Category archives: The Courts

Marriage and Conscience Act critic reveals his own hypocrisy and desire to discriminate

by Travis Weber

April 14, 2015

In a recent opinion piece on Louisiana’s Marriage and Conscience Act (HB 707), state representative and speaker pro tempore Walter J. Leger III tries to dictate morals to his constituents, but only ends up exposing his hypocrisy and desire to discriminate. Against who? Against religious people he doesn’t agree with, such as Richland, Washington florist Barronelle Stutzman, who has happily served gay customers but doesn’t want to be forced to service a same-sex wedding, and the owners of Memories Pizza in Indiana, who received death threats for simply holding traditional views on marriage. These people have never discriminated, but Rep. Leger doesn’t care. Why? Because he’s not interested in stopping discrimination. He’s interested in eliminating dissent and conforming all thoughts to his.

As if that wasn’t enough, Rep. Leger abuses American history and our founding documents, claiming what is “happening today in Louisiana with the proposed Louisiana Marriage and Conscience Act is a perversion of the lawsthat have been established to reflect the beliefs of a moral and religious people.”

I’m not sure how that is. The Marriage and Conscience Act will protect the consciences of a minority group of citizens. This is the very purpose of the entire Bill of Rights. Besides, a “moral and religious people” would hold no belief but the belief that marriage is the union of a man and a woman. Indeed, that’s why our country has never seen anyone even seriously suggest the idea that marriage could be between two people of the same sex for over its first two hundred years. If someone is not reflecting the views of a “moral and religious people,” it’s those who want to destroy the entire idea of marriage and family, and then violate the consciences of those who disagree by making them support the idea.

Rep. Leger pharisaically tries to decree the “correct” religious views to his constituents. Instead, he ends up insulting them and revealing what he’s really about.

Indeed, it is “moral and religious” people who now need protection. And it is these people who HB 707 would protect. All the bill would do is prohibit the government from taking “any adverse action against a person” due to that person’s “religious belief[s] or moral convictions[s] about the institution of marriage.” HB 707 would prevent the government from discriminating against people because they believe marriage is the union of a man and a woman, and would prohibit the government from using its heavy hand to condition tax treatment, contracts, and other benefits on a person’s acceptance of the “acceptable” view in support of same-sex marriage.

HB 707 would also help protect those with religious objections to being forced by the government to play a part in same-sex marriage ceremonies under threat of fines and imprisonment.

This is too much for Rep. Leger, who has taken it upon himself to claim that “[m]oral and religious people do not discriminate.” As if that settles it. It doesn’t, and Rep. Leger glosses over the real issue and the bill’s protections as laid out above. The only one talking discrimination here is Rep. Leger, who’d want to discriminate against anyone who doesn’t agree with him (and who would be protected by this bill). The Marriage and Conscience Act would protect people from such discrimination at the hands of an intrusive government. Rep. Leger would rather remove their protections, and potential expose them to fines and imprisonment because they simply want to act in accord with their consciences.

People sharing Rep. Leger’s agenda showed their true colors recently in Indiana, where they harassed the family that owns Memories Pizza with death threats for simply holding traditional views on marriage. This family was minding their own business, just trying to live quietly and in peace and make a living. But reporters came to them and asked them about their religious views and how they exercise their faith. Only when asked did family member and owner Crystal O’Connor explain, “If a gay couple came in and wanted us to provide pizzas for their wedding, we would have to say no … . We are a Christian establishment.” Yet at the same time they made clear their establishment would continue to serve any gay person who walked in.

As a result of expressing their views on this hypothetical situation, outrage against this family ensued on the internet. Their business was trashed on Yelp. A high school girls golf coach in Indiana tweeted “Who’s going to Walkerton, IN to burn down #memoriespizza w me?” Many failed to grasp that the owners stated they would serve anyone who walked in; they just wanted their religious views protected. Consequently, the O’Connors closed their pizzeria temporarily. “I don’t know if we will reopen, or if we can, if it’s safe to reopen,” Crystal O’Connor told reporters. Kevin O’Connor told the L.A. Times, “I’m just a little guy who had a little business.”

Thankfully, the family had some supporters, and their shop appears to be re-opening. But this incident exposes the danger we are in and highlights the need for laws like HB 707 to protect those like the O’Connors who increasingly are holding a minority view.

If we can’t even protect unpopular views in law, and instead people are allowed to mete out mob justice like this more reminiscent of scenes overseas than in the United States, we are in serious trouble. The gravity of this matter only further highlights the need for laws like HB 707.

It is people like Barronelle Stutzman, who need the protection of laws like HB 707. Barronelle has happily served gay customers. She just doesn’t want to be forced to service a same-sex wedding, which her faith teaches her is wrong. Nevertheless, Barronelle was recently fined for refusing to use her floral skills in support of a same-sex union. She just doesn’t want to be forced to violate her conscience. But without a law like HB 707, she is left at the mercy of the all-powerful state should it seek to coerce her to act against her beliefs.

What would Rep. Leger say to Barronelle? In his opinion piece, he claims, “[f]ederal and state laws already exist to protect religious liberty.” Actually, there are no “federal and state laws” which would protect people such as those protected by HB 707. Rep. Leger is flat wrong here.

The only support he offers is his hyperlink to the federal Religious Freedom Restoration Act (RFRA)—which compounds the foolishness of his claim—for he is apparently ignorant of the fact that the federal RFRA does not protect against state-level action (which is the very reason states have been trying to pass their own RFRAs).

Alas, Rep. Leger also tries to be a theologian, claiming to be “appalled at the length to which some people will go to ignore the lessons of love and acceptance that Jesus lived and died for and twist them into an excuse to discriminate.” His exegetical errors aside, the point of civil laws is not to dictate individual moral behavior, but to protect individual rights and freedom (even for those we disagree with). He should be ashamed at misrepresenting God’s Word in this manner, and more ashamed at using it to suppress views he doesn’t like.

He then brings out this sledgehammer: “Would we have stores place “Heterosexuals Only” signs in their windows where “Whites Only” signs once hung?” Ah, yes…. Of course that would be horrible. But who can point to any law which would permit that? All HB 707 does is protect against government discrimination against people based on their beliefs on marriage.

Rep. Leger continues, “[p]reventing a business from discriminating does not hinder the freedom of the business owner to hold his sincere religious beliefs in his heart and in his home. A business operating in the public sphere, relying on public infrastructure, is not at liberty to pick and choose who it will allow to be its customers. Either it is open for business or not.”

Rep. Leger apparently thinks the First Amendment only applies in the “heart” and “home.” It seems we can assume he is for taking away the First Amendment rights of the New York Times corporation to speak and report freely? If not, well why would he take away someone’s religious rights just because they want to make a living? If he would, he’s just discriminating against religion specifically.

Those who believe marriage is the union of a man and a woman are increasingly becoming a powerless minority, especially in the face of media voices, big business, academics, and government elites who look down upon their views. All HB 707 does is protect these relatively powerless people from government discrimination against them based on their beliefs on marriage.

Rep. Leger again exposes his ignorance for criticizing Indiana for passing “similar legislation.” Indiana had actually passed a RFRA very similar to the federal one Rep. Leger hyperlinked when claiming “federal and state laws already exist to protect religious liberty.” Moreover, Louisiana has had a RFRA for some time. Has Rep. Leger spent energy criticizing it?

As if this wasn’t enough, he then insults the people who need the protection of HB 707 by inferring they are racists—as they would bring up “evil apparitions from the Deep South’s dark past.”

Rep. Leger closes with: “[r]eligious liberty by right should and ought to be protected, and it is.” He’s correct that it should be protected, but wrong that it currently is. HB 707 would protect it. Yet Rep. Leger opposes HB 707.

