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ADF Senior Counsel Brett Harvey writes:

Gazing across the street at Independence Hall in Philadelphia, I was struck by the irony.  It was an overcast January day as the city was digging out from a snow storm.  To quickly glance at the clock tower of this landmark was to see the spire shining brightly against a pale blue sky.  However, upon closer inspection the illusion was revealed.  I wasn’t looking at the building at all; rather I was staring at an image of the building printed on a tarp used to cover the scaffolding that surrounded the clock tower.  Independence Hall was being “updated” behind the facade.

Where is the irony?  It was ironic because I was in Philadelphia to witness an attempt to “update” another American icon, the U.S. Constitution.   Ironic because across the street, between the National Constitution Center and Independence Hall sits the federal courthouse where the 3rd Circuit Court of Appeals heard oral arguments about the constitutionality of opening a public meeting with a prayer.  Ironic that such a challenge would be heard within earshot of the Liberty Bell.

 It was on September 7, 1774, in Philadelphia that the First Continental Congress opened with a prayer delivered by the Rev. Jacob Duché.  Not even two years later the Continental Congress stepped out of Independence Hall and declared that we citizens have inalienable rights endowed by our Creator.  Ironic that the first congress, in 1789, finalized the language of the First Amendment just three days after they authorized the appointment of paid chaplains to deliver prayers before each session of congress, and now the court is deciding whether that same First Amendment prevents a school board from opening its meeting with a prayer.

The irony would be amusing if the consequences were not so grave.  Unfortunately, this is not an isolated incident.  Right now, three of the eleven Federal Circuit Courts of Appeals, have pending challenges to the historic American tradition of opening public meetings in prayer.  The next 12 to 18 months may well shape the future of public invocations.

In 1983 the U.S. Supreme Court pointed to the history of this nation and ruled that prayers given before the Nebraska Legislature were entirely constitutional, even though the state had paid the same chaplain to make expressly Christian prayers for more than a decade.  It is the only time the Supreme Court has directly considered the validity of prayer before public meetings.  If all three appellate courts allow invocations to be given consistent with the dictates of the prayer giver’s conscience, this historic tradition will be safe – for now.  But if the courts split or decide that the government needs to dictate the content of prayer, this legal issue will be ripe for review once again by the Supreme Court.

The most recent federal appellate court to take up the issue did so in 2008.  In that case, the 11th Circuit determined that prayer givers were free to pray as their conscience leads them.  However, if the secularists who brought suit in the 2nd and 4th Circuits get their way, the government will be forced to censor invocations and dictate what constitutes an acceptable prayer.  Ironically, if the courts come to that conclusion, local governmental bodies will not even be permitted to recite the prayer uttered by Rev. Duché at the First Continental Congress because it will be considered “too Christian” and, therefore, unconstitutional.  If the atheists succeed in the 3rd Circuit, the school board will be forced to abandoned the time honored tradition altogether.

  Despite clear historical and legal precedent, the legal fight continues.  Recently states, counties, and towns across the U.S. have received letters from activists groups like the ACLU and Freedom from Religion Foundation demanding that invocations before public meetings be stopped or censored.  This campaign of fear and intimidation has made an impact.  In January the Senate for the State of Hawaii abandoned public invocations after being intimidated with the threat of a lawsuit.  The Senate correctly reasoned that they shouldn’t try to control how people pray.  However, they then took a wrong turn and concluded the only way to protect the speech rights of invocation speakers was to silence them.

 The arguments and demands in activists’ letters are like the image draped on the scaffolding of Independence Hall.  At first blush, their arguments appear to be constitutional, but a closer inspection reveals they are a mere facade, intent on hiding the work being done to reshape an American icon.  Beware!  They are not simply restructuring a historical artifact made of brick and mortar; they are attacking the very foundation upon which this country was founded.

As I left the courthouse that day, I walked past the image of Independence Hall and stopped for a moment before a statue commemorating religious liberty.  Hopefully, the memorial is not simply a reference to a former day, but a reminder of how important religious liberty is and why we need to be ever vigilant against those opposing forces that would destroy it.

  • - Know the history of the Constitution so you will not be fooled by a facade that simply resembles this foundational document. 


  • - Be alert!  If a government body in your area is challenged to censor prayer or abandon the practice of opening public meetings with prayer, call the Alliance Defense Fund at 1-800-TELL-ADF or fill out the online legal request form.



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.


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, 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

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