By / Apr 16

A slim majority of judges on the Sixth Circuit Court of Appeals reinstated an Ohio law that punishes doctors who perform abortions because the unborn child has a diagnosis of Down syndrome

In 2018, a federal judge granted a preliminary injunction to Planned Parenthood and Preterm-Cleveland to prevent the law from taking effect. Ohio appealed the decision to the Sixth Circuit, and the case was initially argued in front of a three-judge panel that upheld the injunction in October 2020. But in a 9 to 7 vote on Tuesday, the appeals court overturned two lower court decisions and ruled the law could be enforced.

What does the Ohio law prohibit?

In 2017, the Ohio legislature passed a bill that prohibits a person from performing, inducing, or attempting to perform or induce an abortion on a pregnant woman who is seeking the abortion because an unborn child has or may have Down syndrome.

The legislation makes such an abortion a fourth degree felony, and the state medical board will revoke a physician’s license to practice medicine in this state if the doctor performs the abortion knowing it was because of a possible diagnosis of Down syndrome. 

The doctor must also obtain a written acknowledgment that the pregnant woman is not seeking the abortion, in whole or in part, because of a test result, prenatal diagnosis, or any other reason to believe that an unborn child has Down syndrome. Lawyers for the state defending the law in court said that if a woman does not tell her doctor a diagnosis of Down syndrome is part of her reasoning, the doctor would not be in violation of the law. A pregnant woman on whom an abortion is performed or induced is also not guilty of violating the law. 

The bill was signed into law by former Gov. John Kasich in February 2018.

What was the reasoning used in this ruling?

The federal judge that issued the injunction in 2018 did so on the basis that any prohibitions on abortion before fetal viability (i.e., before the unborn child can live outside the womb) are unconstitutional under Roe v. Wade. The state of Ohio appealed the injunction, arguing that the law passed the “undue burden test” because it imposes no substantial obstacle on a woman’s right to an abortion and furthers three legitimate interests of the state. 

The three interests claimed by the state are (1) the law protects the Down syndrome community—both born and unborn—from discriminatory abortions, namely Down-syndrome-selective abortions; (2) the law defends families from coercive healthcare

practices that encourage Down-syndrome-selective abortions; and (3) the law protects the integrity and ethics of the medical profession by preventing doctors from becoming witting participants in Down-syndrome-selective abortions. 

Each of these three interests, argued the state, are connected to the doctor’s knowing participation in a woman’s decision to abort her pregnancy because she does not want a child with Down syndrome. 

The appeals court rejected the claims of Planned Parenthood by stating, “The right to an abortion before viability is not absolute” [Emphasis in original]. The court added, “Simply put, there is no absolute or per se right to an abortion based on the stage of the pregnancy. The district court erred by so holding, and the plaintiffs cannot succeed on that proposition standing alone or show any likelihood that they could do so.” 

What happens next?

Planned Parenthood has not yet said whether they plan to appeal the decision to the U.S. Supreme Court. If they do, the Supreme Court may decide to hear the case since the justices frequently agree to “hear cases in order to resolve circuit splits by creating a unified interpretation of the law which is then binding on all lower courts.” In 2016 a federal judge blocked a similar law in Indiana that bans abortions sought because of an unborn child’s genetic abnormalities.

Even if this case is heard by the Supreme Court, though, other abortion-related cases making their way through the courts are likely to provide a more direct challenge the constitutionality of Roe v. Wade.

By / Feb 16

I settled into a chair not far from the podium in the courtroom with my client’s case file in hand. The judge was preparing to enter any minute, and upon his entering, we would hear, “All rise!” I scanned the growing crowd, and it was immediately clear that the number of cases on the morning docket far exceeded the seating capacity in the courtroom. The crowd spilled outside the room, and people were beginning to line up in the hallway. Looking at their faces, I wondered how many were coming to court without an attorney because they did not have the means to hire one. How many had no idea what was going to happen next? Were they anxious? Scared?  

The questions were rhetorical because I had litigated cases in this type of court and volunteered at a local Christian legal aid ministry. The answers, I knew, were clear. A vast majority was unrepresented due to inability to pay for a lawyer. As the judge entered and took his seat, the court clerk began to call the names of the cases. So many people were standing outside that names had to be repeated into the hall. The Lord reminded me in those moments that the need is great. Each of these litigants mattered to God; therefore, they should matter to me.  

Our country is blessed to be governed by the rule of law, and thankfully, we have certain Constitutional rights we enjoy as American citizens. One of those is the right to an attorney to represent you if you have been charged with a crime and cannot afford to hire counsel. These lawyers are called public defenders, and their work is critical to our system of democratic government. However, the scene I described above involved a docket call of civil cases. These men and women, husbands and wives, fathers and mothers, sons and daughters had been sued by another party; they had not been charged with a crime. Their cases involved landlord and tenant disputes, breaches of contracts, evictions, and unpaid debts, to name a few. Except in very limited types of cases, no right to an attorney exists in a civil case. The scene described above repeats itself daily in courtrooms across the country, which means many of our neighbors have great needs that are going unmet. 

A Justice Gap Report, prepared by the Legal Services Corporation in 2017, found that in the past year, 86% of the civil legal problems reported by low-income Americans received inadequate or no legal help. In addition, 71% of low-income households experienced at least one civil legal problem in the last year, including problems with health care, housing conditions, disability access, veterans’ benefits, and domestic violence.

We have been given an opportunity to demonstrate the gospel of Christ by helping others receive justice before the law.

