First Amendment

What comes next for religious liberty, after the Masterpiece Cakeshop decision?

What comes next for religious liberty, after the Masterpiece Cakeshop decision?

The Pulitzer Prize winning "Angels in America" has long been a touchstone for gay spirituality, so it wasn't surprising that actor Andrew Garfield celebrated winning a Tony Award in the play's revival with remarks mixing faith and politics.

It's crucial, he said, to celebrate the play's "spirit that says 'no' to oppression. It is a spirit that says 'no' to bigotry. … It is a spirit that says we are all made perfectly."

Garfield concluded: "We are all sacred. … So let's just bake a cake for everyone who wants a cake to be baked!"

The baker behind the U.S. Supreme Court's recent Masterpiece Cakeshop decision has heard pronouncements of this kind many times since that fateful day in 2012 when he declined to create one of his handcrafted, personalized cakes to celebrate the same-sex marriage of Charlie Craig and David Mullins.

"The biggest myth I hear all the time, pretty much, is that I turned away a gay couple. But the truth is, I never turn away any customers. I do, sometimes, have to decline to create cakes that violate my faith, and that was the case here," said Phillips, in a Lutheran Public Radio interview soon after the June 4 decision.

"The two gentlemen that sued me were welcome in my shop that day. I told them, I'll sell you cookies, brownies, birthday cakes, anything else, custom cakes -- it's just that I can't create this one, because this was a cake that goes against the core of my faith."

While this was a 7-2 ruling, Justice Anthony Kennedy's majority opinion (.pdf) focused on evidence that the Colorado Civil Rights Commission had demonstrated open hostility to Phillips and his Christian faith. Thus, he avoided a broader ruling on First Amendment protections of free speech and the "free exercise" of religion.

Naturally, church-state activists have argued about the significance of this much-anticipated decision. At least four camps have emerged so far.

30 years of 'On Religion' -- Billy Graham, Shirley MacLaine and better religion news

30 years of 'On Religion' -- Billy Graham, Shirley MacLaine and better religion news

Through the decades, the Rev. Billy Graham was known for saying three words over and over -- "The Bible says."

But the world's most famous evangelist quoted another authority during his 1994 speech to the American Society of Newspaper Editors -- Shirley MacLaine. A year earlier, Graham noted, the actress, and spiritual adventurer told the editors that religion plays a major role in news worldwide and that it's high time for journalists to accept that.

"What has happened to us?", asked MacLaine. "Why is the discussion of spirituality considered so publicly embarrassing, sentimental or, God forbid, New Age? Why does it make us squirm, when our own founding fathers recognized the spiritual aspect of man as his most fundamental?''

"Amen," said Graham. Journalists and preachers, he stressed, both communicate news about what's happening in life and culture. Both care about people and truth. Both care about injustice, racism and corruption.

"I believe that this is why the founding fathers included both freedom of religion and freedom of the press in the same First Amendment," he added. "In the long run, the loss of one freedom will bring about the loss of the other."

It isn't every day that a religion writer gets to quote Billy Graham and Shirley MacLaine making essential points about journalism.

Then again, this isn't just another column for me. This week marks my 30th anniversary writing this national "On Religion" column. The first piece ran on April 11, 1988 and focused -- wait for it -- on arguments about evangelicals and White House politics. Turn, turn, turn.

Three decades is a long time, so allow me to pause and make something clear. I still believe that if journalists want to cover real news in the real lives of real people in the real world then they need to get real serious about religion.

Yes, there are problems.

Religious liberty experts stand together, on cases inside prison walls

Religious liberty experts stand together, on cases inside prison walls

When it comes to fine cuisine, few gourmands would fight to be served peanut butter, sardines, beans and some other canned goods -- often cold.

While these foods are not very appealing, they are kosher. Thus, they are common items on the menu the Florida Department of Corrections has offered prisoners requesting kosher meals.

First Amendment activists have repeatedly clashed in federal courts with Florida officials who insist a kosher-food option would be too expensive.

