions—has sometimes been almost forgotten.

It is a fact that some people with same-sex attractions experience those feelings as unwanted; some of those have sought therapy or counseling to overcome those attractions; and some of those have testified to the success of such therapy in helping them overcome those attractions, and now identify as “ex-gay.” LGBT activists are offended that some people with same-sex attractions don’t want to be “gay,” so they are attempting to eliminate that option by claiming that such therapy is ineffective, as well as harmful to those who undertake it. (Family Research Council disputes those claims.) California’s 2012 law prohibited SOCE only for clients who are minors, and only when conducted by licensed mental health providers. AB 2943 would expand the ban to apply to clients of any age (including consenting adults), and any type of counselor (including religious ones), as long as there is an exchange of money for the service.

Secondly, there is no legislative language in AB 2943 that refers specifically to the Bible. As Snopes explained in its article debunking the supposed “Bible ban” claim, “California Assembly Bill 2943 does not mention the Bible, Christianity, or religion at all.” That sentence—with the key word being “mention”—is correct. (That does not mean it would not affect them, however.)

Thirdly, even if AB 2943 could have an effect upon the Bible, it would only be upon the sale of the Bible. The bill is in the form of an amendment to the state’s consumer fraud laws, so there must be some commercial transaction (involving an exchange of money) to trigger its provisions. The bill does not prohibit the possession, reading, publication, teaching, or free distribution of the Bible.

How Could AB 2943 Ban Sales of the Bible?

The concern that AB 2943 could be used to ban sales of the Bible is an inference from, rather than an explicit statement in, the language of the bill. However, the bill is thirteen pages long, most of which is just a recapitulation of the existing consumer fraud law. To understand the change that is being proposed, one has to search and extract the substantive language from the bill. Here are the key segments, with ellipses ( … ) where text has been omitted. First is the bill’s definition of “sexual orientation change efforts” (emphasis mine):

(i) (1) “Sexual orientation change efforts” means any practices that seek to change an individual’s sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.

Here is the actual language prohibiting SOCE:

1770. (a) The following unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or that results in the sale or lease of goods or services to any consumer are unlawful:

 . . .

(28) Advertising, offering to engage in, or engaging in sexual orientation change efforts with an individual.

Key Words: “Behaviors” and “Goods”

How does this apply to the Bible? Likely through two key words, highlighted in the bill text above.

The first of these is “behaviors.” When most people think of “sexual orientation change efforts,” they probably think of the second part of the bill’s definition: efforts “to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.” LGBT activists claim that such “attractions or feelings” are innate and immutable. The same, of course, cannot be said about “behaviors,” which can be changed at will. I suspect, however, that those activists worried that if therapy to help people change their “behaviors” were permitted, it would constitute a loophole that would allow SOCE to continue.

The problem with outlawing “efforts to change behaviors,” however, is that almost all moral and religious teaching about how we should live involves “efforts to change behaviors.” “Don’t lie.” “Don’t steal.” “Treat your father and mother with respect.” There are all sorts of religiously-rooted assertions directing people to modify “behavior.” Let us not forget the age-old admonition: “Behave!” When Leviticus 18:22 cites God telling Moses, “You shall not lie with a male as one lies with a female” (NASB), that clearly seems to be an “effort to change behaviors.”

The second key word is “goods.” As noted above, the main purpose of the bill is to outlaw a certain type (or more accurately, a goal) of therapy, which would generally be considered a “service.” However, the ban on change efforts applies to any “transaction intended to result or that results in the sale or lease of goods or services to any consumer.” Although one bill critic has suggested that the language about “the sale or lease of goods” does not apply to SOCE, the term “any practices” in the definition of SOCE appears to be broad enough to encompass the practice of selling books.

No, the text of AB 2943 does not mention the Bible. But since the “sale … of goods” could include the sale of books (such as the Bible), and since the moral teachings of the Bible include “efforts to change behaviors” (such as homosexual behavior), critics of AB 2943 have warned that it could, at least theoretically, be used to ban the sale of Bibles in California.

Possible vs. Likely

Now, if AB 2943 is enacted, is California likely to leap directly to banning sales of the Bible? Perhaps not, for several reasons. As noted above, banning Bible sales is not the main purpose of the bill,  and while the Bible supports sexual orientation change (see 1 Corinthians 6:9-11), that is hardly its main theme. At least initially, a prosecutor would likely seek an easier target, and one more directly relevant to sexual orientation change efforts. In addition, it is likely that the Supreme Court (at least in 2018, as currently constituted) would strike down any effort to ban sales of the Bible.