The Legal Services Corporation funds legal aid societies and offices across the country, and these providers work hard, and do well, to meet the civil legal needs of those unable to afford an attorney; however, the need far exceeds the assistance available. Acknowledging and responding to this need should certainly not rest solely on the government. Christ-followers have a responsibility to respond in Jesus’ name. We have been given an opportunity to demonstrate the gospel of Christ by helping others receive justice before the law. 

Jesus met needs. He fed the hungry and gave sight to the blind. He opened the ears of the deaf and healed the sick. He freed the afflicted and comforted the hurting. He raised the dead. In Matthew 25:31–40, Jesus explained that his followers would be known by the love of their actions. He so identifies with the vulnerable that he said, And the King will answer them, ‘Truly, I say to you, as you did it to one of the least of these my brothers, you did it to me’” (v. 40). 

How can you and your church get involved? 

First, recognize the need and pray for wisdom as to how the Lord would have you respond in your specific community. Is there a need for immigration law help? Are housing problems a concern? Are predatory lenders keeping those in your community in poverty? 

Second, you can discuss the need for gospel justice with your pastor and church leadership. Scripture is filled with God’s heart for the poor.  

Third, you can explore becoming a justice center where volunteer attorneys meet needs in Jesus’ name. Resources are available. There is a movement happening across the country where gospel justice centers are working to help in Jesus’ name. The needs are great. Will you help?    

By / Dec 18

In issuing pandemic restrictions, governors in several states have violated the Free Exercise clause of the First Amendment by treating religious organizations less favorably than secular organizations. As the ERLC has repeatedly advocated in our engagements with governor’s offices and city halls around the country throughout this pandemic, churches must be treated the same as similar businesses, spaces, and activities. Fortunately, several recent court decisions have upheld religious liberty and overturned these non-neutral applications. The national turning point in this judicial shift was the religious liberty case decided by the Supreme Court the Wednesday before the Thanksgiving holiday, Roman Catholic Diocese of Brooklyn v. Cuomo. As more cases have worked their way through the federal courts, it appears this New York case has set a new standard for how such disputes should be resolved. 

The Roman Catholic Diocese case was based on restrictions imposed in October by New York Gov. Mario Cuomo. The governor issued an Executive Order that imposed severe restrictions on attendance at religious services in areas classified as “red” or “orange” zones. In red zones, no more than 10 persons could attend each religious service, and in orange zones, attendance was capped at 25. While a house of worship in a red zone could have no more than 10 persons, businesses categorized as “essential” (which included such services as acupuncture clinics) could admit as many people as they wanted. In orange zones, churches were limited to 25 persons, while nonessential businesses could decide for themselves how many persons to admit into their facilities.

The Roman Catholic Diocese of Brooklyn filed an injunction against the order, claiming the restrictions violated the Free Exercise Clause of the First Amendment. The Diocese said the regulations treated houses of worship much more harshly than comparable secular facilities. They also noted that they had complied with all public health guidance, implemented additional precautionary measures, and had operated at 25% or 33% capacity for months without a single outbreak in their congregations. 

In a 5-4 ruling in Roman Catholic Diocese of Brooklyn v. Cuomo, the Supreme Court sided with the Diocese and prohibited the governor from enforcing the restrictions on religious facilities. In their majority opinion the court said that, “There can be no question that the challenged restrictions, if enforced, will cause irreparable harm,” adding that “even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”

On Dec. 15, a three-judge panel of the Ninth Circuit Court of Appeals cited the New York decision in their unanimous ruling in favor of Calvary Chapel, a church in Nevada challenging their governor’s non-neutral pandemic restrictions. The ERLC has been involved in the Nevada church case throughout the year, as Jeff Pickering detailed in a recent piece, The good religious liberty news for churches in Nevada from the 9th Circuit.

In that case, Nevada Gov. Steve Sisolak had implemented pandemic reopening orders which allowed many businesses— including casinos, indoor theme parks, gyms, and restaurants—to reopen at half capacity. But for some other locations—including movie theaters, museums, and churches—the order capped attendance at 50 people, regardless of the size of the facility or what other measures are taken to prevent the spread of COVID-19.

The governor’s directive was later revised in a way that limited casinos and other businesses to 25% of fire-code capacity while houses of worship were restricted to 25% of fire-code capacity or 50 persons, whichever was less. For example, a casino that could hold 2,000 would be allowed to have 500 people while a church that could hold 2,000 would be limited to 50 people. 

Calvary Chapel Dayton Valley challenged the order in court, claiming the governor’s directive was a violation of the Free Exercise Clause of the First Amendment to the United States Constitution. The district court denied the church’s request for a preliminary injunction barring enforcement of the Directive against houses of worship, but that decision was reversed by a unanimous panel on the U.S. 9th Circuit Court of Appeals. 

The Ninth Circuit said in part, “The Supreme Court’s recent decision in Roman Catholic Diocese of Brooklyn v. Cuomo, arguably represented a seismic shift in Free Exercise law, and compels the result in this case.” Based on the injunctive relief, Nevada houses of worship will be allowed the same 25% limit as other facilities, without the 50-person cap.

Also on Tuesday, the Supreme Court overturned two lower-court rulings that had permitted states to enforce similar non-neutral restrictions against houses of worship. In a Colorado case, a federal district court had denied a request by High Plains Harvest Church to bar the state from enforcing capacity limits. A similar case in New Jersey that limited attendance at houses of worship to the smaller of 25% of capacity or 150 people, was also thrown out. In yet another case, decided earlier this month, the justices ordered a federal district court to reconsider the case of Harvest Rock Church, a Christian church with multiple campuses in California, that had challenged that state’s restrictions on indoor worship services.

