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SCOTUS Takes First Step Away From Rationale of Notorious Case

Written by Frederick W. (Rick) Claybrook, Jr.

“Hard cases make bad law,” and national emergencies make hard cases. A notorious example of this maxim is the U.S. Supreme Court’s refusal to vindicate the claims of West Coast Americans who were put in “assignment” or “assembly centers” en masse during World War II solely because they were of Japanese descent and, thus, inherently had a greater potential for treason and espionage. The Court’s reasoning:

(a) it was a time of national emergency;

(b) judges had to defer to military judgments of danger;

(c) everybody experiences hardships during emergencies; and

(d) the relocation centers weren’t as bad as concentration camps.  Korematsu v. United States, 323 U.S. 214, 219-24 (1944).

The parallel is striking between the rationale of the Court’s decision in Korematsu and the current U.S. Supreme Court justices and lower-court judges who have voted to deny requests by churches and synagogues for relief from COVID-19 restrictions. Those judges reason:

(a) it is a time of a national emergency;

(b) judges have to defer to the judgments of politicians and scientists during this health crisis;

(c) other organizations are experiencing hardships due to shutdowns and are being regulated by restrictions just as great or greater; and

(d) religious adherents really don’t have it so bad, because they can use the internet and TV for their worship.

These parallels are foreboding, but it is encouraging to see a majority of the U.S. Supreme Court justices most recently in R.C. Diocese of Brooklyn v. Cuomo (No. 20A87, Nov. 25, 2020) granting relief to Catholic and Orthodox Jewish congregations from caps on worship imposed in New York. In particular, the majority lanced several underlying assumptions of those unsympathetic to the prior pleas of religious organizations:

  • First, constitutional freedoms, including the free exercise of religion, do not take a breather during times of national emergency; as Korematsu teaches by bad example, judges must be just as vigilant in protecting them during such times.
  • Second, it is not enough that the state can point to some organizations (e.g., movie houses) on which it has imposed even greater restrictions on meeting than religious houses when it has granted lesser restrictions to many other entities that have no specific constitutional protection (e.g., grocery stores, casinos, wine shops).
  • Third, religious worship cannot be minimized as either “unessential” or “individualistic.”

While courts may, and must, scrutinize rationales offered by politicians and scientists when they support restrictions of basic constitutional rights, judges may not define religion in their own image, but, rather, must accept the sincere beliefs of religious adherents that in-person, communal worship is essential to free exercise.

For this reason, the Illinois Family Institute has joined a group of other organizations, including the Ethics and Religious Liberty Commission of the Southern Baptist Convention and the National Association of Evangelicals, in urging the U.S. Supreme Court to hear an appeal in Elim Romanian Pentecostal Church v. Pritzker. In Elim, the Seventh Circuit, reciting the Korematsu-type reasoning outlined above, upheld a 10-person cap for worship services in a 700-seat auditorium that had no such cap when used for other purposes. (See the legal brief HERE.)

One of the judges granting relief in R.C. Diocese specifically cited Elim with disapproval, and for that reason and others it seems likely that the full Court will agree to hear the case. It is hoped that the full Court, in a precedential opinion, will repudiate the Korematsu line of reasoning and will affirm that religious organizations and their exercise of the faith have special, constitutional protection that recognizes that their faith is communal, not just individualistic; that no greater restrictions can be placed on worship services than on gatherings of any other type, even in a national emergency; and that any such restrictions must be the least restrictive possible in the circumstances.


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Evangelical Leader Testifies for CA Resolution Pressuring Pastors to Affirm LGBT identities

Written by Greg Burt

Azusa Pacific University Chaplain and the former head of the National Association of Evangelicals, Dr. Kevin Mannoia, shocked Christian leaders last week when he testified in favor of a California resolution directing pastors and counselors to affirm LGBT identities and behavior. Assembly Concurrent Resolution 99, authored by Assemblyman Evan Low (D-San Jose), calls on “counselors, pastors, religious workers, educators” and institutions with “great moral influence” to stop perpetuating the idea that something is wrong with being LGBT. ACR 99 also condemns attempts to change unwanted same-sex attraction or gender confusion as “unethical,” “harmful,” and leading to high LGBT suicide rates.

