Tag archives: Religious Liberty

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.

What is the price of adhering to your faith?

by Travis Weber

April 24, 2015

$135,000.00

At least according to the State of Oregon. For that is the amount of the fine an administrative law judge (ALJ) recommended be levied against Aaron and Melissa Klein in his Proposed Opinion released today.

What did they do to deserve this fine?

They hold the belief that marriage is between a man and a woman, and asked that they be left free to live according to that belief as they continued to live as they always had — in a quiet, peaceable manner, running their small business.

Too bad, according to the State of Oregon.

For when a couple walked into their shop requesting that Aaron and Melissa create a cake to celebrate their same-sex wedding, the Kleins refused to violate their consciences to do so, the couple sued and brought the weight of the State of Oregon down upon their heads. The State Bureau of Labor and Industries charged them under various provisions of state law for this act of obedience to their consciences. Never mind that the couple was able to obtain another cake for their wedding within days and even received a free cake from celebrity pastry chef Duff Goldman. Aaron and Melissa must be forced to comply. Now the State is trying to force their compliance to the tune of $135,000.00.

The Proposed Opinion contains many errors. It is built on and reaffirms the ALJ’s previous, shoddy reasoning that none of the Kleins’ constitutional rights were seriously implicated in this case.

But chief among the errors here is that the ALJ completely focused on the emotional and other damages the aggrieved couple experienced throughout this matter — while completely ignoring the hateful vitriol directed at the Kleins and other ways they suffered throughout this entire ordeal. An opinion which considers one but not the other is not just. Not only have the Kleins’ constitutional rights been trampled, but their true suffering is ignored.

Moreover, as reflected in the Proposed Opinion, the State of Oregon continued to hound the Klein with demands for more and more punishment:

The [State’s] theory of liability is that since [the Kleins] brought the case to the media’s attention and kept it there by repeatedly appearing in public to make statements deriding Complainants, it was foreseeable that this attention would negatively impact Complainants, making [the Kleins] liable for any resultant emotional suffering experienced by Complainants.”

So according to the State of Oregon, discussing something of public concern which involves an individual’s constitutional rights being trampled is reason to ask the ALJ for further damages against them? (Of course, the Kleins did not “deride[]” anyone — that’s the State’s characterization).

More importantly, the ALJ proceeded to find that “the record contains limited evidence of any events involving [the Kleins] in the media or social media that publicized the cake refusal.”

After reviewing all the allegations of harm supposedly perpetrated by the Kleins, the ALJ concluded that emotional damages related to media and social media attention are not legally recoverable anyway.

However, he then recommended awarding $60,000 and $75,000 to the two aggrieved parties, respectively, based on a summary statement of the legal standard with virtually no analysis:

In addition to the State of Oregon’s obvious bias here, let us not forgot — neither the State nor the ALJ have recognized the fact that the Kleins have faced unprecedented antagonism for merely holding to their beliefs. It seems the no one wants to take responsibility for that. Moreover, the Oregon legal system does not seem interested in considering the substantial harm to the Kleins in its quest for “justice” — thus, there is no justice at all here.

We can only hope that the Kleins achieve justice at some point. Until then, what does this case mean for religious liberty more broadly?

As marriage is being redefined, and governments begin to tell individuals what (in their view) marriage is, individuals will (respectfully) disagree. Many believe marriage is instituted by God and no one can change that. And they will not be forced to violate their consciences by acting against those beliefs.

If we are to alleviate at all the threats to religious liberty going forward, legislative protections for those who dissent from the State’s view of marriage must be enacted. The American public overwhelmingly supports this idea. Recent nation-wide polling tells us that 81% of Americans believe government should leave people free to follow their beliefs about marriage as they live their daily lives at work and in the way they run their businesses.

In the United States, we have long had to live with differences of view among a diverse population. This has not been controversial in the past, and it should not be controversial today.

If you’d like to help the Kleins cover the cost of their forthcoming fines, or otherwise support them, please visit here.

