It has been an eventful term for the U.S. Supreme Court, which has provided many closely decided cases and ended with the retirement of Justice Anthony Kennedy. For those interested in free speech and religious liberty, there have been plenty of decisions to keep track of and digest. Here is what you need to know.

Masterpiece Cakeshop v. Colorado Civil Rights Commission

The story is well-known. Jack Phillips, a Christian cake shop owner from Colorado, refused to create a cake for the same-sex “wedding” of two men. They filed a complaint with the Colorado Civil Rights Commission, which held that Mr. Phillips violated the state’s public accommodation laws. Much of the litigation centered around whether creating a wedding cake fell under the free expression protections of the First Amendment, but the Court punted on this argument, leaving it for a future case. Instead, the Court ruled for Mr. Phillips on two separate grounds.

First, the Commission did not employ religiously neutral standards when deciding Mr. Phillips case, and instead showed unwarranted hostility towards his Christian faith. One official on the Commission even referred to Mr. Phillips’ faith as “one of the most despicable pieces of rhetoric that people can use.”

Second, the Court found that the Commission had used different standards for different bakery owners. An individual named Bill Jack (no relation to Jack Phillips) went to several bakeries asking them to create a cake with a message critical of homosexuality derived from the Bible and was—unsurprisingly—refused service. When complaints were filed, the Commission found that bakeries can refuse to make a cake with a message they deem to be derogatory.

The popular narrative is that this case was decided on narrow grounds and sets little precedent for future cases. However, Masterpiece has already proven to be more influential than that narrative suggests. Anti-religious animus by government officials is common in religious liberty cases, and there’s no better example than Arlene’s Flowers.

Arlene’s Flowers Inc. v. Washington

Similar to Jack Phillips, Barronelle Stutzman, a Washington florist, refused to offer her services for a same-sex wedding. However, in this case, when she refused to create a floral arrangement for a same-sex couple, it was not the couple who took action. Rather, the state’s attorney general, on his own initiative, filed a complaint against Ms. Stutzman, showing unusual hostility towards her religious beliefs. This led to the Washington Supreme Court holding that Ms. Stutzman engaged in unlawful discrimination. However, the U.S. Supreme Court vacated the decision and remanded it back to the state supreme court to consider the decision in light of Masterpiece.

National Institute of Family and Life Advocates v. Becerra

This case had less headline appeal than Masterpiece but will likely end up being the more influential in First Amendment jurisprudence. The Court found that California’s Reproductive FACT Act, which forced pro-life pregnancy centers to post disclosures about the state’s abortion services, to be a violation of the pregnancy centers’ free speech rights. The decision was important on several fronts. Most notably, the Court refused to create a lesser standard of First Amendment protection for “professional speech.” The argument was that the state should be given greater power to prevent and compel the speech of professionals (like doctors, lawyers, and mental health counselors) than the usual First Amendment protections would allow. But Justice Clarence Thomas, writing for the majority, criticized such “professional speech” doctrine as being a tool to suppress unpopular ideas or information. The decision may open possible litigation on the issue of so-called reparative therapy bans, which ban professional counselors from talking with minors about their unwanted same-sex sexual attraction.

In his concurrence, Justice Kennedy came down particularly hard on California for its intolerance of the pro-life viewpoint:

The California Legislature included in its official history the congratulatory statement that the Act was part of California’s legacy of “forward thinking.” But it is not forward thinking to force individuals to “be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable.” It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come.

Trump v. Hawaii

This case stems from then-presidential candidate Donald Trump’s promise of a “Muslim ban” during the 2016 presidential campaign. Initially, President Trump signed an order that banned entry in the U.S. from seven predominantly Muslim countries regardless of visa status. However, after getting blocked by the lower courts because of its disproportionate effect on Muslims and because of several anti-Muslim statements from the Trump administration, the president issued a moderated version of the order. This time, the order did not outright ban travel from the seven countries but it did add extra scrutiny before people were allowed to enter the U.S. The final order was also backed by evidence that the nations with restricted access posed legitimate national security risks and were not just chosen based on anti-Muslim animus.

Chief Justice John Roberts pointed out that although five of the seven countries with restricted access were predominantly Muslim, the countries made up only 8% of the world’s Muslim population and were previously designated as posing national security risks. The decision continues the longstanding judicial deference to the Executive Branch on decisions affecting national security. The High Court also renounced the infamous Korematsu v. United States decision, which allowed the executive branch to establish internment camps for Japanese Americans during World War II.

Janus v. AFSCME

This case is not just of interest for its First Amendment jurisprudence but also its close connection to Illinois politics. Illinois was one of the 22 states that allowed unions to charge nonmembers fees for the costs of collective bargaining with employers. Mark Janus, a government social worker from Springfield, filed suit against Illinois arguing that the government requiring him to pay a private organization like a union violated his First Amendment right to free speech and association. By subsidizing the union’s administrative costs, Janus argued that he was being forced by the government to support the union’s political activism. The U.S. Supreme Court agreed in a 5-4 decision. Justice Samuel Alito wrote that the law “violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern” like tax increases or collective bargaining rights. One important distinction is that this ruling only applies to public sector unions, not to any in the private sector.

Rowan County v. Lund

One notable case that did not get the U.S. Supreme Court review comes from Rowan County, North Carolina, where the Fourth Circuit Court of Appeal barred the opening prayer at county board meetings. The prayer was led by the elected commissioners, who took turns leading at each meeting. Three residents were offended by the prayers and sued the county. The Fourth Circuit Court of Appeals struck down the prayer policy as violating the Establishment Clause despite clear precedent from the U.S. Supreme Court allowing public prayers in Town of Greece v. Galloway. Unfortunately, the High Court denied cert (i.e., declined to review the lower court decision) on the county’s appeal, and the Fourth Circuit’s decision stands.

IFI depends on the support of Christians like you. Donate now

-and, please-

Last week, President Donald Trump announced that his administration will exempt employers who have religious or moral objections to providing contraceptives, including drugs that can cause abortions. This is an important action to restore religious liberties that were stripped away in the Obamacare HHS mandate.

