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Church bellsYou probably didn’t know that several of our Presidents, past and present, have declared January 16th of each year to be “Religious Freedom Day.”  You will not likely see any fireworks displays, or even hear about it in the mainstream media.  So exactly what is it?  Well, as the title states, it is a day which is meant to celebrate the freedom of religion that we all enjoy here in our great country.

But don’t we have religious freedom every day of the year?  Why do we need a special day?  And doesn’t it exist in our public square as well as in our public schools?  While it is certainly supposed to, very often it does not.  So what does it look like when religious freedom doesn’t exist?  It looks like students at school being told that they may not mention the word Christmas during December.  Or that they may not include a small cross on their artwork.  Or that they may not make an announcement at school because it includes the word “pray.”  Or that they may not hand out an invitation to Vacation Bible School.  I can go on, but you get the point.

Because of these and many other instances that continue throughout the year, ADF has teamed up with Gateways to Better Education for Religious Freedom Sunday.  This is a national event, which occurs this year on January 16th, in which churches honor educators and inform their congregations about the freedom of religious expression that students enjoy (or should enjoy) in our public schools.  Although not always respected, students have constitutional rights to pray and read their Bibles during free time, to include aspects of their faith in their homework and artwork, to form religious clubs, and to share their faith with their friends and classmates.   Detailed information is available on Gateways website. ADF has also written a document explaining the law in this area.

Some may deny that there is any need for such a day and that the “religious right” is just making up sad stories to create much ado about nothing.  In addition to the fact that several of our current and past Presidents seem to think such a day is warranted, we also need to remember that to these kids who are told that their faith is “illegal” at school, it is no small matter.  Nor should it be a small matter to any of us.  Such religious freedom is the bedrock of our nation as it gives us all the right to worship as we choose, or not at all.  And that is something many need to be continuously reminded of.

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Instead of wrestling with the repeated warnings from chaplains, endorsing agencies, and service members that military religious liberty will suffer if the existing law on homosexual behavior is dismantled, the recent Pentagon “Don’t Ask, Don’t Tell” report only gives it lip service.

The report, compiled by the Comprehensive Review Working Group, merely acknowledges the problem’s existence and then passes it off by stating that it will not be as bad as predicted, assuming existing regulations protecting religious liberty are followed.

Horribly misleading, to say the least.

Under-Secretary for Defense and Personnel Readiness Clifford Stanley (who is a member of the CRWG) has already rejected such a solution under oath. In his affidavit to the U.S. Court of Appeals for the 9th Circuit in Log Cabin Republicans v. Gates, the retired major general stated that the tear-down would require the changing of “dozens” of regulations, including those protecting the “rights and obligations of the Chaplain corps,” to avoid “significant disruption to the force.” His words echo those of over 60 high-ranking veteran military chaplains who have described the potentially devastating effect of dismantling the law, 10 U.S.C. § 654. These chaplains provided the CRWG with a letter (PDF) that, among other things, described the numerous instances where legally normalizing homosexual behavior has resulted in significant losses of religious liberty.

The report tries to avoid these consequences by stating it does not recommend that abolishing the law be followed by making “sexual orientation” a class that receives non-discrimination protections similar to those for race. But this statement is misleading. While some limited protections granted to classes like race would not be available under the CRWG’s recommendation, the CRWG still recommends ambiguous protections that prevent “discrimination” or “harassment” on the basis of sexual orientation.

This type of system is just what chaplains and endorsing agencies have warned can be used to limit religious liberty for chaplains and service members, basing their warnings on many real-life examples that have already occurred in civilian circles and in foreign militaries.

Further, the report—in its attached “Support Plan for Implementation”—admits that current religious liberty regulations create “boundaries that are not always clearly defined.” In that same section, the report specifically admits that the CRWG recommendation would allow a complaint to be filed on the basis of “sexual orientation discrimination” against a chaplain who had preached a sermon teaching that marriage can only be between a man and a woman.

