Category archives: Conscience protection

In Fulton, the Religious Liberty of Foster Care Providers Hangs in the Balance

by Kaitlyn Shepherd

October 21, 2020

During its last term, the Supreme Court garnered considerable attention by wading into the culture wars over polarizing social issues such as abortion and sexuality. Decisions to strike down a common-sense law requiring abortionists to have hospital admitting privileges and to redefine “sex” to include sexual orientation and gender identity were mourned by conservatives and applauded by liberals.

While secular activists lamented, conservatives celebrated decisions upholding the rights of religious families and schools to participate in neutral tuition assistance programs and requiring foreign organizations to adopt policies opposing prostitution and sex trafficking to receive federal funds to combat HIV/AIDS. The Court will likely remain in the public eye during its current term, when it will hear arguments in Fulton v. City of Philadelphia, a case that will have significant implications for the future of religious liberty and foster care in America. The justices will hear oral arguments in the case on November 4.

The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ….” Thus, the Constitution protects religious liberty in two separate but related provisions. The Establishment Clause prevents Congress from favoring any religious denomination at the national level, while the Free Exercise Clause guarantees Americans the right to believe and act according to their religious convictions. Both Clauses also constrain the actions of the states. Prior to 1963, the right to freely exercise one’s religion was somewhat limited. While an individual’s religious beliefs were absolutely protected, his or her freedom to act on those beliefs could be fairly easily regulated.  

In 1963 and 1972, the Supreme Court decided two landmark religious liberty cases, Sherbert v. Verner and Wisconsin v. Yoder. These cases established the strict scrutiny standard, which means that when the government implements a law or policy that burdens someone’s right to free exercise, it must show (1) that it has a compelling state interest that justifies its burden on religious exercise and (2) that its law or policy is the least restrictive means of accomplishing this compelling interest. Because of their robust protection of religious liberty, Sherbert and Yoder ushered in a Golden Age of religious freedom in America.

In 1990, the Court issued an unexpected decision that dramatically changed religious liberty protections. In Employment Division v. Smith, the Court abandoned the strict scrutiny standard and held that the government only needs to show that its law or policy is neutral and generally applicable in order to overcome a free exercise challenge. This “neutral law of general applicability” standard waters down protections for religious liberty by giving the government a lower bar to overcome. The government only needs to demonstrate that the law treats religious and secular groups equally and was not enacted to target religion. Under this standard, religious individuals are rarely successful in court and must prove that they were actively targeted for their religious beliefs to prevail.

In its upcoming term, the Court will consider Fulton v. City of Philadelphia. The decision will impact the rights of religious foster care agencies to speak and act consistently with their sincerely held religious beliefs. One of the plaintiffs in the case, Catholic Social Services (CSS), is a faith-based foster care agency that operates in Philadelphia. When a child enters Philadelphia’s foster care system, the City refers them to one of several foster care agencies. These agencies then evaluate prospective foster parents to certify that they meet state standards. Because of its sincerely held religious belief that marriage is between one man and one woman, CSS considers same-sex couples to be unmarried and is unable to certify them as foster parents. However, if an LGBT-identified couple were ever to approach them (which has never happened), CSS would refer them to another agency that would be a better fit. Nevertheless, Philadelphia’s Department of Human Services has stopped referring children to CSS.

In the lower courts, CSS argued that the City’s actions were neither neutral nor generally applicable and targeted CSS because of its religious beliefs. The Third Circuit Court of Appeals held that there was no First Amendment violation and that Philadelphia did not treat CSS differently because of its religious beliefs. Rather, the court found that Philadelphia was merely engaged in a good-faith effort to enforce its nondiscrimination policy, which “prohibits sexual orientation discrimination in public accommodations.”  