Rep. Leger can’t (and won’t) be allowed to get away with the heavy-handed moralizing of telling believers their religion really means differently than they think it does. He can’t (and won’t) get away with the hypocrisy of claiming he is against discrimination, while at the same time himself discriminating against religious views he doesn’t like by seeking to strip believers of potential protections like HB 707.

Rep. Leger simply can’t claim to support religious liberty and oppose HB 707. He must pick one or the other.

Utah’s Unwise Rush to Judgment on Sexual Orientation and Gender Identity Bill

by Peter Sprigg

March 12, 2015

Both houses of the Utah state legislature have now passed, and the state’s Republican Governor Gary Herbert has said he will sign, S.B. 296, a bill which purports to be a historic compromise prohibiting discrimination in employment and housing on the basis of “sexual orientation” and “gender identity” (“public accommodations” are not included), while at the same time exempting religious organizations and granting protections for the religious liberty of individual employees.

Endorsement of the bill and its principles by the Church of Jesus Christ of Latter-Day Saints virtually assured passage in the heavily Mormon state. SB 296 was approved 23-5 in the Senate on March 6, and 65-10 in the House on March 11.

Family Research Council does not believe that “sexual orientation” or “gender identity” are characteristics comparable to those which are usually protected categories under civil rights law, because they are not inborn, involuntary, immutable, innocuous, and/or in the Constitution in the way that race and sex are, for example. Therefore, there is no justification in principle for interfering in the private choices of private economic actors with respect to these issues.

I am also skeptical, in the current cultural climate, as to whether the “religious protections” in such a compromise will ever be as vigorously maintained as the “non-discrimination” provisions.

However, there are specific technical problems with the way that S.B. 296 was drafted which should prevent it from being a model for other states, as is being touted by some. (The text of S.B. 296, with lines numbered, is available online at:

http://le.utah.gov/~2015/bills/static/SB0296.html )

Definitions: “Gender Identity”

Two of these problems involve definitions in the bill. The first is found in lines 105-106, where it says:

QUOTE

Gender identity” has the meaning provided in the Diagnostic and Statistical Manual (DSM-5).

END QUOTE

The “DSM-5” is the “Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition,” published by the American Psychiatric Association in 2013.

It is very odd to have a “definition” in a piece of legislation which does not include what the definition actually is—but instead makes reference to another source (a non-legal, non-statutory, non-constitutional, non-governmental, private source at that).

I think I understand the rationale for this—the authors of the bill want the definition to be scientifically impeccable, and therefore want to reference a scientific source rather than write their own definition. However, this is problematic for several reasons.

The DSM-5 is not only published by a private organization (the American Psychiatric Association), but it is a copyrighted work (could that be why the bill doesn’t quote it?). I have the impression that the APA guards the copyright very jealously, because unlike a lot of copyrighted works, it is virtually impossible to find even excerpts of its text online.

To purchase a copy is very expensive—on Amazon, it is $145 for the hardback version, and $107 for the paperback. Some libraries may have it, but when I went to the Martin Luther King, Jr. Library, which is the main branch of the District of Columbia Public Library, they did not have it—they only had the earlier DSM-IV-TR (2000). All this is to say that it is not all that easy to find out what the definition of “gender identity” in the DSM-5 actually is. It took me several hours of effort (and a trip to the National Library of Medicine) to actually locate it. That hardly seems like the most transparent way of legislating.

While referencing the DSM-5 may make the authors appear to be up-to-date scientifically now, the DSM is inherently a publication under periodic revision. As noted, it was only 13 years between the DSM-IV (2000) and the DSM-5 (2013). So in 13 years, will the up-to-date scientific definition of “gender identity” which Utah legislators referenced in their new law become the out-of-date definition when the DSM-6 comes out? Surely the law cannot be written to automatically be updated to the latest version of the DSM. It would be far better for legislators to actually write down in the text of the law the definitions which they are applying.

When I finally located both the DSM-IV-TR (2000) and the DSM-5 (2013), I found that indeed the definition of “gender identity” had changed. The DSM in 2000 included only this cryptic definition: “A person’s inner conviction of being male or female.”

The DSM-5 definition is longer: “A category of social identity that refers to an individual’s identification as male, female, or, occasionally, some category other than male or female.”

How many of the 88 Utah legislators who voted for this bill understood that they were creating special protections not only for men who claim to be women and women who claim to be men, but also for people who insist that they are neither male nor female?

Definitions: “Sex” and “Gender”

The other problematic definition in S.B. 296 is that of “sex.” On line 777 of the bill, it says:

QUOTE

Sex” means gender . . .

END QUOTE

Really? According to my dictionary, it’s the other way around. Merriam-Webster’s Collegiate Dictionary, Eleventh Edition (2005), under “gender,” lists “SEX” as a synonym. However, the first definition under “sex” is: “either of the two major forms of individuals … that are distinguished respectively as female or male esp. on the basis of their reproductive organs and structures.”

If the legislature wanted to reference the DSM-5 as the definitive source for a definition of “gender identity,” why did it not do the same for “sex” and “gender?”

The DSM-5 definition of “sex” is: “Biological indication of male and female (understood in the context of reproductive capacity), such as sex chromosomes, gonads, sex hormones, and nonambiguous internal and external genitalia.”

On the other hand, the DSM-5 definition of “gender” is: “The public (and usually legally recognized) lived role as boy or girl, man or woman. Biological factors are seen as contributing in interaction with social and psychological factors to gender development.”

These are hardly synonyms, as the bill states. If legislators feel that they must pass laws conceding that one’s “gender identity” can be distinguished from one’s “sex,” at least they should insist that the word “sex” itself be defined in biological terms (as the DSM-5 does), and not by some circular reference to “gender.”

Religious Liberty Protections”

The second major area of concern is the section with the much ballyhooed “religious liberty protections.” First, the bill exempts “a religious organization” and “the Boy Scouts of America” from its definition of an “employer” subject to the employment discrimination provisions (lines 92-100). Note, however, that this leaves profit-making businesses (such as Christian publishers and Christian book stores) and other organizations like non-religious day care centers still vulnerable to being forced to hire homosexual and transgender persons.

More attention has been focused on the unique “religious liberty protections” for individual employees (lines 693-706). Constituting a scant fourteen lines out of over a thousand in the bill, they read as follows:

QUOTE

69334A-5-112. Religious liberty protections — Expressing beliefs and commitments in
694workplace — Prohibition on employment actions against certain employee speech.
695(1) An employee may express the employee’s religious or moral beliefs and
696commitments in the workplace in a reasonable, non-disruptive, and non-harassing way on
697equal terms with similar types of expression of beliefs or commitments allowed by the
698employer in the workplace, unless the expression is in direct conflict with the essential
699business-related interests of the employer.
700(2) An employer may not discharge, demote, terminate, or refuse to hire any person, or
701retaliate against, harass, or discriminate in matters of compensation or in terms, privileges, and
702conditions of employment against any person otherwise qualified, for lawful expression or
703expressive activity outside of the workplace regarding the person’s religious, political, or
704personal convictions, including convictions about marriage, family, or sexuality, unless the
705expression or expressive activity is in direct conflict with the essential business-related
706interests of the employer.

END QUOTE

At first glance, this passage appears to address some of the “horror stories” that have been in the news regarding punishments or adverse employment actions taken against employees for expressing traditional values on marriage, family, and sexuality either within (lines 695-699) or outside (lines 700-706) the workplace.

However, a huge question leaps out—how are these “protections” to be enforced?

First of all, the exemption from the “protection” if the free expression “is in direct conflict with the essential business-related interests of the employer” (lines 698-99, 705-706) could end up being the exemption that eats the protection. What if an employer has an internal, corporate non-discrimination policy protecting sexual orientation and gender identity, and claims on that basis alone that excluding dissenters is an “essential business-related interest?” In what government forum, if any, could the employee challenge such a determination?