The Little Sisters of the Poor, Hobby Lobby and Conestoga Wood Specialties brought the Obamacare violation of religious freedom to the national spotlight when they fought the mandate at the U.S. Supreme Court. The sincere religiously informed consciences of the owners of Conestoga Wood and Hobby Lobby played heavily into the opinion of Justice Samuel Alito, which upheld religious liberty and freedom of conscience.

“Our legal team went to court in 2012 to fight this unjust mandate on behalf of the Hahns, a Mennonite family and owners of Conestoga Wood Specialties,” said Michael Geer, President of the Pennsylvania Family Institute. “Thankfully, in 2014, the Supreme Court victory granted relief for the Hahns and the Green family (owners of Hobby Lobby) in a landmark ruling. We’re glad now to see that other religious employers and ministries will be protected as well, thanks to the President’s actions.”

“President Trump deserves to be thanked for upholding his promise on religious freedom,” said Paul Weber, President of Focus on the Family’s Family Policy Alliance. “And we’re grateful for the team of attorneys brought together by the Pennsylvania Family Institute that paved the way to this victory through their outstanding work that led to the Supreme Court win.”

Randall Wenger, Chief Counsel for the Independence Law Center, was interviewed by a local Fox affiliate outside of Conestoga Wood to discuss this policy improvement. “The first liberty in our Bill of Rights is the free exercise of religion, and what this mandate is doing is protecting the rights of conscience not only for religious people but for non religious people.”

In response to Leftist hysteria over this minor change, National Review’s David French explains that “Totally ignored by these borderline-apocalyptic assessments of what was, in fact, a modest rollback is the reality that birth control has only very recently come to be viewed as an entitlement.”

IFI joins other pro-family groups across the nation in applauding this important action by President Trump. Moreover, we stand in full agreement with his statement on the issue: “No American should be forced to choose between the dictates of the federal government and the tenets of their faith.”

Oct. 27th – IFI Annual Banquet with Lt. Col. Allen West

Join us in Hoffman Estates for IFI’s annual banquet on Friday, Oct. 27th.  This year we are celebrating our 25th Anniversary with American hero Lt. Col. Allen West as our keynote speaker. Space is limited, don’t miss this special event. Click HERE for more information.

Call (708) 781-9328 for more information.

At a forum at the College of William & Mary on Sept. 27, the ACLU got a sample of what conservatives have been experiencing on campuses for years.

As Claire Gastanaga, executive director of the ACLU of Virginia, began speaking to a small audience, a group of demonstrators marched in with a large banner that said, “Blood on Your Hands.” They lined up in front of the stage, holding placards.

Apparently clueless about what was about to transpire, Ms. Gastaaga said, “Good. I like this. Good.”

She went on to say that she was going to inform the students about their right of protest, “which this illustrates very well.”

No, it didn’t. The students shut her down. They began loudly chanting inane slogans, including “ACLU, you protect Hitler, too!” and “ACLU, free speech for who?” and “The oppressed are not impressed!” The ACLU is also apparently guilty of perpetuating a system of “white supremacy” for not defending jackboot tactics like those seen at Berkeley and Middlebury College against conservative speakers.

What was supposed to be a #blacklivesmatter event was populated almost entirely by white students, presumably many from the W&M’s tony Williamsburg campus. Oppressed, they are not, unless you count the unbearable minutes when they can’t find a parking space for their Audis or Beamers.

For a taste of what Ms. Gastanaga endured for more than an hour and a half, you can see a brief video by an American Civil Rights Union (ACRU) team that filmed the event. It’s strangely satisfying. (See below)

Since the French Revolution, when it was famously observed that “revolutions devour their own,” the progressive left always seems surprised when the forces they have unleashed turn on them. Think back to the 1968 Democratic National Convention in Chicago, when old-line liberals like Vice President Hubert Humphrey were stunned by the street violence of the extreme left.

More recently, U.S. House Minority Leader Nancy Pelosi had that deer-in-the-headlights look when the antifa crowd, like the Occupy movement a few years ago, turned utterly violent. To her credit, she finally denounced their tactics.

In a more serious venue than campus playpens, the ACLU had another sobering experience this past week. During arguments on Tuesday in Gill v. Whitford, several U.S. Supreme Court justices indicated a reluctance to plunge into what Felix Frankfurter in 1946 called the “political thicket,” which is where the ACLU wants them to go. It’s part of the ACLU’s vision to do away with the state and local powers that still hamstring the federal government’s relentless growth.

A split federal panel had invalidated Wisconsin’s redistricting plan for its state legislature, calling it an unconstitutional gerrymander because the Republican-controlled legislature had drawn districts favoring the Republican Party.

The ACLU filed an amicus brief in the case, arguing essentially that legislatures, being composed of politicians, should not have the authority to create voting districts. It’s time to change the rules of the game since the vast majority of state legislatures are now controlled by Republicans.

The ACLU had no such problem when Maryland’s Democratic legislators in 2011 drew a bizarre district that meandered from the conservative Western part of the state to liberal Montgomery County. This was intended to unseat outspoken conservative Republican Rep. Roscoe Bartlett. It worked. Mr. Bartlett had won the 6th district by 28 points in 2010, but lost his seat by 21 points to Democrat John Delaney in 2012.

In progressive California, the politically-drawn district maps are so squiggly that they resemble Rorschach blots. But any court-ordered “solution” for redistricting would be an ongoing nightmare, with unelected, unaccountable bureaucrats in control.

Who would appoint the “non-political” panels? How would they determine exactly how many voters of either party or no party should be included in each district? Would distinct communities be split for numerical balancing? Would they do this after every election? How much politics is too much politics? Apart from the difficulties, the whole thing would be unconstitutional.

On August 4, the American Civil Rights Union submitted an amicus brief in Gill, noting that the Constitution gives Congress the power to determine the “Times, Places, or Manner” of holding federal elections but leaves to the states the power to determine who votes. Therefore, establishing districts comprising voters is a state function, not a federal one.

