Posts tagged with: United States Constitution

Blog author: jcarter
Wednesday, July 1, 2015

hist-ff-first-amendment-7195911“The U.S. Supreme Court’s decision to make same-sex marriage a constitutional right under the Fourteenth Amendment,” says Zack Pruitt in today’s Acton Commentary, “will generate huge conflicts—in some cases unforeseen—with the First Amendment right to the free exercise of religion.” Fortunately, some legislators are already attempting to do something to prevent such conflicts.

Even before the recent Supreme Court ruling, Senator Mike Lee (R-UT) and Rep. Raúl Labrador (R-ID) introduced legislation to clarify and strengthen religious liberty protections in federal law, by “safeguarding those individuals and institutions who promote traditional marriage from government retaliation.” The First Amendment Defense Act (S. 1598, H.R. 2802) would prevent any federal agency from denying a tax exemption, grant, contract, license, or certification to an individual, association, or business based on their belief that marriage is a union between a man and a woman. For example, the bill would prohibit the IRS from stripping a church of its tax exemption for refusing to officiate same-sex weddings.

scaliaOver the past hundred years few judges have been able to match the wit, wisdom, and intellectual rigor of Supreme Court Justice Antonin Scalia. During his thirty year career he has been an indefatigable champion of originalism (a principle of interpretation that views the Constitution’s meaning as fixed as of the time of enactment) and a vociferous critic of the slippery “living constitution” school of jurisprudence. When future historians assess his career Scalia will be viewed as one of the most thoughtful, principled, and important jurists of his era.

But even a legal genius can produce a disastrous opinion, and Scalia delivered his worst twenty-five years ago this week in Employment Division v. Smith. As Michael Stokes Paulsen explains, this ruling has “proven to be one of the most devastatingly long-term harmful Supreme Court constitutional decisions of the past half century.”

RFRA1Last week, Indiana Governor Mike Pence (R) signed his state’s Religious Freedom Restoration Act. Social media went a bit, well, bonkers. Hillary Clinton tweeted, “Sad this new Indiana law can happen in America today. We shouldn’t discriminate against ppl bc of who they love #LGBT.” The CEO of SalesForce, headquartered in Indiana, says they will pull out. Tim Cook, the chief executive of Apple, has called religious freedom laws “dangerous” and likens them to Jim Crow laws.

What’s all of this about?

First, the federal Religious Freedom Restoration Act (RFRA) was signed by then-President Bill Clinton in 1993. This act re-instated what is known as the Sherbert Act, in which the Supreme Court:

…set out a three-prong test for courts to use in determining whether the government has violated an individual’s constitutionally-protected right to the free exercise of religion. (more…)

o-SUPREME-COURT-BUILDING-facebookOne of the core principles of the Acton Institute is the importance of the rule of law: “The government’s primary responsibility is to promote the common good, that is, to maintain the rule of law, and to preserve basic duties and rights.”

While most conservatives would agree with this sentiment, there has recently been a lot of confusion about what defending the rule of law requires and entails. The most troubling mistake is the confusion of the rule of law with judicial supremacy, the view that the Supreme Court gets to have the “final say” on the meaning of the Constitution and that the other branches of government may not contradict it.

As Carson Holloway says, conservatives should defend the Constitution and the rule of law, but they should not defend judicial supremacy. The Constitution—not the Supreme Court—is our country’s highest authority:


blaine-standing-leftEleven years ago this week, the Supreme Court handed down a ruling in Locke v. Davey that continues to have a detrimental impact on religious liberty. But the seeds for that ruling were planted 140 years ago, in another attempt to curb religious liberty.

When James Blaine introduced his ill-fated constitutional amendment in 1875, he probably never would have imagined the unintended consequences it would have over a hundred years later. Blaine wanted to prohibit the use of state funds at “sectarian” schools (a code word for Catholic parochial schools) in order to inhibit immigration. Since the public schools instilled a Protestant Christian view upon its students, public education was viewed as a way to stem the tide of Catholic influence.

While the amendment passed by a large majority (180-7) in the House, it failed by a tiny margin (4 votes) in the Senate. Supporters of the amendment, however, pressed the issue at the state level, often making it a prerequisite for statehood. The measure finally found its way into 37 state constitutions, including Washington State.

Fast-forward to 1999, where a Washington high school student Joshua Davey applies for the state sponsored “Promise Scholarships.” According to a press report in 2004:

billofrightsWhen the Founding Fathers were drafting the U.S. Constitution, they didn’t initially consider adding a Bill of Rights to protect citizens because it was deemed unnecessary. It was only after the Constitution’s supporters realized such a bill was essential to getting approved by the states that they proposed enumerating such rights in twelve amendments. (Ten amendments were ratified; two others, dealing with the number of representatives and with the compensation of senators and representatives, were not.)

The Bill of Rights was included in 1791 to limit the power of the Federal government and secure individual liberty. But in 2015 those rights are being eroded as more power is handed over to the government by the courts. As David Corbin and Matt Parks claim, the structural limitations of the Constitution have all disappeared, swallowed up by ideas like “commerce,” “general welfare,” and “necessary and proper.”

IVCF_bannerEarlier today a federal appeals court handed down an important ruling that protects the liberties of religious organizations.

In the case of Alyce Conlon v. InterVarsity Christian Fellowship/USA, the United States Court of Appeals for the Sixth Circuit rejected a plaintiff’s attempt to enforce state and federal gender discrimination laws on one of the nation’s largest Christian campus ministries.

According to the court opinion, Alyce Conlon worked at InterVarsity Christian Fellowship/USA (IVCF) in Michigan as a spiritual director, involved in providing religious counsel and prayer. She informed IVCF that she was contemplating divorce, at which point IVCF put her on paid—and later unpaid—leave. Part of IVCF’s employment policy is that “[w]here there are significant marital issues, [IVCF] encourages employees to seek appropriate help to move towards reconciliation” and IVCF reserves the right “to consider the impact of any separation/divorce on colleagues, students, faculty, and donors.”

When Conlon’s marital situation continued to worsen despite counseling efforts, IVCF terminated her employment. Conlon sued IVCF and her supervisors in federal district court under Title VII and Michigan law. IVCF claimed the First Amendment’s ministerial exception to employment laws.

The Sixth Circuit rejected Conlon’s claims based on conclusions in the Supreme Courts’ ruling in Hosanna-Tabor Evangelical Lutheran Church and School (2012).