Sixth Circuit Upholds Marriage

In the latest developments in the national conversation about marriage, the Sixth Circuit Court of Appeals ruled today that laws in Michigan, Ohio, Tennessee, and Kentucky that define marriage as a relationship between a man and woman are constitutional.

The Court said it would be inappropriate of them to make a final determination on the issue of marriage:

“Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel, or for the matter all federal judges, about whether gay marriage is a good idea. Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us — just two in truth — to make such a vital policy call for the thirty-two million citizens who live within the four States of the Sixth Circuit: Kentucky, Michigan, Ohio, and Tennessee.”

Finally, they concluded that the legislative arena as the better place to resolve political debates over social issues:

“In just eleven years, nineteen States and a conspicuous District, account for nearly forty-five percent of the population, have exercised their sovereign powers to expand a definition of marriage that until recently was universally followed going back to the earliest days of human history. That is a difficult timeline to criticize as unworthy of further debate and voting. When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become fellow citizens seeking to resolve a new social issue in a fair-minded way.

For this reason, we reverse.”

This decision comes only four weeks after the Supreme Court refused to hear an appeal of other decisions ruling that marriage is unconstitutional.

The Supreme Court is far more likely to hear a case when there is disagreement among the circuit courts. Marriage now meets that criteria.

Will the Supreme Court take this case up now?  Only time will tell.

Why Do Nuns Need Birth Control?

When the Supreme Court released their decision in Hobby Lobby v. Sebelius on Monday it started the race to understand what it means for the other challenges to the contraceptive mandate in Obamacare.

The Hobby Lobby case established that the mandate violates the religious freedom of private, family owned companies, but a number of religiously affiliated non-profit organizations have challenged the mandate as well.

Obamacare includes an exemption from the mandate for churches, but that does not extend to thousands of religiously affiliated organizations like hospitals, colleges, universities, religious schools, and charities.

For example, Tyndale House Publishing, which is owned by the nonprofit Tyndale House Foundation and is the largest Bible publisher in the world, has been deemed not religious enough to be exempt.

Another non-profit organization that does not want to be forced to purchase contraception in their insurance plans is Little Sisters of the Poor, an international organization of Catholic nuns that cares for elderly poor people.

They have filed a lawsuit claiming that the requirement to provide contraceptive coverage violates their religious freedom.

In an effort to accommodate religious organizations without exempting them, the Obama Administration has told Little Sisters to sign a letter that the organization’s employees (nuns) could then use to obtain birth control coverage.

However, Little Sisters has argued that signing a letter that someone else would use to obtain birth control makes them complicit in something they believe is wrong.

The Department of Health and Human Services responded by claiming that Little Sisters should not object to signing the letter because it does not make them a party to the transaction but only releases them from the obligation of providing birth control themselves.

But the premise is wrong.

If the free exercise of religion means anything, it means the government doesn’t get to tell the people what is important to them as a matter of conscience, they get to honor it.

When the government tells you what beliefs are approved, that looks much more like an establishment of religion rather than the free exercise of it.

The good news is that the Hobby Lobby decision rejected the idea that government can decide for individuals when an action is morally objectionable.

Justice Alito, in the majority opinion, wrote, “[The objection to the mandate] implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.  Arrogating the authority to provide a binding national answer to this religious and philosophical question, HHS and the principal dissent in effect tell the plaintiffs that their beliefs are flawed.  For good reason, we have repeatedly refused to take such a step.”

He continued, “it is not for us to say that their religious beliefs are mistaken or insubstantial.”

This seems like good news for Little Sisters of the Poor.

The government’s argument that religious organizations should be content with the accommodation being offered appears to have been rejected on the grounds that the government doesn’t get to dictate to its subjects err… the people…what is acceptable to them on moral grounds.

If, as we hope they will, the Supreme Court agrees that the contraception mandate violates the religious freedom of non-profit organizations as well, then we can go back to figuring out who thought it was critical to guarantee birth control coverage for an order of nuns in the first place.

Hobby Lobby: What It Means for Arlene’s Flowers

The ink was hardly dry on the Supreme Court’s decision in Hobby Lobby v. Sebelius before the left trotted out their well-worn talking points about the “war on women”.

