Explainer: Appeals court blocks controversial transgender mandate for healthcare professionals
By / Sep 2

A federal appeals court upheld a ruling preventing the Department of Health and Human Services (HHS) from requiring doctors and hospitals to perform abortions and gender-transition procedures. A three-judge panel unanimously upheld an injunction issued in a federal court in Texas that barred enforcement of the regulation. 

“Baptists have long recognized ‘God alone is Lord of the conscience,’” said Brent Leatherwood, acting president of the Ethics & Religious Liberty Commission. “This ruling adheres to that truth and protects doctors and health-care providers from violating their consciences by conducting gender-transition surgeries or abortions.

“The government must understand that asking medical personnel to go against their sincerely held religious beliefs is an abuse of state authority,” he said. “This result is not only a victory for the rights of doctors but also recognizes that the conscience is not some trivial item that can be paved over.”

What was ​​the HHS regulation?

In 2016, HHS issued a rule—known as the Transgender Mandate—that required doctors to perform gender-transition procedures on any child referred by a mental health professional, even if the doctor believes the treatment or hormone therapy could harm the child. 

The regulation was based on implementation of Section 1557 of the Patient Protection and Affordable Care Act (ACA), a nondiscrimination provision that redefined “sex” to include sexual orientation and gender identity. 

In response to the issuance of this regulation, two lawsuits were filed on behalf of multiple religious organizations, healthcare providers, and several states. The ERLC supported the move to challenge the mandate. 

What was the court case about?

In Franciscan Alliance v. Becerra, the court ruled that a Catholic healthcare network and the Christian Medical and Dental Society—a group of nearly 19,000 healthcare professionals—cannot be required to carry out gender transition procedures or abortions when it violates their deeply held beliefs and professional medical judgment. 

As Becket, the religious liberty law firm that defended the plantiffs, explains, “The court explained that while the government argued it should get more chances to show why it needed religious healthcare providers to participate in gender-transition procedures, other cases showed that permanent protection was appropriate

This is now the second court ruling blocking the administration from enforcing the policy. The first ruling was handed by a federal court in North Dakota.

How did the term “sex” become redefined in the law?

In 2016, a District Court held in Franciscan Alliance v. Burwell that HHS erroneously interpreted “sex” under Title IX — that the final rule was arbitrary and capricious when Title IX “unambiguously refers to the biological and anatomical differences between male and female students as determined at their birth.” The District Court further ruled that the Final Rule’s failure to include religious exemptions likely violated the Religious Freedom and Restoration Act (RFRA) and the Administrative Procedure Act (APA).

Four years later, the Trump administration finalized a rule reversing the Obama administration’s regulations on Section 1557 and narrowed the definition of “sex.” But mere days after this rule was completed, a 6-3 Supreme Court ruling authored by Justice Gorsuch in Bostock v. Clayton County expanded the definition of “sex” to include “sexual orientation” and “gender identity” for the purposes of employment discrimination under Title VII of the Civil Rights Act of 1964. 

In 2021, the Office for Civil Rights (OCR) at HHS announced that it will interpret and enforce the Affordable Care Act and Title IX’s nondiscrimination provision and expand the definition of “sex” to include “sexual orientation” and “gender identity.” The Office of Civil Rights used the Bostock decision as a justification for its redefinition of “sex.”

What happens now?

In most court cases, appeals are final. The court of appeals decision usually will be the final word in the case, which means physicians will not be required by to violate their conscience by the Transgender Mandate. The Supreme Court could be asked to take up the case, but there is no justification for them to overturn the permanent injunction. This decision is likely to stand as a major victory for conscience rights

What Ahmaud Arbery’s life and death teach us about our longing for justice
By / Jan 7

Today, the three men convicted of Ahmaud Arbery’s murder were sentenced to life in prison. Arbery’s family has waited almost two years for justice for their son after Greg McMichael, Travis McMichael, and Roddy Bryan mercilessly chased down Arbery, a 25-year-old Black man, and fatally shot him while he was running in a Georiga subdivision. This horrible act of violence rightly brought national outrage. 

Arbery’s death renewed calls for racial justice and revived painful memories of racial violence across the South through the painful era of Jim Crow and beyond. Thankfully, unlike so many cases of the lynching and death of black men and women throughout America’s history, a jury of mostly white citizens reviewed the evidence and convicted the three men first, and then a judge handed down just sentences for taking the life of a fellow man.

