The lawyers are already at work contesting the decision by the governing board of Arizona’s Washington Elementary School District to exclude student-teachers from a Christian university after a long and productive relationship.
In recent years, more than 100 students and teachers-in-training from Arizona Christian University have taught in the district’s elementary schools. ACU’s president, Len Munsil, said that many of these students have been hired as full-time teachers. Munsil also said that the high quality of ACU student-teachers prompted school administrators to ask for more trainees from the university.
Then the board noticed the mission statement of the ACU website. The university holds to “biblically informed values that are foundational to Western civilization, including […] the centrality of family [and the] traditional morality and lifelong marriages between one man and one woman.”
No one has alleged that any of ACU’s student-teachers have brought religion or discrimination into the district’s public schools. So, what’s the problem? School board president Nikkie Gomez-Whaley said that she doesn’t believe Christian student-teachers can separate their Christian values from their professional obligations, making them unable to treat students equally. “For me,” she told The Christian Post, “this is not a concern about Christianity, there are plenty of Christian denominations who are LGBTQ friendly.”
But what about the denominations and religions that hold doctrines similar to that of the ACU?
For example, what will the Washington Elementary School District do now about teachers drawn from the pool of more than 60 million Roman Catholic Americans? Despite the softening of Pope Francis on criminalizing same-sex relations, he has not changed the Catechism of the Catholic Church, which calls same-sex relations as “intrinsically immoral and contrary to the natural law.”
That’s a stronger statement than the one made by ACU. Is the Washington Elementary school board now going to exclude Roman Catholics?
Opposition to same-sex marriage is also prevalent in Orthodox Judaism and Sunni and Shia Islam, as well as many Eastern religions. Is the Washington Elementary school board also going exclude Jewish and Muslim teachers?
Let us suggest a way out for the school board: acknowledge that people can belong to faiths that have dogmas with which you disagree or even find offensive. Understand also that all the great world religions endorse the fair treatment of all people. As long as teachers do not bring their faith into the classroom, they should be judged by the quality of their teaching.
Anything less than that is a gross violation of the First Amendment’s guarantee of the free exercise of religion.
Protect The 1st Asks HHS to Estimate How Many Doctors Will Leave Profession as a Result of Watered-Down Protections of Religious Rights
How Many of the Underserved Will Lose Their Healthcare?
Protect The 1st on Monday filed a comment with HHS detailing many of the ways in which the proposed recension of a 2019 rule to protect the religious conscience rights of physicians, nurses, and other health-care providers will hurt access to care among low-income and underserved Americans.
In 2019, the Department of Health and Human Services (HHS) reported that a poll showed that more than 80 percent of healthcare providers who are religious would likely limit their scope of practice if they were required to participate in practices and procedures – such as abortion or sex reassignment surgery – to which they have a moral, ethical, or religious objection.
“If the existing rule is rescinded, many of these physicians will be forced to choose between obeying their conscience or violating their most cherished beliefs,” said Gene Schaerr, general counsel of Protect The 1st. “There is no lack of health-care providers who are willing to provide these procedures. Trying to force the minority of doctors and other providers to violate their conscience is a pointless exercise in religious discrimination and enforced ideological conformity.”
Protect The 1st asks HHS:
Please explain why, in the Department’s view, religious freedoms do not warrant protective regulatory provisions similar to those protecting other civil rights.
Please estimate how many doctors will likely leave the medical profession if they are required to perform medical procedures to which they are religiously opposed.
Please estimate the effect on underserved communities if religious hospitals and other entities choose to shut down rather than perform procedures to which they are religiously opposed.
Please estimate the rate at which patients will be unable to obtain what the Department considers healthcare if the 2019 final rule is largely rescinded.
The Protect The 1st comment also noted that the HHS proposal to move from reviews of systemic offenders to a “case-by-case” basis will shift the burden of litigation to injured parties. The department’s removal of all compliance requirements will almost certainly encourage the recent rash of local laws that discriminate on the basis of religion.
The Protect The 1st filing also said that the “proposed new rule is so deficient as to appear half-hearted in its attempt to protect religious freedoms.” In seeking to purportedly protect religious liberty and expand healthcare, the department’s new rule “cuts its own feet out from under it.”
Protect The 1st will work to communicate the dire nature of this rule change – and its impact on those who can least afford a restriction of access to health care – to the Biden Administration and to Congress.
Protect the First to SCOTUS: Sidewalk Preacher Case Is an “Excellent Vehicle” to Resolve Public Forum Speech Issue
Protect The 1st on Wednesday filed a reply brief answering claims from the University of Alabama against our petition for the U.S. Supreme Court to hear Keister v. Bell.