Don’t want to pay for her abortion?  War on Women.

Don’t want to pay for her contraception? War on Women.

The whole feminist movement used to be about recognizing that women weren’t dependent. But now it appears to have taken a bizarre u-turn to a place where a fundamental tenant of women’s rights is that women will be hopelessly lost if someone else doesn’t furnish accessories for her sex life.

If I were a woman, I think I’d be a little offended.

But since I am a apparently a chauvinist, I will just continue believing that women are capable of getting  their own birth control if it’s that important to them.

As one tweeter pointed out in response to the social media firestorm, “if you can afford a device to tweet, you can also afford $8 a month for your own contraception”.

How disenfranchising.

Regardless, the Supreme Court has spoken and family owned businesses can decline to pay for some things that violate their beliefs.

But in no way does this settle the much larger debate over religious freedom.  It’s important for us to understand how this decision affects the numerous other cases working their way through the courts.

One of the nation’s most significant religious freedom cases involves Arlene’s Flowers, a Richland, WA florist who declined to provide the floral services for the same-sex “wedding”.

Since Hobby Lobby is a business that was told they couldn’t be forced to violate their conscience, it would be nice if we could simply conclude that Arlene’s Flowers also can’t be forced to violate their religious beliefs.

But as is often the case in the world of law, it’s not quite that simple.

In the Hobby Lobby case, the Green family successfully argued that the contraception mandate violates the federal Religious Freedom Restoration Act (RFRA), because it burdens religious liberty without having a compelling reason to do so.

The problem for businesses like Arlene’s Flowers is that the Supreme Court, in Boerne v. Flores, ruled that RFRA cannot be applied to the states.  Since Arlene’s Flowers is being sued by Washington State, the statute that protected Hobby Lobby from a federal law is not available to protect a business from state action.Washington State could adopt their own version of RFRA and offer greater protections for religious freedom-as eighteen other states have done.

However, that idea was met with strong opposition in 2013 specifically because many legislators do not want businesses to have the freedom to choose how they operate.

In addition, the lawsuit against Arlene’s Flowers has been brought under the Washington non-discrimination statute, which prohibits discrimination on the basis of sexual orientation.  There is no federal equivalent.

Of course Arlene’s Flowers does not discriminate on the basis of sexual orientation.  She had knowingly and cheerfully served the customers involved in this lawsuit for nearly a decade and employed people with same-sex attraction.

But at this point, Attorney General Bob Ferguson does not recognize the difference between declining to provide a certain service and declining serve gay people generally.

Because of this, Arlene’s Flower’s cannot simply rely on the encouraging ruling from the Hobby Lobby case.

Unfortunately, many on the left believe the right not to be discriminated against on the basis of sexual orientation, which was invented 10 years ago, trumps the First Amendment right to the free exercise of religion that has existed since the founding of our country.

Even more strangely, they believe it is a greater affront to personal freedom to ask Sally to find another florist than it is to force Jane to do something that violates her beliefs.

In any other context, this argument doesn’t pass the straight face test.

No one would accuse a tattoo artist who refuses to place a swastika on the arm of a client of imposing his narrow views on someone else.

So what can we do to protect businesses like Arlene’s Flowers in Washington?

The first thing you can do is call Bob Ferguson at 360-753-6200 and ask him to recognize the rights of business owners to exercise religious freedom and drop the lawsuit against Arlene’s Flowers.

Then, you need to find out how your elected officials feel about religious freedom and the lawsuit against Arlene’s Flowers. You can email them here.

If religious freedom matters to you, it needs to be an issue that determines how you vote in every election.

Remember, friends don’t let friends vote for people who sue grandmothers because of their beliefs.

In the end, politicians respond to their constituents or get replaced by the same.

It is our job to make sure the voices supporting religious freedom are stronger than those opposing it.

Yesterday was a good day for religious freedom, but it is up to us to make sure that there are more good days in the future.

Your contribution of $5 or more make it possible for us to protect religious freedom here in Washington State.

Today We Are All a Little More Free

Today we are all a little more free.

In a historic victory for religious freedom, the Supreme Court ruled, in a 5-4 decision, that Hobby Lobby and Conestoga Wood cannot be forced to pay for early abortion drugs for employees.