Since the 1960s, the courts have variously waded into the issue, solidifying the principle that there is no place for racial bias in districting, but avoiding a sweeping “solution” to political gerrymandering.

On May 22, in a dissent in Cooper v. Harris, Justice Samuel Alito alluded to Frankfurter’s famous statement and warned against making federal courts “weapons of political warfare,” which would “invite the losers in the redistricting process to seek to obtain in court what they could not achieve in the political arena.”

Speaking of losers, as the ACLU ramps up its campaign against voter ID laws, traditional districting methods and other obstacles to its goal of fundamentally transforming America, its unruly children will be out in the streets in black masks, trying to intimidate anyone who disagrees with them.

When the ACLU itself comes under attack for not joining the mob, it’s a sign that the revolution has begun nibbling on its own.

Written by Ryan T. Anderson

Now that the U.S. Supreme Court has ruled in favor of gay marriage, a question arises: Should we protect the rights of Orthodox Jews, Roman Catholics, Evangelical Christians, Latter-Day Saints and Muslims who believe that marriage is a union of husband and wife? Two bills recently introduced in Congress show diverging answers. One seeks to promote tolerance and peaceful coexistence; the other adds fuel to a culture war by treating that traditional belief as racism.

Last week, U.S. Rep. David Cicilline, D-R.I., and U.S. Sens. Jeff Merkley, D-Ore.; Tammy Baldwin, D-Wis.; and Cory Booker, D-N.J., introduced what they call the “Equality Act.” The legislation would add “sexual orientation and gender identity” to more or less every federal law that protects against racism.

Do we really need the federal government to coerce every last baker, florist and adoption agency to violate their beliefs about marriage? The market is already sorting these things out. The Human Rights Campaign reports, for example, that 88 percent of Fortune 500 companies voluntarily do not consider sexual orientation in employment decisions.

The bill also requires that biological males who identify as women be able to use women’s bathrooms and locker rooms. Shouldn’t these decisions be made closer to the ground? By parents, teachers, principals—not federal bureaucrats? Most outrageously, the bill specifies that the Religious Freedom Restoration Act cannot be used to defend people against its requirements. Rather, it treats decent people of faith as irrational bigots, simply for believing that we’re created male and female, and that male and female are created for each other in marriage.

Whether you agree with this belief or not, it’s easy to see that the “Equality Act” is bad public policy. It fuels the culture war rather than seeking peaceful coexistence.

As I argue in my new book, “Truth Overruled: The Future of Marriage and Religious Freedom,” there is an alternative.

The First Amendment Defense Act would prevent the federal government from discriminating against citizens or organizations because they believe that marriage is the union of husband and wife. It would ensure that no federal agency will ever revoke non-profit tax-exempt status or deny grants, contracts, accreditation or licenses to individuals or institutions for following their belief that marriage is a union between a man and a woman.

This bill simply continues the practice of the United States for all of our history. It takes nothing away from anyone. It changes nothing. It protects pluralism amid disagreement.

And it is necessary. In the oral arguments before the U.S. Supreme Court earlier this year, Justice Samuel Alito asked Solicitor General Donald Verrilli whether a school might lose its tax-exempt status because of its conviction that marriage is the union of husband and wife. Verrilli’s response was chilling: “It’s certainly going to be an issue. I—I don’t deny that. I don’t deny that, Justice Alito. It is—it is going to be an issue.”

This shouldn’t be an issue. Schools should be eligible for non-profit tax status, government contracts, student loans and other forms of support as long as they meet the relevant educational criteria.

As I explain in Truth Overruled, government policy should not trample on the consciences of citizens who dissent from official policies on sexuality. Government discrimination against social service providers who believe marriage is a male-female relationship undermines our nation’s commitment to reasonable pluralism and diversity. The First Amendment Defense Act would prevent this.

Predictably, the left has attacked this bill. The Sunday after the U.S. Supreme Court’s ruling, Mark Oppenheimer wrote a column for Time magazine headlined “Now’s the Time to End Tax Exemptions for Religious Institutions.” Oppenheimer, the New York Times’ religion columnist, argued: “Rather than try to rescue tax-exempt status for organizations that dissent from settled public policy on matters of race or sexuality, we need to take a more radical step. It’s time to abolish, or greatly diminish, their tax-exempt statuses.”

But it has long been understood that the power to tax is the power to destroy. Americans who believe that marriage is a union of husband and wife should be free to live and work in accord with their convictions.

When he “evolved” on the issue in 2012, President Barack Obama insisted that there were reasonable people of goodwill on both sides of the marriage debate. Supporters of marriage as the union of a man and a woman “are not coming at it from a mean-spirited perspective,” he insisted. “They’re coming at it because they care about families.”

He added that “a bunch of ’em are friends of mine … you know, people who I deeply respect.” But as the stories of bakers, florists, photographers and adoption agencies show, there’s good reason to worry about the government’s respect for the beliefs of all Americans.

America is in a time of transition. The court has redefined marriage, and beliefs about human sexuality are changing. Will the right to dissent be protected? Will our right to speak and act in accord with what Americans have always believed about marriage—that it’s a union of husband and wife—be tolerated?

Most Americans say yes, they want ours to be a tolerant, pluralistic nation. They want peaceful coexistence. We must work together to protect these cherished American values, despite the ideologues and activists who would sow disharmony by having the government coerce those with whom they disagree.

The First Amendment Defense Act is one way of achieving civil peace even amid disagreement. To protect pluralism and the rights of all Americans, liberals should forswear coercion and embrace tolerance.

Originally published in National Review Online.

One day after the [Obergerfell v. Hodges] ruling, I received a press release from Pro-Polygamy.com  one of the largest Polygamy groups east of the Mississippi, located in Maine.  Their slogan is “Polygamy: The Next Civil Rights Battle.”   Last Sunday they followed up with another release of an editorial.   Both items complain, “all that Kennedy declared about the importance of marriage to those who choose same sex marriage (SSM) equally applies to others who choose unrelated consenting adult polygamy (UCAP).”

