By / May 13

In this episode, Brent and Lindsay discuss The Women’s Health Protection Act—the most pro-abortion legislation—failing in the Senate, the Supreme Court gathering again since the leak, and a giant black hole at the center of the Milky Way. They also talk about the sexual revolution and how to minister the truth of God’s design in the midst of it. 

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  • Dobbs Resource Page | Many Christians are aware that an important case about abortion is being decided at the Supreme Court this June. But for many, this case is confusing and wrapped in a lot of legal jargon. The ERLC wants to help with that, so we’ve created a resource page that will help you and your church understand what this case means, what could happen if Roe v. Wade is overturned, and how your church can prepare to serve vulnerable women and children in the aftermath. To learn more about the Dobbs case and how you can pray, visit ERLC.com/Dobbs.
By / Apr 29

Every year the Supreme Court issues rulings in about a half dozen cases that have significant implications for religious liberty, human dignity, freedom of speech, and other concerns of special interest to Christians. Many Americans, though, find this process vague and mysterious and only hear about the decision the day it is reported by the news media. Here is what you should know about the process and when you can expect Supreme Court rulings. 

What are Supreme Court opinions?

An opinion announces a decision and provides an explana­tion for the decision by the court. It explains the legal rationale that the justices relied upon to reach the decision.

The main opinion is the binding decision of the court. If all justices agree to the ruling, it is a unanimous opinion. If at least half the justices agree, it is a majority opinion. If the decision is made by less than the majority (e.g., because one or more justices recuse themselves and didn’t vote), it would be a plurality opinion. 

The main opinion is typically written by one justice. The most senior justice in the majority gets to assign the author of the opinion, whether to themselves or to another justice.

Because the justices do not always completely agree about the reasons for an opinion, there are often multiple opinions issued. As the American Bar Association explains, “Jus­tices who agree with the result of the main opinion, or the resolution of the dispute between the two par­ties, but base their decision on a different rationale may issue one or more concurring opinion(s). Justices who disagree with the main opinion in both result and legal rationale may issue one or more dissenting opinion(s).”

When does the Supreme Court release opinions?

The Supreme Court operates on an annual rhythm known as the Term. The Term for the Supreme Court begins, by federal law, on the first Monday in October and lasts until the first Monday in October of the next year. 

The Term is divided between “sittings,” when the justices hear cases and deliver opinions, and intervening “recesses,” when they consider the business before the court and write opinions. Sittings and recesses alternate at approximately two-week intervals.

Technically, the court recesses at the end of June, but the work of the justices continues around the year. During the summer they do such work as considering motions and applications, and make preparations for cases scheduled to be argued later in the year.

Opinions are typically released on Tuesday and Wednesday mornings and on the third Monday of each sitting, when the court takes the bench but no arguments are heard. Opinion release days are highlighted in yellow on the calendar of the court’s website. They begin being released at 10 a.m. EST.

Decisions that are unanimous are released sooner than those that have concurring and dissenting opinions. In general, though, the earliest that opinions are released is in December. Most come in April, May, or June, with the most controversial tending to come nearer to the end of the sitting. Court sessions typically continue until late June or early July. 

How do we know which opinions will be released on a given day?

We can’t. The Supreme Court doesn’t announce in advance which cases will be decided, so no one knows until the ruling is handed down. The court doesn’t even notify any of the lawyers in a case before it issues an opinion. Unless it is the last day before the summer recess, the lawyers don’t know whether they will get a decision in their cases.

The court also doesn’t specify on a given day how many opinions will be released — and doesn’t even announce when it is finished issuing opinions for the day. Court watchers, though, have a useful rule of thumb — sometimes call the R-number system which helps them know when the court is done releasing opinions that day. As SCOTUSBlog explains:

When the opinions are eventually published in the U.S. Reports, the official bound version of the court’s opinions, they are published chronologically, with the opinions for a particular day published in order of seniority. The R number, which appears to the left of the opinion date/docket number/case name on the court’s website, refers to the order in which the opinion will appear in the U.S. Reports. But because opinions are announced in order of reverse seniority, the opinions on the court’s website can’t be assigned an R number until all of the opinions have been posted. Therefore, the posting of the R numbers is a sign that the court is done issuing opinions for that day.

How does the court decide the order in which opinions will be released on a given day?

