By / Jun 27

On June 27, in a 6-3 decision, the U.S. Supreme Court ruled that “the Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal.” This is an important decision for religious expression, especially for teachers and coaches’ ability to privately express their religious belief while working for schools.

Justice Gorsuch delivered the opinion of the court, with Justices Roberts, Thomas, Alito and Barrett joining. Justice Kavanaugh also joined the majority opinion, except as to Part III–B. Justices Thomas and Alito filed concurring opinions. Justice Sotomayor filed a dissenting opinion, in which Breyer and Kagan joined.

What is this case about?

Coach Kennedy, a high school football coach in Bremerton, Washington, had a tradition of kneeling and quietly praying at the 50-yard line after football games. Kennedy was suspended by Bremerton High School, and later fired because of his private prayers. In fact, the “District Court found that the ‘sole reason’ for the District’s decision to suspend Mr. Kennedy was its perceived ‘risk of constitutional liability’ under the Establishment Clause for his ‘religious conduct’ after three games.” He filed a lawsuit against the school district, arguing that the school’s actions violated both the First Amendment’s Free Speech and Free Exercise Clauses. 

Our brief to the court stated that, “Coach Kennedy . . . acted after a game, without directing his speech or conduct toward any particular audience, without anyone in compulsory attendance, without his inviting anyone, and on an outdoor field open to the entire public (not just students and other school employees).” It goes on to state, “this was a private gathering of like-minded individuals, and that gathering was itself shielded by the First Amendment protections of religion, speech, and assembly.”

Kennedy was simply exercising his constitutional right to free exercise and free speech. The Free Exercise Clause of the First Amendment “protects religious exercises and the Free Speech Clause provides overlapping protection for expressive religious activities.” Both of these Constitutional protections were violated in this case.

The Lemon Test

In addition to ruling specifically for Coach Kennedy, the court in this decision also officially replaced the Lemon Test, a three-part test from a 1971 ruling that determined when a law was in violation of the Establishment Clause. As the opinion notes,“The Lemon approach called for an examination of a law’s purposes, effects, and potential for entanglement with religion. In time, that approach also came to involve estimations about whether a ‘reasonable observer’ would consider the government’s challenged action an ‘endorsement’ of religion.”

In recent years, the court has increasingly disfavored the Lemon Test. Justice Gorsuch states that due to “the apparent ‘shortcomings’ associated with Lemon’s ‘ambitiou[s],’ abstract, and ahistorical approach to the Establishment Clause—this Court long ago abandoned Lemon and its endorsement test offshoot.” Further, “the Court has explained that these tests ‘invited chaos’ in lower courts, led to ‘differing results’ in materially identical cases, and created a ‘minefield’ for legislators.”

Despite the previous abandonment of this test, the court had not officially replaced Lemon with a new standard, leaving a void of confusion for lower courts and legislators. However, in this decision, the court provided needed clarity and ruled that “in place of Lemon and the endorsement test . . . the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’”

The Lemon Test restricted religious expression, and the justices rightly ended this  “ahistorical” standard.

How did the ERLC engage this case?

The ERLC was involved with briefs at the petition for certiorari stage and before the Supreme Court on the merits. The brief urged the high court to accept the case and reverse the Ninth Circuit Court of Appeals’ decision that Kennedy’s act of praying—ultimately joined by some players—constituted a government establishment of religion.

In 2018, ERLC joined eight other groups in a brief that called for Supreme Court review and repudiation of the Ninth Circuit in the case, but the justices declined to grant the request at the time. The case returned to federal court and worked its way back through the judicial system. The brief the ERLC signed argued that, 

. . . the school should have allowed the exercise of the constitutional freedoms to speak, pray, and assemble. It cannot convert its improper halting of such practices into a legal virtue by resorting to the Establishment Clause, as that clause certainly did not proscribe the unassisted, privately initiated exercise of religion by Coach Kennedy.

The Establishment Clause does not require public schools to be policed as religion-free zones, and a reasonable, objective person understands that teachers can act in private capacities, even while on school grounds and even during school hours. When teachers do so, their freedoms are not to be curtailed, and they are not to be punished.

The ERLC will always protect religious freedom and religious expression, before the courts, Congress and the administration.

Why does this decision matter? 

This decision strengthens religious expression for teachers, coaches, and people living out their faith in the public square. As the majority opinion states, the Free Exercise clause “protects not only the right to harbor religious beliefs inwardly and secretly. It does perhaps its most important work by protecting the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life through “the performance of (or abstention from) physical acts.” As the court rightly acknowledged, the Establishment Clause, the Free Exercise Clause and the Free Speech clause are not separate units, but rather appear in the same sentence of the same Amendment.” Our First Amendment rights travel together, and must be equally honored and protected.

As ERLC’s acting president, Brent Leatherwood said,

“As any Christian knows, our faith is deeply personal and rightly shapes every aspect of our lives. We live out our faith in any number of ways, both privately and publicly. Today’s case centered on the latter and the Supreme Court rightly determined that an individual employed by a school does not forfeit his or her constitutional right to free expression simply by entering ‘the schoolhouse gate’ or, as it were in this case, the field of play.

