Article Religious Liberty in 2015: A Year in Review By Andrew Walker Dec 28, 2015 It was once debated about what the next frontier of the culture war would be. Make no mistake, that answer is now apparent: Religious liberty. This is nothing less than tragic to our constitutional order. Only a few years removed from being a revered topic of consensus, religious liberty is now frequently scare quoted and dismissed by media figures as a “license to discriminate.” Consequently, the events of 2015 indicate that this year will long be remembered as a momentous time of change for religious liberty in American history. And unless the course is reversed, religious liberty will continue its descent. What events happened in 2015 that sent a reverberating shock to religious liberty? A lot. While mostly distressing, some events were encouraging. Here are my top religious liberty-related news events of 2015. Reed v. Town of Gilbert How does a sign ordinance threaten religious liberty? Until a critical Supreme Court victory in June, Clyde Reed and the members of Good News Presbyterian Church in Gilbert, Arizona knew all too well. Before the ruling, the town’s restrictive sign code prohibited churches and other groups from posting temporary directional signs more than 12 hours before an event or service. Additionally, the code required that these signs be removed within an hour of the event’s conclusion, while other types of temporary signs, including political signs, were not subject to such acute restrictions. Reed, an 82-year-old pastor, challenged the discriminatory sign code after his church was twice cited for violations. On June 18, the Supreme Court issued a unanimous ruling in Reed v. Town of Gilbert, finding the sign code to be a content-based regulation of speech that cannot survive strict scrutiny. As such, sign ordinances are no longer allowed to place separate restrictions on signs of the same classification (e.g. temporary) regardless of content. The Court’s ruling represents an important victory for religious liberty because the Ninth Circuit had previously upheld the sign code. In part, the Ninth Circuit’s ruling reasoned that such restrictions were lawful because the restrictions were not based on animus or hostility toward any specific message. In reality, such restrictive ordinances present real threats to religious liberty by allowing opponents of religious freedom to obstruct the medium in place of the message. You can read more about this case here. Holt v. Hobbs This is an interesting case that ultimately yielded a significant victory for religious liberty. In Holt v. Hobbs, a Muslim inmate, Gregory Holt (aka Abdul Muhammad), challenged an Arkansas prison policy which prohibited him from growing a beard (a policy ostensibly based on safety and law enforcement concerns that precluded all inmates from growing beards of any length with the exception of ¼ inch beards for inmates diagnosed with relevant skin conditions). Holt believed his religion required him to grow a full beard and requested permission, as a compromise, to grow a ½ inch beard. His request was denied by the prison and Holt subsequently filed a lawsuit. After the trial court and the Eighth Circuit Court of Appeals ruled in favor of the prison, the case was heard by the Supreme Court. In a unanimous ruling, the Court found in favor of Holt based on RLUIPA. Arkansas officials failed to demonstrate that the prohibition furthered a compelling governmental interest using the least restrictive means. The Court ruled that the policy placed an undue burden on Holt’s exercise of his religious beliefs. Though Holt was convicted and incarcerated for committing a violent crime, the Court’s decision in his favor was important for all Americans. In Holt v. Hobbs the Supreme Court wisely denied government the ability to arbitrarily limit a citizen’s religious practice. Hillary Clinton’s Human Rights Campaign Speech In October, former Secretary of State and Democratic presidential front-runner Hillary Clinton delivered an impassioned pro-gay rights speech to the nation’s largest LGBT activist group. Clinton sent a clear signal that her allegiance is now decidedly with those in favor of the sexual revolution. Notably, she pledged support for the Equality Act, a bill that threatens religious liberty by creating federal anti-discrimination protections on the basis of sexual orientation and gender identity in public accommodations, education, employment, and housing by amending the 1964 Civil Rights Act to include “sexual orientation” and “gender identity” as protected classes. The former Secretary of State further promised that another Clinton White House would cut off federal funding for adoption agencies that believe children should only be adopted by opposite-sex households. Although only one speech in a campaign of many, the address made it clear that Hillary Clinton is intentionally running on the most progressive LGBT rights platform in the history of presidential politics. Sexual Orientation & Gender Identity as Sex Discrimination