Written by Rick Claybrook, Esq.

The U.S. Supreme Court fall term begins this month, and, as of now, it does not appear to be as action-packed for religious liberty as this past term. However, at least one important case is in the hopper, and several are in the pipeline.  And, of course, all is overshadowed by the presumed replacement of Justice Ruth Bader Ginsburg by Judge Amy Coney Barrett.

The case in the hopper is Fulton v. Philadelphia, dealing with whether Philadelphia can stop contracting with Catholic Social Services to perform foster care services because CSS refuses to place children with same-sex couples due to its religious beliefs. The case presents many interesting angles: practical, philosophical, personal.

a.) It is set to be argued on November 4.  Will Judge Barrett be confirmed by then?  If not, and there is a 4-4 split, will it be reargued?

b.) One issue presented is whether Employment Division v. Smith, Justice Scalia’s most notorious decision among many religious freedom advocates, should be overruled. Will Judge Barrett, a self-described Scalia acolyte, be inclined to overrule Smith?

c.) Of course, as we argued in our Fulton amicus merits brief, it is also quite possible to decide in favor of CSS without overruling Smith by taking the path of “hybrid” rights, i.e., that more fundamental rights are at stake than just free exercise.

d.) The city in its briefs before the Supreme Court has also shifted the focus of its defense, now principally arguing that there is much less religious freedom when the government is handing out contracts for a function for which it has primary responsibility.

A few petitions filed last term seem to have been held awaiting what the Court does with Smith in Fulton (if anything).  Foremost among them is Arlene’s Flowers (19-333), which involves a Christian florist who refused to provide floral arrangements for a same-sex “marriage” ceremony. This case has already been “gvr’d” (granted, vacated, and remanded) once for reconsideration in light of Masterpiece Cakeshop, and we argued in our amicus brief in support of the petition that, by requiring the florist to contribute to the ceremony on pain of penalty, she was being unconstitutionally compelled to speak and assemble in a ceremony to which she had religious objection.

Tensions between SOGI discrimination laws and religious freedom are also at play in several other cases in the pipeline. The petition in Patients for Privacy v. Barr (20-62) raises whether a school’s forced inclusion of opposite-sex identifying (“trans”) students in locker rooms violates other children’s bodily privacy rights and associated parental rights. Several lower courts have recently applied Bostock’s reading of sex to include “sexual orientation” and “gender identity” in Title VII (employment) to Title IX (school sports). This issue was specifically reserved by Justice Neil Gorsuch in his Bostock majority opinion, and it would give an interesting read on a freshly minted Justice Barrett.

Several cases are in the pipeline that could raise whether one of Justice Ginsburg’s most notorious decisions, Christian Legal Society v. Martinez, should be reconsidered and overruled. That 5-4 decision held that an “all comers” policy at a public university could trump a religious organization’s restrictions on its leadership. Putting to one side that there really is no such thing as a consistently enforced “all comers” policy at any public university (which almost all have fraternities and sororities, for example), the decision has received substantial criticism for violating the association/assembly rights protected by the First Amendment.  A Justice Barrett could provide the vote to overrule this precedent.

Another case that has been to the Court before and may shortly be back is Kennedy v. Bremerton School District, which involves a Washington state high school firing a football coach because he refused to stop kneeling at the center of the field with head bowed, by himself, after football games. The Court refused to consider the case in a preliminary injunction context, with a concurring opinion expressing sympathy for the coach but saying that the record needed to be further developed. He has now lost again, on a full record, at the Ninth Circuit. If en banc consideration is not granted, it will almost undoubtedly be the subject of another petition at the Court. If granted, it may provide a first opportunity for a Justice Barrett to indicate her reading of the scope of the Establishment Clause and its interplay with the Free Exercise Clause.

Covid 19 has put the Free Exercise Clause to the test in many cases challenging restrictions on in-person religious services.  The decisions so far have been presented in a preliminary injunction context, and the churches have lost, 5-4, with Justice Ginsburg always in the majority, on the issue of whether churches have been treated in a non-discriminatory fashion. Cases will likely be subject to petition soon that are past the preliminary injunction stage and may present other issues. For example, a Romanian Orthodox church just lost in the Seventh Circuit its challenge to Illinois’s 10-person maximum for indoor services, despite its meeting space holding thousands. Is a one-size-fits-all requirement irrational, especially when free exercise rights are involved? And California in many counties has prohibited in-person religious services entirely. Would a confirmed Justice Barrett tip the scales 5-4 in favor of the churches?

