Tag archives: Religious Liberty

An Originalist Approach Protects Religion in the Public Square (Part 3 of 5)

by Family Research Council

March 26, 2019

Read Parts 1 and 2

The answer to confusion over the Establishment Clause is an originalist understanding of the Constitution. This approach includes analyzing historical practices at the time of the founding and the ratification of the First Amendment. The Court has increasingly incorporated this reasoning in its decisions.

The benefit of an originalist understanding is, as one scholar notes, that “the judge tries to discover not what the text ought to mean but what it did mean to those who wrote the words and, more importantly, to those who voted for those words to become law.”

When we apply this reasoning, we find that government actions involving religious displays or practices are often constitutional. As one court of appeals judge observed, “There is, put simply, lots of history underlying the practice of placing and maintaining crosses on public land . . .” Though the judge spoke of crosses, a court applying a historical interpretation of the Establishment Clause would likely uphold displays inspired by minority religions, too.

Some argue that this would introduce a “narrower standard.” This is a problem because focusing “only on coercion would open the door to sectarian endorsements that will aggravate religious tensions and needlessly divide Americans.”

But an originalist approach sets clearer boundaries for which religious displays or practices are acceptable. This is fairer and more predictable than current law. It is difficult to say exactly how many more religious displays would be considered acceptable under an originalist interpretation, if applied consistently. But recent cases indicate that principled boundaries would be no less helpful to religious minorities than to members of majority faiths.

In Town of Greece v. Galloway (2014), in which the Court adopted an original understanding of the Establishment Clause with respect to legislative prayer, the Court said it was “virtually inconceivable that the First Congress, having appointed chaplains whose responsibilities prominently included the delivery of prayers at the beginning of each daily session, thought that this practice was inconsistent with the Establishment Clause.” As American society has grown more religiously diverse, figures including the Dalai Lama, Rabbi Joshua Gruenberg, Satguru Bodhinatha Veylanswami, and Imam Nayyar Imam have opened legislative sessions with statements expressly declaring their deeply held religious beliefs. As the Court said, Congress “acknowledges our growing diversity not by proscribing sectarian content but by welcoming ministers of many creeds.”

Under Lemon and succeeding tests, courts often proscribe government support of an action or display simply because it is sectarian. But the purpose of the First Amendment was never to eviscerate religion from the public square. An originalist interpretation is the right approach to Establishment Clause challenges.

Applying an originalist approach likely means that the courts will have less say over whether a religious display can appear on public property. But this is an appropriate allocation of power, and our next post explains why.

This blog series is based on an article in the Federalist Society Review by Alexandra M. McPhee, “Can a New Establishment Clause Jurisprudence Succeed in Protecting Religious Minorities Where Lemon Has Failed?”

The Separation Between Church and State Does Not Protect Minority Religions (Part 2 of 5)

by Family Research Council

March 25, 2019

Read Part 1

Many years before courts began interpreting the Establishment Clause, Alexander Hamilton expressed his thoughts on the interpretation of the Constitution in a letter to George Washington:

[W]hatever may have been the intention of the framers of a constitution or of a law, that intention is to be sought for in the instrument itself, according to the usual and established rules of construction.

Unfortunately, when it comes to interpreting the Establishment Clause today, Hamilton’s centuries-old guidance is too often left by the wayside. Beginning in the mid-20th century, the Supreme Court turned to sources besides the framers’ intent in rendering its decisions about the Establishment Clause. This is the era that generated the doctrine of the so-called “separation between church and state.”

This doctrine underlies the decision of Lemon v. Kurtzman (1971). In that case, the Court said that a government action is unconstitutional if (1) there is no secular purpose for the action (2) it has the primary effect of advancing or inhibiting religion, or (3) it fosters an excessive government entanglement with religion.