“Last year’s AB 2943 was a dangerous attack on Christian leaders, organizations, and counselors, directly targeting biblical views on sexual behavior and gender identity. That’s why it was so shocking to see a supposed leader like Kevin Mannoia supporting ACR 99, the follow-up resolution which condemns people of faith,” said California Family Council President Jonathan Keller. “California Christians love our neighbors who identify as LGBTQ. Sadly, it appears Assemblyman Low and other intolerant legislators will not stop until people of faith publicly celebrate the legislature’s preferred concept of sexual orientation and gender identity. Kevin Mannoia knows his fellow believers cannot endorse Mr. Low’s viewpoint and remain faithful to Christ. Tragically, Mannoia chose to allow himself to be used as a prop in support of ACR 99. He should know better.”

In a letter submitted to legislators, Mannoia wrote, “On behalf of some Christian pastors and church leaders, I write to express various levels of support for the Resolution ACR99 dealing with Conversion Therapy and LGBTQ persons.”

His letter also expressed his commitment to “ministry in the name of Jesus Christ rooted in the Bible as God’s word,” but he didn’t explain how Christians differ with Low on issues of sexuality. During Mannoia’s testimony in favor of ACR 99, before the judiciary committee, he reiterated his relationship with Jesus Christ as “my friend and guide” and his commitment to live “under the authority of God’s word.” But again Mannoia didn’t explain how he could believe this while supporting a resolution condemning Christian efforts to help those with unwanted same-sex attraction or gender confusion.

Mannoia testimony also commended Low for his willingness to dialog with pastors, and highlighted their shared “commitment to compassionate treatment of all peoples.” But Mannoia failed to explain how he could support a resolution that blames the “disproportionately high rates of suicide, attempted suicide, depression,” among the LGBT community on “religious groups” with biblical views on LGBT issues.

After the hearing, Low wasted no time touting Mannoia’s testimony as a gesture of full support for ACR 99 on social media. Using a staged shot of Low and Mannoia on a state Capitol balcony, the Assemblyman tweeted, “@Kmannoia, Former President of the National Association of Evangelicals & Chaplain at @azusapacific, speaks in support of #ACR99, to reaffirm our values of love and dignity while also acknowledging the harmful practice of #ConversionTherapy.”

Some Christian leaders have publically reacted to Mannoia’s actions.  Author, speaker and ordained pastoral counselor Joe Dallas expressed frustration with Mannoia’s endorsement on his Facebook page. “It’s very discouraging to hear that Dr. Kevin Manoina, Chaplain of Azusa Pacific University, has testified in support of ACR 99, a California assembly resolution which essentially tells California pastors what they should or should not say about homosexuality,” Dallas wrote. “We expect Christian leaders to be about the business of saving, not caving.”

Dean Broyles, an attorney with faith-based National Center for Law and Policy, called Mannoia’s actions heresy. “This unorthodox and aberrant behavior by one of our purported evangelical “leaders” highlights the dangers of the strategy of appeasing the enemies of the gospel and freedom in Christ,” Broyles wrote. “ To shamefully join forces with the enemies of Christ, to defame all change-allowing therapy, and to surrender to the idea that people can’t change is to surrender to the satanic lie that the Gospel has no actual transformative power.  For biblically orthodox evangelicals, that is heresy.”

Last year, Assemblyman Low pulled a bill he authored outlawing “conversion therapy,”  AB 2943, after widespread complaints from Christian leaders. The bill declared “advertising, offering to engage in, or engaging in sexual orientation change efforts with an individual” as illegal under state’s consumer fraud law. Sexual orientation change efforts were defined as “any practices that seek to change an individual’s sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.”

