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President Trump Fulfills His Promise to Protect and Promote Religious Freedom

The Trump administration announced last Friday that employers who offer health insurance would no longer be required to provide their employees with contraceptive coverage through the Obama-era mandate popularly known as the Affordable Care Act. That mandate stipulated that employers who offered health insurance – including Christian businesses and religious organizations – provide their employees through health coverage plans with access to all forms of contraception including abortion-inducing drugs.

The Trump administration issued two rules exempting employers from providing access to such contraceptives if it conflicts with their sincerely held religious beliefs. The exemptions cover those with moral objections and those with religious objections. The Trump administration stated that the Affordable Care Act failed to properly provide protections to those who held sincere moral or religious convictions against providing contraceptives such as the abortion pill at no cost to their employees.

During a White House Press Briefing, Press Secretary Sarah Sanders was asked for her response to the fact that the ACLU had already stated their intention to file a lawsuit, claiming that “The Trump administration is forcing women to pay for their boss’s religious beliefs.”

Sanders responded:

“The President believes that the freedom to practice one’s faith is a fundamental right in this country, and I think all of us do.  And that’s all that today was about — our federal government should always protect that right.  And as long as Donald Trump is President, he will.”

The action by the Trump administration to broaden the exemption to the HHS contraception mandate has been much applauded, especially among pro-life groups.

Alliance Defending Freedom Senior Counsel Greg Baylor stated:

We are pleased that this rule is a major step forward in keeping that promise and restoring back to people of faith their constitutionally protected freedom. We are also pleased the rule protects the conscience convictions of organizations like March for Life, an organization that bases its pro-life beliefs on science and philosophy, and hosts the largest pro-life gathering in the world every year in Washington, D.C.

Alliance Defending Freedom is representing 20 organization and 12 individuals, including the March for Life, in challenges to the HHS Obama-era mandate. The action taken by the Trump administration in broadening the exemptions to the mandate will improve the position of these organizations and individuals, although a final decision from the courts will ultimately be needed to resolve the cases.

With the recent loss of Tom Price as the former Secretary of Health and Human Services, Family Policy Institute of Washington last week appropriately voiced concerns over possible challenges this could pose to the state of religious liberty. Thankfully, it appears that there is still a reason for optimism and that the absence of former Secretary Price as head of HHS at least so far has not hindered the safeguarding of religious liberty protections.

After five grueling years of enduring the Obama-era mandate which, in essence, attempted to force business owners to violate their consciences or face crippling fines and even possible bankruptcy, the action taken by the Trump administration is a very welcome reprieve. Millions of Americans wanted no part of the healthcare mandate and the broadened exemptions put in place by Trump are certainly a partial fulfillment of his many campaign promises to ensure the continued religious liberty and conscience protections for individuals who are simply trying to live peacefully in accordance with their faith.

Josh Denton is a contributing writer for FPIW.

Trinity Lutheran v. Comer: Not Your Average Playground Scuffle

In 2012, Trinity Lutheran Church in Columbia, Missouri, faced a problem: its playground was covered with pea gravel—coarse stone fragments that make for a perilous play surface.

Fortunately, Missouri’s Department of Natural Resources runs a grant program that reimburses non-profit organizations for installing playground surfaces made from recycled scrap tires. Hoping to defray the expense of resurfacing its playground, the church submitted an application.

Although the Department ranked Trinity Lutheran’s application fifth out of the 44 submissions it received and awarded 14 grants, it denied the church’s application. Its reasoning? A state constitutional provision—known as a Blaine Amendment—that bars religious institutions like Trinity Lutheran from receiving state funding.

Blaine amendments are the remnants of a wave of anti-Catholic sentiment that swept the nation during the nineteenth century. The original Blaine Amendment, named for Maine Senator James G. Blaine, was designed to protect the existing Protestant monopoly on schools by barring state funding of “sectarian” (i.e., Catholic) institutions. Though Senator Blaine’s amendment failed to gain the necessary votes in Congress, thirty-seven states incorporated similar language into their constitutions. Washington State was one of them.