In Fulton, one of the major issues that the Supreme Court will consider is whether it should revisit its decision in Employment Division v. Smith. If the Court revisits and overrules Smith, it will be a major victory for religious liberty that could restore the favorable strict scrutiny standard. However, if the Court declines to revisit Smith, or revisits and upholds Smith, its damaging precedent will become further entrenched in American law, dealing a major blow to religious liberty. The Court’s decision could be influenced by its recent decision in Bostock v. Clayton County, which, as Justice Alito predicted in his dissent, could affect the speech of those who desire to “express[] disapproval of same-sex relationships …”

Allowing religious discrimination against faith-based foster care agencies would not just be a blow to the constitutionally-protected right of religious liberty. It would also be detrimental to the already overburdened foster care system. In states and localities that have forced religious agencies to close, children suffer. For example, after Illinois passed a statute that forced all foster care and adoption agencies to place children with same-sex couples, nearly 3,000 children were displaced from religious agencies that were forced to close, and over 5,000 foster homes were lost. In Philadelphia, the home of a “Foster Parent of the Year” award winner who had been serving needy youth for decades was forcibly closed to foster youth, as were others. After the City ended its contract with CSS, siblings of children who had already been placed by the agency faced the daunting prospective of being forced into separate homes.  

Pennsylvania is not the only state to witness the targeting of religious foster care agencies. In Michigan, an activist couple targeted St. Vincent Catholic Charities, passing four other agencies they could have worked with as they traveled from their home to St. Vincent. Here, referrals had been made. Children in St. Vincent’s care had been transferred to other agencies working with LGBT-identified couples who were interested in adopting children in St. Vincent’s care. And in New York, New Hope Family Services, which has been serving needy children for over 50 years, was informed by the state that it must either change its policy of referring LGBT-identified couples to other agencies or cease its adoption services. A New York District Court judge recently issued an injunction on behalf of the church, preventing the state “from revoking New Hope Family Services’ authorization to place children for adoption.”

In Fulton, the Court stands poised to issue a decision that will have a lasting impact on the religious liberty of foster care agencies and perhaps that of all Americans. While we watch and wait for the Court’s decision, we should pray that God would give the justices wisdom to make the right decision.

Kaitlyn Shepherd is a legal intern with the Policy & Government Affairs Department at Family Research Council.

Christians Rejoice as Sudan Moves Toward Embracing Religious Freedom

by Arielle Del Turco

July 21, 2020

I am very pleased, God has answered our prayers,” Noha Kassa, a Christian leader in Sudan, proclaimed earlier this month in response to the repeal of Sudan’s infamous apostasy law. 

For years, Sudan had topped lists of worst violators of religious freedom in the world. But all of that changed in the spring of 2019 when the military overthrew the longstanding President Omar al-Bashir. Since then, the joint military-civilian Sovereign Council has been steadily enacting reforms, including reforms recommended by the U.S. Commission on International Religious Freedom.

In July, the government repealed Article 126 of Sudanese criminal law, which prohibited apostasy and required the death penalty as punishment if the accused did not repent. Sudan is the only Islamic-majority country to repeal an apostasy or blasphemy law in the last two years.

In Muslim-majority countries like Sudan, apostasy laws are intended to keep people from abandoning Islam. Such laws are an affront to religious freedom because they prevent people from choosing and living out their faith as their conscience dictates.

Sudan’s apostasy laws became famous around the world, thanks to the case of Mariam Ibraheem. In 2014, Mariam was sentenced to death for apostasy. With a toddler at home, she gave birth to her second child in jail. Mariam had been raised by her Christian mother, though her father was a Muslim. Before marrying her Catholic husband, Mariam joined the Catholic Church in 2011.

Mariam’s case prompted an international outcry, and pressure from foreign governments eventually prompted the Sudanese government to release her. Now, the law that once sentenced her to death has thankfully been repealed.

While repealing such an oppressive law may seem like an obvious move to those of us in the West, this act required Sudanese leaders’ courage. There are radicals in Sudan who did not want to see this change happen and would prefer to see Sudan’s legacy of religious repression continue. The current Sudanese government should be applauded for its efforts to create a freer society for its people.

Apostasy, blasphemy, and anti-conversion laws continue to plague religious minorities in many parts of the world. As a part of the State Department’s effort to prioritize international religious freedom in its foreign policy, U.S. diplomats should consistently urge every government who maintains one of these laws to repeal them in diplomatic meetings.

Sudan’s move toward embracing religious freedom is worth celebrating. However, it also reminds us that apostasy laws are still on the books in several countries, including Iran, Saudi Arabia, and Mauritania. Sudan’s example proves change is possible, and it should encourage us to advocate for the repeal of laws oppressive to religious liberty everywhere they remain.