The opinions are posted by the court in order of reverse seniority. The chief justice, John Roberts, is always the most senior. The other justices are ranked according to how long they’ve been with the court. The current order of seniority is Clarence Thomas, Stephen Breyer (who just heard his last case and will retire), Samuel Alito, Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Because of seniority, if Justice Barrett has any opinions, hers are released first, followed by Justices Kavanaugh, Gorsuch, Kagan, and so on through the chief justice.

There are exceptions to this general reverse-seniority rule, for example, when the justices are announcing decisions in two or more cases involving similar issues and it makes more sense to announce one first.

Which opinions are the ERLC most concerned with this Term?

The ERLC has advocated on behalf of Southern Baptists in six different cases through filing amicus curie (friend-of-the-court) briefs with the Supreme Court. You can learn more about those cases at erlc.com/SCOTUS.

By / Jan 28

In this episode, Brent and Lindsay discuss Justice Breyer’s retirement announcement, latest developments in Ukraine, and Omicron’s slow-down. They are talk about the critical work of pregnancy resource centers, the irony of the transgender revolution, and creation care. 

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  1. Justice Breyer to retire; Context of the announcement
  2. Developments with Ukraine
  3. Omicron loosening its grip
  4. Jeopardy winning streak for transgender woman 

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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 / Jan 13

Today, in a 6-3 vote, the U.S. Supreme Court blocked the Biden administration’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), issued through the Occupational Safety and Health Administration (OSHA). On Jan. 7, the Supreme Court heard oral arguments for emergency requests challenging the Biden administration’s vaccine mandates. Justices Breyer, Sotomayor, and Kagan dissented in this opinion.

What was the OSHA mandate?

The stated purpose of the OSHA mandate was “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.

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 required employers with 100 or more employees to submit their employees to weekly COVID-19 testing and masking requirements, or the employees could 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 would have affected approximately 84 million private-sector workers across the country, including some 31 million who are believed to be unvaccinated.

In the opinion released today, the majority on the court noted, “OSHA has never before imposed such a mandate. Nor has Congress.” In fact, Congress declined to enact any measure similar to the OSHA mandate. They also noted that “(p)rior to the emergence of COVID–19, the Secretary had used this power just nine times before (and never to issue a rule as broad as this one). Of those nine emergency rules, six were challenged in court, and only one of those was upheld in full.”

What did SCOTUS say today? 

The majority writes, “Permitting OSHA to regulate the hazards of daily life––simply because most Americans have jobs and face those same risks while on the clock––would significantly expand OSHA’s regulatory authority without clear congressional authorization.” 

They go on to state, “It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace. This ‘lack of historical precedent,’ coupled with the breadth of authority that the Secretary now claims, is a ‘telling indication’ that the mandate extends beyond the agency’s legitimate reach.”

Justices Gorsuch, Thomas, and Alito clearly spelled out the heart of the issue in their concurring opinion:

The central question we face today is: Who decides? No one doubts that the COVID–19 pandemic has posed challenges for every American. Or that our state, local, and national governments all have roles to play in combating the disease. The only question is whether an administrative agency in Washington, one charged with overseeing workplace safety, may mandate the vaccination or regular testing of 84 million people. Or whether, as 27 States before us submit, that work belongs to state and local governments across the country and the people’s elected representatives in Congress. This Court is not a public health authority. But it is charged with resolving disputes about which authorities possess the power to make the laws that govern us under the Constitution and the laws of the land.

Ultimately, the court ruled that OSHA does not have the authority to develop such a broad sweeping policy without Congress’ clear authorization. 

What about healthcare workers?

In a separate decision released today, the court by a 5–4 vote, allowed the administration’s vaccine mandate for workers in most healthcare settings that receive Medicare or Medicaid reimbursement, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies. While the OSHA mandate allowed weekly testing for unvaccinated employees, the mandate for healthcare workers does not. Justices Thomas, Alito, Gorsuch, and Barrett dissented in this decision.

The court reasoned that “Congress has authorized the Secretary [of Health and Human Services] to impose conditions on the receipt of Medicaid and Medicare funds that ‘the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services’” and that “the Secretary did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID–19.”

The dissenting justices argued that the government did not sufficiently show that they have the statutory authority to issue the rule. Additionally, in Justice Alito’s dissent, it was maintained that this rule harmfully extends the Executive Branch’s authority and “will ripple through administrative agencies’ future decision making.”

