By / Sep 28

Joseph Kennedy was a high school football coach in Washington state who was fired for kneeling by himself at midfield after a game and saying a quiet prayer by himself. Occasionally, students would join him and also pray by themselves at midfield after games. After a series of back-and-forth discussions with the School District, Coach Kennedy was fired.

The federal district court and Ninth Circuit Court of Appeals upheld his firing as a violation of the Establishment Clause.

Coach Kennedy is appealing his case to the Supreme Court of the United States, asking them to take up the basic question of whether public school coaches retain any First Amendment rights when at work and “in the presence of” students.

Last month, the ERLC joined the Billy Graham Evangelistic Association, Samaritan’s Purse, National Association of Evangelicals, Congressional Prayer Caucus Foundation, Concerned Women for America, National Legal Foundation, Pacific Justice Institute, and International Conference of Evangelical Chaplain Endorsers in filing an amicus brief (friend of the court brief) at the Supreme Court urging them to take up Coach Kennedy’s case and rule in his favor.

The ERLC joined this brief because religious freedom is an indispensable, bedrock value for Southern Baptists. The Constitution’s guarantee of freedom from governmental interference in matters of faith is a crucial protection upon which adherents of many faith traditions depend as they follow the dictates of their conscience in the practice of their faith.

Our legal argument in the brief is simple: “Teachers’ private citizens’ rights must be protected against encroachment by the stat . . . The Ninth Circuit’s decision sets a precedent that strikes at teachers’ fundamental freedoms of speech, religion, and assembly.”

Religious freedom for people of all faiths (and even no faiths at all) is about conscience protection and is vital to our nation’s understanding of liberty. It confuses no one that a public school teacher is both a private citizen and a government worker. So actions taken by a teacher, even on school grounds and during school hours, that are personal in nature (e.g., wearing an armband protesting the death penalty for religious reasons, having a Bible or Qur’an at one’s desk, wearing a necklace with a crucifix) are protected by the Free Exercise, Speech, and Assembly clauses of the First Amendment.

Numerous Supreme Court cases support Coach Kennedy’s case that the Establishment Clause does not require schools to be policed as religion-free zones. Muslim teachers can wear hijabs, teachers can attend student-led religious clubs, and Coach Kennedy can kneel alone and pray after a football game.

The Supreme Court should take up this case and uphold teachers’ fundamental First Amendment rights. The ERLC will continue following this case, update you on its status, and be prepared to file more legal briefs defending religious freedom for everyone.

By / Oct 14

Last Spring for my doctoral seminar paper, I chose to write about religious liberty in contemporary evangelical public theology. That sentence might be a mouth-full, so let me explain. I thought to myself last Spring, “What resources or methods have evangelical scholars recently offered that give a comprehensive explanation for religious liberty?”

This is an important question. For a topic to be something that is cared about, there needs to be a plethora of resources that all make the case that a subject is important. We see this all the time with other subjects. Take abortion or marriage, for example, and there are many volumes that give a Christian defense of why these issues matter to Christian ethics.

But religious liberty has not been given equal treatment. Sure, there are chapters smattered in various books on evangelicals and the public square, but there really isn’t a single volume that gives a biblical and theological justification for why religious liberty matters. Religious liberty is lacking justification in both biblical theology and social ethics (which in turn, is what I am going to write my dissertation on).

As I asked myself that original question, the answer I found did not give reason for optimism. I could find only two volumes dedicated entirely to religious liberty. One was Os Guinness’ Global Public Square, but even this book was not a theological argument; it was an argument based on pluralism and the common good. The other book was First Freedom: Baptist Perspectives on Religious Liberty that came out in 2007. It was an edited volume where Baptist theologians and historians offered an explanation and defense of religious liberty. It’s a good volume, and there’s good news: This book is now re-released in a second edition titled First Freedom: The Beginning and End of Religious Liberty. The book releases on October 15. Edited by Jason Duesing of Midwestern Seminary, Malcolm Yarnell of Southwestern Seminary, and Thomas White of Cedarville University, this newly re-released edition of First Freedom offers an updated, comprehensive case for why religious liberty matters. I cannot recommend it highly enough.

There are chapters on the history of religious liberty; chapters on the biblical and theological origins of religious liberty; and chapters on the contemporary challenges facing religious liberty. I am honored to have a chapter in the volume talking about the basics related to religious liberty and the public square. In that chapter particular, I look at the ecosystem of our society and how such things as declining religion and LGBT rights affect religious liberty. I also offer some proposals for how evangelicals should frame religious liberty; namely as a “disciplined public philosophy” (as Carl Henry stated) that recovers religion’s place in fostering what I call “humane democracy” premised on God-given natural rights.

Other contributors aside from the editors themselves include Russell Moore, Albert Mohler, Barrett Duke, Travis Wussow, Paige Patterson, and Evan Lenow.

Religious liberty is crucial to evangelical public theology. Why? Because religious liberty is a foundational doctrine of how the church relates to society and the state and vice versa. Furthermore, religious liberty is a hinge that helps us to discern what it means to enter public life as religious people. Religious liberty is an architectural doctrine to evangelical social ethics. For those reasons, I heartily commend First Freedom to you as it will offer a pathway into the unique Baptist distinctive of religious liberty.

