Category Archives: Faith

EPSTEIN: Religious Liberty Under Siege In Mississippi



 BY: Richard A. Epstein | Hoover Institution 

Last month, Judge Carlton W. Reeves of the Northern District of Mississippi handed down an extraordinarily misguided decision in Barber v. Bryant by issuing a preliminary injunction against House Bill 1523, Mississippi’s newly passed religious liberty law, just minutes before it was to go into effect. The court found that House Bill 1523 likely denied the plaintiffs—a diverse group of supporters of same-sex marriage—their rights under Fourteenth Amendment’s Equal Protection Clause, and, furthermore, established preferred religious beliefs, violating the First Amendment’s Establishment Clause. Phil Bryant, the governor of Mississippi, has filed papers in the Court of Appeals to dissolve that temporary injunction. State Attorney General Jim Hood has declined to join in that defense of the Mississippi law. As someone who gave some brief advice and encouragement to Mississippi’s appellate lawyers, I think that their motion should be granted, given the major points of principle that it raises.

To put matters in context, HB 1523 was the latest effort to provide explicit protection of religious liberty and moral conscience for those individuals who are opposed to same-sex marriage. At no point does the legislation limit the right of any person to participate in a same-sex marriage, which would be an obvious nonstarter given Obergefell v. Hodges, a highly dubious Supreme Court decision, which held that the Equal Protection Clause of the Fourteenth Amendment guaranteed that right to all persons. House Bill 1523 does not seek to dislodge or compromise that decision. Indeed, it would have been dead on arrival if it had attempted any such maneuver. But as is often the case, no one quite understands the scope of a particular constitutional right until its correlative duties are accurately specified.

The correct reading of Obergefell comes in two parts. First, no private person can seek to block the performance of a same-sex marriage. Second, some public official must be prepared to solemnize those marriages, so that they have the full force and effect as traditional marriages. What the decision in Obergefell did not do, and indeed disclaimed, was the notion that people who are opposed to same-sex marriages had to participate in their validation. Even public officials can escape that duty under House Bill 1523 so long as alternative arrangements are made to ensure that “the authorization and licensing of any legally valid marriage is not impeded or delayed as a result of any recusal.” House Bill 1523 thus represents the kind of sensible accommodation that has long been the hallmark of religious liberty.

The explanation for this distinction is not hard to find. When any state bans same-sex marriage, it is using its monopoly power to block the consensual activities of private persons. They have no place else to go once that ban is in effect. The two conditions above neutralize that blocking power. But that mission is fully accomplished without conscripting other individuals to participate in these relationships, or indeed any other arrangements. The correlative duty commanded by Obergefell is noninterference; it is not support, participation, or approval. The Mississippi statute tries to cement that understanding into law by enacting three related provisions.

First, House Bill 1523 protects only those individuals with “sincerely held religious beliefs or moral conviction” that marriage is properly confined to one man and one woman, that sexual relationships should be limited to such marriages, and that the terms male and female refer to “an individual’s immutable biological sex as objectively determined by anatomy and genetics.” The protection applies to participation in religious services, but also to all employment-related and housing activities subject to the same caveat. The wording was chosen in part to make it clear that no explicit preferences were given to religious persons or groups on this score, in order to forestall the charge of favoritism. But there is little doubt that the religious element was the primary motivation for the provision.

Judge Reeves struck down the Mississippi statute because he did not grasp the fundamental distinction between forcing others to yield to your beliefs and just asking to be left alone. His confusion is evident from his opening salvo that quotes the Supreme Court in Epperson v. Arkansas (1968) as saying that the Establishment Clause of the First Amendment means that the state “may not aid, foster, or promote one religion or religious theory against another.” He then uses McCreary County v. American Civil Liberties Union (2005) to argue that it violates the Establishment Clause—“Congress shall make no law respecting an establishment of religion”—“when the government acts with the ostensible and predominant purpose of advancing religion.”