“Tuesday’s orders are further evidence of the broader impact of the New York ruling,” says Amy Howe, a reporter that cover the Supreme Court, “which the justices have now invoked three times in three weeks to tell lower courts around the country that they should be more solicitous of religious groups seeking to worship without restrictions during the pandemic.”

As the ERLC has stated since the onset of the pandemic in the United States, the First Amendment provides broad and strong protections for religious exercise, and governments should ordinarily avoid any interference with a church’s worship practices. For this reason, we repeatedly counseled that civic leaders should regularly assess whether restrictions and exemptions are applied consistently and in a way that respects First Amendment protections for houses of worship. For the same reasons, we have also encouraged state and local officials to issue guidance rather than mandates and to view churches and religious organizations as allies in the fight to combat the virus. 

The separation of church and state is a vital aspect of American life. Guidelines equip pastors and faith leaders with the tools they need to make the best decisions for their own congregations and parishioners. In issuing guidelines instead of mandates during a long-lasting public health challenge like the COVID-19 pandemic, government officials invite the cooperation of faith leaders without encroaching upon their authority or autonomy. But in any event, as the Supreme Court has recently indicated, it is critical that the government not discriminate against houses of worship by treating them differently than similarly situated secular entities.

By / Oct 10

Late Friday night, Oct. 9, Judge Trevor N. McFadden issued a memorandum opinion in Capitol Hill Baptist Church v. Bowser, et al granting the church’s motion for injunctive relief. This opinion from the U.S. District Court for the District of Columbia is a victory for both religious liberty and public health because it clarifies the government’s responsibility to honor these fundamental rights during the pandemic.

At the end of September, the Capitol Hill Baptist Church (CHBC) in Washington, D.C., filed a lawsuit in the U.S. District Court for the District of Columbia seeking relief from D.C. Mayor Muriel Bowser’s current order regarding places of worship. The congregation is working to find a way to legally and safely gather outdoors for services in Washington during the ongoing pandemic. For more on the case, see this explainer.

It should be noted that the church has taken the public health precautions seriously. For months, meeting outside in Virginia, the church has followed all relevant public health guidance of wearing masks and keeping six feet distance between households during the service. CHBC, like the vast majority of churches throughout the nation, recognize the perils of this pandemic and honor the God-ordained responsibility of mayors and governors and federal officials to protect people from a dangerous virus.

Highlights from the court’s opinion

At this point in the church’s litigation, the court has heard oral arguments from both sides, reviewed the statement of interest submitted by the United States Department of Justice, and the various amicus briefs submitted by interested parties. The Friday night ruling granted the church a preliminary injunction which forbids the Mayor from prohibiting CHBC from conducting outdoor worship services in the District of Columbia with the precautions of masks and social-distancing. The preliminary injunction is in force until the case goes to a full trial, which could take longer than the pandemic will last, thus making the conflict moot. At this point, the District has 30 days to appeal the decision.

It is for the Church, not the District or this Court, to define for itself the meaning of “not forsaking the assembling of ourselves together.” Hebrews 10:25.” (quote from court ruling)

The following are highlights from Judge McFadden’s opinion, beginning with his explanation of the merits behind this religious liberty victory:

“The Court determines that the Church is likely to succeed in proving that the District’s actions violate RFRA. The District’s current restrictions substantially burden the Church’s exercise of religion. More, the District has failed to offer evidence at this stage showing that it has a compelling interest in preventing the Church from meeting outdoors with appropriate precautions, or that this prohibition is the least-restrictive means to achieve its interest. The Court will therefore grant the Church’s motion for injunctive relief.”

To understand the church’s argument under the Religious Freedom Restoration Act (RFRA), this section from the court’s opinion is helpful.

RFRA provides that the government may not “substantially burden” a person’s exercise of religion, “even if the burden results from a rule of general applicability.” “The only exception recognized by the statute requires the government to satisfy the compelling interest test,” that is, “to demonstrate that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” (citations omitted)

For its case under RFRA, the church needed to prove that the District’s regulations constitute a “substantial burden” on its exercise of religion. CHBC argued that its conviction to meet as an entire congregation in one gathering was burdened by the Mayor’s limit of 100 people. For more detail on that argument, see our explainer on the case when it was filed.

While the District did not dispute the sincerity of CHBC’s religious convictions for gathering in person, they argued that the church could meet by other methods, “hold multiple services, host a drive-in service, or broadcast the service online or over the radio,” as others in the District have done this year. The court responded to the District’s argument.

“But the District misses the point. It ignores the Church’s sincerely held (and undisputed) belief about the theological importance of gathering in person as a full congregation. . . . The District may think that its proposed alternatives are sensible substitutes. And for many churches they may be. But “it is not for [the District] to say that [the Church’s] religious beliefs” about the need to meet together as one corporal body “are mistaken or insubstantial. . . . It is for the Church, not the District or this Court, to define for itself the meaning of “not forsaking the assembling of ourselves together.” Hebrews 10:25.”

Once the church proved a “substantial burden” on its religious exercise, the onus then moved to the District to prove its order achieves their public health purpose through the “least restrictive means” possible. Judge McFadden noted that RFRA requires more from the District than its generalized public health interests to maintain such a restriction against CHBC’s request. On whether or not the District’s actions meet that higher standard outlined in RFRA, Judge McFadden writes:

The District has failed to meet its burden at this stage, as it presented little to no evidence that it has a compelling interest in applying its restrictions to ban the type of services that the church wishes to hold. And some of the scant evidence that does appear in the record cuts against the District’s arguments.

