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One of the most eye-opening features of the Perry v. Schwarzenegger trial – the trial where a few people in California are trying to redefine marriage for the entire nation to include homosexual relationships – was its near daily insistence on attacking foundational Christian moral beliefs.  On a regular basis, the Southern Baptist Convention’s Position Statement on Sexuality or the Catechism of the Catholic Church - both of which, like all orthodox Christian teaching on the subject, recognize homosexual behavior as sinful – would be pulled out and subjected to ridicule.  Worse, these Christian teachings were used as evidence that the recently-enacted California definition of marriage was irrational because it may have been based in part on religious teachings.  In other words, if you vote your faith, your vote shouldn’t count.

As disturbing as such a direct attack on religious belief is, it is also instructive.  For a long time, proponents of homosexual behavior have argued that their cause was also about “tolerance.”  But it never has been.  For them, tolerance is a one way-street, where their actions must be tolerated, but your beliefs cannot be.  Perry makes this clear: normalizing homosexual behavior requires marginalizing your religious beliefs.

It’s not just Christians who are seeing this, either.  Chai Feldblum, President Obama’s new head of the powerful EEOC, has admitted that when religious liberty and homosexual behavior conflict, “I’m having a hard time coming up with any case in which religious liberty should win.”  Hear that, pastors?  Your ministries, your churches, your sermons – they’d better get in line or get out of town.

Perry is just one of the recent examples of the attack on Christianity from homosexual activists.   Catholic Charities in both Washington, D.C. and Boston were run out of the adoption business by aggressive city officials who wanted to force them to place children with same-sex parents.  A church campground in New Jersey was punished by the state for refusing to use its property to host same-sex “commitment ceremonies.” A Christian student in a public college in California was verbally attacked by his professor for respectfully speaking out in support of traditional marriage.

Isaiah tells us that when society starts calling evil “good,” it won’t be long before it calls good “evil.”  Is. 5:20.  Things have gotten to the point where being a Christian – particularly one of those kinds of Christians who actually lives what you believe – is “evil.”

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ADF Litigation Counsel - Church Project

ADF recently filed a brief in an Arizona case – Reed v. Town of Gilbert – where we had to counter the Town’s argument that political speech gets more constitutional protection than does religious.  Gilbert makes this baseless contention because its Sign Code provides more favorable treatment for political temporary signs along streets and sidewalks than it does for churches.  Pastor Clyde Reed and his church have challenged Gilbert’s discriminatory law in federal court.

It’s encouraging to know that the Town of Gilbert is wrong.  Political speech is not any more protected than religious speech.  In fact, religious speech gets more protection from the First Amendment because of the Free Exercise Clause.  As Judge Noonan, of the Ninth Circuit Court of Appeals wrote:

Churches have played an important-no, an essential-part in the democratic life of the United States. On two of the greatest issues ever to confront our country, churches led the way and churchmen conducted crusades [– the abolition of slavery, and the 1960s civil rights movement].  …In a secular age, Freedom of Speech is more talismanic than Freedom of Religion. But the latter is the first freedom in our Bill of Rights.

Canyon Ferry Baptist Church v. Unsworth, 556 F.3d 1021, 1036-37 (9th Cir. 2009) (Noonan, concurring).

The religious speech of churches doesn’t take a back seat to political speech on the constitutional bus.  As Judge Noonan astutely said, it’s just as important to our democracy and even more protected.

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ADF Senior Counsel - Church Project

We reported back in June that a preliminary ruling in Kennedy v. Villa St. Catherine eroded the freedom of religious organizations. In an unusual development (and as a result of some good lawyering by St. Catherine’s attorneys), the Fourth Circuit Court of Appeals agreed to go ahead and review that ruling early. ADF, on behalf of itself and the National Association of Evangelicals, recently filed an amicus brief in the case, urging reversal of the lower court’s dangerous ruling.