China Is About to Clamp Down on Hong Kong

by Arielle Del Turco

June 26, 2020

Secretary of State Mike Pompeo announced on June 26 that the U.S. will impose visa restrictions on Chinese officials “responsible for eviscerating Hong Kong’s freedoms.” This is a good step for the people of Hong Kong desperately looking for a lifeline as they watch their freedoms get trampled by the Chinese government.

Last year’s pro-democracy protests, which captured global attention, initially targeted a proposed extradition law that would have allowed Hong Kong residents to be extradited to mainland China and subjected to its corrupt judicial system. Yet, this year’s threat to Hong Kong’s freedom is much worse. China’s National People’s Congress is expected to ratify a sweeping new national security law for Hong Kong next week. Newly released details indicate the law will damage many of the freedoms Hong Kongers have long enjoyed, including religious freedom.

According to the Sino-British Joint Declaration signed in 1984, Hong Kong is meant to enjoy a high degree of autonomy for 50 years following the city’s return to China in 1997. With the new security law, Hong Kong’s autonomy—and the “one country, two systems” principle that has guided its government—is all but destroyed. The new law will allow Beijing to override Hong Kong law, establish a national security office in Hong Kong to investigate crimes, and enable Beijing to suppress protests or public opposition.

China is one of the world’s worst violators of human rights and religious freedom. So, what does Beijing’s encroachment into the legal system in Hong Kong mean for its religious communities?

Firstly, Christian pastors and clergy members who participated in Hong Kong’s anti-extradition bill protests may be punished for their participation. Christians and Christian leaders played a pivotal role in pro-democracy demonstrations last year. The hymn “Hallelujah to the Lord” became an anthem for protestors. Meanwhile, Chinese officials insinuated that demonstrators were terrorists.

No dissent is tolerated in mainland China, and Hong Kong’s religious leaders who are vocal against Beijing may be extradited and tried under the new law. Christian NGOs are now expressing concern for outspoken religious leaders such as Cardinal Joseph Zen and Auxiliary Bishop Joseph Ha Chi-shing, who supported the pro-democracy movement.

Secondly, the new law might pave the way for Hong Kong’s Christian leaders to be silenced. According to an outline of the law released by Chinese officials, the national security concerns Beijing claims the right to address include secession, subversion of state power, terrorism, and collusion with foreign forces.

China’s broad accusation of “subversion of state power” may sound familiar. At the end of 2019, well-known house church pastor Wang Yi, who led one of China’s largest unregistered churches, was sentenced to nine years in prison for “inciting to subvert state power.” Beijing uses this phrase, among others, as an excuse to lock away anyone who publicly objects to the government’s practices. Should Hong Kong’s pastors expect to be next?

Thirdly, in addition to harming believers in Hong Kong, this new law is likely to have negative effects on faith in mainland China. Christianity is a legally recognized religion. However, Christian churches that register with the Chinese government are pressured to adapt their religious beliefs to Chinese Communist Party values, including socialism. To avoid government interference, many unregistered house churches operate outside of regulation but lack resources and pastoral training as they try to practice authentic Christianity. For a long time, house churches on the Chinese mainland have found support from Hong Kong’s Christians.

Churches and pastors in Hong Kong provide Bibles, training, and financial support to house churches on the mainland. One study from 2014 found that over 60 percent of Hong Kong’s churches “engage in work on the mainland, illicit or otherwise, including preaching and theological training.” If Hong Kong Christians are subjected to the same so-called “national security” laws that put Pastor Wang Yi in prison for subversion of state power, this may cut off the support and resources Hong Kong pastors feel they can safely offer. For the mainland’s increasingly oppressed churches, support from Hong Kong is a lifeline they can’t afford to lose.

On June 25, the U.S. Senate passed a resolution introduced by Senator Josh Hawley which condemned Beijing’s national security law and called on free countries to stand against Beijing’s effort to destroy basic liberties and human rights in Hong Kong. The Senate also passed the Hong Kong Autonomy Act which would impose sanctions on individuals, entities, and banks that aid Beijing’s campaign to control Hong Kong and destroy its autonomy. The U.S. House of Representatives should follow suit and swiftly pass the Hong Kong Autonomy Act and send it to the president’s desk.