Suicide Prevention? Try the “BFPF!”

by Robert Morrison

December 18, 2014

I was puzzled. The Centers for Disease Control (CDC) in Atlanta had sent me an entire briefing book on suicide rates. The thick 3-ring binder had statistics on suicide for every demographic group—from Aleuts and Ashkenazi Jews to Zuni Indians. But the figure for Black Females was less than 1 per 100,000. Could this be? I called a desk officer at CDC to learn if there was some mistake. “No mistake,” I was assured as the staffer on the other end of the line smoothly told me “we call it the ‘BFPF—Black Female Protection Factor—they’re very religious.”

The U.S. Government knows this to be true. Or at least it used to know this in the Reagan years when I was tasked with studying “Suicide among Youth” for the federal education department.

If the government cannot promote religion, one would think that at least the government would not try to impede religion. (And isn’t that what even the Supreme Court has said?) 

Especially, it would seem, the government should not try to impede religion in its efforts to prevent suicide. 

But, no! The atheizers and the pink panzers of  political correctness have so cowed our military that we actually have senior officers who want to punish chaplains for the grave offense of including spiritual and secular resources in a program for the troops seeking to prevent suicide.

Does the Army want more suicide? You have to wonder when you see the infamous actions of Col. David Fivecoat at Fort Benning, Georgia. Here’s a news report from FRC’s communications department. This is a verified report on the disciplining of a military Chaplain: 

Capt. Joseph Lawhorn, U.S. Army Chaplain at Fort Benning, participated in a mandatory suicide awareness and prevention briefing in which he gave a presentation describing resources – both spiritual and secular – that were available for handling such grave mental health situations. He went further and discussed his personal struggles with depression, describing the spiritual and religious steps that helped him during those dark times in his life.

As a result of the chaplain’s discussion of his faith, he was called into his brigade commander’s office on Thanksgiving Day. There Col. David G. Fivecoat issued Chaplain Lawhorn a Letter of Concern that is to remain in his personnel file for the duration of his stay at Fort Benning. This type of letter can be devastating for career military personnel and would likely prohibit further professional advancement of Chaplain Lawhorn.

We can contrast this Fort Benning colonel’s despicable action with the brave stance of Coast Guard Rear Admiral Dean Lee. The admiral spoke at the National Day of Prayer recently on this very question of spiritual resources shared with young volunteers in our military who are in danger of suicide. Admiral Lee spoke truth to power. He showed undaunted courage in the face of a rising storm.

Admiral Lee doubtless knows the toll of suicide—and not just on the young victim’s family and fellow service members. Those of us who served in the Coast Guard—like many first responders—have on occasion been called upon to deal with the tragic results of a suicide.

I will never forget having to pick up the body of a “floater” who had been in the water for weeks. I was a young enlisted Coast Guardsman more than thirty years ago. I can still remember the sight, the smell, the feel, and the sounds of that bloated and crab-eaten corpse.

As vivid and unforgettable as that experience was, I am not scarred by it. That is because it was also in the Coast Guard and in that same year that I came to faith in Jesus Christ. I thank God every day for that.

I hope those of you reading this column will sign FRC’s urgent petition calling for a reversal of this cruel and unjust discipline of a brave Army Chaplain. Be a lifesaver! 

To the business community: Religious freedom and you - perfect together

by Travis Weber

December 1, 2014

Writing at the Berkley Center’s Religious Freedom Project blog, Samuel Gregg explores the idea – and idea for which new evidence is consistently emerging – that religious freedom is good for business.

Gregg begins by noting historically that as certain religious groups have been marginalized in political life, they have turned their energies toward commerce – and prospered. In other cases, certain groups have been marginalized in their nation’s financial life – thus handicapping the economy. This isn’t good for growth, obviously. Gregg then focuses his attention on the more recently discovered correlation between economic growth and religious freedom:

[T]here is growing evidence that respect for religious freedom tends to correlate with greater economic and business development. One recent academic article, for instance, found (1) a positive relationship between global economic competitiveness and religious freedom, and (2) that religious restrictions and hostilities tended to be detrimental to economic growth.”

Moreover, other rights and freedoms are not entirely unaffected:

[T]he strongest interest that business has in being attentive to the religious freedom of individuals and groups is the fact that substantive infringements upon one form of freedom often have significant and negative implications for other expressions of human liberty. If, for instance, governments can substantially nullify religious liberty, then they are surely capable of repressing any other civil liberty. This included rights with particular economic significance, such as the right to economic initiative and creativity, property rights, and the freedom of businesses to organize themselves in ways they deem necessary to (1) make a profit and (2) treat employees in ways consistent with the owner’s religious beliefs.”

