Since well before he became our military’s Commander-In-Chief, President Obama has insisted on the immediate demise of the military policy against open homosexual behavior.  Given his lack of experience with or connection to military policy, one might have expected the awesome weight of sending our warriors into harm’s way might have made him reconsider his call for radical change.  After all, the reason the military has closely regulated sexual conduct for centuries—just like it closely regulates other aspects of service member’s lives—is to ensure it can do its incredibly difficult and dangerous job.  But one would have been wrong.

After entering office, the President remained insistent that the mores of sexual behavior in the military, which have successfully benefitted our country in one capacity or another since the founding era, be turned on their heads.  And, over the combined objections of the Chiefs of the Army, Air Force, Navy, and Marines—not to mention over a thousand retired high-ranking officers and a large group of decorated veteran chaplains—he got his wish with a law that set a sexual revolution in the military into motion.

One might think, then, that the President would be delighted that a federal court more or less finished the job for him recently by allowing a worldwide ban on the policy to go into effect.  One would again be wrong.  Almost immediately, the Department of Justice filed an emergency request that the court undo what the President has demanded be done for so long.  This request said that “significant immediate harms” would occur if the President’s campaign promise became overnight the new worldwide policy for the U.S. military, citing the need to give combat units time to “prepare themselves” for “any challenges they may face after repeal [of the policy].”  Fortunately, the court granted the emergency request.  But this panicky response shows that changing the policy will not be the smooth sailing that the President promised.

All along, the President has argued that repeal of the policy known as Don’t Ask, Don’t Tell would simply benefit military “integrity” and not harm the military mission at all.  But even his pro-repeal Secretary of Defense spoke of repeal in terms of attempting to “mitigate[], if not eliminate[], to the extent possible, risks to combat readiness, to unit cohesion and effectiveness.”  That is, trying to keep a clearly politically-motivated move from harming the military too much.

Similarly, in the President’s own “study” of the military (the pro-repeal spin of which has since been revealed as a sham by the Inspector General), for every service member that predicted repealing DADT would be beneficial, more than two said it would be harmful.  Indeed, the vast majority of combat troops polled opposed repeal because of this anticipated harm.  This, of course, is common sense, as most Americans understand that injecting a politicized sexual agenda into the military is not a winning formula for maintaining maximum troop readiness.

All this leads one to wonder: if this change is risky enough that even the President scrambles to prevent it from happening “too quickly,” the Secretary of Defense who championed it focuses on limiting damage wrought by it, and most combat troops anticipate harm from it, why are we forcing it on our service men and women at all?
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Blog post by ADF Senior VP; Senior Counsel Gary McCaleb

At the wind-whispered south rim of the Grand Canyon, three small plaques silently praise the Creator of that stunning abyss.  “O Lord, how manifold are thy works!  In wisdom hast Thou made them all; the earth is full of thy riches” (Ps. 104:24), reads one.

Seems rather apt, one would think—and a bit ironic, for the visitor who gazes past the scripture plaques will spot such geographic features as the temples of Isis, Horus, Shiva, Zoroaster, Brahma, Krishna, Buddha, and others.  Seems the early-day map-makers had a field day with grand names from eastern religions. And none of this should really surprise any American—we have a long, rich cultural tradition of describing awe-inspiring landscapes in religious terms

But alas, where religion goes, censors soon follow—and so it was in 2003 that an ACLU paralegal shot an email to the Grand Canyon National Park superintendent, noting reports of the plaques and asking “why they were there.”  One would think that the supervisor would say, “because they reflect how we humans understand our environment” and perhaps invite the ACLU to take a hike (in the Canyon, that is).  But then a leftist group with the lovely acronym of PEER (Public Employees for Environmental Responsibility) weighed in, and down came the plaques in a hurry.

Fortunately, the superintendent did one thing right by returning the plaques to those who had put them there some 33 years before—the Evangelical Sisterhood of Mary, a group of Protestant nuns who maintain a tranquil, strikingly beautiful prayer garden in north Phoenix.  They seem quaint, quiet, and devoted to Christ.  The casual observer would think that, faced with the might of the U.S. Government, they would quail and quit the fight.

