Boldly Committed to Truth Telling in the False Face of Fakery
RELIGIOUS LIBERTY: Why Such Hostility to This Fundamental Freedom?
Next, let's look at how the Supreme Court addressed claims of First Amendment violations in the business sector. In 1990, the Court began to dismember and weaken the "Free Exercise Clause." In other words, it weakened the right of Americans to freely exercise their religious beliefs with the case of Employment Division v. Smith.
In the Smith case, two counselors for a private drug rehabilitation organization ingested peyote - a powerful hallucinogen - as part of their religious ceremonies as members of the Native American Church. Consequently, the men were fired. The counselors filed a claim for unemployment compensation but the government denied them benefits because the reason given for their dismissal was "work-related misconduct." The men appealed the denial of benefits, arguing that they were denied because of their culture and their religion; they claimed the denial was a violation of their First Amendment right to the free exercise of religion.
The question presented to the Court was whether a state can deny unemployment benefits to a worker fired for using illegal drugs for religious purposes? And the Court concluded that it certainly can. Justice Antonin Scalia, writing for the majority, observed that the Court has never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that government is free to regulate. Allowing exceptions to every state law or regulation affecting religion "would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind." Scalia cited as examples compulsory military service, payment of taxes, vaccination requirements, and child-neglect laws.
While it may seem that the Smith decision is a good one, it actually can be taken very broadly, meaning that the government could burden religious exercise if it did so with a law that was generally applicable (doesn't target any one group) and did not specifically target religion. In other words, Smith suggests that officials may burden the exercise of one's faith as long as that wasn't the point or intent of the law and the law applies equally to everyone.
And just this year, the Supreme Court was asked to correct course in its latest religious liberty case, Fulton v. City of Philadelphia. In Fulton, the Court examined whether the city of Philadelphia could force Catholic Social Services (CSS), which had provided foster care services to city children for more than a century, to violate its religious beliefs about marriage in order to continue its ministry of service. This is a case of unconstitutional government abuse and coercion.
In March 2018, the City of Philadelphia barred Catholic Social Services from placing children in foster homes because of its policy of not licensing same-sex couples to be foster parents. CSS sued the city of Philadelphia, asking the court to order the city to renew their contract. CSS argued that its right to free exercise of religion and free speech entitled it to reject qualified same-sex couples because they were same-sex couples, rather than for any reason related to their qualifications to care for children. The district court denied CSS's motion for a preliminary injunction, and the Third Circuit affirmed, finding that the City's non-discrimination policy was a neutral, generally applicable law and that CSS had not demonstrated that the City targeted CSS for its religious beliefs or was motivated by ill will against its religion.
In a majority opinion written by Chief Justice John Roberts, the Court held that the refusal of Philadelphia to contract with CSS for the provision of foster care services unless CSS agrees to certify same-sex couples as foster parents violates the Free Exercise Clause of the First Amendment. All nine justices agreed on that conclusion. Thankfully, the decision of the Court now means that the government cannot prioritize secular interests over religious ones when granting policy exemption. But that's about as far as the case went. Fulton gave the Supreme Court an excellent opportunity to overturn Smith and restore the longstanding founding principle that the government cannot prohibit or burden the free exercise of religion absent an extremely compelling reason. Unfortunately, a majority of the justices stopped short of making that ultimate decision.
Instead of overturning the Smith opinion (sadly, keeping it in place), the Supreme Court should have followed Justice Samuel Alito's 77-page concurring opinion in Fulton. As he explained in that concurrence, the Court should abandon Smith because its toleration for any rule that categorically prohibits religious activity, so long as it doesn't target religion specifically, is fundamentally at odds with the text, intent, and interpretation of the First Amendment. Instead, as Alliance Defending Freedom and NC Family believes, the Court should recognize that the Free Exercise Clause protects the rights of Americans to freely practice their religion and to live according to their faith. If the government imposes a law that burdens free exercise, it needs to have an interest of the highest order and it needs to be as least burdensome on religious liberty as possible.
Hopefully, the Court will take up that question sometime soon.