Mark Henkle of Pro-Polygamy states, “for UCAPs, only one obstacle to freedom remains to be overcome – the outstanding bigotry of big government still unconstitutionally mandating an arbitrary determinant of “two-person unions” for the definition of marriage. After that, polygamy will be included.”

Numerous commentators, and even Justices John Roberts and Samuel Alito, have also noted that the SCOTUS ruling contains no logical basis for prohibiting polygamy or practically any other limit on marriage. This supports the comment in my media statement that, “if marriage can mean anything, it ultimately means nothing. When marriage loses its meaning, society and children suffer.  When children suffer, government expands. When government expands, liberty contracts.”

By the way, homosexuals, bisexuals, polygamists, the polyamorous, are not the only ones looking for societal approval based upon sexual orientation.  This article on the blog of former U.S. Congressman Allen West referencing a more detailed and disturbing article from the Northern Colorado Gazette says there is a quietly growing group of “experts” claiming that pedophilia is a sexual orientation worthy of special rights and recognition.

One such group is the Institute for the Advanced Study of Human Sexuality in San Francisco. The IASHS lists, on its website, a list of “basic sexual rights” that includes “the right to engage in sexual acts or activities of any kind whatsoever, providing they do not involve nonconsensual acts, violence, constraint, coercion or fraud.” Another right is to, “be free of persecution, condemnation, discrimination, or societal intervention in private sexual behavior” and “the freedom of any sexual thought, fantasy or desire.” The organization also says that no one should be “disadvantaged because of age.”

For all practical purposes, the tax-funded sex education/abortion giant, Planned Parenthood, has made similar statements in defense of their school programs for years.

Follow IFI on Twitter: @ProFamilyIFI

“Like” us on Facebook!

Written by Frederick M. Hess

Like fascists, Communists, and boy-band producers, the American Left has always believed it could fine-tune human nature if it could only “get ’em while they’re young.” That’s why the Left works so hard to impose its will on schools and universities. As John Dewey, America’s high priest of educational progressivism, explained in 1897, the student must “emerge from his original narrowness” in order “to conceive of himself” as a cog in the larger social order.

Last week’s gay-marriage ruling will yield a new wave of liberal efforts to ensure that schools do their part to combat wrong-headed “narrowness.” Justice Anthony Kennedy’s sweeping 5–4 decision in Obergefell v. Hodges opened by declaring, “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” Kennedy took pains to opine that marriage “draws meaning from related rights of childrearing, procreation, and education.” In finding that the Fourteenth Amendment secures the right to “define and express [one’s] identity,” the Obergefell majority has issued a radical marker. (If gay marriage had been established by democratic process, things might have played out in a more measured manner.)

Justice Samuel Alito predicted, “Today’s decision . . . will be used to vilify Americans who are unwilling to assent to the new orthodoxy,” and “they will risk being labeled as bigots and treated as such by governments, employers, and schools.” Alito is almost assuredly right, and that poses serious questions for schools and colleges.

At the collegiate level, the implications are pretty clear — especially for religious institutions. Christian colleges are going to find their nonprofit tax status under assault unless they agree to embrace gay marriage. (The relevant precedent is the 1983 Supreme Court ruling that enabled the IRS to strip Bob Jones University’s tax-exempt status because of the school’s ban on interracial dating.) Policies regarding “family housing,” employee benefits, use of chapels for marriages — all will come under fire. And then we’ll start getting to questions of readings, campus programs, and curriculum, where familiar First Amendment rights will clash with the new Fourteenth Amendment right to “define and express [one’s] identity.” For religious colleges stripped of their nonprofit status, many — if not most — will be compelled to close their doors. (It’s safe to say that plenty of progressives would regard this development as a bonus).

More broadly, the Chronicle of Higher Education reports that gay-rights advocates believe the decision will “help them move on to other issues, such as access to higher education and mental-health concerns for young LGBTQ students of color and transgender students of color.” Shane Windmeyer, executive director of Campus Pride, said, “I’m hopeful we can now say we won one game; now the next game is looking at trans rights, how we treat queer people of color, especially first-generation LGBTQ students of color.”

LBGT crusaders are also pushing for big changes in K–12 public schooling. Education Week’s legal-affairs reporter noted that the decisions “holds various implications for the nation’s schools, including in the areas of employee benefits, parental rights of access, and the effect on school atmosphere for gay youths.” I can’t say with certainty what’s coming. But here are four things to watch for. Expect demands for schools to amp up their efforts to feature “nontraditional” families in all kinds of contexts.

Educators have long celebrated “diversity.” Now they can expect heightened pressure to do more, and to ensure that nothing stymies a student’s “identity.” When a tiny handful of social crusaders complain that this play feels too stereotypically masculine or that those stories don’t include enough LGBT students, they’re going to pull Obergefell out of their pocket. Things will prove particularly contentious in history, where a dearth of gay marriages and nontraditional families will invite creative efforts to “balance” things out.

School leaders have judged that American flag T-shirts are unacceptably provocative when worn on Cinco de Mayo. Clothing and artifacts perceived as hostile to another’s “defined and expressed” identity, such as badges of religiosity, may well come under the closest of scrutiny. After all, the Court has long held that freedom of speech and religion may be circumscribed in educational settings. Now, protestations on behalf of free expression and free speech can be answered with Fourteenth Amendment claims.

Expect demands for schools to amp up their efforts to feature “nontraditional” families in all kinds of contexts. Schools may be scrutinized for the mixture of families that wind up in posters, brochures, student art displays, instructional materials, and the rest. Failure to include a satisfactory percentage of gay parents (or other nontraditional family groupings) may be judged evidence of a hostile environment.

And casual language will have to change. Teachers may instinctively ask a volunteer father about his wife or mention mothers and fathers; when they do, it won’t be long until a sensitive parent decides that this kind of “heteronormativity” is an unconstitutional violation of their identity. Pity the poor assistant principal who knows two parents are attending a meeting and mistakenly asks the woman sitting in the office if her “husband” is running late — rather than asking about her “spouse.” In the wrong circumstances, that could be a career-ender. Minimizing such mistakes means schools will soon be at pains to replace the terminology of “moms and dads” with that of genderless dyads.

