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 Dr. John A. Sparks

Among recent actions by the U.S. Supreme Court, a four-sentence order may set the stage for the court to eventually address the collision between free speech and religious freedom on one hand and gay rights on the other. The order voided a judgment by the state of Oregon that had imposed a $135,000 fine on Portland-area bakery owners—the Kleins—for refusing to bake a wedding cake for a lesbian couple. Oregon maintained that its anti-discrimination law condemned such a rebuff even when the bakery owners’ religious convictions run counter to participating in a same-sex wedding.

Besides vacating the fine, the court sent the case back to the Oregon Court of Appeals to be reconsidered in light of the Masterpiece Cakeshop decision. Masterpiece involved a similar situation in Colorado for Christian baker, Jack Phillips, when he refused, on religious grounds, to bake a wedding cake for a gay couple’s marriage. In Masterpiece, Colorado’s case against Phillips had relied on language in an earlier case, Employment Division v. Smith (1990), which said that religious liberty claims could not be used as a defense against “generally applicable” laws that were “neutrally” enforced. However, the U.S. Supreme Court found that the Colorado proceedings against Phillips were far from “neutral.” In fact, they were rife with religious hostility toward him. Besides that, the court found that Colorado had selectively enforced its anti-discrimination laws, making them less than “generally applicable.”  Now the court is ordering the Oregon court to review the Klein case looking for the same examples of unfairness it had discovered in Masterpiece.

Klein is the second case of this type that the U.S. Supreme Court has sent back to the courts below for reconsideration in light of the Masterpiece decision. Earlier, the Washington Supreme Court was ordered to make such a review in a case involving a florist, Barronelle Stutzman, and her business, Arlene Flowers. Stutzman had refused to provide wedding flowers for a gay couple’s ceremony. Just recently (June 6, 2019), the Washington court found that proceedings were not conducted with “religious animus.” The Washington court closed that review by repeating its conclusions that neither free speech, free exercise, nor freedom of expression were infringed upon by the anti-discrimination law in question.

It seems likely that the Oregon court will make similar findings of the absence of religious hostility. Once the Oregon court has spoken on the matter in the way it is expected to rule, the questions of religiously hostile proceedings and selective enforcement will have been disposed of. That will leave the central constitutional questions of free speech and free exercise of religion for the U.S. Supreme Court to face which it effectively avoided in Masterpiece. The arguments on those issues made by the Kleins and Mrs. Stutzman in their existing court filings will be brought up again.

What are the Constitutional claims supporting the positions of faith-guided commercial providers who are asked to set aside their religious beliefs by customers who ask them to offer services contrary to their convictions?

The first basis for relief from the reach of the anti-discrimination laws is the claim that such laws violate the freedom of speech of the providers. At first blush, it may seem a stretch to regard baking a cake or arranging flowers as “speech.” However, federal Constitutional cases have long recognized that protecting speech is not limited to “the spoken or written word.” Engaging in conduct that expresses a point of view or idea is speech, and that expressive conduct is protected by the First Amendment.

In addition, and important for these cases, citizens cannot be forced to deliver a message provided by the government or another person. The oldest and best-known case recognizing this idea—called the “compelled speech doctrine”—is W. Va. State Board of Education v. Barnett. There the court said that public school children could not be required to salute the American flag or say the pledge of allegiance when to do so was against their religion’s teaching. The case, though it involved religious convictions, is usually viewed as a free speech case in which the court forbade the government from making citizens express a message contrary to their beliefs. Both wedding providers—the Kleins and Stutzman—maintain that Washington and Oregon laws are, in effect, requiring them to use their artistic expression to further a conjugal union against which they have serious religious reservations, or face a legal penalty. When their only other choice is to abandon the means to make a livelihood that they have chosen, the burden placed upon them is unconstitutional.

The second constitutional claim asserted by the two wedding providers is that their religious liberty under the Free Exercise clause of the First Amendment has been denied to them by the anti-discrimination laws. Employment Division v. Smith, as already mentioned above, makes that claim more difficult. The Smith defendants consumed an illegal drug—peyote—as part of a Native American religious ceremony. They were dismissed from their jobs with a drug rehabilitation organization and lost a claim for unemployment compensation. They argued that their free exercise of religion was being infringed upon by Oregon.

The U.S. Supreme Court disagreed, maintaining that “neutral” and “generally applicable” regulations could not be avoided by religious liberty claims. The result was probably right: religious ceremonies do not give participants the right to use controlled substances. But, unfortunately, the court’s opinion needlessly swept away an almost three-decades-old case which had established a sensible legal formula for addressing those instances in which religious convictions clash with existing legislation. That formula, called the Sherbert test after Sherbert v. Verner (1963), protected religious believers when the court found that a law or regulation “substantially burdened” their “free exercise of religion,” and that the government had no “compelling interest” at stake, or that it overlooked a “less restrictive” way to further its interest. Congress vigorously sought to counter the Smith decision by passing the Religious Freedom Restoration Act (RFRA), which required the restoration of the Sherbert test. However, the RFRA was ruled as only applicable to federal laws and regulations and not to the states and therefore does not help the Kleins and Stutzman.

Given the clear facts of these cases, and the uncertainty that remains for religious providers, it is high time for the court to hear and decide them. For the most part, the reasoning of Smith should be discarded and Sherbert reinstated. The court should not avoid these fundamental questions of free speech and free exercise of religion any longer. Rather, it must courageously set the cases for oral argument and address these key issues head on.

This article was originally published by The Institute for Faith & Freedom.

