Tag: RFRA

Religious Liberty Under Siege in Mississippi

 

Religious LibertyLast month, Judge Carlton W. Reeves of the Northern District of Mississippi handed down an extraordinarily misguided decision in Barber v. Bryant by issuing a preliminary injunction against House Bill 1523, Mississippi’s newly passed religious liberty law, just minutes before it was to go into effect. The court found that House Bill 1523 likely denied the plaintiffs—a diverse group of supporters of same-sex marriage—their rights under Fourteenth Amendment’s Equal Protection Clause, and, furthermore, established preferred religious beliefs, violating the First Amendment’s Establishment Clause. Phil Bryant, the governor of Mississippi, has filed papers in the Court of Appeals to dissolve that temporary injunction. State Attorney General Jim Hood has declined to join in that defense of the Mississippi law. As someone who gave some brief advice and encouragement to Mississippi’s appellate lawyers, I think that their motion should be granted, given the major points of principle that it raises.

To put matters in context, HB 1523 was the latest effort to provide explicit protection of religious liberty and moral conscience for those individuals who are opposed to same-sex marriage. At no point does the legislation limit the right of any person to participate in a same-sex marriage, which would be an obvious nonstarter given Obergefell v. Hodges, a highly dubious Supreme Court decision, which held that the Equal Protection Clause of the Fourteenth Amendment guaranteed that right to all persons. House Bill 1523 does not seek to dislodge or compromise that decision. Indeed, it would have been dead on arrival if it had attempted any such maneuver. But as is often the case, no one quite understands the scope of a particular constitutional right until its correlative duties are accurately specified.

The correct reading of Obergefell comes in two parts. First, no private person can seek to block the performance of a same-sex marriage. Second, some public official must be prepared to solemnize those marriages, so that they have the full force and effect as traditional marriages. What the decision in Obergefell did not do, and indeed disclaimed, was the notion that people who are opposed to same-sex marriages had to participate in their validation. Even public officials can escape that duty under House Bill 1523 so long as alternative arrangements are made to ensure that “the authorization and licensing of any legally valid marriage is not impeded or delayed as a result of any recusal.” House Bill 1523 thus represents the kind of sensible accommodation that has long been the hallmark of religious liberty.

RFRA and the Presumption of Tyranny

 

Over on The Federalist, a social worker under the pseudonym “Joseph Turner” offers a poignant and powerful explanation as to why it’s wrong for the government to compel him and his colleagues to provide advice that violates their consciences. Instead, he argues that the law should merely require that they refer such patients to providers who can help them without moral qualms. It’s an entirely reasonable standard and the fact that the state is currently empowered to run rough-shod over Turner’s conscience and religious convictions is a frightful and depressing illustration on our public life. The problem is very real and very important.

Which is why it’s a shame that his proposed remedy — a RFRA style law currently under consideration — is such an awful and counterproductive idea. As noted by people far smarter and better-informed than I, there is a strong case to be made for public accommodation laws to apply to monopolies, public utilities, and in circumstances where oppression has been enforced by the state. But in circumstances short of that  list — that is, in the overwhelming majority of day-to-day interactions we have — the default setting should be of absolute freedom of association. The problem here is not that Turner has been denied a carve-out to preserve his conscience; rather, it’s that he has to ask for one in the first place.

Obama’s Abortion Pill Mandate Sham Is No “Accommodation”

 

shutterstock_133423673-e1444998785546Several religious non-profit organizations — including Christian colleges, the Little Sisters of the Poor, and Priests for Life — filed their opening brief Monday with the US Supreme Court in a highly-anticipated challenge to the Obama administration’s abortion-pill mandate and the sham “accommodation” it offers religious non-profits.

The Department of Health and Human Services mandate forces employers, regardless of their religious or moral convictions, to provide abortion-inducing drugs, sterilization, and contraception through their health plans under threat of heavy penalties. Alliance Defending Freedom clients Geneva College in Pennsylvania and the four universities in Oklahoma – Southern Nazarene University, Oklahoma Wesleyan University, Oklahoma Baptist University, and Mid-America Christian University – specifically object to providing abortifacients.

So what distinguishes this case from the Hobby Lobby/Conestoga Wood Specialties victory against the abortion-pill mandate at the Supreme Court in 2014?

Why Markets Work Better Than Anti-Discrimination Laws

 

Given the ongoing controversy over the Religious Freedom Restoration Acts in Indiana and Arkansas, I chose to use the newest installment of my weekly column for Defining Ideas to conduct a deeper examination of the principles that ought to inform our anti-discrimination laws. As I note there, the all-too-common invocation of Jim Crow as a precedent elides the fact that the pre-Civil Rights Act South was an exception to the general rule:

In the run-up to the 1964 Civil Rights Act the great impetus behind the passage of Title II was the widespread and conspicuous stories of motels and restaurants refusing to provide service to their black customers on equal terms with white customers, assuming that they were willing to provide for them at all. At this point, there is an evident breakdown in the operation of competitive markets, because it seems evident that some merchants—most notably national restaurant and hotel chains—that provided open service in the North were unable to do so in the South. The explanation in large measure rested on the combined threats of a segregationist establishment backed by private violence, which made entry of new businesses into the market to serve disfavored groups a near impossibility. The great achievement of the Civil Rights Act of 1964 was to smash these official and private barriers to open services. Once released, competitive forces took over, and the short-term crisis came to an end.