While the report suggests that such a complaint has little likelihood of success, it ignores the obvious fact that (1) unclearly defined regulatory boundaries will push chaplains toward self-censorship to avoid even specious complaints, (2) the proposed complaint resolution system—where the local chain of command resolves complaints on an ad hoc basis—could worsen that chill on religious speech by having inconsistent applications of unclear rules, and (3) even where a complaint is dismissed, the investigation process itself can create pressure to avoid religious teachings on sexual ethics to avoid being branded as a “troublemaker” or seen as “not a team player.” And given that commanders can be criminally punished for failure to prosecute sexual orientation discrimination or harassment complaints, there’s a significant likelihood that even baseless complaints will be exhaustively investigated.

At least some of this harm could have been relieved by encouraging Congress to adopt detailed and comprehensive religious liberty protections—which are often common additions to laws that give sexual orientation special non-discrimination protections—if it chooses to tear down the current law. The CRWG requested and received model legislation from religious liberty groups, based on existing federal legal protections that are available to civilians, that would have helped limit the damage to religious liberty. But, ignoring both that model legislation and its own recognition that current regulations are unclear, the report simply advocates relying on existing regulations.

And this is despite the overwhelming feedback from the survey the CRWG conducted that service members and chaplains are acutely concerned about repeal’s effect on religious liberty.

The existence of this strong emphasis on religious liberty concerns is itself notable because the CRWG survey of 400,000 service members failed to ask a single direct question about that issue. The CRWG’s script for the many discussions with groups of service members similarly failed to inquire about the concern.

And the one notable time that the CRWG did directly solicit input about possible effects on religious liberty—by contacting chaplain endorsing agencies—the majority of respondents emphasized their opposition to dismantling the law and expressed their concern with its effect on religious liberty. One reliable source has indicated that nearly 75 percent of the responding endorsing agencies opposed repeal.

That the CRWG is content to simply recognize the existence of a problem without doing a thing to avoid it is highly troubling. The report does not nearly address the many difficult concerns that endorsing agencies and chaplains have been raising for months, and which they specifically brought to the CRWG’s attention, such as:

Will the Army Chaplaincy’s Strong Bonds program, which exists to strengthen Army marriages, be forced to include same-sex couples? Will chaplains be allowed to offer advice on sexual ethics to commanders? Will chaplains with orthodox beliefs be able to teach ethics courses at military schools, as they do now? Will chaplains be able to reference their beliefs when hiring civilians for military ministry positions? What will happen when chaplains are approached by a service member engaged in homosexual behavior and asked to provide counsel on that behavior? Can chaplains counsel such a person to cease the homosexual conduct, like they can counsel service members to cease adulterous conduct?

The report’s response: silence.

While the report laudably rejects the argument that opposition to homosexual behavior is the same as racism by noting both that “skin color and sexual orientation are fundamentally different” and that the chaplaincy helped lead racial integration efforts in the 1940s, the report nonetheless creates a different erroneous comparison.

It says that since chaplains and service members have been able to handle the moral issue of abortion without loss of religious liberty under existing regulations, they will be able to do the same with homosexual behavior. But this is wrong for at least two reasons.

First, military regulations did not prevent President Clinton from trying to silence chaplains about abortion in the 1990s. Rather, it took a federal court which recognized in Rigdon v. Perry that his efforts violated the chaplains’ rights protected by the First Amendment.

Second, people who choose to have an abortion are not a protected class in the military, unlike the practical effect of the report’s recommendations regarding people who choose to engage in homosexual behavior. In fact, military bases are banned from performing abortions, and military doctors are given special conscience protections regarding abortion.

In fact, the abortion example’s only useful function is to highlight that chaplains are willing to minister to anyone, including those who make moral decisions with which they disagree. But that is true for chaplains in the context of homosexual behavior as well, as chaplains and endorsing organizations opposed to repeal have repeatedly stressed. Their concern is not who they will be ministering to (since they are happy to minister to everyone), but rather how they will be allowed to minister in the wake of crushing the existing law. And nothing about the CRWG Report addressed that concern.