At no point, however, does Judge Reeves attempt to put either of these broad generalities into context. And context matters. The words in Epperson were directed to an Arkansas law that prohibited the teaching of evolution in public schools—a clear instance of a state-compelled law that binds all persons inside the legal system. No one could describe this as a situation in which private parties sought to run their own lives and businesses free of government interference. Similarly, McCreary County struck down two county resolutions that announced that the Ten Commandments were Kentucky’s “precedent legal code,” and authorized extensive religious exhibits on public property intended to extol its virtues. There is no similar commitment of public resources in House Bill 1523. It is practically legal malpractice to rip out of context words that were rightly intended to knock down state coercion for religion and the state subsidy of religion while invalidating a statute whose whole purpose was to insulate private parties from any form of public coercion.

One irony in this case is that Judge Reeves noted, with apparent approval, that Mississippi had passed its own Religious Freedom Restoration Act. Mississippi’s law, in line with the federal version, provides that the state may not substantially burden a person’s exercise of religion, unless it does so to further a compelling governmental issue by the narrowest form possible. This law has a broader scope than House Bill 1523, but its protection is not absolute, although it may be when these two conditions are satisfied. When the original federal statute was passed in 1993, the phrase “compelling state interest” had a reasonably clear meaning, according to which some powerful necessity had to be demonstrated to override the original constitutional right. The Mississippi statute refers to “a government interest of the highest magnitude.” Traditionally, this language meant that the state could curb religious freedom in order to prevent riots in public places. But in line with the general jurisprudence of the time, such instances were few and far between.

Not any more, one can at least argue. More concretely, the argument has been commonly made that the elimination of discrimination in all areas of American life counts as a compelling state interest, of course of the highest magnitude. Just that argument was put forward successfully in Elane’s Photography v. Willock (2014), where the New Mexico Supreme Court held that its state’s Human Rights Act prevented all private discrimination on grounds of sexual orientation. Thus when Elane’s refused to photograph a commitment ceremony for a lesbian couple, at a time when same-sex marriage was not legal in New Mexico, its appeal to the First Amendment protections of religion and speech fell on deaf judicial ears, in a case that the United States Supreme Court denied certiorari. It is therefore reasonable for the defenders of religious liberty to think that the potential evisceration of RFRA required the sterner protection of House Bill 1523.

In this case, they are right. Because there is only this narrow focus on religious and moral convictions, it is virtually impossible to think of any situation where the exercise of that right would in fact cause actionable dislocations to other people. The word “actionable” has to be inserted because otherwise any distaste for the actions of others, e.g. flag burning, becomes a harm that must be put into the scales, which means that every refusal to deal necessarily hurts the individuals who were rejected and their sympathizers.

Nonetheless, this overbroad account of harm resonated with Judge Reeves, who noted that the various plaintiffs could suffer some irreparable harm if the injunction in question were delayed. But at this point, a cold look at the relative tradeoffs explains why these alleged harms should be disregarded. On the one side, the targeted individuals may face the choice of having to go out of business to protect their religious or moral conscience. This is no better than the choice between your money and your life. But just what is the harm on the other side? There are thousands of employers and landlords, and dozens of vendors that are eager to cater to the interests of gay and lesbian couples. Indeed, it is highly unlikely that they would (as is their right) hire a photographer or caterer who was unsympathetic to their views. So how do individuals with many choices suffer from irreparable harm when persons who have no choice do not? The point should be as clear to the opponents of religious liberty as to its defenders.

Given this current impasse, it is critical to rethink the basic legal rules on private discrimination that set the stage for Barber v. Bryant. House Bill 1523 was drafted in ways in which the right to refuse service was tied to religious and moral convictions. Otherwise, a broader right would run into a collision course with one of the most venerable parts of the Civil Rights Act of 1964, the public accommodation provisions embodied in Title II. Historically, Title II had two potent justifications. The first is that it was a necessary corrective against massive abuses of state power under Jim Crow. Thankfully, that risk is gone today. The other justification was that the traditional common law view—still good today—that any common carrier or public utility, by virtue of holding a monopoly position, was duty-bound to take all customers on reasonable and nondiscriminatory terms. When ordinary people have no where else to go for power, water, or transportation, they are entitled to get these services at reasonable rates. The rule covered all cases of racial discrimination, but it was not limited to it.