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.

The Southern Seminary lawsuit was consolidated with multiple other cases that made up the OSHA case that the Supreme Court heard on Jan. 7, with the Alliance Defending Freedom representing the groups.

Additionally, the Centers for Medicare & Medicaid Services (CMS) vaccine mandate affects faith-based organizations such as the Baptist Homes and Healthcare Ministries, Christian ministries that provide independent living and skilled nursing care to the aging and elderly.  

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. Moreover, we have continually advised elected officials and local health experts to actively seek partnership opportunities with pastors and churches in order to serve local communities as this pandemic rages on.

Brent Leatherwood, ERLC’s acting president, remarked on today’s decisions:

As any student of American civics will tell you, every two years, we cast ballots to determine who should represent us in Congress –– the legislative arm of our federal government that is tasked with establishing policies of national interest. This is a simple rule of our constitutional system, and it is where the U.S. Supreme Court grounded today’s decision on the OSHA mandate. The court rightly decided the rule was far too broad and vast in its reach to be developed by an agency in the Executive Branch. The court did not deny more targeted regulations could be utilized in certain settings, which is why it allowed the CMS requirement to move forward in healthcare facilities. Though the goal of achieving a higher vaccination rate is proper and warranted, ultimately, a policy of this magnitude requires Congress to speak and, thus far, it has been silent.

During this ongoing pandemic, the ERLC will continue to represent the interests of Southern Baptist before the courts, Congress, and the administration.

By / Jan 7

Today, the U.S. Supreme Court will hear oral arguments in emergency requests challenging the Biden administration’s vaccine mandates. The justices have declined to hear oral arguments in cases regarding state-level mandates, and this is the first case related to vaccine mandates they have agreed to hear. 

What are the Biden administration’s vaccine mandates?

There are two vaccine mandates that the Biden administration has issued — one dealing with large employers and the other dealing with healthcare workers. 

OSHA vaccine mandate

On Nov. 4, the Biden administration, through the Occupational Safety and Health Administration (OSHA), 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.

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. 

CMS vaccine mandate

The second vaccination mandate is issued from the Centers for Medicare & Medicaid Services (CMS) and requires COVID-19 vaccinations for workers in most healthcare settings that receive Medicare or Medicaid reimbursement, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies. 

The key difference between the two mandates is that the OSHA mandate allows weekly testing as an alternative to receiving the vaccine.

Are there religious exemptions?

There are three exemptions listed in the OSHA 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 OSHA rule doesn’t offer any guidance for how to structure exemptions for objectors who have sincerely held religious beliefs.

The CMS rule also allows for religious exemptions and states that “employers have the flexibility to establish their own processes and procedures, including forms.” It also states, “we point to The Safer Federal Workforce Task Force’s ‘request for a religious exception to the COVID–19 vaccination requirement’ template as an example.”

How did these cases reach the Supreme Court?

After the OHSA mandate was issued, the U.S. Court of Appeals for the 5th Circuit ordered a stay of the vaccine mandate and halted enforcement. According to the Alliance Defending Freedom, 

“ . . . multiple lawsuits were filed all over the country, allowing the government to seek a consolidation and transfer to a randomly designated court. The 6th Circuit was selected to handle the consolidated OSHA case. The three-judge panel for the 6th Circuit lifted the stay previously issued by the 5th Circuit that had halted enforcement of the vaccine mandate for private employers with 100 or more employees. In a separate order only days before, a group of eight judges on the 6th Circuit indicated their view that the mandate is unlawful.”

OSHA has stated that it will be exercising “enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”

Following decisions by the Court of Appeals for the 5th, 8th, and 11th Circuit, the United States District Court and the Northern District of Texas, the CMS vaccine requirement is preliminary enjoined in 25 states. CMS announced that those states are not required to comply, pending further developments in litigation. However, in the states and the District of Columbia, the rule will be implemented and enforced, following a modified timeline. The deadline for implementing Phase 1 is Jan, 27, 2022, and the deadline for Phase 2 implementation is Feb. 28, 2022.

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.”

The Southern Seminary lawsuit has been consolidated with multiple other cases that now make up the OSHA case SCOTUS is hearing today, with the Alliance Defending Freedom representing the groups.