When the National People’s Congress announced its proposed national security law, Beijing broke its agreement to allow Hong Kong autonomy. For Hong Kong residents who cherish their political and religious freedom, the effects will be widespread and devastating. As they fear for their future, U.S. officials must do everything within their power to support the people of Hong Kong. This city has long been a beacon of freedom and prosperity in contrast with Chinese authoritarianism. Chinese encroachment into Hong Kong is a tragedy for the free world, and it is one that the United States must not watch unfold silently.

We Must Never Forget the Tiananmen Square Massacre

by Arielle Del Turco

June 4, 2020

Every year for the past 30 years, crowds have gathered in Hong Kong on June 4th to light candles, hear from former Chinese pro-democracy activists, and mourn the infamous massacre of student demonstrators by the Chinese People’s Liberation Army in 1989. This year, no legal vigil was permitted, but that didn’t stop thousands from bringing white candles to a Hong Kong park to remember the tragedy that came to be known as the Tiananmen Square Massacre.

Hong Kong authorities refused to allow the annual public remembrance to be held this year, claiming to be concerned about the coronavirus, but such displays are always banned on the mainland. Many of the freedom-loving people of Hong Kong—who had long identified with those who called for freedom in Tiananmen Square—now fear the Chinese government is silencing Hong Kong dissenters much like they did in 1989.            

Beijing suppresses these annual memorials. Yet, the world must remember the tragedy that took place three decades ago because it reveals what the Chinese government is willing to do—even to its citizens: to squash perceived threats to its authority.

Thirty-one years ago today, the Chinese People’s Liberation Army fired live ammunition into crowds of their own people. Chinese civilians had been demonstrating in Tiananmen Square in Beijing for weeks, calling for a more democratic government. Their protests ended in a bloody crackdown that shocked the globe.

It is estimated that several hundred to several thousand people died that day, but an official death toll was never released. Family members of the deceased victims still beg for answers.

To this day, the Chinese government does not admit wrongdoing during the Tiananmen Square Massacre. When the government of Taiwan recently called upon Beijing to apologize for the violent crackdown three decades ago, a spokesman defended the legacy of communist party leadership. Chinese Foreign Ministry spokesman Zhao Lijian declared, “The great achievements after the founding of new China fully demonstrate that the development path chosen by the new China is totally correct and in line with China’s national conditions.”

Yet, the often-violent legacy of Chinese Communist Party (CCP) rule is nothing to take pride in. Mao’s Great Leap Forward and Cultural Revolution took drastic human tolls and denied the Chinese people basic human rights.

The Chinese government still withholds such rights from its citizens today. Among them is freedom of religion, a right intimate and fundamental to the human conscience.

In the northwestern region of Xinjiang, the government is in a full-on assault against religion. At least 1.8 million Uyghur Muslims are forcibly detained in internment camps where they are brainwashed and abused. Outside the camps, the rest of the region is patrolled with facial recognition technology and other means to tightly control the oppressed Uyghur minority.

Throughout the mainland, Christians are intimidated, and churches are surveilled as crosses are torn down from their buildings. Well-known house church pastor Wang Yi sits in prison serving a nine-year sentence—a grave reminder to other pastors that they ought not step out of line.

Perhaps most alarmingly, evidence is mounting that the Chinese government is forcibly harvesting organs from political prisoners. These are thought to be mostly from Falun Gong practitioners, a long-persecuted faith group entirely undeserving of the abuse they endure. 

The Chinese Communist Party may want the world to forget its ruthless history, but it is critical that we keep the memory of the Tiananmen Square Massacre alive.

The Tiananmen Square Massacre exposed the blatant disregard with which the Chinese Communist Party views human lives. This disregard is unfortunately not relegated to history—it still affects the Chinese people, including religious believers. Today, we remember the Tiananmen Square Massacre and its countless victims. But let us also remember those who continue to suffer under the Chinese government’s oppressive policies.

The Trump Administration Is About to Do the Right Thing on Religious Freedom — Again

by Travis Weber, J.D., LL.M. , Mary Beth Waddell, J.D.

May 22, 2020

The Department of Health and Human Services (HHS) is about to finalize a rule it proposed last year to ensure that religious freedom and conscience are protected, the medical profession is not politicized, and patient care is prioritized. We urge this rule’s swift finalization.