By / Jul 28

Christians in America today face growing challenges to their first amendment rights to religious freedom. A troubling example is found in the recent refusal of the Supreme Court to hear the religious liberty claim of the Storman family from Olympia, WA. The Storman family, owners of Ralph’s Thriftway, a small, family-run grocery store and pharmacy have objected to dispensing contraceptives like Plan B that inhibit the uterine implantation of a fertilized egg.

Based on their belief that human life begins at conception, they deem the use of such contraceptives as tantamount to abortion and have declined to stock them in their pharmacy. Instead, they have made it their practice to refer customers to other drug stores (of which there are over 30 within a five-mile area) where they can readily obtain them. According to the regulations passed into law in 2007 by the Washington State Pharmacy Board, the Stormans’ principled stand is insufficient grounds for refusal. The regulations mandate that no pharmacist may “refuse to deliver a drug or device to a patient because its owner objects to delivery on religious, moral, or other personal grounds.” Their long legal battle appears to have ended with the 9th Circuit Court’s ruling that the State Pharmacy Board’s regulations should be upheld. The ultimate decision by the Supreme Court not to hear the case allows the 2007 regulations to stand and, in the words of Supreme Court Justice Alito, it is “an ominous sign” for the future of religious freedom in America.

In his critical dissent to the decision, Alito wrote, “There are strong reasons to doubt whether the regulations were adopted for–or that they actually serve–any legitimate purpose. And there is much evidence that the impetus for adoption of the regulations was hostility to pharmacists whose religious beliefs regarding abortion and contraception are out of step with the prevailing opinion in the State.” In essence, the Stormans have been faced with the decision: sell contraceptives that violate their religious convictions about the definition and sanctity of human life or get out of the pharmacy business.

This case is indicative of a growing trend of judicial decisions on local, state, and national levels that point to the uncertainty of religious freedom in America in the future. In light of this disturbing trend, I humbly offer first, a note of perspective, and second, a call to gracious but firm Christian political engagement in defense of our religious freedom.

For the note of perspective, I must share a piece of my biography. During much of my teenage years, I lived in post-Soviet Russia. While we were in country, a 1997 law (much like the one passed into law by Vladimir Putin last month) put into place regulations that no new church or religious organization could legally function unless it had been registered for at least 15 years. Effectively, this law rendered invalid any new churches or religious organizations that had been formed since before the Soviet era (1920s) since any freedom of worship had only been returned in Russia in 1990. The law was pushed through at the impetus of the Russian Orthodox church which sought to safeguard its privileged position as the new “state religion” of Russia. Since Soviet days, Russia has shifted from a political state with no religious freedom to a state where limited religious freedom is granted to specific and highly regulated groups.

In Russia, the laws of the land severely limit the freedom of its people to worship and exercise their religious convictions. Christians in Russia are closer in social location to those living in the first-century under the governmental authority of a political state (Rome) disinclined to protect their freedom to worship. Politically, they are left with limited recourse. Most honor the governing authorities placed, ultimately by God, above them and prayerfully trust his sovereign hand over the results of their efforts to live and act in ways pleasing to Christ (Rom. 13:1-17; 1 Pet. 2:13-17).

While we live according to the same biblical principles in our submission to government authority, Christian Americans live in a different social and political location. As Richard Mouw argues, “In modern democracies, the power of national leaders is derived from the populace, which is the primary locus of God-given authority. Built into the very process is the possibility of review, debate, reexamination, election, and defeat. Given such a framework, for Christians simply to acquiesce in a present policy is to fail to respect the governing authorities.” We as American Christians actually honor our nation’s leaders when we take up the active defense of religious freedom not only for ourselves, but ultimately for “the peace and prosperity of our city” (Jer. 29:7).

Cases like the Stormans’ indicate that our legislative and judiciary system is divided on the issue of religious freedom. Will religious freedom in America will be upheld for future generations? In a very tangible way, progressivism is calling for these laws to be redefined in service of a new “state religion.” Unlike Russia, the laws of our land currently favor religious freedom, but like Russia (and ultimately all nations), the enforcement and interpretation of those laws vary. The ultimate consensus has not yet been achieved.

In light of this reality, we must engage in the defense of religious liberty in the public square or be resigned to the consequences of our passivity. We must consider carefully the current danger to our religious freedom and utilize the political means available to us to voice our dissent. At present, religious freedom for all is upheld as a constitutional right. But if we do not act, we may soon find ourselves in a state where the doors of religious freedom are closed to anyone who does not acquiesce to the beliefs of the prevailing elite.

By / Apr 6

Recently, Georgia Gov. Nathan Deal vetoed the Georgia Religious Freedom Restoration Act. This widely supported bill provided some assurances to Georgians that their government would respect their faith and not discriminate against them because they hold biblical views of marriage. It was non-threatening, despite the media and big business firestorm that raged against it. A significant part of the bill simply applied the language of the federal Religious Freedom Restoration Act (RFRA) to Georgia’s state government.