The evidence cutting against the District’s arguments are the government’s actions in support of the mass protests during the summer. Judge McFadden discussed how these First Amendment protected gatherings have been treated differently.

No matter how the protests were organized and planned, the District’s (and in particular, Mayor Bowser’s) support for at least some mass gatherings undermines its contention that it has a compelling interest in capping the number of attendees at the Church’s outdoor services. The Mayor’s apparent encouragement of these protests also implies that the District favors some gatherings (protests) over others (religious services).

Now months into this public health crisis, the District has had the opportunity to determine with greater particularity the risks presented by COVID-19 and the restrictions necessary; sweeping justifications perhaps more suitable to the early stages of a public health crisis will not suffice. On the record here, the District has not shown that it has a compelling interest in applying its 100-person limit to the Church’s proposed outdoor services.

Judge McFadden also discussed the significant work CHBC’s leaders did before filing suit to amicably resolve this conflict with Mayor Bowser and the District. The church sought resolution with the District multiple times over the course of months, as the Court opinion notes.

The Court likewise rejects the District’s argument that the Church cannot show irreparable harm because of its delay in seeking injunctive relief. The District contends that the Church waited “more than six months after the first Mayor’s Order restricting mass gatherings” to sue. But as the District admits, the Church was not twiddling its thumbs during that period—it “discussed with the District alternatives to full- congregation meetings” and “twice sought administrative relief in the form of an exemption from the Mayor’s Orders.” This is the sort of behavior that courts ordinarily encourage— indeed, sometimes require, . . . The Church will not now be punished for seeking an amicable resolution before rushing to the courthouse.

Judge McFadden concludes his opinion on this particular case in a way that also offers an overview of our country’s current situation.

The Church has consistently represented that it will take appropriate precautions such as holding services outdoors, providing for social distancing, and requiring masks. As explained, the District has not put forward sufficient evidence showing that prohibiting a gathering with these precautions is necessary to protect the public.

The COVID-19 pandemic has undoubtedly presented unique challenges to governments, which are tasked with balancing the public safety and religious freedom. The Court acknowledges the difficult decisions facing the Mayor here. But Congress set rules for this sort of balancing when it enacted RFRA.

The Church has shown that it is likely to succeed in proving that the District’s actions impose a substantial burden on its exercise of religion. For its part, the District has not shown that it is likely to prove a compelling interest in prohibiting the Church from holding outdoor worship services with appropriate precautions, or that its restrictions are the least restrictive means available to achieve its public health objectives.

This federal opinion echoes the argument ERLC President Russell Moore has made often during the COVID-19 crisis. Responding to a Supreme Court decision on California’s pandemic order, Moore said, “This pandemic is a perilous time. We need to emerge from it with both our public safety and our First Amendment intact. We can do that, but only if elected officials and the courts take seriously the matters both of public health and of constitutional freedoms.”

Thankfully, this preliminary injunction allows Capitol Hill Baptist Church and the District of Columbia to take both seriously.

By / Sep 23

This week, the Capitol Hill Baptist Church (CHBC) in Washington, D.C., filed a lawsuit in the U.S. District Court for the District of Columbia seeking relief from D.C. Mayor Muriel Bowser’s current order regarding places of worship. The congregation is working to find a way to legally and safely gather outdoors for services in Washington during the ongoing pandemic. Here is a statement from CHBC, made available on their website, regarding their efforts to begin gathering again in D.C.

Russell Moore, president of the ERLC, commented on the news of CHBC’s filing, “Capitol Hill Baptist Church has served as a model for all of us in engaging this matter with the governing authorities. They sought out a peaceable resolution and have consistently met and exceeded public health guidelines. The District of Columbia, sadly, has chosen to act inconsistently and arbitrarily, treating houses of worship by standards other than those necessary to maintain public health, thereby coming into conflict with First Amendment protections. Let’s pray that the District will quickly reconsider their actions, or that the courts will do so for them, and that the church and the government in our nation’s capital can both serve their neighbors freely in their respective spheres.”

Why is the church pursuing litigation?

Currently, Washington is in Phase Two of its COVID-19 guidance plan in which “places of worship can operate services and activities with up to 100 people or up to 50% of their capacity, whichever is fewer, with strong safeguards and physical distancing.” These limits apply to both indoor and outdoor services. The church is currently meeting outdoors each Sunday evening on the property of a sister church in Virginia because Mayor Bowser’s guidance prohibits a congregation of CHBC’s size from gathering outdoors in Washington.

What has the church done to try to resolve the situation before litigation?

CHBC last met indoors for a Sunday service in early March. In the days that followed, the church elders were in touch with the Washington government and, by that next weekend, made the decision to cancel all in-person Sunday services beginning March 15. The coronavirus had arrived in the United States, and the pandemic precautions were, rightly, accelerating.

Then, in June, as more was known about the virus and the safety of wearing masks, social distancing, and being outdoors, the church filed for a waiver from the city to gather for services outdoors. After not receiving an official response from the mayor’s office, despite many conversations with other city officials, the church resubmitted for a waiver earlier this month in September.

The resubmittal was done after the church established a record of meeting safely outdoors in Virginia with the precautions of wearing masks and social distancing. Unfortunately, on Sept. 15, though the city thanked CHBC for its efforts to mitigate the risk of spread of COVID-19 in their proposed gathering plans, the waiver request was denied.

What are the legal arguments?

The church’s legal complaint is that Washington’s guidance restricting religious gatherings is “violating its rights under the First and Fifth Amendments to the United States Constitution and the Religious Freedom Restoration Act.”