Rejoicing and lament 

It is appropriate for Christians to both rejoice and lament in this moment. We can rejoice in the justice of the verdicts and sentences. It is right for these three men to be punished for their heinous racial crime that was perpetrated against an image-bearer of the Almighty. Our American system of earthly justice is far from perfect, but in this case, it brought about a just outcome. 

Yet, we should also lament the racial hatred that led to the death of Arbery, who was only jogging through a neighborhood. The guilty verdicts and life sentences, while correct, won’t bring back a son to his grieving parents; it won’t erase the pain they will likely feel for the rest of their lives. 

We should also lament the slow wheels of local justice in this case. When the shooting happened, local prosecutors declined to prosecute before a video leaked and provoked the Georgia Bureau of Investigation (GBI) to investigate. The GBI then arrested the McMichaels before the case was transferred to the Cobb County District Attorney. 

Though America has come far in moving to uphold her promises of “all men created equal,” she has a ways to go. The weight of slavery and the legacy of Jim Crow haven’t exited quietly. They continue to haunt our nation. 

The Christian’s longing for justice 

Earthly justice hits at the heart of Christians for many reasons. We believe in the inherent dignity of every human being, knit with care and purpose by God in each womb (Psa. 139). We believe that every drop of innocent blood shed does not escape the watch of the Almighty (Gen. 4:10). Because of this, our hearts were provoked by a good kind of outrage, a demand for justice, when we watched the horrible video showing Arbery robbed of the breath of life.

This longing for justice is not unnatural and has been a feature of the human experience since the entrance of sin in the Garden, when human hearts were corrupted by the enemy and prone to turn in violence on fellow image-bearers (Gen. 3–4). And our imperfect and temporary models of earthly justice point us to a God of perfect justice, a God who turns no blind eyes to racism, hatred, and violence. 

Ultimately, our longing for evil to be reversed, for injustice to be made right, and our cries to “let justice roll on like a river” (Amos 5:24) will not be satisfied in any earthly court. Civil authorities are delegated the sword of justice by God (Rom. 13), but there is only one place where divine justice and wrath against evil was satisfied. It happened 2,000 years ago, on a lonely hill outside a backwater Roman province, as Roman soldiers carried out an unjust state execution of an innocent itinerant rabbi. There, Jesus, human and divine, bore the weight of every unjust act in the universe and the wrath of a holy God (2 Cor. 5:21). No sinful human can pay for their own sin, no matter how long the sentence, no matter how cruel the punishment. Only Jesus, the sin-bearer, can bear this weight. And only God can bring about perfect justice for those who won’t repent. 

And yet it was also in this moment when sin — lynchings, racism, violence, the shedding of innocent blood — and death were forever defeated. Jesus not only satisfies our longings for true justice but also defeats, through his death and resurrection, what creates injustice in the first place. The resurrected Jesus is pointing us toward a day without sin, tears, sorrow, and death (Rev. 21:4). Until, then, we work to make our societies more just, to make injustice less common, and to announce the verdict, “It is finished.” 

Explainer: Texas law banning abortion procedure upheld by court of appeals
By / Aug 24

Last week, the 5th U.S. Circuit Court in New Orleans, Louisiana, upheld a Texas law prohibiting certain uses of an abortion method known as dilation and evacuation (D&E), a procedure “commonly used to end second-trimester pregnancies.” The law, officially known as Senate Bill 8 as it was being considered by the Legislature, was initially blocked by a “three-judge panel of the 5th U.S. Circuit Court of Appeals” just last year but was granted a re-hearing by the full court at the request of the state of Texas. As a result, the law was officially upheld by the court.

The ERLC affirms the court’s decision to uphold Texas law and its prohibition of this inhumane procedure.

What exactly does SB 8 outlaw?

As recorded by Kevin McGill of the Associated Press, SB 8, first passed in 2017, is a law that “seeks to prohibit the use of forceps to remove a fetus from the womb without first using an injected drug or a suction procedure to ensure the fetus is dead.”

Stated differently, the intent of SB 8 is to outlaw what many in the pro-life community refer to as a “dismemberment abortion” from occurring in the second trimester of a mother’s pregnancy. In such dilation and evacuation procedures, children are forcefully removed from their mother’s womb with the use of forceps, resulting in the dismemberment and death of the child. The law, passed in Texas and upheld by the court of appeals on Wednesday, prevents these procedures from taking place.

It bears mentioning that this law is not a sweeping ban on abortion but a prohibition of a specific abortive procedure from occurring at a specific point during a pregnancy. And while more work is yet to be done to strengthen and expand pro-life legislation, this ruling is a common sense step to disallow a grisly method of abortion.