“Moreover, today’s decision reaffirms another aspect of constitutional law: Our First Amendment rights travel together. We, and many others, have long held that religious liberty is our nation’s first freedom and that it bolsters and strengthens other foundational rights. The Court today strengthened this perspective by writing that the clauses of free expression, establishment and free speech are all complementary. If it were not already clear enough, this Court views religious liberty as a bedrock right in our free republic.”

This case is another victory in a long line of jurisprudence that further expands Americans’ robust rights of religious expression. Across our convention of churches, faithful Southern Baptists can be found working in the public education sector. As Christians, Scripture calls us to do “all in the name of the Lord Jesus, giving thanks to God the Father through him” (Col. 3:17). This decision bolsters believers’ ability to do this in the public square without fear of repercussions.

By / Jan 18

Today, the Supreme Court of the United States heard oral arguments in Shurtleff v. Boston, a key First Amendment case before the court this term. Here’s what you need to know about this case: 

What is this case about?

The City of Boston manages three flagpoles in front of its City Hall. Typically, those flagpoles fly the American flag and the POW/MIA flag on one flagpole, the Commonwealth of Massachusetts flag on the second, and Boston’s own local flag on the third. The City occasionally, upon request and approval, will fly another flag for a brief period of time rather than Boston’s flag, typically in conjunction with an event happening at City Hall.

In 2017, Harold Shurtleff, through his organization, Camp Constitution, petitioned to host an event at Boston City Hall, raise a Christian flag, and have members of the clergy speak about the religious history of Boston, the Commonwealth of Massachusetts, and the Constitution. 

The City denied Camp Constitution’s request to fly the Christian flag. According to the petition, “For the twelve years preceding Camp Constitution’s request, from June 2005 through June 2017, the City approved 284 flag raising events, with no record of a denial.” Gregory T. Rooney, Commissioner of Boston’s Property Management Department, who reviews these requests, ultimately decided to deny Camp Constitution’s request because “we didn’t have a past practice of allowing religious flags, and we weren’t going to allow this flag raising.”

Following this denial, Camp Constitution sued the City of Boston claiming a violation of the organization’s First Amendment rights. Both the district court and U.S. Court of Appeals for the First Circuit have ruled in favor of the City.

Why is this case important?

This case has the potential to further limit the scope of the Establishment Clause and may have implications for religious speech at other limited public forums such as schools, city halls, and public libraries.

As noted by Becket Law, Boston’s city officials “have an outdated understanding of the Establishment Clause [that] often ban[s] religious elements from the public square simply because they are religious.” They continue, 

“This error isn’t limited to Boston. For years, government officials (with approval from lower courts) have been censoring religious expression from the public square in fear of violating the Constitution. Many mistakenly think that exclusion of religion is the safest option. This mistake goes beyond a flagpole—similar reasoning has been used to prohibit religious groups from advertising on trains and buses, exclude religious schools from generally available funding programs, and even deny FEMA aid to churches and synagogues damaged by hurricanes.”

This case presents the Supreme Court with an important opportunity to affirm the First Amendment rights of religious organizations and clarify understanding of the Establishment Clause.

How has the ERLC been involved?

The ERLC joined an amicus brief asking the Supreme Court to rule in favor of Camp Constitution. The brief argues that the City of Boston is violating the Free Exercise Clause and Establishment Clause and is wrongly discriminating against the speech of a religious organization. The Supreme Court rightly agreed to hear oral arguments in this case and we are hopeful that the court will rule against the exclusion of religious expression in public forums. 

The ERLC engages our culture with the gospel of Jesus Christ in the public square to protect religious liberty and promote human flourishing. One of the ways we do this is by advocating for these things before the Supreme Court. While we’ve worked diligently and pray earnestly that the court will affirm religious liberty in this case, we ultimately place our trust in God to fulfill his plans and use the work of the ERLC along the way.

By / Dec 17

Human dignity and the basic rights inherent to every individual are precious and should be protected. Unfortunately, in many parts of the world, this is far from the case — and in egregious ways. While there were encouraging events at the end of this year in the United States, citizens of other countries were subjected to persecution, assault, and death. Below are 10 significant human rights events around the world that you should be aware of. 

United States: New ambassador-at-large for international religious freedom

This week, the Senate confirmed Rashad Hussain to the post of ambassador-at-large for International Religious Freedom in a vote of 85-5. Hussain garnered support from a wide range of religious liberty advocates including the Religious Freedom Institute, Open Doors, and past members of United States Commission on International Religious Freedom including former chairs, Katrina Lantos-Swett and Robert George, as well as former Ambassador, Sam Brownback. Hussain makes history as the first Muslim nominated and confirmed to the position. He fills a vacancy at a crucial time as religious rights are threatened around the globe. 

Brent Leatherwood, acting president of the ERLC, noted the important role that his position plays for this fundamental right: “I want to congratulate Mr. Hussain on his confirmation to this important and crucial role for America’s diplomatic efforts. We are praying for his success and we are eager to work with him. Religious freedom is under assault around the globe and his position is vital to confronting those who would undermine this fundamental right.”

