Explainer: The ERLC joins amicus brief alongside Minnesota-Wisconsin Baptists in support of religious liberty
By / Jun 26

Last week, the ERLC partnered with the Minnesota-Wisconsin Baptist Convention and other multi-faith allies in joining an amicus brief in support of religious liberty at the Wisconsin Supreme Court. The ERLC regularly comes alongside state conventions to work together toward promoting religious liberty, upholding human dignity, serving Southern Baptists, and glorifying God at the state level.

This case, Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission, raises important religious liberty issues surrounding what is considered “religious” activity and what makes an organization religious. 

What is this case about?

In 1917, as an outflow of their religious convictions, the Catholic diocese in northern Wisconsin founded the Catholic Charities Bureau to serve vulnerable and disadvantaged populations within northern Wisconsin, including people with disabilities, children with special needs, the elderly, and those living in poverty. The organization describes this fulfillment of their religious convictions as “an expression of the social ministry of the Catholic Church in the Diocese of Superior.”

The state of Wisconsin provides relief opportunities for unemployed citizens through its taxpayer-funded unemployment insurance program. Religious organizations are permitted to receive an exemption from paying taxes to this program, and the Catholic Charities Bureau sought to obtain this exemption in order to provide funds for an alternative, non-taxpayer funded initiative called the Wisconsin Bishops’ Church Unemployment Pay Program. The organization was ultimately denied this exemption and submitted an appeal as a result. However, the Circuit Court of Douglas County, Wisconsin, ruled that the Catholic Charities Bureau was not operating religious activities through their charitable work because the people their ministry served included non-Catholic and non-church members. 

Essentially, the court maintained that Catholic Charities Bureau’s work was charitable rather than religious, despite the fact that these charitable actions were being taken as a result of deeply held religious beliefs. Consequently, the court ruled that they must continue paying toward the state’s unemployment program. That decision has now been appealed to the Wisconsin State Supreme Court which will revisit the lower court’s ruling.

Why does this matter for Southern Baptists?

Religious liberty is an important principle deeply rooted in the faith of Southern Baptists. As stated in the Baptist Faith & Message (2000), we believe that “God alone is the Lord of conscience.” Therefore, no governing earthly authority has the ability to dictate our religious convictions, personal faith, and acts of biblical worship. We believe that God has ordained the state and its governance, and the state has a duty to protect the religious liberty of every church, denomination, and religious group. (Romans 13:1-7) 

As Becket Law argued, “By separating Catholic Charities Bureau from the Diocese, the court ignored the Catholic Church’s determination regarding how to structure their own religious ministry. By concluding that Catholic Charities Bureau’s activities are not religious because Catholic Charities Bureau serves all those in need and doesn’t proselytize, the court penalized faiths that make caring for those in need—regardless of their religious background—a religious obligation. And, by engaging in a standardless inquiry to determine ‘how religious’ Catholic Charities Bureau and their subsidiary ministries are, the court of appeals entangled secular courts in deeply religious questions, violating the separation of church and state.”

As our brief argued, “By imposing the state’s view of what it means to be religious, based on organizational structure and the who and how of charitable service, the Commission and the appeals court are prescribing a single form of religious orthodoxy in the context of the state unemployment law.” In doing so, the government violates both the Free Exercise and Establishment Clauses along with the “church autonomy doctrine.”
It is not the role of government to prescribe how religious organizations should be structured or what the outworkings of their faith should look like. For Southern Baptists, it is not enough to merely have freedom to believe the tenets of our faith. The expression of that belief must also be protected. The ERLC is committed to advocating for this type of robust religious liberty for all people as we seek to live out our most deeply held beliefs in the public square.

ERLC joins in supporting parental rights and opposing radical gender ideology in schools
By / Jun 2

Who should decide whether a child should be allowed to identify as transgender? 

In numerous locations across the country, school administrators are saying that they should be the ones to decide—and that they can keep such information from parents. That’s why over the past year, the ERLC has signed onto three different amicus briefs relating to issues of parental rights, transgenderism, and radical gender ideology in schools. 

Two of the cases are currently in federal appeals courts while one is being heard by the Wisconsin Supreme Court. In all three cases—

—the school districts violated parental rights by allowing students to use names and pronouns at school different from those they were assigned at birth, without providing parental notification absent a student’s consent.

Amicus briefs

The ERLC is joining with other groups in contending that such policies violate the rights of parents in two principal ways.

  1. First, their fundamental right to direct the care and education of their children includes the right to decide where the child will attend school, but the school policy improperly denied them critical information to inform that decision.  
  2. Second, by withholding such sensitive information when school officials, in their judgment, suspect parents might be insufficiently supportive, the school effectively labels those parents as abusive of their children, without affording them any due process protections as provided by both statutory and constitutional law.   

The amicus brief is a way to introduce concerns ensuring that the possibly broad legal effects of a court decision will not depend solely on the parties directly involved in the case. An amicus brief is a learned treatise submitted by an amicus curiae (Latin for “friend of the court”), that is, someone who is not a party to a case who offers information that bears on the case but that has not been solicited by any of the parties to assist a court. 