We told the court that this case is an “excellent vehicle” to resolve a split in appellate courts on the proper analysis of what constitutes a public forum. The case revolves around the right of evangelist Rodney Keister to stand on city-owned sidewalks on a public street in Tuscaloosa, Alabama, near the University of Alabama. The UA campus police enforced an agreement with the city to clamp down on expressive activity at that portion of the sidewalk, warning Keister not to preach on this portion of a public sidewalk.
At stake is the right of Americans to use public spaces to engage in speech – a practice that was embedded in American life long before colonials handed out Thomas Paine’s Common Sense pamphlets. The Tenth Circuit Court of Appeals, for example, recognizes that “traditional public fora are open for expressive activity regardless of the government intent.” On the other hand, the Eleventh Circuit ruled against Keister with a multifactor balancing test and allowed the University to forbid expressive activity on the sidewalk.
Protect The 1st wrote: “Even assuming the propriety of a balancing test, the Eleventh Circuit’s circular reliance on the University’s intent to suppress speech was an improper fulcrum for converting the most quintessential of traditional public fora into a limited forum allowing suppression.”
Protect The 1st is hopeful the Court will take this chance to resolve a split in the courts and uphold the traditional right of Americans to use public property for expression and speech.
The Alliance Defending Freedom has won another victory for free expression after reaching a settlement in court with the Simpson County School District in Mississippi to retract a policy infringing on a student’s right to religious expression. In 2020, during the height of the pandemic, elementary school student Lydia Booth was told by school staff that she could not wear a facemask emblazoned with the words “Jesus Loves Me.”
"I chose [the mask] because it had my favorite words on it, ‘Jesus Loves Me,’ and it made me feel safe when I went to school," Lydia said.
At the time, the school had no formal policy barring students from wearing clothing that expressed a political or religious message, so long as the message did not interfere with the educational process. Lydia had already worn the mask several times to school without any problem. Then, in October 2020, Lydia was told she could not wear a mask with words on it, despite other students regularly wearing masks with sayings or slogans. Lydia was asked again several days later to leave her mask at home. Finally, the district changed its mask policy to prevent “religious” or “political” statements.
But last week, the district reached an agreement with Lydia and the Alliance Defending Freedom to reverse their policy. Although the school no longer requires masks in the classroom, this lawsuit sends a clear message that free speech and expression, including religious expression, is to be protected in the schoolhouse.
Protect The 1st congratulates Lydia and the Alliance Defending Freedom on their hard-won settlement. “It’s about the little things,” Lydia’s mother, Jennifer, said. Although a face mask with the words “Jesus Loves Me” may seem like a small win, it is out of such small victories that lines are drawn to protect our First Amendment rights.
Matthew 25:35: I was hungry, and you gave me something to eat. I was thirsty, and you gave me something to drink. I was a stranger, and you took me into your home.
For two millennia, Christians have seen charitable service as a form of worship, as do Jews, Muslims, and people of other faiths. They have scripture and centuries of tradition on their side. Too bad they don’t have a black robe and a gavel.
An appellate court in Wisconsin recently ruled that a Catholic charity, which has provided aid to the disabled, the elderly, and the poor for over one hundred years, no longer qualifies for religious liberty-based legal exemptions. The court held that the express purpose of the charity as a religious institution does not protect it from having to contribute money to the state’s unemployment system, instead of to a church-run system.
This ruling is of far greater significance than the immediate issue: it opens a fresh legal vulnerability for the free practice of religion. If upheld, this ruling would subject religious-based charities to all manner of state agency rules regarding church governance that would amount to government regulation of belief.
This case involves the Catholic Charities Bureau, the social ministry arm of the Diocese of Superior, Wisconsin. The charity covers sixteen counties, roughly a quarter of the state. The nonprofit offers in-home health care, housing, childcare services, and other resources to those in need as a way to demonstrate the spirit of the Gospels.
The Wisconsin appellate court doesn’t grasp how this organization can be both charitable and religious. It ruled an organization is “operated primarily for religious purposes” only if its professed motive and activities are based on explicit proselytizing. Although the charity is run by Catholics compelled by scripture to aid the needy, the court found that the primary purpose of the bureau is charitable work and not proselytization. Thus, the court reasoned, the charity is not operated “for religious purposes.”
The Catholic Charities Bureau is challenging the court’s ruling under the First Amendment’s Establishment Clause, appealing the decision to the Wisconsin Supreme Court. The appeal notes that the appellate court’s ruling would enable the government to “finely parse all the activities of religious bodies in the State and decide whether those activities are ‘inherently’ or ‘primarily’ religious.” Quite right – no activity violates the Establishment Clause more than one in which the government decides which religious practices qualify as religious, and hence protected, and which do not. After all, the Supreme Court has recognized that “[t]he clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” If courts really can say that proselyting activities are worthy of legal protection, but charitable activities categorically aren’t, then inevitably some religious groups – here, Catholics – are going to find that their beliefs, though inherently religious, are less protected than the religious beliefs of others. The Bureau thus rightly informs the court that the ruling, at bottom, infringes on the charity’s ability to freely exercise its religion.