"These aren't prisoners who have made up some kind of religion that requires them to eat lobster every day, claiming they're members of the Church of the Lobster," noted attorney Daniel Blomberg of the Becket Fund for Religious Liberty. The Becket team filed an amicus brief backing the prisoners' rights, citing the Religious Land Use and Institutionalized Persons Act.

"No one goes to a lot of trouble to eat bread and beans," he added. "The prisoners are making these requests because this is what they believe God wants them to do. … The 'religious' diet these prisoners are being served is, frankly, unpalatable."

Federal and Florida officials have been haggling over these dietary details since 2011, leading to six federal-court decisions backing the prisoners. The state says a kosher-foods program costs about $12.3 million a year, compared to a U.S. government estimate of roughly $384,000.

British rabbi stands to defend America's first freedom

When Rabbi Lord Jonathan Sacks arrived in America recently representatives of the United States government did not greet him with a demand that Great Britain's former chief rabbi remove his yarmulke while in public. That's a good thing. But there are places -- France leaps to mind -- where this would not be the case. In fact, religious liberty is under siege in many corners of Europe, said Sacks, a member of the House of Lords.

"In Britain we have seen a worker banned from wearing a small crucifix at work," he said, after receiving the Becket Fund's 2014 Canterbury Medal for his work defending religious freedom. "A nurse was censored for offering to utter a prayer on behalf of one of her patients. Catholic adoption agencies were forced to close because they were unwilling to place children for to same-sex parents."

Elsewhere, Denmark has banned "shechitah," the kosher method of slaughtering animals by slitting their throats. A German court has banned infant circumcision. France has banned -- in public places -- Christians from wearing crucifixes, Jews from wearing yarmulkes and Muslim women from wearing hijabs.

"This is, for me, the empirical proof that ... the secular societies of Europe are much less tolerant than the religions that they accuse of intolerance," he said.

President Obama defends religious freedom -- overseas

From the moment he rose to speak at the National Prayer Breakfast, it was clear President Barack Obama intended to respond to critics who accuse him of being weak in his defense of religious freedom. "As Americans, we affirm the freedoms endowed by our Creator, among them freedom of religion," noted Obama, early in the recent address. "Yes, this freedom safeguards religion, allowing us to flourish as one of the most religious countries on Earth, but it works the other way, too -- because religion strengthens America. Brave men and women of faith have challenged our conscience and brought us closer to our founding ideals. ...

"We believe that each of us is 'wonderfully made' in the image of God. We, therefore, believe in the inherent dignity of every human being -- dignity that no earthly power can take away. And central to that dignity is freedom of religion -- the right of every person to practice their faith how they choose, to change their faith if they choose, or to practice no faith at all, and to do this free from persecution and fear."

In the days after this blunt address, critics across the spectrum of American religious life -- including on the left -- affirmed what the president said, but also marveled at what he left unsaid.

The bottom line: Where were the Little Sisters of the Poor?

In other words, what about the religious-liberty conflicts currently unfolding here in the United States, as opposed to those in distant lands?

The Little Sisters -- a Catholic order that ministers to the elderly poor -- are among the many religious schools, parachurch groups and nonprofit ministries that continue to clash with the White House. One bitter conflict centers on the Health and Human Services mandate requiring most religious institutions to offer employees, and even students, health-insurance plans covering sterilizations and all FDA-approved contraceptives, including "morning-after pills." Similar clashes on gay marriage and other issues of moral theology have affected groups linked to the U.S. Conference of Catholic Bishops, the National Association of Evangelicals and other religious networks.

The Little Sisters have refused to bow to a government-enforced doctrine that columnist Kathleen Parker recently described as, "Thou shalt not protect unborn life." The order has escaped punishment, so far, due to a reprieve granted by liberal U.S. Supreme Court Justice Sonia Sotomayor.

