It's clear the City of Philadelphia is far more anxious to punish the free exercise of religion than to serve its most vulnerable children.
Not just foster care providers, but religious groups of all kinds are closely following the case of Fulton v. the City of Philadelphia. Indeed, all those who care about our nation’s children should be.
While this case before the U.S. Supreme Court to be decided in 2021 directly concerns the provision of foster care, by placing hypothetical arguments about non-discrimination ahead of the religious freedoms ensconced in the First Amendment — and ahead of children’s actual needs — the broader ramifications of the case threaten to force religion further from the public sphere.
In his dissent in Obergefell v. Hodges in 2012, Chief Justice John Roberts wrote:
The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same-sex marriage. That disclaimer is hard to square with the very next sentence, in which the majority explains that ‘the necessary consequence’ of laws codifying the traditional definition of marriage is to ‘demean or stigmatize’ same-sex couples.
Fulton v. Philadelphia demonstrates how right Roberts was to be concerned. The attorney for the city, Neal Katyal, claimed during oral arguments that a religious foster care agency, by following the prescriptions of the religion which it represents, would “stigmatize” LGBTQ individuals, especially children. Having asserted that traditional religious beliefs are bigoted and damaging, he thus argues that they must be prohibited in practice.
In particular, the city’s claim that the stigma is associated with Catholic Social Services’s provision of foster care cannot withstand even a cursory examination. Whatever feeling of harm or stigma might be involved, it would emerge from the biblical belief — which is supposed to be protected by the First Amendment — that same-sex relationships are forbidden; whether or not this teaching was applied to foster care would be essentially irrelevant. Yet the city, knowing that it can’t directly attack religion, claims that the damage occurs when a religious foster care agency conforms to those beliefs.
Taking the attack on religion a step further, Philadelphia equated religious diversity with mutual hostility: its lawyer claimed that foster care would be “balkanized” if various religious groups were each allowed to serve children in need consistent with their religious beliefs, working with supportive families seeking to partner with those agencies. Frankly, it’s quite scary to see such open hostility to free, diverse religious practice from a city government — and one could hardly seek more decisive proof that freedom of religion is, in fact, on trial in this case.
The threat here is clear, and not limited to Catholics. In Judaism, we believe it essential to raise a Jewish child to learn both our books and our observances. If applied consistently, the city’s argument would prohibit a Jewish agency from insisting upon placing a Jewish child in a Jewish home. Rather than demonstrating the First Amendment’s respect for different traditions and beliefs, Philadelphia is demanding universal conformity to state doctrine.
What is most troubling in all of this is that the city has lost sight of the ultimate goal: to serve children in need of foster care. There is a grave shortage of families willing to open their homes to foster children, and religious agencies, by working specifically within their faith communities, can expand that pool.
Plaintiff Sharonell Fulton is but one of many who are certified by Catholic Social Services and have room in their homes to care for children. The city is keeping these foster care providers on the sidelines because of CSS’s religious beliefs, offering only theoretical arguments about hypothetical harms to justify callous denial of homes to children in need.
As was clear at oral argument, no same-sex couple has been prevented from fostering or adopting by Catholic Social Services, or ever would be. Were such a couple to ever present itself to CSS, attorney Lori Windham told the court, CSS would help the couple to find one of the many other agencies that can assist them and better attend to their needs.
Based solely upon a far-fetched, theoretical claim of “stigma” that reflects hostility towards biblical beliefs, the city’s actions are therefore forcing dozens if not hundreds of actual (very non-theoretical) children to languish in group homes and institutional settings rather than being placed with loving foster parents.
The city has made its disregard for children’s actual needs quite obvious. Responding to the fact that Catholic Social Services has provided foster care to needy Philadelphia children for more than two centuries, long before the government was involved, Katyal argued that “whatever these [private] entities did before, like CSS, they never selected who cares for kids in city custody, applying state criteria.” In other words, the city claimed that whether these children are wards of the state is a more central consideration than whether they need foster care.
This is heartless, and even more fundamentally flawed. To be sure, the city has notargued that CSS provides an inferior service. It even acknowledged that CSS has been a “point of light” in the child welfare system. Yet the city also claims that closing down such an agency and preventing it from helping the more than 250 children in need of a foster home today would somehow be a net benefit for society.
So it is not merely true that Philadelphia wishes to squelch free religious practice — it is also clear that the city is far more anxious to punish the free exercise of religion than it is to serve the city’s most vulnerable children. The shocking part is that it was necessary to go all the way to the Supreme Court to ask for the obvious: that the city of Philadelphia should both respect different religious beliefs, and put the needs of children first.
This past week in Fulton v. City of Philadelphia, the Supreme Court re-entered the dangerous minefield at the junction of religious liberty and anti-discrimination. The current dispute arose when Philadelphia’s Department of Human Services announced that it would no longer refer children to Catholic Social Services (CSS) for placement in foster care because CSS refused to consider same-sex couples as potential foster parents. CSS was, however, prepared to accept into its foster care all children regardless of their sexual orientation. After prolonged negotiations with the city failed, CSS sued. It seeks, in the words of the Third Circuit, “an order requiring the city to renew their contractual relationship while permitting it to turn away same-sex couples who wish to be foster parents.” The Third Circuit upheld the position of the city.
Resolving this delicate confrontation requires a return to first principles. Let’s start with the First Amendment’s protection of the free exercise of religion, as elaborated in Justice Antonin Scalia’s majority opinion in Employment Division v. Smith. Alfred Leo Smith, a drug guidance counselor, was denied unemployment benefits after being terminated for consuming peyote, a controlled substance, as part of a religious rite. The court held that his religious beliefs do not “excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate.” The First Amendment did not require Oregon to accommodate Smith’s religious practice. Any neutral law of general applicability was acceptable, notwithstanding its disparate impact.