America’s principals, superintendents, and school boards generally don’t have a lot of stomach for waging these fights. Even those who hate being bullied don’t want the exhausting slog or public criticism. Far more likely is that they’ll pack it in, lending Justice Kennedy’s rhetorical flourishes a practical import even he may not have imagined.

— Frederick M. Hess is director of education-policy studies at the American Enterprise Institute.  This article was originally posted at National Review Online.

Written by Samuel Smith

U.S. Senator Mike Lee, R-Utah, addressed concerns that faith-based schools and institutions would be at risk of losing their tax-exempt status for upholding their biblical belief of traditional marriage if the U.S. Supreme Court delivers a pro-gay marriage ruling this month.

At a Wednesday press conference held in the senator’s Capitol Hill office, Lee, along with prominent members of the evangelical higher education community, voiced concern over comments made in the U.S. Supreme Court’s oral argument in April by the Obama administration’s lead attorney, Solicitor General Donald Verrilli.

Lee explained that Verrilli, who testified as a friend of the court on April 28 in favor of making same-sex marriage a national right, was asked by Justice Samuel Alito whether or not making same-sex marriage a constitutional right would allow for the IRS to revoke the tax-exempt statuses of faith-based schools and universities that choose not to recognize same-sex marriage because of their biblical convictions.

“The response uttered by Solicitor General Verrilli was troubling to say the very least. He responded by saying ‘I don’t deny that. I don’t deny that, Justice Alito. It is going to be an issue,'” Lee explained. “He reiterated this response basically four times that this is going to be an issue that he doesn’t deny that this is a very real possibility, if not a probability.”

“Tax-exempt status for religious institutions has historically been granted because we want to keep the government out of the business of interfering with religion,” the senator continued. “It really ought not be in the business of disrupting the business of a church or religious institution.”

Lee told reporters that he plans to introduce a bill called the Government Nondiscrimination Act, which would essentially prevent the federal government from taking action against an institution based on the institution’s belief that marriage should only be a union of one man and one woman.

Lee did not indicate when he plans to introduce the legislation, but he could introduce the bill after the U.S. Supreme Court reaches a decision on constitutional same-sex marriage sometime in June.

“When the government itself is retaliating against someone based on their religious beliefs, that is a problem and that is what we are trying to protect here,” Lee said. ” We expect that in part because the Obama administration’s chief advocate, before the U.S. Supreme Court, acknowledged that it is going to be an issue, that is that you are going to have some religious institutions losing certain status, perhaps tax-exempt status, perhaps some other type of status and that’s why we feel like we need this law. We need something in the United States code that protects Americans against that type of discrimination by government.”

Also speaking at the press conference was Dr. Keith Wiebe, president of the American Association of Christian Schools, who said that if same-sex marriage became constitutional and religiously-affiliated universities began losing their tax-exempt statuses, it would cause them great financial ramifications and even cause those institutions to close down.

“Absolutely, [some religious schools] would have to close down [if they lost their tax-exempt statuses]. The financial ramifications are pretty significant, in terms of them being able to operate if everything they are doing becomes taxable,” Wiebe asserted. “They are receiving hundreds of thousands of dollars a year in tuition. Our schools, they are private schools, they are Christian schools, they receive money for tuition, that suddenly becomes taxable.”

Wiebe also said that the accreditation of religious institutions and the certification of their teachers would likely be rejected should gay marriage become constitutional and Lee’s legislation is not enacted to protect them.

Dr. Samuel Oliver, president of the evangelical Union University in Tennessee, added that there are over 29,000 faith-based preschools, elementary schools and high schools along with 1,700 faith-based colleges in the United States. He explained that if some of those schools lost their tax-exempt statuses, it would create a “great burden on the taxpayers” and would be “catastrophic for the common good.”

“If say even 100 institutions the size of Union [University] closed, that would be 400,000 students that would be put in the system,” Oliver said. “The state of Tennessee, where we are, funds higher education and putting those students into those systems would cause great burden on the taxpayers, not to mention the loss of the common good that comes from the institutions themselves.”

“If faith-based education ceases to exist, the state educational system will not be able to accommodate the number of students who are dumped into the pool,” he added. “To force students, by default, to attend secular schools is a form of mind control.”

Expanding the issue outside of the realm of educational institutions, Dr. Jerry Johnson, president of National Religious Broadcasters, wondered whether tax-exempt ministries would be at risk of losing their status. He also pondered whether the Federal Communications Commission would choose to not license or revoke licenses of broadcasters who uphold a biblical belief of traditional marriage.

“For radio stations, my interest, the [FCC], those broadcast licenses, are they going to be at risk if they don’t honor that new constitutional right?” Johnson asked. “The solicitor general, as the senator pointed out, cleared up any confusion about that in the mind of the administration. I want to quote even more precisely, he said it is ‘certainly’ going to be an issue. He used the word ‘certainly.’ This is not maybe. ‘Certainly’ for this administration, this is an issue.”

This article was originally posted at the Christian Post website.

While reams have already been penned examining the implications of last week’s Hobby Lobby decision, most of what’s been written, particularly in the liberal press, has missed the point entirely.

Though I’m mildly pleased that the Supreme Court of the United States (SCOTUS) is not quite ready to take gasoline to both the First Amendment and the Religious Freedom Restoration Act (RFRA), signed into law by Bill Clinton, a liberal, in 1993, I am alarmed, and so too should you be, that only 56 percent of our sitting SCOTUS justices are still willing to give the U.S. Constitution a modicum of the respect, recognition and compliance it not only deserves, but requires.

America was dragged before Emperor Obama’s counter-constitutional, secular-”progressive” firing squad and remarkably, miraculously, they missed.

But it’s a false sense of security. As we Christians and conservatives celebrate with chest bumps and high fives, we remain bound, gagged and blindfolded while these “progressive” fascists reload. The next volley of cultural Marxist lead is but moments away.

Tick, tick goes the judicial-supremacy time bomb.