On Friday night, Stephanie Wilkinson, owner of the Red Hen restaurant in Lexington, Virginia, kicked out Sarah Huckabee Sanders and seven members of her family because Sanders works for the president. “Progressives”–once again demonstrating their inability to think analogically–believe this ill-treatment of Sanders and her family is analogous to the Masterpiece Cakeshop case.

Once more for the obtuse among us, Jack Phillips didn’t refuse to serve homosexuals or kick them out of his bakery. He refused to create and sell a product for a type of event that violates his deeply held religious convictions. He served homosexuals regularly. The Red Hen restaurant refused to serve any product to a particular person and her family.

In early January, the Federal Emergency Management Agency (FEMA) overturned a longstanding policy that forbade churches from getting federal disaster relief money.

The rule change by the Trump Administration affected any houses of worship that were damaged on or after August 23, just before Hurricane Harvey devastated large areas of Texas and especially the Houston area.   It was a welcome relief also to congregations in Florida, Georgia and South Carolina in the path of Hurricane Irma, and to church communities in Puerto Rico that endured Hurricane Maria.

What might seem to be a neutral stance – that all damaged buildings in a disaster area could apply for aid financed by U.S. taxpayers – was denounced by atheist groups as a violation of the “separation of church and state” doctrine that has governed church-government relations since a series of Supreme Court rulings in the 1940s.

Beginning with Justice Hugo Black’s misapplication in Everson v. Board of Education (1947) of a reference in a letter from Thomas Jefferson to the Danbury, Connecticut Baptists promising a “wall of separation” between church and state, the court effectively abandoned neutrality for hostility.

Federal officials’ initial singling out of religious institutions for denial of disaster aid is just one of many consequences from that serious misreading of President Jefferson’s letter — and of the First Amendment.  As historian David Barton notes, liberals now use the First Amendment as a sword to attack religious freedom, while conservatives use it as a shield.

Wrong-headed rulings have fundamentally transformed many constitutional protections into their opposite, but nowhere has more damage been done than to the First Amendment, the first part of which reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

America’s Founders, and particularly Mr. Jefferson and James Madison, who championed religious liberty, would be appalled at how those very words have been twisted to advance discrimination against religious speech and practice.

But perhaps a turnaround is on the horizon.

The Trump Administration’s appointment of judges who respect the Constitution is one good sign. Another is the recent move by FEMA to undo bureaucratic discrimination.  Still another is a pending Supreme Court case.  On December 5, the justices heard arguments in what could produce the most important First Amendment ruling in decades.

A Christian baker in Colorado who had declined to bake a cake for a same-sex wedding invoked First Amendment protection from having to use his artistic ability to express something against his values.  The case is Masterpiece Cake Shop, Ltd. v. Colorado Civil Rights Commission.

Similar cases have arisen across the nation involving bakers, wedding planners, photographers and florists, all of whom say they have no problem with serving homosexual clients but draw the line at helping to facilitate weddings.  They say it is about the event, not the clients, a crucial distinction that the Court just might find persuasive.

Although all of these involve religious liberty, they could gain more support from liberals if they are based on freedom of expression.  After all, these are the same folks who think nude dancing is covered, so why not expressive cake baking?

In many arenas, the courts have invented new “rights” not envisioned by the Founders or ignored specific constitutional guarantees.  Without the Founders’ Biblically-based understanding of humans as flawed but redeemable, it’s easy to arrive at rulings, policies and laws that sound good on paper but are calamitous in the real world, producing a less responsible populace.

“If men will not be governed by the Ten Commandments,” G.K. Chesterton observed, “they shall be governed by the ten thousand commandments.”  The less that people embrace personal responsibility, the more we need bureaucrats, police, prosecutors and prisons.

Thanks to the genius of the Framers, there is a way back.  The Constitution itself is the most articulate voice in any legal matter. Since people are policy, the short answer to how we can restore America’s constitutional freedoms and ordered liberty is to elect and appoint leaders and judges who respect the original text and defeat those who do not.

Another remedy would be to impeach lawless judges, something clearly authorized by the Constitution, but almost never exercised. Maybe we need the president to declare some of these judges a disaster.

This article originally posted on Townhall.com.

A Colorado baker who declined to bake a cake for a same-gender “wedding” is fighting through an appeal to make sure his constitutionally protected freedoms – as well those of others – aren’t taken away.

In the summer of 2012, Charlie Craig and David Mullins filed a complaint with the Colorado Civil Rights Division after cake artist Jack Phillips of Masterpiece Cakeshop refused to endorse their marriage ceremony because of his faith. Last month the Colorado Administrative Law Court ruled Phillips must provide the cakes for homosexuals and prove that he has complied with the court order. Alliance Defending Freedom on Monday filed an appeal on Phillips’ behalf.

ADF-affiliated attorney Nicole Martin argues the government has “turn[ed] its guns” on her client for exercising his constitutional freedom.

“America was founded on the fundamental freedom of all citizens to live and work without fear of government punishment,” Martin offers. “Jack [Phillips] simply exercised the long-cherished freedom to not speak by declining to promote a false view of marriage through his creative work.

“It’s outrageous that the government would turn its guns on Jack and threaten him with a potential jail sentence unless he says and does what the government demands,” she adds.

In a statement to OneNewsNows, ADF attorney Kristen Waggoner says artists like Phillips “must be free to create work that expresses what he or she believes” without fear of the government compelling them to speak something contrary to their beliefs.

“Forcing Americans to promote ideas against their will undermines our constitutionally protected freedom of expression and our right to live free,” she says. “If the government can take away our First Amendment freedoms, there is nothing it can’t take away.”

 This article was orignially published at the OneNewsNow.com blog 

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.