The Obamacare mandate at issue requires, among other things, that twenty different contraceptive methods be covered by employer insurance.  Two families, the Greens and the Hahns, objected to four of the specified contraceptive methods on moral grounds.

So they went to court and argued that the Religious Freedom Restoration Act (RFRA), which was passed by Congress in 1993, protects them from being forced to violate their conscience.  In response, the Obama Administration argued that RFRA only protected the rights of individuals and not of for profit companies.

Today, the Supreme Court agreed with the families by concluding that, at least in this case, RFRA protects decisions made by these families in their business life as well as their private life.

In essence, the court said that people do not automatically surrender their religious freedom when they start a business and become job creators.

This decision is particularly significant for Washington businesses like the Everett based Electric Mirror, which filed an amicus brief at the Supreme Court in support of Hobby Lobby and Conestoga Wood.

Electric Mirror is owned and operated by the Mischel family who are committed evangelical Christians. One member of their family, Aaron Mischel, was adopted after his birth mother was convinced not to go through with a planned abortion.

They do not provide abortion coverage or pay for contraception that covers abortion in the health insurance plans for their employees.

Electric Mirror President Jim Mischel, the brother of Aaron Mischel, explains, “Our desire to promote life and protect the most innocent among us is not just theoretical for businesses like ours, it is deeply personal.  We consider it a responsibility and a privilege to do everything we can to take care of our employees and their families, but that does not extend to helping them do things we believe are wrong.  The fact that the law gives you the right to do something should not mean that I, as your employer, am obligated to participate in it with you.  We are thankful that the Supreme Court acknowledged that my beliefs and my business are not separate.”

Justice Alito, who wrote the majority opinion, shared this sentiment,  “It is not for the Court to say that the religious beliefs of the plaintiff are mistaken or unreasonable.”

Abortion industry advocates dislike the decision because they claim it allows employers to get in between the relationship of a doctor and the patient.

In reality, however, employers want to stay out of their employees’ doctor’s office but the mandate attempts to pull them, kicking and screaming, into the consultation room so they can pay the bill.

You may have the right to own a shotgun, but your boss shouldn’t be required to buy one for you.

Employers should be free to offer compensation packages that are acceptable to them and employees should be free to work for whomever they want.  If the parties cannot agree, both should be free to find a better fit.

When government decrees prevail, only those who agree with the decree win.  When individuals retain the right to make decisions for themselves, everyone wins.  Giving the government power over the individual because they’ll use it in a way we like is not a long-term plan to peace and prosperity.  That sword always ends up having two edges.

We can all be thankful for this important decision, but there is still a long way to go.

Tonight, say a prayer for the Greens, the Hahns, and the Mischels whose involvement in these cases have resulted in all of us being a little more free today than we were yesterday.  Then consider what you’re willing to do to protect our religious freedom.  After all, freedom isn’t free and we can’t ask them to do all the work.

Stay tuned, tomorrow we will look at what this means for florists and pharmacists who are also in court trying to protect their religious freedom.

Your contribution of $5 or more makes it possible for us to protect religious freedom here in Washington State.

Press Release: FPIW Applauds Supreme Court’s Decision to Uphold Religious Freedom

LYNNWOOD, Wash. – The Family Policy Institute of Washington (FPIW) praised today’s decision by the Supreme Court upholding conscience rights and religious freedom of family owned businesses who object to paying for sterilization, contraception and drugs that cause abortions.

FPIW Executive Director Joseph Backholm said, “This is one of the most significant decisions of our generation.  Everyone who cares about freedom should be encouraged by the fact that individuals don’t surrender their religious freedom simply because they become job creators.”

“The government’s mandate gave family owned businesses two on-choices: either violate your deeply held beliefs and pay for something you believe is wrong or pay a fine of $100, per employee, per day.  In the case of Hobby Lobby, that is $1.3 million per day. It is sad that the government would want to do this to its citizens, but it is encouraging that the Supreme Court affirmed that they cannot.  It is simply unkind to conclude that because I have the right to buy something I also have the right to force you to provide it for me.”
“In a free and diverse society, we respect the freedom to live out our convictions, not just in private, but in the way we conduct our lives in public as well,” Backholm concluded.