Eric Rassbach of the Becket Fund for Religious Liberty says that the outcome of this case could have huge ramifications for religious establishments. The ruling implicates legal protections of other organizations that are affiliated with religious institutions, such as parochial K-12 schools or religious colleges and universities.
The devout of many faiths believe that reaching out to help people in the community is, perhaps, the most effective form of proselytizing. Such a narrow definition of religious organization would degrade the First Amendment rights of thousands of institutions and millions of American faithful around the country.
Protect The 1st will report further developments in this case.
A federal district judge in Oregon late Thursday dismissed a lawsuit filed by a group of students who have soured on the religious colleges they attend (or have attended), seeking to overturn the religious exemption that Congress included in federal law to protect the right of religious colleges and universities to adhere to the tenets of their faith.
Title IX of the Education Amendments of 1972 prohibits educational programs or activities receiving federal funds from excluding, denying benefits to, or subjecting to discrimination any person on the basis of sex. Congress, however, included a narrow exception to Title IX when an educational institution “is controlled by a religious organization” holding “religious tenets.”
Forty people who applied to, attended, or currently attend religious colleges and universities filed suit against the U.S. Department of Education, alleging that religious schools discriminate against them on the basis of their sexual orientation or gender identity. The plaintiffs alleged that the “religious exemption to Title IX exerts a chilling effect” on their free exercise of religion, speech, assembly, and association.
District Judge Ann Aiken noted that the Supreme Court has upheld the obvious principle that churches “advance religion, which is their very purpose.” Nor did Judge Aiken buy the plaintiffs’ argument that the religious exemption somehow violates the Religious Freedom Restoration Act (RFRA). The judge noted, “the text is clear that government granting exemptions does not constitute a violation …”
In short, Judge Aiken ruled “the balance of equities” fails to tip in the favor of the plaintiffs.
“This ruling is a big win for the rights of religious universities and colleges,” said Gene Schaerr, general counsel of Protect The 1st. “It upholds the First Amendment rights of these schools to advocate the tenets of their faiths, and to freely associate on that basis.”
On December 23rd, the U.S. Court of Appeals for the District of Columbia ruled that Sikhs who serve or wish to serve in the military may keep their beards, in a First Amendment win for religious minorities.
In Sikhism, adherents will often allow their hair to grow out naturally as a sign of respect for God’s creation; however, each military branch maintains strict regulations on personal grooming, which effectively bar pious Sikhs from serving, even though exceptions have been made for medical conditions such as pseudofolliculitis barbae.
On Friday, the Court ruled in favor of three Sikh plaintiffs who were denied admission to basic training in the Marine Corps. The Court argued that denying Sikhs admission to basic training because of their religious beards violates the Religious Freedom Restoration Act (RFRA), which holds that the federal government cannot “substantially burden a person’s exercise of religion” unless such a burden is the least restrictive means of achieving a “compelling interest.”
The Court stressed the delicate balancing act at play: on the one hand, “no military organization can function without strict discipline and regulation that would be unacceptable in a civilian setting.” On the other hand, “the cost of military service has never entailed the complete surrender of all ‘basic rights[.]’” As Eric Baxter, lawyer to the plaintiffs, said, Sikhs “have served for a long time in militaries around the world, including in the United States, with all of their articles of faith in place.”
We commend the Court on an excellent decision. While we recognize that military service necessitates the sacrifice of some personal freedoms, we must work to ensure that as few as possible are relinquished. Americans do not shed their constitutional rights to the freedom of religion at military training ground gates.
The Alliance Defending Freedom scored a win in federal court recently when it represented a Christian student organization that says it was the target of viewpoint discrimination at the University of Nebraska-Lincoln (UNL).
Ratio Christi — Latin for “the reason of Christ” — is a multinational organization that “equips university students and faculty to give historical, philosophical, and scientific reasons for following Jesus Christ.” In 2021, the UNL chapter requested $1,500 in student activity funding to host Notre Dame Professor Robert Audi. Professor Audi, who previously taught at UNL for nearly thirty years, was slated to give a speech on whether it is rational to believe in God. The University rejected the request, stating that funding could not be provided for “speakers of a political and ideological nature."
The University also stated that Ratio Christi must invite a speaker to represent the opposite views of Audi to obtain the funding. In their suit, the ADF called this “viewpoint discriminatory on its face.” The policy set forward by the university “gives University officials unbridled discretion to engage in viewpoint discrimination by failing to set out narrow, objective, and definite standards for the disbursement of student fees for extracurricular speech.”