While it’s impossible to know how any particular amicus brief influences a justice or their decisions, such briefs are frequently cited in court rulings, showing that they can have an effect on legal outcomes. 

Joining with state conventions

In two of the cases, the ERLC is joining the amicus with, among other groups, the Minnesota-Wisconsin Baptist Convention.

In the third case, we are joining with the Baptist Convention of Iowa.

When appropriate, the ERLC wants to come alongside our state conventions and bolster their work promoting sound public policy and pushing back on policies that are harmful to our communities. What happens in these three cases can have national implications, so we want to advocate on an issue—transgenderism—where the SBC has clearly spoken.

How the SBC has spoken

In 2014, messengers of the SBC passed a resolution on transgenderism. That resolution

  • noted that “Some public schools are encouraging parents and teachers to affirm the feelings of children whose self-perception of their own gender is at variance with their biological sex”;
  • expressed the SBC’s opposition to efforts to alter one’s bodily identity (e.g., cross-sex hormone therapy, gender reassignment surgery) to refashion it to conform with one’s perceived gender identity;
  • and stated the SBC’s opposition to “all efforts by any governing official or body to validate transgender identity as morally praiseworthy (Isaiah 5:20).” 

The position was taken out of love of neighbor and a concern for human dignity. As the resolution states, “we love our transgender neighbors, seek their good always, welcome them to our churches and, as they repent and believe in Christ, receive them into church membership (2 Corinthians 5:18-20; Galatians 5:14)” and “we regard our transgender neighbors as image-bearers of Almighty God and therefore condemn acts of abuse or bullying committed against them.”

While all children, including those struggling with gender dysmorphia, should be treated compassionately, parents should be providing that counsel and care—not school administrators. Unfortunately, radical gender ideology is often being furthered in schools without the consent or in conflict with the wishes of parents. We believe that parents should have the right to know what is being taught to their children and any decisions that their child is making in regards to gender and sexuality.

On ecclesiastical abstention and church autonomy
By / Dec 9

Several weeks ago, the ERLC was presented with an invitation to join a brief written by lawyers at the Thomas More Society, in support of one of our SBC entities. We decided to join the brief because of the importance of the underlying religious liberty issues at stake. 

But there’s no avoiding the fact that there were problems with language in the brief, specifically, language and statements that inaccurately describe Baptist polity and church autonomy and that are inconsistent with the positions the ERLC has repeatedly taken. We wish, instead of joining Thomas More Society’s brief, that we had written our own. We fully recognize this brief created concern and unnecessary confusion. Before we say anything else, let us say—we apologize.

Last week, we issued a statement to Baptist Press, focused on the principal point of the autonomy of local churches. But over the last week we’ve asked ourselves how else we can serve Southern Baptists to the best of our ability. One thing that may be helpful is simply more information, particularly on the amicus brief itself and the legal doctrine at the heart of it. We’re happy to provide that information.

The autonomy of the local church

There are few issues nearer the center of what it means to be Southern Baptist than the autonomy of the local church. As Russell Moore has noted, “Some churches and denominations have decisions made at the top—by bishops or other leaders—and these decisions filter down to the churches. Our decisions go the other way. We think every church—no matter where or what its size—is governed by Jesus through his Word and by his gifts and is free from dictation by any other church or by some religious bureaucracy.” In fact, Moore argues, the issue of autonomy is the very reason “the SBC was able to turn around from its direction toward theological liberalism in the 1970s and 1980s toward orthodox, evangelical conviction. The people had the final say.”

This Baptist distinctive is something we point out regularly. For example, in the most recent brief we filed against the governor of New York concerning religious liberty violations, the brief describes the Southern Baptist Convention as “comprised of more than 46,000 autonomous churches and nearly 16 million members.” In a recent legal comment letter to the Internal Revenue Service, we noted that Southern Baptists “are congregationally governed. The key feature of congregational governance is the autonomy of the local church or church-associated organization.”

But autonomy is not only a Baptist theological distinctive but also an important legal category, commonly referred to as the ecclesiastical abstention doctrine or “the doctrine of church autonomy.” This legal doctrine of church autonomy means that the inner workings of local churches are free, or autonomous, from interference from the state. We advanced this argument in another amicus brief we filed in Whole Woman’s Health v. Smith before the Fifth Circuit Court of Appeals. In that brief, we argued that the First Amendment rights held by churches “not only includes autonomy in their selection of religious leaders, but also ‘the freedom to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.’” We took a similar position in a brief filed with the Texas Supreme Court alongside the Southern Baptists of Texas Convention and the Christian Life Commission of the BGCT in Diocese of Lubbock v. Guerrero.

To the brief in question, the argument the brief was seeking to establish was not one about “hierarchy” or “umbrella organizations” (and, again, should not have used that language) but rather about the inherently religious character of Southern Baptist cooperative ministry. All Southern Baptist churches are autonomous, self-determining, and subject only to the Lordship of Christ. At the same time, we freely cooperate with each other for the sake of the gospel, and any associations, entities, or conventions are, as the Baptist Faith & Message puts it, “voluntary and advisory bodies designed to elicit, combine, and direct the energies of our people in the most effective manner.” But the fact that they are organized by and for our churches also means these bodies are inherently religious, and therefore protected by the First Amendment and fully autonomous from interference by the state. 

