By / Oct 28

The U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) recently resolved two religious discrimination complaints involving patient access to clergy. These resolutions ensure that hospital patients will have access to ministers during the COVID-19 pandemic.

What happened?

After giving birth alone at Medstar’s Southern Maryland Hospital Center (MSMHC) in Maryland, a mother was involuntarily separated from her newborn baby due to her testing positive for COVID-19. The mother requested that a Catholic priest visit and baptize her baby. The hospital denied the mother’s request, citing their COVID-19 visitor exclusion policy. Following this painful ordeal, the mother filed a complaint with the OCR’s Conscience and Religious Freedom Division (CRFD).

A second complaint was made against Mary Washington Healthcare (MWHC) in Virginia. MWHC would not allow a priest to administer the Catholic sacraments of Holy Communion and Anointing of the Sick to a patient sick with COVID-19 in an end-of-life situation. The patient’s family requested the priest visit and administer the sacraments. In August, The Diocese of Arlington filed the complaint with the CRFD. The hospital ultimately permitted the priest to visit the patient after the complaint was filed.

Additionally, MWHC did not allow a priest to visit a surgery patient in its intensive care unit (ICU). The patient’s family requested a priest visit and administer religious sacraments. Even though the patient did not have COVID-19, the hospital did not allow the priest to visit since the entire ICU was designated as a COVID unit. Only patients in end-of-life situations could receive visitors within the ICU. While just out of surgery, the hospital did not consider the patient in an end-of-life situation. And in this case, the Diocese of Arlington filed another complaint with the CRFD to ensure that a priest could visit patients desiring these religious sacraments and spiritual care.

How were the cases resolved?

After the complaint was filed, the OCR provided guidance to Medstar Health System detailing lawful access to chaplains or clergy during the COVID-19 pandemic. The Medstar Health System updated its visitation policies for all 10 of its hospitals, including MSMHC in Maryland. As a result, all patients, even those located in COVID-19 units, are now able to receive religious services from their spiritual leaders as long as the visit does not disrupt the care of the patient. Clergy visiting the hospital must follow hospital safety policies including COVID-19 screening, social distancing, and the wearing of a face mask.

After consulting with the OCR, MWHC in Virginia changed its visitation policy to allow patients identified for compassionate care, including those in end-of-life situations, within COVID units access to clergy. Before visiting, clergy must complete a scheduled infection control training by the hospital. Clergy must also wear PPE that is provided by MWHC. Patients in non-COVID units can receive clergy visitations as long as the visit does not disrupt care.

Why is this important?

In the United States, the COVID-19 pandemic continues to infect tens of thousands of people each day. For those requiring hospitalization, especially those in critical or end-of-life situations, it is essential that these patients have access to spiritual care from chaplains and clergy. While reasonable precautions, such as those outlined above, should be taken to ensure patient visits or religious services do not further the spread of the virus, it is absolutely vital that such opportunities are not denied to those who are hospitalized, regardless of whether or not they are suffering from COVID-19.

The coronavirus pandemic should not preclude anyone from practicing their faith. During this time, many hospital patients have been forced to tragically suffer in isolation, away from friends and family. While it is not difficult to understand the necessity of maintaining strict visitation policies at this time, it is imperative that all patients have access to spiritual care and support. The resolution of these complaints demonstrates that it is possible to both practice public health and accommodate religious expression. By taking necessary precautions, clergy can safely visit patients to provide the requisite spiritual care. These developments present models for all hospitals around the country to follow. 

Justin McDowell contributed to this explainer.

By / Oct 10

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

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

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

Highlights from the court’s opinion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

By / Oct 7

By now, most of America knows the name Amy Coney Barrett. For many, President Trump’s nominee to the Supreme Court became a familiar name during her confirmation hearing to the 7th Circuit Court of Appeals in 2017. At the time, as Barrett was sitting before the Senate Judiciary Committee, Sen. Diane Feinstein aggressively questioned her ability to serve as a judge on account of her religious faith. Summing up the intense exchange was Fienstein’s now infamous remark to Barrett, “The dogma lives loudly within you.” But often overlooked was Barrett’s response to the line of questioning: “If you’re asking whether I take my Catholic faith seriously, I do, though I would stress that my personal church affiliation or my religious belief would not bear on the discharge of my duties as a judge.”

