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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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

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Before Christmas, I warned how Sexual Orientation and Gender Identity laws, or SOGI laws, as they’re called, create new protected classes of people based on inclination and behavior, not biological realities of race and sex.

I also warned that so-called compromises to carve out religious exemptions for churches and religious organizations would not only fail to protect people of conscience not in religious organizations, it would mark all of us seeking exemptions as bigots with a Scarlet B.

Now it seems that we’re at an impasse, but not really. I’m grateful how the Heritage Foundation’s Ryan Anderson has demonstrated, in a new report, that fighting discrimination and protecting religious liberty do not have to be mutually exclusive.

A key point of the report, which is entitled “How to Think about Sexual Orientation and Gender Identity Policies and Religious Freedom,” is that proponents of such wide-ranging SOGI laws have failed to prove they’re even needed. In fact, as Ryan says, there’s “no evidence that people who identify as LGBT have been turned away by a single hotel chain, a single major restaurant, or a single major employer.”

Even so, like all laws, SOGI laws will have a pedagogical role in our society, teaching that the Judeo-Christian worldview is “not only false, but discriminatory and rooted in animus.” They will impose a new orthodoxy concerning human sexuality “by punishing dissent and treating as irrational, bigoted, and unjust the beliefs that men and women are biologically rooted and made for each other in marriage.”

So at their core, Anderson writes, “SOGI laws are not about the freedom of LGBT people to engage in certain actions, but about coercing and penalizing people who in good conscience cannot endorse those actions.”

So what’s the way forward? First, as Anderson suggests, we should identify real-world instances of discrimination and then tailor-focus responses appropriate for the need, rather than implementing sweeping SOGI legislation. We might even find, as we look for specific real-world instances of discrimination, that government action is not even necessary—if “social, economic, and cultural forces” (are) sufficient to address the needs on their own.

Second, Anderson points out, both sides need to carefully define terms. There is a difference, for example, between discrimination and making distinctions. Sex-specific bathrooms and locker rooms, for instance, are not based on discrimination, but upon observable physiological and common-sense distinctions. And here’s another distinction: religious adoption agencies “decline to place the children entrusted to their care with same-sex couples not because of their sexual orientation, but because of the conviction that children deserve both a mother and a father.”

Another term to define is “public accommodation.” If a church holds a spaghetti dinner and welcomes the public, does that make it a place of “public accommodation” subject to SOGI laws? No. But the commonwealth of Massachusetts seems to think so.

Ryan concludes, “if other policies are adopted to address the mistreatment of people who identify as LGBT, they must leave people free to engage in legitimate actions based on the conviction that we are created male and female and that male and female are created for each other. This would,” Anderson asserts, “leave all Americans—not just the lucky few who are sufficiently well-connected to be exempted from SOGI laws—free to act on those convictions.”

I encourage you to read Anderson’s report. Then send the report to your state and federal representatives, as well as to friends and relatives open to a common-sense discussion of these very choppy waters. Finally, consider adding your name to our statement on SOGI Laws. You can find it at our website: BreakPoint.org.

BreakPoint is a Christian worldview ministry that seeks to build and resource a movement of Christians committed to living and defending Christian worldview in all areas of life. Begun by Chuck Colson in 1991 as a daily radio broadcast, BreakPoint provides a Christian perspective on today’s news and trends via radio, interactive media, and print. Today BreakPoint commentaries, co-hosted by Eric Metaxas and John Stonestreet, air daily on more than 1,200 outlets with an estimated weekly listening audience of eight million people. Feel free to contact us at BreakPoint.org where you can read and search answers to common questions.