Can an abortion be performed safely?

Of the 14 appellate judges who heard arguments, nine ruled in favor of the Texas law. In the opinion, judges Jennifer Walker Elrod and Don Willett said “the record shows that doctors can safely perform D&E’s and comply with SB8 using methods that are already in widespread use (emphasis added),” an opinion that, despite the majority’s favorable ruling, makes a confounding assertion.

Furthermore, Judge James Dennis, in his dissent, said that SB 8 “makes it a felony to perform the most common and safe abortion procedure employed during the second trimester (emphasis added).” 

These statements beg the question, can an abortion be performed safely? According to these opinions and others, the safety of an abortive procedure depends solely on the resulting health of the mother. While we always want to be concerned about a mother’s health, it is important to recognize that when an abortion is performed precisely the way it is intended, it necessarily results in the death of a person — the preborn baby.

By definition, then, a successful abortion is never safe; it is always fatal.

Reaction outside the court

Outside the court, Nancy Northup, president and CEO of the Center for Reproductive Rights and a critic of the decision, stated that her group “is analyzing the decision and considering all its legal options.” Northup went on to say, “At a time when the health care needs of Texans are greater than ever, the state should be making abortion more accessible, not less.”

On the other hand, Kimberlyn Schwartz, Texas Right to Life director of Media and Communication, praised the decision, saying, “Texans celebrate today’s long-awaited victory” and expressed gratitude at the court’s ruling. 

Obviously, the issue of abortion is a divisive topic within American culture, and the reaction to this ruling by the 5th U.S. Circuit Court of Appeals is further evidence of that. The ERLC, in concert with Texas Right to Life and other pro-life organizations across the country, stands unwaveringly on the side of life.

What’s next?

Though this ruling is favorable to the cause of life, we can be sure that the ongoing work of protecting and preserving the lives of unborn children remains squarely in front of us. Texas’ SB 8 is a common sense measure that, to the extent that this law outlines, ensures the humane treatment of preborn children. The decision could be appealed and go all the way up to the Supreme Court. In the meantime, more robust protections are needed for these most vulnerable  children; protections that seek not only to disallow certain abortive procedures, but that further aid the cause of making abortion unthinkable. 

While we should continue the effort to strengthen and expand current legislation, the cause of life is an issue that will advance only as far as the collective conscience of our culture allows. The ERLC remains resolutely committed to working toward both the strengthening of legislation and the softening of hearts, for the cause of life and the glory of God. 

Explainer: Federal court rules in favor of religious freedom rights of Indiana Catholic high school
By / Aug 16

Last week, in the case of Starkey v. Roncalli High School and Archdiocese of Indianapolis, a federal court in Indiana ruled in favor of the Indianapolis Archdiocese, upholding its right to “provide students and families with an authentic Catholic education.” Along with other recent positive rulings, this latest decision is yet another win reaffirming the rights of individuals and institutions seeking to exercise fidelity to their religious beliefs without government infringing on their constitutional rights. This decision is good news for religious schools, the faculty, and families who send their children to those schools.

What was the case about?

In August 2018, Lynn Starkey, a former co-director of guidance at Roncalli High School, informed school leadership that “she was in, and intended to remain in, a same-sex marriage in violation of her contract and of Catholic teaching.” Upon learning of Starkey’s same-sex marriage, Roncalli administration “declined to renew her employment contract on the grounds that her marriage violated Catholic teachings.” Alleging discrimination, along with a list of other infractions, Starkey then sued Roncalli and the Roman Catholic Archdiocese of Indianapolis.

What led to the favorable ruling?

Ultimately, the court made its decision based on an important legal doctrine –– one favorable to the Archidiocese. Luke Goodrich, vice president and senior counsel at the Becket Fund for Religious Liberty, stated that it’s a matter of “common sense: religious groups have a right to hire people who agree with their religious beliefs and practices.” The long-standing consensus of the Supreme Court (and lower courts) has been and, with this ruling, clearly remains that “the Constitution forbids secular courts from interfering in important personnel decisions of churches and religious schools.”

As outlined in a case detail produced by the Becket Fund for Religious Liberty, “As Co-Director of Guidance at Roncalli High School, Lynn Starkey was responsible for communicating the Catholic faith to students and families, and advising students both practically and spiritually as they discerned their vocational path at and after Roncalli,” a fact that necessarily invoked the principle of the ministerial exception.