The Obama speech would have made perfect sense, noted progressive Catholic commentator Michael Sean Winters, if he had only added: "Therefore, I am instructing the Secretary of Health and Human Services to stop obstructing the awarding of contracts to combat human trafficking to the USCCB which does such great work in that field. I am also instructing Secretary Sebelius to devise a better means of delivering the free contraceptive care to women who want, finding a way that does not infringe on the religious liberty of those religious institutions that object to contraception and, further, I am instructing the Attorney General to let the University of Notre Dame alone."

Meanwhile, Obama received lots of praise for mentioning the plight of specific individuals and religious minorities, including the Ahmadiyya Muslims in Pakistan, Baha'i in Iran and Coptic Orthodox Christians in Egypt. He requested prayers for missionary Kenneth Bae, sentenced to 15 years of hard labor in North Korea, and the Rev. Saeed Abedini, a U.S. citizen held in Iran for more than 18 months, apparently for his public ministry to orphans. The president openly opposed "blasphemy and defamation of religion measures, which are promoted ... as an expression of religion, but, in fact, all too often can be used to suppress religious minorities."

But the president's testimony also contained the seeds of future conflicts. After recounting his own conversion -- "I was broke and the church fed me. ... It led me to embrace Jesus Christ as my Lord and Savior" -- the president proceeded to attack what he considers extreme forms of faith, such as the beliefs of traditionalists who continue to oppose gay rights.

"Yet even as our faith sustains us, it's also clear that around the world freedom of religion is under threat," he said. "We sometimes see religion twisted in an attempt to justify hatred and persecution against other people just because of who they are, or how they pray or who they love. ...

"Extremists succumb to an ignorant nihilism that shows they don't understand the faiths they claim to profess."

Guess the winner: Woodstock vs. religious liberty

Blame it on Woodstock.

Cultural changes unleashed by the sexual revolution are affecting how millions of Americans understand religious liberty, according to University of Virginia law professor Douglas Laycock, speaking at a recent Newseum symposium marking the 20th anniversary of the Religious Freedom Restoration Act. It doesn't help that disputes about the free exercise of religion have increasingly turned into bitter partisan battles pitting Republicans against the majority of mainstream Democrats.

What is happening? It helps to remember that churches were on the winning side of the American Revolution, he stressed, and that fact has shaped America ever since.

"What if we had a new revolution in our time? The sexual revolution that began in earnest in the '60s carries on with the current front about same-sex marriage" and contraception, said Laycock.

Religious groups have consistently "been on the losing side of this revolution. … In each of the remaining sexual issues -- abortion, same-sex marriage, contraception, sterilization, emergency contraception -- every one of those issues has this fundamental structure: What one side views as a grave evil, the other side views as a fundamental human right. ... And for tens of millions of Americans, what religious liberty now does is empower their enemies."

Only 20 years ago, it was possible for left and right to find common ground on key religious liberty issues. The Religious Freedom Restoration Act passed unanimously in the House and by a 97-3 vote in the Senate, backed by a coalition that ranged from the American Civil Liberties Union to the Christian Legal Society.

Only five years later, another similar effort failed.

"We had gone from 97-3 to partisan gridlock ... and disagreement over religious liberty has only gotten worse since that time," Laycock told the Newseum audience. He was speaking the day after addressing the U.S. Supreme Court on yet another tense case about public prayer.

The key change, he said, is that there has been a violent legal and political clash between gay rights and the rights of religious conscientious objectors. At this point, it may be too late to find a compromise that would protect citizens on both sides of this constitutional firefight.

One crucial problem, he explained, is that conservative religious leaders have been "so focused on entirely defeating" same-sex marriage bills that they have paid little attention to religious-liberty exemptions "until they have been totally defeated and then, of course, it is too late. They have no leverage. They have nothing to bargain with."

Meanwhile, as the gay-rights cause has gained momentum, its leaders have grown increasingly bold. More than a few liberals, said Laycock, not only want to seize sexual freedoms, but to force religious objectors to affirm their choices and even to pay for them. Some on the left, he said, are now "making arguments calculated to destroy religious liberty."