Washington’s Blaine Amendment remains wholly intact; that is, unless Trinity Lutheran has its way in the Supreme Court. By the end of its term on June 30, the Court will very likely decide whether excluding religious institutions from a secular grant program under a state Blaine Amendment violates the U.S. Constitution.

Here, Trinity Lutheran contends that government should not be able to deprive religious institutions of the benefits it makes available to all. To do so would run afoul of the Constitution’s Equal Protection and Free Exercise clauses which, when read together, provide that states must generally treat religious individuals the same as they would treat any other individuals. When a state does subject a religious individual or entity to unequal treatment, it must provide an especially compelling reason for doing so.

The government’s rationale behind the grant restriction boils down to avoiding the establishment of a state religion. A decision in favor of Trinity Lutheran would compel taxpayers to fund improvements to church property. This arrangement, according to the Department, constitutes unlawful state funding of religion. Unlawful, that is, under the Supreme Court’s current interpretation of the Establishment Clause.

The government’s argument rests on a fundamental misreading of the Constitution. For decades, the Supreme Court has insisted that government must not only avoid favoring one religion over another, but avoid preferring religion over non-religion. Scholars have vigorously debated whether this principle accurately reflects the Establishment Clause’s meaning since 1947, when the Supreme Court handed down its misguided decision in Everson v. Board of Education.

Aside from the merits of either interpretation, the inescapable consequence of the Court’s interpretation pits the First Amendment’s two religious clauses against one another in case after case. Trinity Lutheran’s dispute provides yet another example of this unresolved tension.

It is highly unlikely that the Supreme Court will resolve the Free Exercise/Establishment Clause debate here. Nonetheless, Trinity Lutheran has offered the Court a ripe opportunity to chip away at—if not abolish altogether—the anti-religious legacy of state Blaine amendments.

That is, assuming the justices aren’t too chicken to play.


Christina Pesavento is a blog contributor from the “other” Washington (Washington, DC), where she works at a legal non-profit association. She previously served as a law clerk with the U.S. Senate Judiciary Committee and was president of the Federalist Society chapter at the American University Washington College of Law.


 

Joe Kennedy’s Case To Be Heard By Ninth Circuit Monday

He was fired for praying on the football field after games. Now Coach Kennedy will have his case heard by the Ninth Circuit Court of Appeals.

School officials told Joe Kennedy—a former assistant football coach at Bremerton High School who was adored by his players—that he couldn’t pray after football games. After Kennedy continued praying, Bremerton School District placed him on administrative leave. They chose not to rehire him the next season.

Kennedy has sued the school district for discriminating against him on the basis of his religion.

This Monday, June 12, the Ninth Circuit Court of Appeals will hear oral arguments in Kennedy v. Bremerton School District at 9:00 am. The oral arguments will be heard at William K. Nakamura Courthouse, 1010 Fifth Avenue, Seattle, WA 98104.

Kennedy is being represented by First Liberty, a nationally renowned religious liberty legal defense organization. First Liberty has created a webpage to provide more information for those who want to learn about the particulars of the case.

Religious Liberty: The Kleins’ Battle is Our Battle

The freedom to discern right from wrong is among the most fundamental of human rights. It is so central to our being that it is a defining aspect of human nature itself. If we have no conscience, or no freedom to express our conscience, then we are denied part of our humanity.

Freedom of conscience was on trial on Thursday before the Oregon Court of Appeals. Aaron and Melissa Klein and their business, Sweet Cakes by Melissa, are currently the subject of a major religious freedom lawsuit. The Kleins lost their bakery and were fined $135,000 for declining to create a custom-made wedding cake for a same-sex marriage. Also of note, the Kleins were given a gag order by the Oregon Bureau of Labor and Industries, preventing them from speaking publicly about the details of the case or their religious beliefs.

This comes on the heels of Richland, WA, florist Barronelle Stutzman losing her case in the Washington State Supreme Court (Stutzman was sued by Washington State Attorney General Bob Ferguson after she declined to provide a same-sex wedding). These cases, and the many like them currently being litigated around the country, are not about homosexuality or Christianity. What is at stake is the fundamental liberty and natural right of each of us as American citizens to live our lives according to our sincerely-held beliefs.