Just because Low withdrew his bill from consideration, doesn’t mean he has softened his views against “conversion therapy,” which includes Christian efforts to help people leave their LGBT identities and behavior to find their worth, identity, and happiness through a relationship with Jesus. Low has just changed his strategy as he explained in a recent interview with the Desert Sun.

“My intent is still to stamp out conversion therapy, but rather to do it in a more deliberate fashion, enlisting the support of evangelical and faith leaders,” he said. “There are those in the LGBTQ community that say we shouldn’t compromise, but I think this is the best approach to changing hearts and minds.”

Two pastors who testified against ACR 99 last week haven’t changed their minds. Elizabeth Woning, pastor and former lesbian took issue with the resolutions accusation that helping people change does harm. “Because of my past, I seek to guide Christians into understanding, honor, and compassion for LGBT people.  Nevertheless, I take exception to the belief that religion is central to the high rates of suicide among LGBT youth. For me, and many others, faith rescued us from suicide. The experience of discovering you are different than most other people is traumatic and troubling whether you have faith or not. Hopelessness causes suicide, ” Woning said. (read hearing transcript)

Joining Woning at the hearing was Ken Williams, pastor, father of four, and former homosexual. He co-leads a ministry called Equipped to Love with Woning to help those wanting to leave LGBT identities. “And there are many people that find respite in LGBT community,” Williams told the committee.  “There are also many that have tried that and it did not bring what they were looking for. We encounter those people all the time.”

Concluding his testimony, Williams spoke directly to the ACR 99 author. “Assemblyman Low I am asking you, you may have the votes to pass this, but I don’t believe that you have the right to… tell [people] what they need to believe.”

“I totally support your right and everyone you represent to experience whatever in life you would like to. I have no intention to take that away. I’m just asking that my rights and my people group would also be respected.”

ACR 99 passed the Assembly Judiciary Committee with a vote of 6-2, with one legislator not voting. The resolution will now go before the entire State Assembly sometime this week before making its way to the Senate for consideration.

Other articles in opposition:

A coalition of professional counselors, doctors, attorneys, and faith-based non-profits, have also signed onto a letter pointing out the resolutions inaccuracies, and its threats to basic liberty.


This article was originally published at CaliforniaFamily.org.




Evangelical Leaders’ Devilish Deal

In stunning semi-secretive decisions motivated by fear of religious persecution, the boards of two major evangelical organizations, the National Association of Evangelicals (NAE) and the Council for Christian Colleges and Universities (CCCU), have voted to pass motions that represent an unacceptable compromise with homosexuals and the science-denying “trans” cult. These two influential organizations passed motions that would ask the government to add “sexual orientation” and “gender identity” as protected classes in federal anti-discrimination law in exchange for religious liberty protections that many people know would merely be stepping stones yanked out from under people of faith eventually.

According to World Magazine, in October, the NAE board unanimously passed its motion, titled “Fairness for All” (first discussed in Christianity Today in 2016), which asks “Congress to consider federal legislation consistent with three principles,” the problematic one which says this:

No one should face violence, harassment, or unjust discrimination on the basis of sex, sexual orientation, or gender identity.

Of course, no one should face violence on the basis of any condition. So far, so good. But the rest of this principle is a theological, philosophical, political, and rhetorical mess. To illuminate the mess, here are a few questions for the Christian leaders who passed motions based on it:

1.) While this compromise may—for a short time—protect Christian colleges and universities, how might the religious liberty of ordinary Christians in, for example, wedding-related businesses, be affected if under federal law, homosexuality becomes a protected class?

2.) How are the terms “harassment” and “unjust discrimination” defined now? Could they be redefined or “expanded” later? Would a refusal to provide goods or services for the unholy occasion of homoerotic faux-marriage constitute unjust discrimination? Would opposition to co-ed restrooms and locker rooms constitute unjust discrimination? Would refusal to use incorrect pronouns when referring to those who masquerade as the opposite sex constitute harassment?