So, the report does make some important contributions to religious liberty concerns by compiling data and recognizing the distinction between homosexual behavior and innate, innocuous characteristics like race. But because the report’s religious liberty analysis is misleading and inaccurate, it will lead to a loss of that liberty. We should not jeopardize the religious liberty of those who fight to protect our own.

This post originally appeared as a column on Townhall.com, 12/17/2010.

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ADF Litigation Counsel - Church Project

There is currently a trend in our courts to rely on foreign legal precedent from – especially Europe – when ruling on important social issues in the U.S. The most notable case, Lawrence v. Texas, used foreign precedent in 2003 to justify striking down a law criminalizing homosexual behavior. This should be alarming for many reasons, but one of the most important is Europe’s increasing hostility to Christians.

A report issued on December 10, 2010 titled Shadow Report on Intolerance and Discrimination Against Christians in Europe chronicles many of the acts of discrimination against Christians in Europe in the last five years.  I’ve listed some of these below. But before reviewing them, it’s significant that the non-profit group who compiled the report concluded:

“Such intolerant and discriminatory behaviour results from opposition to individual traits of the Christian faith or moral positions that are intrinsically part of the Christian faith, or from a negative categorical bias against Christians or Christianity as a whole. It leads to attacks on the social level (such as negative stereotyping or social exclusion), on the legal level (for example through a discriminatory law or a bias court verdict) and on the political level (exclusion from the public sphere; a resolution of a parliament; etc.).”

In other words, Christians are being discriminated against in Europe because of biblical beliefs regarding moral issues. Some examples from the report are:

France, January 2005: French member of parliament, Christian Vanneste, sentenced to payments for homophobic insults”. 

United Kingdom, January 2006: Member of the Scottish Parliament asked Strathlyde Police to investigate remarks made by the Roman Catholic Archbishop of Glasgow. The Archbishop had defended the institution of marriage in a church service.

Spain, November 2008: Judge Fernando Calamita was sentenced to 18 years of occupational ban for exercising conscientious objection and thereby delaying the adoption of a little girl by the lesbian partner of her mother.

United Kingdom, January 2009: Brighton Council requests care home for elderly Christians to ask its residents about their sexual orientation and cuts funding when rejected.

Turkey, June 2010: Turkish attorneys are now in the fourth year of prosecuting two Christians for allegedly slandering Islam. Despite the lack of any concrete evidence to support their claims, Turkish courts are continuing prosecution.

We can expect the same kind of persecution of Christians here in the U.S. soon if our courts continue to be enamored with foreign laws.

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ADF Senior Counsel - Church Project

At ADF, our clients – especially pastors and churches – often question whether it is biblical for Christians to sue the government to protect their constitutional rights. This question stems from passages like Romans 13:1-7, which commands us to “submit [our]selves to the governing authorities,” because those authorities are established by God. Would a lawsuit against the government violate this command?

Perhaps the best way of answering this is to consider who the “government authorities” are. Our system of government features a series of authorities at different levels (e.g. local, state, and federal) and of different types (e.g. executive, legislative, and judicial). Yet one authority in our system stands above all others: the United States Constitution. By using the judicial system to insist that government officials follow the Constitution, a church is not resisting authority. It is simply using the established system of government to appeal to a higher authority.

Apostle Paul, the author of Romans, frequently appealed to higher authorities to protect his rights. For example, he invoked his Roman citizenship and Roman law to force magistrates to personally release him from a Philippi prison after he had been beaten illegally (Acts 16:16-40).  He later invoked his Roman citizenship in Jerusalem to prevent a centurion from flogging him (Acts 22:22-29). Then he defended himself against charges in a Roman court and ultimately appealed to Caesar (Acts 24:10-25:12). Clearly, Paul had no trouble appealing to higher authorities when government officials overstepped their bounds or did not do justice.