For small business owners everywhere, many state governments, including Washington and Oregon, are making their position clear: deny your own conscience or give up your business, have your savings accounts emptied, and possibly spend time in jail.

Canadian philosopher Stefan Molyneux explains the issue well: “If you have no freedom of conscience, you have no freedom at all. Conscience must be inviolate. It’s the essence of who we are.”

Likewise, “When people can force you to go against what your conscience dictates, they own you more deeply than any slave master,” Molyneux said on his Freedomain Radio show.

You may not personally know Aaron and Mellissa Klein, Barronelle Stutzman, Donald and Evelyn Knapp, or Cynthia and Robert Gifford, but these people represent the First Amendment of the United States Constitution. Their battle is our battle. If they continue losing in court, the government will have the unchecked power to strong-arm individuals of any race, religion or creed into violating their conscience. It is my hope that every individual, Christian and Atheist, liberal and conservative, Democrat and Republican, straight and gay, will reject that dastardly kind of totalitarianism.

 

James Silberman is a guest contributor to the FPIW Blog. He is a pro-life activist from Gig Harbor, WA, and a student at Whitworth University.

FPIW Joins Effort to Encourage Trump to Protect Religious Freedom

FPIW has joined with dozens of pro-family organizations asking President Trump “to swiftly sign a broad religious freedom Executive Order protecting the right of all Americans to freely live out their faith.”

In a letter to President Trump, Vice President Pence, Speaker Ryan, and Majority Leader McConnell, the organizations call on the new presidential administration and Congress to reverse President Obama’s attacks on religious freedom and enact strong protections for the sacred right.

The letter evokes many high profile religious liberty cases of the last eight years, including Hobby Lobby, Little Sisters of the Poor, Illinois Catholic Charities, and Sweet Cakes by Melissa:

“Under his ‘hallmark achievement’ (Obamacare) alone, the Obama Administration attempted to: force Christian family-owned businesses like Hobby Lobby to pay for drugs and devices that can cause early abortions, force Christian charities like the Little Sisters of the Poor to include those same drugs in their healthcare plans, and contravene longstanding federal policy protecting Americans from being forced to fund abortions against their religious beliefs. …

“Families in our states have felt the impact of the disregard and disdain for religious freedom from the federal level. Frequently, state non-discrimination laws have been used as a weapon to punish people of faith and prevent them from earning a living— unless they comport their businesses in the image of the government’s viewpoints. The Kleins in Oregon are a tragic example—Melissa Klein lost her bakery business and was forced to pay a fine of over $100,000 simply because as a family-owned business operated in accordance with the Kleins’ deeply held beliefs, they disagreed with using Melissa’s cake-decorating talents to participate in a same-sex wedding. Illinois Catholic Charities—an organization that partnered with government to serve the state’s poor and neglected children for over 40 years—was forced to shut down rather than comply with the government’s rule requiring them to abandon the core convictions that motivated their charity in the first place.”

It also details the Obama Administration’s attempts to limit religious liberty to a more restricted “freedom to worship”:

“The Administration unsuccessfully argued that the First Amendment does not exempt churches from employment discrimination laws, even when hiring their own pastors and teachers. Ironically, in the name of ‘preventing discrimination,’ President Obama issued an Executive Order in 2014 that discriminates against faith-based entities by preventing them from contracting with their own government unless they forfeit their religious beliefs about human sex and sexuality. One final example is the Obama Administration’s regular use of the term ‘freedom of worship’ instead of ‘freedom of religion’—implying a deep misunderstanding about the depth of First Amendment protections. We are guaranteed the right to freely live out our faith in all aspects of life—not just the freedom to worship our God within the four walls of our church or home.”

The letter concludes by asking President Trump to sign an executive order protecting religious liberty, much like the proposed executive order that was leaked earlier this month:

“A broad religious freedom Executive Order affirming that persons and organizations do not forfeit their religious freedom when providing social services, education, or healthcare; earning a living, seeking a job, or employing others; receiving government grants or contracts; or otherwise participating in the marketplace, the public square, or interfacing with local, state, or federal governments is an excellent and vital first step to truly make religious freedom great again. Congress should follow your lead to pass strong religious freedom protections into law.”