One would be wrong, though, for the Sisters have a bit of a history of dealing with despots; a history that begins with the attacks of September 11.  But not the infamous day which has dominated our last decade.  Rather, it was September 11, 1944 that marks their beginning—in a quiet university town virtually devoid of heavy industry called Darmstadt, Germany.  On that night 240 British bombers used Darmstadt as a “beta test” for the subsequent horrific firebombing of Dresden.  Over twelve thousand Germans—mostly civilians—died in that eighteen-minute air raid.  Twelve thousand, dead.

But some survived, including a handful of young Christian women who had met for some years to study the Bible—women who through the preceding decade had aligned with the “Confessing Church,” a Christian movement which rejected Nazi efforts to suborn Christianity to serve evil.  Simply put, the Confessing Church was one of the few moral bright spots in the early Nazi era, where Christians risked (and some lost) their lives by opposing Hitler.

Horrified by the bombing, and led by their teacher, Basilea Schlink, these women founded the Evangelical Sisterhood of Mary as a ministry of prayer, repentance, and reconciliation for the sins of Nazi Germany.  By 1949, the order amounted to two dozen sisters and a chapel constructed from materials scavenged from burned-out Nazi barracks.  Yet they persevered, laboring in a world decimated by global conflict, overflowing with refugees, and already threatened by the emerging cold war.  As time passed, their message of peace and charity spread from Germany to many nations. Eventually they even established a guest house in Jerusalem where the Sisters host Holocaust survivors, seeking to sooth the unspeakable wounds visited upon the Jews by the Germans.

Today the Sisters model sustainable community as a religious order; open their chapels and prayer gardens to the surrounding communities; practice acts of charity and hospitality; and engaging in communal acts of repentance and reconciliation.  And they place scripture plaques where natural beauty abounds.

The plaque project began in 1960, when Mother Basilea visited Bavaria’s Obersalzberg, noted for its striking mountain scenery—but known also for Hitler’s “Eagle’s Nest” redoubt and retreat.  Spiritually moved as she contemplated the scenery so colored by its recent history of horror, she resolved to honor the Creator by placing “praise plaques” throughout the world.

The idea took root. Today there are approximately 1000 plaques in Germany, 450 in Switzerland, 300 in Austria, 22 in Israel, and smaller numbers in, America, Angola, Australia, Brazil, Canada, Denmark, England, Finland France, Ghana, Greece, Holland, India, Indonesia, Italy, Japan, Jordan, Korea, Norway, Sweden, Singapore, Tanzania, and Uruguay.

So what of the plaques pulled from the Grand Canyon? Well, they are still there. Seems the Sisters knew ADF President Alan Sears from his visits to the prayer garden, and they knew who to call for legal help.  Once ADF, international media, and intercessory prayer came into play, the plaques were reinstalled posthaste.  And so they remained, until PEER, perhaps bored with hawking “undercover activist” boxer shorts  to raise money, awoke from an eight-year nap on the issue and began banging the media drums again.

So here we are again, with U.S. Government officials wondering what to do.  And again, ADF is happy to help them make the decision, dropping a letter to the government lawyers to explain why America should not be the first nation to censor the Sisters’ plaques.  And again, we will be in prayer—and we hope you will join us—as we deploy our faith and legal expertise to stand with our Sisters in their relentless pursuit of peace and praise!

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In Bronx Household of Faith v. Board of Education of the City of New York, the Second Circuit issued an opinion that directly contradicts the last thirty years of Supreme Court precedent, takes away a vast amount of legal protection for religious speech, and I guarantee will make every Christian scratch his or her head, and mutter, “What in the world were they thinking?”

Let me give you a little context.

In 1994, the Bronx Household of Faith, a church in New York City, sought to meet in a public school facility.  These public facilities were open to almost any group in town.  In fact, the School Board’s policy stated that school facilities were open for “social, civic and recreational meetings and entertainments, and other uses pertaining to the welfare of the community ….”

