IV. Continued – How are Progressives Attacking Religious Liberty?
Nevertheless, they are arguing that non-profits, including the Little Sisters of the Poor, must still be forced to comply with the original HHS mandate or pay tens of millions of dollars in government fines. Seventeen states are now bringing lawsuits against the Little Sisters.(96)
A fifth Progressive strategy for attacking religious liberty is denying freedom of speech to Christians. In McCullen v. Coakley (2014),(97) Massachusetts made it a crime to knowingly stand on a “public way or sidewalk” within 35 feet of an entrance or driveway to an abortion clinic.(98) Abortion opponents who engage in “sidewalk counseling” sought an injunction, claiming that the Massachusetts law displaced them from their previous positions and hampered their counseling experts. The opponents sued Massachusetts officials, claiming the law violated their right to free speech under the First Amendment.
The U.S. Supreme Court agreed with the sidewalk abortion counselors. The Massachusetts statute restricted access to public ways and sidewalks that are traditionally public forums.
The government’s ability to regulate speech in such locations is very limited. The government may impose reasonable restrictions on the time, place, or manner of protected speech, but only if the government meets three requirements. First, the restrictions must be justified without reference to the content of the regulated speech. Second, the restrictions must be narrowly tailored to serve a significant governmental interest. Third, the government regulations must leave open alternative channels for communication of the information.
The U.S. Supreme Court held that the Massachusetts statute was not sufficiently narrowly tailored. The statute deprived the sidewalk counselors of their two primary methods of communicating with patients, close personal conversations and distribution of literature. Although Massachusetts has a legitimate interest in maintaining public safety and preserving access to abortion clinics, the Massachusetts statute imposed a substantially greater burden on free speech than was necessary to further these legitimate government interests. Since Massachusetts failed to show that it seriously undertook to use less burdensome means, the Massachusetts statute violated the abortion counselors’ First Amendment freedom of speech.
A sixth Progressive strategy for attacking religious liberty is using federal discrimination laws to usurp the authority of Christian churches and religious schools to select their own leaders. Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (2012)(99) holds that Americans are free to choose their ministers and religious teachers without regard to federal discrimination law Hosanna-Tabor Evangelical Lutheran Church and School classified its teachers into two categories, “lay” teachers and “called” teachers. “Called” teachers are called to their vocation by God, commissioned as ministers, and performed duties combining teaching and ministering. “Lay” teachers, on the other hand, are not even required to be Lutheran.
Hosanna-Tabor involved a “called” teacher who took a leave of absence for narcolepsy. She requested reinstatement before the school considered her ready. The teacher threatened to sue when her request for reinstatement was denied. This threat violated the religious beliefs taught by the church and school, which prohibit Christians from taking other Christians to court to resolve their disputes.(100) The church congregation voted to rescind her call and Hosanna-Tabor terminated her employment.
The teacher sued for reinstatement under the Americans with Disabilities Act (ADA).(101) The ADA prohibits discrimination by employers based on disability. It also prohibits retaliation against individuals for opposing acts prohibited by the ADA. Hosanna- Tabor claimed a First Amendment “ministerial exception” to government regulation of its ministers.
Hosanna-Tabor raised two issues. First, do federal discrimination laws govern the selection of leaders by religious organizations? Second, can the federal government compel the school to reinstate the teacher as a “called” teacher? Chief Justice Roberts, writing for a unanimous court, answered “no” to both questions.
The U.S. Supreme Court explained that the First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Familiar with life under the established Church of England, the founding generation sought to foreclose the possibility of a national church. By forbidding the “establishment of religion” and guaranteeing the “free exercise thereof,” the Religion Clauses insured that the federal government, unlike the English crown, would have no role in filling ecclesiastical offices.
The U.S. Supreme Court concluded that the Free Exercise and Establishment Clauses bar employment discrimination suits by ministers and religious teachers against their churches. Churches are free to shape their faith and mission under the Free Exercise Clause by selecting their own ministers and religious teachers. The Establishment Clause prohibits any government involvement in their selection.
Progressives in Congress are now attempting to bolster their attacks on religious liberty through federal discrimination laws with the so-called “Equality Act.”(102)This bill, which passed the House of Representatives on May 17, 2019, prohibits discrimination based on sex, sexual orientation, and gender identity. The bill prohibits an individual from being denied access to a shared facility, including a restroom, a locker room, and a dressing room, that is in accordance with the individual’s gender identity. This bill claims to promote equality but its true purpose is the denial of religious liberty. Section 1107 of the bill specifically prohibits the Religious Freedom Restoration Act of 1993 from providing a claim, defense, or basis for challenging any discrimination based on sex, sexual orientation, or gender identity.(103)
A seventh Progressive strategy for attacking religious liberty is to force Christians to abandon their faith or lose their livelihood. Jack Phillips is the owner of Masterpiece Cakeshop in Lakewood, Colorado.(104) When two men walked into his cakeshop and requested a custom cake to celebrate their same-sex wedding, Phillips politely declined. Phillips told the men he would be happy to sell them anything else in his shop. He could not, however, use his artistic talents to celebrate a message that was inconsistent with his Christian faith.
