Category archives: The Courts

Kim Davis: The Issues of Accommodation and Burden

by Rob Schwarzwalder

September 8, 2015

In Kentucky, Rowan County Clerk Kim Davis has just been released from jail for refusing to issue marriage licenses to same-sex couples.

There is a lot of misunderstanding about the nature of Mrs. Davis’s case. Various Christian writers have argued that she is embarrassing Evangelical faith, that she simply should resign, that Christian leaders’ rhetoric defending Mrs. Davis is overheated, etc.

What they are failing to consider are two essential concepts that underlie the Davis case. They are these:

Accommodation. Does not Mrs. Davis deserve some kind of accommodation? We accommodate so many other religious beliefs in both government and private-sector workplaces. Can we not find one for Mrs. Davis and others like her who, out of the integrity of their consciences, cannot do something that abrades the very core of their religious convictions?

That’s why FRC is asking Kentucky Gov. Steve Beshear to call “for a special legislative session and establishing statutory accommodations for clerks like Kim Davis.” As noted by legal scholars Craig Bertschi (Kilpatrick Townsend law firm) and Nathan S. Chapman (University of Georgia School of Law) in their brief on behalf of Hobby Lobby, “the Free Exercise Clause requires some religious accommodations;” in point of fact, some 2,000 such accommodations now exist. As they write in the conclusion of their brief, “When Congress provides religious accommodations consistent with the government’s compelling interests, including its interests in protecting third parties, it supplements, rather than contradicts, the Religion Clauses’ protection of religious liberty.”

The federal government has a “compelling interest” to honor the freedom of religion. As the Founders argued, duty to God precedes duty to the state. This precept is essential to the very heart of our system of government. The same can be said of state governments as well.

Burden. The same-sex couples seeking marriage licenses have many other venues from which to obtain them. There are other, simple, only marginally inconvenient ways for them to obtain them.

The Religious Freedom Restoration Act (RFRA), passed by the U.S. Senate 97-3 and signed by President Clinton in a major public ceremony, makes this clear.

At the signing ceremony, the President said, “This event assumes a more majestic quality because of our ability together to affirm the historic role that people of faith have played in the history of this country and the constitutional protections those who profess and express their faith have always demanded and cherished.” Note his choice of word – both “profess” and “express.” Faith that is merely emotional or intellectual but whose public expression is stultified is not the kind of active faith to which religious devotion calls its followers.

Additionally, Kentucky has a RFRA which similarly requires the state government to offer an accommodation to people like Mrs. Davis unless the government can prove it has a compelling interest to advance and is doing so in the least restrictive way possible.

Writing in The Public Discourse, Kim Colby, Director of the Center for Law and Religious Freedom at the Christian Legal Society, says RFRA “incentivizes government officials to find mutually beneficial ways to accomplish a governmental interest while respecting citizens’ religious exercise—a win-win solution for all.”

Put simply, Mrs. Davis is being burdened in a manner wholly unfamiliar to those advocates of religious liberty who drafted and enacted RFRA only 22 years ago. The burden imposed on her is an unfair one for a simple reason: There are other recourses for those same-sex couples seeking legal legitimation of their unions.

For example, as Newsweek reports, Mrs. Davis’s attorneys have argued there are options “other than mandating the clerk’s name on all marriage licenses. They (range) from having the county judge executive issue the licenses to allowing a deputy clerk to issue them devoid of Davis’s name or authority as Rowan County Clerk.” Indeed, as reported in today’s Washington Post, “The licenses issued Friday (September 4) were altered to remove Davis’s name. They now say they are issued in the office of ‘Rowan County, Rowan County County Clerk’.”

In other words, there are ways in which same-sex couples can obtain marriage licenses that respect Mrs. Davis’s religious conscience and that do not unduly burden those couples in their pursuit of marriage licenses. And clearly, Kentucky has not met its state RFRA’s requirement that the government advance any interest in the least restrictive way possible.

This situation casts into large and vivid relief the kinds of issues the Supreme Court’s 5-4 ruling redefining marriage has placed before the country. Religious liberty in its fullest sense is at stake.

Surely, for Kim Davis and myriad Americans like her, accommodations can be found and unnecessary burdens lifted.

