January 16, 2020 marks an important milestone in the protection of religious liberty – and therefore in human decency.
President Trump announced that his administration is updating federal guidance for prayer in public schools and other initiatives aimed at protecting religious freedom and discrimination against people and groups of faith.
The changes, announced on National Religious Freedom Day, include new rules directed at nine federal agencies related to social services programs, updating federal guidance on prayer in public schools, and instructing federal agencies to ensure states do not impose anti-religion restrictions on grants of federal funds
Here are the three major actions now being taken to protect religious freedom:
Ensuring Religious Organizations Are Treated the Same as Secular Ones.
Requiring Public Schools to Respect Students’ Rights to Express Their Faith.
Ordering That Federal Grant Programs Cannot Discriminate Against Religious Schools or Organizations.
Too frequently government authorities treat people of faith like second-class citizens. Whether driven by overt hostility, mistaken understanding of constitutional restrictions, intimidation by bigoted anti-religious advocates, or simple ignorance, violations of religious liberty are always offensive. President Trump’s announcement on January 16th makes clear that help is on the way. School employees, government grant administrators, and ideologically driven secular zealots on the public dime are on notice. A new day has dawned for federal intervention to protect our cherished First Freedom.
William Barr is currently serving his second stint as Attorney General of the United States. On October 11, 2019 he delivered an amazing speech at the Notre Dame School of Law de Nicola Center for Ethics and Culture. His speech was masterful. It is a must read. He skillfully presented the natural law foundation for robust religious liberty and in so doing highlighted the political, philosophical, and anthropological rationales that have protected religious free exercise in the American legal system.
And he did much, much more.
He exposed the dangers of secular ethics rooted in sentimentality. He called out “modern secularists [who] dismiss … morality as other-worldly superstition imposed by joy-killing clergy.” And he explained how the Nation’s educational system has become ground zero in a cultural war that, if not thoroughly engaged and confronted, would usher in a controlling and tyrannical government intent of forcing YOU and to accept and even endorse its theology.
His speech might be renamed or at least subtitled “Why Old Fashioned Religion Matters … It’s Not Just Piety, Baby.” The following extended excerpts gives a taste of his powerhouse presentation. Read it all.
“The imperative of protecting religious freedom was not just a nod in the direction of piety. It reflects the Framers’ belief that religion was indispensable to sustaining our free system of government.
Men are subject to powerful passions and appetites, and, if unrestrained, are capable of ruthlessly riding roughshod over their neighbors and the community at large.
No society can exist without some means for restraining individual rapacity.
But, if you rely on the coercive power of government to impose restraints, this will inevitably lead to a government that is too controlling, and you will end up with no liberty, just tyranny.
I think we all recognize that over the past 50 years religion has been under increasing attack. … we see the growing ascendancy of secularism and the doctrine of moral relativism.
By any honest assessment, the consequences of this moral upheaval have been grim.
In 1965, the illegitimacy rate was eight percent. In 1992, when I was last Attorney General, it was 25 percent. Today it is over 40 percent. In many of our large urban areas, it is around 70 percent.
Along with the wreckage of the family, we are seeing record levels of depression and mental illness, dispirited young people, soaring suicide rates, increasing numbers of angry and alienated young males, an increase in senseless violence, and a deadly drug epidemic.
As you all know, over 70,000 people die a year from drug overdoses. That is more casualities in a year than we experienced during the entire Vietnam War.
[T]he campaign to destroy the traditional moral order has brought with it immense suffering, wreckage, and misery. And yet, the forces of secularism, ignoring these tragic results, press on with even greater militancy.
Secularists, and their allies among the “progressives,” have marshaled all the force of mass communications, popular culture, the entertainment industry, and academia in an unremitting assault on religion and traditional values.
Law is being used as weapon in a couple of ways.
First, either through legislation but more frequently through judicial interpretation, secularists have been continually seeking to eliminate laws that reflect traditional moral norms.
At first, this involved rolling back laws that prohibited certain kinds of conduct. Thus, the watershed decision legalizing abortion. And since then, the legalization of euthanasia. The list goes on.
More recently, we have seen the law used aggressively to force religious people and entities to subscribe to practices and policies that are antithetical to their faith.