Lawmakers, judges, and activists are increasingly scrutinizing the admissions standards of religiously-affiliated colleges and universities which receive any level of federal funding. Specifically, the consideration of an applicant’s religious values—values that are essential to the character and integrity of such institutions—is being labeled discriminatory. Opponents believe this practice runs afoul of the 1972 Educational Amendments, specifically Title IX, that bans any form of discrimination based on sex if federal funds are exchanged. Continued pressure for higher levels of scrutiny for these institutions has resulted in growing intimidation and harassment of Christian colleges. Anticipating a day when Congress may pass legislation elevating sexual orientation and gender identity to a federally protected class such as sex or race, many colleges have acted to secure exemptions. To the frustration of liberal lawmakers and activists, thankfully, many schools have been able to obtain these exemptions. And for good reason: Reading sexual orientation and gender identity into Title IX, as some lawmakers would like to do, creates conflict. The practice of offering exemptions protects religious liberty and shouldn’t be revoked just because LGBT activists demand it. This move signals that opponents of religious liberty aren’t only seeking to restrict public expressions of religious belief, but are now targeting private institutions, impeding the ability of these schools to maintain their institutional purpose and identity. Donald Trump’s anti-Muslim Saber-rattling In December, we saw some challenges to religious liberty arise from an unlikely source: candidates running for the GOP nomination for President. GOP presidential candidate Donald Trump called for ending Muslim immigration and floated the idea of “shutting down mosques” in the wake of the Paris and San Bernardino terrorist attacks. Christians should push the U.S. government to aggressively fight radical Islam and do all it can to protect the nation from terror, but we should be wary of any leader who will use the power of the state to shut down a house of worship. Russell Moore commented on Trump’s call for banning Muslim immigration: A government that can shut down mosques simply because they are mosques can shut down Bible studies because they are Bible studies. A government that can close the borders to all Muslims simply on the basis of their religious belief can do the same thing for evangelical Christians. A government that issues ID badges for Muslims simply because they are Muslims can, in the fullness of time, demand the same for Christians because we are Christians. Dr. Bart Barber, an SBC pastor in the Dallas area shared four misguided things Christians say when they deny religious liberty to others. Federal Government Coercion on Transgender Ideology In November, the Department of Education found that an Illinois school district violated anti-discrimination laws by not allowing a transgender male (student born male but identifying as female) to change and shower in the girl’s locker room without restrictions. This was despite the school’s attempt to accommodate the student by allowing him to change behind a privacy curtain inside the girl’s locker room. In response the government threatened to strip the district of its Title IX funding (potentially millions of dollars) unless the student was granted “unfettered access” to the girls locker room and allowed to compete on girl’s sports teams. This story is very troubling for multiple reasons. First, it reveals the extent to which the government is committed to a worldview incompatible with biblical Christianity. Second, it demonstrates the coercive power and reach of government. If a school district refuses to comply with the federal government’s understanding of controversial gender identity politics, it will be subject to crippling financial sanctions. This strong-armed, top-down approach stifles debate and leaves a teenager’s subjective self-identification as the sole arbiter of policy. Third, the situation reveals that public safety has been replaced with a political agenda motivated by extreme ideology. The safety and well-being of young girls is potential collateral damage in a high-stakes game of political correctness played by those committed to an understanding of gender and identity rejected by an overwhelming percentage of Americans. For more analysis on this issue, please see my ERLC.com article. The Introduction of the Equality Act Over the summer, lawmakers introduced the dubiously titled “Equality Act.” The bill’s purpose is to elevate the controversial and contested categories “Sexual Orientation” and “Gender Identity” as protected classes within the 1964 Civil Rights Act. This is the most sweeping, anti-religious liberty measure I have ever seen introduced by lawmakers. Were this bill ever to pass, it would end public debate and designate the beliefs of any individual with a moral and/or religious objection to the federal statute, regarding an entirely new