The implicit drawback of this position was that there was no duty to serve anyone in a competitive industry, precisely because disappointed customers had a full range of alternatives to which they could turn. The common law rightly held that refusals to deal in competitive industries counted as basic liberties. In the progressive run-up to the New Deal, the argument was put forward that every refusal to deal in economic matters was an exercise of coercion—the kind of coercion that the state had a compelling interest to stop. That misguided view marked the end of economic liberties in all cases, and led to the passage of laws like the 1935 National Labor Relations Act, which forced collective bargaining in otherwise competitive industries.

The battle over religious liberties is a novel extension of the older war in one of the few bastions of individual liberty. Until recently, the older view on religious liberties exempted private religious beliefs from this hopelessly broad definition of coercion. But with the new progressive resurgence, that protected liberty shrinks while the domain of government power expands. It is a genuine intellectual tragedy that the people who speak on behalf of religious liberties—including the plaintiffs in Barber, many of whom represent gay, lesbian, and transgender people—can be so alert to their own claims of personal liberty, and yet so insensitive and indifferent to the claims of others.

Richard A. Epstein, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, is the Laurence A. Tisch Professor of Law, New York University Law School, and a senior lecturer at the University of Chicago. Epstein researches and writes in a broad range of constitutional, economic, historical, and philosophical subjects. He has taught administrative law, antitrust law, communications law, constitutional law, corporation criminal law, employment discrimination law, environmental law, food and drug law, health law, labor law, Roman law, real estate development and finance, and individual and corporate taxation.

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The Explanation For Our Difficulties


BY: Oswald Chambers


…that they all may be one, as You, Father, are in Me, and I in You; that they also may be one in Us… —John 17:21

If you are going through a time of isolation, seemingly all alone, read John 17 . It will explain exactly why you are where you are— because Jesus has prayed that you “may be one” with the Father as He is. Are you helping God to answer that prayer, or do you have some other goal for your life? Since you became a disciple, you cannot be as independent as you used to be.

God reveals in John 17 that His purpose is not just to answer our prayers, but that through prayer we might come to discern His mind. Yet there is one prayer which God must answer, and that is the prayer of Jesus— “…that they may be one just as We are one…” (John 17:22). Are we as close to Jesus Christ as that?

God is not concerned about our plans; He doesn’t ask, “Do you want to go through this loss of a loved one, this difficulty, or this defeat?” No, He allows these things for His own purpose. The things we are going through are either making us sweeter, better, and nobler men and women, or they are making us more critical and fault-finding, and more insistent on our own way. The things that happen either make us evil, or they make us more saintly, depending entirely on our relationship with God and its level of intimacy. If we will pray, regarding our own lives, “Your will be done” (Matthew 26:42), then we will be encouraged and comforted by John 17, knowing that our Father is working according to His own wisdom, accomplishing what is best. When we understand God’s purpose, we will not become small-minded and cynical. Jesus prayed nothing less for us than absolute oneness with Himself, just as He was one with the Father. Some of us are far from this oneness; yet God will not leave us alone until we are one with Him— because Jesus prayed, “…that they all may be one….”

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The Habit of Rising to the Occasion


  

BY: Oswald Chambers

…that you may know what is the hope of His calling… —Ephesians 1:18

Remember that you have been saved so that the life of Jesus may be manifested in your body (see 2 Corinthians 4:10). Direct the total energy of your powers so that you may achieve everything your election as a child of God provides; rise every time to whatever occasion may come your way.

You did not do anything to achieve your salvation, but you must do something to exhibit it. You must “work out your own salvation” which God has worked in you already (Philippians 2:12). Are your speech, your thinking, and your emotions evidence that you are working it “out”? If you are still the same miserable, grouchy person, set on having your own way, then it is a lie to say that God has saved and sanctified you.