Kentucky public officials can’t refuse to do their job … unless they’re liberal?

by Peter Sprigg

September 8, 2015

Kim Davis is the Kentucky county clerk who was recently jailed by a federal judge for her refusing to violate her Christian conscience by issuing marriage licenses under her name and by her authority for same-sex unions. One of the chief arguments made against her conduct is that public officials cannot refuse to do the duties of their job.

So as I was researching this story, I found this excerpt, from an Associated Press article shortly after the Supreme Court’s ruling ordering recognition of same-sex marriage in June, rather interesting:

It began in March 2014 when Kentucky Attorney General Jack Conway — a former U.S. Senate candidate who is now running for governor — decided not to appeal the initial federal court decision that overturned Kentucky’s same sex marriage ban. During an emotional news conference at the Capitol, he said that to appeal would be to defend discrimination.

However, Democratic Gov. Steve Beshear later overruled Conway and hired private attorneys to defend the state’s ban in federal court.

His job as governor was to take the emotion out of it and say, ‘What’s the rule of law going to be?” said Colmon Elridge, Beshear’s longtime aide. “And the only way to do that was to get a final ruling from the Supreme Court.”

 . . .

Conway, meanwhile, has faced critics who suggest he ignored his duties as attorney general. While Republican nominee for governor Matt Bevin criticized the Supreme Court’s ruling, he especially targeted Conway, who he said “abandoned his oath of office.” Bevin said Conway’s “failure to do his job … disqualifies him from being elected to the office of governor.”

How can voters trust him not to break his oath again?” Bevin said.

Whitney Westerfield, the Republican nominee for attorney general, also blasted Conway in his reaction to the court’s decision.

Unlike Attorney General Jack Conway, who failed in his responsibility to fight for the laws of this commonwealth, as Attorney General I will act to uphold the law even as it runs counter to my personal beliefs,” Westerfield said in a news release.

Did anyone try to put Attorney General Conway in jail for refusing to do his job?

Colorado Appeals Court Refuses to Protect Religious Freedom

by Travis Weber

August 18, 2015

The Colorado Court of Appeals recently ruled against Masterpiece Cakeshop and its owner Jack Phillips, affirming an administrative ruling that Phillips discriminated against homosexuals as a protected class, and directing him to bake a cake for a same-sex wedding—in spite of his religious objections to being forced to help celebrate a same-sex marriage. Phillips may now appeal to the Colorado Supreme Court, and possibly the U.S. Supreme Court, but his opportunities for vindicating his religious freedom in the courts are running out.

While David French does a good job of breaking down the ruling and summarizing its problems at National Review, I want to focus on one very problematic portion of the decision, buried at the end of Footnote 8: the court’s attempt to distinguish and reject a Kentucky judge’s decision earlier this year vindicating the right of a printing business, Hands on Originals, and its owner Blaine Adamson, to not be forced to print t-shirts for a gay pride parade. The Colorado Court of Appeals acknowledged the similarity of the Hands on Originals case, but then attempted to (unsatisfactorily) distinguish the two:

[In Hands on Originals], evidence established that the T-shirt printer treated homosexual and heterosexual groups alike… . Specifically, in the previous three years, the printer had declined several orders for T shirts promoting premarital romantic and sexual relationships between heterosexual individuals, including those portraying strip clubs and sexually explicit videos… .

Although [Hands on Originals], like Masterpiece, based its refusal on its opposition to a particular conduct—premarital sexual relationships—such conduct is not “exclusively or predominantly” engaged in by a particular class of people protected by a public accommodations statute… .

Opposition to premarital romantic and sexual relationships, unlike opposition to same-sex marriage, is not tantamount to discrimination on the basis of sexual orientation.”

At best, this is sloppy analysis. At worst, it’s an intentional slight-of-hand to get rid of an unhelpful case. Unfortunately, I suspect it’s the latter.

What the court misses in its characterization above is that Adamson was not primarily acting out of opposition to any one activity or group, but was simply seeking to live out his faith—which might be manifested from time to time in specific situations as being in opposition to certain behaviors that he finds morally objectionable. Adamson’s refusal to print the t-shirts was not primarily “based … on [his] opposition to a particular conduct—premarital sexual relationships,” but was based on the exercise of his one cohesive set of religious beliefs—which apply to many different types of sexual conduct.