Of course, the primary focus on Judge Barrett’s confirmation hearings, whether expressly or implicitly, will be her likely vote on abortion cases. Several cases are in the lower courts that could be the subject of successful petitions during the term, as states have had laws enjoined that, for example, move back the latest gestation date by which abortions can take place and prohibit abortion due to sex or disability. One pending petition (20-93) raises the issue of whether an unborn child is entitled to equal protection, which does not seem likely to be granted.

Until his retirement from his partnership in Crowell & Moring LLP, one of the country’s premier government contracts firms, Rick Claybrook specialized in bid protest and claims litigation. Throughout the 40+ years of his career, Mr. Claybrook has been active in pro bono matters involving religious liberty and life issues. His experiences in this area have been broad and varied, from hearings before a zoning board to defend a small house church to filing multiple amicus briefs in the United States Supreme Court and other state and federal appellate and trial courts. For over a decade, he has been a member of the supervising committee of the Center for Law and Religious Freedom, which is the advocacy arm of the Christian Legal Society. 

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Written by Joseph Backholm

You may not know what dhimmitude is and hopefully you never experience it.

But you’ve probably heard of ISIS (the Islamic State of Iraq and Syria) and you’re almost surely aware of what Christians are.

Dhimmitude is an Islamic system that governs non-Muslims who have been conquered through Jihad by folks like ISIS.

If you surrender to Muslim control – though not Muslim – you are referred to as dhimmi.

Sounds fun, right?

If ISIS took over the town you live in, they might move door to door and give you three options: “convert to Islam, pay the jizya, or die.”

The jizya is a tax for not being Muslim.

It doesn’t apply to everyone, but paying it is seen as proof of your subjection to the Jihadist state and its laws. In return, non-Muslim subjects are permitted to practice their faith, to enjoy a measure of communal autonomy, to be entitled to the Muslim state’s protection from outside aggression.

Acknowledging the difference, there are parallels between the way Jihadists treat those who are in dhimmitude and the way the new sexual revolution in America seeks to treat those who disagree with their (religious?) beliefs about sexuality and marriage.

Once they have political power, they are giving businesses three options “convert, pay a fine, or die” (economically, not physically).

After Arlene’s Flowers was sued for declining to decorate for a same-sex wedding, Attorney General Bob Ferguson offered to settle (demanded the jizya) for $2,000 on the condition that she would “convert,” or agree to make business decisions according to the state’s new values.

Only a few days ago, a judge in Oregon fined a bakery $135,000 because they attempted to run their business according to their Christian beliefs about sexuality rather than the government’s. When they rejected the government’s demands that they convert or pay the jizya, the government opted for what amounts to the economic death penalty.

“Nonsense,” you argue. “They broke the law. Having penalties for breaking the law isn’t exactly innovative. Nor is it jihadist.”

Fair enough.

But the left’s new found impulse to be sticklers for the letter of the law misses the larger point.

The left is proposing a regime change that fundamentally alters freedoms that have been taken for granted for in America for centuries.

Christians, Jews, Muslims and others have been not participating in same-sex “weddings” for millennia.

But under the new regime, doing what has always been done is illegal.

Your choice. Convert, pay a fine if you refuse to convert and then convert, or experience economic death.

Like the jizya, the non-discrimination law discriminates.  It protects one person’s right to decline to participate in an activity they disagree with, but denies that right to others. 

The good news is that if you accept the terms of the new regime, you will still be allowed a measure of communal autonomy, and be entitled to other benefits from the state.

Imagine a new law compelling church attendance or pork consumption on the grounds that refusing to participate is discriminatory. (Which, of course, it is. But that’s the kind of discrimination lefties still like.)

Being indignant with the atheist who objects to compulsory church attendance would be stupid since he’s simply doing what atheists have always done.

“But it’s the law,” you say, self-righteously.

“But it shouldn’t be the law, and you should know better,” he says in response.

And of course he’s right.

The way non-discrimination laws are being interpreted right now is not a modification to the building code that frustrates some builders or a change in the speed law that catches unsuspecting drivers.