God is the Master Designer, and He allows adversities into your life to see if you can jump over them properly— “By my God I can leap over a wall” (Psalm 18:29). God will never shield you from the requirements of being His son or daughter. First Peter 4:12 says, “Beloved, do not think it strange concerning the fiery trial which is to try you, as though some strange thing happened to you….” Rise to the occasion— do what the trial demands of you. It does not matter how much it hurts as long as it gives God the opportunity to manifest the life of Jesus in your body.

May God not find complaints in us anymore, but spiritual vitality— a readiness to face anything He brings our way. The only proper goal of life is that we manifest the Son of God; and when this occurs, all of our dictating of our demands to God disappears. Our Lord never dictated demands to His Father, and neither are we to make demands on God. We are here to submit to His will so that He may work through us what He wants. Once we realize this, He will make us broken bread and poured-out wine with which to feed and nourish others.

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FROHNEN: What is the Role of Faith in the Public Square?


BY: Bruce Frohnen


The Supreme Court’s decision in Obergefell v. Hodges, dictating that all states issue marriage licenses to same-sex couples, was handed down less than a year ago. Already, though, most Americans have accepted this judicial dictate as the law of the land. More importantly, they seem to have accepted the story that it is a mere imposition of a common-sense legal solution (“treat everyone equally”) to take issues of religious and moral disagreement “off the table” of public policy debate. What too often goes unremarked in this version of events is the essential basis for Justice Anthony Kennedy’s opinion in Obergefell.

The basis? Justice Kennedy’s determination that the only reason behind the longstanding laws restricting marriage to unions of one man and one woman was animus against homosexuals. Animus, of course, means hostility or ill feeling—hatred or, at best, unthinking bigotry. Only a finding of such animus could be used by the Court to invalidate laws upholding a conception of marriage older and more deeply rooted than our nation itself. Only this determination could undermine the deference even today’s courts claim they pay to states regarding laws within their recognized competency.

What does it mean to say that any defense of the legal status of traditional marriage is/was rooted solely in bigotry? And what does such a determination portend for the future? As ever, any mention of a slippery slope toward some radical change will be greeted with heated charges of fear-mongering. One is reminded of past instances in which this tactic has been used, including in response to claims that earlier moves in this direction might lead to federal imposition of same-sex marriage. Now, of course, any reference to those earlier warnings is likely to be taken as a sign that one wants to “turn back the clock” to an era in which homosexuals were violently oppressed. But it is important to note where the logic of Obergefell fits within a larger movement in American law—namely that toward imposing “neutral” secularizing structures on religious institutions and practices.

For guidance, here, we need look no farther than another religious freedom case, Little Sisters of the Poor v. Burwell, that is currently before the Supreme Court. Several commentators have asked why the Obama Administration is working so hard to force the Little Sisters of the Poor to cooperate in the provision of contraceptives and abortion-inducing drugs to their employees through the Affordable Care Act (“Obamacare”). The numbers involved are so small, here, that it clearly would be easier and more sensible to simply force all Americans pay for this particular “social benefit” through generalized taxes than to chain these nuns to practices their faith insists are evil. But the Obama Administration has much more in mind than merely guaranteeing universal access to contraception and abortion. It seeks to marginalize religious institutions as a whole by portraying their essential beliefs as rooted in harmful prejudices. In this way it would ensure that public debates take place only on the basis of values and goals of which it approves—namely those prioritizing individual emotions, interests, and life-choices above any sense of the common good beyond an empty notion of “toleration” as indifference to morality and virtue.