So invoking a higher authority is not the same as resisting authority. A lawsuit is neither revolution nor rebellion. It is simply a way to insist that government officials obey a higher legal authority. And by doing so, it helps uphold the rule of law, preserves our Constitution, and ensures that we all can continue to enjoy our first liberty – religious freedom.

If you’re interested in exploring these issues in more depth, ADF attorney Travis Barham has written an excellent essay that I recommend to any Christians who are faced with the possibility of going to court to protect their constitutional rights.

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ADF Legal Counsel - Church Project

For months now, chaplains, organizations that are responsible for placing chaplains in the military, and prominent religious liberty organizations have warned that forcing the military to normalize homosexual behavior by dismantling the so-called “Don’t Ask, Don’t Tell” law will harm religious liberty.  Now, the just-released report issued by the entity tasked by the Pentagon to study the effects of repeal confirms that the men and women who fight to preserve America’s religious liberty agree with those warnings.  Here’s a few comments by service members quoted in the report:  (Note: the report kept the identity of the service member confidential, only identifying the sex of the respondent and whether he or she was a chaplain.)

 “Military chaplains who have volunteered to defend the liberties protected in our Constitution shouldn’t be denied those very same liberties. Preventing chaplains from sharing the full counsel of their faith defeats the purpose of the chaplaincy and threatens the free exercise rights of Service members who depend on chaplains.”(female)

 “I served in the active military as a Southern Baptist Chaplain for over 9 years including two deployments to Iraq. I believe that allowing openly gay individuals will create problems such as openly gay chaplains which in many instances will destroy chapel congregations on army posts. Many of these congregations view the issue as moral and that is in their mind a sinful lifestyle that in the civilian sector the minister would be subject to dismissal as he would for any other unrepentant immoral behavior. Many of these congregations do not get to choose the chaplain that is assigned to the chapel and so would be forced to leave in order to find the spiritual leadership they desire and need.” (male chaplain)

“Forcing chaplains to deny their faith in order to serve in the Armed Forces is a grave threat to the First Amendment and to the spiritual health of Marines, Soldiers, Sailors and Airmen who depend on them. If the military is forced to promote homosexual behavior, for the first time in American history there will be open conflict between the virtues taught by chaplains and the moral message delivered by the military.”(female)

“Repealing DADT will impact my religious liberty as a Christian chaplain. The Christian Scriptures make it clear that homosexuality—like fornication and adultery (which are, along with homosexuality, against the UCMJ)—is a sin. All sexual sins inherently break the law of God. If DADT is repealed, then that situation creates an unavoidable conflict with my ability to preach and teach the entirety of the Scriptures with impunity. What is the constitutional basis for the government ever curtailing my freedom of religion?” (male chaplain)

“Key questions to be considered: Will Chaplains be forced to integrate homosexuals into ‘family’ ministry? If so, what impact will this have on families that do not accept homosexuality? Will Chaplains be limited on what they can define as moral? Until the answers to these questions are presented and the resulting impacts clearly defined, DADT should remain in place.” (male)

“There exist potential ramifications for those who refuse couples counseling to gays. Chaplains who refuse to counsel gays on how to better their relationships or refuse to allow ‘married homosexuals’ to attend marriage retreats would be subject to discrimination charges even though to allow such things would directly violate many chaplains’ beliefs. If it then becomes mandatory to open these events to all couples, chaplains would quit offering the retreats. When family wellness is so important, this would do nothing but hurt the majority for the sake of a few.” (male)

Remarkably, while the report was largely based on a written survey that failed to ask a single question about religious liberty concerns (and had many other deficiencies), it admits that one of the primary objections given by the military to the dismantling of the policy is that normalizing homosexual behavior will harm the ability of service members to fully practice their faith.  Thus, our men and women in uniform have decided not to let their religious liberty go without a fight.  Given that they’re willing to fight for ours, that tenaciousness shouldn’t come as a surprise.

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ADF Litigation Counsel - Church Project

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