Rhode Island Police banned an elderly blind woman from visiting her local park because she was handing out copies of the Gospel of John. Learn more at FirstLiberty.org/Briefing. Gail Blair was a nurse at Johns Hopkins.  But, she walked away from nursing in 1989 and toward an unexpected encounter with the police. A degenerative condition that causes gradual vision loss drove Gail away from nursing.  At just 37 years of age, she could no longer see.  She and her husband moved to a place just about a block away from Wilcox Park and Westerly Public Library.  She learned how to independently navigate the sidewalks that lead to and from her home and sit in the park. As passersby strolled past in this 10-acre park, Gail would engage them in conversation, telling them about Jesus and sharing with them a copy of the Gospel of John.  In 2019, park authorities accused this 63-year old blind woman of “accosting” park goers and blamed her for littering when they found copies of the Gospel of John on the ground.  They asked the police to ban her from the park under threat of arrest if she were to trespass in the future.  Sighted persons are free to cross into the park and have conversations with anyone, but park officials called the police on a blind woman who shared her faith with others. First Liberty and its network attorneys filed a charge of discrimination with the Rhode Island Commission on Human Rights because banning a blind woman from entering a public park simply because she offers people she meets religious material is outrageous and discriminatory.  To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.

First Liberty Briefing

Police Ban Blind Women from Local Park

A newly naturalized citizen, Olga Paule Perrier-Bilbo sued Congress claiming that the phrase “so help me God” in her naturalization ceremony was a violation of the Establishment Clause. However, the courts did not agree. Learn more at FirstLiberty.org/Briefing. America’s newest citizens start their official lives as Americans with the words, “so help me God.”  One new citizen took advantage of her new rights as an American to sue Congress. Olga Paule Perrier-Bilbo sued Congress claiming that those four little words—"so help me God”—violate the Establishment Clause of the First Amendment to the U.S Constitution.  She asked a court to invalidate the phrase and enjoin its use during her naturalization ceremony.  The U.S. Court of Appeals for the First Circuit rejected that request. The First Circuit concluded that, “Recent developments in Establishment Clause jurisprudence . . . suggest that the mere presence of a historical pattern now carries more weight.”  One of those “recent developments” was First Liberty’s case at the Supreme Court of the United States: American Legion v. AHA.  Judge Juan Torruella, writing for the First Circuit, concluded that American Legion approves the use of “so help me God” because such words are “a ceremonial, longstanding practice” that lack “a discriminatory intent” and, therefore, bear a presumption of constitutionality.   Thus, thanks to the American Legion case, and the analysis of Judge Torruella, these four words that have joined the 136 other words to make up this nearly 100-year old oath will be among the first words America’s newest citizens get to say well in to the future. To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.

“So Help Me God” is Constitutional

South Bay United Pentecostal Church in California asked the United States Supreme Court to invalidate a state ban on the size of religious gatherings of more than ten people.  Learn more at FirstLiberty.org/Briefing. The COVID-19 pandemic gave the Justices of the U.S. Supreme Court something to think about—and not just washing their hands. In South Bay United Pentecostal Church v. Newsom, a church asked the court to invalidate the State of California’s ban on religious gatherings of more than ten people.  On the eve of the Supreme Court’s review of that claim, Governor Gavin Newsom expanded that limitation to 25% of a church’s occupancy or 100 people, whichever is fewer.  Four of the Justices agreed that California’s restrictions treated places of worship less favorably than comparable secular businesses.  Justice Kavanaugh, writing for Justices Thomas and Gorsuch, wondered why churches were required to cap attendance at 100 people or 25% when “factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries” did not. “The Church and its congregants” Justice Kavanaugh wrote, “simply want to be treated equally to comparable secular businesses.”  And, since “California already trusts its residents and any number of businesses to adhere to proper social distancing and hygiene practices,” he observed, why not churchgoers? In the end, the case becomes something of an academic exercise, binding only on the parties to the case.  Still, it’s quite concerning that only four of the nine Justices of the nation’s highest court would conclude, as Justice Kavanaugh did that California “may not discriminate against religion” even in a pandemic. To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.