Luckily, Smith was overturned legislatively when Congress passed the Religious Freedom Restoration Act (RFRA), which was introduced by then-Congressman Chuck Schumer and Senator Ted Kennedy (imagine that!!) and signed into law in 1993 by President Bill Clinton. RFRA restored, by statute, the same protections for religious liberty guaranteed by the Constitution and Bill of Rights prior to Employment Division v. Smith. According to RFRA, the federal government cannot burden a person's exercise of religion unless it has a compelling interest to do so (meaning, an interest of the highest order) and places as little a burden on the person's religious rights as possible. Twenty-three states followed suit by adding RFRA to their own state laws so that in those states, there is protection against federal, state, and local government attempts to burden religious exercise. North Carolina was not one of those states.
Over the past thirty years, RFRA has protected Americans in their free exercise of religion from government abuse and overreach. But this once-bipartisan effort to protect religious freedom has become a stumbling block for the application of progressive far-left policies. This, perhaps, explains why Congressional Democrats have been pushing the "Equality Act," which clearly threatens to cancel much of RFRA's protections. The Religious Freedom Restoration Act would force acceptance of the new progressive sexual orientation and gender identity ideology while explicitly removing protections for people of faith that the Act provided.
The Equality Act, which passed the US House on February 25, 2021, prohibits discrimination based on sex, sexual orientation, and gender identity in areas including public accommodations and facilities, education, federal funding, employment, housing, credit, and the jury system. Specifically, the bill defines and includes sex, sexual orientation, and gender identity among the prohibited categories of discrimination or segregation.
It also expands the definition of public accommodations to include places or establishments that provide (1) exhibitions, recreation, exercise, amusement, gatherings, or displays; (2) goods, services, or programs; and (3) transportation services. And it prohibits an individual from being denied access to a shared facility, including a restroom, a locker room, and a dressing room, that is in accordance with the individual's gender identity. Finally, the bill allows the Department of Justice to intervene in equal protection actions in federal court on account of sexual orientation or gender identity.
Proponents of the Equality Act continue in their effort to push it through the US Senate (it was placed on the Senate calendar in early 2021 but has not yet come up for a vote). If it passes, God forbid, religious organizations, including schools, hospitals, soup kitchens, homeless shelters, and even churches, could face lawsuits and potential liability just for adhering to their teachings on marriage and sexuality, teachings that the Supreme Court itself said were based on "decent and honorable religious or philosophical premises."
Sadly, the federal Equality Act is not the only piece of legislation being proposed by the liberal left in Congress to significantly weaken the Religious Freedom Restoration Act.
Religious liberty today relies primarily on the First Amendment's Free Exercise (of Religion) Clause and on the Religious Freedom Restoration Act (RFRA). But those who grew up in the 1940's thru the 1960's probably can best attest to the fact that these protections have been chiseled away and can attest to the significant changes in society and in morality as a result of these erosions of our basic rights.
Unfortunately, the Free Exercise Clause no longer fully protects religious practices from government-imposed burdens. And liberal politicians have threatened to gut part of RFRA's vital protections in order that they can usher in further social change.
NC Family explains the challenges that Religious Liberty faces today (and a good majority of them have been defended by the Alliance Defending Freedom (ADF):
[Reference: "Religious Liberty: First or Fading Freedom?", by Greg Chafuen, NC Family]
There is some good news, however. The US Supreme Court has vindicated the rights of religious American citizens in a series of landmark decisions over the last five years. The Alliance Defending Freedom, a non-profit legal group that defends religious freedom, free speech, the sanctity of life, parental rights, and God's design for marriage and family (which won the case for Jack Phillips and Masterpiece Cakeshop), has won 13 significant victories at the Supreme Court in the past ten years and many more victories to protect and preserve religious liberty in lower courts all around the country.
Trinity Lutheran Church v. Comer (2017) and Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) are just two of the "landmark" Supreme Court opinions.
Trinity Lutheran Church of Columbia, Inc. (Trinity) operates a licensed preschool and daycare called The Learning Center that was initially opened as a non-profit corporation but merged with Trinity in 1985. The Learning Center has an open admissions policy and incorporates daily religious instruction into its programs. The Missouri Department of Natural Resources (DNR) offers Playground Scrap Tire Surface Material Grants that provide funds for qualifying organizations to purchase recycled tires to resurface playgrounds. Trinity applied for such a grant but was denied because Article I, Section 7 of the Missouri Constitution states, "no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion." Trinity sued and argued that the denial of its application violated the Equal Protection Clause of the Fourteenth Amendment as well as the First Amendment's protections of freedom of religion and speech. The district court granted Missouri DNR Director Pauley's motion to dismiss for failure to state a claim, and Trinity moved for reconsideration and to amend its complaint to include allegations that such grants had previously been given to religious organizations. The district court denied the motions, and the U.S. Court of Appeals for the Eighth Circuit affirmed. Trinity appealed to the US Supreme Court.