It is notable that a distinction is made between an employee’s free expression within the workplace and outside the workplace. With the respect to the former, there is an affirmative statement of the rights the employee possesses—but nothing regarding an obligation being placed on the employer to respect those rights.

Only with respect to expression outside of the workplace is there an active prohibition of negative action by the employer. To some extent this is understandable—an employer certainly has some legitimate interest in communication that occurs in the workplace, while they have very little legitimate interest in expression outside the workplace. However, it is unclear how that line is to be drawn, or who is to draw it. Allowing the employer to draw it makes the “protections” meaningless, since it is from the employer that the employees need protection.

One answer to this would be to make explicit that a violation of the religious liberty protections in Section 34A-5-112 constitutes a prohibited form of discrimination based on “religion” under Section 34A-5-106 (lines 277-536) of the bill, and is subject to the full set of remedies set out in Section 34A-5-107 (lines 537-673). Since the bill is being sold as one representing vigorous action both to prevent “discrimination” and to protect religious liberty, the mechanisms to advance both goals should be the same in order to assure parity between the two objectives.

The most optimistic view would be that this is already implicit in the bill—but it would be far more reassuring if it were made explicit. Even this approach is imperfect, however, since the “protections” should apply to any expression of opinion on these subjects, even if it is not rooted in a particular religious teaching.

An alternative would be to establish a specific set of remedies for the religious protections in the bill. It might also help to remove the section about “essential business-related interests” from the section dealing with expression outside the workplace.

Without explicit remedies, I fear these “religious liberty protections” will be a toothless tiger.

H.B. 1228: Bringing Freedom to Arkansas

by Travis Weber

February 27, 2015

Down in Arkansas, opponents of individual rights and personal freedom are doing what they can to defeat H.B. 1228, the state Conscience Protection Act, a freedom-loving bill which is designed to ensure that individuals’ consciences and beliefs cannot be easily trampled by intrusive government regulation.

Human Rights Campaign proudly points to a statement by Apple in which the company opines on a religious rights bill it apparently does not understand—for H.B. 1228 does not diminish “equal treatment under the law” for anyone, certainly not based on their sexual orientation. The only thing it does is keep a powerful government in check. The idea that the company is demeaning the religious beliefs of the citizens of the same state whose business opportunities it is taking advantage of is apparently lost on Apple.

Here and elsewhere, opponents know they can’t defeat the bill by simply showing their hatred for anything religious. So here and elsewhere, some put forward religious figures as their “spokespeople” against the bill, trying to use religion for their ends. Meanwhile, these poor individuals don’t realize they are opposing a bill which would support their own individual rights and liberty when the government comes calling for them in the future.

Others don’t even pretend to focus on the actual issue, claiming “the point of the bill is to prevent equal treatment of gay people, even if it has no effect on anyone’s beliefs,” and implying H.B. 1228 would allow a gay person to be “denied a hamburger, an apartment or a job because of his or her sexuality.” Anyone who actually takes the time to understand how the bill works would know it does no such thing. It is precisely the “effect” on “beliefs” that has so many seeing the urgent need for such bills as forced conscience violations under penalty of law increasingly emerge elsewhere.

Enough about the misinformation on H.B. 1228. Let’s review the facts, for truth’s sake:

What does the bill actually do?

H.B. 1228 protects sincere conscientious objectors of all religions from over-intrusive government regulation burdening their religious practice, while winnowing out those using religion as a pretext to escape application of general laws. Neither the Conscience Protection Act nor similar laws protecting religious exercise would allow businesses to “turn away” customers or engage in “discrimination” as they see fit.

How does the bill actually work?

H.B. 1228 allows a person to appeal to their religious beliefs as a basis for their claim or defense in a judicial proceeding.

Under the bill, an individual first has to prove they have:

(1) A religious belief, and

(2) Which is also sincere, and

(3) Which has been substantially burdened by the government action in question. Only then can their claim move forward.

Only if the person making the religious claim satisfies those three elements does the claim move to the second stage. At this stage, the government must show that:

(1) It has a compelling interest in burdening the religious practice, and

(2) It has only burdened the practice in the least restrictive way possible.

If the government can make both of these showings, its law or regulation is allowed to infringe on the religious practice—even under H.B. 1228. However, if the government fails to make both of these showings, the religious claim will prevail, and at that point the person is entitled to legal protection for their religious beliefs and practices. Even then, the person must look to the court’s application of similar laws; in no cases would H.B. 1228 simply allow people to appeal to religion to act as they wish apart from judicial involvement. It is important to remember that just because someone brings a religious rights claim does not mean that the claim will win in every case.

This is a legal standard known as “strict scrutiny.” It has been used in constitutional law for decades, and has been applied to religious claims for over 20 years under the federal Religious Freedom Restoration Act (“RFRA”)—all without any “discrimination” or pattern of abuses such as those claimed by the opponents of H.B. 1228.

This RFRA framework does not permit anyone to automatically do anything in the name of religion; they have to jump through all the hoops discussed above. RFRAs and laws like H.B. 1228 merely protect those of all faiths whose sincere beliefs are in danger of being unnecessarily burdened by the government, while winnowing out those using religion as a pretext to escape application of general laws. For all these same reasons, claims that the Michigan RFRA will “let EMTs refuse to serve gay people” and that the Arizona and Mississippi RFRAs from previous years are “right-to-discriminate” bills are completely misleading. When people are provided with a proper understanding of strict scrutiny’s application to religious claims, they can see that opponents of these bills are engaging in baseless fabrication.

Who needs the bill’s protections?

Everyone with religious beliefs and a conscience—regardless of their religion, political views, the content of their beliefs, or how they apply those beliefs.

Religious freedom laws like H.B. 1228 never used to be (and still should not be) a partisan issue, as they protect those of all faiths and political persuasions. Indeed, when the federal RFRA was passed in 1993, a coalition of groups from across the religious, political, and legal spectrum—from the Southern Baptists to the ACLU—came together to support restoring strong protections for free exercise claims. A review of RFRA and free exercise case law going back decades clearly shows its benefit to everyone from Muslims to Jews, Christians to Santeria adherents, and Native Americans to more obscure sects, as they seek to protect their beliefs and consciences in the face of ever more intrusive government. Moreover, these laws are not political—they cut across racial and social lines, and apply in a variety of factual scenarios, such as property disputes, social welfare (just this past year, the Texas RFRA served as protection for those seeking to care for the homeless), conscience objections to abortion, and restrictions on using controlled substances in religious ceremonies. H.B. 1228 and RFRAs like it are not fact-specific. They are not race-specific. They are not religion-specific. And they are not political party-specific.

Americans of all political persuasions and religions who care about individual freedom from government coercion should get behind H.B. 1228. The bill’s text and our established practices for analyzing religious claims show that H.B. 1228 will merely support conscience rights for all in the face of ever larger and more intrusive government—it does nothing more, and nothing less. That’s something all Americans can support.

Judge to Public University: You Must Allow Pro-Life Views

by Travis Weber

February 16, 2015

In a bit of good news, a federal district court judge in Alabama has rejected a public university’s attempt to dismiss a lawsuit brought by pro-life students alleging that they were denied permission to demonstrate based on their views.

The university reportedly told the students in an e-mail:

As you know, your organization advocates for a position that involves political and social controversy. Placing the crosses in proximity to Shelby Hall carries with it an implication that the College of Engineering endorses that position.”