A critical note from the church’s filing is that “for CHBC, a weekly in-person worship gathering of the entire congregation is a religious conviction for which there is no substitute.” The filing then gives extensive explanation of the significance of the Sunday gathering for the life of the church, both throughout 2,000 years of church history and for CHBC specifically. 

The church argues that the mayor’s order applies more stringent rules to religious gatherings than it does to other similar social gatherings like restaurants or other outdoor gatherings, including protests. Large groups of people with a communicative purpose are permitted to gather outside without a size limit but churches of CHBC’s size are not. This is central to the church’s complaint—the district is treating similar gatherings differently. In Washington’s Phase Two guidance, the church’s complaint notes that, “houses of worship, which have a constitutional right to gather, are the only entity expressly encouraged to continue meetings virtually.”

CHBC makes clear that “the church takes no issue” with Mayor Bowser’s support of and participation in the protests and gatherings such as in June when part of 16th Street NW was turned into “Black Lives Matter plaza” or in August when people commemorated the March on Washington anniversary on the steps of the Lincoln Memorial. The church supports such exercise of First Amendment rights but takes exception to the government’s decision to favor only certain gatherings because, “the First Amendment protects both mass protests and religious worship.”

What is the church asking the court to do?

The church is asking the court to give CHBC permission to meet outdoors, with social distancing, masks, and other appropriate precautions. CHBC is asking the court to restrain the government from “prohibiting [CHBC] from physically gathering as a congregation in the District of Columbia if conducted with appropriate social distancing practices.”

How can Christians pray for CHBC and Mayor Bowser?

Christians can pray for this congregation in the nation’s capital who, after six months of public health prohibitions, is seeking to gather safely for services in the city where the church covenanted in 1878. The members of CHBC are making this claim as free citizens in a free state with constitutional protections for religious exercise and with a specific intention not to bypass all the means available to find resolution. Christians can pray for a quick and just resolution.

Christians can also pray for Mayor Bowser and her team of legal and health officials serving this great city. We all recognize the severity of this moment and are deeply thankful for the public authorities responsible for protecting people from COVID-19.

As we pray, we should consider that this week the pandemic reached a new mark as more than 200,000 of our fellow Americans have died from this virus. Such a statistic is difficult to grieve because it’s challenging to even comprehend. And yet, many people, myself included, have friends and family members who have or are now battling for their lives after contracting this virus. As the people of God we know that in such battles, we need our church communities. We need to pray together, provide meals for one another, support the nurses and doctors and pharmaceutical professionals providing healthcare, and yes, we need to gather together as the church.

Within this strange year, opportunities abound for Christians to love their cities and for churches to be a sign of the confidence the people of God have in Christ. In acting safely and speaking wisely, churches can meet regularly to share the gospel with a world burdened by a once-in-a-generation pandemic. It’s not too much for churches to ask that their government would treat them equally under the law.

By / Jul 21

July 21 marks the anniversary of the verdict in one of the most important court cases in American religious history: The State of Tennessee v. John Thomas Scopes, or as it is commonly known, “The Scopes Monkey Trial.” This trial—which brought attention to the small town of Dayton, Tennessee—was an open and shut case of guilt. So what attracted so much attention? The trial was a visible clash of the fight raging within Christian denominations at the time between modernist and fundamentalists centered around the teaching of evolution. 

On one side was the fundamentalist, former secretary of state, and three-time presidential candidate William Jennings Bryan, who argued that teaching evolution was contrary to Scriptures. On the other side was self-proclaimed agnostic Clarence Darrow and the American Civil Liberties Union, who saw this case as a chance to roll back the influence of religion in education. The court case, especially when Bryan took the stand in defense of the fundamentalists, was an encapsulation of the ongoing struggle within American Christianity over how literally to interpret Genesis and just how to integrate Christian doctrine with new scientific information. The modernists saw no problem between the two or were willing to change Christian doctrine to fit the new information. The fundamentalists saw this as an attack on true Christianity. 

It was in the courtroom of a small town in Tennessee that these sides squared off for their most visible confrontation, and neither side walked away truly victorious. 

Background

The conflict between fundamentalists and modernists had raged since the late 19th century. At the core of the debate was how to integrate the supernatural claims of the Bible with new criticism coming out of scientific inquiry. New scholarship raised doubts about the authorship of biblical texts, the timeline of their writing, and the details provided. Many of these revisions were attempts to maintain Christianity’s relevance and also find agreement between science and the Bible. Thus, rather than completely abandon the Bible, they choose to reinterpret it, often by disregarding the supernatural elements such as miracles or a virgin birth or a physical resurrection. 

Another point of controversy was in the creation account of Genesis 1-2. Higher criticism raised questions about Mosaic authorship, arguing that there were in fact different accounts of creation that had been woven together by different authors and a final editor. Further, when compared with modern scientific findings as made famous by Charles Darwin and others, it was impossible to square the age of the earth with a literal seven-day creation account. Though there were some Christians at the time—such as Benjamin Warfield and Charles Hodge of Princeton Seminary—who saw no problem in accepting a theistic evolution account, many fundamentalists saw this as an attack on the special place of humanity in the cosmos. These critics often asked how humanity was unique in God’s design if men and women were descended from apes. 

At the state level, this reached a crescendo when the Butler Act was passed in 1925 in Tennessee outlawing the teaching of evolution in schools. The ACLU offered to defend anyone who broke the law in an attempt to get it overturned. There has been considerable research which has shown that locals in Dayton, hoping that the trial would attract attention and business to the town, encouraged a local teacher known to teach evolution to challenge the law. He was subsequently fired and tried for breaking the law.