Thankfully, a federal court recently ruled in favor of the ADF and Ratio Christi. On December 15th, the ADF announced that the university accepted the court’s judgment and agreed to pay Ratio Christi $1,500. Additionally, the university also changed its student organization funding policy “to promote the availability of diverse viewpoints to UNL students […]”
Protect The 1st congratulates the Alliance Defending Freedom and Ratio Christi on their hard-fought legal victory. We also commend the University of Nebraska-Lincoln for accepting the Court’s judgment with magnanimity, and for taking necessary steps to ensure academic freedom and viewpoint diversity are upheld.
Becket Fund Survey on Religious Freedom Finds Increase in Respect for Religious Diversity
The fourth edition of the Becket Fund’s annual Religious Freedom Index found—among other things—an increase in respect for religious diversity. This is welcome news to champions of religious freedom everywhere.
The Religious Freedom Index regularly polls Americans to measure their “perspectives on core principles of religious freedom” and to provide “timely insights into pressing social and cultural questions.”
This year, public support for religious pluralism increased by four points, capping off a ten-point increase since 2020. Over 90% of survey respondents completely or mostly support:
The American public also widely supports protecting religious minorities. For example, the poll found nearly 90% of Americans support protecting Native American sacred sites located on federal land. Americans also support the rights of business owners to conduct their businesses in accordance with their religious beliefs, with little variation when the business owner is a member of a majority or minority religion.
Still, there is room for progress. The report found that while 85% of respondents correctly identified the freedom of speech as a First Amendment right, less than half could do the same for religious freedom. For this reason, the report states “advocates for religious freedom have an opportunity to educate the broader public on key constitutional rights.”
PT1 commends the Becket Fund for producing yet another rigorous and high-quality report. The data paint a promising picture of the health of religious freedom in the United States. First Amendment advocates should avail themselves of this valuable resource.
Protect The 1st has long supported the people of the Apache Stronghold as they’ve faced the gut-churning prospect that the government will allow a foreign mining consortium to transform their ancient site of worship into a giant crater as long as the Washington Mall and deep as two Washington Monuments.
Over the summer, a three-judge panel of the Ninth Circuit Court of Appeals issued a ruling that refused to protect Oak Flat, a large swath of the Tonto National Forest that the federal government recognized in a 19th century treaty as land held sacred by the Apache. The court ruled that the transfer of this land to a copper mining consortium resulting from a midnight deal in Congress did not substantially burden the First Amendment right to religious exercise of the Apache. Protect The 1st objected that the absolute destruction of a religious minority’s site of worship, the Apache’s equivalent of the Vatican or Temple Mount, was a “substantial burden” of the right of religious freedom guaranteed by the First Amendment and the Religious Freedom Restoration Act (RFRA).
In our view, the Ninth’s ruling would not only destroy the centerpiece of one religion, but would erode all religious protections guaranteed by RFRA. We weren’t alone in our thinking: Judge Marsha Berzon of the Ninth Circuit dissented, called her peers’ ruling “absurd,” “illogical,” “disingenuous,” and “incoherent.”
In August, the judges of the Ninth Circuit called for a vote to rehear the case en banc, in front of a full court of 11 judges. Such requests for a rehearing are exceedingly rare, limited to about one-half of one percent of cases. Legal observers welcomed the maneuver as a chance for dissenting judges to get their opinions on record as fodder for a bid for certification for oral argument before the U.S. Supreme Court. Few legal observers gave Oak Flat a realistic chance for an actual rehearing.
The Apache people, undaunted, responded in a positive and hopeful way by organizing a caravan to San Francisco to urge the court to go ahead and reconsider its ruling.
On Thursday, the full court voted to grant Oak Flat a full en banc rehearing.
Gene Schaerr, PT1 general counsel, congratulated the Becket law firm for its strong representation of the Apache.
“This is a very encouraging day for religious liberty, the Religious Freedom Restoration Act, and the rights of religious minorities in America,” Schaerr said. “It is remarkable that the Ninth Circuit itself sought this review of its decision.
“We congratulate the Ninth for this bold decision and look forward with enthusiasm to supporting the Apache’s case.”
With a coming razor-thin Republican majority in the House to replace a razor-thin Democratic majority, there is a risk that the nuances of religious liberty will be overlooked in the partisan crossfire on Capitol Hill.
Consider Oak Flat – the pending transaction in which land sacred to the Apache for centuries and recognized as such by the federal government in a 19th century treaty – will be transferred to a foreign mining consortium. Land that is to the Apache what the Vatican is to Catholics and the Temple Mount is to Jews is slated to be utterly destroyed. When the mining is done, Apache’s sacred land will be a crater as long as the Washington Mall and as deep as two Washington Monuments.