This rule is great news for patients and the health care community alike. In 2016, under the Obama administration, HHS issued regulations on Section 1557 of the Patient Protection and Affordable Care Act defining “sex” in the context of “sex discrimination” to incorporate “gender identity” and “the termination of pregnancy”. Health care institutions sued, contending that the heavy hand of government was forcing them to violate their conscience and threatening their ability to operate. Understanding that HHS had exceeded its authority, a federal judge issued an injunction to prevent the Obama administration rule from taking effect.

Now, President Trump plans to clean up this mess, and protect religious freedom, for our caregiving institutions nationwide. This policy change will enable the medical community to fulfill the Hippocratic oath, while protecting the convictions of those in that community who want to hold to their religious beliefs and consciences about the biological understanding of sex.

President Trump’s proposed rule is also pro-life, and will ensure that the pro-life convictions of medical professionals will be honored. The inclusion of “termination of pregnancy” in the Obama administration rule could be read to require the provision of, and coverage or referral for, abortion. This could then lead to federal financial assistance being conditioned on the promotion and performance of acts that devalue the sanctity of human life. Thus, removing this language is important to ensuring that federal laws protecting the right of healthcare workers not to provide or refer for abortion will be upheld. 

We applaud HHS for standing with science and religious liberty to ensure that the medical community is free of political chains and can simply focus on providing the best possible care to their patients according to the best medical science.

The finalization of this rule is a high priority for religious freedom, and very important to protecting the faith of many throughout our country.

It should be finalized promptly, so that those with long-running conscience and religious freedom concerns in this area can finally put them to rest.

Susan B. Anthony Advocated for “Natural Rights.” We Must Carry On Her Work.

by Adelaide Holmes

February 15, 2020

Today is Susan B. Anthony Day, so it’s a perfect time for Christians to learn from the life and activism of Susan B. Anthony. Although she had a diverse and at times unorthodox Christian background, she believed that all of humankind was equal under God. This inspired her activism. Anthony’s life reflects a belief that our culture desperately needs to hear from Christians that the value and natural rights of every human being comes from God and deserves to be protected.

It’s imperative that Christians understand that the idea of God-given rights and equal value are not merely human inventions. While both Anthony and the Founding Fathers claimed that all of mankind was created equal by God, this idea was not unique to them. Instead, it derives from biblical principles of justice.

Anthony claimed that mankind received their rights from God rather than the government. In her speech “Is it a Crime for a Citizen of the United States to Vote?” she says, “Before governments were organized, no one denies that each individual possessed the right to protect his own life, liberty and property.” Anthony believed that mankind had these rights long before there was a government.

But if the government didn’t give us our most basic rights, where did they come from? Anthony believed that these rights are natural, meaning they are given by God. Thus, a just government should protect them, not create them. She asserts, “The Declaration of Independence, the United States Constitution, the constitutions of the several states and the organic laws of the territories, all alike propose to protect the people in the exercise of their God-given rights.” Anthony further quoted from the Declaration of Independence to prove her point in her speech: “All men are created equal, and endowed by their Creator with certain unalienable rights.”

If Anthony is right that mankind was endowed with rights by God, we should see something in Scripture about it. While the language of “natural rights” is not explicitly stated in scripture, we can see that the principles of rights are supported in the commands given by Jesus and Moses.

In Mark 12:31, Jesus instructs his followers to “love your neighbor as yourself.” This confirms what is expressly stated in Matthew 7:12, that we should treat others as we would want to be treated. This means that if you love your life, liberty, or property and desire for those things to be respected, you should love and respect your neighbor’s life, liberty, and property as well.

While Mark 12 does not contain the language of rights, the Ten Commandments show that God expects His creation to respect the life, liberty, and property of others. In Exodus 20, the second table of the Ten Commandments directly command us not to end another person’s life or to steal their property. While the specific language of “rights” is not present here, violating someone’s life or property was considered a serious moral failing under the law and subject to governmental punishment. By putting these commands in the moral and legal law for the Israelites, God set an example for just government that the Founders reaffirmed through the protection of these natural rights in the Constitution.

Not only is there biblical support for the idea of natural rights, but there is also a case for equality in how we respect other’s rights. In Leviticus 24, the Mosaic law requires that the laws of restitution and penalties for murder and stealing are to be the “same rule for the sojourner and for the native.” God is perfectly just, and justice requires that the protection of natural rights be unbiased towards external factors like one’s nationality.