Important figures

John Thomas Scopes: Scopes was the defendant in the court case and a high school biology teacher and football coach. As a young, unmarried man who was not a local in the area, he had little to lose in being the ACLU’s test case. Also, there was never a question of his guilt. Scopes would go on to lose the trial and eventually receive a fine of $100 for the misdemeanor of teaching evolution. The fine was later overturned on appeal. 

William Jennings Bryan: Bryan was a staunch fundamentalist Presbyterian and progressive candidate (a not uncommon combination at the time). As a staunch Prohibitionist and anti-evolution crusader, Bryan often found himself seeking to save the conscience of the nation. He was a three-time unsuccessful candidate for president who served as secretary of state under Woodrow Wilson before returning to his social and legal advocacy. As a lawyer for the prosecution in the trial, he is best known for taking the stand and being questioned by Darrow as to the scientific accuracy of the Bible. 

Clarence Darrow: Darrow was the lawyer for the defense and vocal critic of religion. As the child of an atheist and a self-proclaimed agnostic, Darrow saw this is as a chance to attack the fundamentalist movement and the way he felt it was overstepping the role of religion in the public square. Darrow was famous before the trial for his role as defense attorney in the Leopold-Loeb murder trial. By the end of the trial, his questioning of Bryan on the witness stand had helped to humiliate the fundamentalist movement before the wider culture as he pointed out supposed contradictions in the biblical text.

H.L. Mencken: Mencken, journalist for the Baltimore Sun, is perhaps the person best known for describing the trial to the outside world. His columns portrayed the Bryan and the fundamentalists, not to mention Southerners in general, as backwoods yokels. His writing and depiction of Southern fundamentalists was what helped the modernists win the larger culture war, even as they lost the specific court case.

Events of the trial

At the heart of the trial was not a question of guilt. Scopes did not hide that he had taught evolution. He was guilty under the Butler Act. However, the ACLU argued that the law itself was unconstitutional because it violated Scopes’ free-speech. Bryan, arguing for the prosecution, asserted that the people of Tennessee who paid for the school and Scopes’ salary had a right to dictate what was taught, especially when it was something like evolution, which he claimed undermined the Christian faith. However, both sides, especially Darrow and Bryan, came to see the court case as unconcerned with free speech and a death match between science and religion. 

Thus, the most memorable moment of the trial came when Bryan took the stand in defense of the Bible as an expert witness. After asking a series of questions meant to illustrate the use of figurative language in the Bible (i.e., Jesus describing his followers as the salt of the earth in Matthew 5), Darrow attempted to get Bryan to agree that the earth was only 6,000 years old (a theory popularized by Anglican archbishop James Ussher). As historian Baryr Hankins recounts, Darrow interrogated Bryan about world religions, modern science, and even biblical criticism, showing that he was not an expert in any of these fields. Further, Bryan was not even a literal creationist: Bryan believed that the six days in Genesis weren’t, by necessity, 24-hour days, but rather time periods.  

Bryan was shown to be woefully ill-informed and was summarily humiliated. At the same time, Darrow’s attacks, though in agreement in the conclusion by the broader culture, were not all well-received, even by liberal theologians who saw them as attacks against any faith, not just fundamentalism. By the end of the day, both men found themselves ill-composed, shouting at one another and threatening violence against one another. The judge adjourned for the day, and when the case resumed the following day, both sides agreed that the jury should be brought in and deliver their verdict, which they did in a matter of minutes with a verdict of guilty.

Lasting influence

Scopes lost the trial, but fundamentalists lost the broader culture war. Because there was no doubt that Scopes had taught evolution, this was never about his guilt. The jury quickly determined that Scopes was guilty of breaking the law and was subsequently fined $100. This fine was later overturned on appeal. However, for the fundamentalist movement, this trial served to humiliate them on the national stage, largely due to the writing of journalist H.L Mencken. After being cast as uneducated rubes, many chose to retreat and create their own institutions and subculture rather than interact with broader society. 

Although historians such as Daniel Williams and Darren Dochuk have complicated this narrative by showing that though they did not enjoy the larger cultural influence they possessed previously, they did not entirely disappear. Rather, they laid a foundation for what would emerge in the middle of the 20th century as the evangelical movement, encapsulated in figures such as Carl F.H. Henry, Billy Graham, and eventually the Religious Right of the 70s and 80s.

However, the trial in Dayton, Tennessee (which is reenacted every July), set the stage for the larger culture wars between fundamentalists/evangelicals and their theologically liberal counterparts over issues such as abortion, the feminist movement, and eventually the LGBTQ movement that would shape the 20th century.

Further reading

Summer for the Gods: The Scopes Trial and America’s Continuing Debate Over Science and Religion by Edward J. Larson: Larson’s Pulitzer winning book is one of the most thorough and readable accounts of the trial and its enduring impact on the role that science and religion play in the public square, as well as evangelicalism’s relationship to science and education. 

Jesus and Gin: Evangelicalism, the Roaring Twenties and Today’s Culture Wars by Barry Hankins: Hankins’ book looks at the entire decade of the roaring 20s, and he devotes an entire chapter to the court case which represented the high point of the fundamentalist-modernist controversy.

Fundamentalism and American Culture by George Marsden: Marsden is the preeminent historian of fundamentalism, and his classic work places the movement in the broader sweep of American religious history. 

Clarence Darrow Papers & Court Transcript: The Court Transcript of Bryan’s testimony and Darrow’s line of questions beginning on day six of the trial can be found in Darrow’s papers contained in the University of Minnesota School of Law.