Please Stop Celebrating the Naked Public Square

 

RFRA_Indianapolis_Protests_-_2015_-_Justin_Eagan_02-615x458Fifteen years ago, as a college undergraduate, I had the opportunity to visit Yad Vashem, Israel’s official memorial to the victims of the Holocaust. It’s an interesting place, and some parts are quite moving. Nearly everyone comes away haunted by the Children’s Memorial, commemorating the 1.5 million Jewish children killed in the Holocaust. For me though, another very memorable bit was the main museum, which told the story of the Holocaust from an angle I hadn’t seen before.

Of course, I had studied the Holocaust in school and seen the classic movies. I had heard the pious cliche (laughable when you think about it) that “this is disturbing but we study it anyway so that this can never happen again.” But when American schoolteachers cover the Holocaust, the impression they give is that the extermination of Jews just resulted from a random outpouring of wild-eyed hatred, which could as easily have fallen on short people or green-eyed people or anybody else who happened to be a little different. Yad Vashem’s narrative was much more attentive to the fact that it was not short people or green-eyed people who were hated and killed; it was Jews. And that really wasn’t a point of random happenstance.

In the end, that museum basically amounts to a kind of apologia for the State of Israel. (This also explains another slightly eerie thing about Yad Vashem, which is that it is usually packed with armed and uniform-clad IDF soldiers. I gathered a visit to the museum was a normal part of their training.) It certainly gave my 20-year-old self a lot to consider. That was the first time I understood the really interesting (and tragic) thing about the Holy Land, which is that everybody there has a victim complex and, as inconvenient as that is politically, everybody there has some justification for having a victim complex. Their “victim narratives” ring true, at least to a considerable extent.

Liberty, Religion, and Basketball

 

Kentucky-Wildcats-vs-Wisconsin-BadgersCome with me in imagination to a place that certainly exists somewhere in this country. It’s a small food vendor — a restaurant, bakery, pizza parlor, or what you choose — that happens to be owned by a University of Kentucky graduate. Today, he’s a disappointed, even bitter Wildcat fan whose mood is not in the least improved when a nice guy with a Midwestern accent breezes through the door. In red. Whistling “On, Wisconsin!”

Now, let’s hope the guy behind the counter stays polite, but we know the Badger will get his pizza or ice cream; it would be outrageously unthinkable that — even at his bitterest — the Kentucky grad would deny service to someone just because he’s from Wisconsin.

But suppose the customer isn’t after a slice of pizza. He’s planning a big party to watch Wisconsin take Duke down on Monday. Maybe he even wants a cake that says “Go Badgers!”

Indiana: Saying What Needs to Be Said

 

shutterstock_158203232From the recent open letter, “Now is the Time to Talk About Religious Liberty,” an unapologetic statement of simple political, religious, and legal sanity:

In recent days we have heard claims that a belief central to Judaism, Christianity, and Islam — that we are created male and female, and that marriage unites these two basic expressions of humanity in a unique covenant — amounts to a form of bigotry. Such arguments only increase public confusion on a vitally important issue. When basic moral convictions and historic religious wisdom rooted in experience are deemed “discrimination,” our ability to achieve civic harmony, or even to reason clearly, is impossible.

America was founded on the idea that religious liberty matters because religious belief matters in a uniquely life-giving and powerful way. We need to take that birthright seriously, or we become a people alien to our own founding principles. Religious liberty is precisely what allows a pluralistic society to live together in peace.

For Our 2016 Candidate: Inspiration or Grit?

 

shutterstock_133013534Last night, I was listening to Hugh Hewitt talking to The Daily Caller’s Matt Lewis about Mike Pence’s response to the outcry over Indiana’s RFRA law. One of them noted that Pence’s failure (and that of Arkansas Governor Asa Hutchinson) to fight back hurt the conservative cause. Lewis noted that a fighter like Chris Christie would have hit it out of the park. Pence, he said, is an affable guy and a good communicator, but isn’t a fighter. He concluded that if Republicans want inspirational speeches , they should nominate Bush or Rubio. If they prefer a fighter, then Christie or Cruz (and someone else whose name escapes me) should be their choice.