The problem is not that religion is being forced on others. The problem is that irreligion and secular values are being forced on people of faith.
[T]he last Administration sought to force religious employers, including Catholic religious orders, to violate their sincerely held religious views by funding contraceptive and abortifacient coverage in their health plans. Similarly, California has sought to require pro-life pregnancy centers to provide notices of abortion rights.
Some state governments are now attempting to compel religious individuals and entities to subscribe to practices, or to espouse viewpoints, that are incompatible with their religion.
Ground zero for these attacks on religion are the schools. To me, this is the most serious challenge to religious liberty.
The first front relates to the content of public school curriculum. Many states are adopting curriculum that is incompatible with traditional religious principles according to which parents are attempting to raise their children. They often do so without any opt out for religious families.
Thus, for example, New Jersey recently passed a law requiring public schools to adopt an LGBT curriculum that many feel is inconsistent with traditional Christian teaching. Similar laws have been passed in California and Illinois. And the Orange County Board of Education in California issued an opinion that “parents who disagree with the instructional materials related to gender, gender identity, gender expression and sexual orientation may not excuse their children from this instruction.”
A second axis of attack in the realm of education are state policies designed to starve religious schools of generally-available funds and encouraging students to choose secular options. Montana, for example, created a program that provided tax credits to those who donated to a scholarship program that underprivileged students could use to attend private school. … But Montana expressly excluded religiously-affiliated private schools from the program. And when that exclusion was challenged in court by parents who wanted to use the scholarships to attend a nondenominational Christian school, the Montana Supreme Court required the state to eliminate the program rather than allow parents to use scholarships for religious schools.
It justified this action by pointing to a provision in Montana’s State Constitution commonly referred to as a “Blaine Amendment.” Blaine Amendments were passed at a time of rampant anti-Catholic animus in this country, and typically disqualify religious institutions from receiving any direct or indirect payments from a state’s funds.
The case is now in the Supreme Court, and we [the United States Department of Justice] filed a brief explaining why Montana’s Blaine Amendment violates the First Amendment.
A third kind of assault on religious freedom in education have been recent efforts to use state laws to force religious schools to adhere to secular orthodoxy. For example, right here in Indiana, a teacher sued the Catholic Archbishop of Indianapolis for directing the Catholic schools within his diocese that they could not employ teachers in same-sex marriages because the example of those same-sex marriages would undermine the schools’ teaching on the Catholic view of marriage and complementarity between the sexes.
This lawsuit clearly infringes the First Amendment rights of the Archdiocese by interfering both with its expressive association and with its church autonomy. The Department of Justice filed a statement of interest in the state court making these points, and we hope that the state court will soon dismiss the case.
We must be vigilant to resist efforts by the forces of secularization to drive religious viewpoints from the public square and to impinge upon the free exercise of our faith.
I can assure you that, as long as I am Attorney General, the Department of Justice will be at the forefront of this effort, ready to fight for the most cherished of our liberties: the freedom to live according to our faith.”
The “intersectionality” of bioethics and law is growing at a dizzying pace. Thankfully, there are women and men in both disciplines ready and able to do battle with the social activists who seek to impose their tyrannical agendas. The litigators at Alliance Defending Freedom and the Becket Fund are leading the charge. Their record is encouraging and recalls the old adage that “the best defense is a good offense.” To that one may add “victory through superior firepower.” These champions of religious liberty and life have racked up an impressive series of trial and appellate court wins.
Two recent cases exemplify what’s happening across the country: Franciscan Alliance v. Azar and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission.
Setting the Stage
Sexual orientation non-discrimination laws, coercive “educational” pogroms inculcating radically libertine values in children, and wholesale assault on the legal structures protecting religious liberty and freedom of speech are the tools wielded by putative civil libertarians determined to crush the traditional social values associated with the natural family. But the counter offensive is under way.
Two recent developments highlight the efforts of well-financed and “deep-state” seated radical secularists who have taken aim at our children, our institutions, and our freedoms.
The first would make abortion, sterilization, and sex reassignment surgery a part of basic healthcare, paid for by YOU, and mandated by under the threat of massive fines, withholding of Medicare and Medicaid funding, and health care provider license revocation.