3.) Would those Christian leaders who voted for these motions have done so if, instead of the euphemisms “sexual orientation” and “gender identity,” in which are embedded false assumptions, the motions had used plain-speaking or even biblical terms? Let’s give the Fairness for All statement above a less-sanitized whirl:

No one should face unjust discrimination on the basis of their volitional choice to exchange natural sexual relations with persons of the opposite sex for unnatural relations with persons of their same sex, or for choosing to appear as the sex they are not.

How would that more accurately phrased statement have sat with the Christian leaders?

4.) Unlike other protected classes that are constituted by objective conditions that are in all cases immutable and carry no behavioral implications (e.g., sex and nation of origin), homosexuality, bisexuality, and opposite-sex impersonation are constituted by subjective and often fluid feelings and volitional acts with moral implications. Therefore, what other conditions similarly constituted will eventually be deemed protected classes? Why should homosexuality be included and polyamory or Genetic Sexual Attraction (aka incest) excluded?

To fully grasp the magnitude of the potential effect of these motions requires knowledge of the size of the organizations that passed them. The NAE “is an association of evangelical denominations, organizations, schools, churches and individuals. The association represents more than 45,000 local churches from nearly 40 different denominations and serves a constituency of millions.”

The CCCU “is a higher education association of more than 180 Christian institutions around the world,” including Bethel University, Calvin College, Colorado Christian University, Dallas Theological University, Franciscan University of Steubenville, Fuller Theological Seminary, Gordon College, Gordon-Conwell Theological Seminary, Houghton College, Houston Baptist University, Judson University, Messiah College, Moody Bible Institute, Regent University, Taylor University, The King’s College, Trinity International University, and Wheaton College.

To be clear, we must not assume any of these colleges and universities supported the motion passed by the CCCU board. For example, Dr. Benjamin Merkle, president of New Saint Andrews College, which is a CCCU member, explained that “I’ve registered my opposition to this move, as have several other CCCU presidents.” 

While the CCCU and NAE boards capitulate to the Left’s relentless demand to have disordered sexual desires and deviant sexual behavior deemed conditions worthy of special protections, 75 prominent religious leaders oppose capitulation to such demands.

A document titled “Preserve Freedom, Reject Coercion” signed by religious leaders including Ryan T. Anderson, Rosaria Butterfield, Charles Chaput, D.A. Carson, Jim Daly, Kevin DeYoung, Tony Evans, Anthony Esolen, Robert A. J. Gagnon, Robert P. George, Timothy George, Franklin Graham, Harry R. Jackson Jr., James Kushiner, John MacArthur, Eric Metaxas, Al Mohler, and John Stonestreet explains why SOGI laws are dangerous:

In recent years, there have been efforts to add sexual orientation and gender identity as protected classifications in the law—either legislatively or through executive action. These unnecessary proposals, often referred to as SOGI policies, threaten basic freedoms of religion, conscience, speech, and association; violate privacy rights; and expose citizens to significant legal and financial liability for practicing their beliefs in the public square. In recent years, we have seen in particular how these laws are used by the government in an attempt to compel citizens to sacrifice their deepest convictions on marriage and what it means to be male and female….

SOGI laws empower the government to use the force of law to silence or punish Americans who seek to exercise their God-given liberty to peacefully live and work consistent with their convictions. They also create special preference in law for categories based on morally significant choices that profoundly affect human relations and treat reasonable religious and philosophical beliefs as discriminatory. We therefore believe that proposed SOGI laws, including those narrowly crafted, threaten fundamental freedoms, and any ostensible protections for religious liberty appended to such laws are inherently inadequate and unstable.

SOGI laws in all these forms, at the federal, state, and local levels, should be rejected. We join together in signing this letter because of the serious threat that SOGI laws pose to fundamental freedoms guaranteed to every person.