Despite the senator’s protestations, Barrett was confirmed to the 7th Circuit, where she continues to serve. And in the days since she was officially nominated by President Trump to serve as an associate justice on the Supreme Court following the death of the late Justice Ruth Bader Gisnburg, Barrett’s life, faith, record, and judicial philosophy have come under tremendous scrutiny. In fact, before she was even nominated—when there was only speculation that the president was considering Barrett—multiple media outlets published outlandish attacks upon Barrett, attempting to draw links between the judge’s faith community and the dystopian novel The Handmaid’s Tale

Regardless of whether or not one agrees with Barrett’s beliefs, the most important thing about a judicial nominee is not his or her faith or religious background but the nominee’s judicial philosophy—a jurist’s understanding of and approach to the law. In fact, attempting to impose a religious test upon public officials or judicial nominees is strictly prohibited by Article VI of the Constitution. And concerning her own approach to impartiality as a judge, Barrett has said, “I think one of the great traditions in this country is that judges participate in the law, participate in the decision of cases, and rule even when they disagree with the outcome.”

As Russell Moore insists, these arguments over the Supreme Court nominee’s religious faith are an unnecessary distraction. And beyond these trivialities, there is much to commend Amy Coney Barrett as a potential Supreme Court justice. Below, I explore only a few of the features of her judicial philosophy as evidence of why I believe Judge Barrett would make an excellent addition to our nation’s highest court.

Summary of Barrett’s judicial philosophy

At the time of her nomination, the ERLC described Barrett’s judicial philosophy this way:

“Judge Barrett is a proponent of originalism, a manner of interpreting the Constitution that begins with the text and attempts to give that text the meaning it had when it was adopted; and textualism, a method of statutory interpretation that relies on the plain text of a statute to determine its meaning. Judge Barrett has previously voiced support for the judicial doctrine of stare decisis (or, following existing precedent) while maintaining that prior precedent is not sacrosanct.”

Twin methodologies

As seen in that summary, an important part of Barrett’s judicial philosophy is her commitment to the “twin interpretive methodologies” of textualism and originalism, an approach to interpretation that the judge shares with the late Justice Antonin Scalia for whom she clerked at the Supreme Court. The two terms essentially refer to the same methodology, with textualism corresponding to statutory interpretation and originalism applying to constitutional interpretation. 

According to Barrett, originalists “insist that judges must adhere to the original public meeting of the Constitution’s text.” Elsewhere she wrote, “For an originalist, the meaning of the text is fixed so long as it is discoverable.” For Barrett, a law means what the law was understood to mean when it was enacted. In this sense, Barrett’s originalism stands in contrast with the “living constitutionalism” of more progressive jurists. 

Similarly, Barrett has argued that textualists “emphasize that words mean what they say, not what a judge thinks that they ought to say.” A commitment to textualism, therefore, signals Barrett’s recognition of the fact that judges are not legislators. A key reason one can have confidence in her jurisprudence is her assertion that “Fidelity to the law means fidelity to the text as written.” 

Stare decisis

Alongside her commitment to textualism and originalism, another critical aspect of Barrett’s judicial philosophy is her view of stare decisis. Legal professionals, as well as those who followed recent Supreme Court confirmation hearings, will remember that the doctrine of stare decisis refers to legal precedent. It is a judicial policy that means “to stand by the things decided.” And it signifies a commitment to following existing precedent in deciding cases before the court. Barrett has described the doctrine as “ a sensible rule” because, as she notes, “among other things, it protects the reliance interests of those who have structured their affairs in accordance with the Court’s existing cases.” 

Undoubtedly, much will be made of her view of stare decisis should Barrett sit again before the Senate Judiciary Committee for confirmation. At the Supreme Court, challenges to abortion are measured by the precedents established in Roe v. Wade and Planned Parenthood v. Casey. And with the current ideological makeup of the court, proponents of abortion will desire for Barrett to affirm a strong commitment to stare decisis in hopes of rebuffing any legal challenges to these precedents.

Barrett affirms the importance of stare decisis as means of maintaining doctrinal stability. She recognizes that the court’s legitimacy hinges in part on its consistency. But even so, she acknowledges that the doctrine is only one means of promoting such stability. While she does recognize that certain rulings are secure as “superprecedents” (e.g., Marbury v. Madison; Brown v. Board of Education), she denies that such rulings are secured on the grounds of stare decisis. And notably, in a law review article Barrett specifically mentions that the decision in Roe has not achieved superprecedent status.