sexual ethic, as discriminatory. As I wrote at Public Discourse at the time the bill was introduced, Aside from the enumerated protections that give rise to conflict between sexual identity and religious liberty, by elevating sexual orientation and gender identity to the level of race, the law’s effect would functionally equate those who don’t agree with it with racists and label them perpetrators of irrational bigotry. Indeed, to favor the Equality Act is to oppose and actively stigmatize the moral convictions that millions of Americans adhere to with abiding sincerity and deep religious precedent. The bill’s stated intentions and its actual consequences are very different. While the bill purports to protect individuals from discrimination, the Equality Act would discriminate against those who do not agree with a regime of laws premised on sexually permissive understandings of human nature that deny sexual complementarity. It would thus create a new form of discrimination by socially isolating certain beliefs. For more analysis on the Equality Act, see my article at Public Discourse. Utah Compromise On March 11th, the Utah state legislature passed landmark legislation with the help of two unlikely partners: the Mormon Church and LGBT activists. Dubbed the “Utah Compromise,” the law extended housing and employment protections to the LGBT community in addition to safeguarding specific religious liberty concerns. Many hailed the compromise as a model for how social conservatives and progressives can work together. However not all religious conservatives were as optimistic. ERLC President Russell Moore explained that he believed the “compromise is well intentioned but naive.” In an article at ERLC.com, Dr. Moore and I enumerated our concerns with the legislation. We conclude that the bill offered too many concessions that disadvantage religious liberty without guaranteeing sufficient protections in return. Houston’s HERO loses. On November 3rd, Houston voters overwhelmingly rejected Houston’s Equal Rights Ordinance (HERO) and agreed: “No Men in Women’s Bathrooms.” The November vote followed a year of contentious debate garnering national attention. In May, the City Council narrowly approved an ordinance that broadened the city’s non-discrimination protections to include “sexual orientation” and “gender identity.” Championed by Houston’s first openly gay mayor, Annise Parker, supporters claimed the measure was necessary to prohibit bias in housing, employment, and business services. President Obama, Hillary Clinton, corporations including Apple and GE and prominent Hollywood actors vocalized support for the measure. Opponents of the measure which included Republican candidates for President, Christian leaders and retired Houston baseball player Lance Berkman claimed the measure would put women in danger by allowing men claiming to be women to enter women’s bathrooms. The rejection of HERO was a significant victory for religious liberty, not least of which was the vindication of the five Houston pastors subpoenaed in late 2014 for their efforts to repeal the ordinance. Kim Davis Controversy In perhaps the most media-frenzied event of the year, Kentucky County Clerk Kim Davis was jailed for defying a court order to issue a marriage license to a same-sex couple. Davis alleged that her signature on the license signaled her approval of the relationship, and therefore infringed upon her religious liberty. As Russell Moore and I wrote at the time, both sides needed to take steps to seek compromise. We summarized the dispute around four areas: The events in Kentucky are the result of judicial overstep on the part of the Supreme Court. Secondly, government inaction by both the Kentucky legislative and executive branches has failed to resolve this conflict where it feasibly could. Third, needless escalation by Judge Bunning on arresting Mrs. Davis for an unspecified amount of time has placed an otherwise law-abiding citizen in prison. Fourth, in this dispute, there are differences concerning religious liberty when it involves government employees and private citizens. For more analysis, see our ERLC.com article. Thankfully, newly-installed Kentucky Governor Matt Bevin has issued an Executive Orderthat hopes to resolve this debate. The Indiana RFRA Debacle On March 26th, Gov. Mike Pence (R-IN) sparked a firestorm when he signed the Religious Freedom Restoration Act (RFRA) that allowed individuals and businesses to cite their religious freedom as a legal defense. The law assured that the government cannot “substantially burden a person’s exercise of religion” and that religious liberty and freedom of conscience are protected. Gov. Pence stated RFRA “ensures that Indiana law will respect religious freedom and apply the highest level of scrutiny to any state or local governmental action that infringes on people’s religious liberty.” However critics charged that the law could be used to deny service on the basis of sexual orientation and that discrimination could be justified by citing religious belief. Although