Unfortunately, neither this test nor later cases modifying it effectively protects religious minorities. The reason is that these tests are malleable; courts are forced to make decisions without clear guidance from the law, which has so far failed to clearly articulate whether the prongs are met. There is no better example of this than cases involving the display of religious minority symbols or practices on public property. Consider the following cases that involve the Lemon test or some variation of it:

  • Allegheny County, Pa.: The Supreme Court fails to come to a consensus about whether a menorah situated next to a Christmas tree was too religious to appear on public property.
  • Westchester County, N.Y.: A trial court reasons that a menorah situated next to an unlit Christmas Tree is, indeed, too religious to appear on public property.
  • Queens, N.Y.: The state department of education reasons that for the purposes of classroom holiday displays, a nativity is a “religious symbol” and cannot appear in a classroom display, but a menorah and crescent moon and star can because they are “secular symbols.”
  • Southampton, N.Y.: A court reasons that a traditional Jewish religious practice involving affixing wires on telephone poles (an eruv) is more secular and is less likely to advance religion or foster church-state entanglement than (1) permitting a private Christian organization for children to have meetings at a public school after hours or (2) displaying a Christmas nativity scene display on public property because eruvs do not “contain any overtly religious features.”

Nativities are too religious to appear on public property. Menorahs are sometimes too religious. Crescent moons and stars are secular. Traditional Jewish religious practices are okay because they don’t look religious. Interpreting and applying the Establishment Clause should not be this disjointed. The Lemon standard perpetrates confusion and inconsistency. There is, however, a better way, which we cover in the next post.

This blog series is based on an article in the Federalist Society Review by Alexandra M. McPhee, “Can a New Establishment Clause Jurisprudence Succeed in Protecting Religious Minorities Where Lemon Has Failed?”

UK Asylum Officers Would Benefit from Basic Bible Study

by Travis Weber

March 25, 2019

Disturbing news from Britain, where the Home Office tried to claim that Christianity is not a peaceful religion in an attempt to reject a recent Iranian asylum seeker.

From The Telegraph:

The Iranian national, who has not been identified, claimed asylum in 2016 but his application was rejected after government officials said his conversion from Islam was “inconsistent” with his claim that Christianity is a peaceful religion.

In order to reiterate the point, the Home Office wrote a lengthy and “unbelievably offensive” refusal letter referencing six Bible passages and claiming that the book of Revelation is filled with “images of revenge, destruction, death and violence”.

The Home Office rejection, below the quoted verses concludes: “These examples are inconsistent with your claim that you converted to Christianity after discovering it is a ‘peaceful’ religion, as opposed to Islam which contains violence, rage and revenge.”

Absurd, and sad. Hopefully this is just an aberrant staffer and not official policy. If it turns out that multiple officials signed off on such thinking, it will be cause for even more alarm. Thankfully, the Home Office has admitted this action is “inconsistent” with its policy. Light words. Such cherry-picking of verses is likely beyond even embarrassing exegetical malpractice, and perhaps reveals malicious intent. Regardless, it shows the need for immigration officials to be trained in basic theology and Bible knowledge!

The man’s lawyer was not happy:

Nathan Stevens, the immigration caseworker at Fadiga & Co Solicitors dealing with the Iranian man’s case, posted excerpts of the Home Office letter on Twitter earlier this week saying he was “genuinely shocked” to read such an “unbelievably offensive diatribe”. It has since been shared hundreds of times.

Mr Stevens, from London, added: “Whatever your views on faith, how can a government official arbitrarily pick bits out of a holy book and then use them to trash someone’s heartfelt reason for coming to a personal decision to follow another faith.”

He said that his client will be appealing the decision and he will be complaining to the Home Office.

Hopefully, the Home Office will right this ship. If not, it will only feed the idea, not without merit, that Western Europe is no longer able to actually defend the human rights and freedom it has long claimed to protect.

Half of Americans Don’t Fully Know What Their First Amendment Freedoms Are

by Family Research Council

March 22, 2019

A shoe company recently commissioned a survey about the First Amendment in which 2,000 adults participated. The survey focused on respondents’ attitudes and knowledge about our first freedoms. According to the survey, “[n]early 6 in 10 Americans believe the First Amendment is under threat.” The study said people cited the “bias in the media and the rise of fake news.” More interestingly, it tested their knowledge. Many thought that the First Amendment protected life, liberty, and the pursuit of happiness:

  • Life: “3 percent named ‘life’ as one of the protected freedoms.”
  • Liberty: “[H]alf thought that ‘liberty’ is one of the five freedoms protected by the First Amendment.”
  • Pursuit of happiness: “(49 percent) believed ‘the pursuit of happiness’ was included.”