By / Jul 3

Earlier this week, the Supreme Court issued rulings in two significant cases involving abortion and religious liberty. Here is what you should know about those cases.

The Case: June Medical Services v. Russo

The Background: In this case the justices were asked to consider a state law designed to protect women from the dangers practices of abortion clinics, Louisiana Act 620. This law was introduced by a Democratic lawmaker and passed through the Louisiana state legislature in 2014 with wide bipartisan support. The law required doctors performing abortions to have active admitting privileges at a hospital located no further than thirty miles from the location at which the abortion is performed or induced. This would ensure that women seeking an abortion could be quickly transferred in the event of medical complications. Every other surgical outpatient medical provider is required to have hospital admitting privileges—this law simply holds abortion clinics to the same standards of medical care that every other medical provider in Louisiana is required to abide.

The Ruling: In a 5-4 decision, the court applied and upheld the prior precedents in Planned Parenthood v. Casey, which established the “undue burden” precedent, and Whole Woman’s Health v. Hellerstedt, which struck down a Texas law on medical standards similar to Louisiana’s under consideration today. Taken together, these cases hold that a state cannot even enact reasonable public health regulations on the abortion industry if a court finds that those regulations place an “undue burden” on the ability of women to obtain abortions.

The Significance: The Court’s opinion means that states still face significant limitations on regulating the abortion industry. Their lobby now has one more court decision to reinforce the argument that because new regulations may reduce the availability of abortion clinics it therefore imposes an undue burden on the so-called right to the procedure. This case will affect the pro-life movement’s state legislative and litigation strategy as well.

The ERLC Quote: “This decision is disappointing and wrong-headed,” said ERLC president Russell Moore. “The Louisiana law was directed toward the simple goal of protecting women from danger by placing the most minimal restrictions possible on an abortion industry that insists on laissez-faire for itself and its profits. Nonetheless, we will continue to seek an America where vulnerable persons, including unborn children and their mothers, are seen as precious, not disposable.”

For more on this case, see also:

Explainer: The Supreme Court refuses to protect women from the dangerous practices of the abortion industry

Top Quotes from the June Medical Services v. Russo decision

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The Case: Espinoza v. Montana Department of Revenue Decision 

The Background: This case involved a generally available scholarship program in Montana designed to provide general support to students attending all types of private schools. However, the Montana Department of Revenue refused to allow the scholarship money to be used at religious schools. This case answers the question whether or not barring students from using the scholarship money at religious schools violates the Religion Clauses or the Equal Protection Clause.

The Ruling: In a 5-4 decision, the Supreme Court held that Montana could not cut families off from a scholarship program available to all because they wanted to send their children to religious schools.

The Significance:  This case comes as a follow-up to the 2017 religious liberty victory in Trinity Lutheran Church of Columbia v. Comer, where the Court ruled that the state of Missouri violated the Free Exercise Clause when it excluded a church preschool from a general program to purchase recycled tires and resurface its playground simply because it was a religious institution. The Court took a similar approach today as they did in Trinity Lutheran, ruling, in Chief Justice Roberts words, that, “The Free Exercise Clause protects against even ‘indirect coercion,’ and a State ‘punishe[s] the free exercise of religion’ by disqualifying the religious from government aid as Montana did here.”

The ERLC Quote: “The Supreme Court made the right decision today,” said ERLC president Russell Moore. “These scholarships were not a funding of religion, nor an entanglement of the state with the church. The issue here is whether a state-established scholarship program for private schools could discriminate against parents who chose to send their children to private schools that happen to be religious. This ruling is consistent with long-held American principles, reaffirmed in recent years in cases such as Trinity Lutheran. Blaine Amendments have not advanced the cause of keeping distinction between the church and the state, but instead have resulted in often arbitrary and incoherent policies that are needlessly discriminatory. As a Baptist committed to a free church in a free state, and to the separation of church and state, I believe this ruling maintains those right freedoms and boundaries. The Supreme Court should be commended for this decision.” 

For more on this case, see also:

Explainer: Supreme Court strikes down discrimination against families in religious schools

Top Quotes from the Espinoza v. Montana Department of Revenue Decision

By / Jun 27

Associate Justice Anthony Kennedy announced today that he will retire from the U.S. Supreme Court on July 31. Here are five facts you should know about the high court’s primary “swing vote” on social issues:

1. Anthony Kennedy, age 81, served as a federal judge on the United States Court of Appeals for the Ninth Circuit from 1975 to 1988. Justice Kennedy was nominated to fill a vacancy on the U.S. Supreme Court in 1987. President Ronald Reagan initially nominated Robert Bork, who was rejected by the Senate, and Douglas Ginsburg, who withdrew from consideration after admitting to using marijuana while a law school professor. Kennedy has served as an associate justice since February 18, 1988. His retirement will mark 30 years on the court.

2. When he nominated Kennedy, Reagan called Kennedy  a “true conservative.” For the first four years he was on the Court, Kennedy was indeed considered a reliably conservative justice. In his first term, he voted with two of the court's most conservative members (Chief Justice William H. Rehnquist and Justice Antonin Scalia) more than 90 percent of the time. In 1992, though, Kennedy began siding more often with the liberal side. In 1992, Kennedy joined Justices Sandra Day O'Connor and Justice David Souter in writing the court's plurality opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey. Casey reaffirmed Roe v Wade and imposed a new standard to determine the validity of laws restricting abortions. The new standard asks whether a state abortion regulation has the purpose or effect of imposing an "undue burden," which is defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability."