He concludes by noting that, nevertheless:

[M]ore work needs to be done in this area. Correlation is not causation. While there do seem to be significant correlations between restrictions on religious liberty and the economic freedom of individuals and corporate bodies, the case for causation requires further elaboration.”

But, businesses take note!

If … the various forms of liberty are as interdependent as they seem to be, business surely has at least a high degree of self-interest in seeing substantive conceptions of religious liberty and the rights and protections associated with religious freedom prevail.”

Businesses take note, indeed.

Fashion Isn¿t the Most Important Thing to Come Out of Milan

by Chris Gacek

November 19, 2014

If you have some time, watch FRC’s lecture with Jim Tonkowich discussing his new book, The Liberty Threat: The Attack on Religious Freedom in America Today. One particularly interesting aspect of the talk was Tonkowich’s discussion of the rise of religious freedom during the Roman Empire. Of particular importance was the Edict of Milan of 313 A.D. Read George Weigel’s First Things blog on this important document. Referencing the great church historian Robert Louis Wilken (The First Thousand Years), Weigel describes the document’s foundational significance in Western political thought and practice:

[The Edict] involved all religions, not just Christianity; it went beyond mere toleration and embodied a more robust idea of religious freedom, based on the conviction that true faith and true worship cannot be compelled; and it treated the Church as a corporate body with legal rights, including property-owning rights. Thus the not-really-an-Edict of Nicomedia and Elsewhere cemented into the foundations of the West ideas first sketched by the Christian philosopher Lactantius: that coercion and true religious faith don’t mix because “God wishes to be adored by people who are free” (as Joseph Ratzinger would rewrite Lactantius a millennium and a half later, in the 1986 Instruction on Christian Freedom and Liberation). The rather humane provisions of the mis-named “Edict of Milan” were not infrequently ignored in subsequent Western history; but that doesn’t alter the fact that the “Edict” had a profound and, in many respects, beneficial influence on the future of the West.

(Weigel quotes a passage from Wilken revealing that the Milanese origins of the documents putting the policy into effect arose from meetings between Emperors Constantine and Licinius during a state wedding.)

So, watch the lecture and learn other interesting things that will impress your friends and confound your opponents.

Ministers: Beware

by Travis Weber

October 20, 2014

As if the over-stepping Houston major’s office subpoenaing sermons and other private communications of pastors wasn’t enough, we now receive news of two elderly ministers being told by city officials that any refusal to marry a same-sex couple could cause them to face up to 180 days in jail and $1,000 in fines for each day they decline to do so.

For many years, the husband and wife team of Donald and Evelyn Knapp have presided over wedding services across the street from the local county clerk’s office in Coeur d’Alene, a beautiful city in North Idaho. Now, they are told they have to conform to their city’s iron-fisted demand that they “marry” men to men and women to women.

In other words, from the city to the ministers: Your religious liberty doesn’t really mean a thing when it comes to the new sexuality; you must come into line in accord with our views. When the city says something related to human sexuality should be accepted, that’s the final word.

For years, we have also been told by gay-marriage advocates that no harm would come from legalizing same-sex marriages. No one would be forced to participate.

Yet it seems that day has arrived. Court-issued stays have been lifted, and gay marriages have started to proceed in Idaho. Now a minister is being told by his government that he must officiate at these “marriages.”

Now that we are past the point where we were told the gay-rights crusade would stop, should we expect it to just stop here? I’ve grown doubtful of such expectations, as the advocacy and pressure for acceptance continue full steam. No, this crusade will likely continue until all are forced to approve.

These developments have occurred incrementally. As Albert Mohler points out, “[t]his is how religious liberty dies. Liberties die by a thousand cuts. An intimidating letter here, a subpoena there, a warning in yet another place. The message is simple and easily understood. Be quiet or risk trouble.”

How true. We are more in danger of remaining apathetic to threats to our freedom when the individual threats just don’t appear to be a big deal. The danger is in the accumulation, though. Hopefully, for many, this latest “increment” will be too big to ignore.

