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American Religious Freedom Today

What you should know about emerging legal trends

Kristen Waggoner on March 16, 2020

The First Amendment of the U.S. Constitution uniquely protects Americans’ rights to religious freedom and free speech. Historically, we have been able to pray and share our faith openly, choose our vocations, and live out our beliefs without encountering government penalties.

But as the leader of the Alliance Defending Freedom’s U.S. legal division, I am concerned that religious liberty is eroding. Even some of the most socially beneficial doctrines of the Christian faith are now culturally taboo. And there are those who go beyond maligning the Christian faith to using government power to suppress that faith.

For example, at my church home, Cedar Park Church (Assemblies of God) in Bothell, Washington, supporting life at every stage is a vibrant part of the mission. The church has multiple pro-life ministries that serve the elderly, the sick, vulnerable women, and the unborn, among others. But the state of Washington has threatened to impose criminal penalties on Pastors Jay and Sandy Smith unless Cedar Park violates its convictions by providing employee health insurance that covers elective abortions.

Cedar Park is not alone; many Christian churches and ministries face similar threats.

But amid these challenges, we retain our sacred responsibility to bear witness to the gospel and to steward our freedoms for the next generation. As in the Book of Esther, God is raising up leaders “for such a time as this,” to live out the gospel in our present moment. He calls courageous people to stand for Him and for the cause of freedom.

And providentially, we are seeing God’s hand at work — so much so that we should be hopeful here and now about the opportunities to protect religious freedom.

In Weakness, God Gives True Strength

I’ve seen firsthand the open government hostility toward Christian ministries and individuals. For example, Missouri officials refused to award a religious preschool a government grant for playground resurfacing solely because a church owned the playground. California officials ordered religious pro-life pregnancy centers to advertise for free abortions or close their doors.

The city of Anchorage, Alaska, told Downtown Hope Center, a religious shelter, that it had to force vulnerable, homeless women to sleep overnight just feet from a biological male who identified as female. And when cake artist Jack Phillips followed his faith by declining to use his art to create a custom cake celebrating a same-sex wedding ceremony, Colorado’s ensuing prosecution cost Phillips half his family’s income.

But by God’s grace, these clients had the courage to challenge unjust laws, and they prevailed. The religious preschool, the pro-life pregnancy centers, and Phillips won before the U.S. Supreme Court. Downtown Hope Center won safety and privacy for its ladies in a lower federal court.

And God is bringing more victories: In Phoenix, the Christian owners of Brush & Nib Studio overcame the city’s threats of fines and even jail to force them to use their art to celebrate same-sex unions if they created custom work for biblical marriages.

After ADF brought a lawsuit, the New York City Council repealed a law barring therapists from listening to and counseling adult patients who wanted to reduce same-sex attraction or make peace with their biological sex.

The Landscape in 2020

I was privileged to argue Phillips’ Masterpiece Cakeshop case, in which the U.S. Supreme Court warned government officials they cannot be hostile to people of faith, and rejected the argument that those who believe marriage is between a man and a woman were akin to racists.

Now, in Arlene’s Flowers v. State of Washington, we are asking the Court to also make plain that the government cannot force Americans to participate in religious ceremonies or create artistic expressions that violate their conscience. The owner of Arlene’s, Barronelle Stutzman, is facing the loss of nearly all she owns, because she could not in good conscience create custom floral art celebrating a longtime customer’s same-sex wedding, despite serving customers regardless of their sexual orientation.

In another petition, Thomas More Law Center v. Becerra, we’re asking the Court to rule that religious nonprofits cannot be required to disclose the names and addresses of donors to a state registry, which will inevitably subject donors to possible harassment and impact charitable giving.

There are signs that the tide of protecting religious freedom and speech is turning.

Also before the Supreme Court this year is the religious freedom of private Christian schools in Espinoza v. Montana Department of Revenue, where justices will consider whether state governments can exclude students attending these schools from student-aid programs available to those who attend secular private schools.

In Little Sisters of the Poor v. Commonwealth of Pennsylvania, the Supreme Court will again weigh in on whether Catholic nuns dedicated to serving the elderly poor must provide contraceptives (including the week-after pill) in their health insurance plans or pay millions of dollars in fines for declining to do so. If the case sounds familiar, it’s because high courts already acted twice to protect the Little Sisters. But still the Pennsylvania attorney general has fought to take away the Little Sisters’ exemption — even though Pennsylvania has already admitted it can and does use state programs to provide contraceptives to those who need them.

ADF attorneys are making similar arguments in State of California v. Azar on behalf of the March for Life organization and, in February, asked the Supreme Court to consider that case as well.

In Our Lady of Guadalupe School v. Morrissey-Berru, the Supreme Court has agreed to weigh in on two cases addressing whether government officials control whom a church-run school chooses to teach its religion classes. The Ninth Circuit previously ruled against two California Catholic elementary schools that had terminated teacher contracts based on a history of poor performance, but the Supreme Court’s decision to pick up the cases could restore the schools’ freedom to select and keep teachers who embody and teach their faith effectively, without government interference.

Catholic Social Services has asked the Supreme Court to intervene against Philadelphia’s efforts to prevent CSS from helping needy children unless it agrees to place children in homes with cohabiting unmarried or same-sex couples — an obvious violation of its long-standing religious convictions. ADF is litigating similar cases with New York and Michigan ministries that may also reach the Supreme Court.

And ADF is defending Cedar Park and the Smiths against the state’s efforts to treat them like criminals for respecting the sanctity of every human life. A lawsuit involving Skyline Wesleyan Church in San Diego challenges a similar law.

Legislative Challenges

On the legislative front, Christians face the so-called Equality Act, which would add “sexual orientation” and “gender identity” as protected classes to portions of federal law. The Equality Act would force religious business owners, ministry leaders, artists and many others to violate their beliefs about marriage and sexuality. It would require medical professionals, parents and religious hospitals to provide and support so-called “gender affirmation” surgeries and treatments, despite serious scientific faults and religiously based concerns.

The act would endanger women by forcing them to share privacy areas with biological men, and it would strip female athletes of fair competition by making them compete against biological males.

The Tide Is Turning — Toward Freedom

Despite the increasing pressure for churches, ministries and believers to abandon their convictions, there are signs that the tide of protecting religious freedom and speech is turning. The legal victories identified above signal courts are recognizing that the First Amendment protects dissenting voices in a hostile cultural climate.

Recent legal challenges brought by gender identity activists are also bringing together unexpected allies. One example is radical feminists joining ADF in arguments to the U.S. Supreme Court in Harris Funeral Homes v. Equal Employment Opportunity Commission, recognizing that erasing the distinctions between men and women harms all Americans, regardless of faith or political ideology. We expect a ruling in this case soon.

As U.S. Supreme Court Justice Samuel Alito recognized in 2017, a “wind is picking up that is hostile to those with traditional moral beliefs,” but “the most important fight is for the hearts and minds of our fellow Americans. It is up to all of us to evangelize our fellow Americans about the issue of religious freedom.”

Certainly, Justice Alito was talking to us lawyers. But what he said applies to every Christian. We all have a duty to proclaim the gospel boldly and winsomely, while ensuring that civil government protects the rights of all to live out our faith freely. As the apostle Paul put it: “Let us not become weary in doing good, for at the proper time we will reap a harvest if we do not give up” (Galatians 6:9).

This article originally appeared in the March/April 2020 edition of Influence magazine.

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