One of the early tests for Hussain will be confronting China on the atrocities being carried out against the Uyghur people. Just this week, the U.S. House and Senate voted to pass a bill that would ban all imports from the Chinese region of Xinjiang unless the U.S. government determines that the products were not made with forced labor. President Biden has signaled that he will sign the bill. “We have been clear,” said White House press secretary Jen Psaki, “that we share Congress’ view that action must be taken to hold the [People’s Republic of China] accountable for its human rights abuses and to address forced labor in Xinjiang.”  

Unfortunately, the genocidal treatment of religious minorities in China is but one of the major violations of human rights to occur in 2021. 

Myanmar: Military coup results in the deaths of hundreds of citizens

In February, the Myanmar military took control of the country and declared a year-long state of emergency following a general election that Suu Kyi and her National League for Democracy (NLD) party won by a landslide. The military, which backed the opposition, claimed election fraud, though the election commission found no evidence to support that accusation. When civilians protested, the military responded by imposing a brutal crackdown that killed hundreds of people

Belarus: Government crackdown on peaceful protests

Peaceful protests that followed a contested election in August were met by a harsh response by ​​ government. The UN High Commissioner for Human Rights said in September she continued to be alarmed by “persistent allegations” of “widespread and systematic torture” of protesters in the European nation. According to Human Rights Watch, protestors who were detained by ​the government described “beatings, prolonged stress positions, electric shocks, and in at least one case, rape. Some had serious injuries, including broken bones, skin wounds, electrical burns, or mild traumatic brain injuries.”

Democratic Republic of the Congo: Attacks on civilians by armed groups and government forces 

An alarming number of human rights abuses have been carried out against civilians this year by armed groups in eastern Democratic Republic of the Congo, says UN Refugee Agency (UNHCR). In the two most affected provinces of North Kivu and Ituri, UNHCR and its partners recorded more than 1,200 civilian deaths and 1,100 rapes, constituting a total of 25,000 human rights abuses. In total, more than a million Congolese have been internally displaced in the eastern part of the country. 

Afghanistan: Taliban takeover results in large number of civilian deaths

According to the United Nations Assistance Mission in Afghanistan (UNAMA), the Taliban were responsible for 45% of attacks that caused civilian deaths and injuries in the first nine months of 2020. Since the takeover by ​​the Taliban earlier this year, abductions and targeted killings of politicians, government employees, and other civilians have ​increased significantly. 

Ethiopia: Underage girls sexually assaulted to terrorize ethnic minorities

Widespread sexual and gender-based violence in northern Ethiopia “constitute some of the most egregious violations of human rights and humanitarian law” say human rights experts. From November 2020 through June of this year, some 2,204 survivors reported sexual violence to health facilities across the Tigray region. From 50 to 90% of the reported victims have been underage girls. “They appear to have been used as part of a deliberate strategy to terrorize, degrade and humiliate the victims and the ethnic minority group that they belong to with acquiescence of the State and non-State actors’ parties to the conflict,” said experts appointed by the UN.

Mexico: Over 95,000 registered as disappeared

More than 95,000 people have been officially registered as disappeared in Mexico, according to a UN committee. That number includes an increasing number of women and children, who are particularly vulnerable to being trafficked. The committee notes there are “scenarios of collusion between State agents and organised crime,” with some enforced disappearances “committed directly by State agents.”  

Burundi: Political opposition leads to beatings, arrest, torture, and killings

The people of Burundi continue to endure serious human rights violations including possible crimes against humanity, report UN-appointed independent investigators. President Evariste Ndayishimiye had pledged to address the situation in the country after years of violent repression. But according to Human Rights Watch, killings, enforced disappearances, arbitrary arrests, beatings, extortion, and intimidation persisted against people perceived to be against the ruling party.

Somalia: Sexual violence against women increased by 80%

There has been an 80% increase in sexual violence in Somalia, according to two reports this year by the United Nations. The reports (the Report of the Secretary-General on Children and Armed Conflict and the Report of the Secretary-General on Sexual Violence in Conflict.) documented that in 2020, 400 civilians, primarily girls, were victims of rape and other forms of sexual violence. More than 100 cases of sexual violence against girls were verified by the UN in the first quarter of 2021. Perpetrators often exploited the vulnerability of displaced girls, targeting them when they left camps to perform domestic chores, the reports noted. 

North Korea: Citizens executed for watching K-pop

The Transitional Justice Working Group says North Korea has executed some of its citizens for watching videos of K-pop music (i.e., Korean pop music from South Korea). Kim Jong Un had previously made it illegal to possess or distribute entertainment from South Korea, with violations punishable by death. Most of the executions occurred between 2012 and 2014, but the number of unreported killings is likely to be higher. News from inside North Korea often comes to the West years later, so similar incidents are believed to ​​have occurred in 2021.

By / Nov 5

On Nov. 4, the Biden administration issued a COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). The stated purpose of this rule is “to protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID-19 by strongly encouraging vaccination.” The intent to issue this rule was announced in September by President Biden, but the text of the rule was issued in November.

What is OSHA?

The Occupational Safety and Health Administration (OSHA) is under the Department of Labor. Established by President Richard Nixon in 1970, the agency’s mission is “to ensure safe and healthful working conditions for workers by setting and enforcing standards and by providing training, outreach, education, and assistance.” OSHA’s jurisdiction covers most private and public sector employers, making the vaccine mandate announcement one of the most wide-reaching to date. 