These are actually in the Declaration of Independence. While it is a powerful statement by the Founders about our unalienable rights (rights that no government can give or take away), the Declaration of Independence lacks the immediate legal force the Constitution possesses. In other words, you can’t sue someone for violating the Declaration of Independence.

The Bill of Rights, on the other hand, has legal force. So, if the government has violated the First Amendment in some way, there is legal recourse. Here is what the First Amendment protects:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Presented another way, the First Amendment protects against:

  • the establishment of religion, or
  • a prohibition on the free exercise of religion, or
  • an abridgment of
    • the freedom of speech or the press, or
    • the right of the people to peaceably assemble and to petition the government for a redress of grievances.

If you’re wondering why a shoe company commissioned such a survey, we can’t really answer that without advertising for their new marketing campaign. For now, we can be thankful that it has exposed this deficit in constitutional knowledge and for the opportunity to once again highlight just how important the First Amendment is!

The Peace Cross, the Establishment Clause, and Why the Separation of Church and State Fails to Adequately Protect Minority Religions (Part 1 of 5)

by Family Research Council

March 21, 2019

In 1925, a committee including Gold Star mothers and local veterans dedicated a memorial in Bladensburg, Maryland in honor of 49 servicemembers from Prince George’s County who gave their lives in service to World War I. They chose a Latin Cross to be the symbol of their loved ones’ sacrifice, and today, residents call it the Peace Cross.

Almost to the very day of the centennial of the first World War, the U.S. Supreme Court agreed to review whether the Peace Cross is a violation of the First Amendment’s Establishment Clause—more popularly though less accurately referred to as the separation of church and state—because it is in the shape of a cross and maintained on public property. The case of American Legion v. American Humanist Association is an important one. First Liberty Institute is involved in defending the memorial in court, and FRC filed an amicus brief in the case. Oral argument was held just about one month ago, on February 27, 2019. The case is currently under consideration, and the Supreme Court will issue its decision on or before June 2019.

As part of this case, several groups representing religious minorities argue that the current court precedents on this issue—which have put the Peace Cross in jeopardy—should stay in place, even if that means that the Peace Cross or memorials like it have to go. They say that this state of the law shields minority religions like theirs from political and cultural forces that may use their power to push minority religions out of the public square.

Family Research Council argues that this is not the case. First, the vague, subjective approach of current Establishment Clause precedents actually harms minority religions. Applying an original meaning of the Constitution instead would provide clarity for all—including religious minorities. Second, avenues outside of the courts, like the executive and the legislature at the federal, state, and local level, are better equipped to respond to the needs of minority religions.

In the coming days, we will be rolling out a special blog series highlighting these key points from the article and discussing how they help us understand true religious liberty in this age of deep confusion on the issue. Stay tuned!

This blog series is based on an article in Federalist Society Review by Alexandra M. McPhee, “Can a New Establishment Clause Jurisprudence Succeed in Protecting Religious Minorities Where Lemon Has Failed?”

Religious Displays Should Be On–Not Off–the Table

by Family Research Council

March 19, 2019

In New Hampshire, an activist group has demanded the removal of a POW/MIA Remembrance Table located in the public space of a VA hospital because the table contains a Bible. The hospital, however, is perfectly within its rights to maintain the display. First Liberty, a religious liberty law firm representing the nonprofit that arranged the remembrance table, wrote a letter urging the facility to continue to honor the memory of those soldiers who never returned home.

The public display of items or symbols of religious significance is well within the ambit of constitutional government action. The problem is that the military, like any industry in the public sphere, is vulnerable to privatization. Privatization is the phenomenon that religion is expected to remain exclusively in the home or house of worship and to not affect how one carries oneself in public life, including one’s profession.

It is commonly argued that religious symbols should be removed from public property to accommodate all religions and remain “neutral.” While we should be respectful and accommodating of all faiths, the removal of religion symbols from the public square—which enables privatization—is not the answer.

In Fort Wayne, Indiana, actions by the local VA hospital hit a nerve with at least one veteran. FRC spoke with a concerned vet who expressed dismay at a recent decision by the hospital to remove the Christian iconography that previously adorned its in-house chapel. This same hospital, for one day last year, lowered the branch flags outside its building and raised an LGBT flag, apparently without the consultation of the vets staying at the facility.