One has to wonder if we could even pass the 1993 federal RFRA if it were brought up for a vote today. But what the Georgia experience, and similar experiences in states like Arkansas and Indiana, tells us is that the problem with passing these First Amendment-sensitive laws is not due to a lack of public support. The vast majority of citizens in these states support the conviction that religious belief should be protected from governmental discrimination.

Yet, until people insist on protecting religious belief, we will find it increasingly difficult to enact any more religious freedom laws except in the most favorable of environments. If the governor of a state like Georgia, acting out of pressure from political interest groups, big media and big business, will veto a bill that had garnered support among a significant majority of the people, then there is little chance for religious freedom bills becoming law in areas where they might most be needed, like Washington state, for example.

Enter the ongoing failure in Washington, D.C., for Congress to take up a religious freedom bill supported by more than 160 members of Congress.

What is the bill?

The bill, known as the First Amendment Defense Act (FADA), is also a very straightforward First Amendment-sensitive bill. It prevents the federal government from punishing a faith-based business or individual because they cannot in good conscience accommodate same-sex marriage in certain situations.

FADA protects individuals and organizations, like Christian colleges and human-needs ministries, from federal discrimination. It prevents the federal government from denying them things like tax-exempt status or government contracts because their faith convictions will not allow them to treat same-sex marriage like biblical marriage.

Here’s the heart of the bill:

(a) In General- Notwithstanding any other provision of law, the Federal Government shall not take any discriminatory action against a person, wholly or partially on the basis that such person believes or acts in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.

(b) Discriminatory Action Defined- As used in subsection (a), a discriminatory action means any action taken by the Federal Government to–

(1) alter in any way the Federal tax treatment of, or cause any tax, penalty, or payment to be assessed against, or deny, delay, or revoke an exemption from taxation under section 501(a) of the Internal Revenue Code of 1986 of, any person referred to in subsection (a);

(2) disallow a deduction for Federal tax purposes of any charitable contribution made to or by such person;

(3) withhold, reduce, exclude, terminate, or otherwise deny any Federal grant, contract, subcontract, cooperative agreement, loan, license, certification, accreditation, employment, or other similar position or status from or to such person;

(4) withhold, reduce, exclude, terminate, or otherwise deny any benefit under a Federal benefit program from or to such person; or

(5) otherwise discriminate against such person.

(c) Accreditation; Licensure; Certification- The Federal Government shall consider accredited, licensed, or certified for purposes of Federal law any person that would be accredited, licensed, or certified, respectively, for such purposes but for a determination against such person wholly or partially on the basis that the person believes or acts in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.

Clearly, this bill does not threaten anyone. Indeed, all it does is ensure that the federal government will not discriminate against those who seek to live according to the biblical teaching that marriage is only the union of one man and one woman. This is obviously First Amendment territory. Yet, despite repeated efforts, the House Oversight and Government Reform Committee is unwilling to even take up this bill.

Given that Gov. Deal and other governors could not withstand the threats and bullying they received over constitutionally valid religious freedom bills, we shouldn’t be totally surprised that members of Congress are nervous about taking up FADA. The opposition is organized and hostile.

What is at stake?

But much is at stake. During the oral arguments in the Obergefell same-sex marriage case before the Supreme Court, Justice Alito asked DOJ Solicitor General Donald Verrilli if a university or college could lose its nonprofit tax status because of its conviction that marriage is the union of a man and a woman. Verrilli responded: “It’s certainly going to be an issue.” He acknowledged this because he recognized that same-sex marriage is quickly becoming a civil rights issue in the minds of many people. Except for a very narrow exemption, people of faith and their institutions are not protected from federal action when a civil right is involved.

We’re not talking only about tax exemptions. We’re also looking at the likelihood that a federal government determined to enforce its view that same-sex marriage is a civil right could deny loans for students who want to attend a school that holds to the biblical view of marriage. Businesses with this view could be denied access to government contracts. Adoption and foster care organizations could be put out of business because they can’t in good conscience place children in same-sex settings. These are just a few examples of what is at stake.

What can you do?

FADA will prevent this. However, unless members of Congress know they will be supported by the vast majority of people in their districts, they will not take up this crucial bill. We should not let the tactics of fear and intimidation to prevent the passage of such an important bill. Already, people of faith are being punished by some state and local governments for their beliefs about marriage. If we do not act, and act soon, we will certainly see this happen at the federal level as well.

Contacting your congressman is as simple as finding his or her phone number here, and making a two minute phone call. All you would need to do is say you support the First Amendment Defense Act and you want your congressman to insist that the House Oversight and Government Reform Committee pass it without further delay. You may discover that he or she supports the bill. That would be great! But unless we get that bill passed, it will not help to protect people of faith or our institutions.

God defined marriage. It is the union of one man and one woman. No one should be subjected to discrimination because he or she holds this belief and seeks to live in accordance with it. Certainly, no one should be threatened by the federal government, which is supposed to be bound by the First Amendment’s guarantee of religious freedom. FADA will help ensure this. It needs our help to become law.