Conclusion

It is unreasonable for any group to expect that a jurist would issue only rulings consistent with the views of those who supported his or her nomination. But many times in recent decades, religious conservatives have faced bitter disappointment not because of a judge’s commitment to upholding the law but because of the apparent disregard of numerous judges for their former approach to jurisprudence prior to obtaining a lifetime judicial appointment. And while there is no way to know for certain, the judicial philosophy of Judge Barrrett gives every reason for confidence in the trajectory of her future as a jurist and, potentially, as a Supreme Court Justice.

By / Sep 26

WASHINGTON, D.C., Sept. 26, 2020—Russell Moore, president of The Ethics & Religious Liberty Commission of the Southern Baptist Convention, commented on President Donald Trump’s U.S. Supreme Court nomination of Judge Amy Coney Barrett:

“I have long respected Judge Barrett, not only as a highly accomplished jurist but also as an adoptive parent active in the advocacy for adoption and for special needs children. As she goes before the Senate Judiciary Committee, I’m confident she will lay out a thoughtful defense of commitment to the constitution and the proper limits of judicial authority in our system of government. 

“As a son of Mississippi Gulf Coast, I would be remiss if I didn’t point out this is a nomination of a New Orleans-born judge who grew up in Metairie, Louisiana, which is perhaps one reason why I have paid attention to her career for years. There is no question that Judge Barrett is qualified by intellectual acumen and years of experience to serve on the highest court in the land. I am praying for her, her family and our nation in what are sure to be tumultuous days in the weeks ahead for the entire country. 

“The special circumstances of this nomination, of course, mean that this could be a highly charged confirmation process in an already polarized nation. One need not agree with the process taken by the Senate to agree that, having taken up the nomination, the Senate should treat Judge Barrett with respect and consideration. No serious person actually believes that Judge Barrett would be a theocrat imposing her religious views on a pluralistic republic. In fact, her record shows otherwise, as confirmed even by many who disagree with her rulings. 

“We ought then to expect that the debate over Judge Barrett’s nomination would be about her qualifications and her record, not about her personal religious views or affiliations. That’s especially true when our country has the legacy we have sometimes had of religious bigotry—ranging from some in our history wrongly suggesting that Catholic Americans would be beholden to the pope instead of the Constitution, that Jewish Americans would have duel loyalty with Israel, that Muslim Americans would impose sharia law or that evangelical Americans would interpret their prophecy charts and not the law. We should expect as a country to be free from even a hint of those attitudes now, and I hope this confirmation process will debate issues and qualifications, not question the nominee’s prayer life.”

Earlier this week, Christianity Today published an op-ed by Moore about the future of the Supreme Court after the death of Justice Ruth Bader Ginsburg, “The Supreme Court Needs to Be Less Central to American Public Life.”

By / Sep 26

President Donald Trump has announced his nomination of Judge Amy Coney Barrett to the U.S. Supreme Court to fill the seat vacated by the passing of Justice Ruth Bader Ginsburg. 

Here is what you should know about the latest nominee for associate justice of the Supreme Court of the United States. 

Judge Amy Coney Barrett

Age: 48 

Birthplace: New Orleans, Louisiana 

Education: B.A. from Rhodes College; J.D. from Notre Dame Law School.

Current judgeship: U.S. Court of Appeals for the Seventh Circuit (appointed in 2017 by President Trump).

Previous roles: Judge Barrett previously taught constitutional law at Notre Dame before being appointed to her current judgeship. Prior to teaching, Barrett clerked for Justice Antonin Scalia and Judge Laurence Silberman of the Court of Appeals for the D.C. Circuit.

Religious denomination: Roman Catholic

Family: Judge Barrett is married and has seven children. Two of her children are adopted from Haiti, and one has special needs.

Judicial philosophy: Judge Barrett is a proponent of originalism, a manner of interpreting the Constitution that begins with the text and attempts to give that text the meaning it had when it was adopted; and textualism, a method of statutory interpretation that relies on the plain text of a statute to determine its meaning. Judge Barrett has previously voiced support for the judicial doctrine of stare decisis (or, following existing precedent) while maintaining that prior precedent is not sacrosanct. 