The second would turn the meaning of the word “sex” utilized in 1960s civil rights legislation on its head to embrace radical gender theory and the demands of transgender revolutionaries.
Franciscan Alliance v. Azar
In 2010 Congress passed the Affordable Care Act that prohibits denial of certain medical treatments on the basis of race, color, national origin, sex, or disability. Congress did not define “sex.” Rather, it incorporated the definition in pre-existing federal anti-discrimination laws.
But in 2015 the Obama administration adopted a rule interpreting “sex” to include “gender identity,” “sex stereotypes,” and “termination of pregnancy,” among other things. It declares that “gender identity” means an individual’s “internal sense of gender, which may be male, female, neither, or a combination of male and female” and that “gender identity spectrum includes an array of possible gender identities beyond male and female.”
The Rule also defines “sex” to include discrimination based upon “termination of pregnancy” in covered programs. It covers virtually all licensed physicians because they accept Federal financial assistance, including payments from Medicare and Medicaid. It likely covers over 133,000 hospitals, nursing homes, home health agencies, and similar provider facilities, about 445,000 clinical laboratories, 1,200 community health centers, 171 health-related schools, state Medicaid and CHIP programs, state public health agencies, federally facilitated and state-based marketplaces, at least 180 health insurers that market policies through federally facilitated and state-based marketplaces, and up to 900,000 physicians!
WOW. The rule would treat refusal to participate in or refer for abortion, sterilization, or sex transitioning treatment (everything from hysterectomies, mastectomies, hormone treatments, genital reassignment surgery, Adams apple reduction, electrolysis, and more), into the same category as refusal to refusing to perform CPR on a heart attack victim because of his race or her religion.
And to add fuel to the fire, the Obama administration held that that some procedures “related to gender transition” may be required even if they were not “strictly identified as medically necessary or appropriate.” Under the bizarre rule, if a doctor would perform a mastectomy as part of a medically-necessary treatment for breast cancer, it would be illegal for the same doctor to decline to perform a mastectomy for a medical gender transition, even if the doctor believed that removing healthy breast tissue was contrary to the patient’s medical interest.
The final insult was the absolute refusal of the Obama administration to allow for a religious exemption to the onerous and oppressive rule.
Into this nightmare stepped the Becket Fund and its outstanding team of litigators. Representing Franciscan Alliance, a Roman Catholic nonprofit hospital system, and several other clients, Becket filed suit in the United States District Court in the Northern District of Texas.
On October 15, 2019 the District Court entered a nationwide permanent injunction barring enforcement of the unlawful and religiously discriminatory rule. Applying the strict scrutiny appropriate for federal action that infringes on the free exercise of religion, the court held that the rule violated the Religious Freedom Restoration Act, holding that the government failed to demonstrate that enforcing the rule against the plaintiffs would achieve any compelling government interest, but would substantially burden religious free exercise. Moreover, the court held that the rule’s absolute exclusion of religious exception was also unlawful.
R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission
You can’t make this stuff up. A funeral home founded and charted on its adherence to core Christian principles faces the power of deep-state bureaucrats intent on driving home a new definition of “sex” in federal law.
R.G. & G. R. Harris Funeral Homes has been a fixture in the Detroit area for more than 100 years. It maintains high standards of professional conduct, appearance, and demeanor, all aimed at helping grieving families more through the most difficult of times.
In 2007 it hired a male employee as a funeral director, a critical position that serves as the face of the funeral home and works closely with grieving families. The new employee agreed to the sex specific dress code and other policies of the business. But six years later he told the owner that he was going to present himself as a woman at work, interact with clients in that manner and use the women’s restrooms that would be used by all of the company’s female employees, including an 80 year old woman.
The owner, Tom Rost, could not accept such a destructive presence in his business, one that would undermine the scared and somber activity of burying the dead and ministering to the loved ones of the deceased.
Unelected federal bureaucrats at the Equal Employment Opportunities Commission decided to use used the funeral home as a test case, convincing a lower court to rewrite the meaning of “sex” discrimination and reject what the public and the U.S. Supreme Court have understood it to mean for more than half a century.
