Unlike in any other nation, religious freedom and free speech have flourished in America. For over two centuries, our culture has enjoyed rigorous debate, intellectual individualism and an unfettered pursuit of truth by people of all faiths and people of no faith. Our founders wisely protected these God-given freedoms via the United States Constitution, and the First Amendment in particular. But today, some question whether these protections can survive in our increasingly intolerant culture.
Indeed, freedom’s foes speak of “inclusion” and “tolerance,” but they act to exclude and oppress. It may not be the overt, violent oppression that too many people of faith suffer abroad, but there is systematic government suppression of religious faith in America.
We have seen it in many places. Federal officials threatened to shutter Geneva College and ministries such as Little Sisters of the Poor unless they agreed to fund abortion. States ordered religious pro-life pregnancy centers to either promote free abortions or stop helping women. Conservative and religious speakers invited by students have been denied access to public campuses. And Jack Phillips, the small-town Colorado cake artist, was forced to give up the wedding business that generated nearly half of his family’s income because he could not in good conscience use his art to celebrate a ceremony that violated his faith.
I lead the U.S. legal team at Alliance Defending Freedom, and we regularly confront this sort of intolerance toward religion. As Christians, we seek to follow the call to love God and our neighbor. We promote what is good and refuse to condone or compromise in what is evil or harmful to our neighbor—even when that brings conflict with the government and its ill-founded laws.
The legal landscape for religious freedom is complex, even daunting. But I’m increasingly optimistic. In barely eight years, God’s remarkable grace brought 10 Supreme Court victories through Alliance Defending Freedom advocacy. Geneva College, the pro-life pregnancy centers and Jack Phillips won in the highest court of our land. Free speech on public university and college campuses has prevailed in courts and legislatures across the country. And as these cases were litigated, argued and won, more than 170 new judges, committed to the rule of law, have joined the federal bench.
In 2019 alone, we saw many more incredible victories:
- Young artists Joanna Duka and Breanna Koski, owners of Brush & Nib Studio, prevailed against an unjust law that would fine them, and even send them to jail, if they created art celebrating weddings but declined to celebrate unions that conflicted with their Christian conscience. “The rights of free speech and free exercise, so precious to this nation since its founding,” the Arizona Supreme Court explained, include “the right to create and sell words, paintings and art that express a person’s sincere religious beliefs.”
- Minnesota filmmakers Carl and Angel Larsen, owners of Telescope Media Group, faced jail time and fines if they committed to only creating wedding films that are consistent with their faith. According to the U.S. Court of Appeals for the 8th Circuit, the government’s attempt to force them to violate their beliefs could also lead to state officials “[forcing] a Democratic speechwriter to provide the same services to a Republican.”
- Sherrie Laurie, of Downtown Hope Center, won a crucial victory for homeless women in Alaska. There, Anchorage claimed that its gender-identity law forced women in the overnight shelter to sleep three to five feet from a biological male who identified as female. But a federal court stopped that from happening.
- The New York City Council repealed a law it had passed a year before, after Orthodox Jewish psychotherapist Dr. Dovid Schwartz challenged the law, which barred him from simply talking with adult patients who desired to reduce same-sex attraction or their discomfort with their biological sex. Mere conversation between doctor and patient was made illegal, with fines up to $10,000.
Looking ahead, there are more great opportunities to protect religious freedom. In 2020, one case asks the U.S. Supreme Court to make clear that the First Amendment prohibits the government from forcing artists to participate in or create art celebrating religious ceremonies against their conscience.
In Arlene’s Flowers v. State of Washington, floral artist Barronelle Stutzman serves everyone—regardless of their sexual orientation—including a longtime customer who she knew was in a same-sex relationship. But because she could not in good conscience create custom floral art celebrating his same-sex wedding, she faces the loss of nearly all she owns. We pray the Supreme Court decides to hear her case.
The high court will also consider whether governments can exclude students attending private religious schools from student-aid programs available to those who attend secular private schools. The name of that case is Espinoza v. Montana Department of Revenue. Montana law allowed its citizens to give to charitable organizations that provide scholarships to children at any private school, including religious schools. But the state interpreted its constitution to require discrimination against parents who want to enroll their children in religious schools. We hope the Supreme Court puts an end to that unjust discrimination.