I don’t mean to throw a wet blanket on the party. There is much to celebrate, and this ruling’s broader implications are profound indeed. The opinion simply doesn’t go far enough.

Yes, Hobby Lobby was, in part, about the non-negotiable fact that government cannot compel religious business owners of private, closely held corporations to be complicit in abortion homicide. It was also, tangentially, about the self-evident reality that women are not, never have been and never will be, entitled to expect Christian men, who are not their husbands, to pay for their birth control and abortion drugs so that they can have consequence-free sex or otherwise murder their pre-born babies.

Hobby Lobby was chiefly about one of our very first freedoms: religious liberty.

How is it that this was a 5-4 decision? Even an elementary understanding of American history and a cursory analysis of both our U.S. Constitution and RFRA establish that this opinion should have been roundly unanimous. The majority decision merely recognized, in the weakest of terms, Americans’ God-given, inalienable, constitutionally guaranteed right to religious free exercise (yes, even for those pesky Christian business owners).

Still, while lovers of freedom rejoice across the nation, the reality is that there are at least four domestic “enemies within” currently sitting on the highest bench in the land, not the least of whom is Ruth Bader Ginsburg.

Ginsburg tells you everything you need to know about Ginsburg: “I would not look to the U.S. Constitution, if I were drafting a Constitution in the year 2012,” she disgracefully vomited a couple years back in an interview about the fledgling Egyptian government. “I might look at the Constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights. … It really is, I think, a great piece of work that was done. Much more recent than the U.S. Constitution.”

Ginsburg hates the America of our founding. She hates our constitution and, like all true “progressives,” endeavors to circumvent it at every turn.

And that’s the prism through which we must interpret the parade of hyperbolic horribles in her scathing Hobby Lobby dissent. She excoriated the constitutionalist majority for its ruling, calling it a “radical” decision “of startling breadth.” Still, when you cut through the alarmist tripe, she actually gets to the meat of the matter.

“In a decision of startling breadth,” she wrote, “the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”

Uh, yeah, and?

Here’s what Ginsburg actually meant: “I hate the First Amendment. It’s broad, inalienable, and I want to alienate it. Oh, and dead babies. Lots of dead babies.”

Ginsburg is right. This decision was “of startling breadth,” but only if you happen to be a secular elitist hell-bent on marginalizing Christians and wielding unchecked power over your fellow Americans.

Indeed, the secularist left’s utter meltdown over having but a small measure of control over others wrested away is highly instructive. Still, why would we expect lefties to understand the First Amendment when these Rhodes Scholars are calling a decision penned by Justice Samuel Alito “#ScaliaLaw” on Twitter?

In his concurring opinion, Justice Anthony Kennedy, who more often than not gets it wrong, got one right:

In our constitutional tradition, freedom means that all persons have the right to believe or strive to believe in a divine creator and a divine law. For those who choose this course, free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts. Free exercise in this sense implicates more than just freedom of belief. … It means, too, the right to express those beliefs and to establish one’s religious (or non-religious) self-definition in the political, civic, and economic life of our larger community.

Wow. And now for the pink elephant in the room: Although the Hobby Lobby decision did not directly address the raging cultural debate over counterfeit “gay marriage” and the irreconcilable friction this modern, sin-centric novelty has with the long-established and inalienable right to religious free exercise, it doesn’t take a Phi Beta Kappa to read between the lines and discover, as Ginsburg and Kennedy evidently agree, that the “startling breadth” of the decision most assuredly touches and concerns the debate head on. (And not in favor, I might add, of the homofascist “you-have-to-affirm-my-faux-marriage-or-go-to-jail” crowd.)

While Justice Kennedy is anything but predictable on these matters, this ruling makes it pretty clear that, as both the First Amendment and RFRA already assure, the Christian baker, photographer, florist or any other business owner, is protected from being forced, under penalty of law, into indentured servitude – from having to give their God-given time and talent to create goods or services that require they violate sincerely held religious beliefs.

In other words, both the First Amendment and RFRA trump any and all so-called “sexual orientation” laws. Or, as Ginsburg put it, private businesses “can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”

Darn skippy.

Furthermore, Title VII of the 1964 Civil Rights Act expressly protects religious free exercise while ignoring newfangled notions of “sexual orientation” or “gender identity.”

When religious belief comes into conflict with sexual identity politics, religious belief wins every time. Period.

Let me be clear so there’s no misunderstanding. I’m a Christian. If I’m a business owner and someone comes in requesting goods or services that would require me to violate my conscience – especially my biblically based, sincerely held religious beliefs – I will not, under any circumstances, provide those goods or services. This is my absolute, non-negotiable, constitutionally guaranteed right.

No debate. No question. No compromise.

The language of the Hobby Lobby decision simply acknowledges this reality.

The Supreme Court of the United States (SCOTUS) ruled today that the Christian-run Hobby Lobby doesn’t have to obey the HHS mandate that is a part of Obamacare that requires businesses to pay for abortion causing drugs in their employee health care plans.

The Obama administration was attempting to make Hobby Lobby and thousands of pro-life businesses and organizations comply with the HHS mandate that compels religious companies to pay for birth control and abortion-causing drugs for their employees. However, the U.S. Supreme Court today issued a favorable ruling in Sebelius v. Hobby Lobby Stores, Inc., a landmark case addressing the Constitutionally guaranteed rights of business owners to operate their family companies without violating their deeply held religious convictions.

Writing for the 5-4 majority, Justice Samuel Alito handed down the decision for the high court, saying, “The Supreme Court holds government can’t require closely held corporations with religious owners to provide contraception coverage.”

“HHS’s contraception mandate substantially burdens the exercise of religion,” the decision reads, adding that the “decision concerns only the contraceptive mandate and should not be understood to mean that all insurance mandates.” The opinion said the “plain terms of Religious Freedom Restoration Act” are “perfectly clear.”

Justice Anthony Kennedy wrote a concurring opinion saying that government itself could provide the coverage for contraception and the abortion-causing drugs if a company declines to do so.