The court fails to mention that Hands on Originals was charged with sexual orientation discrimination for not wanting to make t-shirts for a gay pride parade. Adamson was able to point to other instances where he lived out his beliefs at work—beliefs, just like those of Phillips, which are opposed to any sexual activity outside of God’s design, which includes opposition to any sexual activity outside of marriage between a man and a woman.

Phillips sought to live out the same beliefs. The fact that he hasn’t had the “opportunity” to decline business from customers seeking to celebrate other types of sexual activity outside God’s design doesn’t convert his actions into discrimination against homosexuals as a class of people. The court didn’t seem to comprehend this point in erroneously distinguishing the Hands on Originals case. Indeed, Phillips was happy to serve customers regardless of sexual orientation; he just didn’t want to be implicated in their same-sex marriage.

Jack Phillips of Masterpiece Cakeshop was living out the same beliefs as Blaine Adamson of Hands on Originals. The Colorado Court of Appeals should have likewise recognized and protected his freedom of belief. We must hope that other courts will have the courage to do so.

An Insufficient Accommodation

by Lindsey Keiser

August 3, 2015

Can an accommodation be accompanied by a requirement that essentially negates the accommodation and still be seen as sufficient?

To answer this question, we can use a simple example, which arises in the context of employment.

When you ask for a day off – and that day off is granted – you do not expect to be required to come in on your day off in order to tell your boss you won’t be there for the day. That would negate the grant of the day off.

The same is true when religious organizations ask for an accommodation from the employer mandate of the Affordable Care Act and the government offers an accommodation which does not fully meet the requests of these organizations regarding protection of their religious beliefs. Such an “accommodation” does not eliminate the burden on the religious organizations, yet courts have been approving the government’s “accommodation” as sufficient. Continuing the string of judicial denials of religious organizations’ requests, the Tenth Circuit recently denied an appeal from the Little Sisters of the Poor Home for the Aged (Little Sisters) finding that, with the “accommodation” offered by the government, there was no substantial burden on the group’s religious beliefs.

Religious organizations like Little Sisters, Priests for Life, and Notre Dame sincerely believe that life begins at conception so they object to providing abortive contraception as part of their employee health insurance plans. As a result of their sincere belief, these non-profits have asked for an accommodation under the HHS Mandate citing the protections of the First Amendment and the bar on the government substantially burdening the free exercise of religion. The religious non-profits have asked to not be required to participate in any aspect of the provision of abortive contraception.

Requiring these organizations to provide abortive contraception in contravention of their beliefs would be a substantial burden which HHS has recognized and for which HHS has created an accommodation. The current accommodation allows religious non-profits to voice their objection to providing abortive contraception by filling out a form or directly notifying HHS. After HHS receives notice of the objection, the insurance company offers and provides the abortive contraception to the employees.

The question remains, however, whether this “accommodation” is actually sufficient.

Yes, the organizations only have to fill out a form or notify HHS of their religious objection, but the mechanism of notification is not the problem. The problem is that the accommodation doesn’t change the end result. Abortive contraception is still being provided as a result of the fact that the organization provides health care for its employees.

As some dissenting judges in the Priests for Life stated, “Where the government imposes a substantial burden on religious exercise and labels it an accommodation, that burden is surely as distressing to adherents as it would be if imposed without such a designation.”

The answer to whether there is a substantial burden even with the current accommodation is tied to our understanding of an accommodation. When we look at the example in the graphic above, it is fairly clear that the agreement made by the boss does not adequately meet the employee’s request for a day off. Similarly, we should ask whether the current accommodation adequately meets the requests of religious organizations to not have to provide abortive contraception – or, as the Little Sisters have pointed out, to “take actions that directly cause others to provide them, or otherwise appear to participate in the government’s delivery scheme.”

The answer is no, the accommodation does not sufficiently meet the requests of these religious organizations and therefore, places a substantial burden on their religious exercise. The form or notification to HHS is an insufficient accommodation because the opting-out by the religious organizations is the direct cause of the receipt of coverage. The dissenting judges in the Priests for Life pointed out, “the harm plaintiffs complain of … is from their inability to conform their own actions and inactions to their religious beliefs without facing massive penalties from the government” (emphasis added by the dissenting judges). This harm does not disappear because their relationship to the provision of the abortive contraception becomes a little more attenuated.

