By Rory Gray, Alliance Defending Freedom Litigation Counsel

Religious liberty scored a victory this month when the National Defense Authorization Act for Fiscal Year 2013 became law.  Congress included a new provision this year—Section 533—that protects the religious freedom of our brave men and women in uniform.  The Act instructs military commanders to “accommodate” the “conscience, moral principles, or religious beliefs” of members of the armed forces and prohibits them, “in so far as practicable,” from using “such beliefs as the basis of any adverse personnel action.”

What is more, Section 533 protects the religious liberty of military chaplains by forbidding any “member of the Armed Forces” from forcing them “to perform any rite, ritual, or ceremony that is contrary to [their] conscience, moral principles, or religious beliefs.”  And it bans retaliation against chaplains for exercising this opt-out right.

You might think that Congress’ efforts to safeguard the First Amendment rights of armed service members—who defend those freedoms in all manner of dangerous circumstances throughout the Earth—would be cause for general rejoicing.  After all, the Act’s passage by wide margins in the House and Senate is noteworthy in this era of political gridlock where politicians agree on so little.  But you would be wrong.

After the bill became law, the White House issued a statement strongly disapproving of Section 533 and its efforts to protect military members’ free exercise of religion.  It labeled these protections “unnecessary and ill-advised,” as “the military already appropriately protects the freedom of conscience of chaplains and service members,” warned against assuming that Section 533 “permit[s] or condone[s] discriminatory actions that compromise good order and discipline,” and made clear that “implementation of the Repeal of Don’t Ask, Don’t Tell” would be moving full speed ahead.

Instead of recognizing religious freedom as a universal good, the administration viewed it as a dangerous threat.  That concern has little to do with military discipline and much to do with the worry that conscience rights would hinder government efforts to require service members—including chaplains—to approve homosexual conduct in violation of their deeply-held religious beliefs.  For example, the Act protects military chaplains’ refusal to perform same-sex “marriage” ceremonies that violate fundamental tenets of their faith.  Alliance Defending Freedom is thankful that Congress took a different view, recognizing religious liberty as a basic human right.  And we stand in support of all those who believe our men and women in uniform are entitled to exercise the same right to religious freedom that so many have died to protect.

For years we have been warning that same-sex “marriage” is not the end goal of the radical homosexual legal agenda.  Instead, the end goal of that movement is the silencing of all dissent.  Numerous examples abound in other countries where we see the inevitable consequence of approving same-sex “marriage.”  In his latest column on Townhall.com, Alliance Defending Freedom President and General Counsel Alan Sears tells how France is now seeking to censor speech in opposition to efforts to redefine marriage or gender.

When a society’s laws recognizing marriage as the union of one man and one woman are changed to honor the unions of same-sex couples, it’s not just the law that changes—it’s also the society itself that changes. A top-down metamorphosis begins in which every aspect of public law changes to match the new definition of marriage.

Today, this is playing out in France with great clarity.

There, Minister Najat Vallaud-Belkacem is pressing Twitter to help control the speech of the people by censoring messages that run counter to the position of the French government.

In particular, Belkacem wants Twitter to censor messages that run counter to the government’s decision to grant special rights and an elevated status to people who engage in homosexual behavior and persons who are of one gender but claim to be of another.

Belkacem praises the French government for making it illegal to discriminate based on these and other things and calls on Twitter to share the convictions of the government:

It is the honor of France to have gradually included in the penal code punishment of incitement to hatred or violence against a person or group of persons because of their origin, membership or non-membership in an ethnic group, nation, or of their sexual orientation or gender identity…Twitter [needs] to find solutions so that messages sent from our territory, our language, and destination of our citizens do not bear a clear violation of the principles we have set.

Notice—now that France has added “gender identity” to its national non-discrimination policy, unapproved communiqués on the subject of homosexual behavior are punishable by law. Now that France has embraced and attempted to redefine morality on homosexual behavior, speech against such behavior is literally banned.

And Minister Belkacem approves of this. She said as much when she wrote that French officials support “freedom of expression” but not freedom of expression “with impunity.”

There are so many lessons here for Americans who think that such things can never happen in this country. Believing the falsehood that all advocates of homosexual behavior want is to be left alone, one need only read their own words and examine the legal landscape, where dissenters and people of faith are being persecuted by “human rights commissions” and other government authorities who have no tolerance for a different point of view from their own.

Alan is correct.  What we see happening in France is bound to happen here should our society recognize and approve of same-sex “marriage.”  And those who  think that the First Amendment will stand as a shield against such efforts must remember that the Constitution has never deterred the left from pursuing its agenda.  If you have any doubts about that, ask JuleaWard, Elaine Huguenin, Ake Green, and countless others who have had their religious freedom threatened simply because they chose to speak up and live their faith in the public square.