The couple filed a charge against Phillips under the Colorado Anti-Discrimination Act, which prohibits discrimination based on sexual orientation in a “place of business engaged in any sales to the public.”105 The Colorado Civil Rights Commission prosecuted Phillips even though the Commission allowed other Colorado cake artists to decline requests for custom cakes that expressed messages to which the artists objected. Members of the Commission made hostile statements against Phillips’ religious beliefs. One member called Phillips’ religious liberty defense “a despicable piece of rhetoric.” He even compared Phillips to the Nazi perpetrators of the Holocaust.
An administrative law judge found for the same-sex couple. The Colorado Civil Rights Commission’s hostility toward Phillips’ religious faith was so extreme that the U.S. Supreme Court formally rebuked the Commission. In a 7-2 decision, the Supreme Court reversed the case in Phillips’ favor and condemned Colorado’s “clear and impermissible hostility toward [Phillips’] sincere religious beliefs.” The Supreme Court wrote that “The Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.” (106)
Private citizens have now joined the Colorado Civil Rights Commission’s persecution of Phillips. In June 2017, on the very day that the Supreme Court announced its decision to hear Phillips’ case, an attorney called Phillips’ shop asking for a custom cake. The attorney wanted a cake that would be blue on the outside and pink on the inside to celebrate his transition from male to female. Phillips politely declined to create the cake because it expressed a message that conflicted with his faith.
Phillips believes that God creates us male and female. Gender is a biological reality determined by God, not something we choose or change. When Phillips declined this request, the attorney filed a new complaint with the Colorado Civil Rights Commission.
Less than one month after the U.S. Supreme Court condemned the state’s anti-religious hostility toward Phillips in the first case, the state agency made its first finding against Phillips in this new case. Phillips then filed a lawsuit against the relevant state officials. In March 2019, Colorado dismissed its case against Phillips.
With the end of that lawsuit, Phillips thought he could finally go back to focusing on his work. Now, however, the same attorney who filed the second complaint has filed a third lawsuit against Phillips in state court. This latest lawsuit seeks monetary damages and attorney’s fees from Phillips. If successful, it could bring financial ruin to Phillips and his family.
Another case illustrating the Progressive tactic of forcing Christians to abandon their faith or lose their livelihood is that of Barronelle Stutzman. Stutzman is a 74-year-old florist, grandmother, and the owner of Arlene’s Flowers in Richland, Washington.(107) Stutzman has served and employed people who identify as LGBT for her entire career, including her longtime customer and friend Rob Ingersoll for almost 10 years. When Mr. Ingersoll asked her to design custom floral arrangements for his same-sex wedding, Stutzman politely explained that she could not participate in the same-sex wedding because of her faith. Stutzman gave Ingersoll the name of other florists who might be willing to serve him. Mr. Ingersoll said he understood, hugged Stutzman, and left the shop.
After hearing about Stutzman’s decision in the news, the Washington State Attorney General decided to take matters into his own hands and sued her. The ACLU followed closely behind. Both lawsuits attacked Stutzman personally as well as her business. The trial court ruled against Barronelle and ordered her to pay penalties and attorneys’ fees. On appeal, the Washington Supreme Court concluded that the state government can force Stutzman and other creative professionals to create artistic expression and participate in events with which they disagree.
Stutzman petitioned the U.S. Supreme Court to hear her case. The U.S. Supreme Court vacated the Washington Supreme Court’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018).(108) The Washington Supreme Court ruled against Stutzman a second time in 2019, and Stutzman has again asked the U.S. Supreme Court to take her case.
Progressives in Congress are attempting to increase the persecution of Christians like Jack Phillips and Barronelle Stutzman with the so-called “Equality Act.”(109) This bill, which passed the House of Representatives on May 17, 2019, prohibits discrimination based on sex, sexual orientation, and gender identity. This bill is designed to deny the religious liberty of Christians, like Jack Phillips and Barronelle Stutzman, who live out their faith. The Equality Act specifically prohibits the Religious Freedom Restoration Act of 1993 from providing a religious liberty defense to claims such as those made against Jack Phillips and Barronelle Stutzman.(110)