Indiana’s law was similar to the federal Religious Freedom Restoration Act signed into law by President Clinton in 1993 (and 21 state RFRA’s on the books before 2014), gay rights organizations solicited the support of major corporations and organizations including Apple, Angie’s List, Paypal and the National Basketball Association in opposing the law. On April 2nd, the Indiana legislature and Gov. Pence agreed to modify RFRA in an effort to quell reports that the law allowed discrimination. The heated debate surrounding Indiana’s RFRA witnessed competing notions of religious and erotic liberty. Both supporters and opponents of the law denied that their position was discriminatory, although most opponents did not blink at the prospect of forcing business owners to violate tenets of their faith. Indiana’s RFRA law and subsequent outrage revealed a growing intolerance for religious liberty in the media and the rising political will of progressive voices within the corporate world. The situation also revealed the need for a clear articulation of what religious liberty means and why it’s important. At National Review, I offered “Eight Theses” of analysis that attempted to cut through the hysterics of Indiana’s RFRA. On the same topic, I also wrote about what liberalism’s increasing opposition to modest proposals like RFRA means for religious liberty. Same-Sex Marriage Nationalized In no doubt the biggest religious liberty event of the year, the Supreme Court overstepped its jurisdiction and ignored the voice of American voters by nationally legalizing same-sex marriage in its Obergefell ruling. A historic ruling, the impact of this decision on culture and religious liberty cannot be overstated. While the majority opinion attempted to assuage those with concerns about the ruling’s impact on religious liberty, the now-legendary dissents—particularly that of Chief Justice John Roberts—reacted negatively to the court’s basis for its ruling, and also its unscrupulous regard for religious liberty. According to Justice Roberts, Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today. Perhaps the most discouraging aspect of today’s decision is the extent to which the majority feels compelled to sully those on the other side of the debate. The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same- sex marriage. That disclaimer is hard to square with the very next sentence, in which the majority explains that “the necessary consequence” of laws codifying the traditional definition of marriage is to “demean or stigmatize” same-sex couples. The majority reiterates such characterizations over and over. By the majority’s account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history—in particular, the tens of millions of people who voted to reaffirm their States’ enduring definition of marriage—have acted to “lock . . . out,” “disparage,” “disrespect and subordinate,” and inflict “dignitary wounds” upon their gay and lesbian neighbors. These apparent assaults on the character of fairminded people will have an effect, in society and in court. Moreover, they are entirely gratuitous. It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s “better informed understanding” as bigoted. The full scope of Obergefell is unknown, as we’re just now in the immediate aftermath of the Court’s ruling. In response to the ruling, the ERLC led the “Here We Stand” effort that included the signatures of hundreds of America’s top religious leaders who signaled their steadfast commitment to biblical marriage and religious liberty. Conclusion: Looking Ahead 2016 will be fraught with its own challenges to religious liberty. The Supreme Court will once again resolve a dispute concerning the Obama administration’s coercive HHS Mandate in a case involving the Little Sisters of the Poorand other religious non-profits. Corporate cronyism will attempt to force congress to take up problematic causes like the Equality Act. In Indiana, an enormous legislative push will be made for moving forward on a Utah Compromise-like piece of legislation. Lastly, Americans will go to the polls to elect a new president. Who ascends to the highest office in the land will have enormous influence over judicial appointments, which will in turn dictate the future of religious liberty jurisprudence for generations to come. Josh Wester and David Closson contributed research for this article. Andrew Walker Andrew Walker is the managing editor of Canon and Culture. He also serves as the Director of Policy Studies for The Ethics & Religious Liberty Commission of the Southern Baptist Convention, the denomination’s entity tasked with addressing moral, social, and ethical issues. In his role, he researches and writes about human dignity, family stability, religious liberty, and the moral principles that support civil society. He is a PhD student in Christian Ethics at The Southern Baptist Theological Seminary. Andrew lives in Franklin, TN with his wife and daughter and is a member of Redemption City Church. You can find him on twitter at @andrewtwalk.