The Family Policy Institute of Washington is a non-profit, non-partisan public policy organization committed to uniting national and local organizations for the purpose of creating public policy that recognizes the significance and the sanctity of the family. For more information, visit

Hobby Lobby and Conestoga Wood Decision Expected Soon

As soon as tomorrow, the U.S. Supreme Court will release their decision in lawsuits involving Hobby Lobby and Conestoga Wood Specialties, two family owned businesses who have challenged the Obamacare mandate requiring employers to pay for contraceptives that cause abortions for their employees.

The businesses object to paying for four of the 20 types of contraceptives the mandate requires employers to provide because of their belief that they cause abortions.

The mandate threatens the existence of these businesses which employ more than 14,000 people.

In the case of Hobby Lobby, the fine for failing to comply with the mandate is as much as $1.3 million per day.

The plaintiffs have asked the Supreme Court to find the mandate unconstitutional claiming it violates their First Amendment Right to the free exercise of religion and their Fifth Amendment right to due process and equal protection under the law.

In its decision, the Supreme Court will first determine whether a for-profit corporation can “exercise religion”.

While it is undisputed that individuals have the right to the exercise of religion (though there is much debate about what that means as well) the government is arguing that corporations cannot claim the religious freedom protections at all.

In essence, the Obama administration believes the government can force Hobby Lobby to do things they could not force the Green Family, owners of Hobby Lobby, to do if they did not have a business.

Of course, the Green Family sees their business as an extension of themselves and do not believe they surrendered their right to make decisions consistent with their faith once they built a business and started employing people.

If the Supreme Court agrees with the families that corporations can claim religious freedom protections, the court will then decide if the mandate restricts their religious freedom.  If they conclude that it does, the court will then decide whether the burden is justified by a “compelling government interest” in providing contraception and whether there is a way to accomplish the same goal without restricting religious freedom.

Put another way, “could the government make contraceptives available to employees in a way that did not take away people’s religious freedom?”

The answer to that question is almost certainly, yes.

As with the floristsphotographers, and bakeries, these cases are just another example of government attempting to force people to do things that violate their conscience as a condition of doing business.

Religious groups and business owners should not have to violate their faith in order to be in compliance with the law.  Nor should families have to choose between their faith and their livelihood.

People of faith do not forfeit their religious freedom when they choose to start a business.

Some argue that they don’t understand the big deal about providing contraceptive coverage for employees, but that is beside the point.  It’s not the role of government to define what people believe or what our faith includes.  That’s the role of the church.

If the left is going to really care about the separation of church and state, they will stay out of the business of telling individuals and companies what their faith requires.

It is worth noting that the government has exempted 100 million employees from these mandates for commercial and political reasons.  But for companies that want out of the mandates for conscience reasons, the government is arguing that there is a “compelling government reason” to force them to comply.

While our ability to influence the Supreme Court’s decision in this case is limited, we have significant influence over the future of religious freedom in Washington State and around the country generally.

There are elections this fall in every part of our state, and we encourage you to ask those who are on your ballot how they feel about religious freedom.  Do they support these mandates against businesses that don’t want to pay for contraceptives that cause abortions?  Do they support lawsuits against small businesses like Arlene’s Flowers because of their belief about marriage?

Then allow their answers to inform your vote.  Make sure your friends and neighbors who care about religious freedom know whether the candidates on their ballot support religious freedom as well.

The lawsuit against Arlene’s Flowers could be done away with in a single legislative act, but the legislature will only protect religious freedom if the people who elect them insist on it.  That means those of us who support religious freedom need to be the squeaky wheel, in the most pleasant way possible.

To ask your legislators how they feel about these issues, click here.   If you would rather ask these questions over the phone, you can reach all your legislators at the same time through the legislative hotline at 1-800-562-6000.  Even if you don’t know who your legislators are, just provide your address to the operator and they will tell you.

We want to know what you learn as well because every citizen should know how every legislator feels about religious freedom.

To paraphrase the lesson from the Little Red Hen, if we don’t help protect our religious freedom, we should not expect to enjoy the benefits of it. And given the aggressive nature of those wanting to take away religious freedom, if we do nothing, we can be quite confident we won’t.