The question presented to the Court asked whether the exclusion of churches from an otherwise neutral and secular aid program violate the First Amendment's guarantee of free exercise of religion and the Fourteenth Amendment's Equal Protection Clause. The Supreme Court agreed and found in favor of Trinity. The opinion explained that the exclusion of churches from an otherwise neutral and secular aid program violates the First Amendment's guarantee of free exercise of religion.
The Masterpiece Cakeshop case is one that highlights extreme and outright hostility to religion. The LGBTQ community has demanded "tolerance and inclusion" for years, urging Christians to accept them and their lifestyle. And for the most part, they have. Yet, the LGBTQ community, at least in this case, showed an outright hostility and an intolerance to Jack Phillips' religious beliefs.
Go Back
In the Smith case, two counselors for a private drug rehabilitation organization ingested peyote - a powerful hallucinogen - as part of their religious ceremonies as members of the Native American Church. Consequently, the men were fired. The counselors filed a claim for unemployment compensation but the government denied them benefits because the reason given for their dismissal was "work-related misconduct." The men appealed the denial of benefits, arguing that they were denied because of their culture and their religion; they claimed the denial was a violation of their First Amendment right to the free exercise of religion.
The question presented to the Court was whether a state can deny unemployment benefits to a worker fired for using illegal drugs for religious purposes? And the Court concluded that it certainly can. Justice Antonin Scalia, writing for the majority, observed that the Court has never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that government is free to regulate. Allowing exceptions to every state law or regulation affecting religion "would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind." Scalia cited as examples compulsory military service, payment of taxes, vaccination requirements, and child-neglect laws.
While it may seem that the Smith decision is a good one, it actually can be taken very broadly, meaning that the government could burden religious exercise if it did so with a law that was generally applicable (doesn't target any one group) and did not specifically target religion. In other words, Smith suggests that officials may burden the exercise of one's faith as long as that wasn't the point or intent of the law and the law applies equally to everyone.
And just this year, the Supreme Court was asked to correct course in its latest religious liberty case, Fulton v. City of Philadelphia. In Fulton, the Court examined whether the city of Philadelphia could force Catholic Social Services (CSS), which had provided foster care services to city children for more than a century, to violate its religious beliefs about marriage in order to continue its ministry of service. This is a case of unconstitutional government abuse and coercion.
In March 2018, the City of Philadelphia barred Catholic Social Services from placing children in foster homes because of its policy of not licensing same-sex couples to be foster parents. CSS sued the city of Philadelphia, asking the court to order the city to renew their contract. CSS argued that its right to free exercise of religion and free speech entitled it to reject qualified same-sex couples because they were same-sex couples, rather than for any reason related to their qualifications to care for children. The district court denied CSS's motion for a preliminary injunction, and the Third Circuit affirmed, finding that the City's non-discrimination policy was a neutral, generally applicable law and that CSS had not demonstrated that the City targeted CSS for its religious beliefs or was motivated by ill will against its religion.
In a majority opinion written by Chief Justice John Roberts, the Court held that the refusal of Philadelphia to contract with CSS for the provision of foster care services unless CSS agrees to certify same-sex couples as foster parents violates the Free Exercise Clause of the First Amendment. All nine justices agreed on that conclusion. Thankfully, the decision of the Court now means that the government cannot prioritize secular interests over religious ones when granting policy exemption. But that's about as far as the case went. Fulton gave the Supreme Court an excellent opportunity to overturn Smith and restore the longstanding founding principle that the government cannot prohibit or burden the free exercise of religion absent an extremely compelling reason. Unfortunately, a majority of the justices stopped short of making that ultimate decision.