Consider, Laycock said, language used by state Sen. Pat Steadman of Denver, as he fought for a civil unions bill in the Colorado Senate last February. What should liberals say to those who claim that their religious liberties are being violated?

"I'll tell you what I'd say -- get thee to a nunnery," he said, in debate recorded on the Senate floor. "Go live a monastic life, away from modern society, away from the people you can't see as equals to yourself. Away from the stream of commerce where you might have to serve them, or employ them, or rent banquet halls to them. Go someplace and be as judgmental as you like. Go inside your church, establish separate water fountains, if you want."

This was provocative language, but this gay leader was using arguments now common in American politics, said Laycock. "No living in peace and equality and diversity for him. If you are a religious dissenter you have to conform or withdraw. For many people this hostility to religious liberty is a growing and intuitive reaction."

It's too soon to predict the death of religious liberty in America, as it has been known and defended for generations, he said. But the current trends are sobering.

"Maybe compromise will prevail yet," he concluded. "Maybe the judges will do their jobs and protect the liberty of both sides. But the tendency of both sides to insist on a total win -- liberty for them and not liberty for the other side -- is a very bad thing for religious liberty."

Was Jesus religious enough for HHS mandate?

When describing how his disciples should serve the needy, Jesus told a parable about a Good Samaritan who rescued a traveler who had been robbed and left for dead. This businessman didn't care that his act of kindness took place in public and that the injured man didn't share his faith.

This raises an haunting question for those involved in the church-state struggles surrounding the Health and Human Services mandate requiring most religious institutions to offer their employees, and often students, health-insurance plans covering sterilizations and all FDA-approved contraceptives, including "morning-after pills."

As Sister Mary Ann Walsh of the U.S. Conference of Catholic Bishops noted in an online memo: "HHS has such a narrow standard as to who operates a religious ministry, Jesus himself couldn't pass muster."

After all, the Good Samaritan wasn't ordained and didn't work for a church or a non-profit ministry, noted Stanley Carlson-Thies, president of the Institutional Religious Freedom Alliance. He spoke during a recent religion-and-politics symposium at Calvin College in Grand Rapids, Mich., which was streamed online.

Also, this businessman provided food and health care and the "very point of the story" is that he "cared for the injured man even though ... the man was of a different religion," stressed Carlson-Thies. Today, it would appear that any ministry that follows Jesus "by giving a cup of cold water to anyone who needs it, including those of other or no religion ... has put itself outside the category of a religious employer."

After all, the HHS mandate only recognizes the conscience rights of employers if they "fit a particular tax code definition that applies only to churches and their closely controlled affiliates," he said. These non-profit employers must have the "inculcation of religious values" as their goal, primarily employ persons who share their "religious tenets" and primarily serve persons who share those same tenets.

The mandate has created a legal storm. Critics are asking whether the White House is promoting a two-tier approach to the First Amendment -- with "freedom of worship" favored over a broader right to the "free exercise" of religious liberty. Currently, an unprecedented number of lawsuits against the federal government -- 54 cases with more than 160 plaintiffs -- are creeping through the courts.

Meanwhile, noted Carlson-Thies, some branches of the government seem confused about what forms of religious work they want to encourage in public life.

For example, if leaders of religious organizations want to fit into the exempt category under the HHS mandate, they must be willing to violate the federal rules governing the faith-based initiative that seeks to promote cooperation between religious groups and the state. After all, he said, the faith-based initiative "requires groups that receive federal dollars to serve everyone, without regard to faith."

But there are complications that mandate opponents must acknowledge, said political scientist Leah Seppanen Anderson, responding to Carlson-Thies. For example, many schools, hospitals and social agencies that retain some ties to religious bodies also are willing to hire employees, and admit students, that do not affirm their doctrines or practice their faith.

Anderson noted that she teaches at Wheaton College and willingly signs a covenant expressing support for this evangelical school's approach to life and faith. However, this is not the case on campuses such as Georgetown University and the University of Notre Dame. Many women work, study and teach there and have not signed doctrinal covenants.