Symbols like crosses are not alien to military chapels, though the VA does give individual facilities discretion in how to operate themselves in this area. The response to an increasingly pluralistic society, however, should rarely be the removal of all religious symbols from a common area. This fosters privatization. Instead, we should respond with openness to the representation of other faiths—not the extraction of faith—from the public square.

Washington State Shuns Houses of Worship

by Family Research Council

March 11, 2019

There is a new reality for churches and religious organizations in Washington state. Thanks to a law passed with the help of Planned Parenthood and NARAL Pro-Choice Washington, any employer that wants to provide group health insurance for its employees must provide a plan that covers abortions and abortifacients.

Think there is an exemption for churches or other religious organizations with religious objections to such coverage? Think again. While there are numerous exemptions, religious exemptions are not available for such employers.

So, when Cedar Park Assembly of God decided that it wanted to provide high quality group health insurance for its employees, it learned that it really only had three options:

  1. Violate its religious beliefs
  2. Violate the law
  3. Drop this crazy idea of providing health insurance for its employees like a hot potato

Fortunately, First Amendment law firm Alliance Defending Freedom has filed a lawsuit on behalf of Cedar Park Assembly of God for this violation of religious conscience rights. ADF Legal Counsel Elissa Graves stated:

No church should be coerced to pay for abortions, least of all a church that dedicates its ministry to protecting and celebrating life. Cedar Park believes and teaches that every human life begins at conception and is worthy of protection at every point until natural death. Further still, Cedar Park demonstrates its pro-life ethic in tangible ways: partnership with a local pregnancy care center, hosting an annual camp for children in foster care, operating a school that serves over 1,000 students, and ministering to hundreds of couples struggling with infertility. The state of Washington has no business strong-arming this church, or any other, into contradicting the deeply held beliefs that motivate its ministry.

The law was passed under the notion that so-called “restrictions” on abortion coverage (which, in this case, means absence of compelled coverage) interfere with the “constitutionally protected right to safe and legal medical abortion care.” What about the principles of religious freedom?

When the state of Washington enacted this bill without any religious conscience protections for houses of worship like Cedar Park, it created a moral standard that said that a faith-based pro-life ethic is not worth protecting. It said that only the government’s morals—not morals derived from a source higher than government—should prevail. This bill is a clear violation of the principles of the First Amendment and is being rightfully challenged.

A Tale of Two Lawsuits

by Family Research Council

March 7, 2019

The attack on Jack Phillips has finally come to an end—hopefully it stays that way. Last year, Phillips obtained victory at the Supreme Court in a case about his decision to decline to create a cake for a same-sex wedding. Afterwards, the losing party, the Colorado Civil Rights Commission, pursued yet another complaint against Phillips for declining to make a cake celebrating a sex transition. The Commission agreed to dismiss its complaint once more evidence of its hostility emerged.

Alliance Defending Freedom, a religious liberty law firm, had helped Phillips fight back against the second complaint. They filed a lawsuit on his behalf against the Commission for demonstrating overt hostility towards his beliefs, though he agreed to drop his suit once the Commission dismissed its complaint.

This saga has no doubt involved a lot of suffering for Phillips, his family, and his business and employees. As Phillips stated,

When I set out to build my dream of opening my own cake shop, combining my love for art and baking in a family business, I never imagined this chapter would be part of the Masterpiece Cakeshop story … I have and will always serve everyone who comes into my shop; I simply can’t celebrate events or express messages that conflict with my religious beliefs. The Supreme Court affirmed that government hostility against people of faith is unconstitutional, and that Colorado was hostile to my faith. That hostility cost me 40 percent of my business and the wedding work that I love to do.

The story is certainly one of resilience in the face of suffering. But it also shows us how enduring pain in a Christ-like manner can influence others’ lives. Phillips’ nephew, Sean, “didn’t have a personal relationship with Jesus,” so “he didn’t fully grasp why Jack was willing to take such a stand.” What he did know, however, was that Phillips was “one of the most genuine, kind, and generous people” he knew.

Sean was also shocked at the hateful treatment Jack endured. In fact, it made him angry.

But in observing and talking with Jack, he saw a quiet example of what it looks like to live a life in obedience to Christ.

Over time, Sean let go of his anger. He dug into the Bible to understand the comfort that Jack had in Christ and how he could withstand such hardship with grace and peace. And eventually, God drew Sean to Himself.