When debate concerning Oak Flat occurred in the House Natural Resources Committee on Wednesday, concerns about the rights of a minority religion, the free expression of religion under the First Amendment, and the protections of the Religious Freedom Restoration Act were barely mentioned. The mostly party-line vote was on a measure to press the Biden Administration to release internal memos on what Republicans see as its slow-walking of environmental and other approvals for the land transfer. The debate between the still-Democratic majority and the incipient Republican majority centered around the overall policies of the Biden Administration.
Wherever you come down in this debate, it is unfortunate that Oak Flat was chosen as the lead plaintiff for the case against Biden’s energy and environmental policies – at the expense of a focus on religious liberty.
The measure did not pass, but it will have a better chance when the Republicans take control in January. When they do, they should consider that destroying the prime place of worship for one minority religion will make it all that easier for government to discriminate against other religions. The weakening of the Religious Freedom Restoration Act will also make it easier to infringe on the religious freedom of Christians and evangelicals, Jews, and Muslims.
Protect The 1st Joins Jewish, Muslim and Sikh Coalition to Defend the Religious Rights of Native Americans
Petition to Supreme Court in Slockish v. U.S. Department of Transportation
Protect The 1st today joined the Jewish Coalition for Religious Liberty, the Sikh Coalition, and the American Islamic Congress in petitioning the U.S. Supreme Court to review the harms inflicted on religious liberty by a Ninth Circuit Court of Appeals decision.
This petition concerns a case that began in 2008 when the U.S. Highway Administration, ignoring the objections of members of the Yakima Nation and Grande Ronde tribes, bulldozed Native ancestral burial grounds and dismantled a stone altar. The site was razed to widen U.S. Highway 26 in Oregon, while a tattoo parlor on the other side of the highway was left untouched.
After this desecration of their sacred lands, tribal members sought relief for this infringement in federal court. On Nov. 24, 2021, the Ninth Circuit Court of Appeals ruled the government would not be held responsible for destruction of the sacred site and dismissed the case as moot.
On Nov. 4, 2022, a coalition of Jews, Muslims, Sikhs, and Protect The 1st petitioned the Supreme Court to consider the threat to religious liberty, especially non-Western and Indigenous religious groups lacking political clout, by this cavalier treatment of a faith by the federal government.
The coalition’s petition demonstrates three errors driving the Ninth’s egregiously wrong decision, which threatens to gut the protections of the free exercise of religion under the First Amendment, the Religious Freedom Restoration Act (RFRA), and the Religious Land Use and Institutionalized Persons Act (RLUIPA).
First, The Ninth Circuit took a ‘our hands-are-tied approach.’ The court ignored that under RFRA, the government must rule out any possibility of remedying a religious freedom violation—including remedies that might partially satisfy the plaintiffs’ religious beliefs. The court uncritically accepted the government’s position that any relief would, somehow, involve “safety” regarding the highway easement.
For example, the Ninth Circuit refused to consider actions that could be taken without impairing highway safety, such as planting trees or medicinal herbs in the surrounding areas, or whether any part of the sacred site could be rebuilt outside of the narrow strip of land covered by the easement.
The coalition’s petition informs the High Court that the failure of the Ninth Circuit to consider the possibility of some measure of relief “is especially troubling here, where the Ninth Circuit was deciding the rights of minority religious adherents. Especially in such cases, courts must thoroughly evaluate what sorts of accommodations believers of minority faiths might find acceptable …”
Second, the Ninth Circuit’s decision ignores RFRA’s broad grant of authority to the judiciary to redress government interference with religious practice. The coalition brief explains that the Ninth Circuit decision here “flouts RFRA’s text” and Supreme Court precedent. “In holding that courts are powerless to redress statutory and constitutional violations because some remedies might (in the government’s view) implicate a state agency’s right-of-way, the Ninth Circuit got things exactly backwards.”
Instead, when federal courts confront federal actions that infringe on religious rights, the authority of courts to act in defense of those rights is strong.
Third, the Ninth Circuit took at face value the government’s claims that no remedy was feasible, instead of analyzing that claim under RFRA and RLUIPA. The coalition concludes: “If left standing, the Ninth Circuit’s decision would gut RFRA, permitting government actors to simply claim ‘infeasibility’ whenever they find accommodating religious practice inconvenient.”
“This case is a matter of heartbreak for American citizens of Native faiths,” said Gene Schaerr, general counsel of Protect The 1st. “It should also be a matter of deep concern for Sikhs, Jews and Muslims who wish to wear outward manifestations of their faith, as well as Christians and people of all faiths who want to preserve the protections of the Religious Freedom Restoration Act.”
When the founders drafted the First Amendment forbidding the abridgement of freedom of speech, “pamphlet wars” were common, with opposing sides handing out flyers and inviting passersby to listen to their opinions. Even in this age of tweets, most Americans recognize parks, sidewalks, and other public spaces as venues where people are allowed to hand out flyers and politely ask passersby to hear them out.
