Attorneys General Attack Free Speech

maxresdefaultAfter months of political posturing, the targeted attack by several attorneys general against the free speech and free association rights of public policy organizations and private companies has ended. But the fight to preserve free speech rights is not over.

In March, attorneys general from fifteen states, including Washington State Attorney General Bob Ferguson, joined with attorneys general from the District of Columbia and the U.S. Virgin Islands to punish organizations that they claim have spread misinformation about the existence and consequences of global warming.

Known as Attorneys General United For Clean Power, the group is “dedicated to coming up with creative ways to enforce laws being flouted by the fossil fuels industry and their allies in their short-sighted efforts to put profits above the interests of the American people and the integrity of our financial markets,” said New York Attorney General Eric Schneiderman at the coalition’s inauguratory press conference, in which the attorneys general were joined by climate change propagandist and former Vice President Al Gore.

The group blames man-caused climate change for more violent storms and receding ice shelves in the Arctic, despite studies from reputable scientists that climate change is not causing extreme weather and that the polar ice caps have not receded since 1979, the first year NASA satellite data was collected.

“We have heard the scientists,” said Attorney General Eric Schneiderman. “There is no dispute [about global warming], but there is confusion – confusion sown by those with an interest in profiting from the confusion and creating misconceptions in the eyes of the American public.”

Shortly after the formation of the coalition, U.S. Virgin Islands Attorney General Claude E. Walker served subpoenas on Exxon and the Competitive Enterprise Institute, a free market think tank that does climate research.  It has published studies critical of climate change.

The subpoena demanded ten years of the think tank’s communications, research, and, perhaps most worrisomely, donor information. CEI President Kent Lassman called the subpoena a “baseless fishing expedition” and a “flagrant violation” of the First Amendment.

Thankfully, Attorney General Walker recently withdrew his subpoenas. CEI is seeking court-imposed sanctions against the attorney general.

Many are concerned that the inquisition mounted against certain political ideologies will create a chilling effect on public policy organizations. It is likely that think tanks, academics, and policymakers will now think twice before conducting research and publishing studies and policy recommendations that contradict politically correct narratives.

There is little disagreement among legal scholars that research published by think tanks is constitutionally protected speech. The free exchange of ideas that is promoted by the First Amendment to the U.S. Constitution is necessary for the health of our constitutional republic. The use of persuasion in open public discourse allows for the best ideas to supersede bad ideas.

Despite an entire apparatus of schools and media outlets that disseminate global warming propaganda, climate alarmists are losing the debate in the public square. A minority of Americans believe the government should be doing more to mitigate climate change, and the number of Americans who believe climate change is a serious problem is declining.

Not content with using persuasion to win arguments, Attorneys General United for Clean Power decided to use the force of law to criminalize the viewpoints of their political opponents.

Washington State Attorney General Bob Ferguson is well-acquainted with using the force of law to subdue those with whom he disagrees. Ferguson has been embroiled in a legal battle with Barronelle Stutzman, a Washington florist who declined to provide her creative services for a same-sex wedding ceremony. He also filed an amicus brief in the lawsuit against an Olympia pharmacy that declined to dispense abortifacients because of their religious convictions.

“While Ferguson may be sincerely concerned about climate change, the idea of the attorney general filing lawsuits against people who have different perspectives is highly problematic,” said FPIW’s Executive Director Joseph Backholm. “We should all be concerned about the instinct of our elected officials to say there is only one, absolute, infallible position on these issues that is above critique.”

It remains to be seen what will be the next steps of Attorneys General United for Clean Power.  Though Competitive Enterprise Institute and Exxon won the first battle, the attorneys general have now paved the way for using the legal system to silence people with opposing views. That should be concerning to every American who values our fundamental rights and the free exchange of ideas.

The post was originally written for the Family Policy Institute of Washington: http://www.fpiw.org/blog/2016/07/11/washington-ag-bob-ferguson-joins-effort-to-punish-freedoms-of-thought-speech/.

Congressional Hearings Begin on the First Amendment Defense Act

firstamendmentA congressional committee is considering legislation that would protect the fundamental rights of those who believe in traditional marriage.

The First Amendment Defense Act (FADA) “would prevent the federal government from discriminating against individuals, associations, or businesses, such as churches and religious colleges, by denying a tax exemption, grant, contract, license, or certification because they believe marriage is a union of one man and one woman.”

Worried that the Supreme Court’s decision in Obergefell v. Hodges (2015) laid the foundation to undermine religious liberty, Chief Justice John Roberts wrote in his dissent,

“Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage – when, for example, a religious college provides married student housing to only opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. There is little doubt that these and similar questions will soon be before the court.”

Passing FADA would be a great first step in alleviating these concerns.

FADA is modeled after the Church Amendments, which were adopted after the Supreme Court’s decision in Roe v. Wade (1973) that found a constitutional right to abortion. The Church Amendments protect the right of those who morally object to abortion to act in accordance with their convictions.

In the aftermath of Obergefell v. Hodges, it is imperative that the government affirms its obligation to protect the fundamental rights of those who believe in traditional marriage. No person or religious organization should be compelled to betray their beliefs about marriage to maintain a tax-exempt status or do business with the federal government.