While there is strong biblical support for the principles behind natural rights and equal respect of other’s rights, there are times when our natural rights are not adequately protected in the U.S. When this happens, Christians need to go a step further. It happened in Anthony’s day with the unequal protection of women and African Americans. But she refused to sit by apathetically and watch injustice occur around her. Instead, she took action to advocate for their rights. Whether or not she realized it, Anthony acted out the command in Micah 6:8 to “do justice.” Every Christian should do the same today.

In America, Christians can advocate for the rights to life, liberty, and property of their neighbors. Every day in America, preborn children are killed because of “choice,” women and children are enslaved in sex-trafficking because of other’s “pleasure,” and Christians lose their jobs or are forced to close their businesses because their consciences aren’t “tolerant.” We have the opportunity and duty to love these neighbors around us and advocate for the protection of their rights, just as Susan B. Anthony did.

Crimes” in the Criminal State of China

by Daniel Hart

December 5, 2019

The video is chilling. In a recently released clip from inside a Chinese police station, a lone man sits strapped into a metal cage-like contraption that looks like it is meant to subdue a wild animal, but is actually meant for the interrogation of ordinary citizens. With downcast eyes and a timid voice, he softly answers a series of questions from his interrogators, apologizing for drinking “a bit too much” and speaking “nonsense.” His crime? He apparently made a negative remark or two on social media about the police confiscating motorcycles.

What’s wrong with the police confiscating motorcycles?” the interrogator demands.

Nothing wrong with that,” the man feebly responds.

At the end of the video, after repeatedly expressing his sorrow for his “crime” in response to multiple demands by the interrogators to explain himself, the man makes a final plea for mercy. With a bow of his head, he solemnly declares, “Uncle police, I’m so sorry. I’m wrong. I know that now. Please forgive me. I won’t do it again, ever.”

Interrogations like these are now becoming a routine part of life in China. With no civil rights and an encroaching regime that monitors every aspect of daily life, ordinary citizens like this man know that if they say something on social media that the government doesn’t like and say the wrong thing to the police, they could end up in prison, tortured, or killed.

But this is just the tip of the iceberg of the human rights atrocities and abuses that the Chinese Communist Party (CCP) is perpetrating against its own people. Here is a brief list:

  • As we have written about previously, the CCP is forcibly harvesting the organs of religious minorities to fuel an organ industry to the tune of $10-20 billion, which provides up to 85 percent of the world’s organ transplants (more on that later).
  • The CCP has been persecuting and executing the traditionally Muslim Uyghurs since at least the 1990’s. Today, over 1.5 million ethnic Uyghurs are currently imprisoned in what the CCP calls “concentrated education and training schools,” in which detainees are subjected to indoctrination sessions, torture, sexual assault, and execution.
  • The CCP continues to mandate the number of children couples can have, which recently changed from a one-child to a two-child policy. This system is enforced through exorbitant monetary fines, forced abortions, and forced sterilizations. It is estimated that there have been more than 330 million induced abortions in China since the one-child was first implemented in the early 1980’s. A significant (but unknown) percentage of these abortions were forced.
  • The CCP’s reign of terror against religious practitioners has been ongoing since the 1960’s. Currently, religious practice is being suppressed by any means necessary.
  • The CCP is implementing a “social credit system” that rates the behavior of Chinese citizens so that their ranking fluctuates up and down. Depending on your score, you can be banned from buying plane and train tickets, your children can be banned from attending the best schools, you can be denied jobs, and you can be publicly named a “bad citizen,” among a host of other injustices.

As these human rights atrocities and abuses illustrate, China is in fact a criminal state. The final report compiled by the China Tribunal (which amassed definitive evidence of forced organ harvesting that has and is currently happening in China) makes this conclusion:

Governments and any who interact in any substantial way with the PRC [People’s Republic of China] including:

  • Doctors and medical institutions;
  • Industry, and businesses, most specifically airlines, travel companies, financial services businesses, law firms and pharmaceutical and insurance companies together with individual tourists,
  • Educational establishments;
  • Arts establishments

should now recognise that they are, to the extent revealed above, interacting with a criminal state.