The Supreme Court Weighs In On COVID-19

Governing public health is an important task, but it is not more important than following the Constitution. If people can practice social distancing and go to Kroger or Home Depot, then they should be allowed to gather in a similar fashion for their weekly religious service. Learn more at FirstLiberty.org/Briefing. “But what of that enduring Constitution in times like these? Does it mean something different because society is desperate for a cure or prescriptions?” Those are among the opening words of Judge Gregory F. Van Tatenhove, a federal judge of a federal district court in Kentucky, as he issued a temporary restraining order on behalf of Tabernacle Baptist Church.  We filed for a TRO in that case because Kentucky’s response to the COVID-19 outbreak had prevented in-person religious gatherings, but did not restrict other secular gatherings like it.  So, while Kentuckians could visit their local grocery store or hardware store, following proper social distancing measures, they could not employ the same social distancing measures and attend in-person religious meetings.  To that, Judge Tatenhove said, “If social distancing is good enough for Home Depot and Kroger, it is good enough for in-person religious services which, unlike the foregoing, benefit from constitutional protection.” Certainly, protecting the public health is an important task of governing, but not if it comes at the expense of the Constitution.  As Judge Tatenhove put it, “It would be easy to put [the Constitution] on the shelf in times like this, to be pulled down and dusted off when more convenient.  But that is not our tradition.  Its enduring quality requires that it be respected even when it is hard.” To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.

If You Can Go to Home Depot, You Can Go to Church

Governor Andy Beshear and others have been preventing in person worship services despite churches’ willingness to adhere to social distancing and appropriate hygiene guidelines while allowing gyms, stores and the like to re-open. Learn more at FirstLiberty.org/Briefing. It seems that some state officials think that Americans who go to church only go to church.  Maybe that’s an overstatement, but it at least appears that Governor Andy Beshear, and others, treat religious Americans differently.  The lockdowns associated with COVID-19 suggest that some officials think that Americans are capable of shopping safely, but religious Americans are incapable of worshipping safely.  In a per curiam decision, the U.S. Court of Appeals for the Sixth Circuit wondered at this distinction.  The litigants, church members, simply wanted to be treated equally.  The court said, “They are willing to practice social distancing.  They are willing to follow any hygiene requirements.” And, yet, the Court explained, “The Governor has offered no good reason for refusing to trust the congregants who promise to use care in worship in just the same way it trusts accountants, lawyers, and laundromat workers to do the same.” Then the Court asked this, “aren’t the two groups of people often the same people—going to work on one day and going to worship on another?  How can the same person be trusted to comply with social-distancing and other health guidelines in secular settings but not be trusted to do the same in religious settings?” The Sixth Circuit enjoined Governor Beshear’s order preventing in-person worship services.  After all, the Constitution knows no exception for a pandemic.  To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.

Governor Allows Grocery Shopping, But Not Church Worship

First Liberty Institute is asking Congress to provide immunity from lawsuits to houses of worship and religious nonprofits during this world-wide pandemic. Learn more at FirstLiberty.org/Briefing. All of us are hopeful for the day everyone is declared immune from the threat of COVID-19.  Recently, hundreds of pastors and religious leaders sent a letter to members of Congress asking for a different kind of immunity: from lawsuits. As Kelly Shackelford, our firm’s president said in written testimony submitted to the Senate’s Committee on the Judiciary, “Whether Orthodox Jewish synagogues in New York, inner-city churches in Houston, or faith-based non-profits providing spiritual and humanitarian relief from coast to coast, these religious organizations and their leaders are each concerned about a new threat to our nation’s faith communities: a swarm of lawsuits blaming houses of worship and religious ministries for any person who attended a religious gathering or received food or shelter from a charity or ministry and subsequently contracted COVID-19.” Sure, the lawsuits might ultimately prove meritless, but should churches, synagogues, and others really have to litigate these claims?  That’s why we worked to spearhead a letter signed by nearly 300 religious leaders around the country, asking Congress to include immunity from lawsuit for America’s houses of worship as they reopen.  Churches, synagogues, and America’s houses of worship have provided critical care, comfort, and calm in the midst of the uncertainty caused by a worldwide pandemic.  They should not be punished for their many kindnesses by a wave of lawsuits when this is all over. To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.