The federal courts, however, are split on the question of whether this form of expression, as old as colonial America, must be respected today under the First Amendment.
Concerned about this encroachment on speech, Protect The 1st petitioned the U.S. Supreme Court to hear a case from a street preacher who was silenced by university officials and police. This happened when evangelist Rodney Keister stood on city-owned sidewalks on a public street in Tuscaloosa, Alabama, near the University of Alabama. By agreement with the city, the UA campus police oversee a portion of the public sidewalk at an intersection near – but not on – the campus. The campus police more than once warned Keister that he could not preach on this public sidewalk. Fearing arrest, the preacher left but filed a lawsuit that was eventually heard by the Eleventh Circuit Court of Appeals.
The question as to whether a city-owned public sidewalk is a traditional public forum should be a slam-dunk in favor of free speech. But federal courts are split on the issue.
The Ninth, Tenth, and D.C. Circuits stick with the First Amendment analysis in these public forum cases, allowing speech. But other circuits hold that streets open to the public but adjacent to college and university buildings are limited public forums. Speech there can be restricted.
In one public forum case, the D.C. Circuit ruled against the government, which attempted to prohibit a demonstrator from holding a sign or distributing leaflets on the grounds of the U.S. Capitol building. While these grounds are obviously under the control of federal authorities, they are parklike and open to the public. Making this distinction, the D.C. court rejected any claim that the grounds were a “special type of enclave” that had to be protected from free expression. That court held that “because of their historical association with the exercise of free speech,” streets, parks and sidewalks are quintessential examples of public forums.
The Eleventh Circuit, on the other hand, held that even though the sidewalk in Tuscaloosa was open to the public and owned by the city, the maintenance of that sidewalk by the university necessarily involves the university’s intent toward expressive activity.
Protect The 1st asks the Supreme Court to consider if courts can “apply an amorphous and manipulable balancing test that relies on the government’s or its delegee’s intent to restrict speech as a justification for doing so.” We also informed the Court that by “denying ‘public forum’ status to a place that has traditionally been a public forum – sidewalks tied to public streets – the decision below threatens the First Amendment not merely in Tuscaloosa, but throughout the Nation.”
In our petition, Protect The 1st tells the Supreme Court that the “use of multifactor balancing tests makes the outcomes in any given case unpredictable and unprincipled. There is a better way. Relying on the text of the First Amendment, read in light of history and tradition, providers a surer approach.”
Protect The 1st believes this case not only raises important constitutional questions on which the courts of appeal are divided, but also presents an excellent vehicle for the Supreme Court to resolve them.
A Win for Religious Freedom in Alabama
Earlier this year, we reported how the Mustangs, the basketball team of the Oakville Academy of Huntsville, Alabama, were denied their chance to compete for the state title by the Alabama High School Athletic Association.
The rub was that they were scheduled to play on a Saturday, which the young men of this Seventh Day Adventist school could not do on their Sabbath. Other teams agreed to switch out their times with other teams, avoiding a problem. But the Alabama High School Athletic Association refused to approve the switch.
Our take at the time was that the treatment of these Seventh Day Adventists was “the exact opposite of reasonable accommodation.” Alabama Gov. Kay Ivey apparently agreed. She sent a letter to the Athletic Association asking if the media reports were true, who on the staff would not relent, and if the board of that organization was consulted.
Raynon Andrews, Mustangs senior captain, said holding true to his faith is more important to him than a state championship. “When God created the Earth,” he said, “on the seventh day he rested … I’m not going to play on that day no matter what, because it’s bigger than basketball.”
Under intense public pressure, the Athletic Association recently voted to change its policy to accommodate faith-based scheduling requests, which Gov. Ivey called “a win for religious liberty.” She also praised the Mustang men. “They stood strong in their faith and showed that good can come from a difficult situation.”
In America today, a special day of worship in many religions can fall on a Friday, a Saturday, or a Sunday. Conflicts are inevitable in a nation of many religions but still largely observing a Gregorian calendar with mainstream Christian holidays. The Athletic Association might still face a serious conundrum if only Saturday games should be available.
The change of policy in Alabama shows us, however, that if we are willing to bend a little, most everyone can be accommodated most of the time.
As Republicans and Democrats square off for the final weeks of this midterm election, we should take a moment to recognize that bipartisan cooperation can still work in favor of good policies, including protections of free speech and the free exercise of religion.
President Biden’s recent signature of a bill to extent the United States Commission on International Religious Freedom, a bipartisan commission that monitors and reports on the treatment of religious groups around the world, demonstrates our country’s continued commitment to freedom of religion. The USCIRF has no lack of persecuted groups to track – Yazidis, Baha’is, and Christians in the Middle East, Jehovah’s witnesses in Russia, Rohingya in Burma, and Christians in Nigeria.