Just as a day off from work which requires you to come into work is not really a day off, an insufficient accommodation is no accommodation at all.

Obergefell Prompts Instant, Unflinching Resistance in the True Church Reaction of Tenth Presbyterian (Philadelphia)

by Chris Gacek

July 14, 2015

The Supreme Court’s decree in Obergefell v. Hodges redefining marriage was marked by a smug, self-satisfied “we know best” attitude. That must be obvious because one does not overturn the public policy choices of tens of millions of voters and millennia of human experience without being arrogant. That said, Obergefell has another dimension to it: there is the unspoken assumption that after the Supreme Court speaks those who object to its decision will roll over and submit.

In the vast majority of cases that would be true. In this instance, however, the Supreme Court has badly misjudged the situation because its edict explicitly contradicts the teaching of the Church on matters of the definition of marriage and the dual nature of human sexuality (male/female complementarity). These are not negotiable positions. The press trumpets announcements from every wayward church but ignores the real story.

The real story is that orthodox churches have almost instantly discerned the severity of the situation but have not retreated an inch in refusing to accept the redefinition of marriage. Here is one example.

Tenth Presbyterian in Philadelphia (“Tenth”) is a significant church in the history of American Protestantism in the last one-hundred years. Truly major figures including Donald Grey Barnhouse, James Montgomery Boice, and Philip G. Ryken have been the senior ministers there. On July 2, 2015, the current senior minister, Liam Goligher, wrote a pastoral letter to the congregation about the Obergefell Supreme Court decision.

It is a powerful letter that minces no words and leaves no door open for accommodation:

The world is hostile to God and its institutions eventually reflect the widespread rejection of his law— [a] “mystery of lawlessness” is at work and we have already seen this in the abortion horror that has swept away the lives of millions of American children, and we see this daily in our own instinct to do things our own way. Perhaps an even greater evil was perpetrated in the redefinition of “freedom” as each individual having the freedom to pursue their own vision of happiness no matter its impact on others. That irrational view is likely to come back to bite us. SCOTUS may have had its say for now but there is a higher court and a greater judge before whom they and we must one day stand. The law of God does not rely on any human court or cultural consensus for its legitimacy.

Pastor Goligher added, “Marriage between a man and a woman was [God’s] idea—it perfectly expresses unity in diversity—and it remains the revealed setting for the continuation of our race; the best context for the raising of our children; and the sure foundation of a sane society.”

The Tenth will not be retreating – like myriad other churches across the nation. Is this really the fight the Supreme Court wants? I guess so.

Justice Kennedy and the Lonely Promethean Man of Liberalism

by Rob Schwarzwalder

July 9, 2015

In The Public Discourse, David Azerrad, director of the Heritage Foundation’s B. Kenneth Simon Center for Principles and Politics, has written the best analysis of the underlying philosophy of Justice Kennedy’s opinion I have yet read. It is penetrating, eloquent, and compelling. The full text follows.

Justice Kennedy and the Lonely Promethean Man of Liberalism

by David Azerrad

July 8th, 2015

Conjured as it was from Justice Kennedy’s imagination, the Supreme Court’s decision in Obergefell v. Hodges has little to teach us about the Constitution. It does, however, afford us keen insights into the liberal worldview. In the opinion, it is less Anthony Kennedy the Supreme Court Justice than Anthony Kennedy the aspiring liberal political theorist who speaks.

Woven throughout his musings on the dynamic synergies between the various clauses of the Fourteenth Amendment is the central premise of modern liberalism: individual autonomy. It is the very first argument that the Court offers on behalf of the newfound constitutional right to same-sex marriage.

Indeed, in the opening sentence of the decision, Kennedy proclaims all individuals free “to define and express their identity,” thereby echoing his even more grandiloquent pronouncement in Planned Parenthood v. Casey that at “the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

On this foundation, the edifice of modern liberalism is built. We are all sovereign individuals, radically free to fashion and refashion ourselves into anything we so please at any point in our lives. Man is the undefined animal. He is auto nomos—self-legislating. Neither God, nor nature, nor tradition, nor the obligations he previously contracted may hem him in. Bruce Jenner may become Caitlyn whenever she so pleases—and then become Bruce again if he wants.