Notably, the word exercise is broad enough to cover not only Smith’s use of peyote but also CSS’s adoption policies. Accordingly, under no circumstances should Philadelphia be allowed to pass an ordinance that requires the Catholic Church to ordain women as priests, or to offer family aid services paid from its own funds to same-sex couples. The question in Fulton is whether CSS’s free exercise rights are forfeited when the city supplies public funds and matching services to CSS and the children it puts up for foster care.
The point is contentious. During oral argument, Justice Elena Kagan insisted that Philadelphia has a compelling state interest to eliminate all forms of discrimination against same-sex couples. Stanford professor Jeffrey Fisher, who represented two-nonprofit organizations that sided with the city, made a similar point by insisting that if Philadelphia lost this case, city police officers would be able to refuse to enforce certain laws to protect those same-sex couples just by citing their religious convictions.
Both of these claims miss the central point. The real risk of government abuse arises when the state exercises its exclusive power to enforce the criminal laws. Given that state monopoly power, state actors have a correlative duty to treat all persons equally and therefore are disallowed from bringing personal religious convictions to bear on criminal law enforcement.
The situation, however, is quite different whenever the government grants public funds to organizations to discharge some public purpose. This contest raises tension between a state’s independent regulatory authority and its ability to impose conditions on such grants. It is often incorrectly asserted that the government has extensive freedom of choice when it puts “its” money behind a particular program, such that it can act in an “entrepreneurial” fashion even if it cannot regulate private church conduct. As one observer suggested, “[r]eligious groups typically have little leeway to shape government programs that they object to.”
These oversized claims for state control should be roundly rejected. The government does not have some private stash of cash to dole out on whatever terms and conditions it sees fit. Virtually all of its money comes from taxation, fines, and fees. Those monies are paid into the city by both supporters and opponents of the city’s ban on CSS. Just as it would be wholly inappropriate to exclude non-religious programs from participating in the city’s foster programs, so too is it wholly inappropriate to exclude the religious organizations solely because of their religious beliefs. Excluding either group from the class of recipients while forcing them to make contributions into the common fund creates an illegitimate cross-subsidy from groups without political power to groups with it.
That fundamental fiscal imbalance implicates the doctrine of unconstitutional conditions, which supplies the much-needed counterweight to inappropriate exercises of state monopoly power. The parallel common law rule holds that any public utility or common carrier has, by virtue of its monopoly power, the duty to offer services to all customers on fair, reasonable, and nondiscriminatory terms. The public law doctrine of unconstitutional conditions applies that principle to the strongly entrenched and indisputable state monopoly powers of regulation and taxation. But the state should have no power to regulate parties in competitive industries, where there are many alternative sources of supply. Accordingly, the state cannot license private Catholic hospitals only if they are willing to perform abortions at will, which can be done at many other facilities.
Similarly, whether the issue regards dispensing cash or using public facilities, the state cannot use its monopoly power to impose viewpoint conditions on public grants. Thus, no one thinks (I hope) that the city of Philadelphia can use its power to prevent CSS or its foster parents from using city streets to render their services unless they accept same-sex couples for foster care. The basic test is whether the condition that the city government wants to impose is designed to improve the overall efficiency of public services, or if the condition is instead intended to serve as a form of viewpoint discrimination. Thus, the city can require all vehicles that CSS uses on public roads to meet the uniform standards of vehicular inspection, but it cannot condition CSS’s use of vehicles on the alteration of its religious beliefs and practices.
It is painfully clear that the state cannot identify any efficiency justification for excluding CSS from its foster care program. The city operates a useful platform that brings together parents and other guardians with children in need of foster care through a wide array of organizations. The more choices on both sides of the platform, the better the system. We know that CSS increases the supply of foster care, which reduces the risk of shortages of foster placements. It also allows many parents or guardians seeking a Catholic family to obtain their first choice of foster parents. In oral argument, Justice Samuel Alito noted that CSS has never had to turn down an applicant for foster care who desired to place a child with a same-sex couple. Instead, CSS acted a liaison with other groups to secure those children with a satisfactory placement. Why should anyone oppose a system that leaves everyone better off, simply because one provider among many insists on adhering to its deeply held religious beliefs? There is no interest, let alone a compelling state interest, to undermine a matching program that has worked well for decades.
Fulton follows on the heels of the 2018 Supreme Court decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, which threw out a set of penalties that the Colorado Commission imposed on Jack Phillips, a devout Christian who refused to bake a wedding cake for a same-sex couple on religious grounds. In a most unsatisfactory opinion, Justice Anthony Kennedy chastised the commission only for its boorish behavior, not its substantive actions. Thus in the present case, the Court of Appeals for the Third Circuit had an easy hook on which to uphold the city, which acted with proper professional candor in dealing with CSS, unlike its Coloradan counterpart. But the ultimate issue in both cases is not about manners. It is about the abuse of monopoly power (exercised with civility or otherwise).
Masterpiece offers the converse situation to Fulton. In Masterpiece, a competitive market eliminated the need for Colorado to force any merchant to take on any customer, given that a host of merchants were eager for the same-sex couple’s business. But in Fulton, the state’s monopoly position requires it to apply the nondiscrimination rule for the benefit of CSS. In their effort to counter this contention, both Justices Stephen Breyer and Elena Kagan argued that allowing for discrimination against same-sex couples might open the way to allowing discrimination on the grounds of race. In my 1992 book Forbidden Grounds,I argued that private parties have the right to engage in any form of discrimination in private competitive markets, including discrimination by race—in part because that principle provides a clean justification for private affirmative action programs. But even if that argument is rejected emphatically for public institutions, recall Justice William Brennan’s 1984 opinion in Roberts v. United States Jaycees, which upheld Minnesota’s antidiscrimination law as applied to a large public club, only to insist “that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the state.”