By / Feb 6

As one who has built his career upon plying and defending the First Amendment’s provisions of free speech, I watched with interest the now viral Golden Globes speech of Theo Kingma, president of the Hollywood Foreign Press Association. His words, given as a welcome to what may otherwise be considered an overpriced dinner accompanying one of the greatest acts of self-congratulation in media marketing, were inspiring.

Kingma’s words stand out in recent memory as unmatched by any Hollywood insider: “Together we will stand united against anyone who would repress free speech anywhere from North Korea to Paris.

It was this principle of free speech that helped fuel the Revolution in this country and, as enshrined in the First Amendment to our Constitution, is “a beacon that has reflected across the globe,” as Kingma so rightly describes. So synonymous is the concept of the American brand of liberty with the freedom of speech that one fails to distinguish between them.

As Kingma must appreciate, it is this freedom of speech that has actuated the very industry he addressed as they gathered in award celebration. Could Hollywood exist in Mao’s China? Stalin’s Russia? Hitler’s Germany? Would it find itself as unbridled in terms of speech and artistic expression as it is permitted here if it were relocated to today’s Syria? Yesterday’s Iran? Or tomorrow’s North Korea?

Kingma understands that the answer to such rhetorical questions is undoubtedly, “No.” That is precisely why his speech brought the luminaries of the silver and small screens to their feet. It is right and proper for us to stand against the suppression of the freedom of speech. Mr. Kingma is to be commended for setting his jaw squarely against the enemies of free speech.

It is in that spirit that I offer the following challenge: To any actor, producer, director, or member of the Hollywood Foreign Press Association, I challenge you to demonstrate your ongoing support of the freedom of speech by tweeting your support for marriage between one man and one woman.

If one does so and successfully avoids Hollywood’s infamous blacklist, you will complete my respect of your industry’s appreciation for free speech.

Let me give you a helping hand as those in the press association contemplate my challenge. Your tweet could express support for former New England Patriots running back and ex-Fox Sports play caller, Craig James. It might look something like, “Craig James should never be fired for supporting marriage between one man and one woman as a GOP candidate in a GOP primary in Texas.” Even though Craig lost that campaign and was subsequently fired by Fox Sports, perhaps it is the support of Hollywood that Craig needs to clear his good name. Surely your support of free speech compels your support of a man wrongly fired for expressing – through speech – his personal, religious beliefs.

Bob Eschliman could use the support of your august, free speech-loving press association. This award-winning journalist and editor-in-chief of the small town Newton Daily News spoke about his religious beliefs on his own blog and on his own time, yet found himself unceremoniously marched out the door of his newspaper – fired for speaking online about his beliefs. A, “Je suis Bob” tweet from a Hollywood Foreign Press Association reporter would be a profound morale boost to this middle-America, Navy veteran, husband, and father of two who has been standing in unemployment lines for almost a year just to keep food on the table for his family. A journalist, fired for something he wrote: such is the very antithesis of free speech.

Perhaps you would like to rally behind an African-American gentleman who was first in his family to complete college, let alone his two doctorates. This may make the best opportunity for any Hollywood insider, because it was free speech in support of a Hollywood writer that led to Dr. Eric Walsh being run off of the speaker’s dais at Pasadena Community College’s graduation ceremony. But, that free speech did not translate to Dr. Walsh. As a lay minister when he is not a professional in the field of public health, Dr. Walsh was fired by the State of Georgia because of his speech – speech in the form of religious sermons. Your tweet of support might look like this: “I support Dr. Eric Walsh. No one should be fired from their job because of what they say in their pulpit. #SermonsAreSpeech.”

In each of these cases, speech has been pitted against freedom. In each case, the speaker ought to be protected as fully and finally as any movie that salaciously depicts a head of state. Yet, what each person has received instead has not been freedom, but loss of employment, ridicule, and, generally, exile from those who consider themselves the bulwarks of polite society. Do only those with a Golden Globe receive the freedom of speech?

If the members of the Hollywood Foreign Press Association are unwilling to take up my challenge, I have reason to question their dedication to the principles of free speech. If Kingma is willing to grant freedom of speech to Charlie Hebdo, but not Kelvin Cochran, then perhaps his press association agrees more with the regulated free speech Frank Bruni described recently in the New York Times, willing for people of faith, “to believe what they do and say what they wish – in their pews, homes and hearts.”

Of course, putting religious speech on heart, house of worship, and home confinement is not free speech. It is tyranny: freedom for thee only if you agree with me. That seems to be the reigning – and false – notion of free speech today. That is why, I suspect, my challenge will not be accepted. A society committed to free speech should welcome the opportunity to disagree, but not punish, someone with whom they disagree. Presently, and to our great chagrin, ours is a society in which speech is not so free.

Were a member of the Hollywood elite to accept my challenge, chances are good that they would meet the same fate as Craig James, Bob Eschliman, or Eric Walsh. They would be ridiculed and belittled – side effects, certainly, of a healthy society dedicated to the freedom of speech. But, the response would go further, like Craig, Bob, or Eric, he who would accept my challenge would be punished by his employer and branded, “intolerant” in an industry that praises tolerance as the highest, greatest virtue. In other words, the free speech “from North Korea to Paris” that Kingma praised would somehow bypass Hollywood.