Instead of overturning the Smith opinion (sadly, keeping it in place), the Supreme Court should have followed Justice Samuel Alito's 77-page concurring opinion in Fulton. As he explained in that concurrence, the Court should abandon Smith because its toleration for any rule that categorically prohibits religious activity, so long as it doesn't target religion specifically, is fundamentally at odds with the text, intent, and interpretation of the First Amendment. Instead, as Alliance Defending Freedom and NC Family believes, the Court should recognize that the Free Exercise Clause protects the rights of Americans to freely practice their religion and to live according to their faith. If the government imposes a law that burdens free exercise, it needs to have an interest of the highest order and it needs to be as least burdensome on religious liberty as possible.
Hopefully, the Court will take up that question sometime soon.
Luckily, Smith was overturned legislatively when Congress passed the Religious Freedom Restoration Act (RFRA), which was introduced by then-Congressman Chuck Schumer and Senator Ted Kennedy (imagine that!!) and signed into law in 1993 by President Bill Clinton. RFRA restored, by statute, the same protections for religious liberty guaranteed by the Constitution and Bill of Rights prior to Employment Division v. Smith. According to RFRA, the federal government cannot burden a person's exercise of religion unless it has a compelling interest to do so (meaning, an interest of the highest order) and places as little a burden on the person's religious rights as possible. Twenty-three states followed suit by adding RFRA to their own state laws so that in those states, there is protection against federal, state, and local government attempts to burden religious exercise. North Carolina was not one of those states.
Over the past thirty years, RFRA has protected Americans in their free exercise of religion from government abuse and overreach. But this once-bipartisan effort to protect religious freedom has become a stumbling block for the application of progressive far-left policies. This, perhaps, explains why Congressional Democrats have been pushing the "Equality Act," which clearly threatens to cancel much of RFRA's protections. The Religious Freedom Restoration Act would force acceptance of the new progressive sexual orientation and gender identity ideology while explicitly removing protections for people of faith that the Act provided.
The Equality Act, which passed the US House on February 25, 2021, prohibits discrimination based on sex, sexual orientation, and gender identity in areas including public accommodations and facilities, education, federal funding, employment, housing, credit, and the jury system. Specifically, the bill defines and includes sex, sexual orientation, and gender identity among the prohibited categories of discrimination or segregation.
It also expands the definition of public accommodations to include places or establishments that provide (1) exhibitions, recreation, exercise, amusement, gatherings, or displays; (2) goods, services, or programs; and (3) transportation services. And it prohibits an individual from being denied access to a shared facility, including a restroom, a locker room, and a dressing room, that is in accordance with the individual's gender identity. Finally, the bill allows the Department of Justice to intervene in equal protection actions in federal court on account of sexual orientation or gender identity.
Proponents of the Equality Act continue in their effort to push it through the US Senate (it was placed on the Senate calendar in early 2021 but has not yet come up for a vote). If it passes, God forbid, religious organizations, including schools, hospitals, soup kitchens, homeless shelters, and even churches, could face lawsuits and potential liability just for adhering to their teachings on marriage and sexuality, teachings that the Supreme Court itself said were based on "decent and honorable religious or philosophical premises."
Sadly, the federal Equality Act is not the only piece of legislation being proposed by the liberal left in Congress to significantly weaken the Religious Freedom Restoration Act.
Religious liberty today relies primarily on the First Amendment's Free Exercise (of Religion) Clause and on the Religious Freedom Restoration Act (RFRA). But those who grew up in the 1940's thru the 1960's probably can best attest to the fact that these protections have been chiseled away and can attest to the significant changes in society and in morality as a result of these erosions of our basic rights.
Unfortunately, the Free Exercise Clause no longer fully protects religious practices from government-imposed burdens. And liberal politicians have threatened to gut part of RFRA's vital protections in order that they can usher in further social change.
NC Family explains the challenges that Religious Liberty faces today (and a good majority of them have been defended by the Alliance Defending Freedom (ADF):
- Creative professionals are forced to celebrate and even participate in events that violate their deepest beliefs about marriage. For example, we all remember Jack Phillips, the Colorado cake artist and owner of the Masterpiece Cakeshop, who politely declined to design a cake celebrating the marriage of a same-sex male couple. He serves everyone in his shop, but as a cake "designer" and artist, he, in good conscience, cannot and design and create a cake expressing any message that goes against his deeply-held religious beliefs. He is famous for winning his case against the Colorado Civil Rights Commission for its outright hostility and discrimination of him because of his Christian beliefs, is once again being sued for declining to design a special cake for a transgender individual. Leftists are determined to ruin him, his reputation, put him into bankruptcy, and destroy his bakeshop. And then there is Barronelle Stutzman, a floral design artist in Washington state, who has suffered eight years of litigation and could very well lose her florist business and life savings because she politely declined, based on her religion convictions, to participate in and design custom floral arrangements celebrating the same-sex wedding ceremony of a customer and friend she had served well for nearly ten years.