"What about these women, then? Why does the religious freedom of these organizations, who choose to hire people who do not ... necessarily share their religious values and convictions" matter so much, she asked, but "these women either have their religious freedom limited or their health-care options limited?"

It would be better, she said, if American public life continued to welcome many different religious perspectives on these kinds of divisive issues, but "that may not be the reality."

In the end, stressed Carlson-Thies, that kind of broad civic tolerance is what must be defended.

"To my mind," he said, "this is the most significant religious freedom challenge in our country in our time -- to struggle against these restrictive trends in order to preserve the freedom of faith-based organizations to serve the public in a countercultural way, to follow what they believe God calls them to do even when those practices differ from the popular consensus."

Gagging the military chaplains 2.0

Every now and then, bishops write letters for their priests to read to the faithful during Mass. In 1996 the Catholic Archdiocese for the Military Services sent a letter to its chaplains instructing them to urge their flocks to back the "Project Life Postcard Campaign" in support of the Partial-Birth Abortion Ban Act.

Father Vincent Rigdon wanted to follow this order in rites at Andrews Air Force Base. But there was a problem. Pentagon officials had issued a gag order against chaplains preaching sermons that mentioned this anti-abortion effort.

The standoff ended up in the U.S. District Court for the District of Columbia, which in 1997 backed Rigdon and an Orthodox Jewish chaplain.

"What we have here," concluded Judge Stanley Sporkin, "is the government's attempt to override the Constitution and the laws of the land by a directive that clearly interferes with military chaplains' free exercise and free speech rights, as well as those of their congregants. On its face, this is a drastic act. ...

"The chaplains in this case seek to preach only what they would tell their non-military congregants. There is no need for heavy-handed censorship."

That settled that, for a decade or so.

However, debates about military chaplains have a way of living on -- in part because chaplains work in a church-state minefield that requires them to answer to the government, as well as to God.

Thus, the Pentagon powers that be flinched again when the current leader of the military services archdiocese sent a pastoral letter to his chaplains to be read -- from pulpits -- during Masses on Jan. 29.

In it, Archbishop Timothy Broglio joined with most of America's Catholic bishops in blasting new U.S. Department of Health and Human Services rules that will require the vast majority of religious institutions to include free coverage of all FDA-approved contraceptives in their health-insurance plans. This would include sterilizations and the abortifacient drugs known as "morning-after pills."

This Obama administration move, he argued, "strikes at the fundamental right to religious liberty for all citizens of any faith. The federal government, which claims to be 'of, by, and for the people,' has just dealt a heavy blow to almost a quarter of those people -- the Catholic population -- and to the millions more who are served by the Catholic faithful. It is a blow to a freedom that you have fought to defend and for which you have seen your buddies fall in battle."

However, it was another passage that seems to have triggered alarms at the Army office of the Chief of Chaplains.

"We cannot -- we will not -- comply with this unjust law," stressed Broglio. "People of faith cannot be made second-class citizens. ... In generations past, the Church has always been able to count on the faithful to stand up and protect her sacred rights and duties. I hope and trust she can count on this generation of Catholics to do the same."

Soon after this letter was distributed, the Army chaplaincy office emailed senior chaplains asking them not to read it during Mass. Instead of obeying their archbishop, priests were told they could briefly mention the letter and place copies at chapel exits. Only Army leaders objected to Broglio's message.

The archbishop then talked with Secretary of the Army John McHugh, who -- according to the military services archdiocese -- backed away from the gag order. In turn, Broglio agreed that the "we cannot -- we will not -- comply" reference, with its hint at civil disobedience, would be removed from the text if and when it was read by Army chaplains. The line remained in printed copies.

The controversy simmered all week, with leaders on both sides backing away from further conflict.

By Tuesday, White House Press Secretary Jay Carney was hinting that the Obama administration might be willing to work with religious groups to see "if the implementation of the policy can be done in a way that allays some of those concerns."