The foster care arrangements fall into just this category. This implies that CSS, like all other qualified agencies, may choose foster parents on whatever grounds it wants, race and religion included. The expectation is that the Supreme Court will reverse the Third Circuit. Hopefully, it will also overrule Smith.
New York Gov. Andrew Cuomo and New York City Mayor Bill de Blasio’s bungled response to COVID-19 has turned the nation’s largest metropolis into a disease-infested hotspot rife with economic and social tensions. Now parents in the city’s sizeable Orthodox Jewish community are asking a court to enjoin further restrictions on private education described in a suit as being “unscientific and discriminatory” in their origin because they prevent children enrolled in religious schools from attending them.
On Monday Yitzchok and Chana Lebovits — whose daughters attend the all-girl Bais Yaakov Ateres private school — asked a New York judge to prevent Cuomo’s latest anti-COVID-19 restrictions from taking effect specifically on the grounds they target the Orthodox Jewish community. Backed by the Becket Fund for Religious Liberty, a non-profit, public-interest legal organization protecting religious freedom and the Jewish Coalition for Religious Liberty, the Lebovits want new regulations leading to school closures issued by Cuomo on October 6 set aside.
“We are devastated for our daughters and their classmates who are needlessly suffering because of the governor’s policy,” Mrs. Lebovits said. “Governor Cuomo should not take away part of my daughters’ childhood because other people are afraid of Orthodox Jews. We hope the court will let our daughters go back to school so they can pray and learn together with their classmates.”
The new restrictions ban completely in-person instruction at BYAM and other schools in Jewish neighborhoods in New York City, effectively infringing severely on the rights of parents to direct the religious education and upbringing of their children. The restrictions come after months of Cuomo and de Blasio’s apparent scapegoating of the Orthodox community, blaming them for the virus’s spread throughout the city while they were at the same time not only failing to condemn but praising the mass protests against economic and racial inequality that in some cases led to violence and looting in Manhattan.
In early October, a federal judge in New York found the new restrictions did specifically target the Orthodox Jewish community, laying the groundwork for the suit. “There is no place for bigotry in the Big Apple,” said Mark Rienzi, Becket president, and senior counsel.
“By Cuomo’s own admission, schools are not significant spreaders of COVID-19, and the new policy was not driven by science but was made from ‘fear’—fear of Orthodox Jews. Cuomo and de Blasio need to follow the science, follow the law, and stop scapegoating Jews. The Mayor and the Governor should be ashamed,” Rienzi added, referring to comments Cuomo can be overheard making during a telephone conversation with leaders of the Orthodox Jewish community. In that conversation, a copy of which was given to the New York media, the governor admits the policies he has put in place to lock down the state and keep residents confined to the homes and children out of school were based on political concerns, not science.
Critics have argued the measures taken by Cuomo and de Blasio to prevent the virus from spreading may have instead hastened its introduction into vulnerable population groups, especially among seniors and others living in nursing homes. The World Health Organization and others have recently concluded the number of deaths in nursing homes attributed to the disease is considerably higher than those occurring in the rest of the population.
That’s what we all said nearly twenty years ago while struggling to cope with our grief. Since the days of George Washington, we’d thought of ourselves as more or less removed from what he called “messy, foreign entanglements,” protected from the rest of the world by two great oceans and divine providence.
We’d jumped into the thicket a time or two. America saved the world at least twice during the 20th century, probably three times given our willingness to contest an expensive, global Cold War which occasionally turned hot in places like Korea, Vietnam, and the Middle East at the cost of our greatest treasure: the young men and women sent to fight.
Was it strange that we never asked to be thanked for it? No, that’s just the way we are. We want to live our lives in peace, left alone to make our own choices, secure in our liberties as God gave them to us. We flirted with the building of empires but that really wasn’t for us. We wanted to be, and often were, the good example for others to follow.
Then came 9/11. A group of religious fanatics hijacked four U.S.-flagged airliners, turning them into flying missiles aimed straight at the heart of our political and commercial institutions. Two of them hit New York’s Twin Towers with such explosive force the buildings crumbled to the ground as if they were made of sand.
A third jetliner reportedly headed for the White House crashed instead into the Pentagon. On the fourth plane, the passengers who’d learned what had happened on the other three revolted against their captors. The ensuing struggle meant their plane, instead of piercing the dome of the U.S. Capitol as planned, broke apart in a field in Pennsylvania.
“Never forget,” we said afterward. “Never forget the everyday Americans and the others from all walks of life who perished that day,” we said. “The people who represented the multitude of differences between Americans but were, for a brief moment, united by their humanity.”
“Never forget,” we said about the first responders from the police and fire departments and emergency techs in New York City, Washington, D.C., Northern Virginia, and rural Pennsylvania who came to the aid of those injured, dying, or dead. Especially those who died that day because their jobs had them rushing into the burning buildings rather than out of them.
America, we forgot—and we should be ashamed.
Over the last decade, we’ve watched as the nation turned in on itself. First responders are being shunned, even assassinated. In California this past weekend, so-called peaceful protestors gathered outside the hospital where two Los Angeles County deputies who’d been ambushed were being treated, shouting their hopes the officers would die.
This didn’t start with Donald Trump. This didn’t start with Barack Obama. It started outside politics, in the American culture where somehow we’ve been divided up, piecemeal, into groups airing grievances. Left or right, it makes no difference. We’ve allowed ourselves to be pitted against one another, and we should be ashamed.
We’ve forgotten that in America each life matters. We’re all created equal, as individuals, not assigned at birth into groups because of skin color, economic status, education, or biological sex. We are an imperfect nation, to be sure, but almost certainly less imperfect than any other.
The fanatics responsible for the murder of more than 3,000 of our brothers and sisters and mothers and fathers on that dark day nineteen years ago didn’t attack us in protest of the country’s history of systemic racism. Or because women get paid less on average than men. Or because some people think you should have to show a government-issued photo ID that proves you are who you say you are before you can exercise your right to vote. Pick any complaint you want; it isn’t why America was attacked.
