As one of the most important free speech and free exercise cases comes before the Supreme Court in 50 years, it's important to ask: Is this kind of situation common? Rare? According to an annual report about religious liberty released in September, "Undeniable: The Survey of Hostility to Religion in America," there has been a 15 percent increase, a steady uptick, in legal cases that affect religious freedom this last year. Many Americans are fighting to keep their First Amendment rights intact nationwide.
The examples are as varied as they are increasing. For example, when hurricane Harvey hit Houston, it devastated not just homes and businesses but churches as well. Even though several churches were flooded, they weren’t able to get equal access to disaster relief grants that are available to other nonprofit organizations, like museums and zoos, via FEMA's Public Assistance Grant program.
The Becket Fund, a law firm that defends religious liberty, filed a lawsuit, Harvest Family Church v. FEMA, in a Houston federal court against FEMA on behalf of three churches on the principle that they have the same right to apply for disaster relief grants as other nonprofit organizations.
While FEMA invited said houses of worship to apply for aid in Houston, new evidence submitted in court recently shows FEMA continues to deny aid to several churches that need disaster relief. FEMA claimed churches can apply for aid (contrary to its “no churches need apply” policy) but since then, these churches and many others have been told that they are not eligible; one even had a grant application rejected.
While churches fight FEMA in court in Texas, another group — this time the military, via The American Legion -- fights an atheist organization for their right to honor veterans on a monument. In a 2-1 decision in October, a federal court ruled that the Bladensburg World War I Veterans Memorial, a 90-year-old military memorial in Bladensburg, Md., which was built in memory of the 49 men of Prince George's County who died in World War I, is unconstitutional. The judges said it violates the Establishment Clause of the First Amendment to the U.S. Constitution. This is a dangerous decision as it could set a precedent that might threaten other memorials nationwide that mention God, like the Tomb of the Unknown Soldier in Washington, D.C.
Attorneys on behalf of The American Legion have a petition for a rehearing en banc (heard before the entire bench) on behalf of The American Legion. Kelly Shackelford, President and CEO of First Liberty Institute, which represents the American Legion, called the memorials "living reminders of our country’s history and the cost of war. How will we remember the fallen or teach the next generation about service and sacrifice if we start bulldozing veterans memorials and cemeteries across America? We will continue our work to overturn this decision and defend the memory of those who preserved our freedom.”
Time will tell if the petition is heard and what the Court decides.
It’s not all bad news for religious liberty. While some cases are lost, others are won or are still very much in the fight for preserving freedom. After three years of litigation, Living Ministries received final relief from the U.S. Department of Justice, that they are exempt from the Affordable Care Act’s controversial contraceptive mandate. The mandate forced ministries and other nonprofit organizations into either adhering to their religious beliefs or obeying the law. Now they will no longer be forced to choose between adhering to their religious beliefs or obeying the law.
Jeremy Dys, Deputy General Counsel for First Liberty Institute, the firm handling this case, said of the decision in a press release, “The last three years of litigation could have been avoided entirely if the Obama administration had simply recognized that the First Amendment protects the rights conscience of these religious ministries against an administration intent on coercing their obedience. We are grateful that the Trump administration has agreed to end this unnecessary and harmful assault on religious liberty.”
Liberals and the mainstream media often dismiss cases like these as alarmism. But these cases are merely a sampling of the many attacks on religious liberty this year. Indeed, Dys told me in an interview, “Most of our cases our about students who are pressured to give up religious rights in school, members of the military who are unable to pray -- even chaplains -- or about the rights Orthodox synagogues have to operate.” He explains while progressives may believe they are merely protecting the rights of non-believers, they are actually “undermining tolerance and damaging diversity.”
It’s obvious there are clear efforts to push First Amendment freedoms out of the public square. These efforts present themselves in a variety of ways: through legislation, through court battles, and through confused administrators who don’t want to offend non-religious activists and so, err on the side of caution. From a high school football coach fired for kneeling in prayer after games, and a bakery shut down for declining to create a custom cake to celebrate a same-sex wedding, to synagogues sued for practicing Kapparot, an atonement ritual among Orthodox Jews: Clearly the religious liberty war is no respecter of occupation, motivation, or religious practice.
Some of these cases--like the Bladensburg WWI Veterans Memorial--might seem relatively small or insignificant, but together, these small battles accumulate to what is actually a raging war on the freedom of believers. It’s imperative we continue to hold fast to the authority of our First Amendment and not to give up hope.
Masterpiece Cakeshop isn't about discrimination at all. Like many of these cases, it's a free speech issue, entangled with a free exercise issue. That's why both sides of the political aisle should remain informed and vigilant about landmark First Amendment cases.
Nicole Russell is a contributor to the Washington Examiner's Beltway Confidential blog. She is a journalist in Washington, D.C., who previously worked in Republican politics in Minnesota. She was the 2010 recipient of the American Spectator's Young Journalist Award.
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