Lawsuit Immunity for Houses of Worship and Nonprofits

Judge Justin Walker sides with religious freedom when Mayor Greg Fischer of Louisville, Kentucky targeted religious worship by prohibiting drive-in church services on Easter Sunday. Learn more at FirstLiberty.org/Briefing. Easter is a special day on the Christian calendar.  But for On Fire Church in Louisville, Kentucky in the Spring of 2020, it would be more than special; it would be memorable. They intended to hold a drive-in Easter service, since the COVID-19 pandemic prevented them from meeting in person. But, Mayor Greg Fischer forbade it.  Actually, the mayor said the police might attend too, but only to write down license plates and force atte­ndees into a 14-day quarantine.  First Liberty sought a temporary restraining order late on Good Friday.  Less than 24-hours later, Judge Justin Walker granted the TRO, explaining that the mayor’s actions were “violating the Free Exercise Clause ‘beyond all question.’”  He noted that “Louisville . . . targeted religious worship by prohibiting drive-in church services, while not prohibiting a multitude of other non-religious drive-ins and drive-throughs—including . . . drive-through liquor stores.”  Concluding, “if beer is ‘essential,’ so is Easter.”  Judge Walker’s opinion recalled the experience of the Pilgrims who, he said, understood that, “No place, not even the unknown, is worse than any place whose state forbids the exercise of your sincerely held religious beliefs.” Even in times of worldwide pandemic, the First Amendment does not hand in a doctor’s note and take the day off.  Rather, it preserves and defends the first of our freedoms given to us by God himself. To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.

The First Amendment Is Not On Hold During a Pandemic

As large group gatherings have been placed on hold during the COVID-19 pandemic, Pastor Charles Hamilton from Greenville, Mississippi, prepared to preach to his usual Sunday crowd via a drive-in church service. However, the Mayor suspended these gatherings and it took two lawsuits and an intervention for the discrimination to stop. Learn more at FirstLiberty.org/Briefing. It was a warm spring Thursday evening in Greenville, Mississippi.  One would have said it was a perfectly normal evening for King James Bible Baptist Church to host a Bible study, but things were hardly normal. A highly communicable virus had infected the world.  Everyone was shut down, or so it seemed.  The town’s mayor had even cancelled all gatherings in the town, including religious gatherings. Still, Pastor Charles Hamilton made adjustments and readied himself to preach to a bunch of cars.  Well, he meant to preach to people, but they were confined to their cars.  That week, the mayor of Greenville had even prohibited so-called drive-in church services where parishioners drove to the church, parked in the lot, and stayed in their cars, listening through the closed doors and windows to hear Pastor Hamilton preach. It was a strange time.  Nonetheless, Pastor Charles Hamilton was shocked when he walked outside.  The entire police force was there, piling out of their cruisers.  One officer rushed to inform Pastor Hamilton that his rights had been “suspended.”  Pastor Hamilton thanked the officer, picked up his Bible, and continued to preach anyway.  We don’t know what the officers thought about the sermon that evening, but we do know this: it took two lawsuits and the intervention of the Attorney General of the United States to get Greenville’s mayor to stop discriminating against Pastor Hamilton.  To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.

Drive-In Church Services Under Fire

Are the recent restrictions imposed by state officials in response to COVID-19 a violation of your religious freedom? Learn more at FirstLiberty.org/Briefing. A global pandemic has gripped the nation’s attention in the Spring of 2020 and rightly so.  In response, some state officials are imposing restrictions upon the gathering of large numbers of people in one place at a time.  Are such restrictions Constitutional? As my law professors used to say: it depends. Temporary, evenly applied restrictions on religious gatherings may be permissible.  Government may not substantially burden the free exercise of religion unless it has a compelling reason for doing so.  But, even then, government must use the least burdensome approach that achieves that compelling interest. So, temporary restrictions to reduce the spread of a global pandemic is almost certainly a compelling reason, so long as the government is not treating religious institutions unfairly compared with how it treats other comparable gatherings. Those restrictions need to be applied evenly and temporarily.  For instance, Mayor Bill de Blasio’s famous threat to shut down synagogues who disobey his orders would almost certainly violate the constitution if he attempted to enforce it.  Likewise, Mayor Errick Simmons, of Greenville, Mississippi, was wrong and unfair to send the entire police force to surround our clients at King James Bible Baptist Church for having a drive-in church service, but leave the local drive-in hamburger joint alone. The Constitution knows no exception for a pandemic.  Even in times of a worldwide pandemic, it’s good to know religious liberty is protected. To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org. 