Click here to read the letter in its entirety.

Write to President Trump and ask him to sign the executive order: https://www.whitehouse.gov/contact#page.

House Committee Debates Bringing Obamacare Mandates to Washington

Should controversial mandates from Obamacare—which many believe are on the way out in Washington, D.C.—be made a permanent part of Washington State law?

That is the question the House Healthcare and Wellness Committee considered this morning.  The committee heard public testimony on HB 1523, which would require all health insurance plans to cover all preventative services required under federal law as of December 31, 2016.  It also bans plans that would share the cost of any of those services with employees.

Even before public testimony was heard, members of the committee expressed concern about the details of the bill.  The one-page bill is remarkably short.  However, it incorporates hundreds of pages of federal law and an untold volume of “guidance” into Washington State law.  No one seemed to have an understanding of exactly what the mandates do and do not cover.

Some of those who came to Olympia today to express concerns about HB 1523. From left to right: Brett Kinney, Electric Mirror; Michael Pauley, Human Life of Washington, Arina Grossu, Family Research Council, Luke Esser, Washington State Catholic Conference

Proponents of the bill argued that mandatory coverage for “preventative care” would make it easier to detect diseases like cancer at a time when it was most treatable.

But concerns about the legislation focused on very different issues.

Arina Grossu, from the Family Research Council, testified that the mandate to cover “preventative services” includes requirements to pay for abortifacients like Plan B and Ella, which destroy human embryos and are therefore objected to as a matter of conscience by many.

Brett Kinney, Director of Business Operations for Everett-based manufacturer Electric Mirror, explained the concerns of businesses owners in being forced to pay for a product that violates the beliefs of business owners:

“We offer a comprehensive affordable medical plan to our nearly 400 employees that does not include abortifacients. Not once have we heard complaints that our medical plan or the prescriptive drug plan was not adequate to serve the needs of our employees which includes over 100 women ages 18 to 70.  This bill is trying to solve a problem that is not a problem and forcing us the employer to add cost which reduces our ability to grow our business and put more people to work.”

The Washington State Catholic Conference also offered testimony stating that they will not comply with legislation that forces them to pay for abortifacients, regardless of what the law says.

In addition to concerns about conscience rights, insurance industry representatives expressed concern that the bill appears to be an attempt to preempt a change in federal law before those changes actually take place.  They expressed a preference for waiting to see what happens in Washington, D.C., before reacting to it.

Obamacare mandates involving abortifacients led businesses like Hobby Lobby to sue the federal government, claiming that such mandates violate their religious beliefs.  In the Hobby Lobby case, the Supreme Court held that the mandates were invalid because they violated the federal Religious Freedom Restoration Act (RFRA).  However, Washington State does not have a state RFRA, which means the protections for conscience rights in Washington State are less robust than those that restrain actions of the federal government.

To advance, this bill needs the support of a majority of the members of the House Healthcare and Wellness Committee.

If that happens, it would need to receive passage from the entire House of Representatives before moving to the Senate for consideration.

Please contact your legislators and share your thoughts about this and any other issue through the Legislative Hotline at 1-800-562-6000 or email them by clicking here. 

As always, be respectful but be heard.  If you don’t speak for yourself, someone will speak for you.

 

 

Religious Freedom Executive Order Leaked; Progressives Panic

For many, it could define his Presidency.  And it’s a decision that could come within the first month of his term.

A leak of an executive order on religious freedom indicates that President Trump is seriously considering actions that would roll back many of the Obama Administration’s  assaults on religious freedom.

Generally, they’re concerned it would give individuals and religious organizations too much freedom.  This article from the Daily Signal summarizes some of what it would do.