Still, the argument that AB 2943 could, even theoretically, be used to ban sales of the Bible is an important one, if only because it demonstrates how sweeping and poorly written the bill is. That should be reason enough for California legislators to oppose it.

While the Bible may be safe in the short run, I have less confidence in the long run. Zack Ford is a homosexual activist and writer with ThinkProgress who wrote a piece claiming it is “nonsense” that AB 2943 would “ban the Bible.” Yet ironically, that same piece links to a 2016 article Ford wrote asserting that “When Gay People Are Told That Homosexuality Is A Sin,” that “message alone is harmful.” The assertion that a piece of moral teaching from the Bible is not merely incorrect, but is tangibly “harmful,” seems like a way of laying the groundwork for legal restrictions upon that very biblical teaching.

Which Books Would Be Banned?

Even if sales of the Bible in California continue unhindered (for now), what about other books? As I have already stated, I think the argument is strong that AB 2943 could be used, generally, to ban the sale of certain books.

Take a look, for instance, at the books in the photo at the beginning of this post. This is just a sample of the books I pulled off my bookshelf, from the library I have accumulated in 17 years at Family Research Council. The books pictured are not just ones that deal generally with Christian moral teaching on sexuality. Unlike the Bible, these eight books are specifically and entirely about sexual orientation change efforts.

There can be no question that the sponsors of AB 2943 would prefer that books like this did not exist. Could the bill be used to ban their sale?

Some supporters of therapy bans (a number of which have been enacted in the wake of California’s action in 2012) have argued that they do not prevent someone from expressing the opinion that homosexuality is undesirable, or expressing the opinion that it can change, or even expressing the opinion that therapy can facilitate such change. All they ban is someone actually undertaking such efforts. So maybe a few of these books would escape California’s new censors.

But what about James E. Phelan’s Practical Exercises for Men in Recovery of Same-Sex Attraction (SSA)? This book appears to have no purpose other than actually bringing about sexual orientation change in the men who read it. Under AB 2943, how could California allow “any practice” that includes the “sale of” this particular “good?”

Banning Books is Totalitarian

In the past few weeks, Christians have been shocked by the possibility of a state banning the sale of the Bible.

But shouldn’t every American be shocked at the thought of a state banning the sale of any books based on their philosophical, religious, or moral viewpoint?

Banning books because one doesn’t like their message?

In the United States of America?

In this country, you can sell all kinds of books.

You can sell Mein Kampf, and The Communist Manifesto. Bookstores sell the celebration of sado-masochism of Fifty Shades of Grey, and the celebration of sodomy in Allen Ginsberg’s Howl.

But now, California might ban the sale of Practical Exercises for Men in Recovery of Same-Sex Attraction? Or ban Coming Out Straight—just because it says that for “those who struggle with their own same-sex attractions,” it will “open the door to a new, happier, and fulfilling heterosexual life”?

The idea of banning books—any books—because the authorities don’t like their message is totalitarian. In the United States of America, it should be unthinkable. California legislators should affirm that it is unthinkable—by voting “No” on AB 2943.

Banning Therapy is Totalitarian, Too

While the prospect of the Bible—or any books—being “banned” from sale has focused attention on AB 2943, I hope it will also bring people’s attention to the central issue:

Banning a client-chosen goal of therapy is just as totalitarian.

By framing their assault upon the freedom of therapists and clients as an exercise of the state’s power to regulate health care or (in the case of AB 2943) to prevent “consumer fraud,” LGBT activists have masked how unprecedented these therapy bans are in the history of American law or counseling.

Note that what these bills seek to outlaw is not a particular therapeutic technique. While advocates will tell stories (some of them far-fetched) about being victims of “aversion therapy” techniques that have not been used in 40 or 50 years, the prohibition is not limited to “aversion therapy.” When pressed, sponsors must admit that they seek to outlaw ordinary talk therapy as well. What these laws and bills target is nothing more or less than a goal: “to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.” This is extraordinary.

Supporters of the bans will also imply that people are “coerced” into undertaking SOCE. That problem (if it exists) could be resolved by requiring “informed consent” before therapy. The prohibitionists reject that, insisting on banning all therapy, even if the client desperately wants it. (Can you imagine the outcry from some of these same activists on the Left if conservatives argued, “Because some women are coerced into having abortions, the only solution is to prohibit any women from obtaining them”?)

Therapy bans violate freedom of speech for therapists, freedom of religion for clients and therapists, and the privacy of the therapist-client relationship.

They should outrage every freedom-loving American, and should be opposed by every legislator.