Justice Ruth Bader Ginsburg issued a dissent that claims the decision is “of startling breadth,” a claim the majority denies. The major decision indicates it applies to the abortion mandate, not blood transfusions or other practices to which people may have religious objections.

The Hobby Lobby decision only applies to companies, including Conestoga Wood Specialties, which had a companion case pending before the U.S. Supreme Court. Non-profit groups like Priests for Life and Little Sisters are still waiting for a ruling about their right to opt out of the mandate.

The Obama administration said it was confident it would prevail, saying, “We believe this requirement is lawful…and are confident the Supreme Court will agree.”

Responding to the decision, Alliance Defending Freedom Senior Counsel David Cortman told LifeNews: “Americans don’t surrender their freedom by opening a family business. In its decision today, the Supreme Court affirmed that all Americans, including family business owners, must be free to live and work consistently with their beliefs without fear of punishment by the government. In a free and diverse society, we respect the freedom to live out our convictions. For the Hahns and the Greens, that means not being forced to participate in distributing potentially life-terminating drugs and devices.”

In July, a federal court granted Hobby Lobby a preliminary injunction against the HHS abortion-drug mandate. The injunction prevented the Obama administration from enforcing the mandate against the Christian company, but the Obama administration appealed that ruling. Hobby Lobby could have paid as much as $1.3 million each day in fines for refusing to pay for birth control or abortion-causing drugs under the mandate.

After the appeals court ruling, U.S. District Judge Joe Heaton issued a preliminary injunction and stayed the case until Oct. 1 to give the Obama administration time to appeal the decision.

In an opinion read from the bench, the court said, “There is a substantial public interest in ensuring that no individual or corporation has their legs cut out from under them while these difficult issues are resolved.”

A December 2013 Rasmussen Reports poll shows Americans disagree with forcing companies like Hobby Lobby to obey the mandate.

“Half of voters now oppose a government requirement that employers provide health insurance with free contraceptives for their female employees,” Rasmussen reports.

The poll found: “The latest Rasmussen Reports national telephone survey finds that 38 percent of Likely U.S. Voters still believe businesses should be required by law to provide health insurance that covers all government-approved contraceptives for women without co-payments or other charges to the patient.

Fifty-one percent (51 percent) disagree and say employers should not be required to provide health insurance with this type of coverage. Eleven percent (11 percent) are not sure.”

Another recent poll found 59 percent of Americans disagree with the mandate.

The Green family, which owns Hobby Lobby, grew their family business out of their garage. They now own stores in 41 states employing more than 16,000 full time employees. They have always operated their business according to their faith.

Kristina Arriaga, Executive Director of the Becket Fund, tells LifeNews, “In fact, the Greens pay salaries that start at twice the minimum wage and offer excellent benefits, as well as a healthcare package which includes almost all of the contraceptives now mandated by the Affordable Care Act. Their only objection is to 4 drugs and devices which, the government itself concedes, can terminate an embryo.”

“Their rights under the Religious Freedom Restoration Act should be protected by the government. Instead, the government has threatened them with fines and fought them all the way to the Supreme Court,” Arriaga added.

“The government has already exempted tens of millions of Americans from complying with the mandate that forces employers to provide certain specific drugs and devices. However, it refuses to accommodate the Green family because the Green family’s objections are religious.  We believe that the government’s position is not only extreme and unconstitutional; it presents a grave danger to our freedoms,” she continued.

“My family and I are encouraged that the U.S. Supreme Court has agreed to decide our case,” said Mr. Green, Hobby Lobby’s founder and CEO.  “This legal challenge has always remained about one thing and one thing only: the right of our family businesses to live out our sincere and deeply held religious convictions as guaranteed by the law and the Constitution. Business owners should not have to choose between violating their faith and violating the law.”

This article was originally posted at the LifeNews.com blog. 

Written by Ryan T. Anderson

This week the 10th Circuit Court of Appeals issued an important ruling on Utah’s marriage amendment. This is the first time a circuit court has ruled on marriage since the U.S. Supreme Court’s ruling on the federal Defense of Marriage Act (DOMA) this time last year. In a 2-1 split decision, the 10th circuit ruled that Utah’s marriage amendment defining marriage as the union of a man and a woman violates the 14th Amendment of the U.S. Constitution.

The majority held that “the Fourteenth Amendment protects the fundamental right to marry” and that “a state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union.” The decision will almost certainly be appealed.

Of course the Fourteenth Amendment protects the fundamental right to marry—but the Supreme Court decisions that established a fundamental right to marry understood marriage as the union of a man and a woman. In issuing today’s ruling, the court implicitly supplied its own, new answer to the central question in this debate: what is marriage?

The only way the 10th Circuit could reach its decision today was to smuggle in a view of marriage that sees it as an essentially genderless institution and then declare that the Constitution requires that the States (re)define marriage in such a way.

But our Constitution is silent on what marriage is. And there are good arguments on both sides of this debate. Judges should not insert their own policy preferences about marriage and declare them to be required by the Constitution.

Indeed, this is the message that Judge Paul Kelly delivered in his dissenting opinion in today’s case. Quoting Supreme Court Justice Samuel Alito, Judge Kelly explains: “‘Same-sex marriage presents a highly emotional and important question of public policy—but not a difficult question of constitutional law,’ at least when it comes to the States’ right to enact laws preserving or altering the traditional composition of marriage.”

Kelly continued:

The Constitution is silent on the regulation of marriage; accordingly, that power is reserved to the States, albeit consistent with federal constitutional guarantees. And while the Court has recognized a fundamental right to marriage, every decision vindicating that right has involved two persons of the opposite gender.

Kelly explained that we need not seek from the courts a single 50-state answer: “If the States are the laboratories of democracy, requiring every state to recognize same-gender unions—contrary to the views of its electorate and representatives—turns the notion of a limited national government on its head.”

In citing Justice Alito, Judge Kelly hit on an important point—that there are competing policy arguments on the definition of marriage and that in a system of limited constitutional self-government, the people and their elected representatives should be making these decisions.

