Liberties Reporting on First Amendment freedoms

Do as we say, not as we do

Religious Liberty | Australian Christians hope to avoid U.S. religious liberty battle with conscience protections in same-sex marriage bill
by Bonnie Pritchett
Posted 11/21/17, 04:15 pm

As attorneys for Colorado baker Jack Phillips prepare to defend his religious and free speech rights before the U.S. Supreme Court on Dec. 5, the Australian Parliament is drafting same-sex marriage legislation that some fear could criminalize similar dissent Down Under.

Australians overwhelmingly showed their approval of same-sex marriage in a recent postal poll. The results, published Nov. 15, showed 61.1 percent approve of state-recognized same-sex marriage. Legislators are taking the results as a mandate to move ahead on marriage legislation that Prime Minister Malcolm Turnbull pledged to push through Parliament by Christmas.

Those who championed a “No” vote on the survey warned that a same-sex marriage law would threaten Australians’ religious and free speech liberties. Although mocked as fearmongers, their predictions now are playing out in Parliament.

“No sooner had the plebiscite result been announced, the Yes [campaign] side immediately ridiculed the idea of protecting business owners from being coerced to violate their consciences,” Lyle Shelton, managing director of the Australian Christian Lobby and WORLD’s 2016 Daniel of the Year, told me. “This was seen akin to racism, rather than what it is—freedom not to participate in an activity that goes against one’s sincerely held beliefs.”

In the wake of the 2015 U.S. Supreme Court decision sanctioning same-sex marriage (Obergefell v. Hodges), Americans have endured incremental restrictions to their First Amendment liberties with the passage of sexual orientation and gender identity (SOGI) laws at the municipal and state levels.

The High Court of Australia in 2013 deferred the question of same-sex marriage to Parliament after ruling a proposed marriage law conflicted with the nation’s Marriage Act of 1961. But the impositions on speech and religious liberty the United States has experienced in just two years since the Obergefell decision could happen in one fell swoop if Parliament passes legislation now under consideration, Shelton said.

He added that same-sex marriage supporters, emboldened by the overwhelming support in the plebiscite, “doubled down” on legislation that provides only cursory protections for clergy and commercial businesses operated by churches but no free speech protections for business owners.

As in the United States, the ongoing demonization of Australia’s same-sex marriage opponents is driving the effort to pass legislation with no conscience protections. According to Shelton, gay marriage supporters derided and dismissed a bill that would have shielded Christian-owned businesses from discrimination claims.

When U.S. Supreme Court Justice Anthony Kennedy penned his emotionally charged Obergefell opinion, he said people of goodwill will disagree with the high court’s decision to sanction same-sex marriage—implying a live-and-let-live conciliation. But activists’ coordinated efforts to disparage and criminalize a Biblical view of marriage propelled the issue back to the Supreme Court in Phillips’ case.

Shelton hopes to avoid America’s conflict by inscribing conscience protections into his country’s same-sex marriage legislation.

“We would like to see protections for freedom of speech, the freedom of religious schools to teach and act out their beliefs about marriage,” he said. “Essentially we are seeking a ‘no detriment’ clause so that no one who holds a belief in traditional marriage is penalized for their belief at work or in the wider society.”

Associated Press/Photo by Gillian Flaccus Associated Press/Photo by Gillian Flaccus Elliot Yoder

Oregon parents fight transgender school policy

Parents in a rural school district south of Portland, Ore., have filed a lawsuit in federal court challenging a school policy that allows a biological female to use the boys’ locker room. The lawsuit, filed Nov. 13, joins a trend of legal challenges from students and parents who say school administrators have dismissed their concerns over privacy and transgender accommodation policies.

The privacy rights of all students must be considered when making accommodations for gender dysphoric youth, said Herbert Grey, attorney for a group of current and former students, their parents, and two privacy advocacy groups. An attorney for the American Civil Liberties Union in Oregon called the lawsuit “cruel” but not a credible threat to transgender student rights.

Until this year, Elliot Yoder, a 16-year-old girl who wants to be treated as a boy, had not taken advantage of a 2015 school district policy allowing her to use the facilities that correspond with her gender identity. But Yoder recently asked to use the boys’ locker room to change clothes before gym class. She previously used a gender-neutral restroom but said it was too far from the gym.

Grey said the policy allowing a girl to change clothes with boys puts the boys in an uncomfortable situation and violates their right to privacy.

In a similar lawsuit in Pennsylvania, a female student who identifies as male was allowed, without any notification to students or parents, to use the boys’ locker room. The parents of three Boyertown Area School District students lost their lawsuit in the lower courts but have appealed to the 3rd U.S. Circuit Court of Appeals. —B.P.

Associated Press/Photo by David Goldman Associated Press/Photo by David Goldman A man plays a piano next to pews removed from Memorial Baptist Church after Hurricane Harvey hit Port Arthur, Texas.

Judge orders FEMA to reconsider church policy

A federal judge has given Federal Emergency Management Agency (FEMA) officials until Dec. 1 to end a policy excluding houses of worship from financial disaster relief aid. If they don’t, the court will do it for them. The Trump administration also asked Congress to consider legislation that would put an end to the decadeslong FEMA regulation.

Although help appears to be on the horizon, it likely will arrive too late for the three storm-battered Texas churches that filed the lawsuit. The deadline for filing for federal disaster aid relief is Nov. 30.

FEMA’s policy of excluding churches from recovery grants offered to other nonprofit organizations “is fraught with Establishment Clause and Free Exercise issues,” Judge Keith Ellison said in his Nov. 10 order. The crux of the case lies in the value the agency places on the role houses of worship play in their communities. —B.P.

Senators back embattled Air Force officer

A group of eight U.S. senators has asked Secretary of the Air Force Heather Wilson to intervene on behalf of an embattled officer whose Christian beliefs about marriage sparked a formal Equal Opportunity complaint. The letter asks Wilson to reverse the complaint findings and provide commanders with formal guidance and training for addressing the religious liberties of Air Force personnel.

In the course of signing congratulatory documents last May for a retiring noncommissioned officer, Col. Leland B.H. Bohannon came upon one document he could not, in good conscience, put his name to: a letter thanking the retiree’s same-sex partner for his support. Bohannon asked a senior officer to sign it in his stead. That drew the retiree’s ire, and he filed an Equal Opportunity complaint eventually substantiated by an investigator.

Bohannon acted reasonably, considering he had no guidance from superior officers or a written policy, said the senators, who include Republicans Ted Cruz of Texas, James Lankford of Oklahoma, and John Kennedy of Louisiana. The investigators’ decision “runs afoul of this country’s most foundational tenet,” that the government cannot force citizens to ascribe to a particular view, they wrote. —B.P.

Because harassing nuns is fun?

The Little Sisters of the Poor once again must defend their constitutional right and God-given mandate to serve the poor and needy free from government orders that violate their conscience. Several states recently filed lawsuits against the federal government demanding the reversal of a U.S. Health and Human Services policy change, issued Oct. 6, that frees non-profit charities like Little Sisters from the Obamacare contraceptive and abortifacient mandate. The Becket Fund for Religious Liberty intervened on the nuns’ behalf in lawsuits in California and Pennsylvania that seek to end the religious exemption, forcing the nuns, again, to defend their faith in court. —B.P.

Bonnie Pritchett

Bonnie reports on First Amendment freedoms for WORLD Digital.

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