Also, Carney said he didn't know if President Obama had prayed about the HHS rules controversy, but "he did consult with some religious leaders about it. ... When you seek to find the appropriate balance ... you have to weigh all of these factors, including the need to provide services to women and, obviously, the issue of religious belief."

God hates almost everyone, saith Phelps

The true believers from Westboro Baptist Church carried their usual battery of offensive signs on March 10, 2006, as they staged their fateful protest near the funeral of Marine Lance Cpl. Matthew A. Snyder. One contained a stick-figure cartoon of two men having sex. One proclaimed "Thank God For Dead Soldiers" and another "God Hates You." During the demonstration these signs faced what the Rev. Fred Phelps Sr., and his family call the pro-America "pep rally" that greets them wherever they go -- throngs of counter protesters, journalists, military veterans and police.

"We're not picketing the funeral," stressed attorney Margie Phelps, in a standing-room-only showdown with student journalists at the recent College Media Convention in New York City. "We're picketing the pep rally."

That may sound like a trivial detail, but it was central to the legal and, at times, theological arguments that unfolded when the Snyder family's lawsuit reached the U.S. Supreme Court. This led to a sweeping 8-1 ruling on March 2 in favor of Phelps, his family and their tiny independent congregation in Topeka, Kan.

When arguing her case -- both to the high court and the young journalists -- daughter Margie Phelps stressed that a key point in the Westboro message is that the "you" in the slogan "God Hates You" was not a reference to Matthew Snyder, alone. The central idea of their protests is that God hates all sinners who have not repented and embraced their church's hellfire-and-brimstone view of America's moral decay.

When Phelps discussing those facing God's wrath, she included just about every imaginable religious and political group. While Westboro is best known for its conviction that America is speeding toward judgment day because of its acceptance of gay rights, her conference remarks also included nasty shots at Jews, Catholics, Southern Baptists and Pentagon officials, among others.

Most of the students cheered her critics, mocked her stabs at humor and jeered her attempts to justify her beliefs. Yet the crowd remained rather quiet when, in a taped dialogue with First Amendment Center leader Gene Policinski, she repeatedly noted America's long heritage of protecting the free speech rights of dissenters.

"The Christian in me could barely sit still and listen to Phelps twist the Bible. ... Yet almost paradoxically, the American journalist in me felt a little bubble of pride," said Rebecca Young of the University of Dayton, in an essay posted online afterwards. "As angry and upset as I was at the ideas espoused, I was proud of a profession and a country that acknowledges their freedoms don't just exist when it's convenient."

To understand Westboro and its beliefs, stressed Margie Phelps, it helps to know that the church's tactics have evolved during the past two decades and the 45,000 protests it claims to have staged at a variety of public events, including about 800 funerals.

For a decade, the central message was that America needed to repent and turn away from sin. But as the death toll kept rising in Iraq, she said Westboro's leaders concluded that, "It's too late now. ... This nation is doomed." Above all, they were infuriated when many of the funerals for the fallen turned into patriotic rallies.

"We watched as the politicians, the media, the military, the citizenry and the veterans used the occasion of these soldiers' deaths to publish a viewpoint," said Phelps, describing the First Amendment arguments she used before the Supreme Court. "And we said, 'We don't agree with your viewpoint. God is not blessing America. It is a curse that that young soldier, the fruit of your nation, is lying in there in that coffin.' ...

"That is not a blessing of God. ... The soldiers are dying for your sins."

The bottom line, concluded Margie Phelps, is that Westboro Baptist simply "joined that public debate" on public sidewalks, while following all existing laws that govern public protests. Now, national outrage about the court decision has strengthened the convictions of the Phelps family.

"These are desperate times, calling for desperate measures and we are going to get these words into your ears," she said. By focusing on military funerals, the leaders of Westboro Baptist "know that we are hitting three of your biggest idols -- the flag, the uniform and the dead bodies. ...

"We are going to finish this work. The Lord God Jehovah has our back."