COVID-19 and Religious Freedom

Despite doing her best to find a solution that would reconcile her religious beliefs while serving the needs of her community, Justice of the Peace, Dianne Hensley is still under fire for not personally performing a same-sex marriage due to her religious beliefs. Learn more at FirstLiberty.org/Briefing. Dianne Hensley is a Justice of the Peace in Waco, Texas.  Since the U.S. Supreme Court decision that legalized same-sex marriage, she has been looking for a way to reconcile her religious beliefs while serving the needs of her community. She knows that her convictions prevent her from officiating gay weddings, but she understands that many of her gay friends do not share that conviction. If she, like most of the local justices of the peace stopped officiating weddings altogether, those without ready access to low-cost alternatives suffer most. So, she assembled a referral list of wedding officiants, including a walk-in wedding chapel just 3 blocks from the courthouse.  That arrangement worked, until the Texas Commission on Judicial Conduct, without having received a complaint, initiated an investigation.  That resulted in an official “public warning” with likely worse sanctions to follow should she continue. Surely in 2020, we can find a way to protect those with religious beliefs that prevent them from officiating weddings with which they morally disagree, while also accommodating the marriage of anyone lawfully allowed to wed. We’ve filed a lawsuit against the Commission, alleging their punishment violates Dianne’s religious liberty.  Rather than punish her, the Commission ought to have recognized Dianne’s effort to balance her faith with the needs of her community — a type of basic, human, and much needed fairness missing in much of America today. To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.

Justice of the Peace Who Found a Solution for All Is Still Under Fire

Despite long standing amendments like the Blaine Amendment, religious organizations should be just as deserving of participating in public programs as anyone else. Learn more at FirstLiberty.org/Briefing. We have discussed the history of anti-Catholic Blaine Amendments on this program before.  If you recall, it was Senator James Blaine who, in the mid-1800’s, proposed language ultimately adopted within state constitutions that prevents government dollars flowing to religious institutions, even to this day. It’s a curious thing that, in 2020 two organizations, one of whom is charitably motivated because of its secularity and the other by its religious convictions, yet only the secular organization may qualify for participation in public programs. Government officials need not rely upon the overall ability, educational or professional qualifications, financial stability, or facilities of a religious organization to decide whether it may participate. Rather, they may exclude religious organizations because they are religious organizations. Their religion may be the sole criterion for exclusion. In January of 2020, the Supreme Court once again heard arguments over the constitutionality of Blaine Amendments in Espinoza v. Montana.  In a friend of the court brief, First Liberty Institute argued that religious organizations are as deserving of participation in public programs as anybody else. The promise of the First Amendment is — at the very least — that government will be neutral towards religion, welcoming religious organizations to compete in the public square on equal footing with other organizations. If they are to be denied, let it be for legitimate reasons having not the whiff of religious discrimination. Government should never tolerate the codification of religious bigotry. To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.

Espinoza v. Montana Will Determine the Future of the Blaine Amendments

Despite both Hobby Lobby and the Little Sisters of the Poor cases, states like California are continuing to try and subvert the Weldon Amendment, and force citizens to violate their conscience. Learn more at FirstLiberty.org/Briefing. The United States Department of Health and Human Services recently announced through its Office of Civil Rights that HHS is pursuing an enforcement action against the State of California.  You see, something known as the Weldon Amendment guards against states accepting federal dollars to require those using its health insurance to fund abortion services. It seems that the State of California has required The Guadalupanas Sisters, a Catholic order of religious women headquartered in Los Angeles to fund abortion services through the premiums they pay in insurance services. Now, if the State of California fails to provide assurances to HHS that it will end the practice, the federal agency plans to refer the state on for further investigation, if not prosecution. You would think that, in the years since our Supreme Court decided Hobby Lobby and over the years of litigation concerning the Little Sisters of the Poor that states would begin to understand that they can’t force its citizens to violate their religious conscience. As Justice Anthony Kennedy wrote in his concurring opinion in Burwell v. Hobby Lobby, “In our constitutional tradition, freedom means that all persons have the right to believe or strive to believe in a divine creator and a divine law.  For those who choose this course, free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts.” To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.