You want to meet to talk about the importance of comic books in a civilized society?  Fine, come on over.  You need a room to discuss the importance of beetle dung to our environment?  Use room 100.  Come one, come all. 

Well, not really all.  You see, not all groups were welcome.  While the School allowed essentially any and every use of its facilities, School policy prohibited the use of school property for “religious services or religious instruction.”

Consequently, the School denied the Bronx Household of Faith the right to use school facilities on the same terms and conditions as others.

I am sure you have heard this same sad story before.  It is as old as “boy meets girl.”   Unfortunately, governing bodies have attempted to suppress religious speech for several years.  But thankfully, courts, including the U.S. Supreme Court, have consistently rejected these efforts by governing bodies to treat religious people as second class citizens.

For example, in 1981, the Supreme Court rejected in Widmar v. Vincent, a university’s attempt to prevent a student organization from using an open forum to hold meetings, similar to those at issue in Bronx, that included “prayer, hymns, Bible commentary, and discussion of religious views and experiences.”

In Lamb’s Chapel  v. Center Moriches Union Free School District, a 1991 decision, the Supreme Court struck down a school policy that allowed essentially all community groups to access school meeting rooms, but prohibited religious views from being presented in those rooms.

And in Good News Club v. Milford Central School District, a 2001 case, the Court held that it was unconstitutional for a public school district to exclude from its facilities “a private Christian organization for children,” which had requested permission to use space in a school building after school hours to sing songs, read Bible lessons, memorize scripture, and pray.

All of these cases were decided based on the theory that prohibiting prayer, religious devotion and religious instruction is nothing more that viewpoint based speech discrimination.  And our constitution prohibits speech restrictions that are based on the views of the speaker.

But this long line of cases did not dissuade the School Board from attempting to prohibit the Bronx Household of Faith from accessing its facilities.  Instead, it amended its policy to exclude “religious worship services” and again denied them access.

And the Second Circuit, despite all the cases prohibiting governing bodies from denying religious groups access to public facilities, agreed with the School.  According to the Second Circuit, a policy prohibiting religious worship services is not a prohibition on religious instruction or religious devotion.

This was a head scratcher.  How can a policy that prohibits religious worship services not be a policy that also prohibits religious instruction and religious devotion?  I have been attending church all of my life, and this reasoning just did not make any sense.  Every single service I have ever attended consisted exclusively of religious devotion and religious instruction.  Except for an occasional announcement, a religious worship service is religious instruction and devotion.

Pray tell (pun intended), will someone please tell me what a worship service is, then, if it is not religious instruction or religious devotion?

The Second Circuit offered up its definition of a religious worship service.   The Court began by saying the “religious worship services” clause does not purport to prohibit use of the facility by a person or group of persons for “worship.”

OK, now I am more confused.  So you can use the rooms to worship.  You just can’t hold a worship service.  Then what is prohibited?  The Second Circuit went on:

“What is prohibited by this clause is solely the conduct of a particular type of event: a collective activity characteristically done according to an order prescribed by and under the auspices of an organized religion, typically but not necessarily conducted by an ordained official of the religion.”

Oh that clears it up! So if your religious meeting is organized, done repeatedly, and supervised by a pastor, though not necessarily, then it is a worship service.

The problem with this definition of worship service is that it also describes the use of school facilities in virtually every other access case already decided by the Supreme Court.  This definition fits the use of facilities in Lamb’s Chapel, Widmar, and Good News Club just as accurately as it describes any other church service.  In Good News Club, the religious meetings were done according to an order established by a religious organization, often a church.  It was a collective activity as the meetings were regular.  It was organized.  And in many Good News Clubs, the person running the club was also a pastor at a local church.  In fact, many Good News Clubs are church run.