Standing ovations for freedom of speech are welcome, but limiting the beneficiaries of that basic of First Amendment guarantees only to those with whom we agree belittles the very fabric of the free speech upon which Kingma’s industry so rightly depends. In prime time, the Hollywood Foreign Press Association’s president has rightly hailed the benefits of free speech and the international response has been rightly supportive. After the champagne glasses have been stowed and the Golden Globes placed atop the recipient’s mantle is when words of inspiration are tested for their sincerity. Now is the time to test our resolve for free speech.

Will our collective commitment to free speech extend beyond the ballroom and permit the marketplace of ideas to be the economy that fuels our collective search for Truth? Or will we permit freedom of speech to be shackled to modernity’s intolerance of tolerance?

Only time will tell. Yet, as my boss, Kelly Shackelford and Dr. Albert Mohler wrote recently:

The First Amendment protects one’s religious belief — and also the speech that communicates such beliefs. Our world lacks diversity, not to mention courage and compassion, when freedom of speech is one-sided. Only when the freedom of speech is unfettered can we give voice to the causes that animate our souls. Because of free speech, we are able to understand our differences and, out of those differences, find unity — or, as the Founding Fathers put it: “E pluribus unum — out of many, one.” Unity is not uniformity.

Perhaps President John F. Kennedy’s advice is most apt, “The best road to progress is freedom’s road.” Kingma’s aspiration sends us down that road; Bruni’s illiberal and constricted version of free speech sets us back.

The golden moment of the Golden Globes may just be that Kingma helps us rediscover something that we never lost: a freedom that not only protects speech, but celebrates it.

That would truly be award-worthy.

By / Oct 20

A few months back, the Solicitor General of the United States argued before the Supreme Court that if you engage in business, you give up certain legal protections for your religious conscience.

Justice Alito, who penned the majority opinion rejecting the Solicitor General’s argument, framed the government’s argument as follows: “HHS would put these merchants to a difficult choice: either give up the right to seek judicial protection of their religious liberty or forgo the benefits, available to their competitors, of operating as corporations.”

Five justices rejected the government’s argument and, instead, declared there to be broad legal protections of religious liberty within federal law.  Such protections safeguard the guarantees of religious liberty as found in the First Amendment.  “Is there any reason to think,” wrote Justice Alito on behalf of the majority, “that the Congress that enacted such sweeping protection put small-business owners to the choice that HHS suggests?”

The Court affirmed the right of a businessman to retain his constitutional freedoms when entering the marketplace.  A mayor in Houston recently extended the Solicitor General’s bad argument a step further.  By serving subpoenas on five pastors, the City of Houston thinks it has found a new activity that is “inconsistent” with the legal protections arising under the law: preaching in a manner that displeases the Mayor.

Like the scenario in Hobby Lobby, pastors in the largest city in the reddest state in the Union have been put on notice: when you enter the pulpit, you shed your constitutional rights to freely exercise your religion, freely speak your mind, or freely dissent from the Mayor’s New Sexual Orthodoxy.  Such acts of naked political intimidation cannot pass muster under the “sweeping protections” for religious liberty under federal and state law or an unbroken line of First Amendment cases.

Rendering Only What Caesar is Due

During litigation, attorneys may seek information through subpoenas, depositions, requests for production, interrogatories, and other discovery methods – but the requests must be “reasonably calculated to lead to discoverable information.”  Clergy are most clearly protected under the “priest-penitent” and “pastor-parishioner” privileges.  These privileges foreclose production of any personal communications from the pastor to the parishioner, and vice-versa, that was shared in confidence.

More importantly, individual citizens – especially clergy – may not be targeted for burdensome and vexatious discovery as a means of silencing Free Speech or interfering with the Free Exercise of religion.

The Mayor and her attorneys targeted the pastors – non-parties to the underlying litigation – because, as pastors have done throughout the history of our nation (and, broadly, the history of the world), they engaged the controversial issues of the day, bringing the Christian worldview to bear upon it, teaching their parishioners how to think through such moral-political issues, and prophetically speaking against what they perceived as an immoral action of their government.

Little has been more sacrosanct – legally and morally – in this country than the right of pastors to instruct their flock.  But the Mayor and the City of Houston seem to have a different view on the First Amendment, Free Speech, and the Free Exercise of religion: pastors who lawfully talk about politics as fair game: “If the 5 pastors used their pulpit for politics, their sermons are fair game.”

Fair game for what?  Each pastor stated that he would welcome the Mayor into their church and offer to print copies of any sermon on any topic.  That is the nature of evangelical outreach.  But Mayor Parker does not come with a humble heart and mind seeking to understand the Christian faith.  Instead, she is using the awesome power of her office to intimidate pastors who dissent from her heavy-handed – and potentially unlawful – enforcement of the orthodoxy she prefers.

What Mayor Parker forgets is that pastors are never obliged to render unto Caesar that which Caesar has no right to require.