We were attacked because, out of all the nations of the world, America stands for the idea that all men and women are by their birthright free and should be treated equally under the law. We were attacked because of our ideas about religious liberty—that different faiths can coexist respectfully and peacefully—and because we believe women have just as much right as men to pursue an education. And for many other reasons, all of which have to do with what is best about us, because of the ideas that make our civilization strong. We are one nation and, fundamentally, we all matter. In the heat of the moment, we’ve forgotten that. Yet rather than dwell much longer on our errors, let’s come together in our strengths to make this nation all it can be, for now and for generations to come.
The Department of Education published a final rule Wednesday that expands religious liberty protections on college campuses and allows DOE to suspend or cut federal funding from colleges that violate the First Amendment.
Known as the “Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities” final rule, it ensures the equal treatment of religious student groups at public universities, and “provides clarity for faith-based institutions with respect to Title IX.”
“This administration is committed to protecting the First Amendment rights of students, teachers, and faith-based institutions. Students should not be forced to choose between their faith and their education, and an institution controlled by a religious organization should not have to sacrifice its religious beliefs to participate in Department grants and programs,” said Secretary of Education Betsy DeVos.
If public universities fail to give religious student groups the same rights as other campus organizations, such as use of campus facilities and access to student fee funding, they could lose federal funding.
The final rule also seeks to promote “free inquiry” and to protect “academic freedom” on college campuses. “Denying free inquiry is inherently harmful at any institution of higher education because students are denied the opportunity to learn and faculty members are denied the opportunity to freely engage in research and rigorous academic discourse,” the rule reads.
In extreme cases of First Amendment violations, DOE can determine a university is ineligible for future grants. Private universities can also face the same consequences if found violating their own speech codes.
“These regulations hold public institutions accountable for protecting the First Amendment rights of students and student organizations, and they require private colleges and universities that promise their students and faculty free expression, free inquiry, and diversity of thought to live up to those ideals,” DeVos explained.
While the final rule claims that universities must allow for differing ideas and viewpoints on campus, it also gives private or religious institutions the freedom to adopt their own speech standards, so long as they comply with them.
“Religiously affiliated institutions, in freely exercising their faith, may define their free speech policies as they choose in a manner consistent with their mission,” the rule states.
The rule also states that “religious student organizations should be able to enjoy the benefits, rights, and privileges afforded to other student organizations at a public institution” as well.
The final rule will going into effect 60 days after the date of official publication in the Federal Register.
In a remarkable turn of events, four members of the United States Supreme Court recently affirmed the constitutionality of state-sponsored religious bigotry. On June 30, by a vote of 5-4, the court struck down a Montana law barring the inclusion of religious schools as an option for families participating in educational choice programs – with the court’s liberal wing in opposition to the majority.
In Espinoza v. Montana Department of Revenue, the justices answered what the non-profit Institute for Justice called the “open question” arising from previous decisions in cases like 2002’s Zelman v. Simmons-Harris whether religious institutions could be explicitly excluded from choice programs.
The national effort to ban government support for Catholic schools goes back to the 1880s. The Republican Party, following the leadership of one-time House Speaker, U.S. Senator, and 1884 GOP presidential candidate James G. Blaine attempted to hamper the rise in influence of the Catholic immigrants coming from Europe in large numbers, in part through the use of “Blaine Amendments” that blocked state funding for religious schools.
Writing for the majority in Espinoza, Chief Justice Roberts cited them as being “born of bigotry,” adding that the “no-aid provisions of the 19th century hardly evince a tradition that should inform our understanding of the Free Exercise Clause.” The Court also said the “exclusion [of religious schools] from the scholarship program here is ‘odious to our Constitution’ and ‘cannot stand.’”
The Blaine Amendments were pushed by the kinds of people who, in 1884, referred to the Democrats as the “The Party of Rum, Romanism, and Rebellion.” It was a slogan that likely cost Blaine the White House while the state constitutional amendments named for him are a stain on the records of those who supported them, the states that adopted them, and the country as a whole. Yet it was liberal Justices Stephen G. Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan who in essence affirmed them by refusing to join the majority in Espinoza.
The anti-Catholicism of the period wasn’t limited to the schools. The same concerns that drove the Blaine Amendments produced groups like Planned Parenthood, whose leader, Margaret Sanger, spread the efficacy of birth control among poorer Catholics in the cities. Her motivation, to keep Catholics from having so many children, is well documented even if modern historians tend to overlook it.
Had this been an issue that involved race, the dissenters – had there been any – would have had their decisions linked unfavorably to such odious court rulings as the ones made in Dred Scott and Plessy v. Ferguson. But, because Espinoza involved religious bigotry, its antecedents are overlooked and the justices on the wrong side have not been called to account. That’s because, for too long, the “establishment clause” of the 1st Amendment has been given decided preference over the “free exercise” provision. As the latest decision hints, however, a day of reckoning when the two sections of the amendment concerning religious freedom must at least be given equal weight is coming.
After nearly nine weeks of self-imposed quarantine, the reopening of America is finally underway. The evidence, such as it is now, suggests the shutdown may have done little to stop the spread of the COVID-19 virus.
Maybe. Maybe not. It will likely be months, if not years, before we know for sure. It has become evident that the early forecasts of a new kind of “Black Death” were overstated and based on models that should have been subjected to more rigorous scrutiny than they received.
If things went as predicted, then what happened in Georgia and Florida, where the lockdown ended earlier and was far less stringent than in other states, and South Dakota, where it didn’t happen at all, should have been far worse than what New York and New Jersey experienced. Instead, it’s the opposite, suggesting that those who hit quickly on the need for “herd immunity” may have been more right than the constant chatter has acknowledged.