The ministerial exception was one of the most significant factors at play in this case for several reasons: Roncalli High School is a private religious school; Starkey had a consequential role in advising students according to Catholic orthodoxy; and “Every administrator, teacher, and guidance counselor at Roncalli High School signs an agreement to uphold the teaching of the Catholic Church in both their professional and private lives.”

What is the ministerial exception?

The ministerial exception is a constitutional protection that bars the government from applying employment discrimination laws to religious organizations. To allow the government to control the hiring practices of religious organizations would infringe on the Free Exercise rights of religious organizations to operate independent of government involvement. Though the ministerial exception is not explicitly stated in the Constitution, it is grounded in both religious clauses of the First Amendment.

In its June 2020 decision in Our Lady of Guadalupe School v. Morissey Beru (in which the ERLC filed an amicus brief cited in the court’s ruling), the Supreme Court held that there is no rigid formula to determine if the ministerial exception applies. Rather, the court looks at a variety of factors surrounding the individual’s employment including, but not limited to: official title, religious training, religious credentials, a source of religious instruction, and whether the duties played a role in teaching the religious organization’s message and conveying its mission.

In contrast to the recent ruling in DeWeese-Boyd v. Gordon College, in which it was decided that the ministerial exception did not apply, the U.S. District Court Southern District of Indiana concluded, “Starkey qualified as a minister, and that the ministerial exception bars all of Starkey’s claims.”

What’s next?

The ministerial exception has been central to a slate of recent court decisions, a precedent, at this point, that shows no signs of abating. In fact, the Becket Fund for Religious Liberty currently has pending a second, similar case defending Roncalli High School, the same Catholic high school involved in the lawsuit described above. 

The ERLC applauds the Indiana court’s decision to reaffirm the Archdiocese of Indianapolis’ constitutional rights and its prerogative to operate according to its deeply held religious beliefs, and the bearing that has on all other religious persons and institutions. Based on the number of recent favorable decisions, we are encouraged by the overwhelming number of rulings that continue to side with the cause of religious liberty.

As always, the ERLC remains committed to promoting and defending the religious liberty and conscience rights of all people and religious organizations.

Explainer: Federal court blocks controversial transgender mandate for healthcare professionals
By / Aug 11

This week, a federal court in Texas ruled that it is unlawful to force healthcare professionals to violate their consciences for gender transition procedures. This is good news for children, families, and Christians who want to continue serving in roles without conforming to “the latest fashionable ‘right side of history’ cause.”

What is the history of this issue?

In 2016, as a part of the implementation of Section 1557 of the Patient Protection and Affordable Care Act (ACA), the Obama Administration’s Department of Health & Human Services (HHS) promulgated a rule requiring medical providers to perform and insure abortions and gender-transition procedures or face penalties. Section 1557 of the ACA is the nondiscrimination provision of the ACA, and the scope was broadened by redefining “sex” to include sexual orientation and gender identity.

The regulations came to be called the transgender mandate, because it would require physicians to provide gender reassignment surgeries and administer hormones to facilitate gender reassignment, including to children, even if the doctor believed the procedure would be harmful.

In response to the issuance of these new regulations, two lawsuits were filed on behalf of multiple religious organizations, healthcare providers, and several states. The ERLC supported the move to challenge the mandate. Later that year, the District Court held in Franciscan Alliance v. Burwell that HHS erroneously interpreted “sex” under Title IX — that the final rule was arbitrary and capricious when Title IX “unambiguously refers to the biological and anatomical differences between male and female students as determined at their birth.” The District Court further ruled that the Final Rule’s failure to include religious exemptions likely violated the Religious Freedom and Restoration Act (RFRA) and the Administrative Procedure Act (APA).

In 2020, the Trump administration finalized a rule reversing the Obama administration’s regulations on Section 1557 and narrowed the definition of “sex.” Days after the Trump administration finalized their rule, in a 6-3 ruling authored by Justice Gorsuch and styled Bostock v. Clayton County, the Supreme Court expanded the definition of “sex” to include “sexual orientation” and “gender identity” for the purposes of employment discrimination under Title VII of the Civil Rights Act of 1964. 

In 2021, the Office for Civil Rights (OCR) at HHS announced that it will interpret and enforce the Affordable Care Act and Title IX’s nondiscrimination provision and expand the definition of “sex” to include “sexual orientation” and “gender identity.” The Office of Civil Rights used the Bostock decision as a justification for its redefinition of “sex.”

What was the court case about?

A second lawsuit challenging the mandate was also filed by Catholic hospital, a Christian healthcare professional association of over 20,000 healthcare professionals, and nine states, objecting to performing gender-transition procedures. Collectively, they asserted that performing these procedures was harmful. The medical professionals involved gladly served all patients, regardless of their sexual and gender identity, but contend that being forced to perform gender-transition procedures would constitute a violation of their conscience rights. 