Snoops on the Stoops of the Church

by Tony Perkins

October 15, 2014

When it comes to illegal surveillance, it looks like the NSA has some competition. In a story that’s making Texans’ heads spin, the Houston P.C. police — the same Council that passed an LGBT ordinance this year — is subpoenaing sermons, emails, and even text messages from local pastors to see if they’re promoting a voter referendum to overturn the measure.

The jaw-dropping move — one in a long line of Houston’s “gotcha” government — is only fanning the flames of outrage over the city’s totalitarian tactics. Even for Houston’s radical leadership, this is an affront to the plain language of the First Amendment, which not only gives churches the right to speak freely but the individuals leading them as well! “City council members are supposed to be public servants, not ‘Big Brother’ overlords who will tolerate no dissent or challenge,”said Alliance Defending Freedom’s Erik Stanley. “In this case, they have embarked upon a witch-hunt, and we are asking the court to put a stop to it.”

Yesterday, ADF filed a motion in court to stop the senseless monitoring of churches. “The message is clear,” they explain, “oppose the decision of city government, and drown in unwarranted burdensome discovery requests… Not only will the pastors be harmed if these discovery requests are allowed, but the People will suffer as well. The referendum process will become toxic and the People will be deprived of an important check on city government.”

It’s a sad commentary on our times that a nation founded by church leaders is trying to muscle those same religious voices out of the political process. Obviously, there’s no limit to how low the Left will stoop, and how many laws it will break, to impose its agenda on unwilling Americans.

 

In the name of religious rights for prisoners

by Travis Weber

October 7, 2014

Today oral argument will be heard by the Supreme Court in Holt v. Hobbs, a case in which a Muslim prisoner is seeking to grow a ½ inch beard in compliance with his religious faith. The prison policy at issue actually permits ½ inch beards, but only for medical reasons. For this marginalization of his religion, Mr. Holt has sued under the Religious Land Use and Institutionalized Persons Act (RLUIPA), and is asking the Court to apply strict scrutiny (the same high standard of protection for religious rights required by RFRA and affirmed by the Supreme Court in Hobby Lobby) and protect his religious rights in the face of a discriminatory prison policy.

Many see the importance of protecting religious rights for prisoners, including those who have personally benefitted and come to faith through access to religious programs in prison. My law school colleague Jesse Wiese, now advocating for prisoners at the Justice Fellowship, is one of these; he has written about his experiences in support of Mr. Holt’s religious claim in this case. A win for Mr. Holt under RLUIPA in this case will protect all prisoners, regardless of faith. Along with protecting a Muslim prisoner who wants to grow a beard to a reasonable length (in keeping with the prison’s need to maintain order and discipline), the application of strict scrutiny here will strengthen the law’s protections for Jewish prisoners seeking dress or grooming accommodations, or those seeking access to Bible studies in prison. As it is said, a win for religious freedom for one is a win for religious freedom for all.

Moreover, a win for Mr. Holt here will strengthen protections for religious exercise in public spaces in the United States, something that groups like the Freedom From Religion Foundation just can’t stand. Religion always has occupied a unique role in the public life of our country. We can expect the Supreme Court to again affirm that principle with a ruling for Mr. Holt in this case.

Sudan must redress Meriam’s new plight along with its legal system, which is already leading to other apostasy charges

by Travis Weber

June 24, 2014

Just when it looked like Sudanese mother Meriam Ibrahim and her two children would finally be free from the grip of injustice, they were snatched back into the clutches of the Sudanese authorities, who detained them when they arrived at an airport to leave Sudan today. Though it’s unclear on what basis they are being detained, we call on Sudan to immediately release Meriam and her children. In addition, the United States government, specifically Secretary of State Kerry and the U.S. Embassy in Khartoum – must pursue high level engagement on Meriam’s case. Sudan needs to know that the United States and its high level officials are watching whether Sudan pursues justice or regresses backwards into permitting the unjust detention of Meriam and her children to occur once again.

Yesterday, in a heartening turn of events, a Sudanese appeals court overturned a lower court ruling in which Meriam had been sentenced to death for apostasy and 100 lashes for adultery. According to Sudan’s official SUNA news agency (as reported by the Independent), “The appeal court ordered the release of Mariam Yahya and the cancellation of the (previous) court ruling.”