The lie of a neutral public square, in which we can debate important issues on the basis of “public reason,” is at its heart an anti-religious lie. It rests on the notion that we can set aside our faith and discuss important issues on the basis of reason alone. But faith and reason are not distinct categories of thought and action. Faith and reason are intimately bound up with one another and with a more generalized approach to the world—the imagination. Historically, the vast majority of people have seen the world as intrinsically moral, that is as made up of structures and choices that have intrinsic moral importance. Ethics is central to life, on this view, and is bound up with our general approach to both daily and life-changing issues such as whom to marry and what to demand of government, community, local association, family, neighbor, and self. This conception of life is intrinsically religious, for it rests on recognition of a natural order to our being that makes sense, has moral importance, and calls us to virtue, despite our own failings and limitations. It is a vision that has been under attack for more than two centuries, however, as a seemingly secular vision rooted in human emotions and impulses has sought dominance. This latter view, often termed the “idyllic” imagination and ascribed to Rousseau, sees the intrinsic goals of life as bound up with self-expression and self-actualization. It blames the injustices of life on social structures deemed oppressive or unjust and sees duty as something to be imposed on other people and especially on institutions.

It is simply wrong to ascribe to the idyllic imagination a greater attachment to reason than that of the moral imagination. Both have a conception of what is rational and how reason is best used to further human happiness. The difference is that the latter, idyllic vision views human happiness in terms of individual choices and mass actions aimed at the liberation of individuals from social structures, perceptions, and forms of thought believed to interfere with individual autonomy and growth. 

The moral imagination, on the other hand, seeks to protect the fundamental associations in which persons learn virtue. Obviously, the moral imagination is tied to recognition of a natural order, and this means for most of us with an ordering God, whereas the only necessary points of stability among those who reject this vision in favor of its idyllic alternative have to do with the illegitimacy of restraints on expressive choices, the illegitimacy of standards of virtue outside the opposition to oppression, and the presumed rationality of a narrow empiricism. “Science,” within this world view, is the gathering of relevant and convenient facts that leave out overarching rationality rooted in the order of existence. It is a scientism devoted to the purposes of the user, highly malleable through the choice of topics, the drawing of distinctions, and the construction of theories and “values” not subject to rational inquiry. It can abide superstitions and heresies like worship of an earth-goddess, but not the binding of religion.

The differences in forms of reason and policy a person of religious faith will have from those held by persons without that faith are substantial, and becoming increasingly important. The neutral public square (even the Naked Public Square, as it was termed by Richard John Neuhaus) is in reality the secular public square. It is adorned and shaped by assumptions regarding human rationality and the human good no less robust and detailed than those of religious people. The result is highly divergent visions of a good life. Those imbued with the moral imagination recognize the connection between public order and the ordered soul. They see the necessity of common decency and public institutions allowing associations to form good character so that people may lead virtuous lives here in hope of the next life. Those possessed of an idyllic imagination seek individual fulfilment of one’s own wishes and desires, aided by a state protecting us from want, from violence, and from all forms of unease.

Unease is essential to the religious understanding of life. We exist under judgment, and being sinners that judgment will find us wanting. Why not eliminate the unease by eliminating the judgment and its religious understanding? We may keep a god or gods as emanations from our own personalities and desires (Jesus as a nice guy), but anything more is an invitation to disappointment, depression, and overall unhappiness. Indeed, on this view religion is positively dangerous to public order because it tells people they should not do many things they want to do, and that the state should not do for people much that they want done for them.

Despite the affinity of certain powerful religious figures for social democracy, the social democratic state is hostile to religion because religion undermines the authority of the social democratic state.

Yet, the contemporary state (openly social-democratic in Europe, less openly so in Barack Obama’s United States) cannot be openly anti-religious because many people desire the comforts of religion. Thus, the best strategy is not to seek to eliminate religion, but to dilute it. Of course, many clergymen have been aiding in this endeavor for decades, reducing faith to comfort. But more can be done and has been done.

Religion increasingly is treated as a private exercise of individual emotions that should not be “imposed” on others through expression in the public square. Majority (“powerful”) religions in particular are to be kept out of the public square, though minority religions such as Islam may be welcomed for a time as a means of diluting the majority view.