FRC could not agree more. Organizations like the NBA, Hollywood, and other industries that have conveniently ignored the human rights atrocities and abuses committed by the CCP for financial gain must answer to the fact that they are dealing with a criminal state. And as we have repeatedly pointed out, the United States must address these atrocities and abuses in its current and future trade and diplomatic dealings with the CCP.

Little Sisters of the Poor Are Once Again Denied Freedom of Conscience

by Katherine Beck Johnson

October 23, 2019

The Little Sisters of the Poor were back in court yet again yesterday, this time losing at the U.S. Court of Appeals for the Ninth Circuit.

Back in 2011, the Department of Health and Human Services (HHS) issued a federal mandate as part of the Affordable Care Act (ACA). The mandate required employers to provide contraceptives, including the week-after pill, free-of-cost in their health insurance plans. HHS offered only a very narrow religious exemption. So narrow, it did not include non-profits—such as the Little Sisters of the Poor, a Catholic order of nuns who assist the impoverished who are at the end of their lives with nowhere else to go. These nuns have dedicated their lives to their faith and to serving the poor. Yet, these women were sued and told that they must violate their conscience by providing contraception through their insurance.

In May 2016, the Supreme Court unanimously overturned lower court rulings against the Little Sisters. The Court said the government should be provided an opportunity “to arrive at an approach going forward that accommodates the petitioners’ religious beliefs.” On May 4, 2017, President Trump issued an executive order that directed the secretaries of federal agencies to consider regulations that would address the conscience-based objections to the ACA’s contraceptive mandate. On November 7, 2018, the federal government complied with the Supreme Court’s ruling and the president’s executive order by issuing a new rule protecting religious liberty. This new rule provided religious ministries, entities, and persons holding sincere religious beliefs with an exemption to the contraceptive and sterilization coverage.

Soon after the rule was issued, states including Pennsylvania and California sued the federal government to ensure that the Little Sisters of the Poor would not be exempted from providing contraception. Even though these states have programs that provide contraceptives to women who want them, these states insist that non-profits, including the Little Sisters, must either be forced to violate their conscience or else cease to exist.  

In July 2019, the Third Circuit ruled against the Little Sisters of the Poor. The Third Circuit claimed that the Women’s Health Amendment to the ACA did not grant the Health Resources and Services Administration (HRSA, a component of HHS) the authority to exempt entities from providing insurance coverage for contraceptive services. On October 22, 2019, the Ninth Circuit issued a similar ruling and affirmed the preliminary injunction. The Ninth Circuit said, “the statute delegates to HRSA the discretion to determine which types of preventative care are covered, but the statute does not delegate to HRSA or any other agency the discretion to exempt who must meet the obligation.” Thus, the Ninth Circuit and the Third Circuit prevented relief for the Little Sisters of the Poor by issuing an injunction and blocking the implementation of a rule that would allow religious protections.

The Supreme Court needs to settle the debate and rule that the government cannot require people and groups to violate their conscience by providing contraceptive services. The Court should uphold the HHS rule, which protects the inherent human right of religious liberty. This liberty promotes the common good and allows society to flourish. The Little Sisters of the Poor certainly promote the common good as they assist the poorest in society. Violating their conscience ought not to be a precondition for the Little Sisters assisting those most in need.

Federal Court Ruling in Texas Is a Big Win for Religious Liberty

by Katherine Beck Johnson

October 16, 2019

An Obama-era regulation went to court recently at a U.S. federal courthouse in Texas. In Franciscan Alliance v. Azar, Judge Reed O’Connor issued an opinion striking down a Health and Human Services (HHS) mandate requiring doctors to perform gender transition procedures. Judge O’Connor held that the Rule violated the Religious Freedom Restoration Act (RFRA).

In May 2016, the federal government, through HHS, issued a mandate that would require a doctor to perform gender transition procedures on any patient, including a child. The Rule required doctors to provide these procedures even if the doctor believed it could harm the patient. In addition, the mandate required virtually all private insurance companies and many employers to cover gender reassignment therapy. If the insurance companies or employers refused, they would face severe penalties and legal action. While HHS exempted Medicare and Medicaid, they expressly prohibited religious exemptions. The Plaintiffs asked the District Court to vacate the Rule and convert its previously entered preliminary injunction to a permanent injunction.

