The Christian Legal Society reviewed important religious liberty issues and cases in a panel on October 21. Included were Kristina Arriaga, Executive Director of the Becket Fund for Religious Liberty; Stanley Carlson of the Institutional Religious Freedom Alliance; Kim Colby, Director of the Christian Legal Society’s Center for Law and Religious Freedom; Carl Esbeck, professor at the University of Missouri’s School of Law; and Jordan Lorence, Senior Counsel of the Alliance Defending Freedom.
Arriaga said that “gone are the days” that lawyers could simply focus on prevailing in court with legal action to get a desired result. They must also win in the court of public opinion. As government grows, it becomes more intrusive in more areas of life, but she believes that the “government should not intrude into our lives.” She noted in particular that in 2011, when the HHS mandate first was proposed, there was the narrowest exemption for religious adherents that has ever been seen.
She pointed out that nine times the Obama Administration issued controversial regulations at odd hours. This shows no interest in allowing people to live according to their convictions. Because of this activist government, one can no longer objectively cast opposition to the HHS contraceptive/abortifacient mandate as a “war on women.” Despite numerous exemptions given to non-religious organizations, such as Exxon, Visa, and Pepsi, along with one out of three Americans, religious organizations were relentlessly pursued in the courts, with favorable decisions to religious liberty appealed by the government, regardless of how narrow the conscientious objector’s objection to the mandate.
Hobby Lobby, Arriaga pointed out, had no objection to providing contraceptives, only with abortifacients (drugs inducing very early abortions). Little Sisters of the Poor could hardly be regarded as a problem for society, attending to the needs of the elderly. The government pursued them through the courts as well. She said that the government mischaracterized the mandate’s application to objecting religious organizations in the lower courts, saying that Little Sisters had only to sign a piece of paper to be exempt from paying for contraceptives and abortifacients. In fact, religious institutions’ participation in providing objectionable goods was integral to the process that the Obama Administration mandated. In this conflict, the “very future of religious liberty is at stake,” she claimed. The government also mischaracterized the Little Sisters position, holding that the Little Sisters were trying to deny contraceptives and abortifacients to their employees. In fact, they merely wanted to not participate in the provision of these objectionable goods and services, and were simply saying “let me serve.”
Arriaga emphasized that religious liberty should be defended as a good in itself, not as an instrument to some other good. It might be added that the Little Sister’s case highlights this. The elderly do receive benefits from the Little Sisters activity, but for the Little Sisters, charitable activity is part of their Catholic faith. It is important, especially given the nature of the times, that legal defenders of religious liberty “be vigilant in your area.”
Jordan Lorence of the Alliance Defending Freedom observed that threats to religious liberty are happening (at least in part) because of greater government regulation of life. Then the right of conscience comes into play. Conflict between religious duty and the law then becomes very difficult.
Carl Esbeck of the University of Missouri Law School noted that the majority of the Religious Freedom Restoration Act (RFRA) cases against the HHS mandate were lost in the lower (appeals) courts. This, it might be pointed out, is in contrast to federal district courts, where RFRA claims against the mandate prevailed. A likely explanation is that the period since 2012 has seen a mobilization of the left, and thus the legal profession, against liberty of conscience. Esbeck noted that the government is not talking settlement or talking at all concerning these cases. It will not change its position. Ultimately, then, this will be decided by the Supreme Court. New justices appointed by Clinton would rule against the Little Sisters, he predicted.
As an indication of the increasingly hostile legal environment, Lorence pointed out that the Trinity Lutheran case was accepted when Antonin Scalia was still on the court. It is now being delayed. In that case, the church was fifth in a contest for an environmental award. The key question in the case is does the Blaine amendment (prohibiting state aid to religious schools, with similar Blaine amendments in many states) violate the First Amendment’s free exercise clause. Lorence said that the state is undermining its own program to enforce the Blaine amendment.
Esbeck pointed out that what the case means for Missouri is that if the Blaine Amendment can be circumvented, school choice will be possible in St. Louis and Kansas City, where public schools are a failure. He said that this is a “life and death” matter for minors in St. Louis and Kansas City. Arriaga voiced the hope that private initiatives would repeal Blaine amendments, and said that a current effort in Oklahoma is beacon of light this regard. Colby said concerning the Trinity Lutheran case, that a very broad argument for religious freedom is being made by appealing to health and safety, to which Justices Breyer and Kagan have been favorable in the past.