Additionally, the CMS vaccine mandates impacts faith-based organizations such as the Baptist Homes and Healthcare Ministries, Christian ministries that provide independent living and skilled nursing care to the ageist and elderly.  

Is this the proper role of the government?

These rules raise 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.

How will the ERLC engage?

The OSHA interim final rule is open for public comments through Jan. 19, 2022. 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 / Dec 31

Between a new president taking office and COVID-19 variants causing a resurgence in the pandemic, 2021 has been a year of challenges and changes. (See, for example, “10 significant international human rights events of 2021.”) Whether 2022 will be as tumultuous remains to be seen. But there are already numerous events that are expected to have significant effects on the world in the coming year. Here are five to watch in 2022. 

Supreme Court to rule in Dobbs case

During the summer, the U.S. Supreme Court is expected to issue a ruling in Dobbs v. Jackson Women’s Health Organization, one of the most significant pro-life cases in a generation. The court will decide if individual states can replace the current “viability standard” (i.e., restrictions only allowed after a child can live outside the womb) with a limit on abortions after 15 weeks of pregnancy. The result could be an overturning of Roe v. Wade or a broadening of restrictions on abortions in the early stages of pregnancy.  

Beijing Olympics brings scrutiny to China’s human rights abuses

China will be hosting both the 2022 Olympic Winter Games and the 2022 Summer Olympic Games in their capital city of Beijing. Hosting the events puts a worldwide spotlight on their human rights violations, including the ongoing genocide of the Uyghur people. The United States and several allies, including Australia, Britain, and Japan, have imposed a “diplomatic boycott” of the games and will not be sending high-level official spectators. However, some groups such as the World Uyghur Congress want Olympic athletes to use the games to raise awareness about the persecution of Uyghurs and other groups within China.

2022 midterm elections could lead to shift in partisan power

Midterm elections are the national elections in the U.S. that occur at the two-year midpoint of a president’s four-year term. Because members of the U.S. House of Representatives are elected for two-year terms and U.S. Senators for six-year terms, all 435 House seats and one-third of Senate seats are decided at the midterm. Additionally, in 2022, the election will decide 36 state governorships and three U.S. territory governorships.

The party of the incumbent president tends to lose seats in Congress during such elections. Over the past century there have been 26 midterm elections. Of those, the incumbent president’s party has lost an average of 29 seats in the House and four seats in the Senate. If these historical averages occur next November, Republicans stand to gain full control of the Legislative Branch. The president’s party gained seats in both houses only two times: Franklin D. Roosevelt in 1934 and George W. Bush in 2002.

Russia troop build-up on Ukrainian border could lead to European war

Russia has deployed between 120,000–150,000 troops to their border with Ukraine. The move has been perceived as a possible precursor to an invasion of the eastern region of Ukraine. Russian President Vladimir Putin has expressed concerns about Ukraine’s increasing reliance on the West, and how the country might host NATO offensive weapons systems if it becomes a NATO member. Allowing Ukraine to join NATO is deemed to be an unacceptable threat to Russia’s security, which may prompt a preemptive invasion. U.S. and Russian officials have agreed to sit down for security talks on Jan. 10. 

France and Brazil to hold presidential elections

France will hold its presidential election in April. Since Britain left the European Union, France has become the alliance’s second largest economy (after Germany) and the main military power. The result of the election, especially if incumbent President Emmanuel Macron is ousted, could have reverberations throughout Europe and the international community. 

Brazil, the largest economy in South America, is also having a general election in October. Current President Jair Bolsonaro has repeatedly indicated that he will not accept the results of the vote if he loses. This could be a threat to democratic rule in a nation that only became a democracy in 1985 after two decades of military dictatorship.

By / Dec 8

Today, the U.S. Supreme Court will hear oral arguments in Carson v. Makin, a key religious liberty case before the court this term. Here’s what you need to know about this case:

What is the case about?

This case arises out of the unique way that Maine provides free education to its 180,000 students. Every child in the United States is entitled to a free public education. In Maine, there are rural areas where students don’t have easy access to a public school. Given that limitation, some of the school districts allow parents to choose a private school in the area to teach their children. 

In order for a school to be able to participate in this program — and receive government funding — the private school must meet the state’s minimum requirements, and it must be “nonsectarian.” Functionally, this excludes a private religious school from participating in Maine’s public education program, because any school that provides religious instruction is considered “sectarian.”