  • Clarifies that religious exercise is more than worship: It tells the entire federal government to respect federal statutes and Supreme Court decisions that make clear the free exercise of religion applies to all people, of all faiths, in all places, and at all times—that it is not merely the freedom to worship.
  • Clarifies that religious freedom is for more than just churches: It notes that religious organizations include all organizations operated by religious principles, not just houses of worship or charities. And it follows the Religious Freedom Restoration Act in saying that religious exercise “includes all aspects of religious observance and practice,” not just those absolutely required by a faith.
  • Requires federal agencies to accommodate religious belief: It instructs all agencies of the federal government, “to the greatest extent practicable and permitted by law,” to reasonably accommodate the religion of federal employees, as required by Title VII of the Civil Rights Act of 1964 and the Religious Freedom Restoration Act.
  • Orders relief for Little Sisters of the Poor: It instructs the secretaries of Health and Human Services, Labor, and Treasury to finally grant relief to the Little Sisters of the Poor and others who weren’t exempted from the Obamacare abortifacient and contraception mandate.
  • Requires availability of health insurance without abortion coverage: It instructs the Secretary of Health and Human Services to ensure that all citizens have the ability to purchase health care plans through Obamacare that do not cover abortion or subsidize plans that do.
  • Prohibits discrimination against social service organizations because of their faith: It instructs the Secretary of Health and Human services to ensure that the federal government does not discriminate against child welfare providers, such as foster care and adoption services, based on an organization’s religious beliefs.
  • Creates protections for religious organizations that contract with the government: It adopts the Russell Amendment and instructs all agencies of the federal government to provide protections and exemptions consistent with the Civil Rights Act and Americans with Disabilities Act to all religious organizations that contract with the federal government or receive grants.
  • Protects tax exempt status for religious organizations: It instructs the Secretary of the Treasury to ensure that it does not revoke nonprofit tax status because a religious organization’s ordinary religious speech deals with politics, or because it speaks or acts on the belief that marriage is the union of husband and wife, that a person’s sex is based on immutable biology, or that life begins at conception.
  • Protects accreditation of religious institutions: It instructs all agencies of the federal government to refuse to recognize any decision by a federally recognized accrediting body that revokes or denies accreditation to an organization because of such beliefs.
  • Protects federal employees from discrimination based on beliefs: It instructs all agencies that they may not take adverse action against federal employees, contractors, or grantees because of their speech about marriage outside of their employment, contract, or grant, and that agencies shall reasonably accommodate such beliefs inside of employment, contract, or grant.

While these protections would be a change from the Obama Administration’s posture on religious freedom, historically it would represent a return the mainstream.

All these protections in the executive order were more or less assumed prior to President Obama taking office and progressives believing they now had an inalienable right to make people do things they didn’t want to do in the name of ending “discrimination.”

While progressives have already labeled them as plans to “legalize discrimination“, they’re mostly a restatement of what religious freedom has always been understood to mean.

Namely, a place where people get to be who they are and the government doesn’t get to punish them for it.

You can be sure that progressives will be beating down the doors trying to convince the president not to make good on his campaign promises.

Which is exactly why he needs to hear from you.  Call the White House and tell President Trump that you want him to fulfill his campaign promises and protect religious freedom. (202)-456-1414.  Or send a message online at www.whitehouse.gov/contact

Then share this with your friends and encourage them to do the same.

Barronelle Stutzman Hearing, Rally Scheduled for November 15

Barronelle Stutzman, the 72-year old floral artist and grandmother being sued by Washington Attorney General Bob Ferguson and the ACLU for exercising her constitutionally protected freedom to act consistent with her faith, will be in Court on Tuesday, November 15th as the Washington Supreme Court hears oral arguments.

Stutzman served her longtime friend and customer – and his partner – for nearly 10 years, but could not participate in and design floral arrangements for his same-sex ceremony because of her love of Jesus and his teachings about marriage. Barronelle faces losing everything she owns for acting consistent with her deeply held convictions.

The arguments begin at 9:00 am, but we will begin gathering at the Carlson Theatre at Bellevue College at 7:30 am. We recommend arriving early to get in line to ensure a seat. Some of us will remain outside for a peaceful prayer gathering during oral arguments. We will provide signs and refreshments. A debrief will take place after the arguments conclude with Barronelle (location TBD). Please bring your family and friends and join us in supporting Barronelle!

The Carlson Theatre is located at, 3000 Landerholm Circle SE, Bellevue, WA, 98007-6406.  You can let us know that you plan to attend by RSVPing to the rally Facebook event.

Bremerton School District to Use Taxpayer, Classroom Funds to Fight Kennedy Lawsuit

 

The Bremerton School District is lawyering up.

