- The Washington Times - Friday, January 3, 2020

The First Liberty Institute, a legal group that handles nothing but religious liberty, has taken on a heavier workload in recent years.

The 50 cases a year it once handled has increased to 450, said Kelly Shackelford, the nonprofit institute’s president, and the type of work also has changed.

Initial cases generally tested the “separation of church and state” doctrine — school prayer, for example, or public monuments with religious symbolism.

But cases increasingly involve tests of the other side of the equation: how far the right to “free exercise” of religion can go to shield someone from government power. Cases involving bakers and florists who object to doing work for same-sex weddings are increasingly common.

“It’s sort of the ultimate intolerance when the government wants to force you to do something,” Mr. Shackelford said. “It’s very different for the government to be so intolerant.”

Nowhere is faith more under assault than in the American courtroom, where the tensions inherent in the First Amendment are playing out in new and challenging ways.

“It’s been growing every year exponentially — the different attacks,” Mr. Shackelford said. “This is really pervasive, and there is nowhere you can go to avoid it.”

Testing the First Amendment

What is happening, analysts say, is a testing of the boundaries of the two religion clauses in the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

For years, the big questions dealt with the first part, known in legal circles as the establishment clause. Last year’s case over the massive World War I memorial Peace Cross on public parkland in Bladensburg, Maryland, was a classic example.

But the free exercise clause is increasingly getting attention as faith-minded Americans try to use it as a shield against government coercion.

The Christian bakers and florists who say laws prohibiting them from refusing service to same-sex weddings violate their values and trample their free speech rights because their cakes and floral arrangements represent artistic expression.

“There is more litigation basically using the language of religious liberty as an attempt to justify discrimination,” said Richard Katskee, legal director for Americans United for Separation of Church and State.

The latest “free exercise” clash is over vaccinations. States are pondering whether to remove religious exemptions from mandatory school vaccination laws amid a global measles scare.

Some religious-minded families say vaccinations violate God’s order because he made their bodies perfect to begin with. Public health officials say that’s well and good until it begins to threaten others, such as children with compromised immune systems who may be sitting next to them in class.

The Trump administration has written rules granting conscientious objection rights to doctors who want the freedom to refuse to perform some practices or procedures, such as abortion, that offend their religious faith.

New York and other Democrat-led states, along with the usual panoply of pro-choice groups, sued to block those rules. A federal judge last month sided with them and ruled against the conscience clause.

Attorney General William Barr, in a speech at Notre Dame University in October, said “militant secularists seem to take a delight in compelling people to violate their conscience.”

Barr: Religion under attack

That speech was a watershed moment.

Mr. Barr, a Catholic, declared religion central to the American experiment. He said the country is increasingly failing that test.

“We are told we are living in a post-Christian era. But what has replaced the Judeo-Christian moral system? What is it that can fill the spiritual void in the hearts of the individual person?” he said. “The fact is that no secular creed has emerged capable of performing the role of religion.”

He said all sides used to agree on religion.

In 1993, Congress approved the Religious Freedom Restoration Act, which committed the government to doing the most possible to accommodate religion.

Its chief House sponsor was then-Rep. Charles E. Schumer, the New York Democrat who now leads his party’s caucus in the Senate. Its chief Senate sponsor was Edward M. Kennedy, Massachusetts Democrat. It was President Clinton who signed the act into law.

Now, Mr. Schumer and other Democrats complain about overreach. They say the law shouldn’t be used to justify the conscience clauses that would allow doctors to refuse to perform abortions, for example.

Mr. Barr told Notre Dame that upended years of understanding.

“The problem is not that religion is being forced on others,” he said. “The problem is that irreligion and secular values are being forced on people of faith.”

The backlash against Mr. Barr has been extraordinary.

One Catholic theologian called him a “threat to democracy.” A Notre Dame adjunct professor called him historically and theologically wrong and “dangerous to the rule of law.”

Robert Tuttle, a law professor at George Washington University, said Mr. Barr distorted actions in the courts, where he said religion is being used as a shield.

“These are views that use the claim of religious liberty as a proxy as a certain set of political moves,” Mr. Tuttle said.

Among the numerous flashpoints was a battle between the Little Sisters of the Poor and the Obama administration over whether the Catholic nuns’ health care plans needed to provide contraceptive coverage under Obamacare.

The Supreme Court in 2016 ordered both sides of the Little Sisters case to go back and try harder to reach an accommodation. The Trump administration wrote rules to do just that, but a number of Democrat-led states sued. They argued that the rules trampled on Americans’ right to have their employers’ insurance pay for their contraceptives.

The high court also has demanded that states think carefully before trying to force Christian service providers to do work for same-sex weddings.

In a ruling in June, the justices rejected an attempt by the American Humanist Association to force a Maryland community to tear down or move a World War I memorial in the shape of a Latin cross.

That decision showed the disagreements among the justices. Seven of the nine agreed, though for different reasons, that the Bladensburg Peace Cross could remain.

Justice Stephen G. Breyer, a Democratic appointee, said the memorial’s nearly 100-year history insulated it from a challenge.

Justice Samuel A. Alito Jr. went further, warning that an iconoclastic push to delete religious symbols could be the sort of anti-religious activity that the First Amendment prohibits.

“A campaign to obliterate items with religious associations may evidence hostility to religion even if those religious associations are no longer in the forefront,” he wrote.

Colin McNamara, an attorney with the American Humanist Association, said the Peace Cross ruling proved Mr. Barr was wrong when he complained about an attack on religion.

“There is no mass movement out there to undermine traditional American values,” Mr. McNamara said.

Senate Majority Leader Mitch McConnell, Kentucky Republican, disagrees.

He took to the floor of the chamber last month to complain about New York’s lawsuit attacking the Trump administration’s conscience rules. He also pointed to former Rep. Beto O’Rourke, a Texas Democrat who in his now-abandoned presidential campaign proposed stripping houses of worship of their tax-exempt status if they hold beliefs opposing same-sex marriage.

Mr. McConnell said anti-religious sentiment is bleeding into the Senate, where Democrats have criticized and voted against some of President Trump’s judicial nominees because of their doctrinal Christian beliefs.

“Powerful interests on the left want to shrink freedom of religion until it means freedom to go to church for an hour on Sundays as long as it doesn’t impact the rest of your life,” Mr. McConnell said.

The Supreme Court has a major religious liberty test this term out of Montana, where faith-based schools say the state cannot exclude them from its program of providing tax credits for parents who send their children to private schools.

The American Civil Liberties Union calls it the “latest in a disturbing line of cases attacking the very foundations of the separation of church and state.”

Religious liberty organizations say it’s a chance for churches to regain ground.

“This is the first time in many, many decades we have had five justices on the Supreme Court who think their job is to find the original meaning of the statute or Constitution,” Mr. Shackelford said. “We really see it turning around now because of these high-quality judges.”

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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