A cluster of important cases winding their way to the Supreme Court involve the freedom of faith-based adoption and foster care providers. Government officials have barred highly successful providers unless they agree to violate their long-standing convictions against placing children in homes with unmarried cohabiting or same-sex couples. Catholic Social Services in Philadelphia has asked the Supreme Court to intervene. Cases involving New York and Michigan ministries follow closely behind. A few other plaintiffs have also asked the high court to clarify that these beneficial ministries have broad freedom to determine their structure and employment policies.
The Trump administration is also working to protect First Amendment freedoms. For example, it has taken steps to protect nurses and doctors so they aren’t forced to choose between serving those most in need and violating their beliefs about the value of human life or the nature of sexuality. The administration has also issued guidelines to federal agencies, urging them to protect religious freedom.
At the legislative level, over a dozen states have passed First Amendment protections for students at public universities. In the face of restrictive speech zones, unconstitutional speech codes and arbitrary viewpoint discrimination against student groups, state lawmakers have ensured that intellectual diversity and the free exchange of ideas can flourish at public universities.
But those who oppose freedom are pushing back. They are putting enormous energy into the so-called Equality Act—an Orwellian bill that adds “sexual orientation” and “gender identity” as protected classes to portions of federal law. In 2019, the bill passed the House of Representatives but stalled in the Senate.
Advertised as a “nondiscrimination” law, the Equality Act would force ministry leaders, business owners, and artists to violate their religious beliefs about marriage and sexuality. It would compel medical professionals, parents and ministry leaders to provide or endorse so-called “sex-change” surgeries and treatments—even in the face of serious scientific and religiously based concerns. And it would push female athletes to the sidelines because federal law would require them to compete against biological males.
Bad laws like the Equality Act are not inevitable. Even LGBTQ advocates such as GLAAD are puzzling over the possibility that their influence over younger Americans on matters like transgenderism may be waning. As ADF argued before the U.S. Supreme Court in October in Harris Funeral Homes, if sex is redefined (or mis-defined) in federal law to mean “gender identity,” that would undermine religious freedom and jeopardize rights and opportunities for women. Even radical feminists have found common cause in asking the Supreme Court “to rule definitively that Congress intended for the word sex to follow the longstanding, traditional meaning of the term—the biological classification of human beings as either female or male.” The Supreme Court should rule on this issue in the first half of 2020.
There is also danger if Christian leaders fall for false compromises, such as a proposal known as Fairness for All. That law would implement the core of the Equality Act with a fig leaf of protection for explicitly religious organizations—churches, religious schools and religious nonprofits. But the First Amendment should already offer such protections, and Fairness for All isn’t fair for anyone who serves outside of a religious organization or for parents and women whose rights will be undermined by the law’s gender-identity provisions. Fortunately, groups like The Heritage Foundation, the Southern Baptist Ethics & Religious Liberty Commission, the U.S. Conference of Catholic Bishops and many others oppose this misguided effort.
None of the threats to religious freedom should surprise us. As U.S. Supreme Court Justice Samuel Alito said in 2017:
“A wind is picking up that is hostile to those with traditional moral beliefs. We are likely to see pitched battles in courts and Congress, state legislatures and town halls. But the most important fight is for the hearts and minds of our fellow Americans.”
Justice Alito was right. With clear eyes, kind words and faithful conviction, we must take our message about the value of religious freedom and free speech to the water coolers, boardrooms, classrooms and our very own dinner tables. Freedom, like power, is contested in every generation. We all play a role in developing a thriving society where each generation enjoys their God-given right to speak and live consistent with their deeply held convictions. ©2019 Kristen Waggoner
Kristen Waggoner serves as senior vice president of the U.S. Legal Division for Alliance Defending Freedom, the world’s largest legal organization committed to protecting religious freedom, free speech, parental rights and sanctity of life. She oversees ADF’s U.S. legal work and most recently argued the Masterpiece Cakeshop case at the U.S. Supreme Court. Follow Kristen on Twitter @KWaggonerADF or follow ADF @AllianceDefends.