The most controversial part of it all—and the list of controversial acts taken by state governments is long—was the decision to ban in-person worship in churches, synagogues and mosques. The action was taken without any apparent regard for the First Amendment guarantee of freedom of worship, which the Fourteenth Amendment applied to the states, as well.
The argument, as it was made, went something like this. People who come to worship are packed tightly together in enclosed spaces and are, therefore, likely to allow the virus to spread quickly to many people if even one is infected. Therefore, churches and synagogues and mosques needed to close.
No effort was made to find reasonable accommodations. Most of the houses of worship moved services and prayer meetings and scriptural study online—which, many have argued, left few people worse for wear.
That may be true, but it’s hardly the point. Religious freedom is a core American value, which is why the Founders put into the Bill of Rights that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The ban on corporate worship, by executive order yet, is a clear violation of both the spirit and letter of the law.
If that were not bad enough, some governors used the police powers available to them to enforce this decision even when, as in Kentucky, parishioners went to churches for service that would have been carried out while they remained in their cars. License plate numbers were taken down, citation threats were made and, were it not for the actions of a federal judge who knows the law means what it says and who stayed the governor’s order, it is likely those who chose continually to disobey the governor’s order would have been arrested for the alleged crime of worshipping in public.
That is now ending. On Friday, President Donald J. Trump said that getting the nation’s houses of worship open was an “essential” national priority. Shortly thereafter, the Center for Disease Control and Prevention issued guidelines to allow them to do that—and which are available here.
Among the suggestions:
All these are sensible and reasonable—and, if followed, should allow faith organizations to reopen and operate pretty much as they did before the pandemic started.
That, however, does not bring the discussion of how the rights of the faithful were violated. It has not been lost on anyone that these institutions were often left off the list of those considered “essential”—something that would have come as a surprise to Alexis de Tocqueville and others who have, over the years, taken the trouble to explain why America is indeed an exceptional place—while supermarkets, cell phone stores and abortion clinics often made the list.
It is probably the case, had the nation’s governors who ordered the closure of faith institutions merely requested worship leaders to comply with what was desired rather than ordering it, that most of them would have voluntarily complied. And it would not have been a tough call, especially given the New Testament instruction to render unto Caesar the things that are his. Instead, it was made into an order—and one that violated the right to freedom of worship the Constitution guarantees us all.
A day of reckoning is coming. The First Amendment’s Establishment Clause has been treated by the federal courts as being rather elastic since the 1960s. The time may be coming when the voters who consider themselves people of faith will demand similar flexibility in favor of their interests, as far as “free exercise” is concerned. And given the way Trump has reshaped the federal bench with his appointments over the last three years, they’d likely prevail.
By Fox News•
“Of all tyrannies,” C.S. Lewis once observed, “a tyranny sincerely exercised for the good of its victims may be the most oppressive.”
We’re seeing the truth of these words play out right now all across the country, and if you don’t believe me, just look at the headlines.
While we try to help each other stay healthy and safe, state and local authorities are seizing unprecedented amounts of power in the supposed pursuit of that goal, setting dangerous precedents along the way.
Economic czars in the form of governors, including in my own state of Kentucky, are taking it on themselves to decree which businesses will live and which will shutter for continually extended lengths of time, leaving those who have poured their entire lives into their businesses to try to pick up the pieces and do their best to survive and feed their families in the meantime.
The czars decide who can and can’t get medical treatment and restrict fundamental liberties such as the right to gather to worship.
Kentucky Gov. Andy Beshear went so far as to tell some churchgoers their license plates would be scanned, and they would be forced to quarantine for two weeks – never mind that, having an interest in their own health, these worshippers are more than capable of conducting their services safely.
Innocence is not allowed to be presumed. Comply or else.
In Michigan, a self-appointed monarch dictates away basic needs such as landscaping. Not willing to let a little thing like the state legislature get in her way, she simply charges ahead and ignores it when it refuses to support continuing a state of emergency. Gov. Gretchen Wittmer seems to have forgotten she serves the people of Michigan and is not living in Buckingham Palace a century ago when subjects would bow obediently to their sovereign.
Incredibly, in California, a paddleboarder was chased, not by one but two government boats – all while he was about as socially distanced alone in the ocean as one can get. I’ve heard of high-speed car chases in California, but this might be the first high-speed boat chase involving a paddleboarder.
Concerns are also being raised both at home and abroad over excessive use of force.
In West Odessa, Texas, the county sheriff showed up with a SWAT team in response to a local bar reopening and protesters peacefully assembling. Surreal news footage shows the owner being taken away by an officer, hands behind her back.
Let’s take an important second to get something straight: I actually support the concept of states taking the lead in responding to the pandemic, and I applaud President Donald Trump for following this approach as he focuses on broader federal efforts that no state could do on its own.
Is it any wonder, when tensions are already ratcheted up due to the virus itself, that we are seeing false accusations and outright violence and threats?
But it does not excuse abuse of authority. It does not require executives to ignore their legislatures or place unreasonable or unconstitutional burdens on Americans, and we should call those overreaches out when we see them.
In fact, I have said time and again that reopening our nation will require an even more tailored local response, right down to the city level. Bowling Green is not New York City or even Louisville, for example, and should be free to take different steps to get its local economy going again.
This means state and local leaders working with each other instead of acting unilaterally.
In some cases, authority figures are turning Americans against each other, echoing stories we once thought we would only hear coming out of the Soviet Union or Communist China as neighbors are encouraged to turn one another in to the authorities if they see or even suspect anything less than perfect compliance with often arbitrary guidelines.
Mayor Bill de Blasio, saying, “[W]e still know there’s some people who need to get the [social distancing] message,” has encouraged New Yorkers to take a picture when they think social distancing guidelines aren’t being followed and text it to the city. “[A]ction will ensue,” promises the mayor.