Into that minefield stepped Alliance Defending Freedom, the premier civil liberties litigation and appellate advocacy law firm in the nation. ADF successfully defended Tom’s company in District Court, but the Court of Appeals for the Sixth Circuit reversed and held that the federal government can force Tom Rost to allow a male funeral director who identifies as female to violate the business’s professional dress code—a dress code that is in accord with industry standard and federal law—by dressing as a woman when working with grieving families.
The 6th Circuit’s decision redefined “sex” in a Federal statute to conflict with the word’s well-understood meaning when the law was enacted in 1964. Under the 6th Circuit’s ruling, employers cannot maintain sex-specific policies, including policies for overnight facilities, showers, restrooms, locker rooms, and employee dress.
Although the federal government under the current administration has reversed it prior anti-historical position and now recognizes what Congress meant by the word “sex” and agrees with the funeral home, the American Civil Liberties Union is arguing on behalf of the former employee that the Supreme Court should rewrite the law.
No one tells the story better than Tom Rost and ADF attorney John Bursch in this compelling video:
On October 8th Attorney Bursch and United States Solicitor General Noel Francisco argued for reversal of the 6th Circuit’s radical decision before the United States Supreme Court. ADF’s dedicated case resource page provides a case summary, case related articles, court decisions, and many of the relevant legal documents – including its brief filed with the Supreme Court.
As a special treat, an audio recording and transcript of the argument before the Supreme Court is available here.
L.I.F.E.’s recent post on the U.S. Department of Justice and its intervention in the important religious liberty/civil rights action Carson v Makin was still hot off the wires when notice arrived that the District Court judge presiding over the case announced his decision upholding the discriminatory statute born of the disgraceful history of anti-Catholicism rampant in the Nations’ past.
Judge D. Brock Hornby’s decision in Carson was no surprise. More on that below. But two days later the U.S. Supreme Court agreed to decide the same issue in Espinoza v, Montana. That case will finally determine the status of the shameful state constitutional Blaine amendments and similar state laws born of deep hostility toward the Catholic Church. Montana’s constitution prohibits any government funding that benefits “sectarian” schools even when the school is perfectly qualified for an otherwise generally available public benefit. As discussed in L.I.F.E.’s earlier post, “sectarian” was a well-known code word veiling the true anti-Catholic purpose of the Blaine Amendments.
In Carson the District Judge recognized his decision as merely a step on the ladder to potential Supreme Court review. He concluded that the landmark 2018 US Supreme Court decision in Trinity Lutheran left open just enough wiggle room on the precise issue of tuition benefits that other precedent from the United States Court of Appeals for the First Circuit (which governs Federal District Courts in Maine) tied his hands and dictated the result. The validity of that case, Eulitt v. Maine, Dep’t of Educ., is questionable given the holding in Trinity Lutheran, but not to such a degree that Judge Hornby was willing say that it had been clearly called into disrepute – a standard that would have allowed him to escape its application:
I cannot, as a trial judge, say that Eulitt therefore has unmistakably been cast into disrepute. It is certainly open to the First Circuit to conclude that, after Trinity Lutheran, it should alter its Eulitt holding that sustained Maine’s educational funding law, but it is not my role to make that decision. I therefore apply Eulitt to this controversy and do not decide the post-Trinity Lutheran merits, nor the standard of review that should apply in reaching the merits. Based upon the Eulitt decision, I conclude that Maine’s educational funding program is constitutional.
Appeals and Finality and Espinoza
Thus Judge Hornby’s decision did not reach the critical issue presented by Maine’s hostility to religion in light of Trinity Lutheran: may government discriminate in distribution of generally available public benefits – in the form of tuition subsidies – against a religious applicant merely because it/he/she is religious? The judge recognized that his rapid resolution of the case was merely the first step in what was little more than rehearsal for the appellate battles that lie ahead:
My decision not to decide the ultimate question … is no great loss for either the parties or the amici. It has always been apparent that, whatever my decision, this case is destined to go to the First Circuit on appeal, maybe even to the Supreme Court. … I hope that the rehearsal has given them good preparation for their argument in the First Circuit (and maybe even higher).