Positions and rulings

Judge Barrett signed onto a statement of protest in 2012 as she objected to the birth control mandate for employers of religious orientation. The statement proclaimed the birth control mandate as an “assault on individual liberty and the rights of conscience.”

In Kanter v. Barr, Barrett filed a dissenting opinion arguing that Kanter, a felon convicted of mail fraud, should be allowed to own a gun. In her dissent, Barrett wrote, “Neither Wisconsin nor the United States has introduced data sufficient to show that disarming all nonviolent felons substantially advances its interest in keeping the public safe. . . . Absent evidence that [Kanter] either belongs to a dangerous category or bears individual markers of risk, permanently disqualifying Kanter from possessing a gun violates the Second Amendment.”

In 1998, Barrett co-authored an essay titled “Catholic Judges in Capital Cases.” In this essay, Barrett and the other authors argued “litigants and the general public are entitled to impartial justice, which may be something a judge who is heedful of ecclesiastical pronouncements cannot dispense.” Subsequently, the authors suggest Catholic judges might need to recuse themselves in capital cases on account of “the moral impossibility of enforcing capital punishment.” However, in her 2017 Senate Judiciary Committee hearings, Barrett walked back her statements from 20 years prior saying she does not believe the same things now. 

In a dissenting opinion in the case of Cook County v. Wolf, Barrett argued that litigation on the public charge rule—a rule which would deny permanent residency to immigrants which the government believed would need assistance in the future—should have proceeded. In her dissent, Barret argued the courts are “not the vehicle for resolving policy disputes.”

In 2019, Barrett joined a majority opinion in Price v. City of Chicago which, citing binding Supreme Court precedent, upheld a city ordinance which prevented “sidewalk counselors” from approaching women entering an abortion clinic.

Attacks on Judge Barrett’s faith

Since the time Judge Amy Coney Barrett was first floated as a possible replacement for former Justice Kennedy’s seat in 2018, she has received criticism on the basis of her religion. Recently, multiple news outlets disparaged Barrett’s faith by attempting to connect her beliefs to the dystopian novel written by Margaret Atwood. Previously, a United States senator questioned her fitness as a judge because of the Catholic “dogma [that] lives loudly within her.” 

The Constitution prohibits religious tests for office, including judicial appointments. Attacks upon a candidate due to their religious faith are also unwarranted. As Russell Moore explained in a video this past Tuesday, “Let’s not get into debates about the religious identity of the nominee. Because we need to be able to, on the other side of this, as Americans, deal with the aftermath of so far 200,000 of our fellow Americans killed by the coronavirus, and an economy that needs to be rebuilt, and countless other fractures in American life. Let’s not let this be one of them.”

During her confirmation hearing to the Seventh Circuit District of Appeals, Barrett responded to questions regarding the role her Catholic faith plays in her jurisprudence. She stated, “If you’re asking whether I take my faith seriously and I’m a faithful Catholic, I am. Although I would stress that my personal church affiliation or my religious belief would not bear on the discharge of my duties as a judge.” 

Additionally, Barrett’s comments during Notre Dame Law’s 2006 Commencement ceremony have recently come under public scrutiny: “And that is this: that you will always keep in mind that your legal career is but a means to an end, and as [Father Jenkins] told you this morning, that end is building the kingdom of God.” In the same speech, Barrett further explained, “While we are a community engaged in the enterprise of legal education and scholarship, we are also a community engaged in the enterprise of bringing about the kingdom of God. We are a community characterized by our love and concern for one another.

Russell Moore’s comments on the nomination

The ERLC’s Russell Moore supported the nomination of Barrett to the high court, saying: 

“I have long respected Judge Barrett, not only as a highly accomplished jurist but also as an adoptive parent active in the advocacy for adoption and for special needs children. As she goes before the Senate Judiciary Committee, I’m confident she will lay out a thoughtful defense of commitment to the constitution and the proper limits of judicial authority in our system of government. 

“As a son of Mississippi Gulf Coast, I would be remiss if I didn’t point out this is a nomination of a New Orleans-born judge who grew up in Metairie, Louisiana which is perhaps one reason why I have paid attention to her career for years. There is no question that Judge Barrett is qualified by intellectual acumen and years of experience to serve on the highest court in the land. I am praying for her, her family, and our nation in what are sure to be tumultuous days in the weeks ahead for the entire country. 

