Author archives: Andrew Rock

Fear Not the Establishment Clause When Engaging with Religion Abroad

by Andrew Rock

September 3, 2019

On the heels of the Trump administration’s successful second annual Ministerial to Advance Religious Freedom hosted at the State Department, and in the throes of planning for the upcoming UN General Assembly later this month in New York City, there is ample opportunity to consider how the United States might engage to promote religious freedom abroad. As it does so, perennial concerns about engaging anything to do with “religion” are sure to arise once again.

Religious freedom is a well-established facet of international human rights law. Yet, many U.S. government officials are hesitant to engage on the issue for fear of violating the Establishment Clause of the First Amendment. Not only are their fears groundless, but our failure to engage religion as a serious topic when over 80 percent of the world is religious (a percentage which is growing) seriously hampers our foreign policy efforts. If we don’t understand the world, how can we engage with it?

On the contrary, the United States’ promotion of religious liberty abroad does not violate the Establishment Clause. It is well within the law, and an important foreign policy priority which should be advanced through the various measures, including training American diplomats to address religious discrimination as they serve on the frontline of U.S. foreign policy.

The Establishment Clause does prohibit the government from creating an “establishment of religion.” The many court decisions surrounding it are complex and seemingly contradictory. However, a look at relevant legal decisions shows that promoting religious liberty abroad is perfectly acceptable under the Establishment Clause.

The only court case directly addressing how the Establishment Clause applies abroad is a 1991 case from the U.S. Court of Appeals for the Second Circuit, Lamont v. Woods. In Lamont, the court found that sending money to a religious school overseas did not violate the Establishment Clause, even if sending money to a similar school within the United States would. The court reasoned that although regular Establishment Clause doctrines apply abroad, there could be more flexibility overseas in order to accommodate a significant government interest.

Religious freedom abroad is in America’s national interest. Research shows that robust religious freedom protections allow countries to thrive economically. Religious freedom also mitigates regional security threats and is an essential aspect of a secure and stable society.

Religious liberty is also a key component of international human rights law. It is ensconced in documents such as the United Nations’ Universal Declaration of Human Rights, and treaties like the International Covenant on Civil and Political Rights. The United States specifically declared its interest in promoting religious liberty worldwide in the International Religious Freedom Act of 1998. This means that promoting religious freedom is a valid secular interest of the United States government. Thus, it is not a violation of the Establishment Clause to train diplomats to engage in religious liberty issues. Rather, it is an important way that the United States can advance its foreign policy interests, and promote human rights abroad, in accordance with its long-stated interest in doing so.

Thus, promoting religious liberty abroad is a legitimate government goal that is well rooted in First Amendment precedent. The United States can train its diplomats in religious freedom issues without running afoul of the Establishment Clause. Just this year, the State Department and USAID both introduced mandatory religious freedom training for Foreign Service Officers. As a part of this effort, they will be taught to cooperate with faith leaders from diverse communities and promote religious freedom in the context in which they serve. This is an important step in fully integrating international religious freedom into U.S. foreign policy. Such training will give American diplomats the tools they need to advance our foreign policy and engage with some of the most pressing human rights issues in the world today—which are completely legitimate, constitutional, and necessary governmental objectives.

Andrew Rock is a law student at the University of Mississippi School of Law, and a former intern at Family Research Council.

Are Justices Sotomayor and Ginsburg For or Against Religious Hostility?

by Travis Weber , Andrew Rock

June 29, 2018

On Tuesday, the Supreme Court upheld President Trump’s reasonable national security measures by a 5-4 vote in Trump v. Hawaii. In one of the dissents, Justice Sotomayor (joined by Justice Ginsburg) drew from the Court’s recent opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission to argue that President Trump’s “bias” against Muslims invalidated the travel ban because government actions cannot be motived by anti-religious sentiment. Yet less than a month ago, Justice Ginsberg (joined by Justice Sotomayor) dissented in Masterpiece, ignoring the blatant religious hostility against Jack Phillips that served as the basis for the Court’s ruling in his favor. The position of these two dissenters in Trump v. Hawaii would seem to lead to support for Jack Phillips, but it never materialized.

In Trump v. Hawaii, much biased media coverage obscured the facts of a relatively simple case. President Trump issued a proclamation that temporarily suspended entry into the U.S. of persons from countries which did not provide adequate background check information. It made no mention of any religion (six of the eight countries on the list are mostly Muslim, but the other two were not – and numerous Muslim-majority countries were not on the list). The Supreme Court held that it was well within President Trump’s authority to implement this measure as a matter of national security.

Justices Sotomayor and Ginsberg were having none of it. They insisted that the “ban” (another misnomer, since the regulations didn’t flatly ban anyone, but set up different requirements for different people trying to enter the U.S.) violated the First Amendment because of President Trump’s comments about Islam’s history of violence. The Justices reasoned that because religious hostility is not a valid basis for government action, and since these regulations were supposedly enacted out of some hostility to Muslims, then they are invalid. Justices Sotomayor and Ginsburg referenced Masterpiece, which relied on the principle that government hostility to religion violates the free exercise protections of the First Amendment, to support their argument that the Court should decide differently and to imply that the majority decision was hypocritical. They ignored the fact that they both dissented against the very decision they attempted to invoke.

Indeed, Justice Ginsberg (joined by Justice Sotomayor) penned a dissent in Masterpiece which dismissed the obvious religious hostility against Jack Phillips. The Colorado Civil Rights Commission had compared Christians like Mr. Phillips who wanted to follow their consciences to Nazis and slave owners. These inflammatory statements did not concern Justices Ginsburg and Sotomayor, who said that “whatever one may think of the statements in their historical context…I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins.”

Yet Justices Ginsburg and Sotomayor can’t have it both ways. If they believe religious hostility can serve as a basis for relief, as they state in Trump v. Hawaii, they also have to be prepared for to provide that relief for Jack Phillips. Conversely, if a decision can still be valid despite evidence of religious bias (as they argued in Masterpiece), then they should have supported the president’s reasonable national security regulations in Trump v. Hawaii. The Justices cannot ignore obvious religious bias when it is politically convenient, and turn around and use the same argument to attack other measures they don’t like.

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

by Andrew Rock

June 12, 2018

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

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

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

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

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

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

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

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

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