In this case, three families sent their children to private schools that are accredited but do not meet the nonsectarian requirement because they are religiously affiliated. The schools aren’t approved by the State of Maine, and the families did not qualify for tuition assistance. They filed a lawsuit stating that Maine’s nonsectarian requirement violates the Constitution.

This case is a follow-up from Trinity Lutheran Church of Columbia v. Comer and Espinoza v. Montana Department of Revenue, which both dealt with the question of whether states can exclude organizations and schools from receiving public benefits simply because they are religious. Each case was decided favorably for religious liberty.

Why is this case important?

In Espinoza v. Montana Department of Revenue, the Supreme Court held, “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious” 140 S. Ct. 2246, 2261 (2020).

The Carson case is important because it would close a loophole the First Circuit opened when upholding Maine’s exclusion of “sectarian” schools from its public education system. As the brief ERLC joined on petition for certiorari explains:

Nor can a state justify discrimination against religious schools with the ploy that the First Circuit permitted here: labeling its benefit as a “substitute” for, or “rough equivalent” of, a free “secular public education,” and then arguing that such an education must be secular, so religious schools can be excluded. That result and rationale conflict with this Court’s ruling in Espinoza and would allow easy evasion of Espinoza in the context of many government benefits. This Court must reject that rationale before other states attempt to capitalize on it.

Maine had argued that it was not excluding religious schools from participating in a public education program because the public benefit offered was for a secular education. It is easy to see how states would be able to continue excluding religious organizations from public benefits simply by redefining the nature of the benefit offered.

How has the ERLC been involved?

The ERLC was involved with briefs at the petition for certiorari stage and when the case was before the Supreme Court on the merits.

The brief the ERLC joined on the merits argues that Maine’s public education system, especially in light of how Maine defended its system in the courts, does not merely exclude religious schools — it discriminates against them. The brief goes on to argue that the Supreme Court should adopt a per se rule against religious discrimination. In other words, where a state discriminates against religion, courts should immediately strike down the law rather than applying any kind of balancing test with state interests.

What’s next for this case?

The Supreme Court will hear oral arguments in this case on Dec. 8, 2021. The court will release its opinion later this term, likely in May or June of 2022. ERLC will continue to cover future developments on this case at ERLC.com.

The ERLC will always protect religious liberty before Congress, the courts, and in the public square. 

For Further Reading:

By / Dec 6

“The unwanted child.”

This disturbing phrase reverberates in one’s conscience after reading the U.S. Supreme Court opinion from the 1973 case, Roe v. Wade. Justice Harry Blackmun authored the opinion that seems more like a creative writing piece than a decision rooted in the American Constitution. If some legal analysts criticize judges for “legislating from the bench,” then Roe represents the creation, passage and implementation of a whole new frontier of law sans any legislative input.

As a consequence, Justice Blackmun laid the foundation for the modern abortion architecture we see around us in society to this day. The language and rationale he wielded has led to an unmitigated moral disaster: over 60 million preborn lives extinguished, vulnerable women and families preyed upon by predatory abortion clinics, and whole communities targeted by an unrelenting abortion industry.

With the oral arguments presented before the court last week in the case of Dobbs v. Jackson Women’s Health Organization, the nine current justices have a once-in-a-generation opportunity to revisit Blackmun’s catastrophic opinion, as well as that of Planned Parenthood v. Casey (1992). The court should not hesitate to completely do away with it –– assigning it the same place in infamy alongside such morally repugnant decisions as Dred Scott v. Sandford (1857, regarding the constitutionality of citizenship for African-Americans) and Plessy v. Ferguson (1896, creating the doctrine of “separate but equal”). In much the same way, the court can correct the grave mistakes of its past in ways that should hearten not only pro-life Americans, but all Americans.

What the court can correct 

For starters, the court could help begin to set aright what it damaged with the Roe ruling: the relationship between mothers and their children. As Christians who recognize the Genesis 3 reality in which we live, we understand nothing short of Christ’s return will truly repair the brokenness that affects our relationships in a fallen world, but we should not fail to recognize the ways Blackmun’s opinion did harm here. His reasoning essentially created a legal permission structure that pitted mothers against their children. Because of this, countless mothers have been sold the lie by the abortion industry that their lives will be burdened, less rich and rewarding, and, ultimately, less satisfying with a child in the picture. By overruling Roe and Casey, we can save a new generation of families from enduring these awful and false narratives.