This is not the first time that OSHA has intervened in the COVID pandemic. In June of this year, they announced a rule requiring healthcare employers to provide protective equipment such as masks and gloves, ensure proper ventilation, and screen patients at risk for COVID. This emergency standard was limited to healthcare employers (because of the group’s high-risk factors), though additional optional measures were disseminated for other industries such as manufacturing, retail, and food supply chains. 

What is the proposed rule?

The rule states that “covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.”

In short, the rule requires employers with 100 or more employees to submit their employees to weekly COVID-19 testing and masking requirements, or the employees can opt to receive one of the three vaccines that are approved or authorized for the prevention of COVID-19 in the U.S.: Pfizer, Moderna, or Johnson & Johnson.

The OSHA rule will affect approximately 84 million private-sector workers across the country, including some 31 million who are believed to be unvaccinated.

It’s important to note that this rule doesn’t require an employee to receive the vaccine, but if they choose not to be vaccinated, they must undergo testing every week.  

What is the timeframe?

By Jan. 4, 2022 employees who work for employers with 100 or more people must be vaccinated or submit to weekly testing and masking requirements. The rule was published in the federal register on Nov. 5, and it is open for public comments for 30 days. The ERLC will be submitting public comments to OSHA about this issue.

Are there religious exemptions?

There are three exemptions listed in the rule rule:

  1. For whom a vaccine is medically contraindicated;
  2. For whom medical necessity requires a delay in vaccination; or
  3. Who are legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.

While there are stated religious liberty exemptions, it is concerning that the ETS requires each covered employer to establish and implement their own written policy regarding religious exemptions. With this rule, each employer is effectively tasked with creating their own policies, and there will be thousands of different policies throughout the country, leading to inconsistent application and confusion. The proposed rule doesn’t offer any guidance for how to structure exemptions for objectors who have sincerely held religious beliefs.

How does this affect SBC entities?

On Nov. 5, the Southern Baptist Theological Seminary (SBTS) and Asbury Theological Seminary, filed a petition with the U.S. Court of Appeals for the 6th Circuit to challenge the OSHA rule. Dr. Albert Mohler, president of SBTS, stated that “it is unacceptable for the government to force religious institutions to become coercive extensions of state power. We have no choice but to push back against this intrusion of the government into matters of conscience and religious conviction.”

According to the Alliance Defending Freedom, 

“the lawsuit The Southern Baptist Theological Seminary v. Occupational Safety and Health Administration, alleges that the Biden administration lacks jurisdiction to dictate employment practices to religious institutions, lacks constitutional and statutory authority to issue the employer mandate, and that the mandate failed to meet the required procedural hurdles. In short, the federal government cannot coerce individuals nationwide to undergo medical treatment, and it lacks authority to conscript employers to compel that result.”

Is this the proper role of the government?

This rule raises questions and concerns about limits of government regulation both in terms of public health and safety measures. While governments do have heightened responsibilities during a public health crisis, the state must not use public health emergencies to overstep and exert authority that the Constitution has not entrusted it with.

ERLC’s Acting President, Brent Leatherwood stated:

From the outset of the challenges presented by COVID-19, we have consistently argued that  guidance from elected officials and public health experts is the path to take in lieu of mandates –– particularly as it relates to religious entities. This proposed rule is not that. Some private institutions will raise serious objections to government overreach. The better route for the state to take is providing clear, consistent, and coherent counsel that our fight is against a deadly disease, not one another.

How will the ERLC engage?

The OSHA interim final rule is open for public comments through Dec. 6. As we have done on previous occasions with proposed rules affecting churches and religious organizations, the ERLC will submit public comments expressing concerns with the scope of the regulation on behalf of our convention of churches. 

How should Christians think about this?

The ERLC has emphatically stated since the beginning of this public health challenge that government officials should opt for providing guidance over mandates, while at the same time seeking to uphold the free exercise of religion. Elected officials and local health experts should be actively partnering with pastors and churches to serve local communities as this pandemic rages on.

By / Oct 27

Since 2016, Lorie Smith, founder of the web design firm 303 Creative, has been in the process of challenging a Colorado law which violates her First Amendment rights. It is the same law that was used to target Jack Phillips and which led to the landmark Masterpiece Cakeshop v. Colorado Civil Rights Commission case.

Like Phillips, and like Barronelle Stutzman of the Arlene’s Flowers Inc. v. Washington case, Lorie Smith is a creative professional who serves anyone through her business. But, as Maureen Collins of Alliance Defending Freedom has said, “While she [Smith] will create web designs for anyone, she doesn’t create all messages. She can’t use her design skills and creativity to express messages that violate her deeply held religious convictions.” And therein lies the conflict. Colorado’s Anti-Discrimination Act is a law “that would force her to create messages with which she disagree[s],” a flagrant violation of Smith’s Constitutional rights. 

What is this case about?

At its core, this case is concerned with the constitutional rights of people of religious faith and the assurance that those who own and operate private businesses can do so according to their deeply held beliefs, without the threat of government coercion.

More specifically, 303 Creative v. Elenis is a case intended to challenge a Colorado state law “that forces her [Lorie Smith] to use her artistic talents to promote same-sex ceremonies” and that “forbids her and her studio from publicly expressing . . . her belief that marriage is the union of one man and one woman and why she can’t use her artistic talents to promote a same-sex marriage” (emphasis added). 