“The special circumstances of this nomination, of course, mean that this could be a highly charged confirmation process in an already polarized nation. One need not agree with the process taken by the Senate to agree that, having taken up the nomination, the Senate should treat Judge Barrett with respect and consideration. No serious person actually believes that Judge Barrett would be a theocrat imposing her religious views on a pluralistic republic. In fact, her record shows otherwise, as confirmed even by many who disagree with her rulings. 

“We ought then to expect that the debate over Judge Barrett’s nomination would be about her qualifications and her record, not about her personal religious views or affiliations. That’s especially true when our country has the legacy we have sometimes had of religious bigotry—ranging from some in our history wrongly suggesting that Catholic Americans would be beholden to the pope instead of the Constitution, that Jewish Americans would have duel loyalty with Israel, that Muslim Americans would impose sharia law, or that evangelical Americans would interpret their prophecy charts and not the law. We should expect as a country to be free from even a hint of those attitudes now, and I hope this confirmation process will debate issues and qualifications, not question the nominee’s prayer life.”

A press release on the appointment can be found here.

ERLC interns Justin McDowell and Jackson McNeece contributed to this article.

By / Sep 16

Over the weekend, news broke that two law enforcement officers in Los Angeles were targeted, seemingly at random, as a gunman ran up to their parked vehicle and opened fire. Sustaining life-threatening injuries, the two officers were transported to a nearby hospital. And following the shooting, reports surfaced that a crowd of protestors had gathered outside of the hospital’s emergency room. The crowd apparently blocked the entrance to the emergency room as at least some present screamed and chanted obscenities, including vile expressions of their desire that the officers involved would perish. 

The news was chilling, but the heinous and wicked nature of the attack was solidified after video of the shooting began to circulate online. It was unquestionably a senseless act of violence. But the insanity of the moment was further compounded by the reports that others, with actual knowledge of the incident, then called for the death of the two victims of such brutality. Those actions reflect, in a staggering fashion, the moral cancer infecting American culture today. 

Devastating brokenness

Sadly, this was hardly the only reminder of our world’s devastating brokenness in recent days. For several weeks, much attention and criticism has been directed toward “Cuties,” a new film acquired by Netflix telling the story of a young Sengalese girl torn between two worlds–her family with its traditional Muslim culture and her dance troupe of preteen girls. Originally released in France and highly acclaimed, the film won an award from the Sundance Institute in February. And according to its defenders, “Cuties” aims to reflect the pressures on young women growing up in a hyper-sexualized culture. 

But ahead of releasing the film on its streaming platform, Netflix advertised “Cuties” in a way that played-up and glamorized the sexuality of young adolescent girls. The promotion of the film was obscene. It not only objectified the young women featured, but made an illicit spectacle of underage girls that was tantamount to soft core pornography. Whatever the film’s supposed virtues, the sensual and provocative images of children “dancing” across the screen was rightly met with public (and bipartisan) outcry. Senators Tom Cotton and Ted Cruz condemned the film along with Congresswoman Tulsi Gabbard who claimed “Cuties” would “certainly whet the appetite of pedophiles.”

To return to California, Gov. Gavin Newsom recently signed a controversial bill, Senate Bill 145, into law. That bill updated certain statutes related to offenders convicted of sex crimes in the state, specifically of statutory rape. Under the new law, judges in the state may now exercise discretion as to whether or not an offender must go on the sex offender registry in certain cases involving same-sex sexual activity. Defenders of the bill argued that it merely ended a form of discrimination in California’s judicial system by allowing judges to exercise the same kind of discretion regardless of the sex of the victims and perpetrators. But entirely overlooked by supporters of the new law was the fact that the legal “parity” created by this law simply extended the bad law already on the books in California. Expanding protections for adults to sexually exploit and prey upon children is no kind of justice.

These are but a few examples of the moral decay on display all around us. And the truth is, it doesn’t matter what direction you look. The effects of sin and signs of brokenness are everywhere. So how are Christians supposed to live faithfully in a world that celebrates violence and sanctions the sexual exploitation of children? Each day Christians in the United States face myriad problems of unbelievable complexity. What are we to do when the problems are overwhelming and solutions are hard to come by?