In addition, the court would be taking a necessary step toward establishing a legal environment that views life as something to be protected, not discarded. Numerous experts agree that a favorable decision in Dobbs could return the question of abortion to the states where, it is estimated, upward of half the Union stands to affirm a range of prolife protections for preborn children. In some states, there will be an almost overnight effect that moves their legal posture from a culture of death to one of life.

Finally, the right opinion in this case could comport with the very best of America’s ideals. A number of citizens believe that, at its essence, America is synonymous with freedom. Whether one fully agrees with that statement or not, it is undeniable that our nation has played a role in expanding the definition of freedom around the globe. Even in our current moment, we are having a national conversation about the implications of that term for every individual. Yet it shouldn’t be lost on us that as we have this dialogue, our culture continues to steamroll the lives of millions of the tiniest individuals in our society each year. That cannot continue. The Dobbs case affords our nation a moment when we can finally decide to be consistent and loudly declare that the blessings of America’s “new birth of freedom” extend to born and preborn alike.

The reality is, it is past time for the court to dismantle the disastrous reasoning posited by Blackmun nearly 50 years ago. By affirming his words, the court robbed generations of preborn children of their dignity, an atrocity that must be rectified. And while that will go a long way toward correcting the errors of the past made by the state, it is up to Christians to realize such a decision, as momentous as it would be, is not the end of the challenge before us. In fact, it will represent the starting point for a new prolife generation. For all the good that a favorable court decision would do, there will still be mothers in crisis who are either unable or unwilling to give a child the love and care he or she needs.

It will be at this moment when the true test comes –– and the church must be ready. For it has a duty to look out for the child in all of this. To be her voice. To be her advocate. And we should stand ready to welcome her with open arms (Mark 10:14) and let her know the Author of life has wanted her all along.

By / Dec 6

On Wednesday, the U.S. Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization, one of the most important abortion cases in decades. Here are answers to a few questions you may have about this monumental case.

Will the Supreme Court overturn Roe v. Wade?

While it is impossible to know how the Supreme Court will rule on any case, this case presents a unique opportunity to overturn the precedents set in Roe v. Wade and Planned Parenthood v. Casey. The ERLC submitted an amicus brief asking the court to do just that and set a new precedent that respects the dignity of every life. 

Here is a look at some of the issues raised by the justices. 

What is the Dobbs case about?

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court is reviewing a Mississippi law titled the “Gestational Age Act” that prohibits abortions after 15 weeks except in a medical emergency and in cases of severe fetal abnormality. This law replaces the ‘viability standard’ created by Roe with a limit on abortions after 15 weeks of pregnancy. The court is examining whether pre-viability restrictions on elective abortions are unconstitutional. 

What is the “viability standard?”

In Roe v. Wade, the Supreme Court admitted that the state has a legitimate interest in protecting unborn human life, but concluded that that interest did not become compelling until viability, because at that point the unborn child “has the capability of meaningful life outside the mother’s womb.”

However, the choice of viability as the point before which a state may not forbid abortion is entirely arbitrary. Even the author of Roe and two authors of Casey’s three-justice plurality have admitted this. When the “viability standard” was initially created in 1973, viability was around 28 weeks, but it is now around 21 weeks. The viability line will continue to move as our modern medicine continues to improve. No Supreme Court decision has ever provided a principled justification for the viability standard. 

Does the Constitution guarantee a right to abortion?

The ERLC’s amicus brief answers this question well:

“The Constitution does not create a right to an abortion of an unborn child before viability or at any other stage of pregnancy. An asserted right to abortion has no basis in constitutional text or in American history and tradition.” 

When will the Supreme Court rule on abortion?

While the Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization on Dec. 1, 2021, a ruling is not expected until the end of the court’s term in June 2022. 

What happens if the Supreme Court overturns Roe v. Wade?

Even if the Supreme Court overturns the precedents set in Roe v. Wade and Planned Parenthood v. Casey, abortion would not become illegal overnight. Instead, each state would then be free to set their own laws banning or allowing abortion. If Roe is overturned, an estimated 26 states will implement complete bans on abortion. 

If abortion becomes illegal in many states, many more vulnerable women and their preborn babies will need help and support. Christians must be ready to stand in the gap and provide love and care. Together, we must work toward a day when abortion is not only illegal but also unthinkable.