Religious Liberty and National Security Go Hand in Hand

by Family Research Council

May 3, 2018

There is a gaping hole in American foreign policy today, and it is negatively affecting our national security and the security of the world.

There has been a ‘religious freedom avoidance syndrome’ in the State Department,” said Dr. Tom Farr, President of the Religious Freedom Institute, during a recent FRC Speaker Series panel discussion held in Washington, D.C.“…The problem with that … is that the world is religious. And if it is the business of American diplomates, which it is, to defend American interests in a highly religious world, staying away from religion simply doesn’t make sense.”

Professor Robert Destro of Catholic University of America pointed out that we need to work with other countries to make them realize that granting their citizens more religious freedom will actually promote their own self-interests. Studies show that increased religious freedom leads to the absence of religious violence, economic growth, a reduction in corruption, a decrease in infant mortality, better health outcomes, more literacy, more empowerment of women, and more.

Professor Destro also made the case that America needs to help its own Muslim citizens present the benefits of religious freedom to their Muslim counterparts in the Middle East, because it’s obvious that someone of the same faith as them can make the case much more effectively than non-Muslims. As Dr. Farr pointed out, extremist ideologies cannot be destroyed with bullets, they must be destroyed by better ideas.

Don’t miss the full panel discussion.

Be sure to read FRC’s full analysis of the religious freedom/national security issue.

Faith-Based Adoption Providers Must Be Allowed to Serve Needy Children

by Family Research Council

April 26, 2018

In America today, over 400,000 children are languishing in foster homes or other institutions, waiting for a chance to be adopted by a loving family. To help solve this crisis, it is obvious that parents who want to adopt need all the help they can get in being matched with a child, which means they need an adoption agency that understands their needs.

Instead, adoptive families who are religious are finding themselves left out in the cold. In Massachusetts, Illinois, Washington, D.C., San Francisco, and now Philadelphia, faith-based adoption agencies like Catholic Charities and Bethany Christian Services have been forced out of serving needy children because of their religious beliefs by progressive activist organizations like the ACLU, who demand that faith-based organizations affirm same-sex relationships or be barred from offering adoption services.

However, since there are plenty of adoption agencies who already serve same-sex couples, barring faith-based agencies from serving needy children is simply outrageous and will only compound the foster care crisis. As Rep. Mike Kelly (R-Pa.) pointed out at a recent Speaker Series event at FRC, Christian churches are the ones who started healthcare and adoption services in the U.S. to begin with, so to bar them from practicing their religious beliefs as they serve the public is counter-productive and benefits no one. As he succinctly observed, “If it’s the truth, it can’t hurt anybody.”

Because of the activism of extremists on the Left, legislation is clearly needed to protect faith-based adoption providers from discrimination. That’s where the Child Welfare Provider Inclusion Act (CWPIA) comes in. CWPIA simply “ensures all available agencies can continue to serve the 440,000 children in the foster care system and the more than 100,000 awaiting adoption.”

Be sure to view Rep. Kelly’s full remarks here.

For a complete analysis of the benefits of CWPIA, click here.

Who Owns Free Speech on the Internet?

by Family Research Council

April 19, 2018

In a timely panel discussion held recently at FRC, the question of free speech on the internet and the threats it currently faces was explored. In an era when 69 percent of Americans use social media every day, with Google monitoring its user’s activities on over 200 different platforms and Facebook generating $40 billion in ad revenue off of user-generated data, it’s vital to ask questions about how the concerns that users have about free speech and privacy are being handled in the hands of only a few unregulated tech giants who have a monopoly on the industry.

Brent Skorup, a Senior Research Fellow in the Technology Policy Program at the Mercatus Center at George Mason University, warned against conservatives “opening the door to regulation” of internet social media platforms like Facebook and Twitter. He gave the historical example of the FCC’s “fairness doctrine,” which was introduced in 1949 as a “neutral rule” that required broadcasters to present opposing viewpoints of controversial matters, but as Skorup pointed out, it was eventually weaponized by bureaucrats and used to drive out conservative and religious broadcasters from the marketplace.

Craig Parshall, Special Counsel to the American Center for Law and Justice, pointed out the danger that a monopoly poses when it is providing platforms for opinions and information. He emphasized that all conservatives and Christians want is an equal opportunity in expressing their “whole truth” and “political philosophy” to the public, just as progressives have.

Rep. Marsha Blackburn (R-Tenn.) expressed concern about how Facebook and other platforms are using algorithms to censor out political content that they don’t agree with. She noted that the bipartisan Browser Act would introduce an “opt-in” template so that users can protect their data from being harvested online if they so choose.