How did the case begin?

ADF attorneys filed a lawsuit in September 2016 that challenged the Colorado law in federal court. Recognizing the threat that portions of Colorado’s Anti-Discrimination Act posed to the exercise of Smith’s Constitutional rights, ADF filed a lawsuit on Smith’s behalf that’s commonly referred to as a “pre-enforcement challenge, which allows citizens to challenge a law that threatens their rights before the government enforces it against them.” 

Smith’s assessment was right — her ability to freely exercise her constitutional rights were at stake. Unfortunately, her 2016 challenge to Colorado law was unsuccessful. After nearly three years, said Collins, “a judge issued a final ruling allowing Colorado officials to force Lorie to design and publish websites promoting messages that conflict with her religious beliefs.”

What happened next?

In October 2019, Smith “appealed to the Tenth Circuit, asking it to reverse the lower court’s decision.” In November 2020, her case was heard by the 10th Circuit, which ultimately ruled against Smith, saying, in effect, “that Colorado can force Lorie to express messages and celebrate events that violate her faith.” 

It was a disappointing ruling for people of religious faith across this country. 

Where do things stand now?

On Sept. 24, 2021, ADF filed a petition with the U.S. Supreme Court asking it to hear Smith’s case. Citing the 10th Circuit court’s admission that the Colorado law “does compel speech based on viewpoint” and “create a double standard,” and its direct conflict “with the 8th and 11th Circuits, as well as the Arizona Supreme Court, which have all ruled that the government may not force artists to speak in violation of their beliefs,” ADF and Smith are “asking the Supreme Court to sort this out.” 

On Feb. 22, the Supreme Court agreed to hear 303 Creative v. Elenis. Commenting on this case, Neal Hardin of Alliance Defending Freedom, said, “The government shouldn’t be allowed to weaponize a law to force artists like Lorie to create and communicate messages that violate their beliefs. Free speech is for everyone, not just those who agree with the government.”

The ERLC is grateful that the Supreme Court has agreed to hear this case. It has far-reaching free-speech and religious liberty implications in and beyond the state of Colorado, where the case originated. Pray that the Supreme Court will overturn this “unprecedented” and “staggering” ruling by the 10th Circuit, and by doing so, that it will reaffirm the constitutional rights of religious persons that are enshrined in our country’s founding documents. 

By / May 24

In America, religious liberty is often called our “first freedom.” Yet religious liberty today seems to be under constant threat. But why?

What is religious liberty? To whom does it “belong”? And why is it important for our society, generally, and more specifically, for the mission of the church? Andrew T. Walker, author of the recent book, Liberty for All, spent time answering these questions.

Walker’s book deals thoroughly with religious liberty and will help you make sense of why it is so important. Furthermore, it will help shape your efforts toward preserving this “first freedom” for subsequent generations. 

Religious liberty is a term we hear thrown around a lot today. And though the term is used often, our culture seems to lack a consensus on exactly what it means.

How would you define religious liberty? 

There are two main ways to think about religious liberty: (1) As an intrinsic property where individuals (and their communities) should be free to come to conclusions about religious convictions voluntarily; and (2) as an extrinsic property where individuals (and their communities) should be free to live out the implications of their faith in every arena of life. Religious liberty helps secure a forum for authentic gospel proclamation. It is a forerunner to authentic gospel acceptance. It is the pathway for authentic gospel ethics.

What are some of the biggest challenges and/or threats to religious liberty in America today? 

The biggest challenge to religious liberty is its politicization as a culture war issue rather than as an issue central to the experiment of constitutionalism. Because religious conservatives are on the defensive in an increasingly secularizing society, it has become a tool to retreat to, which is both a necessary safe harbor but not a sufficient safe harbor in the long run. To possess religious liberty is to possess the opportunity to make arguments, which should seek to persuade or at least invite goodwill disagreement. Where even goodwill disagreement is impossible, religious liberty will not be sufficient in the long run when measured against a secularizing society that defines reasonableness in exclusively secular terms.

You say that religious liberty in our society “has been sadly situated as a culture war issue,” when what it needs “is an apologetic arising from Christian conviction.” What do you mean by this? 

When Christians talk about religious liberty, it is more often done in the context of it being a constitutional guarantee. While some biblical arguments have been made for religious liberty often by appeals to isolated texts, there has really been no concerted effort to tie religious liberty to biblical theology, or to situate it as a foundational pillar to public theology. That’s what my book attempts to do — to make an argument that religious liberty has theological coherence within the full-sweep of the biblical canon that is a prerequisite for how we understand our place in, and engagement with, the world.

If religious liberty is a principle founded in the Christian faith, does this mean that it should only be extended to professing Christians? In other words, who “qualifies” for the exercise of religious freedom? Why? 

The argument I make in Liberty for All is that when we understand the themes of eschatology, anthropology, and missiology, we come to understand that religious liberty is an essential component to life in this age, which necessarily means it applies to all, religious and nonreligious alike. 