The churches of America must speak up on this issue before it is too late and before the inevitable consequences of recognizing same-sex “marriage” fall on the church.  If churches do not speak up now, then they may not have the opportunity later.  Visit the marriage resource page of our website for information about the efforts to legally protect marriage.  And if you are a pastor, consider preaching a sermon on marriage and why it is important to protect it from radical efforts to redefine this most basic human institution.

Recently, the Freedom From Religion Foundation filed a lawsuit in federal court against the IRS for failing to enforce the Johnson Amendment in the tax code against pastors and churches.  The lawsuit requests the court to enter an injunction against the Commissioner of the IRS to prohibit him from “continuing a policy of non-enforcement of the electioneering restrictions against churches and religious organizations.”  One of the issues the complaint raises as an example is Pulpit Freedom Sunday. The complaint states: ”More than 1500 clergy reportedly violated 501(c)(3) on October 7, 2012, in a deliberate and coordinated display of noncompliance with the electioneering restrictions of 501(c)(3), including prominent megachurches.”  The complaint goes on to allege that the IRS non-enforcement of the Johnson Amendment results in favoritism toward churches in violation of the Establishment Clause.

Legally speaking, this complaint has no merit and should be summarily dismissed.  As I detailed in an earlier blog, the IRS is not following a policy of non-enforcement.  Churches must remember that the IRS has not given up on auditing churches or enforcing the Johnson Amendment.

The lawsuit also has an insurmoutable legal hurdle in its way.  In order to bring a lawsuit against the federal government, a plaintiff must prove that it will be harmed in a specific and concrete way that is different from the harm experienced generally by the public at large.  It will be difficult, if not impossible, for FFRF to prove that it is being harmed by the IRS’ delay in enforcing the Johnson Amendment.

This lawsuit is really about two things.  First, it is about generating publicity for Freedom From Religion Foundation.  A quick lawsuit, even if it gets dismissed at a later point, can earn some headlines.  But secondly, this lawsuit is about fostering FFRF’s radical agenda.  FFRF, a group of radical separationist atheists, envisions a future where the tax code is used against churches and pastors to punish them for speaking out on issues of candidates and elections.  It wants to see pulpit police in the churches of America, and fines and penalties meted out if a pastor crosses whetever line the government chooses to draw.  Ultimately, FFRF does not want people of faith to have a voice in the public square.  It wantswhat its name says – freedom from religion.  And that is where its agenda is at odds with the fundamental rights of America’s churches and pastors.

I expect for this lawsuit to be dismissed and hope to be able to bring you news of that dismissal.  But do not be fooled, groups like FFRF will not stop and will continue to push their radical agenda of silencing churches and pastors.  America’s churches are a crucial component to the survival of our country.  The voice of the church must be free to impact culture and society and as the liberty of the church is restricted, society and culture suffers and declines.  That’s why Alliance Defending Freedom created the Church Project – to defend the right of the Church to be the Church.  If your church’s rights are threatened or violated, please contact us so our attorneys can help.

Well, ninety days have come and gone since over 1,500 pastors participated in Pulpit Freedom Sunday on October 7,2012.  And the IRS has not taken any action against any of the pastors who participated.  Actually, the title of this blog post could have been “Four years and Counting” because Alliance Defending Freedom first launched Pulpit Freedom Sunday in 2008.  And since that time, Pulpit Freedom Sunday has occurred every year and thousands of pastors have participated through those four years.  But the IRS has not taken any action against any of the pastors who have ever participated in Pulpit Freedom Sunday.

Now before you may be tempted to become complacent or to think that the IRS has given up on auditing churches, you should remember as I wrote in an earlier blog, that the IRS is in a bit of a reorganization when it comes to auditing churches.  The IRS has not given up on auditing churches and an IRS official even warned churches to remain silent about the last election.  So what is going on then and why hasn’t the IRS sought to enforce the Johnson Amendment against the pastors who participated in Pulpit Freedom Sunday?

In 2011, I gave some reasons why I thought the IRS has not taken any action.  But the fact is that only the IRS know why it has chosen to remain silent. The IRS’ silence, though, should not cause us to lift up the pressure or to retreat from the battlefield.  The Johnson Amendment has been in place since 1954 and has been enforced now for over fifty-eight years.  It will not go away in an instant and the campaign to end the Johnson Amendment will be more akin to a siege than a blitzkrieg.  We must continue to press forward until the rights of churches and pastors are secured once and for all from the pernicious censorship that has occurred under the regime of the Johnson Amendment.

You can visit our Pulpit Freedom website to see a list of churches that participated in Pulpit Freedom Sunday on October 7, 2012.  Why not take a moment to encourage these courageous pastors or to perhaps begin attending these churches who are standing firm and contending for the faith in our culture?  And if you are a pastor and want more information about your right to speak freely from the pulpit, visit our website and become part of the battle to protect and defend your constitutional rights.