It is a regime change that seeks to fundamentally alter the way Americans have always lived. It seeks to create the kind of conformity that America was created in opposition to.

America doesn’t and shouldn’t have conquered peoples. We make room for the atheists, Christians, Muslims, or Jew to be who they are, not just in their preferred place of worship, but in the rest of their life as well. We respect the right for people to be who they are, even if we think they’re silly and ignorant. We understand that we’re different and we make room for that.

Dhimmitude is for jihadists, not for Americans.

This article was originally posted on the blog of the Family Policy Institute of Washington.

Pastors, your church needs you to be engaged—fully engaged—in the issues people are facing every day. Maybe you are not personally facing these issues, but they might be. If congregants come to you for help and advice and all you say is, “Sorry to hear about this,” then you’ve failed them.

Elaine Hugenin, owner of Elane Photography, chose not to photograph a same-sex ceremony. Her religious convictions prevent her from using her talents to celebrate same-sex unions. When she declined to photograph the ceremony, the same-sex couple, ignoring Elaine’s right to freely exercise her faith, brought a case against Elane Photography and the New Mexico Supreme Court unjustly found her guilty of discrimination, even though the same-sex couple easily found and used another photographer to capture the ceremony.

I can’t help but wonder what counsel her pastor provided, if any?

In a similar situation, the owner of Arlene’s Flowers in Washington State declined to offer her floral services for a homosexual couple’s same-sex “marriage” ceremony. The state attorney general has filed a lawsuit against the flower company. Barronelle Stutzman believes her Christian convictions prevent her from supporting the same-sex “marriage” and does not want to violate her convictions. She is still being sued, even though dozens of flower shops can provide flowers for their ceremony.

What insights did her pastor offer during this troubling time?

When the owner of Masterpiece Cakeshop said he would rather close his business than violate his religious convictions by baking a cake for a same-sex ceremony, he was sued for discrimination. He is doing his best to stand firm and adhere to his faith but he is being attacked by locals within the community and the media. The same-sex couple, along with the ACLU, have filed a suit against Masterpiece Cakeshop, even though other bakeries could provide a cake for the ceremony.

What words of wisdom did his pastor offer during his hour of need?

Pastors often talk about controversial issues in a detached manner saying they are outside of the church and her scope. But these are real Christians—members of real churches—whose livelihoods, reputations, and lives are being attacked in a very public way. These issues are not outside the church, but within, and must be addressed so that these Christians can live their faith fully and carry their cross with the strength and support their church provides.

Pastors, congregants need you to be informed, engaged, and buttressed by your support and wisdom. If all you offer them during a difficult time is an obscure Bible verse, you might appear indifferent and uncaring. A shepherd needs to care for the needs of his flock, especially when their livelihood is at stake because of their Christian beliefs.

Pastors must be a solid rock for Christians during trying times when they are being assailed by our enemies.  They must be a counselor, friend, and inspirational resource. Make sure congregants know that they can come to you and count on your support. Here are two ways you can show your congregation your support during difficult times.

1.     Skip the rhetoric. Don’t recite sermons, prepared statements, or doxologies from books. Be a real friend, one who cries with them (Rom. 12:15), and is willing to walk by their side through this valley of darkness. I love sermons, Proverbs, Psalm and great quotes from men of God, but sometimes people just need a shoulder to cry on. Be that shoulder.

2.     Become a resource. (Ecc. 4:12) When a person’s character is being assaulted publicly and their livelihood is threatened, inspiring words only go so far. Become a resource for people in your congregation by making sure you are up-to-date on their situation, aware of laws and people and organizations that can help. Familiarize yourself with groups like Alliance Defending Freedom, the Family Research Council, and your local state family policy council that can provide legal and public policy resources.

Difficult times are opportunities for pastors to minister to the needs of their congregants. You will only be able to minister effectively if you are prepared. As ministers of the Gospel, we should endeavor to be “instant in season and out” (2 Tim. 4:2). When people need us, let’s be ready with God’s Word and the necessary resources to stand with those God has entrusted to our care.

This article by Pastor Nathan Cherry first appeared at the Alliance Defending Freedom’s Speak Up blog. You can see the original article and comments HERE.