As Abraham Kuyper once observed, “The sovereignty of the State and the sovereignty of the Church exist side by side, and they mutually limit each other.” The conflict on display here is one in which the church has justly acted to limit the authority of the state on legislating matters of morality, but the state has acted unjustly to limit the right of the church to speak on such matters.

Unmasked, what the mayor of Houston has attempted here is to intimidate the men of the pulpit.  When government takes such steps to intimidate the use of the pulpit or, worse, to seize control of it, we are left with no other choice but to call such action tyranny.  This is not the request made by one who seeks to understand the faith that has “once, for all, been delivered to the saints;” it is a legal tactic designed to hoist the sermonizers of Houston on the pike for all the nation to see, “Thus always to bigots.”

Let us learn from history.  Tyrants throughout history routinely sought to seize control of the pulpit in order to consolidate their power.  Ask Alexander Solzhenitsyn, Martin Niemöller, and Dietrich Bonhoeffer of the last century how the Bolsheviks and Third Reich deceived, divided, and destroyed the religious liberty of their citizens through the intimidation of their churches.

Is Mayor Paker’s subpoena a newer, more refined version of the dictator’s henchman?  Only time will tell.  Meanwhile, let us never think that persecution comes to the church of America in shiny riding boots beneath black uniforms with lightning bolts on the collars.  Persecution comes with more stealth, sometimes masked by that which seems perfectly legal.

“Do What You Wish”

If the Mayor and the City of Houston persist in persecuting religious dissenters – even as they purport to “narrow the scope” of their unlawful subpoena, the Church must respond with winsome resolve.

Few in this world responded to persecution with such convivial tenacity as Polycarp.  This martyr of the first century is famous for his unbending dedication to his Savior.  Polycarp burned, unbound, at the stake for the name of Christ, but he did not walk there without a defense.  His contemporary church urged him to evade capture when the warrant for his arrest was issued, which he did for some time.  This elderly churchman eluded a search party of Roman soldiers for months before finally being turned-in by a friend threatened with torture.  When Polycarp stood before the proconsul, he refused to recant.

Even the proconsul understood the optics of executing an octogenarian and plied the man to recant to save the inevitable.  This church father, who had spent a lifetime evangelizing any who would humbly listen, refused to grant Caesar an illegitimate audience. “Listen carefully,” Polycarp said, “I am a Christian.  Now if you want to learn the doctrine of Christianity, name a day and give me a hearing.”

The proconsul challenged Polycarp to persuade the watching people of Rome, now bloodthirsty for his execution.  Polycarp replied, “You [sic] I might have considered worthy of a reply, for we have been taught to pay proper respect to rulers and authorities appointed by God, as long as it does us no harm; but for these, I do not think they are worthy, that I should have to defend myself before them.”

The proconsul threatened, “I have wild beasts; I will throw you to them, unless you change your mind.”  Polycarp replied, “Call for them!”

“I will have you consumed by fire, since you despise the wild beasts,” continued the proconsul.

“You threaten with a fire that burns only briefly and after just a little while is extinguished,” proclaimed the aged bishop of Smyrna, “For you are ignorant of the fire of the coming judgment and eternal punishment, which is reserved for the ungodly.  But why do you delay?  Come, do what you wish.”

Let these be the words on the lips of every pastor in Houston, Texas, who have been summoned by their government to submit their sermons for examination to those who seek only to do them harm.  Let us each, likewise, pay proper respect to the rulers and authorities that have been appointed over us by God, so long as it harms not our conscience before God.  When threatened with arrest, let us make every just and legal effort to avoid such an unjust sentence.  Yet, when the state refuses to limit itself, let us ignore the threats of fines and jail and reply steadfastly, “Come, do what you wish.”

Therefore, be encouraged by the admonition of Kuyper: “[H]owever powerfully the State may assert itself and oppress the free individual development, above that powerful State there is always glittering, before our soul’s eye, as infinitely more powerful, the majesty of the King of kings, Whose righteous bar ever maintains the right of appeal for all the oppressed, and unto Whom the prayer of the people ever ascends, to bless our nation and, in that nation, us and our house.”

By / Oct 16

Public outrage is spreading over the City of Houston’s attempt to force pastors to hand over their sermons and other communications in a case where they are not parties. Just after midnight on Wednesday, Houston Mayor Annise Parker tweeted in defense of her subpoenas, saying pastors’ sermons are “fair game” if they concern an issue where the pastors have opposed government policy. Then Wednesday afternoon her office went into damage control, declaring the subpoenas were a surprise to the city. But around 8 pm Wednesday night the mayor tweeted again in support of an ideological commentary piece that defended the subpoenas. So it seems that the mayor was for the subpoenas both before and after she was against them.

Legal commentary has been skeptical of the city’s sermon demand, but some are still a little too sanguine about it. One is Professor Eugene Volokh. He correctly points out that the First Amendment requires scrutiny on discovery requests of people engaged in free speech. But when he suggests that the pastors might “in principle” be subpoenaed, he cites several cases that are not squarely applicable.