By Rory Gray, Alliance Defending Freedom Litigation Counsel

The traditional rivalry between Britain and France is discussed in many a dusty historical textbook. As Douglas Jerrold, a 19th Century British writer, summarized the relationship, “The best thing I know between England and France is the sea.”  Far from being an interesting but outdated piece of history, the contest between these two ancient enemies is alive and well today in terms of the ideas they adopted, cultivated, and spread to the world.  America customarily walks a tightrope between the two, harmonizing a cousinly affection for Britain—and the premium it placed on individual liberty—with a revolutionary kinship with France, which emphasized the equality guaranteed to all citizens.  That traditional balance has shifted as of late.  Before proceeding any further down a continental path, we—as a nation—might want to consider where that road leads.

French president François Hollande recently announced the creation of a new government agency called the “National Observatory of Secularism.”  Lest you be deceived into thinking the French are just serenely gazing at the stars, this particular agency has nothing to do with admiring the heavens and a great deal to do with grounding people in the mire of earth.  Its only aim is to ensure secularism in the nation.  And public schools are a prime target.  In fact, the agency is specifically tasked with fostering secular values in schools.  The education minister, Vincent Peillon, has explained that French schools must renew their emphasis on values of equality and fraternity, teaching children “not about simple tolerance” but about “understanding what is right and being able to distinguish good from evil,” i.e., a secular “set of values that we have to share.”  To translate into plain English, France’s government sets the nation’s moral compass and all the little French boys and girls must play along.

Hand in hand with the creation of the National Observatory of Secularism is the French government’s new policy of monitoring citizens and groups for signs of “religious pathology.”  France’s interior minister, Manuel Valls, has explained that those labeled “sectarian” or “extremist” will face prosecution or deportation.  “What sort of extremism?,” you might ask.  Valls mentioned American creationists, conservative Catholics, Orthodox Jews, and radical Islamists all in the same breath.  Illustrating the fundamental problem with government distinctions between religious beliefs, Valls cautioned:  “We have to say that religions are not sects, otherwise sects are religions.”  It must be a cold comfort to millions of French citizens that their beliefs are protected if a bureaucrat deems them compatible with a “religion,” but are banned as “sectarian” if a pencil-pusher thinks they take their faith too seriously.

In stark contrast, the British House of Lords engaged in an extensive discussion just last month of the important role religion plays in society.  Lord Singh, the crossbench peer who introduced the debate, eloquently reflected on the “fallout” caused by “selfish living and a lack of wider responsibility.”  Dismissing suggestions similar to Peillon’s for “better citizenship training” in schools, Lord Singh noted “that citizenship looks at society as it is and teaches children to conform to transient and sometimes questionable social norms.  Religion frequently challenges such norms.”  And he cited the battle against segregation as a classic example.  The fundamental building block of society, Lord Singh opined, is not centralized government enforcing secular moral orthodoxy, but the family and a universal “recognition of the importance of marriage.”  School serves to teach “the three Rs of basic education.”  But it is parents who teach “the equally important three Rs of right, wrong and responsibility.”  He called not for “preventing religions [from] making nuisances of themselves,” like the French interior minister, but for “a greater enabling focus that helps religions to work more fully at all levels with secular society.”

These sentiments were echoed by Baroness Warsi, the British Minister for Faith and Communities, who recognized that the state is “there when things in society go wrong, but religion [is] there from the outset to stop them going wrong in the first place.”  She trumpeted the current government’s commitment to “maintain the status of religious education as a compulsory subject that all pupils must study throughout their schooling, subject to parental choice.”  And she noted the key role this education plays in helping children to “understand the history that has shaped the values and tradition of this country.”  Although the British government’s record is far from perfect when it comes to religious liberty, Baroness Warsi noted that is has taken concrete steps to welcome religion in the public sphere.  She specifically mentioned a recent change in law that allows local governments “to continue to hold prayers at the beginning of their meetings” after a secularist group sought to have this practice banned, as well as the renewed official celebration of Easter along with other religious holidays.

Sometimes examining our neighbors helps us to gain a clearer view of ourselves.  Do we, as Americans, want a government that defines equality, demands a certain level of uniformity in all walks of life, and enforces a secular, lowest-common-denominator code of morality to which all must pledge allegiance?  Or do we still believe that the primary purpose of government is to protect individual liberty, that religious freedom is a fundamental God-given right, and that the family has the right and responsibility to train children in the way they should go? (Proverbs 22:6).  Alliance Defending Freedom’s primary purpose is to keep the flame of liberty alive.  And we invite you to join us in preserving religious freedom in America before we have a “National Observatory of Secularism” of our own.