Because of how Phillips reacted in the face of suffering, God was able to draw someone closer to Christ. So, even though it is good that these cases have a positive outcome, “Jack counts the eternal implications of his case as even greater and more precious.” Truly, it is a remarkable story of how God utilizes all things for the good of those who trust in Him. With so many people across America watching this case, we look forward to how God will use Jack Phillips’ story to draw more people even closer to Him.

Historic Churches Cut Off from State Funds

by Family Research Council

March 6, 2019

In a series of two cases, the New Jersey state supreme court decided that the state constitution requires the exclusion of churches from state historic preservation grants. The state’s high court reached that conclusion even in light of the Supreme Court case from 2017, Trinity Lutheran Church of Columbia, Inc. v. Comer. The Court had held that it was a violation of the First Amendment’s Free Exercise Clause to exclude a church from a state playground resurfacing program just because the playground was run by a church.

The New Jersey grantmaking authorities that were sued for distributing grants to churches appealed the decision to the Supreme Court, but the Court denied review. While it is discouraging that a church can be cut off from public aid just because it is a church, a statement from Justice Kavanaugh and joined by Justices Alito and Gorsuch holds promise for the future: “Barring religious organizations because they are religious from a general historic preservation grants program is pure discrimination against religion.”

So why did the entire Court agree to deny review? As one outlet explains, although “Kavanaugh agreed with the court’s decision to decline to hear the case,” he noted “that factual uncertainty and the recency of his colleagues’ decision in Trinity Lutheran meant that neither the time nor the case was right for consideration.”

In other words, Justices Kavanaugh, Alito, and Gorsuch said it was the time to wait rather than act. In the meantime, it is important to emphasize why this is an important legal issue. In Trinity Lutheran, Chief Justice Roberts wrote that the consequence of the church’s exclusion from the playground resurfacing program was, “in all likelihood,” merely “a few extra scraped knees.” Similarly, the denial of historic preservation grants means that some churches will just have to ask private donors to take care of the termites, the rust, or the floorboards. However, as the Chief Justice reminded us, discrimination against religion in the public square would not be tolerated and is unconstitutional: the church’s exclusion “from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”

Why Communities, Not Courts, Should Resolve Longstanding Debates

by Family Research Council

March 5, 2019

The Peace Cross is a veterans memorial in Bladensburg, Md. dedicated to 49 servicemembers who sacrificed themselves in service to WWI. When a committee including Gold Star mothers and veterans of the American Legion got together to create a homage to that loss, they chose the shape of a cross. That was almost one hundred years ago, and now that memorial is the subject of a Supreme Court case in which the Court is being asked to decide whether the memorial can constitutionally appear on public property.

Justice Brett Kavanaugh asked of the secularist legal group that started the case, “What is the role of this Court in a case like this?”

It is a discerning question that gets to the heart of at least one issue—how to deal with a feathertrigger culture that is ready to file a lawsuit and use a court order at a moment’s notice to encamp judicial precedent around its preferred social issue, isolating it from the normal push and pull of the political process.

Across the country, crosses and other religious symbols or displays are threatened with or subject to lawsuits because the current state of constitutional law permits a heckler’s veto over the presence of religious imagery on public property. Not only does current law allow almost anyone offended by a religious display to sue, it allows courts to inject themselves into a discussion about whether a monument is too religious to stay on public property with very little guiding principles.

As a result, longstanding debates about how a community should represent itself—by its veterans, by the holidays commonly celebrated, or by its history—are essentially taken out of the hands of the local government and put into the hands of the courts. Instead of a townhall with numerous residents advocating for multiple sides to an issue, it is a courtroom where all but the attorneys and the judge are forced to watch in silence as only the interests of the parties—and not the general community—are decided upon by a court.

This is not the democratic process that the Founders envisioned. The judiciary was supposed to be “the weakest of the three departments of power.” But current law leaves plenty of room for a court to make the call, enabling it to be used to replace the state legislature or city council. Important questions for local communities about displays in Bladensburg, Md., Pensacola, Fla., and other towns are consequently funneled to Washington, D.C.

We hope that this case will be an opportunity for the Court to finally decide its role in a case like this, and perhaps it will restore democracy to at least one social question.

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