The ERLC, in service to the SBC, has always doggedly opposed state interference with the internal affairs of local churches and religious organizations. This is why we felt it was important to engage in this case in the first place. This does not dismiss concerns about the inaccurate language in the brief, but it does explain our underlying conviction, namely, the conviction that courts have no business interfering with the work of the church, whether deacon meetings or church discipline or even our cooperative gospel work together as Southern Baptists. 

What’s next?

When it comes to defending religious liberty in the judiciary and the Christian ideal of a “free church in a free state,” as the Baptist Faith & Message puts it, we will continue to be tireless in our witness. To that end, we have already filed briefs in a number of cases this year, advocating for religious freedom for houses of worship in the midst of the COVID–19 pandemic, for the religious freedom rights of faith-based adoption and child welfare providers, and in a range of other cases. That will continue.

Moving forward beyond this particular brief, we want to make absolutely sure that we live up to the high expectations we have for ourselves in service to Southern Baptist churches. That begins with a few internal procedural changes to ensure we don’t find ourselves here again. To be specific, the process of drafting and joining amicus briefs regularly involves short timelines, but moving forward we will require a standardized minimum timeline for review. Such a measure would have either corrected the issues with the original brief or prevented our involvement with it.

At the same time, some have wondered, understandably, whether the language in this individual brief could have harmful future consequences. Let us reassure Southern Baptists on this point: an amicus brief is not binding precedent and cannot override the clear, consistent statements Southern Baptists—including the ERLC—have made about the autonomy of the local church. And to be clear, the language about “hierarchy” in this brief is an aberration from the clear pattern of not just how Southern Baptists carry out cooperative ministry together but also from the arguments we have made consistently in a number of legal venues. Finally, know that in the days ahead we will take every opportunity available to us in the judiciary to defend autonomy rigorously and to ensure there is unmistakable clarity on Southern Baptist polity.

ERLC files amicus brief in support of religious freedom in U.S. Supreme Court case
By / Jan 11

WASHINGTON, D.C, January 11, 2016The Ethics & Religious Liberty Commission of the Southern Baptist Convention along with a number of other Southern Baptist entities filed an amicus brief today with the U.S. Supreme Court challenging the HHS mandate that forces religious non-profit employers to facilitate insurance coverage in violation of their religious beliefs surrounding the case, Zubik v. Burwell.

ERLC President Russell Moore, commented on the brief:

"This case is pivotal in maintaining soul freedom for all people. The Obama administration has repeatedly, and without ceasing, overstepped the bounds of the state in binding consciences, forcing people to do what they believe to be sin. If the government can do this, then the government can do anything."

The Southern Baptist Convention is Americas largest Protestant denomination with more than 15.8 million members in over 46,000 churches nationwide. The Ethics & Religious Liberty Commission is the SBCs ethics, religious liberty and public policy agency with offices in Nashville, Tenn., and Washington, D.C.

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To request an interview with Russell Moore

contact Elizabeth Bristow at 202-547-0209

or by email at [email protected]

Visit our website at www.erlc.com

Follow us on Twitter at @ERLC

Russell Moore responds to amicus brief in the 8th Circuit Court of Appeals case on same-sex marriage
By / Feb 23

WASHINGTON, D.C., Feb. 23, 2015The Ethics & Religious Liberty Commission of the Southern Baptist Convention submitted an amicus brief today to the 8th Circuit Court of Appeals arguing that marriage between a man and a woman is vital to the welfare of children, families and society.

The brief, submitted in the case of Lawson v. Missouri, demonstrates that limiting marriage to heterosexual unions is not the result of animus, but of clear biblical teaching and concerns for social welfare.

ERLC President Russell Moore commented on the brief:

In this brief, we are standing together for a truth as old as human civilization itself. The state did not create the family, and cannot recreate it. We appeal to the Court to recognize and to stay within the limits of its authority. Marriage matters because marriage is about more than registering relationships at a courthouse. Marriage is about the common good and flourishing of society. And, as a Christian, I believe with Jesus and the apostles that marriage points beyond creation to the gospel union of Christ and his church.

The ERLC joined the U.S. Conference of Catholic Bishops, National Association of Evangelicals, The Church of Jesus Christ of Latter-day Saints and other diverse religious organizations in filing the brief.

The Eighth Circuit Court was the first appellate court to rule against same-sex marriage in 2006 when it upheld Nebraskas ban on same-sex marriage.

The Southern Baptist Convention is Americas largest Protestant denomination with more than 15.8 million members in over 46,000 churches nationwide. The Ethics & Religious Liberty Commission is the SBCs ethics, religious liberty and public policy agency with offices in Nashville, Tenn., and Washington, D.C.

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To request an interview with Russell Moore

contact Elizabeth Bristow at 202-547-0209

or by e-mail at [email protected]

Visit our Web site at www.erlc.com

Follow us on Twitter at @ERLC