Is it any wonder, when tensions are already ratcheted up due to the virus itself, that we are seeing false accusations and outright violence and threats?
A dad and mom taking their young kids into a bank to try to open a joint account are criticized for supposedly not socially distancing enough and are – anonymously – turned in to Child Protective Services on false accusations.
A woman identified as a teacher in New Jersey wishes “a long, painful death” from coronavirus on students playing football. We read stories of alleged choking over social distancing, and the antagonism plays out in attacks online.
C.S. Lewis also warned us that “[t]he robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.”
There is little government cannot – and has not tried – to justify with the words “for our own good” or “to keep us all safe.” And once that justification – even if genuinely offered – is allowed to automatically stifle debate, actions build “without end.”
You don’t have to look far back into our own history to see where such roads can lead, as the federal government’s response to 9/11 morphed into surveilling innocent Americans. Yet I and others cannot even bring the issue up in Congress without being accused of not taking our national security and safety seriously.
Already, we hear talk of how much additional surveillance we will be expected to tolerate due to the pandemic – for our own good, of course.
As concerning as these issues are, I remain encouraged by the many positive stories that exist of Americans coming together to face this challenge, and I am confident we will beat it as we have so many others.
But it’s imperative we do so while protecting both life and our unique way of life – defined as one that gives the benefit of the doubt to freedom and responds from that philosophical grounding.
Recent events again prove the Founders’ wisdom in deliberately spreading power out and decentralizing our system to try to curb infringements on our liberties.
That is supposed to set us apart, and it is up to each of us to make sure it continues to do so.
A professor claims religious people are afraid of atheists and Democrats because they're projecting ignorance and hatred. Maybe instead religious people just follow the news.
“White evangelicals fear atheists and Democrats would strip away their rights. Why?” asks a recent op-ed in the Washington Post. The op-ed author, Paul A. Djupe, a professor at Denison University and scholar with the Public Religion Research Institute, offered two completely out-of-touch reasons.
The first is “because that’s what they’re hearing, quite explicitly, from conservative media, religious elites, partisan commentators and some politicians, including the president.” The second is an “inverted golden rule,” meaning white evangelical Protestants “express low levels of tolerance for atheists, which leads them to expect intolerance from atheists in return.”
It’s not about projection or an authoritarian impulse. Religious conservaties worry atheists and Democrats will strip their rights because they have repeatedly witnessed attempts, typically by Democrats, to strip them of their religious liberties.
Examples of Democrats’ attempts to gut religious liberties abound. Perhaps the most high-profile example was the Department of Health and Human Services’ (HHS) federal mandate in 2011, as part of the Affordable Care Act, mandating that certain employers provide all FDA-approved contraceptives, including abortifacients, in their health insurance plans. The narrow religious exemption did not include religious nonprofits such as the Little Sisters of the Poor, a Catholic order of nuns that manages homes for the elderly poor across America, nor businesses such as Hobby Lobby.
A district court and the U.S. Court of Appeals for the 10th Circuit ruled against the Little Sisters of the Poor, and it was only in 2016 before the U.S. Supreme Court that the liberties of the religious order were secured. Hobby Lobby won in a separate 2014 case.
This is hardly the only recent example. Over the last decade and a half, a number of jurisdictions, including the state of New York, Boston, Philadelphia, San Francisco, and Washington, D.C., have targeted Christian adoption agencies that refuse to place children with same-sex or unmarried couples. Many of these adoption agencies have since closed.
The pro-choice organization NARAL, a prominent supporter of Democratic candidates, opposes conscience laws that allow medical practitioners to exempt themselves from activities that violate their religious beliefs, such as abortion or euthanasia.
Several Democratic presidential candidates have declared their support for legislation that would prohibit employers — including Christian schools or organizations — from maintaining rules about their employees’ sexual behavior. When the media reported that Vice President Mike Pence’s wife Karen had taken a position at an evangelical Virginia school that prohibits employees and students from homosexual behavior, left-leaning secular media ruthlessly attacked her. A cake baker in suburban Denver, despite the U.S. Supreme Court upholding his religious liberty in 2018, is still facing harassment by the state of Colorado.
Federal law still prohibits employers discriminating based on a person’s religious beliefs or affiliation, but conservative Christians can read between the lines. If city, county, and state governments are willing to target people for their “bigoted” beliefs, and if left-leaning judges seem increasingly willing to rule against religious liberty, it’s hard to imagine governments will be objective, neutral arbiters in their hiring practices toward religious conservatives.
Much the same can be said regarding many of our nation’s education institutions. If a university either explicitly promotes or willfully ignores leftist activism that seeks to silence opposing viewpoints — such as Middlebury College’s treatment of Polish academic, politician, and devout Catholic Ryszard Legutko — it’s fair to assume such institutions will not be hiring anyone who reminds them of Legutko. We’d be foolish to think this doesn’t also apply to woke companies.
Djupe’s research polled a cross-section of American society, more than 2,500 people, which included a variety of religious and political beliefs. Respondents were asked whether certain selected groups should be permitted to exercise various liberties, such as giving speeches in the community, teaching in public schools, or running for public office.
As evidence of tolerance among atheists and Democrats, Djupe and fellow researcher and political scientist Ryan Burge discovered that 65 percent of atheists and 53 percent of Democrats who named Christian fundamentalists their least-liked group were willing to allow them to engage in three or more of these activities. This, Djupe notes, is a higher proportion with tolerance than the overall sample and a higher proportion than white evangelicals. Ergo, Djupe and Burge conclude evangelicals fear atheists and Democrats not because these groups intend to restrict their rights, but because religious conservatives aim to do this to their political enemies.
Perhaps, though, restrictions on conservative Christians giving speeches, teaching in public schools, or running for public office are not theoretical. Across the United States over the last generation, real-life people of faith have suffered the infringement of their religious freedom. Whether or not those doing the infringing are atheists is unclear, but they are almost always on the political left.