- COVID policies treated houses of worship more harshly than secular businesses. For example, Calvary Church Dayton Valley, as well as thousands of other churches were treated more severely than many secular gatherings by many of the states' COVID-19 executive orders.
- Students and employees are punished for exercising their religious values and for sharing their religious views. (1) Former Atlanta Fire Chief Kevin Cochran, a highly-decorated fireman, was suspended and fired after leftist activists who didn't agree with his views on traditional marriage complained about a men's devotional book he had written on the topic, on his own personal time. (2) Jack Denton, the president of the Florida State University Student Senate, was harassed and removed from his position for sharing his personal religious beliefs in private text conversations with other students.
- Nonprofit groups are excluded from publicly-available benefits because they are religious (offends the "Wall of Separation of Church and State"). For example, a pre-school operated by Trinity Lutheran Church of Columbia was denied a grant by the state of Missouri to provide materials for a safe playground solely because the pre-school was run by a church. (The school filed a lawsuit and won!) And in Montana, private schools were denied funds when a Montana court tried to shut down the State's tuition tax credit program because parents, God forbid, might choose religious schools
- Religious organizations are discriminated against by the government for having policies that align with their religious beliefs. For example, adoption and foster care agencies, New Hope Family Services, and Catholic Charities West Michigan face closure for the sole reason that their faith-based policies prioritizing the placement of children in homes with a married mother and father.
[Reference: "Religious Liberty: First or Fading Freedom?", by Greg Chafuen, NC Family]
There is some good news, however. The US Supreme Court has vindicated the rights of religious American citizens in a series of landmark decisions over the last five years. The Alliance Defending Freedom, a non-profit legal group that defends religious freedom, free speech, the sanctity of life, parental rights, and God's design for marriage and family (which won the case for Jack Phillips and Masterpiece Cakeshop), has won 13 significant victories at the Supreme Court in the past ten years and many more victories to protect and preserve religious liberty in lower courts all around the country.
Trinity Lutheran Church v. Comer (2017) and Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) are just two of the "landmark" Supreme Court opinions.
Trinity Lutheran Church of Columbia, Inc. (Trinity) operates a licensed preschool and daycare called The Learning Center that was initially opened as a non-profit corporation but merged with Trinity in 1985. The Learning Center has an open admissions policy and incorporates daily religious instruction into its programs. The Missouri Department of Natural Resources (DNR) offers Playground Scrap Tire Surface Material Grants that provide funds for qualifying organizations to purchase recycled tires to resurface playgrounds. Trinity applied for such a grant but was denied because Article I, Section 7 of the Missouri Constitution states, "no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion." Trinity sued and argued that the denial of its application violated the Equal Protection Clause of the Fourteenth Amendment as well as the First Amendment's protections of freedom of religion and speech. The district court granted Missouri DNR Director Pauley's motion to dismiss for failure to state a claim, and Trinity moved for reconsideration and to amend its complaint to include allegations that such grants had previously been given to religious organizations. The district court denied the motions, and the U.S. Court of Appeals for the Eighth Circuit affirmed. Trinity appealed to the US Supreme Court.
The question presented to the Court asked whether the exclusion of churches from an otherwise neutral and secular aid program violate the First Amendment's guarantee of free exercise of religion and the Fourteenth Amendment's Equal Protection Clause. The Supreme Court agreed and found in favor of Trinity. The opinion explained that the exclusion of churches from an otherwise neutral and secular aid program violates the First Amendment's guarantee of free exercise of religion.
The Masterpiece Cakeshop case is one that highlights extreme and outright hostility to religion. The LGBTQ community has demanded "tolerance and inclusion" for years, urging Christians to accept them and their lifestyle. And for the most part, they have. Yet, the LGBTQ community, at least in this case, showed an outright hostility and an intolerance to Jack Phillips' religious beliefs.
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