Clearly, marriage is a central institution of any society, one possessing, carrying, and spreading religious ideas of the person and the proper nature of our relationships. By denying its religious character, even denigrating religious views of the institution, the state denigrates the role of religion in public life. But there is more. As shown by the administration’s actions in Little Sisters of the Poor, the state may seek to chain religious institutions to its own regulatory institutions. In this way it shows religious institutions who is boss—not God, but the state. From here the state may move on (as it has moved on, for example in France and in Canada) to political standards in education that require even religious schools to teach a secularized vision of religion in history, and to a common, national set of standards requiring all but the most private and insular groups to abide by a code of conduct deemed “tolerant,” but in reality aggressively secular.

The goal is in reality the de-naturing of religion, the turning of religion into a tame tool of the state that can provide comfort for those who still seek its solace without challenging the social-democratic orthodoxy or the institutions that enforce it.

Bruce P. Frohnen is a Senior Contributor at The Imaginative Conservative. He is Professor of Law at Ohio Northern University College of Law and the author of Virtue and the Promise of Conservatism: The Legacy of Burke and Tocqueville, The New Communitarians and The Crisis of Modern Liberalism.

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National Day of Prayer event today at State Capitol


  

Mississippians will participate in the National Day of Prayer event today at the MS State Capitol South Steps to pray for state and local leaders.

There will be a children’s portion at 10:30am. All ages are welcome to come and pray for our public safety workers from 10:30am-11:30am. Feel free to bring picnic lunch and a lawn chair. At 12 noon attendees will pray together with our state and local leaders on the south steps.

WHEN
May 05, 2016 at 12pm – 1:20pm

WHERE
National Day of Prayer Mississippi State Capitol
400 High St
Jackson, MS 39201

CONTACT
Amy Rylander · amyrylander@bellsouth.net

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Faith— Not Emotion


BY: Oswald Chambers


We walk by faith, not by sight. —2 Corinthians 5:7

For a while, we are fully aware of God’s concern for us. But then, when God begins to use us in His work, we begin to take on a pitiful look and talk only of our trials and difficulties. And all the while God is trying to make us do our work as hidden people who are not in the spotlight. None of us would be hidden spiritually if we could help it. Can we do our work when it seems that God has sealed up heaven? Some of us always want to be brightly illuminated saints with golden halos and with the continual glow of inspiration, and to have other saints of God dealing with us all the time. A self-assured saint is of no value to God. He is abnormal, unfit for daily life, and completely unlike God. We are here, not as immature angels, but as men and women, to do the work of this world. And we are to do it with an infinitely greater power to withstand the struggle because we have been born from above.

If we continually try to bring back those exceptional moments of inspiration, it is a sign that it is not God we want. We are becoming obsessed with the moments when God did come and speak with us, and we are insisting that He do it again. But what God wants us to do is to “walk by faith.” How many of us have set ourselves aside as if to say, “I cannot do anything else until God appears to me”? He will never do it. We will have to get up on our own, without any inspiration and without any sudden touch from God. Then comes our surprise and we find ourselves exclaiming, “Why, He was there all the time, and I never knew it!” Never live for those exceptional moments— they are surprises. God will give us His touches of inspiration only when He sees that we are not in danger of being led away by them. We must never consider our moments of inspiration as the standard way of life— our work is our standard.

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All or Nothing?


BY: Oswald Chambers

When Simon Peter heard that it was the Lord, he put on his outer garment…and plunged into the sea. —John 21:7

Have you ever had a crisis in your life in which you deliberately, earnestly, and recklessly abandoned everything? It is a crisis of the will. You may come to that point many times externally, but it will amount to nothing. The true deep crisis of abandonment, or total surrender, is reached internally, not externally. The giving up of only external things may actually be an indication of your being in total bondage.

Have you deliberately committed your will to Jesus Christ? It is a transaction of the will, not of emotion; any positive emotion that results is simply a superficial blessing arising out of the transaction. If you focus your attention on the emotion, you will never make the transaction. Do not ask God what the transaction is to be, but make the determination to surrender your will regarding whatever you see, whether it is in the shallow or the deep, profound places internally.

If you have heard Jesus Christ’s voice on the waves of the sea, you can let your convictions and your consistency take care of themselves by concentrating on maintaining your intimate relationship to Him.

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