This was certainly a good bit of news, as numerous human rights organizations and governments had pressured Sudan and called on the ruling to be reversed. The U.S. government had been slow to respond, however, only recently issuing statements bearing on the matter. Numerous groups had spoken and petitioned on Meriam’s case, including the Family Research Council. And in Sudan, Meriam’s attorneys had filed appeals and vowed to fight to the end.

It is important to note that the Sudanese court ordering Meriam’s release got this issue right. Yet her re-arrest appears arbitrary – no basis for her detention has been offered – and it will be increasingly harmful to Sudan’s relations with the United States and the other countries outraged by the original charges against Meriam. Moreover, in the eyes of the many of the activists and NGOs which have spoken out on her case, Sudan’s reputation as a just and reasonable country will continue to degrade until it safely releases this family and allows them safe passage out of the country. 

Many have made their voices heard around the world on Meriam’s case. In addition, however, voices within Sudan have made it known that they wanted justice for Meriam too. Here, Muslim men (Meriam’s Sudanese attorneys) are defending a Christian woman (Meriam) in her quest for justice. These attorneys strongly believe in her case, and despite receiving death threats for defending a Christian, they vowed to fight to the end and exhaust all appeals. Furthermore, other Muslims in Sudan have been demonstrating on Meriam’s behalf.

While her attorneys and others in Sudan were on her side, not everyone was happy with Meriam’s freedom. When she was released, Meriam had to go into hiding due to threats against her life. Now, as she is trying to leave the country along with her family, she is being detained by Sudanese national security forces for an unknown reason. We call on Sudan to immediately release Meriam in accordance with the court order overturning her conviction and sentence. In addition, Secretary of State Kerry and the U.S. Embassy in Sudan must pursue high level engagement on Meriam’s case. Sudan needs to know that the United States and its high level officials are watching whether Sudan pursues justice or regresses backwards into permitting the unjust detention of Meriam and her children to occur once again. Sudan is close to bringing justice to Meriam, and must not fail her now.

We have witnessed Meriam’s attorneys and the protesting crowds expressing their support for Sudan to take ownership of this issue and be ready to handle religious freedom challenges when they inevitably arise in the future, for this issue is not going away. Indeed, it has already shown itself again: On April 2, 2014, Sudanese police arrested Faiza Abdalla near Sudan’s eastern border. Though details are scant, it appears that Abdalla, whose parents converted to evangelical Christianity before her birth and raised her in the same faith, was arrested because she has a Muslim name and yet professed Christianity. Her Catholic husband fled Sudan two years ago because of persecution, Morning Star News reported. As in the case of Meriam Ibrahim, Sudanese officials voided her marriage and accused her of apostasy when she refused to deny Christianity.[1]

There is no reason for these cases to recur—Sudan’s apostasy laws are inconsistent in light of the commitments it has made under its Constitution and international agreements, and must be repealed. Sudan’s 2005 Interim Constitution states that the government “shall respect the religious rights to … worship or assemble in connection with any religion or belief and to establish and maintain places for these purposes.”[2] Article 18 of the International Covenant on Civil and Political Rights, to which Sudan is a party, states: “[e]veryone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.”[3] The African Charter on Human and Peoples’ Rights states, to which Sudan is a party, states that the “[f]reedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.”[4]

 

Sudan’s apostasy laws are in conflict and inconsistent with these legal authorities, which provide a religious freedom that includes the freedom to choose one’s beliefs. Sudan has given its word and agreed to abide by these sources of authoritative law, and yet the apostasy laws under which Meriam was jailed and Faiza is detained are still being used to work injustice in Sudan. As a matter of integrity for the Sudanese nation and its legal system, and to avoid ongoing and future injustices like Meriam’s and Faiza’s, Sudan must repeal its apostasy laws.



[1] 2nd Sudanese Woman Jailed for Her Faith, Baptist Press, May 28, 2014, http://www.bpnews.net/printerfriendly.asp?id=42656.

[2] 2005 Interim National Constitution of the Republic of Sudan, art. 6.

[3] International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), art. 18, 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976 [hereinafter ICCPR].

[4] Organization for African Unity, African Charter on Human and Peoples’ Rights, art. 8, June 27, 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982).

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