Yet this “political and social controversy” was due to the students’ position on abortion. If the university was concerned with “controversy” connected to the topic of abortion, it might be able to prohibit all speech on that topic in certain areas on campus. But if, as alleged, the university was actually targeting the “controversy” arising from pro-life views, it would be targeting these pro-life students for their position on the issue of abortion, and would thus be engaged in view-point discrimination—something the government is strictly prohibited from doing. As the court noted:

The plaintiff has evidence that permission was denied because the plaintiff “advocates for a position that involves political and social controversy.” The Court agrees with the plaintiff that this e-mail constitutes evidence that Mitchell and Steadman denied permission due to the plaintiff’s viewpoint (“position”) on abortion (pro-life). Because it was clearly established in February 2014 that such viewpoint discrimination violates the First Amendment, Mitchell and Steadman cannot receive qualified immunity with regard to these denials.”

Thus the students’ free speech claims will be allowed to proceed. At a time when free expression is often marginalized, it is good to see such clear and straightforward application of free speech law by courts, and observe the First Amendment doing what is designed to do—promote free expression and the exchange of ideas.

Tarnishing Freedom in Georgia

by Travis Weber

January 28, 2015

It is reported that down in Georgia, opponents of individual rights and personal freedom are ratcheting up their smear campaign against proposed religious liberty legislation known as the “Preventing Government Overreach on Religious Expression Act,” which is designed to ensure that individuals’ consciences cannot be easily trampled by intrusive government regulation.

A web page titled “Better Georgia” purports to state concerns with the legislation, House Bill 29, but is filled entirely with omissions and misrepresentations regarding H.B. 29 and how religious liberty law actually works. Let’s fact-check some of its ridiculous claims.

Claim:

This bill would open the door to people who would use their religion to opt out of laws from child welfare to discrimination. It would lead to legal chaos over whose religion is more important in the eyes of our courts and lawmakers. The legislation would give criminals who abusetheir children or spouses a new excuse and make it even more difficult for police officers to put abusers behind bars.”

Veracity Level:

False. Child abuse is evil, and no one defends it. However, it is indeed offensive for Better Georgia’s out-of-state backers to imply that religious believers in Georgia are to blame for such abuse. Moreover, no religious freedom laws, including H.B. 29, permit people to “opt out” of child welfare laws, nor do such laws allow people to abuse their children.

Better Georgia had better check its fact-checkers.

The truth is that under H.B. 29, as with any strict scrutiny application to religious claims, an individual first has to prove they have a sincere religious belief, which has been substantially burdened by the government action in question. Only then can the claim move forward. Even then, if the government can show it has compelling interest in burdening the religious practice, and has done so through the least restrictive means, it is allowed to burden the religious exercise in question.

Thus, H.B. 29 does not automatically permit religious claims to win, but does provide a method for sincere conscientious objectors to be protected, while winnowing out those using religion as a pretext to escape application of general laws. This standard has been used in constitutional law for decades, and has been applied to religious claims for over 20 years under the federal Religious Freedom Restoration Act (“RFRA”), without any of the alleged “concerns” and “fears” RFRA opponents point to.

In its 1990 decision Employment Division v. Smith, the Supreme Court significantly restricted free exercise rights, holding that laws infringing on religious exercise did not violate the First Amendment as long as they were neutral and generally applicable. In Smith, an individual sought and was denied unemployment benefits by the State of Oregon because he used peyote—a criminalized, controlled substance—yet he claimed his use of peyote was a religious practice protected by the Free Exercise Clause. The Supreme Court rejected this claim, holding that if a neutral and generally applicable law (such as the uniformly applicable criminal law in this case) happens to infringes on religious practice, such a law does not violate the Free Exercise Clause.

Many rightly saw Smith as a reduction in the protection afforded religious liberty, and the reaction to the Court’s decision was overwhelming. In 1993, a coalition of groups from across the religious and legal spectrum—from the Southern Baptists to the ACLU—came together to urge Congress to pass a law restoring strong protections for free exercise claims. The political support for such a law was also overwhelming, including strong backing from Democratic Congressional leaders such as Senator Ted Kennedy and Representatives Nancy Pelosi, Chuck Schumer, and Jerry Nadler. RFRA was passed unanimously by the U.S. House, 97-3 by the Senate, and signed into law by President Clinton. In over 20 years that the federal RFRA has been in existence, there is been no documented pattern of abuses such as those no claimed by the opponents of H.B. 29. As others have asked, where are these alleged child abusers and discriminators who are supposedly walking away from criminal charges under RFRA? They simply do not exist.

RFRA never was and should not be a partisan issue, as it protects those of all faiths and political persuasions. A review of RFRA and free exercise case law reveals its benefit to everyone from Muslims to Jews, Christians to Santeria adherents, and Native Americans to more obscure sects (among others), as they seek to protect their beliefs and consciences from being burdened by an ever-more intrusive government. Moreover, RFRAs cut across racial and social lines, and apply in a variety of factual scenarios, such as property disputes, restrictions on caring from the homeless, conscience objections to abortion, and restrictions on using controlled substances in religious ceremonies. They are not fact-specific. They are not race-specific. They are not religion-specific. And they are not political party-specific.

Despite this fact, many will attempt to manipulate the clear text of the law for partisan aims. Even a group of law professors writing in opposition to the bill can’t conceal their political agenda. They write:

The Federal RFRA, however, arose in a political context very different from the current one. The Federal RFRA responded directly to the U.S. Supreme Court’s decision in Employment Division v. Smith (1990), which many people perceived as a significant setback in constitutional protection for the religious liberty of vulnerable minority faith groups. The coalition that supported RFRA included Democrats and Republicans, people of all faiths, and groups that cared generally about civil liberties.”

So what these law professors—who might purport to neutrally explain the law and not promote partisan views—openly admit is that they only care about certain religious rights. Moreover, they imply that the people who supported RFRA in 1993 cared about “civil liberties” while those who support it now don’t. The truth is that some of those who supported it then still support it now. Shameful. These professors might as well just admit they are elevating their political preferences over the equal application of a neutral law. In addition, their position purporting high-minded concern that H.B. 29 might “invite” discrimination is contrary to a proper understanding of First Amendment law and its strict scrutiny standard (which RFRA codifies). The Supreme Court has consistently held that First Amendment rights are to be elevated over nondiscrimination principles—in Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston (pertaining to free speech) and in Boy Scouts of America v. Dale (pertaining to freedom of association).

Indeed, the text of H.B. 29 itself reveals an open-mindedness and neutrality which is at opposition to such political posturing, and at odds with the narrow-minded, politically-charged misrepresentations being thrown around on the internet by Better Georgia. Before unquestioningly getting on the bandwagon, everyone needs to take a deep breath and look at what actually is going on.

The alleged “incidents” highlighted by these scaremongers at Better Georgia are exactly that—scaremongering. The case of the toddler in Canada who died after severe application of Seventh-day Adventist dietary rules (aside from the issue that this is anything but a “pattern” of behavior) would not be an issue under H.B. 29 or any similar law—the government has the most compelling of interests in preventing deaths of children. The religious liberty claim would therefore flatly fail in that case. Rather than highlighting one scaremongering scenario which occurred in Canada, these purveyors of smear could focus on instances of suppression of religious practice closer to home. Georgians know better, as they recognize the threats illuminated by Fire Chief Kelvin Cochran’s termination due to his religious views.

Indeed, Chief Cochran’s recent firing clearly illustrates the threat to religious expression which is alive and well at home in Georgia. Despite the city’s assertion that Chief Cochran’s religion is not at issue in his termination (while his “discrimination” allegedly is), the city is trying to disconnect two areas—Chief Cochran’s religious beliefs, and human sexuality—which cannot be disconnected. The chief’s orthodox and faithful Christian views on sexuality are what inform his views of a variety of sexual conduct, including but not limited to homosexual conduct, which he believes (in concert with historic and orthodox Christian teaching) departs from God’s standard. The city is trying to ignore the fact that faithful Christianity directly informs views on sexuality. When the chief is punished for these views, he’s being punished for his religion. His case has everything to do with religion, and reveals the hostility to religion present in Atlanta.