Spiritual maturity

Learning to live faithfully in a fallen world requires the development of spiritual maturity. And this is where we find some good news. Through Jesus, God is in the business of redeeming this fallen and broken world. Not only that, but living in this time between the times is not a new problem for the people of God. Since Jesus ascended into heaven, his people have been left with the task of bearing witness to him through our lives, words, and deeds. But each generation of Christians has had to fight to faithfully bear witness amid all kinds of pressures and circumstances–amid every kind of sin and brokenness and evil. And if we are to face these problems, we must prioritize the work of spiritual formation.

Christians should not be surprised when our world displays its brokenness. But we should never forsake an opportunity to show the world a better way.

It isn’t always clear what the best response is to any particular manifestation of evil. When Disney partnered with China’s communist government to film the movie Mulan–a government which is actively persecuting and potentially perpetrating genocide against Uighur Muslims–after the same company threatened to cease filming operations in the state of Georgia over a pro-life law being considered there, Christians were rightly outraged. But what is the best response? Refuse to see the film? Boycott Disney? What about Netflix? Is ignoring “Cuties” enough? Should we also cancel our subscriptions? And what if our government is itself perpetrating evil?

The point is, answers aren’t always easy or obvious. Addressing such matters requires tremendous wisdom and spiritual maturity. But God has equipped us to prepare for these moments. This is part of the reason Christians have the church, the Scriptures, and the gift of the Holy Spirit. In the new covenant, we don’t face any of these difficult issues alone. 

For believers, the Spirit of God lives within us and guides us through these challenges. Not only that, but God has not left us to guess by what kind of standard we are to live. He has provided us with the written Word as a revelation of himself, his work, his nature, and his plan of redemption. He has also brought us into his body, the church. As believers, we belong to something much bigger than ourselves. We are children of God and we stand together not only with our brothers and sisters in this age but in every age. We not only learn and benefit from the wisdom and experience of our contemporaries, but throughout church history we see a long line of Christian witnesses from whom we can learn so much about navigating life in a world that is under a curse.

None of us can solve every problem. Nor will we ever successfully eradicate the presence of evil from our world. Only Christ can do that– and has promised to do so upon his return. But until then, we can still work to oppose evil and injustice. We can speak against acts of violence and oppression. And we can speak up for the vulnerable and for those without a voice. Christians should not be surprised when our world displays its brokenness. But we should never forsake an opportunity to show the world a better way.

By / Sep 4

Editor’s Note: Due to the nature of this bill, there is sensitive language in the article. 

On Aug. 31, the California State Assembly passed Senate Bill 145 with a vote of 41-18, following the State Senate where the bill passed 23-10. The vote largely passed along partisan lines. The bill’s passage rightly sparked concern and headlines in multiple news outlets across the country.

What would the bill do?

Currently, California’s Sex Offender Registration Act requires a person convicted of certain sex crimes including rape, indecent exposure, and sex offenses involving a minor, to register as a sex offender for varying lengths of time. The current law in the California code does, however, give judges discretion in cases involving a young adult convicted of statutory rape where “vaginal intercourse” took place and the victim was between the ages of 14-17. In other words, judges in California may presently decide not to require offenders to register as “sex offenders” in certain cases involving heterosexual intercourse with a minor. In such cases, a judge can decide whether to require the young adult to register as a sex offender in the event that the offender is within 10 years of age of the victim.

This new bill, SB 145, seeks to amend the California Sex Offender Registration Act to extend judicial discretion to include young adults convicted of statutory rape where “anal or oral sex” took place, extending the judicial discretion provision to include homosexual sex acts. The bill would exempt from mandatory sex offender registration, “a person convicted of certain offenses involving minors if the person is not more than 10 years older than the minor and if that offense is the only one requiring the person to register.”

Why was it offered?

The bill’s author, California State Sen. Scott Wiener (D–San Francisco), contends, “SB 145 puts an end to blatant discrimination against young LGBT people engaged in consensual sexual activity.” Further, Weiner argued, “This bill is about treating everyone equally under the law. Discrimination against LGBT people is simply not the California way.”

Why is this legislation harmful? 

Adults having sex with minors is never permissible. If the aim is equality, then current California law should be amended to ensure that “vaginal intercourse” with a minor is grounds for mandatory sex offender registration. This bill goes in the opposite direction, jeopardizing the safety of children by upending the basic moral code of society that minors should always be protected from exploitation. This situation reveals the already alarming legal discretion given to judges when ruling on a case of heterosexual abuse. Gov. Newsom should not only veto this new legislation, he should clearly advocate for the underlying statute to be strengthened in an effort to prevent the abuse of minors. A person guilty of statutory rape should be required to register as a sex offender. 