In a recent interview, John Stonestreet used the recent firing of a Virginia high school French teacher for his refusal to use incorrect pronouns when referring to a “trans”-identifying student to illustrate the potential danger SOGI laws pose to Christians in the work place:

Every version of the Fairness for All proposals that I have seen would not help Peter Vlaming at all. In fact, it would put us on the wrong side of that…. Here you have a government employee working at a public school who serves the public interest that has already been defined by Fairness for All and SOGI legislation as including “sexual orientation” and “gender identity” as a category of human being, and that basically sets Peter Vlaming up for failure.

It’s astonishing that time and again the experts—people like Ryan Anderson, Anthony Esolen, Robert Gagnon, Robert George, and Doug Wilson—who have been writing presciently for years on cultural/political issues related to disordered sexuality are ignored by those who spend far less time thinking and writing about them.

Shirley Mullen who is president of Houghton College and a member of the NAE Board, wrote that “the most viable political strategy is for comprehensive religious freedom protections to be combined with explicit support for basic human rights for members of the LGBT community.” What are the “human rights” of which members of the “LGBT” community are currently deprived? Near as I can tell, they are deprived of no human or civil rights. (Anticipating an objection, I will add that no man has a human or civil right to access women’s private spaces—not even if he pretends to be a woman.)

On his American Conservative blog, Rod Dreher quotes a pseudonymous friend called “Smith” who has been working behind the scenes for years on the Fairness for All compromise with “LGBT” activists. Smith argues that this compromise is necessary because conservatives—who have lost the cultural battle on sexuality—cannot count on either statutory or judicial protections of their free exercise of religion. But Smith revealed something more troubling:

[T]here really is a question of justice within a pluralistic society that conservative Christians have to face. We may sincerely believe that homosexuality is morally wrong, but at what point does the common good require that we agree that gay people have a right to be wrong?

First, since when do conservatives deny that “gay people have a right to be wrong”?

Second, since Smith isn’t really arguing that the common good demands that conservatives agree that gay people have a right to be wrong, what specifically is it he believes the common good demands of conservatives? In a consistently dismissive tone, Smith suggests that conservatives demonstrate an absolute rigidity but fails to identify the specific ways conservatives are being intolerantly inflexible and in so doing harming the public good. He seems to be suggesting that standing firm against SOGI laws—which put at grave risk religious liberty and constitute complicity with both moral and scientific error—is the issue that threatens the common good and on which we must capitulate compromise.

Smith continues:

If pluralism is about accommodating deep difference—if conservative Evangelicals are going to ask for accommodation of difference, then they can’t turn around and say in every single case when they are asked to accommodate sexual minorities, ‘No, we will fight to the death.’ That’s not pluralism if all you’re doing is protecting your own rights and saying error has no rights when it comes to you. Pluralism has to be seen by others who disagree with you as fair.

Yes, pluralism is about accommodating differences, but there are differences on which accommodation is impermissible for Christians. I doubt Smith would have made such an ambiguous claim about Christians who rigidly refused to compromise on the nature and intrinsic worth of enslaved blacks or who will not accommodate Planned Parenthood’s views of humans in the womb. The nature, meaning, and value of biological sex, marriage, and children’s rights are other issues on which it is impermissible for Christians to compromise, even if that inflexibility results in persecution.

Listen to this article read by Laurie:

https://staging.illinoisfamily.org/wp-content/uploads/2018/12/SOGI_Compromise1.mp3


End-of-Year Challenge

As you may know, thanks to amazingly generous Illinois Family Institute partners, we have an end-of-year matching challenge of $100,000 to help support our ongoing work to educate and activate Illinois’ Christian community.

Please consider helping us reach this goal!  Your tax-deductible contribution will help us stand strong in 2019!  To make a credit card donation over the phone, please call the IFI office at (708) 781-9328.  You can also send a gift to:

Illinois Family Institute
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