Colby reviewed campus issues, which include legally holding Christian standards at Christian institutions, and the right of Christian organization on secular campuses to require their leaders to be Christians. An important victory in this area happened in April 2016, when Indiana University had backed down in its attempt to require the Christian Legal Society to allow non-Christian leaders in its Indiana University campus branch. In this effort 18 student groups signed on in support of CLS. Typically, secular schools don’t like religious leadership requirements because of requirements related to sexual behavior or orientation.
The cultural left would also try to tell religious universities and colleges not to discriminate based on sexual behavior. In particular, the Human Rights Campaign pushed the Department of Education to publish a “shame list” of schools that have asked for an exemption from Title IX of the Education Amendments of 1972, now interpreted by the Obama Administration to cover gender identity. Significantly, the government has slowed the pace of sending exemption letters. Colby said that religious schools asked for the exemption page to be taken down from the DOE website because it did not put exemptions in the proper context. The greatest threat to freedom of religion in higher education seen so far is the attempt to prohibit Christian morality in religious universities and colleges in California. Colby noted that there were three different proposals as part of this. One withheld state aid (“Cal grants,” similar to federal Pell grants) to colleges that enforced Christian sexual morality, another would have taken away exemptions from state antidiscrimination law from religious colleges (except for seminaries), and yet another would have explicitly prohibited sexual morality codes at religious colleges (except seminaries). The defeat of these proposals by a concerted and publicized effort on the part of religious colleges was crucial, Coby said.
Arriaga said that in terms of college organizations, fraternities, sororities, and vegetarians are allowed exclusive organizations on college campuses, whereas the same freedom to restrict membership is problematic for Christians
Lorence said that in providing benefits that the government provides to society generally, the government cannot single out religious users. On the other hand, government money means government pressure, with less freedom of action possible by religious organizations. In the battle for state supplied contracts, grants, licensing, and accreditation, it is thus possible to “win the battle and lose the war.” There is also the graver threat that SOGI law supporters will start using the government’s general policing power to attack conscientious objection to homosexual behavior and transgenderism.
Esbeck discussed the issue of “third party burdens,” which is now being raised against religious liberty. Statutory religious exemptions are held to “harm” third parties. But there are approximately 5,000 statutory religious exemptions in law. Esbeck said that a liberal president and Congress will amend RFRA to exclude conscientious objection to abortion and non-traditional sexual activity. This hostility to religious liberty was picked up by the U.S. Civil Rights Commission in its report condemning religious freedom as a mask for prejudice. Similarly, the proposed Do No Harm Act, which would remove religious exemptions for medical professionals and condemn their sincerely held religious beliefs as well, claims that believers are “imposing” their ideas on society. This was also picked up by the judge who voided Mississippi’s RFRA. Statutory exemptions are used to protect the religious conscience against comprehensive laws. It needs to be added that in general, these laws require private parties to take action, and the exemptions protect believers against taking action believed sinful or evil. To speak of “third party harm” amounts to saying that if people do not to take action believed evil, they are harming others. This amounts to abandoning state neutrality regarding religious doctrines and the religious conscience. Reasonable accommodation to the religious conscience is possible, but not if the state has an adversary doctrine, as it does on sexual matters.
Lorence pointed out that Justice Alito has said that “third party harm” is not a “trump card.” Advocates of this idea are ignoring the hardest case of “third party harm,” Lorence said, which is pacifism. Here conscientious objection harms the security of the nation in ever greater degree the more it is practiced. Most notably, liberty of conscience was allowed in World War II, when the nation faced an evil adversary bent on destroying American freedom and imposing a murderous new order. It is far easier to see harm to others by conscientious objection to military service than in the cases of unborn life or sexual morality.