After filing a federal lawsuit against the District, Coach Joe Kennedy’s legal team made one thing pretty clear: Coach Joe just wants his job back.  “All we really want for him – is to be back on the sideline coaching those kids – and nothing more,” said Michael Berry, one of Kennedy’s attorneys with the First Liberty Institute.

Kennedy was fired last year after refusing to submit to the District’s demands that he stop praying before and after football games. His prayers, the District said, constituted an endorsement of religion, and were in violation of the separation of church and state. When this story broke last year, there was overwhelming support for Coach Kennedy from across the country, standing in support of continued protections under the First Amendment.

He didn’t stop praying, and the District put him on leave before ultimately firing him.

But there’s a new twist to this story: Bremerton School District must use taxpayer money to fight the discrimination lawsuit that Coach Kennedy has now brought against them in federal court.

The Kitsap Sun reported that the Bremerton School District has made the decision to pull needed legal funds from the general fund in order to beef up its legal team to fight this lawsuit in court.

Translation: the Bremerton School District is pulling funds from the classroom to keep Joe Kennedy off the field.

The District spent $6,600 in September of 2015 to cover the cost of legal work related to the Kennedy issue.  That amount increased to $10,512 in October 2015.  At present time, the District has dumped an additional $190,000 into its legal fund — all from the general fund — for legal work “in anticipation of legal costs for JK.”

As a taxpayer, how do you feel about this?  Sound off in the comments below, or on Facebook and Twitter.

Congressional Hearings Begin on First Amendment Defense Act

 

A congressional committee is considering legislation that would protect the fundamental rights of those who believe in traditional marriage.

The First Amendment Defense Act (FADA) “would prevent the federal government from discriminating against individuals, associations, or businesses, such as churches and religious colleges, by denying a tax exemption, grant, contract, license, or certification because they believe marriage is a union of one man and one woman.”

Worried that the Supreme Court’s decision in Obergefell v. Hodges (2015) laid the foundation to undermine religious liberty, Chief Justice John Roberts wrote in his dissent,

“Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage – when, for example, a religious college provides married student housing to only opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. There is little doubt that these and similar questions will soon be before the court.”

Passing FADA would be a great first step to reducing these concerns.

FADA is modeled after the Church Amendments, which were adopted after the Supreme Court’s decision in Roe v. Wade (1973) that found a constitutional right to abortion. The Church Amendments protect the rights of those who morally object to abortion to act in accordance with their convictions.

In the aftermath of Obergefell v. Hodges, it is imperative that the government affirms its obligation to protect the fundamental rights of those who believe in traditional marriage. No person or religious organization should be compelled to betray their beliefs about marriage to maintain a tax-exempt status or do business with the federal government.

Sadly, this view is not shared by many progressives and LGBT activists.  Testifying before the House Committee on Oversight and Government Reform, Columbia Law School Professor Katherine Franke claimed that “while religious belief is absolutely protected [under the First Amendment], religiously motivated actions are not.”

The professor’s position is indefensible. This statement is comparable to saying that the First Amendment only protects an individual’s right to hold opinions, but not his or her right to speak publicly about them.  That has never been the interpretation or expectation about free speech in America.

Contrary to Professor Franke’s testimony, the First Amendment does protect the “free exercise [of religion].” Free exercise includes actions that are motivated by religious convictions. The government can limit these actions only when it has a compelling interest to do so. It is absurd to conclude that the federal government has a compelling interest to ostracize and punish organizations that uphold the traditional definition of marriage.

Our founders understood the danger of allowing government to interfere in religious beliefs, and they protected against that by ratifying the First Amendment. In a letter to a Presbyterian pastor, Thomas Jefferson wrote, “I consider the [federal] government of the United States as [prohibited] by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises.”

Jefferson continued, “In this enlightened age and in this land of equal liberty it is our boast that a man’s religious tenets will not forfeit the protection of the laws…”

Most Americans, including those who support same-sex marriage, would hopefully agree that it would be wrong for the federal government to discriminate against religious organizations because of their beliefs about marriage.

Religious liberty is too important to be relegated to a sacrifice on the progressive altar of inclusion and political correctness.