Sadly, this view is not shared by many progressives and LGBT activists.  Testifying before the House Committee on Oversight and Government Reform, Columbia Law School Professor Katherine Franke claimed that “while religious belief is absolutely protected [under the First Amendment], religiously motivated actions are not.”

The professor’s position is indefensible. This statement is comparable to saying that the First Amendment only protects an individual’s right to hold opinions, but not his or her right to speak publicly about them.

Contrary to Professor Franke’s interpretation, the First Amendment does protect the “free exercise [of religion].” Free exercise includes actions that are motivated by religious convictions. The government can limit these actions only when it has a compelling interest to do so. It is absurd to conclude that the federal government has a compelling interest to ostracize and punish organizations that uphold the traditional definition of marriage.

Our founders understood the danger of allowing government to interfere in religious beliefs, and they protected against that by ratifying the First Amendment. In a letter to a Presbyterian pastor, Thomas Jefferson wrote, “I consider the [federal] government of the United States as [prohibited] by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises.”

Jefferson continued, “In this enlightened age and in this land of equal liberty it is our boast that a man’s religious tenets will not forfeit the protection of the laws…”

Most Americans, including those who support same-sex marriage, would hopefully agree that it would be wrong for the federal government to discriminate against religious organizations because of their beliefs about marriage.

Religious liberty is too important to be sacrificed on the progressive altar of inclusion and political correctness.

This post was originally written for the Family Policy Institute of Washington: http://www.fpiw.org/blog/2016/07/12/congressional-hearings-begin-on-first-amendment-defense-act/. 

Iowa Civil Rights Commission May Punish Pastors Who Preach Sermons on Sexuality

fdmcocIt may now be against the law for Iowa pastors to teach that God created mankind – male and female – in His own image (Genesis 1).

The religious liberty organization Alliance Defending Freedom, on behalf of the Fort Des Moines Church of Christ, launched a pre-enforcement challenge to the Iowa Civil Rights Commission’s new interpretation of the Iowa Civil Rights Act, passed in 2007.

Under this new interpretation, the state may prohibit churches from making “persons of any particular sexual orientation or gender identity” feel “unwelcome, objectionable, [or] not acceptable,” according to a brochure published by the Iowa State Civil Rights Commission.

Lawyers representing the Fort Des Moines Church of Christ worry that this broad interpretation of the Civil Rights Act could be used to silence preachers teaching from the pulpit about biblical sexuality. Comments from church officials that make a gay or transgender person feel ‘uncomfortable’ during services or any other event open to the public may put the church in violation of the law.

The Iowa Civil Rights Commission has also determined that places of public accommodation — now including churches, which are open to the public — must allow individuals to use whatever locker room, shower, or bathroom is consistent with their gender identity, regardless of their biological sex.

First Liberty Institute, another religious liberty organization, sent a letter to the Civil Rights Commission on behalf of Cornerstone World Outreach, a church in Sioux City. The letter asks the Commission to provide the church with an exemption by August 4. First Liberty Institute is willing to pursue “all available legal options” if the church is not granted the exemption.

“The state claims it has the power to regulate what the church even teaches – what they are allowed to say from the pulpit – in addition to how they operate regarding matters of gender and sexuality,” Chelsey Youman, an attorney with First Liberty Institute, said. “If the church has a doctrine or theology that is at odds with the state and they speak out about that – they can have the full weight of the law brought down against them.”

The most worrisome development is the Iowa Civil Rights Commission’s decision to subject churches to public accommodation requirements. Though churches are exempt from requirements of the Iowa Civil Rights Act in their “bona fide religious activities,” the Commission has decided that any service or activity open to the public is a public accommodation that is not exempt from civil rights law.

Our founding fathers warned us about the danger of tyranny when government begins to meddle in the affairs, beliefs, and practices of churches. In the Virginia Act for Establishing Religious Freedom, Thomas Jefferson wrote,

“That to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own.”

Churches in Washington state should pay attention to these developments in Iowa. Religious organizations are currently exempted from Washington’s non-discrimination law, though what qualifies an organization as “religious” is murky. If Washington were to follow Iowa’s lead in defining church services as public accommodations, the religious organization exemption may no longer protect a significant portion of church activities.

If pastors don’t stand up now, they may soon have to break the law in order to preach the Word.

This post was originally written for the Family Policy Institute of Washington: http://www.fpiw.org/blog/2016/07/05/iowa-civil-rights-commission-bans-pastors-from-preaching-sermons-on-sexuality/.

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Update: After this article was published, the Iowa Civil Rights Commission issued a “clarification” that churches are “generally exempt” from the law. Alliance Defending Freedom and Fort Des Moines Church of Christ are proceeding with their lawsuit, stating that the agency’s clarification amounts to “cosmetic changes.”

In her statement, Christina Holcomb, an attorney with ADF, said, “The change in the brochure doesn’t fix the inherent problem with the Civil Rights Act that forms the basis of the lawsuit—that the act gives the commission power to determine what parts of a church’s activities do not have a ‘bona fide religious purpose’ and are thereby subject to the act’s prohibitions.”