Moreover, Better Georgia’s “example” of the Canadian child abuse scenario reveals a deeper issue—sloppy analysis and a lack of critical thinking. Better Georgia links to a story about a religious believer’s alleged child abuse, yet fails to point out that no religious claim was even brought in the case. Of course, the fact that this “example” took place in Canada with its entirely different legal system was lost on the group too. It’s almost as if Better Georgia has scoured the web for any information it can find which links bad things happening with religion. The group certainly has not come up with a legitimate example showing any serious danger of H.B. 29.

Even the group’s touting of an opinion piece by a Georgia district attorney misses the mark. The examples in that piece involve criminal prosecution for child abuse without any discussion of a successful religious defense. Child abuse and other cases involving bodily harm to human beings are prosecuted routinely nationwide every day. These take place in states with laws like H.B. 29. Yet how often have we heard about successful religious freedom defenses to such prosecutions? Why can’t Better Georgia or any of its opponents point to any?

The reason they cannot is that such defenses are not successful. Multiple courts in multiple states have held that preventing child abuse is a compelling government interest. Georgia courts have already held that the state has a compelling interest in the welfare of children. As noted above, under H.B. 29 and similar laws, the government can burden religious beliefs when it has a compelling government interest. In failing to discuss this point while asserting the dangers of H.B. 29, District Attorney Cooke has misrepresented the danger of the bill and needs to revisit his analysis.

Another “case” cited by H.B. 29 opponents is a situation involving parents beating their son to death. According to Better Georgia, these parents might be able to walk away from criminal charges because of H.B. 29. Not only is this an absolute distraction from the issue, but it is an insult to Georgians’ intelligence that they might consider H.B. 29 to legitimately offer a defense to such actions. Better Georgia claims “abusers will be able to hide behind religion in court.” Really? How would they do that under H.B. 29? This group, which is shamefully playing on Georgians’ fears based on cooked-up nonexistent situations, has not pointed to one legitimate explanation of how this scenario would be permitted under the strict scrutiny standard laid out above.

Indeed, Better Georgia does not even highlight any attempted legal defense using a religious freedom claim. The fear that there would be one appears nonexistent. Yet, sadly, this simplistic reduction of how religious freedom law works manipulates human passion and deliberately confuses in order to promote division and hatred of religious people—based entirely on misrepresentations. Better Georgia should be ashamed. Georgia does deserve better.

It’s unclear what Better Georgia is even specifically basing its claims on in these alleged “concerning scenarios.” Perhaps it is looking at language in Section 50-15A-3 to exclude the bill’s application to parental rights regarding “the care and custody of such parent’s minor children.” But any simple reading of this provision reveals that it is stating the area of parental rights as it currently exists is to be left unrestricted by the additional protections of H.B. 29. Therefore, the state will continue to be able to regulate parental rights as it currently does, and this bill does not alter that. Indeed, H.B. 29 notes that these parental rights issues are to be left unrestricted “as provided for under the laws of this state and of the United States.”

Yet the Better Georgia “advocacy” does not stop there. Alas, more fact checking is needed.

Claim:

Georgia House Bill 29 would provide a free pass for business owners who believe homosexuality is a sin to openly deny gay Americans employment or service.”

Veracity Level:

False. Neither H.B. 29 nor other similar laws applying strict scrutiny to claims of religious exercise give anyone a “free pass.” As pointed out above, the religious liberty claim has to go through multiple hurdles before receiving protection under the law. Moreover, the evidence of such “free passes” being permitted is simply nonexistent. A cursory evaluation of how other similar laws have been interpreted reveals no “free passes.” Indeed, it is notable that Better Georgia can’t even cite to one instance of a business owner “openly deny[ing]” such service!

For these same reasons, claims that the Michigan RFRA will “let EMTs refuse to serve gay people” and that the Arizona and Mississippi RFRAs from previous years are “right-to-discriminate” bills are completely misleading. When people are provided with a proper understanding of strict scrutiny’s application to religious claims, they can see that those making these “free pass” arguments are engaged in baseless fabrication.

More fact-checking is needed.

Claim:

A restaurateur could deny service to an out-of-wedlock mother, a cop could refuse to intervene in a domestic dispute if his religion allows for husbands beating their wives, and a hotel chain could refuse to rent rooms to Jews, Hindus or Muslims.”

Veracity Level:

False. Indeed, the opposite is true. The protections in H.B. 29 are the very protections needed to ensure the exercise of all religions—whether Jews, Hindus, or Muslims—is protected. If the smear campaign had cared to accurately represent this point, it would have seen that only this month, the U.S. Supreme Court protected a Muslim inmate’s right to religious practice under the same strict scrutiny standard in RFRA’s cousin—the federal Religious Land Use and Institutionalized Persons Act.

Indeed, H.B. 29 and similar laws protect religious exercise regardless of religion. These laws do NOT discriminate, nor do they discriminate between religions, but protect individual religious claims under the framework explained above. Moreover, they protect religious exercise in a variety of situations—such as the Texas RFRA’s protection of those seeking to feed the homeless—which are not cited in this attempt to incite hatred against religion. Any simple reading of the law will reveal all this. But apparently Better Georgia did not even do that.

RFRA never was and should not become a partisan issue, as it protects those of all faiths and political persuasions. Thankfully, some liberal organizations are willing to more fairly represent it. Aside from what Better Georgia thinks, all Americans of political persuasions and religions who care about individual expression should be supporting H.B. 29. The bill’s text and our own judicial system’s well-grounded history of analyzing religious claims lend support to this conclusion. Meanwhile, Better Georgia’s conclusions have no support whatsoever.

At the Supreme Court: A Small Church and a Big Case

by Travis Weber

January 13, 2015

On January 12th, I attended Supreme Court oral arguments in a case—Reed v. Town of Gilbert—which will determine how easily the government can restrict signs giving directions to church services. Specifically, the Court is set to decide whether, under free speech protections of the First Amendment, a local government’s mere assertion that its sign code (despite on its face discriminating based on content) lacks a discriminatory motive renders the sign code content-neutral and justifies the code’s differential treatment of signs pointing the way to a church’s meeting location.

In this case, the Town of Gilbert had divided signs up based on whether they were ideological, political, or directional—and imposed different restrictions on each category of sign. Good News Community Church in Gilbert, Arizona, and its pastor, Clyde Reed, sued, claiming that signs pointing the way to their Sunday morning service (which contained religious speech and directions, and thus resulted in them being placed in the directional sign category) were treated less fairly and that this unfair treatment violated the First Amendment.

At oral arguments yesterday, both sides received their fair share of questions, but the justices were noticeably more skeptical of the town’s argument—especially its claim that it could severely restrict a sign containing ideological content announcing an event if the sign also included directions to that event, while at the same time easing restrictions on a sign containing the same exact ideological content and yet lacking directions.

The town attempted to defend itself by arguing it had an interest in preventing roadside clutter arising from numerable directional signs. But then it admitted it was granting preference to ideological and political signs because of the special First Amendment protection offered them, which prompted questions from the justices asking how the town was not impermissibly discriminating based on the content of the signs.

A breakthrough moment occurred when the town’s counsel admitted under questioning by Justice Breyer that the town could put up a sign saying: “Come to the next service next Tuesday, 4th and H Streets,” but could not add “three blocks right and two blocks left” to that same sign because that would make it a directional sign. Justice Breyer’s response: “Well, my goodness. I mean—I mean, on that, it does sound as if the town is being a little unreasonable, doesn’t it?”, pretty well captured the justices’ view of the case.

The justices will now consider the legal issues and issue a written opinion deciding the case sometime before the end of June 2015.