In Houston the pastors are not suing, being sued, helping a criminal investigation, or violating any law. They are being subpoenaed solely because they engaged in free speech and petitioning of the government, and they are being targeted by the government who disagrees with them. This makes the First Amendment interests much stronger than in the situations Professor Volokh cites, where people were sued for harassment or employment discrimination, or were asked to testify at a grand jury’s investigation of a crime, or had brought their own lawsuit and thus were subject to discovery. The pastors here are simply community members who exercised their First Amendment rights against a governmental policy. In fact, in the existing lawsuit it is the government that is accused of wrongdoing (by denying citizens the right to vote on a “bathroom bill”). The First Amendment does not let the government violate citizens’ rights and then, when it gets sued, use court rules as a sword to attack the advocacy rights of its political opponents.

In several cases that Prof. Volokh did not discuss, federal appellate courts have imposed some rigorous requirements in the balancing test used to weigh First Amendment interests against discovery requests. These cases show that the subpoenas here are illegitimate and are not analogous to cases where a pastor is a defendant in a case.

First, while the ordinary discovery standard can merely require that the request be calculated to find any relevant evidence, a request aimed at non-party free speakers requires that the discovery be “highly” relevant, “crucial” to the litigant’s case, and that it go to “the heart of the matter.” Perry v. Schwarzenegger, 591 F.3d 1147, 1161 (9th Cir. 2010); Black Panther Party v. Smith, 661 F.2d 1243, 1268 (D.C. Cir. 1981); Zerilli v. Smith, 656 F.2d 705, 713 (D.C. Cir. 1981) (same). This lawsuit is about whether the city violated its legal duties by refusing to let the people vote on a bathroom bill. There no relevance, much less “high” relevance, between that issue and what pastors in Houston said about that law (or about anything else).

Second, even if the information sought could be shown to be “highly relevant,” the same cases say it must also be “otherwise unavailable,” the litigant must “exhaust […] every reasonable alternative source” before demanding it from First Amendment actors, and the litigant is “required to attempt to seek information from other likely and reasonably accessible sources.” See id. Perry, Black Panther Party, and Zerilli; see also

Internat’l Union, UAW v. National Right to Work Legal Defense & Education Foundation, Inc., 590 F.2d 1139, 1152 (D.C. Cir. 1979). The information the city needs to defend this case is entirely available from other sources. The actual plaintiffs in the case are the supporters of the petition the city denied, so the city can simply ask them for evidence about the petition process. There is no need to attack non-party pastors with demands for their sermons and communications.

Third, any request impacting First Amendment rights must be “carefully tailored to avoid unnecessary interference with protected activities.” Perry, 591 F.3d at 1161. Careful tailoring precludes the sort of dragnet language often found in discovery requests (demanding “all documents related to” something). Here the city’s demands are massively broad, and they cannot be legitimately narrowed because no specific document that the city wants will be sufficiently relevant to the case. If the city did actually request a specific document, it would be shown to be insufficiently relevant. So lawyers wanting to sustain overbroad subpoenas like this will fight tooth and nail not to name a specific document, but to keep the requests as generic as possible by asking for documents “related to” an issue. They’ll just claim that because the issue is relevant, all documents “related to” it must be too. That kind of request fails both the careful tailoring and highly relevant standards. It is a smokescreen pretending to be narrow, but hiding the fact that all the specific documents within its scope are not crucial enough to the case to trump the pastors’ First Amendment interests.

Rigorous First Amendment protection is needed against government discovery requests to non-parties. Otherwise a citizen’s mere exercise of First Amendment protected activity (like petitioning its government to vote on a controversial law) could subject the citizen to broad document and deposition subpoenas that would dissuade her from speaking in the first place. If court rules are interpreted to allow those burdens—especially if the citizens have publicly opposed the government that is subpoenaing them—it would likely suppress citizen participation in representative government. Citizens would fear that if they publicly advocate and lose the issue, they will be dragged into court by their political opponents, need to hire attorneys, be forced to hand over their private documents and be subjected to hostile depositions. That is far too high a price to impose both on citizens themselves and on the robust dialogue and public participation that are necessary in order to maintain a free society. It is an inquisition tactic used by a government that will not tolerate any dissent from or checks on its power.

By / Jul 1

Yesterday morning the front page of Hobby Lobby’s website featured a discount on a four-by-six wooden block emblazoned with the simple declaration: “I Pray for America.” Nothing on the page even indirectly mentioned the Supreme Court’s landmark decision yesterday in Burwell v Hobby Lobby, but with regard to the Green family’s vision for an America that respects religious liberty, it’s hard not to conclude that they have been praying for America and that their prayers have been answered.

I’ve followed the progress of this case with keen interest. Academic professionals who study First Amendment law are watching this case. Christians involved with closely held, religiously motivated family corporations have nervously awaited this ruling. Pastors who watch over the souls of sincere believers who try to live out the dictates of their faith in the workplace have wondered what new realities might dawn upon their flocks because of this ruling. I fit into all three of those categories, so Justice Alito today had my rapt attention.

The academic side of me is thinking about the state of religious liberty in the United States after this ruling. It may be more complicated and nuanced than you think. Four realities come to mind.