Just as one example to anchor biblical thinking: We live at a time where not everything has been brought under the reign of Christ in a climactic sense. If we are living in a time between the ascension of Christ and the second coming of Christ, what are we to do with non-Christians who do not believe like we do? Banish them? Make them second-class citizens? Religious liberty helps address the interim period the church finds itself in and how it should relate to non-Christians.

Should Christians advocate for the religious liberty of other faith traditions, then? What might be some eventual consequences of not doing so? 

Yes. If we treat our liberty in an American regime as uniquely superior to others or more deserving because of Christianity’s history in America, we will find ourselves isolated and alone if and when Christianity falls out of favor. We all hang together or hang separately, so to speak, when it comes to religious liberty, and that’s because our rights are reciprocally ordered within our constitutional regime.

You talk in the book about where a government’s jurisdictional lines are drawn (or should be) when it comes to matters of religious liberty. Why does a government not have the authority “to declare what is or is not Christian,” for instance, and what might be some of the consequences when it attempts to exercise that kind of authority? 

Because, simply, declarations of what is true religion or false religion has not been authorized or delegated to the government according to Scripture. Government is a temporal institution not fit to make pronouncements on religion. Moreover, we should not want it to do that, especially in those environments where Christians are in the minority. When a government believes it can make such pronouncements, it is a government that is over-stepping its bounds. It is the opposite of a “limited government.” Practically speaking, it’s also futile. England has an established church, but its status in the culture is limited almost exclusively to the ceremonial. When church and state ally themselves to one another, what results are dead churches fueled by nominalist religion.

You argue that “the internal logic of the gospel recognizes and even demands religious liberty.” Can you expound on this? 

Succinctly, to truly believe the gospel means that one voluntarily believes the gospel, which presupposes a context where there is no coercion or penalty for conversion. Moreover, to truly believe the gospel, it must be grasped sincerely and by the individual compelled by the gospel’s message. The state is thus entirely ineffective at effectuating belief within the person. If that’s the case, religion should not be something attended to by the state.

Religious liberty, of course, is not merely a dynamic between citizens and their government, but also between citizens and their neighbors. As you argue in the book, for the Christian, religious liberty “is integral to the advancement of the gospel.”

How does religious liberty relate to the mission of the church? 

When we share the gospel, are we going to go to jail when doing so? When someone purports to accept the gospel, will they be guilty of violating a blasphemy law? How you answer that question reveals the inevitability of some sort of religious liberty regime, whether for good or ill.

Since religious liberty and the mission of the church are so closely tied to one another, what can Christians be doing now to ensure that this “first freedom” of ours endures in American society?  

The best thing we can do is study, learn, and retrieve a tradition that is so central to the Baptist experiment in North America. Baptists have largely overlooked how religious liberty is one of their key distinctives. That’s one of the goals of my book — to recover the Baptist distinctive of religious liberty.

By / Apr 23

On April 20, the United States Commission on International Religious Freedom (USCIRF) released its 2021 annual report. As the report mentions, USCIRF was created as a result of the International Religious Freedom Act of 1998 (IRFA). USCIRF “is an independent, bipartisan U.S. government advisory body, separate from the U.S. Department of State, that monitors religious freedom abroad and makes policy recommendations to the president, secretary of state, and Congress.”

The recommendations in USCIRF’s report are based “on its statutory mandate and the standards in the Universal Declaration of Human Rights and other international documents.” The report, which in its current form is 108 pages long, assesses religious freedom violations and progress during calendar year 2020 in 26 countries and makes independent recommendations for U.S. policy for both the Biden administration and for Congress.

The report’s primary focus is on two groups of countries. The first group includes those countries that USCIRF recommends the State Department should designate as “countries of particular concern” (CPCs). IRFA defines CPCs as countries where the government engages in or tolerates “particularly severe” violations of religious freedom, such as torture or prolonged detention without trial. The second group are countries that USCIRF recommends the State Department should place on its Special Watch List (SWL). The SWL is for countries where the government engages in or tolerates “severe” violations of religious freedom that are ongoing and egregious. In addition to these groups, the report also includes USCIRF’s recommendations of violent nonstate actors for designation by the State Department as “entities of particular concern” (EPCs). 

In this year’s report, USCIRF recommends 14 countries to the State Department for designation as CPCs. Ten countries were previously designated as CPCs: Burma, China, Eritrea, Iran, Nigeria, North Korea, Pakistan, Saudi Arabia, Tajikistan, and Turkmenistan. Four other countries are also recommended to be added: India, Russia, Syria, and Vietnam. 

The report also recommends 12 countries be included on the SWL. Two countries—Cuba and Nicaragua—had previously been included on the list. The 10 other countries recommended for inclusion are Afghanistan, Algeria, Azerbaijan, Egypt, Indonesia, Iraq, Kazakhstan, Malaysia, Turkey, and Uzbekistan. 

Finally, seven nonstate actors are recommended to be designated as EPCs: al-Shabaab, Boko Haram, the Houthis, Hay’at Tahrir al-Sham (HTS), Islamic State in the Greater Sahara (ISGS), Jamaat Nasr al-Islam wal Muslimin (JNIM), and the Taliban.