Since Cruz has been a polarizing figure who has not shown an ability to work with other Republicans or accomplish much, I would be inclined to rule him out. Christie has been a fairly successful governor and has helped elect many Republican governors. And because he is a fighter — yet one with a more personable style — I think he would do better in a general election. Christie was able to win reelection in liberal New Jersey with 61% of the vote without changing his positions on abortion or SSM.

If there is anyone else with his abilities (which Walker may also possess), I’m willing to consider him or her.

The Sore Winners of the Left

 

square_pegThe Left started the culture war, won it, and now roams the countryside shooting the wounded.

Getting same-sex marriage legalized now appears to have been just a beginning for progressives, not the goal that many libertarians and conservatives had assumed. With SSM accepted in more states every year and the Supreme Court considering if it should be a right in all 50, the Left is angrier than ever.

While most Americans would have celebrated such rapid victories, a large number of so-called liberals are out for vengeance. In Indiana, a local news reporter cold-called businesses to see if they would cater a theoretical same-sex wedding. The first one to say “no” would be made an example of.

Member Post

 

Our ever-expanding definition of bullying—the most horrible of horribles—made me think it might be helpful to provide a scorecard of recent news stories to see how our journalistic leaders at mainstream outlets, pundits of the mighty blogosphere, and social-media denizens categorized various behaviors.   This scorecard can serve as a cheat sheet as we try […]

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The Debate Behind the Debate

 

The debate over Indiana’s version of the Religious Freedom Restoration Act has already taken some curious twists and turns. The initial response from opponents was to go to the playbook that has been so wildly successful over the past five years: label the law as “hate,” condemn its proponents, and invent wild scenarios that conjure Nazi-esque horrors.

RFRAMapExcept something was different this time. The law’s critics — probably overconfident because of their long winning streak — got a little sloppy. Their blanket condemnations were met on this occasion by some defiant, salient points from the other side. Namely, that numerous other states and the federal government have had similar laws for years, and, yet, somehow, those jurisdictions have avoided the descent into Jim-Crow-esque regimes promised as a certainty by opponents.

A Few Thoughts on Indiana and Coercion

 

imageConservatives are allergic to government coercion. This allergy informs all of our positions on public policy. It informs out position on religious freedom. The reason liberals can’t tell the difference between the promotion of liberty and promotion of “hate” all comes down to our differing views of coercion. For conservatives, political coercion is the original sin of authoritarian governments. For liberals, it is the glue that binds their entire moral identity.

Consider two pillars of the progressive left: Social Security and Obamacare. Would either of these programs survive even a month if they weren’t compulsory? Would any liberal program survive? And if this kind of coercion represents a social good, then it would not seem at all unethical to force a business owner into an involuntary transaction. Once you cross that line, “hate” is the only logical explanation for opposing their policies.

(Incidentally, I used to allowed for the possibility that the charge of “hate” is just an attempt to shut down debate by casting conservatives as unreasonable, but I have talked to enough liberals to know that they actually believe this stuff).

Member Post

 

After reading the articles that several of my Facebook friends posted concerning Indiana’s recent passage of a state-level Religious Freedom Restoration Act (RFRA) law and my friends’ and other Facebook users’ comments regarding those articles, it was clear that no one — not the journalists writing the articles, nor my friends reading them — had […]

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One Quote And Three Questions on Religious Liberty

 

7131116_376b8e9da2_zOn the Volokh Conspiracy, Eric Rassbach writes the following on the rise in religious liberty cases in the United States:

Imagine a…Venn diagram of fields of human activity, with the field of government regulation represented as a sphere, and the field of religious activity represented as another, intersecting sphere. Religious liberty conflicts arise within the overlap between the sphere of government regulation and the sphere of religious activity. When either sphere expands over time, the set of potential conflicts increases. When either sphere contracts, there is less overlap and less potential conflict.

He continues:

Against Exemptions

 

640px-Kirpan_smallIn Washington State, an elementary school decided to relax its “zero tolerance” knife policy to allow a Sikh student to carry a small kirpin — a symbolic dagger all Sikhs are required to carry at all times — to class. Kirpins have been a legal headache for similar prohibitions for some time, and Sikh groups have successfully lobbied and litigated for legal exemption to these rules on the grounds that they impede their religious practices.

But, as noted in Reason, this unfortunately leaves all the other students in the district at the mercy of an absurd rule that treats anyone caught carrying a pocketknife as a nascent mass-murderer. If all religious Sikh students can be trusted to carry a small knife safely and responsibly, why can’t other students?

When the law admits that an entire class of people can be permanently exempted from a general rule, it invites the question of whether a general rule was an appropriate remedy in the first place. The problems are further compounded when the exemption is based on matters of conscience and religious conviction, both areas where the state is ill-equipped to make fair judgments without either attempting to scrutinize citizens’ beliefs or allowing any specious claim to pass. As Justice Scalia put it in his 1990 majority opinion in the case that spawned the Religious Freedom Restoration Act, “To permit [general laws to be exempted on grounds of religion] would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”