Justice Alito’s opinion on DOMA cited my book, What Is Marriage? Man and Woman: A Defense, as an example of one view of marriage: a “comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life.” And he cited Jonathan Rauch as a proponent of the idea that marriage is a commitment marked by emotional union.

Alito explained that the Constitution is silent on which of these substantive visions of marriage is correct. The Court, he explained, should defer to democratic debate.

Indeed, whatever any individual American thinks about marriage, the courts shouldn’t redefine it. Marriage policy should be worked out through the democratic process, not dictated by unelected judges. The courts should uphold the freedom of the American people and their elected representatives to make marriage policy.

Last summer, when the Supreme Court struck down DOMA, Chief Justice John Roberts emphasized the limits of the majority’s opinion. He made clear that neither the holding nor its logic required redefining state marriage laws. The states remain free to define marriage as the union of one man and one woman.

If marriage ends up back at the U.S. Supreme Court again next year, the Court will be less likely to usurp the authority of citizens if it is obvious that citizens are engaged in this democratic debate and care about the future of marriage.

We must rally in support of our constitutional authority to pass laws defining marriage. We must make clear that court-imposed same-sex marriage via a Roe v. Wade-style decision will not settle the marriage debate any better than it has settled the abortion debate.

We must insist, with Judge Kelly, that judges “should resist the temptation to become philosopher-kings, imposing [their] views under the guise of constitutional interpretation of the Fourteenth Amendment.”

Ryan T. Anderson researches and writes about marriage and religious liberty as the William E. Simon Fellow at The Heritage Foundation. He also focuses on justice and moral principles in economic thought, health care and education, and has expertise in bioethics and natural law theory.

This article was first published at TheDailySignal.com.

Written by Ryan T. Anderson

Written by Peter J. Leithart

Sudden as it seems to some, the Supreme Court’s endorsement of gay marriage in Windsor was a long time in coming. In cultural terms, of course, it is the fruit of fifty years of sexual liberation with all its attendant institutional, technological, and psychological shifts.

In terms of Constitutional interpretation, the foundations were laid decades ago in decisions that discovered and developed a Constitutional right to privacy. According to Duke’s H. Jefferson Powell (The Moral Tradition of American Constitutionalism: A Theological Interpretation), the key decision was not Roe but Eisenstadt (1972), which revived a new version of substantive due process. During the nineteenth century, substantive due process arguments had been used in cases involving state regulation of business. That notion of substantive due process was eclipsed by what Powell describes as the “Modern Theory,” under which the Court’s aim was to protect decisions arrived at through democratic processes. In Eisenstadt, the court revived substantive due process, applied now to state restrictions on the distribution of contraceptives.

Justice William Brennan argued in the decision that the “right to privacy” must mean “the right of the individual, married or single, to be free from unwanted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Powell calls this “an intellectual milestone” since the Court rejected the statute “solely because the Court believed the state’s moral choice was an unreasonable intrusion into individual matters the Court considered ‘fundamental.’” It was a return, Powell says, to the jurisprudence of the common law, which regularly issued “substantive judgment about moral-political matters.”

In the light of Eisenstadt, one has to conclude that the Court’s DOMA decision was not only virtually inevitable but also, given the current state of Constitutional interpretation, correct.

Brennan’s argument adapts perfectly to Windsor: The right to privacy must include the right of an individual “to be free from unwanted governmental intrusion into matters so fundamentally affecting a person as sexual orientation and the desire to marry.”

And it won’t stay put. Justice Samuel Alito was exactly right when he wrote in dissent that Windsor was a decision between two alterative notions of marriage – one a traditional, conjugal definition and the other a consensual, romantic, emotional definition. The latter is, in the Court’s opinion, the Constitutionally-approved definition. Justice Scalia is correct too that the very same reasoning is set up to strike down State statutes and Constitutional provisions defining marriage in traditional terms. Challenges are already coming from several of the thirty-some states that currently do not recognize same-sex unions as marriages. We know what this Court will decide when those cases get to them.

President Obama quickly reassured us that religious liberty will not be infringed. And he’s technically right. Nearly every state that has passed same-sex marriage legislation has made exceptions claiming that no pastor will be required to perform same-sex marriages. But as Robert George has pointed out, the protections are thin indeed. Tax exemption will be challenged, and so will accreditation for Christian colleges and schools that hold to traditional views of marriage. Once opposition to same-sex marriage is judged discriminatory, no institution that opposes it will be unaffected. If you want to see what the future looks like, consider what Paula Deen has been through the past few weeks.

All this means that Windsor presents American Christians with a call to martyrdom. In Greek, martyria means “witness,” specifically witness in a court. At the very least, the decision challenges American Christians to continue to teach Christian sexual ethics without compromise or apology. But Windsor presents a call to martyrdom in a more specific sense. There will be a cost for speaking the truth, a cost in reputation, opportunity, and funds if not in freedoms. Scalia’s reference to the pagan Roman claim that Christians are “enemies of mankind” was probably not fortuitous.

Many churches have already capitulated to the Zeitgeist, and many others will. Some Christians and some churches won’t be up to the challenge. For those who heed Paul’s admonition not to be conformed to the pattern of this world, things are going to get sticky. But we are servants of God. He opens our ears to hear, and he gives us tongues to speak truth. If that means we are insulted and marginalized, if it means we yield our back to the smiters and our face to those who spit on us, so be it.

This will force a major adjustment in conservative Christian stance toward America. We’ve fooled ourselves for decades into believing that Christian America was derailed recently and by a small elite. It’s tough medicine to realize that principles inimical to traditional Christian morals are now deeply embedded in our laws, institutions and culture. The only America that actually exists is one in which “marriage” includes same-sex couples and women have a Constitutional right to kill their babies. To be faithful, Christian witness must be witness against America.

God has his winnowing fork in his hand, and he’s ready to use it. There’s likely to be a lot of chaff, blown away like mist. But there will be a harvest. We’re being sent into an oven, but Jesus will crush the grain of the harvest so that, baked in the fire of the Spirit, it will become bread for the life of the world.

Originally posted at First Things.