While seeming more innocuous than some of the other high profile social issues which have reached the court over the last year or so, this case matters (significantly) to free speech law. It therefore matters a lot to Americans of all opinions and interests who want to take part in public debates and discussions over numerable issues in our country. Even if it doesn’t matter to them personally, it should—for it affects their legal rights under the First Amendment.

This issue is also incredibly important to the ability of churches to communicate when and where they meet, and will thus heavily impact their flourishing and wellbeing. Our local churches serve as nerve centers for communities of faith across America, and must be supported and allowed to prosper. For all these reasons, Family Research Council filed an amicus brief with the Supreme Court last September asking it to rule in favor of Pastor Reed and Good News Community Church in this case.

As we argued in our brief, and as the church’s attorney argued before the Court yesterday, the Supreme Court should rule in favor of the plaintiffs and strike down the town’s ordinance here as unconstitutional. Such a ruling would not only protect the First Amendment rights of Pastor Reed and Good News Community Church, but those of any person or group our government wants to marginalize and silence in the public debate.

Family Research Council’s amicus brief in Reed v. Town of Gilbert is available here: http://downloads.frc.org/EF/EF14I59.pdf

Think Progress implicitly endorses Texas RFRA

by Travis Weber

December 12, 2014

Think Progress reported yesterday on a decision by the city of Dallas to revise regulations on feeding the homeless. These revisions, which made it easier to feed and care for those living on Dallas streets, were motivated by a federal court ruling last year in favor of several religious ministries desiring to take food to the homeless and feed and care for them wherever they are found.

Years ago, Dallas had cracked down on feeding the homeless and placed restrictions on how it could be done, and several Dallas area ministries and individuals who were impacted by these changes sued. The Think Progress report discusses these events:

After Big Hart Ministries Association and Rip Parker Memorial Homeless Ministry sued the city, six years passed before a judge ruled that the law violated the charities’ religious liberties under a Texas statute. Wednesday’s City Council vote carries the judge’s logic further, softening the rules charities face and effectively ending Dallas’ effort to clamp down on on-the-street feeding programs for the indigent regardless of religious affiliation.” (emphasis added)

Big Hart Ministries Association, Rip Parker Memorial Homeless Ministry, and William Edwards had sued under the Texas Religious Freedom Restoration Act (“RFRA”). The Texas RFRA states that (1) sincere religious practices (2) cannot be substantially burdened by the government unless the government (3) has a compelling interest which it is (4) advancing by the least restrictive means possible. In their lawsuit, the plaintiffs had alleged that – in violation of the Texas RFRA – they had a sincere belief that their religion requires them to care for the homeless, and that the city was substantially burdening that belief by making it impossible to carry out with heavy regulations on feeding the homeless. Early in 2013, a federal judge ruled that the plaintiffs religious beliefs were indeed substantially burdened, and the city did not have a compelling interest in its regulations – thus, they violated the Texas RFRA. Finally, this past week, in response to this ruling, the Dallas City Council approved changes to regulations on feeding the homeless.

Think Progress does not refer to the Texas RFRA by name – but that’s the law which has benefitted the homeless in this situation. This is exactly what RFRAs – whether in Texas or elsewhere – are meant to accomplish: protect the exercise of sincere religious faith, in recognition of the valuable role it plays in society and benefits it brings to people around us. Furthermore, and contrary to many popular claims, RFRAs do protect religious exercise “regardless of religious affiliation.” A quick search of how the laws have been used in court will reveal that they have protected religious exercise for a variety of faiths.

It would be nice (and intellectually consistent) for Think Progress to extend this logic to other situations implicating RFRA. Indeed, the beauty of law is that it is blind to political preferences. This is why having RFRAs passed into law is so important to protecting religious freedom today. When religious freedom is diminished and made part of a political game, everyone suffers.

At Family Research Council, we fully support RFRA and what it stands for – protecting the exercise of faith for all in the face of often overreaching and too powerful governments.

Meddling Freedom From Religion Foundation Gets Tossed Out of Court

by Travis Weber

November 14, 2014

Thankfully, the U.S. Court of Appeals for the 7th Circuit, in Freedom from Religion Foundation v. Lew, refused to let stand a decision which had declared the clergy housing tax allowance unconstitutional.

This case began when the Freedom from Religion Foundation (FFRF) sued the U.S. government alleging that the government grants tax benefits based on religion. In a quite ill-advised lower court ruling, U.S. District Judge Barbara Crabb held that the FFRF could properly bring the lawsuit and that the tax allowance violated the Constitution. The case was then appealed to the 7th Circuit.

To understand how ridiculous the FFRF’s claim is, we must understand a little bit about the doctrine of “standing” to bring a lawsuit in federal court.

As the 7th Circuit explained, to bring a lawsuit, a party must show:

(1) they were injured in a concrete and personal way,

(2) that the injury can be fairly traced to the defendant’s action, and

(3) that the injury is likely to be remedied by a favorable judicial decision.

In addition, the court explained, merely being offended at the government’s action does not give one grounds to sue. Obviously, the fact that an atheist group is upset at other religious entities getting some tax relief for their ministers does not “injure” the atheist group at all. There is simply no personal injury present.

The 7th Circuit agreed, noting that the FFRF could not be injured by being denied any such tax exemption because the group never even asked for it.

The court also noted the FFRF’s own difficulty in arguing for liberal standing rules – almost anyone would have standing to sue for virtually any reason! This would result in over-clogged and over-worked federal courts, which, as they sift through heaps of frivolous suits, would have to take time away from truly meritorious suits where parties have been actually injured. To say this would be an injustice is an understatement.

The 7th Circuit concluded as follows:

To summarize, plaintiffs do not have standing to challenge the constitutionality of the parsonage exemption. A person suffers no judicially cognizable injury merely because others receive a tax benefit that is conditioned on allegedly unconstitutional criteria, even if that person is otherwise “similarly situated” to those who do receive the benefit. Only a person that has been denied such a benefit can be deemed to have suffered a cognizable injury. The plaintiffs here have never been denied the parsonage exemption be-cause they have never requested it; therefore, they have suffered no injury.”

Nevertheless, it’s troubling to think the FFRF’s claims could even be considered more seriously had it asked for and been denied the exemption. Such a possibly should serve to highlight the way the suppressors of any religious expression in public life manipulate our legal system in wasteful and unproductive ways.

The FFRF has hardly been “injured” here by any reasonable understanding of that term. Courts should take note of this when the FFRF is back before another judge claiming some other mental or psychological “injury.”

U.S. Court of Appeals for the Sixth Circuit: Upholding marriage and democracy

by Travis Weber

November 7, 2014

On November 6, 2014, the U.S. Court of Appeals for the Sixth Circuit, in an opinion written by Judge Jeffrey Sutton, held that the marriage laws of Kentucky, Michigan, Ohio, and Tennessee do not violate the federal Constitution.

The opinion is a model of judicial restraint. Judge Sutton declared that states may see fit to legalize same-sex marriage, as multiple states already have, but that decision is to be left to the people of the states; the Constitution does not permit a “poll” of federal judges about “whether gay marriage is a good idea.”

A number of arguments were raised by the challengers of the marriage laws. Judge Sutton confronted all of them, and methodically explained why they are each insufficient to entitle the challengers to relief.

The 6th Circuit is simply following precedent, which it is required to do

The Court first explained that its position as an intermediate court requires it to follow on-point precedent, which is readily available in the case of Baker v. Nelson. Even in light of Loving v. Virginia (which had been decided four years previous to Baker), the Minnesota Supreme Court in Baker held that there was no federal constitutional right to same-sex marriage, for “‘in commonsense and in a constitutional sense … there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.’” The losing party appealed to the Supreme Court, but the Court dismissed the constitutional same-sex marriage claim, thus establishing Supreme Court precedent binding the 6th Circuit in this case.