The ERLC is deeply committed to advocating for religious freedom around the world. In 2019, we released a short film titled “Humanity Denied: Religious Freedom in North Korea.” The film features defectors from North Korea as well as church leaders and human rights activists in South Korea. China has increased its persecution of Christians, Uyghur Muslims, and other ethnic and religious minorities. This is extremely concerning, and the ERLC has been calling on the U.S. government to hold China accountable for their religious freedom abuses and to counter China morally.

In addition to country-specific advocacy, the ERLC has also worked on initiatives to fight against blasphemy laws and the rise of anti-Semitism. We are dedicated to advocating for the vulnerable and oppressed around the world and to fighting for the rights of our persecuted brothers and sisters.

ERLC is grateful for the work of the USCIRF and encourages all Christians to support the work of this advisory body. We can also use this report, as we do resources from the Joshua Project and Operation World, as a prayer guide for the nations and for persecuted Christians around the globe. Here are four ways, recommended by Casey B. Hough, that Christians can use USCIRF’s annual report in daily prayer for the nations:

  1. We can pray for the endurance and faithfulness of Christians who live in the countries listed in the report.
  2. We can pray for those who have not yet heard the good news of Jesus Christ because of the difficulties that missionaries encounter with the government.
  3. We can pray with gratefulness to God for the religious freedom that he has granted us at this time in history.
  4. Finally, we can pray for God to use the efforts of USCIRF and other international organizations to quell the religious freedom violations that exist around the world so that the gospel might advance without hindrance (Col. 4:3).
By / Mar 29

Nearly 300 years ago, Jonathan Edwards penned his now-famous Resolutions. According to Stephen Nichols, these 70 resolutions were recorded by Edwards at a moment when he was nearing the end of his ministerial training, taking “advantage of the opportunity to pause and reflect on the type of person he wanted to be and the way in which he wanted to live his life.” In effect, with his Resolutions, Edwards wrote a “system of checks and balances he would use to chart out his life–his relationships, his conversations, his desires, his activities.” Informed by the Word of God like few others, Edwards, with this “advice to himself,” set guardrails to keep his feet on the way of faithfulness. 

We need a resolution

Undoubtedly, countless of us have benefited from Edwards’ advice. It is in that vein that I propose a set of resolutions for the day in which we live, specifically in our American cultural-political context. 

What kind of people are we becoming? What kind of life do we want to live? These were the sorts of questions that Edwards paused and asked himself, and these are the very questions that we must pause and, with Christlike humility, ask of ourselves. In a political culture rife with disrespect, slander, and self-serving theatrics, behaviors that the church is regularly seen participating in, we find ourselves in dire need of our own Godward guardrails.

So, as we go forward, may the following resolutions serve as a system of checks and balances meant to stay our feet on the way of Christ and engage others with the heart of Christ. 

10 political resolutions for 2021 and beyond

I want to begin with Edwards’ own words: “Being sensible that I am unable to do anything without God’s help, I do humbly entreat him by his grace to enable me to keep these resolutions, so far as they are agreeable to his will, for Christ’s sake.”

  1. Resolved, to view others, regardless of religious or political affiliation, as persons made in the image of God, and to treat them as such. 
  2. Resolved, in politics, as in life, “to act justly and to love mercy and to walk humbly with my God” (Micah 6:8).
  3. Resolved, to be devoted to the truth, most especially God’s Word, but, likewise, truth generally, taking care not to purport that which is untrustworthy and/or false. 
  4. Resolved, to act instinctively toward others not with skepticism or cynicism but, regardless of one’s religious or political affiliation, to assume the best and give the benefit of the doubt unless proven otherwise. 
  5. Resolved, to always speak and act with charity. 
  6. Resolved, where appropriate, to exercise the courage required to participate in local, state, and/or federal civil service, whether as an official or simply an engaged citizen, for “the peace and prosperity of the city” where God has placed me (Jer. 29:7).
  7. Resolved, as far as it depends on me, to never allow political affiliation to dissolve my fellowship with a brother or sister in Christ, a family member, a friend, or a neighbor.
  8. Resolved, to hold elected officials accountable to the standards of the office to which they’ve been appointed, and to do so with charity and respect, for their good, for the good of those they represent or govern, and for the public witness of the church.
  9. Resolved, to be a good church member, family member, friend, neighbor, and citizen. 
  10. Resolved, to reserve my first and strongest allegiance to Christ and his kingdom, recognizing that “to love my country best I must love Christ first.”

For Christ and the common good

As Americans, we have the pleasure and the privilege of engaging directly in the politics that govern our country. As Christians, we have the responsibility to do so in a way that is pleasing to the God who made us and “determined our appointed times and the boundaries of where we live” (Acts 17:26). It is a privilege and responsibility that should be exercised with integrity, great care, and sobriety. May these resolutions serve as guardrails for faithful Christian civic engagement, for the glory of God and the good of our society. And, like Edwards, may these resolutions signal and enact our “utmost determination to bring every area of our life under subjection of the Lordship of Christ.” 

By / Mar 8

In a clear victory for religious liberty, the Supreme Court ruled today that governments can be held accountable for past violations of First Amendment freedoms. The 8-1 ruling in a case entitled Uzuegbunam et al. v. Preczewski et al. held that a “request for nominal damages” may be used to establish legal standing to address a previous violation of a constitutional right.