Congratulations for pushing the reauthorization of this body goes to a bipartisan group of supporters – Sens. James Lankford, Marco Rubio, Bob Menendez, Jim Risch, Dick Durbin, and Chris Coons.
It is not lost on us, however, that while funding for international tracking of religious persecution was being discussed over the summer in the U.S. Senate, writer Salman Rushdie almost died from a vicious attack in Chautauqua, New York. We are reminded that attacks on belief can strike here, too, as well.
A federal district court this month protected the right of physicians in California to opt out of participating in assisted suicide if they have religious or ethical objections to the practice. This ruling highlights the need for responses to a troubling trend by state governments from California to Maine to steamroll the First Amendment’s guarantee of the free exercise of religion.
Gov. Gavin Newsom last year had updated California’s six-year-old euthanasia law to reduce patients’ wait times and streamline the documentation of their cases under the End of Life Option Act. While the law had a clause that doctors “shall not be required to participate,” physicians were still getting caught up in a requirement for them to “document” a patients’ request to die, and to “educate” them in the procedure and its prescribed pharmaceuticals.
The court sided with the Christian Medical and Dental Association by issuing a preliminary injunction preventing California from forcing physicians to participate in these aspects of assisted suicide. The court based its ruling on the provision’s likely violation of physicians’ First Amendment rights.
“Our clients seek to live out their faith in their medical practice, and that includes valuing every human life entrusted to their care. Participating in physician-assisted suicide very clearly would violate their consciences,” said Kevin Theriot, senior counsel of the Alliance Defending Freedom, who is representing CMDA.
This preliminary injunction should become a permanent rule. First Amendment advocates must continue to be wary of rising anti-religious attitudes in some states’ policies.
The Ninth Circuit Court of Appeals recently ordered the San Jose Unified School District to reinstate the Fellowship of Christian Athletes (FCA) as a recognized student club. A tartly written concurrence by one judge vividly portrays a hostile culture of secularism that may be behind some recent overreaching official efforts to isolate students from religious observance.
The issue at hand was that FCA leaders are required to abide by a Statement of Faith, which includes the belief that sexual relations should be limited within the context of a marriage between a man and a woman. Judge Kenneth K. Lee, one of two out of three judges on the panel that decided in favor of the FCA, wrote a stinging concurrence. He vividly portrays “a stench of animus against the students’ religious beliefs” that pervades San Jose’s Pioneer High School campus.
Judge Lee describes one Pioneer high school teacher, Peter Glasser, who “channeled his inner Martin Luther, pinning the [FCA’s] Statement of Faith and Sexual Purity Statement to his classroom whiteboard along with his grievances. But instead of a reformation, Glasser demanded an inquisition. As he explained in emails sent to Principal Espiritu, FCA’s ‘bs’ views ‘have no validity’ and amount to heresy because they violated ‘my truth.’ Glasser believed ‘attacking these views is the only way to make a better campus’ and proclaimed he would not be an ‘enabler for this kind of ‘religious freedom’ anymore.”
Judge Lee then turned to the behavior of another school official.
“Michelle Bowman,” Judge Lee writes, “also serves on the Climate Committee [a body that pushed to de-recognize the FCA] and as a faculty advisor to the Satanic Temple Club. In discussing this lawsuit with a former student, she opined that ‘evangelicals, like FCA, are charlatans and not in the least bit Christian,’ and choose darkness over knowledge and perpetuate ignorance.’ But it is not for Bowman to dictate what beliefs are genuinely Christian.”
Hit with this onslaught of attacks, the FCA was derecognized in two days without giving FCA students any opportunity to defend themselves or their organization. Judge Lee goes on to describe the efforts by Glasser and others to further accuse the expelled group of creating a hostile work environment for students and faculty because of their beliefs.
“In other words,” Judge Lee wrote, “teenagers – meeting privately to discuss the Bible – were creating a hostile work environment for adult faculty, according to Glasser.”
Judge Lee concludes: “In sum, animus against the FCA students’ religious-based views infected the School District’s decision to strip the FCA of its ASB status. And that violates the First Amendment’s protection of the free exercise of religion.”
Just as religion should not be taught in the classroom, it should also be free of harassment by educators and officials.
When a federal district court upholds the First Amendment rights of a person or organization, can it enforce those rights in the future? The answer by The Protect the First Foundation before the U.S. Court of Appeals for the 11th Circuit is a resounding “yes.”
The Hillsborough Area Regional Transit Authority (HART) of Tampa runs ads on its vehicles and bus shelters but prohibits ads that “promote a religious faith or religious organization.” When Young Israel of Tampa, an Orthodox synagogue, tried to place an ad for its “Chanukah on Ice” event, HART rejected those ads under its no-religion policy.