Neither does United States v. Windsor change the calculus, for Windsor and Baker dealt with different issues. As for the argument that Windsor and other cases constitute a “doctrinal development,” Judge Sutton relies on the explicit instruction of the Supreme Court in other cases to conclude, quite reasonably, that Supreme Court precedents (which include Baker) must be followed until the Supreme Court makes clear otherwise. Unless the Supreme Court expressly overrules Baker by name, or by outcome, the 6th Circuit is bound by it. In addition, Judge Sutton clearly repudiated the notion that Windsor controls the present question somehow – noting that Windsor did not decide whether there was a constitutional right to same-sex marriage.

This type of solid logic is great to see; and shows that judges who have ruled otherwise have recklessly picked their favorite cases and twisted them to fit a favorable narrative. These other rulings finding a federal right to same-sex “marriage” have torn logic from its moorings; this is all the more apparent when contrasted with Judge Sutton’s solid logic here.

Baker independently provides grounds to conclude there is no constitutional rights claim to same-sex marriage, but Judge Sutton continues to address the remainder of challengers’ arguments nevertheless.

The original meaning of the Constitution does not offer support for same-sex marriage

Considering that the Constitution is an agreement between the people of the United States and the political leaders entrusted to govern them, Judge Sutton noted, its terms can only be changed with the consent of the people. For this reason also, clarity in interpretation and understanding are all the more important. There is no clear provision or understanding of the Constitution’s terms conferring a right to same-sex marriage. The Supreme Court also clearly looks to long-established historical track records of how constitutional provisions are to be interpreted – as revealed by precedent on a number of different constitutional provisions. Therefore, with this understanding, states are permitted, but not required, to legally allow marriage between members of the same-sex. If lawyers still invoke the original meaning of the Magna Carta, is it too much to ask that the original meaning of the Constitution (which, as Judge Sutton noted, no party to the case has suggested permits same-sex marriage) be respected? Indeed, it is not. Judge Sutton concluded that the original meaning of the Constitution and the historical record of what it permits does not reveal any constitutional right to same-sex marriage.

The state marriage laws meet rational basis review

Judge Sutton next concluded that the state marriage laws at issue meet rational basis review, which is satisfied as long as there is “any plausible reason” for the laws. Indeed, “[a] dose of humility makes” the Court “hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the States.”

The Court noted it is clearly rational for the state to want to regulate the effects of sexual activity – which raises very important questions such as who is responsible for children produced by sexual activity, how many mates a person may have, and who is responsible for children which one or more of the partners helped to produce. The fact “[t]hat we rarely think about these questions nowadays shows only how far we have come and how relatively stable our society is, not that States have no explanation for creating such rules in the first place.” This alone is evidence of the rational basis of such laws. Moreover, “rational basis review does not permit courts to invalidate laws every time a new and allegedly better way of addressing a policy emerges,” Judge Sutton concluded. “By creating a status (marriage) and by subsidizing it (e.g., with tax-filing privileges and deductions), the States created an incentive for two people who procreate together to stay together for purposes of rearing offspring. That does not convict the States of irrationality.”

It is also clearly rational for the states to want to wait and see what happens as a result of the legalization of same-sex marriage before changing their own laws on a norm which has existed for centuries. Developments in the United States on this issue have been rapid-fire, and yet at the same time, many states have simply left in place the norms to which they have always held. This is certainly rational, for “[a] Burkean sense of caution does not violate the Fourteenth Amendment.”

Either of these two grounds would independently satisfy rational basis review. Yet even the challengers’ own “love-and-commitment” definition of marriage would fail under their view of rational basis review. For no state requires couples, whether gay or straight, to be in love. Yet on the other hand, their definition fails to account for plural marriages, for there is “no reason to think that three or four adults, whether gay, bisexual, or straight, lack the capacity to share love, affection, and commitment, or for that matter lack the capacity to be capable (and more plentiful) parents to boot.” The Court proclaimed, “[i]f it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage.” Judge Sutton noted that the challengers “have no answer” on this point. Yet “[w]hat they might say they cannot: They might say that tradition or community mores provide a rational basis for States to stand by the monogamy definition of marriage, but they cannot say that because that is exactly what they claim is illegitimate about the States’ male-female definition of marriage.

Judicial deference to the people is a serious issue under rational basis review. Indeed, as Judge Sutton noted, the Supreme Court has held that a “State’s interest in maintaining close ties among those who steer ships in its ports justifies denying pilotage licenses to anyone who isn’t a friend or relative of an incumbent pilot. Can we honestly say that traditional marriage laws involve more irrationality than nepotism?”

Ultimately, rational basis review is clearly satisfied here because either the regulation of sexual activity or a decision to proceed with caution on marriage laws would satisfy the constitutional standard. Thus the Court could dispose of the case at this point. But Judge Sutton continues to address the many arguments raised by the challengers – who no doubt are hoping that one of them would stick.

The voters in the states cannot be painted with the broad brush of “animus”

Judge Sutton next dismissed the idea that the state marriage laws are driven by animus, noting that the laws (which there are plenty of legitimate reasons to support) merely hold in place norms which have been around for the entire history of civilization. As the Court noted, “if there was one concern animating the initiatives, it was the fear that the courts would seize control over an issue that people of good faith care deeply about. If that is animus, the term has no useful meaning.” How could the voters be blamed for feeling this way, when judges around the country were starting to strike down these laws out of the blue? It was at this time that voters decided to codify these long-held traditions in law – an act which the Supreme Court itself affirmed to be their prerogative to decide sensitive public policy issue in Schuette v. Coalition to Defend Affirmative Action. Painting the voters of the states with the broad brush of animus is “no less unfair” than portraying all supporters of same-sex marriage as intent on destroying American families to the core. Thus the idea that animus has driven state marriage laws, and that this serves as a reason to find them unconstitutional, fails entirely.

There is no fundamental right to same-sex marriage in the Constitution

The Court next tackled the question of whether there was a fundamental right to same-sex marriage, beginning by noting that it does not appear explicitly in the Constitution, and next by finding it is not historically “deeply rooted” as necessary to “ordered liberty.” Loving does not support the idea that this right historically existed. Loving did not use the term “opposite-sex” marriage, but that would have been redundant. For in Loving the Court proclaimed that marriage was “fundamental to our very existence and survival” – referring to the procreative aspect of marriage. Judge Sutton reasoned:

Had a gay African-American male and a gay Caucasian male been denied a marriage license in Virginia in 1968, would the Supreme Court have held that Virginia had violated the Fourteenth Amendment? No one to our knowledge thinks so, and no Justice to our knowledge has ever said so. The denial of the license would have turned not on the races of the applicants but on a request to change the definition of marriage. Had Loving meant something more when it pronounced marriage a fundamental right, how could the Court hold in Baker five years later that gay marriage does not even raise a substantial federal question? Loving addressed, and rightly corrected, an unconstitutional eligibility requirement for marriage; it did not create a new definition of marriage.”

Neither do Zablocki v. Redhail or Turner v. Safley supporter the challengers’ claim here, for “[i]t strains credulity to believe that a year after each decision a gay indigent father could have required the State to grant him a marriage license for his partnership or that a gay prisoner could have required the State to permit him to marry a gay partner. When Loving and its progeny used the word marriage, they did not redefine the term but accepted its traditional meaning.”

Judge Sutton also noted that the Supreme Court has chosen not to subject laws regulating other aspects of marriage – such as divorce laws, polygamy laws, and laws regulating the age and familial status of those entering marriage – to strict scrutiny. As is the case with same-sex relationships, there are other areas of action intersecting with marriage laws which do not implicate fundamental rights subject to strict scrutiny.

In conclusion, there is no fundamental right to same-sex marriage – it is not mentioned in the Constitution, and cannot be recognized under the applicable legal standard.