Justice Thomas delivered the opinion for the court, joined by Justices Breyer, Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh, and Barrett. Kavanaugh concurred separately to agree in part with Chief Justice Robert’s dissent. Chief Justice Robert wrote the dissenting opinion alone. 

Below are key quotes from both the majority opinion, concurrence, and dissent highlighting how the court reached their decision. Page numbers from the court’s decision are given for each quote, but legal citations are omitted for clarity of reading.

For more details on the religious liberty issues present in this case, see our explainer here

OPINION: Thomas, Breyer, Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh, Barrett

“This case asks whether an award of nominal damages by itself can redress a past injury. We hold that it can.” (1)

“[The college] initially attempted to defend the policy, stating that Uzuegbunam’s discussion of his religion “arguably rose to the level of ‘fighting words.’” (2-3)

“The Eleventh Circuit . . .  stated that a request for nominal damages can save a case from mootness in certain circumstances, such as where a person pleads but fails to prove an amount of compensatory damages. But, because the students did not request compensatory damages, their plea for nominal damages could not by itself establish standing.” (3)

“The argument that a claim for compensatory damages is a prerequisite for an award of nominal damages also rests on the flawed premise that nominal damages are purely symbolic, a mere judicial token that provides no actual benefit to the plaintiff. . . . But this view is against the weight of the history discussed above, and we have already expressly rejected it. Despite being small, nominal damages are certainly concrete.” (9)

“This is not to say that a request for nominal damages guarantees entry to court. Our holding concerns only redressability.” (11)

“We hold only that, for the purpose of Article III standing, nominal damages provide the necessary redress for a completed violation of a legal right.” (12)

“Applying this principle here is straightforward. For purposes of this appeal, it is undisputed that Uzuegbunam experienced a completed violation of his constitutional rights when respondents enforced their speech policies against him. Because “every violation [of a right] imports damage,” nominal damages can redress Uzuegbunam’s injury even if he cannot or chooses not to quantify that harm in economic terms.” (12)

CONCURRING: Kavanaugh

“I agree with the Court that, as a matter of history and precedent, a plaintiff’s request for nominal damages can satisfy the redressability requirement for Article III standing and can keep an otherwise moot case alive. I write separately simply to note that I agree with the Chief Justice and the Solicitor General that a defendant should be able to accept the entry of a judgment for nominal damages against it and thereby end the litigation without a resolution of the merits.” (1)

DISSENTING: Roberts

“In the Court’s view, nominal damages can save a case from mootness because any amount of money—no matter how trivial—“can redress a past injury.” But an award of nominal damages does not alleviate the harms suffered by a plaintiff, and is not intended to. If nominal damages can preserve a live controversy, then federal courts will be required to give advisory opinions whenever a plaintiff tacks on a request for a dollar. Because I would place a higher value on Article III, I respectfully dissent.” (1)

“We likewise should know that a bare request for nominal damages is not justiciable because the plaintiff cannot “benefit in a tangible way from the court’s intervention.”  (4-5) 

“To satisfy Article III, redress must alleviate the plaintiff ’s alleged injury in some way, either by compensating the plaintiff for a past loss or by preventing an ongoing or future harm. Nominal damages do not serve these ends where a plaintiff alleges only a completed violation of his rights. They are not intended to approximate the value of tangible or intangible harms, or the deterrent effect required to prevent future misconduct. And they are not calculated with reference to either of these purposes. Because such an award performs no remedial function—and because “[r]elief that does not remedy the injury suffered cannot bootstrap a plaintiff into federal court”—nominal damages cannot preserve a live controversy where a case is otherwise moot.” (9)

By / Mar 8

WASHINGTON, D.C., Feb. 26, 2021—The U.S. Supreme Court sided today with a former Georgia college student, Chike Uzuegbunam, who sued his school after it prevented him from expressing religious views in a free-speech zone on campus. The significance of today’s ruling could reach far beyond the circumstances of this case because it ensures people are able to hold government officials accountable for violating First Amendment rights.

Russell Moore, president of the Southern Baptist Convention’s Ethics & Religious Liberty Commission, commented on the decision:

“This clear 8-1 ruling by the Supreme Court today is significant not only for Chike Uzuegbunam, but for all those who might one day need to appeal to the courts for justice. As we argued in our amicus brief to the Court, it is a fundamental harm for the state to infringe upon a person’s right to religion or free expression. Today’s ruling strengthens every American’s right to seek and obtain justice when those foundational rights are infringed.”

In the Uzuegbunam v. Preczewski 8-1 ruling, Justice Clarence Thomas said that Uzuegbunam — who was silenced by Georgia Gwinnett College officials even after he had obtained a permit to share his faith and hand out religious literature — can continue his lawsuit despite the fact that the school ultimately changed course and Uzuegbunam subsequently graduated.

The ERLC filed an amicus brief in support of Uzuegbunam, which argued: “[N]ominal damages provide moral and legal recognition to a valid claim, and they are critical to the vindication of constitutional rights. That is especially true with respect to free speech and free exercise rights, which are at issue here. Often, the violation of those rights causes no quantifiable economic loss. Yet, their invasion cuts to the core of our constitutional freedoms.”

Chief Justice John Roberts was the dissenting justice in the case.

To request an interview with Russell Moore, contact Jill Waggoner by email at [email protected] or call 202-547-0209.