In the brief, we explain that the District Court undermined the freedom of religious organizations when it allowed the plaintiff’s religious harassment and retaliation claims against a Catholic institution to go forward.  Villa St. Catherine is a Catholic nursing center that the District Court recognized is exempt from the religious discrimination prohibitions of Title VII.  Congress wisely included this exemption so that religious organizations can maintain their religious character.  This makes constitutional and practical sense. A Jewish ministry to the poor should not have to adjust its workplace requirements so that a Muslim would feel comfortable accomplishing its religious goals, and vice versa.  When government entangles itself in the employment decisions of religious organizations, it violates the First Amendment’s protection of religious freedom. 

The District Court’s order results in the nonsensical legal reality that St. Catherine could have simply fired Kennedy because she was not Catholic, but could not require her to dress and act in a way that does not conflict with the Catholic beliefs of the institution and the people it serves.  This makes an end run around Congress’ well-conceived efforts to protect religious organizations from liability when they ensure their employees’ religious beliefs comply with their own.  More significantly, it violates the religious freedom of religious organizations by exposing them to liability for simply teaching employees their doctrine, and requiring them to act in compliance with it while at work.

Hopefully, the Fourth Circuit will agree and undo the lower court’s unfortunate limitation of religious liberty.

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ADF Senior Counsel - Church Project

Have you heard the joke, “if con is the opposite of pro, then congress is the opposite of progress?”  While there might be several examples supporting the truth of this statement, the Religious Land Use and Institutionalized Person’s Act (“RPUIPA”), passed by Congress, is not one of them.

RLUIPA is an example of Congress actually doing well by churches and protecting them from overzealous zoning officials.   Churches were being pushed out of cities and counties.  For example, they were being told they could not locate in the business district because church use was supposedly inconsistent with generating a revenue stream for the city.  But on the other hand, churches were also told they could not locate in residential areas on the theory that church use caused traffic and noise issues so it was inconsistent with residential use as well.  Churches had a real uphill battle on their hands just to locate within any part of urban and suburban areas.

To make matters worse, cities could discriminate against churches under the guise of a bogus safety issue that for some reason, only applied to churches and not other similar uses.   Something had to be done to rein in this seemingly unstoppable power of zoning officials to hinder church property use.

So Congress stepped up and provided churches with meaningful protection against these overzealous zoning officials by passing RLUIPA.  This federal law prohibits towns and counties from treating churches differently than other similar uses.  It protects churches from ordinances that substantially burden their beliefs and practices.

But a recent decision by the Seventh Circuit Court of appeals in River of Life Kingdom Ministries v. Village of Hazel Crest, Illinois, threatens to gut the protections of RLUIPA.  In this case, the River of Life church bought a building in a commercial district to hold its church services.  When the church bought the property, the following uses were automatically permitted: art galleries, gymnasiums, meeting halls, lounges and taverns, along with several other uses.  In addition, the following uses were allowed with a permit: museums, day care centers, schools of any kind, community centers, and live entertainment venues.

But, the city prohibited any and all church use in the district!  What possible reason could the city have for prohibiting a church, which teaches moral values to the citizenry, while allowing community centers and live entertainment venues?

So the church filed a lawsuit claiming that the town’s actions violated their constitutional rights, as well as their rights under RLUIPA.  But the Seventh Circuit ruled against the church.  In so doing, the Seventh Circuit effectively eliminated the protections of RLUIPA.   We will delve deeper into the court’s reasons in future blogs, but for now, I would like to point out this quote from the court: “Commerce and industry must be recognized for what they are, necessary and desirable elements of the community….”  See 2010 WL 2630602, *5 (C.A. 7 (Ill.)).

According to the court, the town was justified in discriminating against the city because “commerce and industry” are “necessary and desirable elements of the community”.   But what about the church?  Is not the work of the church necessary and desirable for the community?  Of course it is.  But to certain government officials who only understand the value of the dollar, providing moral direction and the other benefits of churches is worthless.

Maybe there will come a day when we remember that churches are also beneficial – and even necessary – to communities.