This is now the second court ruling blocking the administration from enforcing the policy. The first ruling was handed by a federal court in North Dakota.

What’s next?

These rulings were good news for children, families, and Christians who want to continue serving in roles without conforming to “the latest fashionable ‘right side of history’ cause.”

However, the Biden administration appealed the court’s ruling, once again sending a group of Catholic nuns who run health clinics to care for the elderly and the poor back to court. 

On Dec. 15, the 8th Circuit Court of Appeals heard oral arguments in this case titled Sisters of Mercy v. Becerra. Religious freedom advocates once again made the case that the transgender mandate violates the consciences and religious liberty of these healthcare providers.

The ERLC will always promote and defend the human dignity, religious liberty, and conscience rights of all people and religious organizations — within each administration, on Capitol Hill, and throughout the public square.

Explainer: Federal court allows Ohio law prohibiting Down syndrome related abortions
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.

How Christians can help more people have access to justice
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?    

Courts overturn pandemic restrictions that discriminate against houses of worship
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.

Update: Capitol Hill Baptist wins in District Court
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.

Explainer: What you should know about the Supreme Court confirmation process
By / Oct 9

According to the U.S. Constitution, federal judges—including Justices of the U.S. Supreme Court—are appointed by the president with the advice and consent of the U.S. Senate. Although the process is not outlined in the Constitution, the determination of whether the judicial nominee is accepted by the Senate is carried out by the Senate Judiciary Committee. This committee assumes the principal responsibility for investigating the background and qualifications of each Supreme Court nominee.

Since the late 1960s, the Judiciary Committee’s consideration of a Supreme Court nominee almost always has consisted of three distinct stages—(1) a pre-hearing investigative stage, followed by (2) public hearings, and concluding with (3) a committee decision on what recommendation to make to the full Senate.

What happens during the pre-hearing investigative stage?

During the pre-hearing investigative stage, the nominee responds to a detailed Judiciary Committee questionnaire for the nominee. The FBI also investigates the nominee and provides the committee with confidential reports related to its investigation. During this time, the American Bar Association also evaluates the professional qualifications of the nominee, rating the nominee as “well qualified,” “qualified,” or “not qualified.” Prior to the committee hearings, the nominee may also meet with any or all individual Senators. After the investigation, the Judiciary Committee holds its public hearings.

What happens during the public hearings?

Since 1955, Court nominees testify in person before the Senate Judiciary Committee.

After opening remarks by the chair of the Judiciary Committee, other members follow with opening statements, and a panel of “presenters” introduces the nominee to the committee. The nominee is given the opportunity to make an opening statement and then begins taking questions.

Typically, the chair begins the questioning, followed by the ranking minority committee member and then the rest of the committee in descending order of seniority, alternating between majority and minority members, with a uniform time limit for each Senator during each round. When the first round of questioning has been completed, the committee begins a second round, which may be followed by more rounds, at the discretion of the committee chair

What types of questions can be asked during the hearing?

The Senate can generally ask whatever they want, though the questions are usually about the nominee’s background and qualifications, judicial philosophy, past decisions as a judge, or views on current controversies.

A nominee can’t be compelled to answer, and many refuse to comment on issues that might come up during their tenure on the Court.

How long does the hearing last?

For the most recent Supreme Court nominees, the hearings have lasted for four or five days. The longest hearing in the past 50 years was the failed nomination of Judge Robert Bork, which lasted 11 days.

What happens after the hearing?

After hearing the testimony of the nominee, the Judiciary Committee meets in open session to determine what recommendation to report to the full Senate. The committee may (1) report the nomination favorably, (2) report it negatively, or (3) make no recommendation at all on the nomination. A report with a negative recommendation or no recommendation permits a nomination to go forward, while alerting the Senate that a substantial number of committee members have reservations about the nomination.

The full Senate then votes on whether to accept or reject the nominee.

Can the nomination be blocked by the minority party in the Senate?

Technically, the minority party in the Senate is able to filibuster judicial nominees. But the Senate Majority Leader can change the rules to his parties benefit. That’s what happened in 2013, when then-Majority Leader Harry Reid lowered the 60-vote threshold to 51 for approval of Executive Branch appointees and federal judges. That set a new precedent which Senate Majority Leader Mitch McConnell has used to ensure his own party’s nominees only have to meet the 51-vote threshold.