What can Christians do?

While this bill was only passed in California, Christians from all states would be wise to know the fate of SB 145. All Christians should pray for the state of California and its leaders. Pray for the government to embrace its duty to protect all its citizens, especially children. By passing this bill, California lawmakers are not protecting children but exposing them to harm and exploitation. With the bill now sitting on California Gov. Gavin Newsom’s desk, Christians in California should call their governor to advocate that he veto the bill.

By / Jul 13

Writing in the Wall Street Journal, Gerald Seib writes that America, in one of the most tumultuous years in its history, is suffering from a “goodwill deficit.” This is, he says, “a growing tendency to see those with whom you disagree as not merely wrong, but evil. There is a diminishing willingness to believe that the person on the other side of the debate—any debate—is well intentioned.”

You’ve probably experienced this as you scroll your social media timeline or even in conversations (probably text or Zoom these days) with friends. There is a temptation for us to think that the “other side” is not just crazy, but dangerous. And every day there is ample evidence to suggest that perhaps this thesis is right. Daily, our news intake is curated in such a way that we get fresh reminders of the extremes from either the left or the right. 

I happen to be conservative, so my bent leads me to view liberals with suspicion and my own “side” as perfectly reasonable. It’s harder to see the darker impulses when it is wrapped in political philosophy I tend to affirm. But this kind of bias—this wanting to believe the best about my team and believe the worst about the other team—doesn’t just affect our politics. It seems to be affecting the way we see others who disagree with us theologically, or perhaps those who belong to other tribes. 

What’s more, our sources of information and the communications platforms we use often incentivize this kind of zero-sum outlook. Social media companies prize attention and engagement, which requires conflict. Media organizations need sensationalism and clickbait in order to get eyeballs and advertising and subscriptions. And the way to get ahead, to build an audience, is to be provocative. 

A Christian way to speak

But should Christians engage this way? Scripture gives us quite a bit of guidance on the way we should conduct ourselves, the way we use words, and how we treat those with whom we disagree. On the one hand, public polemics and courageous speech is encouraged, almost required, of a follower of Jesus. Paul urges Timothy, over and over again, to stand fast, stand up, to courageously defend the truth. Peter, writing to the first-century church, exhorts them to stand fast in the face of opposition. And in the Upper Room, Jesus warned his disciples that to follow him would lead to persecution and death. 

There should be a distinctly Christian way of standing up for what we believe.

And yet the disciple of Jesus is called to a certain kind of otherworldly gentleness. In every single list of qualifications for Christian leadership, Paul lists gentleness. Sometimes he even warns against brawling and being quarrelsome (2 Tim. 2:24). Peter urged God’s people to clothe their polemics in gentleness and kindness (1 Pet. 3:15). Neither of these men were known for their cowardice; both died martyrs’ deaths. 

So we should speak the truth in love. There should be a distinctly Christian way of standing up for what we believe. But what does that look like in a digital age, when the means of publishing our opinions are so quick and easy, with a few taps of the thumb? Some advocate leaving social media platforms all together, and perhaps that’s wise for some. But the Internet is here to stay. We are not going back to 1950. 

So, how can we can apply Scripture to the way we engage online? 

1. Be slow to speak: First, we should follow James 1:19 and be “quick to hear, slow to speak, slow to anger.” Before we retweet or post that story that confirms our worst ideas about those with whom we disagree, we might get the whole story, wait a day, or not say anything at all. Regardless of what anyone says, we are not required to speak on every topic all the time on every platform. 

2. Be measured: Second, we might consider how we want to speak and ask ourselves how our words might be misunderstood. 

3. Be accountable: Third, we might ask a friend or two before we post. I have found it helpful to have a text thread of close friends where I can try out my hottest takes. Thankfully most of that never sees the public. Community and accountability are helpful. 

4. Be reasonable: Perhaps, most importantly, we should consider Philippians 4 which urges us to “let [our] graciousness be known to everyone. The Lord is near.” Some translations render this, “let your reasonableness be known to everyone.” The idea of being reasonable seems so out of fashion. Love, however, requires us to strive to be reasonable. 