Judge O’Connor held that the Rule violates RFRA. The Rule substantially burdened Plaintiffs’ sincere religious beliefs without a compelling interest. In addition, the Rule expressly prohibits religious exemptions.

The Plaintiffs’ refusal to perform, refer for, or cover transitions or abortions is a sincere religious exercise. In order to follow this sincere religious belief, the mandate requires extensive expenses. The Rule places significant pressure to perform and cover transition and abortion procedures, it forces Plaintiffs to provide the federal government an extremely persuasive justification for their refusal to perform or cover such procedures, and it requires them to remove the categorical exclusion of transitions and abortions. Judge O’Connor found that the Rule makes the practice of religion more expensive in the business context.  

Judge O’Connor ruled that the Defendants did not provide a compelling interest that would justify the burden on religious exercise. Those advocating in favor of the mandate argued that a compelling interest was specified in the preamble to the Rule, which states, “the government has a compelling interest in ensuring that individuals have nondiscriminatory access to health care and health coverage.” Judge O’Connor found that although that could arguably satisfy a categorical application of strict scrutiny, it cannot satisfy RFRA’s “more focused” inquiry. He said that even if those in favor of the mandate had provided a compelling interest, they failed to prove the Rule employs the least restrictive means.

The Rule was vacated (as opposed to a less severe permanent injunction) because it was found to be arbitrary and capricious. The Rule was found to be “contrary to law” under the APA due to its conflict with Title IX, its incorporated statute.

Judge O’Connor’s ruling is a huge win for religious liberty. HHS under President Trump is also working to take strides that further protect religious liberty. In May 2019, HHS proposed bringing its regulations into compliance with those decisions and ensuring that the government did not interfere and require a person to go against their convictions to provide gender transition procedures. The win in Texas coupled with the new rules from HHS provide optimism for the future of religious liberty.

Eighth Circuit: Minnesota Can’t Force Small Business to Make Same-Sex Wedding Videos

by Peter Sprigg

September 5, 2019

National media gave scant attention to an important court decision on August 23. The ruling in Telescope Media Group v. Lucero, by a three-judge panel of the U.S. Court of Appeals for the 8th Circuit, was another landmark in the ongoing debate about whether governments can force small businesses in the wedding industry to participate in same-sex weddings, over the conscientious objection of their owners.

Last year, the U.S. Supreme Court ruled in favor of Jack Phillips of Masterpiece Cakeshop, a baker who had declined to create a custom wedding cake for a same-sex couple. However, the court ruled that Phillips had been a victim of specific anti-religious discrimination by the Colorado tribunal that sought to punish him, so they did not definitively address the fundamental free speech concerns that his attorneys had raised.

Telescope Media Group (TMG) is a business founded by Carl and Angel Larsen, videographers who wished to create a business that would make wedding videos, and in the process promote natural marriages between one man and one woman. They sued Minnesota public officials to prevent them from using the Minnesota Human Rights Act to force the couple to make videos of same-sex weddings as well.

In a 2-1 decision, the 8th Circuit panel ruled in the Larsens’ favor, saying that “the First Amendment allows the Larsens to choose when to speak and what to say.” Perhaps that’s why it was largely ignored by the national media.

The breakdown of the vote also shows how important judicial appointments are. The opinion was written by David Stras, a 45-year-old Trump appointee, on the bench since January 2018. He was formerly on the Minnesota Supreme Court (having been appointed by former Republican Governor Tim Pawlenty). The other judge in the majority was 67-year-old Bobby Shepherd, appointed by George W. Bush and on the bench since 2006. Meanwhile, there was a dissent by Judge Jane L. Kelly, a 54-year-old Obama appointee who has been on the bench since 2013.

This was on appeal of the District Court’s decision to deny a preliminary injunction, so it is not a final decision on the merits. However, it is an encouraging decision in that it is based squarely on the free speech claims (or in this case, the right to be free from government-compelled speech) made by the plaintiffs. The court also accepted a “hybrid rights” claim incorporating the free exercise of religion.

Since precedent has established that videos represent a form of speech, whether the principles articulated would apply with equal force to bakers or florists may still have to be argued in other cases. However, the fact that this case was decided (at least for now) on free speech grounds, rather than the anti-religious discrimination grounds used in Masterpiece, makes it a stronger precedent for those concerned about protecting free speech and religious liberty.

Archives