Furthermore, this definition is not a real accurate description of contemporary worship services.  The more church services I attend, the more I realize this – there is no set order for church services.  Some have an offering in the middle of the service.  Some have it at the end.  Some have a sermon in the middle.  Some have it at the end.  Some mix it up every week.

Some follow a strict liturgy that has been used by churches for 2,000 years.  Some make it up right before the service.  I even attended one service that lasted 4 hours and had absolutely no direction to it.  It just consisted of people praying and singing. Many modern services only have two items on the agenda – half hour of music and a half hour of preaching.  In case you missed it, that would be a half hour of religious devotion and a half hour of religious instruction.

Oh wait, but that is exactly what the Second Circuit said it was not prohibiting.  OK, now I am really confused.

The court then went on to explain, “There is an important difference between excluding the conduct of an event or activity that includes expression of a point of view, and excluding the expression of that point of view.”  The court then explained that prohibiting worship services is akin to prohibiting “livestock shows” and “horseback riding.”  I swear I am not making this up.  The court said that the school could prohibit such shows, even though undoubtedly during the shows, people would be expressing pro-animal viewpoints.

Thus, according to the court’s logic, prohibiting livestock shows within school buildings is not viewpoint discriminatory even though people would be expressing pro-livestock views during the shows.  In the same way, prohibiting worship services is not viewpoint discriminatory even though during the worship service, people would undoubtedly express religious views.

I hope I am not overstating the obvious when I say that there is a slight difference between prohibiting horseback riding and livestock shows in a public school facility and prohibiting a church service.  In one, you are clearly worried about the damage to the carpet that is irrespective of the speech.  But in the other, the entire activity consists of speech.

And if this distinction between suppressing religious views and prohibiting worship services seems terribly confusing to you, you are not alone.  In Widmar, the Court struck down an attempt by the university to justify its discrimination against religious speech by creating “a new class of religious speech act[s] constituting worship.”  The Court explained that this proposed distinction lacked “intelligible content” and would not “lie within the judicial competence to administer.”

The bottom line for pastors and church leaders here is that this fight is not over.  We are appealing this decision, and the United States Supreme Court will likely have the final say.  This opinion, that hurts all religions and faiths, must not stand.   But as for now, remember, you can worship in school facilities, you can meet in school facilities to engage in religious instruction and devotion, you just can’t hold a worship service.

If this makes sense to you, then between the two of us, that makes one.

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This fourth installment in our series on legal concerns affecting churches addresses governmental interference with church affairs. The church is the primary obstacle to attempts to erode the moral fiber of our country through things like same-sex “marriage.”  Efforts to penalize churches that take a stand for biblical morality take many forms, but all of them interfere with the autonomy of the Church.  For instance, we are representing a church that has a Christian school in Michigan in EEOC v. Hosanna-Tabor.  It has been sued over whether it can require teachers who are commissioned ministers to subscribe to church doctrine and act according to it. ADF recently became involved in this case when it was remanded for trial.  One of our allies, the Beckett Fund, is representing the school before the U.S. Supreme Court.

There are steps churches can take to make sure they have the ability to hire only those individuals that agree with their religious teachings.  Churches should seek legal advice in drafting bylaws and employee handbooks so that their policies are as defensible as possible in the event of a lawsuit.  A good place for churches to start is our legal resource, “Internal Affairs FAQs” at speakupmovement.org/church.

Last week, I discussed attempts by local governments to make churches pay property taxes. But property isn’t the only thing they’re trying to tax.  Cash strapped municipalities are also starting to assess churches with “fees” that are really just taxes in disguise.  While these “fees” often start out as very low cost, any attempt to tax churches has profound implications for church sovereignty and religious freedom.  We are currently representing two churches in Mission Baptist Church v. Mission, Kansas, which have been assessed what amounts to a driveway tax.  It is calculated based on the number of people who attend the church.  Churches should actively oppose any new proposed laws that would attempt to tax churches with “fees” or otherwise.  They should encourage other religious groups in the area to join them.  If the law passes anyway, churches should consult with ADF or another legal group to determine if it is susceptible to legal challenge.

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