Writing to a warring congregation of Corinthians, Paul says that love “believes all things.” Love requires the benefit of the doubt. It demands that we not see the worst in that person we disagree with. This is not a natural impulse for sinners. It’s a supernatural impulse and something God has to do in us. But it’s sorely needed in our world. 

Sadly there is very little of this even in the church. When controversies arise or when someone misspeaks, there seems to be a digital mob waiting to proclaim their own self-righteousness and heap public scorn. It seems we get up every day ready to cancel someone, to remind the world of how much better and more righteous we are then them. Before we know it, with a few keystrokes, we’ve joined a digital mob. 

There is a better way. The way of love. This doesn’t mean we never engage in meaningful public debates. This doesn’t mean we don’t write public polemics. This doesn’t mean we don’t hold the powerful accountable. But we should resist the urge to cancel, to hurt, and to crush. The people on the other side of our screens are not avatars, but human beings. They are not the sum total of their one bad tweet. They have families who might one day Google their names. 

There is a lot we cannot control about our troubled world and the polarization that grips the nation. But what we can do is show a bit of love and reasonableness when we engage online. We can pause before we post. And we might consider that we are not always as right as we think we are.  

Check out Daniel’s new book, A Way with Words: Using Our Online Conversations for Good.

By / Jun 12

Under Section 1557 of the Affordable Care Act, Congress prohibited covered health plans and programs from discriminating on the basis of race, color, national origin, sex, age, or disability, the classes long recognized under our civil rights laws. However, in May 2016, the Obama administration issued new regulations that expanded the scope of section 1557’s nondiscrimination prohibitions by redefining “sex” to include sexual orientation and gender identity.

These new regulations raised a number of significant religious liberty issues and pro-life issues. For instance, physicians would be required to provide gender reassignment surgeries, administer hormones to facilitate gender reassignment, and even perform abortions in violation of the consciences of medical professionals.

In response to the issuance of these new regulations, on Aug. 23, 2016, five states and three private health care providers filed suit in the U.S. District Court for the Northern District of Texas challenging the final rules in the case Franciscan Alliance, Inc., et al. v. Burwell, et al. The District Court held 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).

As a result, the District Court in Franciscan Alliance issued a nationwide preliminary injunction on the 2016 rule. The preliminary injunction remains in place today and the 2016 rule has never come into effect.

Today, the U.S. Department of Health and Human Services finalized a new rule that replaces the 2016 rules and brings HHS’s nondiscrimination regulations back in line with federal law passed by Congress.

The ERLC submitted written comments in support of the change that may be accessed here.

For more information on the finalized rules, please see the U.S. Department of Health and Human Services’ press release on the new rules. HHS has released the draft final rule as well as a factsheet explaining the implications of the rule.

By / May 22

Earlier today, the Centers for Disease Control and Prevention released new interim guidelines to communities of faith in light of the COVID-19 pandemic.

The guidance was offered by the CDC in an effort “to help communities of faith discern how best to practice their beliefs while keeping their staff and congregations safe.”

Specifically, the guidance covered areas such as scaling up operations, best practices for hygiene and cleaning of church facilities, use of face coverings, guidance on shared materials, and tips on childcare and youth ministry. The CDC was careful to point out the guidance “is non-binding public health guidance for consideration only; it is not meant to regulate or prescribe standards for interactions of faith communities in houses of worship. Any decision to modify specific religious rites, rituals, and services should be made by religious leaders.”

Reasonable and helpful guidance

Overall, the CDC guidance is reasonable and helpful. The tone is, appropriately, not a directive to churches but counsel based on the medical data. Such counsel is hard to make specific since practices differ so much from congregation to congregation, even within the same religion or denomination. Every church we have worked with throughout this pandemic is working through a staging plan, communicating to their members what benchmarks they are looking for to know when to re-gather, how they will then phase that re-gathering in, and what steps they will take to ensure safety when they do. 

The CDC guidance is not a blueprint but it is a prompt to help leaders as they think through what questions to ask.

Just as with shelter-in-place recommendations in March, most congregations are already on top of thinking through these issues. Church members want to be confident that when their church reopens every reasonable precaution is taken, and that’s exactly what pastors and church leaders are doing. The CDC guidance will come as a reassurance to many churches that their hard work in planning out the path back to worship is, in most cases, in line with the recommendations of health officials.

The full interim guidance for communities of faith may be accessed here.