Don’t miss this lively Q&A discussion on the very difficult topic of whether or not social media platforms should be regulated in order to protect free speech, as well as the continuing controversy over internet free speech and privacy.

For the Sake of Our Security at Home, We Must Focus on Religious Freedom Abroad

by Travis Weber

April 5, 2018

In recent history, our foreign policy elites have primarily viewed religious freedom concerns as the parochial interest of humanitarian-minded pastors and religious freedom-focused human rights activists. Concerns were addressed when possible, yet the government handled problems on a one-off basis, usually to solve the annual flare-up over some imprisoned pastor somewhere. However, these religious freedom challenges haven’t been incorporated into any consistent, long-term, strategic thinking on foreign policy.

But what if they should be? One could argue the one-off approach hasn’t really advanced religious freedom worldwide, and that we should change the way we try to protect this right. Regardless, the assumption is that we are operating from a humanitarian basis. But what if the appeal was made on other grounds—that religious freedom is not simply a humanitarian concern, but that it is in the interest of our own security to advance it around the world?

Emerging evidence suggests that it is. As Professor William Inboden (who formerly served on the State Department’s Policy Planning staff and as senior director for strategic planning at the National Security Council) points out, “[t]here is not a single nation in the world that both respects religious freedom and poses a security threat to the United States.”

In a new FRC analysis released just yesterday, “Religious Freedom and National Security,” we make the case that the United States should not only promote religious freedom for its own sake, but also because it ultimately keeps us safer in the long run.

For a template, we can draw on the example of President Reagan, who unapologetically defended religious freedom on the world stage—confronting the Soviet Union, China, and others on this issue. Today, we face our own challenges posed by the spread of radical Islam and rising authoritarian governments—menaces whose suppression of religious freedom correlates with their threat to our national security.

With ongoing threats around the world which show no sign of abating, shouldn’t we at least be open to the possibility that we need to change our thinking on this issue, and address religious freedom violators because of their threat to our national security?

Just in the last several days, news has broken that China appears to be restricting the sale of Bibles and is also pushing a deal with the Vatican that would ultimately keep it in charge of appointing bishops.

It seems some of the same religious freedom problems President Reagan faced are rearing their heads today. It is time that we reclaim America’s historic role in engaging them, and firmly and strategically defend religious freedom around the world—for this will ultimately keep us safe at home.

Ben Shapiro: America Must Have a Shared Duty to God to Survive

by Daniel Hart

March 28, 2018

In a stirring speech given to supporters of FRC yesterday, The Daily Wire editor-in-chief and well-known political commentator Ben Shapiro drew a stark picture of how the loss of religion in America has led to a harrowing host of problems, including the growing threats to religious freedom and traditional values.

As Shapiro noted, however, this loss of faith has led to an even more fundamental breakdown: a loss of the desire to live at all, especially among the young. “There’s a crisis of meaning that is happening among young people. That crisis of meaning is directly related to the loss of religion in the United States. There is no doubt about this. The suicide rates have tripled among young people between 2006 and 2016. There’s a reason for this. Right now, young American children [who] are growing up in the freest, most prosperous country in the history of mankind are killing themselves at record rates. It is happening for a very specific reason. It is happening because we are not providing them meaning.”

Shapiro went on to argue that if transcendent truth is not taught and handed down to us, we tend to latch on to whatever popular platitudes (such as “diversity” and “equality”) that are being fed to us by the culture, because we all have the inherent desire to fill the God-sized hole in our hearts with something meaningful. But without a common purpose, Shapiro pointed out, “diversity tears people apart, because people tend to fall back into ethnic stereotyping [and] tribalism, and in large part that is what’s happening in the United States right now. We’re tearing each other apart because we don’t have a common vision of what the United States is supposed to be, and what we are supposed to be as human beings.”

The Founders understood this. Shapiro quoted George Washington, who said there exists “in the course of nature an indissoluble union between virtue and happiness, between duty and advantage. The propitious smiles of heaven can never be expected on a nation that disregards the eternal rules of order and right which heaven itself has ordained.”

We have decided to abandon [faith] in the United States,” Shapiro said, “but this is where we have to fight back.” How do we do this? By trusting in the Wisdom that has come down to us through millennia, which is the foundation of western civilization. Ultimately, Shapiro concluded, we are in a fight about what is most fundamental: “We are fighting about the meaning of human life. We are fighting about what human dignity is worth, and what our purpose is in the universe. And if we lose that battle, there are no other battles to be fought.”

View Ben Shapiro’s entire speech here.

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