Beyond the rudimentary demands of refraining from harming others, nothing may constrain the choices we make in defining and redefining our identity. This is democratized, domesticated Nietzscheanism. Prometheus not fully unbound—just mindful of the rights of others. This, it should be pointed out, is also the starting-point of libertarianism—but also its end point. Not so for liberalism.

Loneliness, Insecurity, and the Need for Recognition


Liberalism’s exalted view of man’s limitless possibilities, paradoxically enough, is not accompanied by an equally exalted view of his inner strength and resolve. One might think that liberalism would encourage individuals to trust in themselves and to be scornful of society’s staid bourgeois conventions in defining and expressing their identity.

It doesn’t. For all his purported god-like powers of self-creation, liberal promethean man is actually a weak, insecure, and isolated individual. It is not enough that he define and express his identity. He needs others to recognize it, embrace it, and celebrate it. He needs the state to confer dignity upon it.

Otherwise, he may find himself marginalized by his peers, crippled by their disapproving looks, and insecure in his choice of an identity. After all, a particular lifestyle or living arrangement may not be illegal, but it can still be viewed as dishonorable by some. Even before the Court’s ruling, gay couples could marry in a house of worship or banquet hall in any of the states that still defined marriage as the union of a man and a woman. But they carried the lack of state recognition for their marriages like the mark of Cain.

Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty, ” explains Kennedy. The Court’s opinion is replete with references to stigma, hurt, and humiliation. “It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society.” It is therefore incumbent upon the state to dignify them. As Matthew Franck wrote in Public Discourse last week: “In Kennedy’s mind, the Constitution has been converted into a great Dignity Document.”

An earlier generation of liberals would have told the man to go to hell with his marriage certificate. “We don’t need no thought control,” they would have yelled. “All in all you’re just another brick in the wall!” To have the suits recognize your alternative lifestyle would have defeated the whole purpose of embracing it in the first place.

Contemporary liberalism, by contrast, views man as a weak and fragile creature. Adversity doesn’t forge character. It stigmatizes and demeans. Unless others affirm our choices, they are worthless. We have no unshakable inner convictions or faith. We are all insecure.

Promethean man, it turns out, is a pathetic creature. He thinks himself the measure of all things, but must in fact have his solipsistic existence be publicly affirmed and dignified by the state. He is simultaneously everything and nothing.

Kennedy’s Feigned Appeal to Nature

Liberalism’s celebration of human autonomy is obviously incompatible with any conception of an unchosen nature that restricts our scope of action. Nevertheless, Kennedy twice appeals to the idea of a permanent nature in the decision. Homosexuals have an “immutable nature,” he asserts. They are born gay and cannot change. So are heterosexuals, bisexuals, and all other flavor-du-jour-sexuals for that matter: “sexual orientation is both a normal expression of human sexuality and immutable.”

The essence of liberty is the freedom to define and express one’s identity, just not when it comes to sexual orientation, which is innate and immutable. We can choose our gender—that is not fixed at birth—but our sexual orientation is handed down to us by the gods and must be accepted with passive resignation (for a contrasting view, see this Public Discourse essay by Paul McHugh and Gerard Bradley).

Turning to marriage, Kennedy implicitly carves out another exception to the realm of autonomy. Marriage, though clearly not possessing a permanent nature, is nevertheless “essential to our most profound hopes and aspirations.” This implies that happiness outside of marriage is not possible. No one will be forced to get married—but all who aspire to be happy (and who doesn’t?) will want to. Marriage is no longer what earlier liberals called an “obscene bourgeois institution” or “a comfortable concentration camp.”

Only marriage can respond “to the universal fear that a lonely person might call out only to find no one there,” writes Kennedy. Not to marry is to “be condemned to live in loneliness.” Lovers, friends, parents, siblings, cousins, aunts, uncles, nephews, nieces, neighbors, coreligionists, brothers-in-arm, colleagues—none of them can be counted on to respond to our lonely cries of anguish. All bachelors are not only unmarried—they’re also unhappy.

All this adds up to a really interesting coincidence. In deliberating on the question of gay marriage, Justice Kennedy proclaims that we are absolutely free to be who we want to be—except when it comes to gayness and marriage.