Colby then mentioned the other major objection the left raises to religious liberty, which is “dignitary harm.” This is a claim of emotional harm, and is really the most dangerous version of the attempt to use a “harm” principle to attack religious liberty. Certainly religious liberty, but really any kind of liberty, means nothing if it can be set aside when someone is offended. Rather, the state is directly attacking the offending religious doctrine or practice as oppressive. Colby noted that this is seen particularly in the recent (September 7) report of the U.S. Commission on Civil Rights, which attacks religious liberty as a mask for prejudice. Coby herself testified before the commission, but it sided against her. The commission said that in any conflict between religious liberty and law or government policies, religious liberty loses unless there is a law that cannot be gotten around. It proposed amending national and state RFRAs to exclude what it considered to be “third party harm.” Although the commission’s report is that of a federal body monitoring civil rights, its recommendations do not have legal force, but are recommendations for law. Advocates of religious liberty will have to contend against it.
Arriaga said that the results of recent religious liberty conflicts in Indiana (where a new state RFRA was amended to exclude conscientious objection to homosexual behavior), North Carolina (where state law prohibits local ordinances opening rest rooms to both sexes), and Utah (where religious liberty against SOGI requirements was given to religious organizations but not individuals) are stable. The proposed First Amendment Defense Act (FADA), which would protect at a federal level religious organizations from adverse legal action based on their doctrine of marriage, is not going forward. But on the other hand, the Equality Act, and its no religious exemptions provisions, while extreme, is not going forward either. Inquiries to business leaders as to why business has become hostile to religious freedom have gotten the reply that religious freedom is a matter of branding. The hostility of millennial employees was identified as at least part of the reason big business has become hostile to religious liberty.
Esbeck reviewed events of recent years with respect to religious contractors. In 2002 religious liberty protections were given by the Bush Administration, which Obama left in place. He said that although the plain language of the regulation is clear, its scope is not. The Russell Amendment protects religious staffing rights on grants as well as contracts. A religious liberty protection in the defense authorization bill is being held up by Obama, in an unprecedented refusal to sign the bill with its religious liberty protections.
Lorence agreed that branding is a significant problem with religious liberty. The gender identity ideology that attacks religious freedom is fundamentally contrary to the way God created us as male and female. But now laws are used as an ideological litmus test to penalize and exclude religious organizations and individuals who do not accept the ideology. He said that there is no case where merchants charged with discrimination really have a “gays excluded” policy; the only “discrimination” pertains to sexual behavior. Traditional Christians and other religious believers cannot be part of furthering the message of gender ideology, or participate in activities that violate their consciences
A questioner asked if the panelists propose to defend all religious freedom, not merely that of traditional Christians. Arriaga said that religious liberty is not the “eccentric uncle” of human rights. In this regard, she said, the Indiana University victory was important. She maintained that activism seen as restricting the belief and practice of Muslims will harm all religious liberty.
Lorence said that contrary to the claims of its opponents, ADF is not trying to impose a Christian agenda. Religious liberty should be protected for everybody. This is consistent with James Madison’s doctrine of religious freedom in his Memorial and Remonstrance against Religious Assessments.
Another questioner asked what the Senate should do about the nomination of Garland Merrick to the Supreme Court. Esbeck responded that Merrick is far too deferential to administrative decisions that impact freedom, but that Merrick may be “as good as it gets.”
Stanley Carlson of the Institutional Religious Freedom Alliance pointed out that the economic contribution of religious activities and organizations is enormous. It adds $ 1.2 trillion per year to the economy.
Finally, Lorence observed that religious liberty lawyers may call on many areas in different cases. For instance, the Elaine Photography case in New Mexico involved copyright law. It was discovered that it is the photographer, not the customer, who owns copyright to work produced. Lorence said that there is an abundance of resources for Christian lawyers in the vicinity of Washington. He exhorted the Christian lawyers and law students to be faithful in this abundance and what God gives access to.
Overall the panel presented a picture of the life and liberty of millions of religious Americans threatened by forces against which the deeply rooted American constitutional freedoms are no defense. The determination by the panelists to defend the broad religious freedom of the American past, the Christian Legal Society, and religious Americans in general may turn out to be crucial in preserving some significant measure of religious liberty. But beyond that, Christians know that whatever the outcome of the present struggles, God works all things to his purposes in the end.
Comment by ن Dean Esmay on November 5, 2016 at 8:23 am
Isn’t it fascinating that increasingly “religious liberty” means “expunge religion from all aspects of public policy” and “reject all religious values in public policy if Atheists don’t like them.”