States Cannot Force Citizens to Violate their Religious Conscience

The opinions written by judges are important in all cases, but when it comes to religious freedom cases, the words and manner in which a case is written can either expand religious freedom or lessen it. Learn more at FirstLiberty.org/Briefing. The measure of a federal judge may be what he or she writes.  Or maybe that a judge writes.  Judge James Ho of the U.S. Court of Appeals for the Fifth Circuit never seems to miss the chance.  And his opinions are worth reading. Take for instance his separate opinion in Horvath v. City of Leander.  While he mostly agreed with the majority’s decision, he raised concerns that the lower court relied upon Employment Division v. Smith, a case often relied on to curtail the First Amendment’s promise of the free exercise of religion. That led him to articulating the importance of words, pushing back against efforts to reduce the promise of the Free Exercise Clause to the mere “freedom of worship.”  Properly understood, Judge Ho helpfully explains, the Founders intended the First Amendment to “extend beyond mere ritual and private belief to cover any action motivated by faith.”  Care for the text may even mean that we shed any reluctance to hold government officials personally accountable for violating someone’s religious liberty.  As Judge Ho reminds us, we ought instead to be “concerned about government chilling the citizens-not the other way around.”  After all, the Constitution is meant to restrain government, not empower it. The point, for Judge Ho, is that in guarding the text of the First Amendment, we refuse efforts to redefine it into lesser terms while rejecting judicial additions to it.  To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.

Words Matter

The religious freedom rights of our men and women in the U.S. military is constantly coming under attack, and First Liberty is fighting back each and every time. Learn more at FirstLiberty.org/Briefing. You have heard me refer to Mikey Weinstein and his deceptively-named Military Religious Freedom Foundation on this program more than once.  Over the last couple of months, this group of anti-faith activists has certainly shown a dogged resolve to brazenly attack the right of our service members to live out their faith. After the MRFF sent a legal demand to the Department of Defense regarding our client, Shields of Strength, a Christian company that graciously provides replica dog tags with inspirational Bible verses to active-duty service members, veterans and their families who want them, we had to take action.  We’ve now sent two demand letters on the topic—one to the Army and another to the Navy—insisting the DOD respect our client’s religious liberty. But that’s not all.  Before Christmas of 2019, the group complained about an inflatable Santa Claus on an Army base, claiming that the display was unconstitutional because it stood wearing military camouflage, a lapel reading “Christmas Force” and held a small sign with the phrase, “God Bless America.”  Not only that, they also called out the Peterson Air Force Base in Colorado Springs, CO for selling Jesus-themed candy canes. These may sound silly, but we can’t risk not taking them seriously.  Just as our service members never give up when fighting for our freedoms, First Liberty will never give up on our mission to fight for their First Freedom. To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.

First Liberty Fights to Defend Religious Liberty in the Military

All school organizations should be treated the same. When school officials at the University of Iowa exempted non-religious school organizations from its human rights policy and not groups like InterVarsity, they were held personally liable. Learn more at FirstLiberty.org/Briefing. Holding government officials personally liable for violating an organizations religious liberty seems harsh, but is an important—and difficult—job of the federal courts. At the University of Iowa, university officials exempted a number of groups from their human rights policy.  Sports clubs could distinguish by gender.  The military dental club restricted membership by military members.  Even acapella groups meeting on campus were allowed to restrict membership by gender. But, the university told the InterVaristy Christian Fellowship chapter that requiring its leadership to adhere to historic religious convictions on human sexuality was wrong and resulted in the club being deregistered. The club sued the university and the court held that not only did the University violate the law, but the university officials who investigated the student group were to be held personally liable for the constitutional violation.  In civil rights litigation, if a plaintiff demonstrates that a state official acting under color of law deprives a citizen of any of the rights and privileges found in our Constitution, courts may hold them personally liable.  Holding university or government entities liable is one thing, but when the full weight of federal law lands on the backs of individual bad actors, it has a deterring effect.  Moreover, reminding state officials that they have a responsibility to protect the religious liberty rights of Americans makes them all the more cautious to come close to violating our first freedoms. To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.

Government Officials Held Personally Liable for Violating Religious Freedoms

First Liberty Briefing is an exclusive podcast hosted by First Liberty Institute’s Deputy General Counsel Jeremy Dys. In about 90-seconds, once a week, Jeremy recalls the stories that have shaped America’s religious liberty, from the founding era to current legal battles and more. It’s an insider’s look at the stories, cases, people, and laws that have made America the world’s leader in protecting religious liberty.

hubhopper

First Liberty Briefing

hubhopper