Two days later, on June 28, 2019, it became apparent that Carson will likely not be the vehicle for a definitive resolution of this decades long saga. On that date the Supreme Court agreed to decide the issue in Espinoza v. Montana.The issue will undoubtedly draw a Justice Department brief similar to that filed in Carson and dozens of amici, or “friend of the court,” briefs by interested persons and organizations. In fact, the United States of America filed an exemplary brief in the Montana Supreme Court supporting the plaintiff’s position against the discriminatory state rule. The case promises to one of those most closely with a decision expected in 2020. Here’s an example of interested party amicus brief that was filed by the excellent Pacific Legal Foundation. Espinoza is poised emerge as a final, fatal chapter in the sordid history of anti-Catholic government bigotry that has penetrated the American political left and is now manifest as a generalized anti-religious zealotry while keeping orthodox Catholics in the cross-hairs. L.I.F.E. will keep a close eye on developments.
Here at L.I.F.E. we can hardly contain our enthusiasm over the marvelous Potomac Declaration adopted last July at the Ministerial to Advance Religious Freedom hosted by U.S. Secretary of State Pompeo. The gathering drew more than eighty delegations, including dozens of minister-level representatives from around the world. It addressed challenges facing religious freedom, identified concrete means to address persecution of and discrimination against religious groups, and promoted greater respect for religious liberty for all, including a commitment to promote Article 18 of the Universal Declaration of Human Rights which declares:
Everyone has the right to freedom of thought, conscience, and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship, and observance.
Vice President Pence also attended, and announced the creation of the Genocide Recovery and Persecution Response Program to “ensure that religious freedom and religious pluralism prosper across the Middle East as well.” The program will target development in the Nineveh plain in northern Iraq and ensure that U.S. aid is directed toward the minority Christian and Yazidi communities that were the most devastated by the ISIS genocide of recent years. It will balance the misallocation of U.N. aide – mostly supported by the United States – to ensure that the minority religious receive the assistance they need to restore their lives. U.S. Agency for International Development (US AID) Administrator Mark Green explained the troubled history that lead to the Genocide Recovery and Persecution plan in his remarks at the gathering. They offer a useful and poignant lesson in the realities of international relief funding – it’s not the money allocated; it’s how it is spent.
Pompeo also released the Potomac Plan of Action, which sets an ambitions agenda to 1) protect religious liberty, including related parental rights, 2) confront legal limitations on religious liberty, including the repeal of anti-blasphemy laws, 3) advance government advocacy for religious liberty, 4) aggressively respond to anti-religion motivate genocide and mass atrocity, and 5) preserve cultural heritage, and 6) establishing August 3, the first day of ISIS’s Sinjar massacre targeting Yazidis, as a nationally or internationally recognized day of remembrance of survivors of religious persecution.
Read up on these important steps to a more secure international respect for religious liberty.
Life is short, so the saying goes. Here at L.I.F.E. we are going long, as in “for the long haul.” Liberty, life, freedom of conscience, and family structures face unprecedented challenges in the era of technological revolution, expanding government intrusion into daily life, and rapidly evolving social norms. The interface of natural sciences, medicine, and technology offers previously unimaginable vistas. At the same time, those disciplines and others, such as law, ethics, economics, and philosophy open potentials for abuse.
L.I.F.E. is a new resource, tracking developments related to religious and political liberty, bioethics, and cultural expression. It is no neutral observer. Rather, it proposes a natural law ethic that presupposes and advocates certain first principals: the human person is a creature possessed of free will; societies of persons are the natural state of human persons, beginning with the family based on marriage of one man and one woman, and expanding to local, regional and international political structures; there exist inherent standards of good and evil not contingent on circumstance or intention but of their very nature; each human life is precious, unique and unrepeatable and demands the protection of law from conception to natural death; the free exercise of religion is fundamental to the legitimacy of a given political order; each person is endowed with unalienable rights including freedom of thought, speech, conscience, and religion; and each is obliged to respect the freedom of others and to fulfill the duties inherent to the flourishing of civil society. L.I.F.E. offers a critical assessment of the forces shaping the 21stCentury in light of those first principals.