First, this is a welcome and important ruling, not only because of the relief it gives to Christians engaging in business, but also because of the disapproval it sternly communicates toward a presidential administration that is the most hostile toward religious liberty of any in our nation’s history. The decorum appropriate to the highest level of our federal judiciary precludes name-calling, but the Court’s judgment of the administration was pretty transparent when it said, “HHS’s view that RFRA can never require the Government to spend even a small amount [to pursue its interests in ways less restrictive upon religious free exercise] reflects a [low] judgment about the importance of religious liberty that was not shared by the Congress that enacted that law.” It is encouraging to see the Supreme Court’s willingness to castigate the cavalier manner in which this administration has handled questions of religious liberty.

Second, the Supreme Court has voiced its full-throated support for a holistic view of religious liberty rather than the amputated “freedom of worship” that many sectors of our nation are seeking to advance as a counterfeit of the constitutional doctrine. Religious persecution throughout history has not always consisted of imprisonments and beheadings. Both in first-century Galatia and in eighteenth-century England, governments have sometimes tried to starve believers through economic sanctions rather than to imprison them. The Court has rightly observed that “HHS would effectively exclude [devoutly pro-life] people from full participation in the economic life of the Nation” and has acknowledged that even in its economic form, religious persecution is still wrong. Religious liberty must protect a person’s right to be a Christian (or whatever else) not only on Sunday in the pew but on Monday in the office as well.

Third, religious liberty is still very fragile in our nation. If you’ll look at the Hobby Lobby decision carefully, you’ll notice that the Court ruled in favor of Hobby Lobby based not upon the First Amendment but upon the Religious Freedom Restoration Act of 1993 (RFRA) and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). The Supreme Court did not affirm today any constitutional right; it affirmed a congressionally adopted provision. What Congress giveth, Congress can take away. Since this ruling and every other Supreme Court ruling based upon the RFRA exist only upon the sometimes-capricious whim of our elected legislators, in its next term, Congress could vote to overturn RFRA and Christians would be back on the same hook. Thankfully, we have reason to believe that today’s Congress would not do so, but religious liberty will not be secure in this nation until the Supreme Court’s decision in Oregon v Smith is set aside and free-exercise rights are once again protected by the First Amendment.

Fourth, although religious liberty ought to be and sometimes is a subject matter that unites conservative and liberal Christians, the Hobby Lobby case has demonstrated that this consensus tends to be a one-way street. Conservatives tend to harbor greater opposition to drug use and tend to be less disposed toward interreligious ecumenism, but more conservative groups like the Ethics & Religious Liberty Commission stand alongside left-leaning groups like Americans United for Separation of Church and State and the Baptist Joint Committee for Religious Liberty to oppose rulings like Oregon v Smith and to defend the liberties of Muslims who face opposition when they wish to build mosques. When the shoe is on the other foot—when liberal political objectives like acceptance of same-sex marriage and universal access to free abortion come into conflict with the tenets of religious liberty—liberal groups tend not to cross the aisle in our direction. The Baptist Joint Committee declined to say anything about the Hobby Lobby case, and Americans United has predictably rubber-stamped the Obama administration’s objectives, with Barry Lynn personally articulating a new mission statement advocating Separation of Church and Life. The greater sincere commitment to religious liberty is demonstrated when one is willing to part company with one’s usual cohort to take an unpopular stand.

The pastoral side of me wonders how this ruling will affect people. I rejoice to think of the people who were in jeopardy who now are not. Some beautiful, creative, redemptive things have happened throughout history when Christians have tried their hands at pursuing their secular employment to the glory of God. The Obama Administration stood poised to make that much more difficult for Christians to accomplish in this country. I rejoice that they have not succeeded. I dare to hope, in spite of the fact that the Obama Administration may very well work around this ruling to serve their allegiance to Planned Parenthood in the end, that the lives of some of the youngest and most vulnerable among us might be saved because of this decision.

This decision presents an opportunity before Christian (for want of a better word) laypeople. The Supreme Court has affirmed our right to embody our faith in our workplaces, and Christ has given us a commandment to do so. That commandment goes beyond our being selective in the way that we purchase insurance. Are we making the most of our opportunity to demonstrate the character of a holy, loving, compassionate, and merciful God in our workplaces? In 1857 Jeremiah Lanphier caught a vision for what it meant to follow Christ in the workplace. A great revival ensued. My friend Geoffrey Kolander spent several weeks last year praying, writing, and laboring for a spiritual awakening among Christian businessmen in Amarillo, TX. Two consecutive SBC presidents have prioritized the need for spiritual awakening in our nation. What would happen if more Christian businessmen followed the lead of the Green family and decided to make their faith an integral part of the way that they pursued their careers?

What would happen if we pastors used this decision not only as an opportunity to talk about religious liberty but as a way to kindle in our congregations a vision for the workplace as a venue in which to live out one’s faith?

The United States Supreme Court understood its role: “Our responsibility is to enforce RFRA as written.” As believers living and working in this society, our responsibility goes far beyond theirs. Let’s not drop the subject with a favorable judicial ruling; let’s show the world what wonderful things can happen when Christian individuals, proprietorships, partnerships, and yes, even corporations, dare to conduct their business dealings to the glory and delight of their Lord.