Sexual orientation is not a “discrete and insular class without political power”

As the Court noted, rational basis review applies to sexual orientation classifications. The Supreme Court has never held that heightened review applies, and has not recognized a new suspect class in over four decades. Windsor does not support any contrary conclusion; rather, Windsor overwhelmingly supports the conclusion that marriage law and policy is to be left in the hands of the states. If it wasn’t clear enough, Judge Sutton emphasized the point again: Windsor does not support a federal constitutional right to same-sex marriage – any other reading “would require us to subtract key passages from the opinion and add an inverted holding.” Thus there is no heightened review applied in this case.

The notion of “evolving meaning” cannot support the legalization of same-sex marriage

Even if changing mores are examined for whether they can support new judicial decision-making, they do not support the idea that laws upholding natural marriage must be struck down. Such considerations are dependent on society’s values (not judges’ values), and thirty-one states would continue to permit only natural marriage if given the choice. If the “pacing” of the change of this issue in society is to be considered, and the challengers desire is to examine judicial decisions as part of this trend, what about the “pacing” of state legislatures’ decisions and the deference due to their interest in caution?

Moreover, even if international legal regimes are examined on this point, Judge Sutton observed that the great majority of countries have retained natural marriage. The European Court of Human Rights even held that European human rights laws do not guarantee a right of same-sex marriage. The Court makes a good point: “What neutral principle of constitutional interpretation allows us to ignore the European Court’s same-sex marriage decisions when deciding this case? If the point is relevant in the one setting, it is relevant in the other, especially in a case designed to treat like matters alike.”

In concluding this section of his opinion, Judge Sutton noted “[i]t is dangerous and demeaning to the citizenry to assume that we, and only we, can fairly understand the arguments for and against gay marriage.” Indeed, even if evolving mores are considered, they do not support a wholesale forced acceptance of same-sex marriage.

For all these reasons, the marriage laws at issue in this case are perfectly constitutional.

The challengers had also argued, however, that state laws banning recognition of out-of-state marriages violated constitutional guarantees of equal protection and due process.

The Constitution does not require inter-state recognition of same-sex marriages

The Court stated that (as explained above) because states may constitutionally define marriage between men and women as they see fit within their borders, they may also constitutionally define how they will recognize out of state marriages. States have always decided how and when they will recognize other states’ laws based on choice of law doctrines. This situation is no different. Indeed, states already for a long time have refused to recognize invalid out of state marriages in other contexts – like incestuous or polygamous marriages, or others opposed to state law. States may decide what marriages to recognize as a matter of policy in those contexts, and this one is no different. If there is no constitutional right forcing a state to modify its own marriage laws, there is no constitutional right forcing a state to modify its laws regarding recognition of marriages performed in other states.

The challengers also argued that such bans violate the constitutional right to travel – which protects the right to leave and enter states, be welcomed, and, if a permanent resident, be treated like a citizen of the state. Yet, as the Court noted, state laws banning recognition of out of state marriage violate none of these rules. People can still move freely across boundaries, and are treated just like those inside the state who would violate the marriage laws. Thus, the right to travel does not require invalidation of state marriage laws on this point.

Conclusion

For all these reasons (explained above and summarized below), the Court held that state laws upholding natural marriage are fully legal and constitutional:

  • Baker requires that this Court dismiss the constitutional rights claims here.
  • Even if not dismissed, these laws meet rational basis review. There is no animus or suspect classification which would require any greater review.
  • There is also no fundamental right here – explicitly protected or deserving to be recognized.
  • There is no original meaning or “evolving meaning” support for a same-sex marriage right which would change any of the above analyses.
  • Additionally, no legal principle changes the constitutional calculus regarding laws pertaining to recognition of out-of-state marriages.

Judge Sutton reiterated one final time that such sensitive issues, especially when considering the abrupt timeline of change and legalization of same-sex marriage, should be left to the voters to decide. Only then can voters on both sides of the issue makes their voices heard in a manner befitting them as ultimate arbiters in a self-governing democracy, as opposed to making judges the “heroes” (or villains) they were never meant to be.

Dissent

Dissenting Judge Daughtrey repeats all the same arguments advanced by the challengers – arguments which have been repeated elsewhere by rogue judges striking down marriage laws. She accuses the majority of setting up a “false premise” of “who should decide” this issue – the voters or judges. Perhaps she is grasping at straws, for this is not a false premise at all, but a legitimate question that is actually before the court – whether there actually is a right to same-sex marriage at all – which, if absent, indeed permits the voters to decide. For much of her opinion, she spends time on items not even central to the legal issues – she discusses the various factual scenarios of the challengers’ lives, then takes shots at the expert testimony offered by the defending states (without equally scrutinizing plaintiffs’ experts), and finally simply recounts other recent circuit court rulings (which themselves have been crafted out of thin air in the past year with specious reasoning).

She fails to confront the precedential hurdles she faces in Baker (which have been discussed by the majority). She also fails to even examine the proper standard for rational basis review – whether there is “any plausible reason” for traditional marriage. Instead, she just skips the question, choosing instead to complain about the majority’s arguments without engaging them, and without applying the appropriate legal standard. For instance, at one point, she focuses on the level of difficulty of amending a state constitution – a question entirely irrelevant to the legal standard she is supposed to be considering.

She then claims the voters could be exhibiting “animus” if they have a “general, ephemeral distrust of, of discomfort with, a particular group.” Under that standard, we might as well be forced to legitimize virtually every behavior for which we currently incarcerate people.

It goes without saying further that the dissent is poorly constructed and lacks objectivity. That alone would be sufficient reason to criticize it; the cheap shots which she takes at the judges in the majority (and to some extent the voters) further discredit the dissent.

FRC Files Amicus Brief in Fifth Circuit Marriage Appeal

by Chris Gacek

November 3, 2014

Today, the Family Research Council filed an amicus, or “friend of the court,” brief in the case of Robicheaux v. Caldwell, an appeal of a marriage definition case arising out of Louisiana. On September 3rd, Judge Martin Feldman of the Eastern District of Louisiana issued a decision upholding the constitutionality of Louisiana’s male-female definition of marriage. Subsequently, the plaintiffs, seven same-sex couples, appealed to the U.S. Court of Appeals for the Fifth Circuit (“Fifth Circuit”) in New Orleans. It was with the Fifth Circuit that FRC filed its amicus brief today. Paul Linton, a constitutional appellate lawyer from Illinois, wrote the brief. Mr. Linton has worked with FRC previously in numerous marriage-definition cases.

The FRC amicus brief focuses on two main arguments. First, the brief demonstrates that Louisiana’s marriage definition does not contravene the fundamental right to marry that is protected by the Due Process Clause of the U.S. Constitution. After the Supreme Court’s Windsor decision a number of federal courts have attempted to claim that there is a fundamental right to same-sex marriage. As an institution, same-sex marriage is younger than Google and Facebook. It cannot satisfy the requirement the Court laid down in Washington v. Glucksberg, 521 U.S. 702 (1997), that such rights must be firmly rooted in “the Nation’s history, legal traditions, and practices.”

Second, the brief makes clear that Louisiana’s marriage definition does not discriminate on the basis of sex or gender because males and females cannot marry members of the same sex. On the contrary, every male and every female may marry. The requirement, however, is that one’s marriage partner be a member of the opposite sex. There is no “facial” discrimination in Louisiana’s marriage definition that targets either males or females for worse treatment than member of the opposite sex.

Male-female marriage is the bedrock of social life and civilization. It is the institution by which the complementary sexual attractions of males and females are yoked together in an enduring, supportive relationship that has the potential to produce children. Same-sex unions can reproduce neither the relational nor the procreative capacity. As such, the union of one man and one woman for life in marriage is rationally related to these dual purposes.

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