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ADF Senior Legal Counsel - Church Project

It appears that those who have religious liberty concerns with DADT repeal are being told to shut up or ship out.

While homosexual advocacy groups are complaining that Service members who engage in homosexual behavior can’t speak up in support of DADT repeal (as if they needed more advocates with the Commander in Chief, the Chairman of the Joint Chiefs of Staff, and the Secretary of Defense on their side), it’s those who support keeping the current policy who are feeling the real heat.  The last Chairman of the Joint Chiefs of Staff lost his job for informally expressing that his religious beliefs supported current law, and a top general  received sharp criticism from Pres. Obama’s military leadership for merely suggesting that Service members share their opinions on repeal with Congress.  Apparently, Service members are discouraged from exercising their constitutional franchise, and instead should provide their feedback to the same politically-appointed leadership that has already said DADT must be repealed.

So, what has been the experience of those trying to speak up in support of current policy?  Decidedly one-sided.  Admiral Mullen, the Chairman of the Joint Chiefs, stated that those Service members who disagree with repeal can “vote with their feet” and leave the military.  A chaplain, speaking in one of the DADT repeal forums being held on military bases, asked the senior officer administering the meeting whether religious freedom would be protected in the wake of repeal and was told that, if the chaplain couldn’t affirm repeal, his only option was to just quit.  And now the survey being circulated to Service members about repeal, while valuable in some ways, seems to be another indication that “the fix is in.”   News reports are saying the survey “appears to lean heavily on questions about teamwork, performance, mission completion and morale…[It] asked how a repeal will affect the respondent’s likelihood of recommending military service to family members or close friends and their own continued service; and whether they personally know any gays, served with any gays and whether they were a leader or co-worker, and how well the unit performed.”  Notably, there’s not a single question about the potential impact of repeal on religious liberty for chaplains and Service members.

There’s another serious flaw in this approach, one identified by an active duty Service member who recently wrote me about the reports on the survey:

 To me, [the survey's questions] are all tactical “gotcha” questions.  I’ve worked for someone I have a suspicion was gay.  The unit performed just fine, there were no morale issues, etc.  Based on the survey answers, the military could very well say “well, then, let’s repeal the ban!”  That misses the point that suspecting someone is gay is not at all the same thing as working in an environment where such behavior is normalized – an environment that would ultimately be detrimental to the military’s effectiveness, performance, and morale.  It also misses the strategic level question we should be asking:  What is the impact of the military calling something “right” that is immoral?  They could ask, for example, if I’ve ever worked with a person who lived with someone who wasn’t their spouse (which I have).  The unit performed just fine, and there were no visible morale issues to speak of.  That doesn’t mean the military should abandon its support of marriage and families or support that lifestyle. 

 A lot of people have repeated the quote “you just have to shoot straight, not be straight” to support the repeal.  That, like the military’s apparent logic above, frames an argument of “we only care about the ends, not the means” – which is a type of thinking that has all kinds of ethical implications (mostly bad). 

Character means something, but character is measured in morality and ethical conduct, not just whether you can shoot straight.

Service members have this kind of sophisticated moral clarity, it’s disappointing that some of our country’s leaders don’t share it.  And, as an anonymous active-duty chaplain recently pointed out, losing moral clarity in an entity that must take human life is dangerous.   

It’s wrong that the President is willing to discourage the constitutional rights of Service members to speak and express their opinions to Congress.  It’s wrong that he is almost certainly sacrificing the free religious exercise rights of our Soldiers, Sailors, Airmen, and Marines to fulfill a campaign promise.

Stay tuned for yet more evidence that normalizing homosexual conduct in the military will diminish the constitutional rights of our Service members, who are fighting and dying to preserve those rights for us.

The author of the quoted section is an active-duty Service member whose name is withheld to avoid censure for expressing these views.  The views expressed are the author’s alone and do not represent those of the U.S. military.


If you’re a military chaplain, active or retired, and are interested in becoming involved in this issue or signing the Chaplains Letter, please contact us with your information.

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ADF Litigation Counsel - Church Project

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