A district court came down on the side of Young Israel on First Amendment grounds and issued a permanent order or injunction forbidding HART from “rejecting any advertisement on the ground that the advertisement primarily promotes a religious faith or religious organization.” HART appealed, arguing that the district court’s injunction was an abuse of its powers and that HART’s advertising policy was constitutional.
The PT1st Foundation counter, filed Wednesday evening, demonstrates:
“First Amendment rights are fundamental rights essential to every other form of freedom. As a result, First Amendment rights warrant special protection. Because courts cannot enjoin conduct and do not ‘strike down’ unconstitutional laws, a court cannot adequately protect First Amendment interests without including prohibitions against future illegal conduct in its injunction.
“Without such preventative relief, governments would be free to repeat the same constitutional violation in the future. Any resolution of this case that fails to prevent future harm does not adequately vindicate the First Amendment.”
PT1st believes remedies to violations of the First Amendment should be as enduring as our right to free speech.
The U.S. Court of Appeals for the Fifth Circuit in New Orleans issued a unanimous ruling that the Department of Health and Human Services cannot force physicians to perform gender-transition procedures or abortions against their conscience or medical judgment. This ruling is a tremendous victory for the rights of religious exercise and conscience everywhere.
This landmark decision is the result of Franciscan Alliance v. Becerra, a case that pitted the Roman Catholic healthcare system Franciscan Alliance and other parties against President Biden’s Secretary of Health and Human Services, Xavier Becerra. The case revolved around a federal mandate issued in 2016 as part of the Affordable Care Act requiring doctors and hospitals to perform gender-transition procedures on any patient, including a child, even if the procedure violates the physician’s conscience and in his or her judgment could harm the patient.
The mandate also required private insurance companies and many employers to cover gender reassignment therapy or face severe penalties and legal action.
The Fifth Circuit also affirmed a lower court’s order “permanently enjoining (HHS) from requiring Franciscan Alliance to perform gender-reassignment surgeries or abortions in violation of its sincerely held religious beliefs.”
Joseph Davis, legal counsel for the Becket law firm, which filed suit on behalf of the Franciscan Alliance, said: “Doctors cannot do their jobs and comply with the Hippocratic oath if the government requires them to perform harmful, irreversible procedures against their conscience and medical expertise.”
PT1st looks forward to the extension of this rule to protect healers of faith and others who freely exercise their beliefs under the First Amendment.
Religious Schools and National Vibrancy
Robert Pondiscio, senior fellow at the American Enterprise Institute and a former New York City public school teacher, and Elli Lucas, research assistant at the American Enterprise Institute, wrote Monday in The Washington Examiner:
“Not only can [school] choice provide a way out for students in failing schools, but it can also enrich our nation by enhancing its vibrancy, variety, and vivacity. Our nation is better off when its schools are not a bland monoculture but rather match the varied dynamism of its people and their aspirations.”
Protect The 1st would only add that religious schools are a strong contributor of vibrancy and variety for a bland monoculture. Empowering schools that offer quality education standards while also continuing faith traditions – be they Christian, Jewish, Muslim, Sikh, or Hindu – is a powerful use of the Free Exercise Clause to the benefit of all.
Others, Nones, and Religious Education
It has been fashionable for some time now to insist that religiosity in America is in a freefall decline. Now, it seems as though the reports of American religiosity’s death are greatly exaggerated.
According to a study described in a recent Wall Street Journal article, most studies showcasing religious decline in America erroneously lump new congregations, denominations, and non-Christian religions into “Others” and “Nones.” The scale of the error is so significant that pollsters may be missing somewhere around one-third of total religious adherents in the United States. Many of these so-called others and nones are non-Christian religions and breakaway congregations from America’s mainline Protestant denominations which, indeed, have been in freefall decline for decades. A religious transformation is underway in America, but not the one most commentators thought.
This religious transformation demonstrates why it is just as important as ever that Americans continue to enjoy the right to educate their children according to their faith traditions. Protect The 1st supports efforts to protect religious schools and education for people of faith as an expression of the “Free Exercise” clause of the First Amendment.
Brad Wilcox at the Institute for Family Studies said, “childhood religiosity predicts a variety of positive outcomes.” When compared to the general population, adults who went to church routinely from their youth onward report higher rates of happiness, community engagement, and a greater sense of purpose and meaning, while also reporting lower rates of boredom.
Hostility to religion, however, could become a self-fulfilling prophecy.
Barriers to the ability of religious adults to raise their children according to their faith traditions would likely lead to the decline of religion in a couple of generations. Recent Supreme Court decisions such as Carson v. Makin, which struck down the state of Maine’s exclusion of religious schools from participation in rural vouchers, are welcome reminders that many of our leaders today continue to recognize the role of religion in America. There had to be, after all, a good reason for the founders to include the free exercise of religion in the First Amendment.