Marriage Chaos

Since marriage was redefined in Washington State two years ago, people in Washington State may not be paying attention to what is happening all over the country.

While the picture is not pretty, ignoring it won’t be helpful.

By way of quick review, last June the U.S. Supreme Court, in Windsor v. U.S., struck down the federal Defense of Marriage Act (DOMA).

While the court said it was not interfering with the thirty-two state constitutional amendments defining marriage as a relationship between a man and a woman, it was clear that within the bizarre decision was all the ammunition an activist judge would need in order to unilaterally overturn them.

Opponents of natural marriage have seized the opportunity.

In just the last few weeks, Arkansas, Idaho, Oregon and Pennsylvania have all had their marriage amendments struck down by federal judges.

The Oregon decision can’t even be appealed because no state official even defended the law in court. There’s no one to appeal.

You may remember that U.S. Attorney General Eric Holder, who refused to defend DOMA despite having the legal obligation to do so, told the state’s Attorneys General that they don’t have to defend laws if they don’t like them.

Oregon Attorney General Ellen Rosenblum followed his lead and refused to defend the marriage amendment passed by Oregon’s citizens.

As a result, the law in Oregon now requires a bakery to bake a cake for a same-sex wedding despite their conscientious objections but apparently doesn’t require the Attorney General to defend a Constitutional Amendment passed by the people in court because of her conscientious objections.

Go figure.

California has a similar situation.

Seven million people voted for a constitutional amendment that says, “Only marriage between a man and a woman is valid and recognized in California”.

California law requires a three judge appellate panel to overturn a provision of the state Constitution before it can be set aside.  A prior Ninth Circuit appellate decision against marriage was vacated when the Supreme Court concluded that those defending Prop 8 did not have standing to do so.

As a result, there is no decision on the books of an appellate panel overturning Prop 8. The language defining marriage as a relationship between a man and a woman is still in the California Constitution today.

Yet, the state of California is issuing same-sex “marriage” licenses because the Governor and the Attorney General want to.

The judicial system has always had its challenges, but is this the moment America officially declares its independence from the rule of law?

Monarchs throughout history are smugly shaking their heads from the grave and whispering, “I told you so”.

You may think all this is wonderful because you like same-sex marriage, but just wait until a conservative judge, conservative plaintiff, and conservative Attorney General conspire to repeal a law you like by filing a lawsuit that no one defends.

Our system of checks and balances is sometimes frustratingly slow, but that’s intentional. It is designed to prevent three people from repealing laws they don’t like all by themselves.

We should all be careful about calling for swift action despite the law because we agree with the outcome.

History assures us that the time will come — maybe sooner than we think — when we’ll wish the system was a bit more deliberate and not so subject to the preferences of the two or three people who happen to be in power.

But it’s hard to slow down and worry about process when we’re so busy being historic.

In fairness, not every state is behaving as lawlessly as California and Oregon.

There are 17 states where lawsuits challenging one man, one woman marriages are in process but no decisions have been issued yet.

There are only 3 states left where no lawsuit challenging marriage has been filed: South Dakota, North Dakota and Montana.

That could change at any moment.

With the Oregon decision considered to be a “final” decree because there’s no one to appeal it, there are now 18 states plus D.C. where same-sex marriage is currently legal.

In addition, 12 states have seen their marriage law struck down but are in the process of appealing those rulings.

Recent developments are clearly not good for marriage, the rule of law, or the culture generally.

But this is far, far from over.

Our friend Ryan T. Anderson, from the Heritage Foundation, wrote a good piece today entitled “Where Do We Go From Here?” that offers good insights into next steps for those of us who will never give up on the value of natural marriage.

Whatever you do, don’t be afraid.  We have all been placed in this time, at this place, for such a time as this.  Let’s figure out what that is.

And never forget…truth wins.

“In this world you will have trouble, but take heart, because I have overcome the world”. John 16:33.


Note: The original version of this post has been edited to reflect the fact that there was a prior Ninth Circuit appellate decision against marriage that was vacated by the Supreme Court.  The original version said that there has never been an appellate decision against Prop 8.  While that is true for legal purposes and same-sex marriage licenses are being issued in California in violation of the law, it is not the entire story.