This is why white evangelicals are afraid Democrats will attack their religious liberty — because they already have been for years. It also largely explains why this same demographic remains electorally wedded to Republicans, including President Donald Trump.
Notice that in almost all the above examples, it has been the judicial branch slowing the tide of anti-religious liberty initiatives. This has been the case even when activist judges at one level are overruled by more conservative judges at a higher level of the court system.
Trump is appointing right-leaning federal judges at rapid rates. Thus far, he has appointed 50 judges to circuit court benches, double what President Barack Obama had achieved at this point in his first term. Judges, many religious conservatives wager, may be one of the most effective means of safeguarding religious liberty.
None of this is news. Conservatives, and certainly religious conservatives, have been talking for generations about the need for a conservative judiciary to prevent attacks on America’s most treasured freedoms. That liberal mainstream media and secular academia are allied in deflecting attention from this truth in favor of research aimed at maligning religious conservatives demonstrates how out of touch they remain. Who says they learned something after the 2016 presidential election?
Former Congressman Robert Francis “Beto” O’Rourke isn’t exactly setting the world on fire with his campaign for the Democratic presidential nomination. In an Emerson College poll of Democratic caucus-goers in Iowa conducted before and after the debate this week, his support was so low, it didn’t even register. The man who was once considered the liberals’ best hope for retaking a U.S. Senate seat in overwhelmingly red Texas is running so far in back of the pack, he’s in danger of falling out.
Now, he’ll have to pander to the single-issue constituencies within the Democratic Party, as well as the punditcrats who fell in love with him during his Senate bid, for enough support to keep his campaign afloat.
That’s probably why he answered unhesitatingly and in the affirmative when CNN’s Don Lemon asked in a recent forum, “Religious institutions like colleges, churches, charities—should they lose their tax-exempt status if they oppose same-sex marriage?”
To be fair, he probably didn’t think about the question very thoroughly before answering. He didn’t consider all the implications inherent in his response for a nation like ours, which was founded, in no small way, as a sanctuary for those seeking religious liberty. But answer that way he did, and he has to accept he’ll be criticized for it.
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O’Rourke’s answer reminded me of another political leader who, centuries ago, when confronted with an unresolvable conflict with the church over a different issue regarding marriage, chose to take matters into his own hands.
It’s a complicated story, central to the storyline of the Academy Award–winning film A Man for All Seasons, that’s not as well-remembered as it should be. In brief, King Henry VIII, unable to obtain a papal annulment of his marriage to Catherine of Aragon, broke with Rome and established the Church of England with himself as the head. He then moved into the second of the many marriages for which he is infamous.
While this schism horrified church leaders and Catholics who continued to profess allegiance to Rome, others went along quietly, if not gladly, for economic reasons. Henry, as he moved forward to consolidate his control, seized church assets, bringing valuable land and other properties under royal control or, to put it more bluntly, taxed them into submission.
This is precisely what CNN’s Lemon proposed, and O’Rourke supported, despite this country’s long history of tolerance on matters of individual conscience and religious doctrine. The so-called separation of church and state, a phrase that appears nowhere in the U.S. Constitution but comes instead from a letter on the subject of religious liberty written by Thomas Jefferson to a congregation of Baptists in Danbury, Connecticut, exists to protect the church from the state and not vice versa.
Religious organizations are part of the dynamism that makes the nation what it is. It’s an observation going back as far as Alexis de Tocqueville, if not further. They are a vital part of the national fabric and perhaps the only ones strong enough and well-funded enough to compete with the state in the delivery of what we now consider essential social services. Like the government, religious groups run hospitals, provide for the poor, educate the young, care for the old and engage in other activities without which the country might grind to a halt.
That they can do as much as they do to improve Americans’ lives is in part because they are largely free of the burden of taxation imposed on individuals and businesses. To force them to turn over funds that would be used for good works, as punishment for not getting with the rest of the cultural elites on the doctrinal matter of the nature of marriage, would constitute an enormous constitutional and cultural overreach. Yet O’Rourke went there, even if he did later clarify his position, walking it back outside the area of doctrine and into the bright light of matters related to the delivery of public services. Can other Democrats who want to be president be all that far behind?
It used to be said that what was once called the “religious right” wanted to use the power of the government to impose its views on everyone else. Maybe—though I always found the allegation specious. Now, the pendulum is swinging. It is the secularists, whose views O’Rourke initially endorsed (again, one hope’s without thinking), who appear to be driving the train in a way that could have profound implications for the future of America.
Linda Greenhouse omits the anti-Catholic bias at the heart of a new case before the Court.
The headline is jolting. “Religious Crusaders at the Supreme Court’s Gates.” Thus starts Linda Greenhouse’s analysis of the actual and potential religion cases before the Court during its October term. Her thesis is that the Court’s relative restraint in its religion cases the previous term represented the justices’ merely “biding their time.” This term the gloves may come off. Now the Court may well “go further and adopt new rules for lowering the barrier between church and state across the board.”
She focuses on an Institute for Justice case that the Court has accepted for review, Espinoza v. Montana Department of Revenue. It involves a Montana supreme-court-ordered termination of a state tax-credit scholarship program that “helped needy children attend the private school of their families’ choice,” including religious and nonreligious schools. The precise issue before the Court, in dry legalese, is this: whether the Montana court’s decision “violates the religion clauses or the equal protection clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools.”
Greenhouse is incredulous. If SCOTUS rules against Montana, then, according to her, “the logical consequence is that a state that once had a program offering financial support to religious and nonreligious schools alike . . . and that subsequently shut down the program entirely can be deemed to have violated a principle of religious neutrality.”
“Can that possibly be the law?” she asks. But her summary isn’t exactly right. She pays short shrift to the key fact of the case. The Montana court’s ruling was based on the state’s Blaine amendment, an artifact of odious 19th-century anti-Catholic bigotry. In fact, the words “Blaine amendment” appear nowhere in her piece.