3. In 2013, Kennedy provided the key swing vote in United States v. Windsor, the case that invalidated the federal Defense of Marriage Act, which defined marriage as a union between a man and a woman for purposes of over a thousand federal laws and programs. Kennedy wrote the majority opinion, in which he said, “The State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import.” He also added that “DOMA undermines both the public and private significance of states-sanctioned same-sex marriages.”

4. Kennedy’s opinion in Windsor was followed up two years later by his support for Obergefell v. Hodges. In that ruling—in which Kennedy again cast the deciding vote—the state of Ohio’s ban on same-sex marriage was ruled unconstitutional. The ruling federalized the marriage issue and made same-sex marriage legal in all 50 states. Once again writing the majority decision, Kennedy’s majority opinion said that the “limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.”

5. Although Kennedy frequently sides with the liberal side of the Court on most social  issues—especially abortion and LGBT rights—he has tended to take a libertarian position on First Amendment issues. Kennedy voted to protect flag burning in the case of Texas v. Johnson and to strike down a congressional law prohibiting "virtual" child pornography in Ashcroft v. ACLU. More recently, Kennedy supported the free speech rights of a Christian baker in Masterpiece Cakeshop v. Colorado Civil Rights Commission, wrote a strong concurring opinion in NIFLA v. Becerra defending the free speech of pro-life pregnancy resource centers and in Janus v. AFSCME supported the right of public sector employees not to subsidize the speech of other private speakers.

By / Oct 31

search of “adult obscenity cases” on the FBI’s website brings up three cases since Barack Obama became President. One involves jail time for a man who made films featuring bestiality and scatological sex acts, and one notes a $75,000 fine and two years of probation for a pornography distributor who sent obscene DVDs in the mail.

Another one says that a Pennsylvania man was indicted for distribution of pornographic materials in the mail. It is dated 2009, and the search results show no updated information about the case since then.

At a hearing in 2011, Attorney General Eric Holder acknowledged that of 150 obscenity cases in which the Justice Department had been engaged since President Obama took office, all but seven involved child pornography. While prosecution of child pornography is indisputably essential, it is insufficient: An 18 year-old girl or, for that matter, a 48 year-old woman having sex with an animal merits the same prosecution.

To America’s shame, the growth of obscene material online has been like a rapidly metastasizing cancer. According to data compiled the Porn Harms coalition (of which Family Research Council is a member), as of 2012, there were 4.2 million online pornography sites, 372 million pornography pages, and 2.5 billion daily pornographic emails. “Porn revenue is larger than all combined revenues of all professional football, baseball and basketball franchises,” by one estimate. Bear in mind that these data are now more than two years old, and the pace of pornography’s growth has accelerated since then.

The harms of pornography are extensive and well-documented (see, for example, “Porn: The New Narcotic” and “The Effects of Pornography on Individuals, Marriage, Family and Community”). What is not well-documented is legal prosecution of adult pornography. The reason? There has been so little.

In early 2011, Attorney General Holder ended the Justice Department’s Obscenity Prosecution Task Force (OPTF) initiated by President Bush in 2005. The cited reason was greater efficiency in operations and better coordination among federal attorneys. Said Assistant Attorney General for Legislative Affairs Ronald Weich in 2011, “The Department has focused its limited investigative and prosecutorial resources on the most egregious cases, particularly those that facilitate child exploitation and cases involving the sexual abuse of children, including obscene depictions of child rape.”

Again: Prosecution of child pornography and sexual exploitation is imperative. But do prosecution of violations of federal obscenity laws matter not at all?

Apparently not to the current Administration. A search I made of Justice’s Child Exploitation and Obscenity Section (into which the OPTF was subsumed) returned 248 news releases from January 2011 to the present; in them there is only one case, that of a man who used the federal mail system to distribute pornography, not involving child pornography or the exploitation of minors through prostitution or human trafficking.

Additionally, consider Mr. Obama’s appointment of David Ogden, AG Holder’s Deputy Attorney General (the number two at Justice) in the first two years of the Obama Administration. Ogden previously was an attorney representing Playboy and Penthouse and even opposed the 2000 Children Internet Protection Act. As I wrote when Ogden was nominated, “(Ogden) is one of the porn industry’s favorite hired guns. XBiz, a leading ‘adult’ newswire, has called Ogden a ‘strong pick,’ and porn attorney Colin Hardacre of Los Angeles said Ogden’s nomination is ‘a good sign for the adult industry’.” This is the man to whom Mr. Obama gave responsibility for “prosecuting the nation’s obscenity and child pornography laws.”

In other words, under President Obama and Attorney General Holder, the adult pornography industry has been given a virtual free-reign of the Internet, the film industry, and print publications.

One reason is that the “limited resources” of which Mr. Weich wrote have been as constrained as he suggested because the Obama Administration has put none into fighting obscenity. It is a basic axiom of logic that the absence of a resource necessary for completion of a task makes such completion impossible. Maybe Mr. Weich and his colleagues need a course in geometry.

As FRC’s allies at the Porn Harms Coalition argue, “Rather than aggressively enforcing federal obscenity laws against large-scale distributors of obscene pornography, for several years the Department of Justice has targeted primarily small operations that trafficked in the most extreme hardcore pornography and prosecuted very few of them. Thus, illegal, obscene pornography is flooding our nation and the harm is great.”

All pornography is evil, but hardcore pornography is especially so. It also is illegal under federal law. Christians should petition President Obama to start enforcing the laws dealing with the production and distribution of obscene material and to appoint a successor to AG Holder who will take his or her duty to do so seriously.

For more resources about the dangers of pornography and how you can protect your family from it, visit http://www.frc.org/pornography and the “One Million Men Porn Free” movement website.