Only Kennedy’s syllogism trumps autonomy:

1. Everyone has a right to pursue happiness.

2. No happiness is possible outside of marriage.

3. Sexual orientation being immutable, gay marriage is therefore a right.

Either Kennedy is a sloppy thinker who hasn’t thought through the implications of the autonomy he celebrates, or this is a calculated move on his behalf to elicit public support for his pronouncement by bending his argument to appeal to two widespread beliefs: people are not responsible for their genes, and marriage is good.

Either way, this is not a rigorous argument. But it is fitting that a decision that reveals the contradictions of modern liberalism should also reveal the contradictions of Kennedy’s arguments.

GOP Reiterates Support for Marriage, Post-SCOTUS

by Suzanne Bowdey

June 30, 2015

House Leadership

Speaker Boehner

Whip Scalise 


VAT House Leadership

Chairman Joe Pitts

Chairman John Fleming

Chairwoman Vicky Hartzler


VAT Senate Leadership

Sen. Blunt—“I’m disappointed in this decision.  My view is that family issues in Missouri like marriage, divorce, and adoption should be decided by the people of Missouri.” 

Sen. Ernst—”I am disappointed by the Supreme Court’s decision and its failure to recognize the freedom of our states to make their own decisions about their respective marriage laws.  While it is my personal belief that marriage is between one man and one woman, I maintain that this is an issue best handled at the state level.”

Sen. Scott—“I continue to believe that marriage is between one man and one woman. The Supreme Court’s overreach into decisions that should be made by states and the people living and voting in them is disappointing. Moving forward, we must ensure families and religious institutions across America are not punished for exercising their right to their own personal beliefs regarding the traditional definition of marriage.” 


House Members

Rep. Aderholt

Rep. Babin

Rep. Barr

Rep. Black

Rep. Blackburn

Rep. Bost

Rep. Boustany

Rep. Brady (TX-08)

Rep. Byrne

Rep. Carter

Rep. Coffman

Rep. Culberson

Rep. Flores 

Rep. Forbes

Rep. Fortenberry

Rep. Foxx

Rep. Gohmert

Rep. Goodlatte

Rep. Griffith

Rep. Grothman

Rep. Hensarling

Rep. Huelskamp

Rep. Johnson (OH-6)

Rep. Jordan

Rep. Kelly

Rep. King (IA-04)

Rep. Labrador

Rep. Lamborn

Rep. Long

Rep. Marchant

Rep. Mullin

Rep. Olsen

Rep. Palazzo

Rep. Palmer 

Rep. Price

Rep. Ratcliffe

Rep. Smith (TX-21)

Rep. Smith (MO-08)

Rep. Stewart

Rep. Tiberi

Rep. Walberg

Rep. Walker

Rep. Weber

Rep. Westmoreland

Rep. Williams

Rep. Womack

Rep. Woodall

Rep. Yoho



Sen. Alexander

Sen. Ayotte

Sen. Capito

Sen. Coats

Sen. Daines

Sen. Grassley

Sen. Fischer

Sen. Hatch

Sen. Heller

Sen. Inhofe

Sen. Lankford

Sen. Lee

Sen. McCain

Sen. Rubio

Sen. Sasse

Sen. Sessions

Sen. Wicker


Presidential Candidates













Supreme Chaos

by Rob Schwarzwalder

June 30, 2015

Last week, the Supreme Court overturned the votes of more than 50 million people in 31 states concerning same-sex marriage, finding, instead, a constitutional “right” for same-gendered persons to marry. They blithely dismissed the will of the voters in order to find this “right,” rejecting the Tenth Amendment’s affirmation that those things not specifically articulated in the Constitution as within the province of the federal government belong to the states and the people.

In a ruling on the shaping of congressional districts, issued today, Justice Ruth Bader Ginsburg – a leading advocate of a constitutional “right” for same-sex partners to marry – wrote the following: “The animating principle of our Constitution [is] that the people themselves are the originating source of all the powers of government.”

Affirming federalism is not a matter of whim; it is foundational to our system of government, even our existence as a nation. Yet, troublingly, this subjective application of the Founder’s political philosophy seems to be the pattern of our current Supreme Court.