A brief history lesson is in order. As Mike McShane explained in an instructive Forbes piece last year, in the latter part of the 19th century, America’s public schools were often “nominally Protestant.” They would frequently start their days with prayer, the students would read from the King James Version of the Bible, and they’d sometimes even sing hymns.
So when Senator James Blaine proposed amending the United States Constitution to state that “no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations,” he was not attempting to stamp out public-school religiosity. He was attempting to deny aid to Catholic parochial schools.
Blaine’s federal amendment failed, but his language found its way into 37 state constitutions. As McShane notes, the anti-Catholicism of the amendments is betrayed by the words “sect” or “sectarian.” In the language of the time, Protestant instruction was “nonsectarian.” Catholic instruction was “sectarian.”
Let’s look at the relevant language of the Montana constitution. The section at issue is entitled “Aid prohibited to sectarian schools” and prohibits the use of public funds “for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.”
Mr. Blaine, meet your amendment.
So let’s go back to the question posed by Linda Greenhouse. “Could that possibly be the law” that states are prohibited from ending “a program offering financial support to religious and nonreligious schools alike”? Yes, it can possibly be the law. Indeed, it should be the law — when the state ends support because it’s enforcing a legal provision that in purpose and effect engages in blatant religious discrimination.
The twin constitutional pillars of religious liberty in the United States — the free-exercise clause and the establishment clause — don’t just protect liberty by disestablishing religion (by preventing the formation of a state church). They protect liberty by preventing punitive anti-religious policies. They prevent the state from targeting religion for disfavored treatment.
Targeting religion for disfavored treatment is exactly what Blaine amendments do. They were aimed squarely at Catholics. Yet as so often happens with attacks on liberty that are allegedly narrowly targeted, the government expanded its scope. Now the law aimed at Catholics affects all people of faith. When it comes to participation in public programs — programs they bought and paid for with their own dollars — Montana’s religious citizens and religious institutions are entitled to equal treatment under the law.
Texas senator Ted Cruz took to the Senate floor Thursday afternoon to denounce anti-Semitism moments before the Senate unanimously passed his bipartisan resolution condemning all forms of anti-Semitism.
“We’re living in an era where the need for a strong and clear condemnation of anti-Semitism has become acute,” Cruz said.
Cruz then went on to discuss the uptick in anti-Semitic attacks and violence in the United States and abroad, highlighting such horrific incidents as the shooting at the Tree of Life synagogue in Pittsburgh which killed eleven people.
“We have seen the growth on our college campuses of movements to aggressively boycott products made by Jews in Israel,” he continued, highlighting the Boycott, Divestment, and Sanctions (BDS) movement.
During his speech, Cruz pointed to the House of Representatives’ failure to pass a resolution earlier this year specifically condemning anti-Semitism after Rep. Ilhan Omar (D., Minn.) made numerous anti-Semitic remarks including insinuating American Jews have a dual loyalty to Israel.
“When the House tried to condemn anti-Semitism, sadly they were instead forced to water it down into a general resolution decrying bigotry of all sorts,” Cruz said. “There’s of course nothing wrong with condemning bigotry and hatred in general.”
“But anti-Semitism is a unique prejudice, with a unique history, that has led to unique horrors throughout history,” Cruz added. He noted Jews are the most targeted religious group in America today according to data from the FBI.
Cruz noted that American Jews have been subject to discrimination throughout the history of the United States, including being barred from certain social clubs, academic institutions, neighborhoods, and hotels.
“This is a shameful legacy and it makes it all the more incumbent that we as a Senate speak in one voice and stand resolved that the United States condemns and commits to combating all forms of anti-Semitism,” he said.
The resolution passed with unanimous consent and included fourteen Democratic cosponsors including Democratic presidential candidate Senator Bernie Sanders (I.,Vt.).
By Charles Fain Lehman • The Free Beacon
The Department of Justice filed an amicus brief Thursday in support of students claiming they were discriminated against after the state of Montana denied them placement in a tax credit scholarship program because the school they attended was a Christian one.
The case, Espinoza v. Montana Department of Revenue, concerns a the Montana Tax Credit Scholarship Program, which allows Montanans to deduct up to $150 of their contribution to a privately run scholarship program. The state department of revenue prompted the suit when it added a rule prohibiting tax credits for contributions to schools owned or operated by “a church, religious sect, or denomination.”
A group of parents brought suit on behalf of their children in December 2015 after they were denied participation in the scholarship program because their children attended a Christian-run school. The suit made it to a state trial court, which sided with the parents; the state then appealed to the Supreme Court of Montana, where DOJ lodged its Thursday amicus.
by Bill McMorris • Washington Free Beacon
The president of the University of Notre Dame called criticism of appeals court nominee Amy Barrett’s Catholic faith “chilling” in an open letter to Sen. Dianne Feinstein (D., Calif.).
Rev. John I. Jenkins sent the letter after Feinstein, the Senate Judiciary Committee’s top Democrat, criticized Barrett’s nomination in light of her Catholic faith. Feinstein asked Barrett, a Notre Dame law school professor, if she could be trusted to impartially weigh in on cases involving abortion, given the Church’s opposition to the practice.
“I would never impose my own personal convictions on the law,” Barrett said during a Wednesday confirmation hearing. Continue reading
Liberals just aren’t very liberal these days. The word “liberal” comes from the Latin word meaning freedom, and in the 19th century, liberals in this country and abroad stood for free speech, free exercise of religion, free markets, free trade — for minimal state interference in people’s lives.
In the 20th-century, New Dealers revised this definition by arguing that people had a right not only to free speech and freedom of religion but also, as Franklin Roosevelt said in his 1941 Four Freedoms speech, freedom from fear and from want. Continue reading