Court clears narrow path for religious liberty

The Kentucky Supreme Court vindicated a Christian printer who didn’t want to print pro-LGBT messages, but the victory may prove hollow. The court dismissed an LGBT organization’s discrimination claims last Thursday but left significant free speech questions unanswered.

Since 2012, Blaine Adamson, the owner of Lexington, Ky., print shop Hands On Originals, has defended his right to decline making T-shirts promoting the city’s 2012 Gay Pride Festival because of his religious convictions about sexuality and marriage.

Lower courts upheld Adamson’s right not to print a message with which he disagreed. But the state Supreme Court sidestepped his free speech claims, dismissing the case because the Lexington gay rights organization that sued him is not an “individual” under the discrimination law.

Alliance Defending Freedom senior counsel Jim Campbell said the ruling should still encourage religious business owners, despite the narrow grounds. “When you look at the entire case, four out of five judges—one at the trial court level, two at the Court of Appeals, and one at the Supreme Court—agreed that there was a constitutional violation,” he said.

Courts often avoid addressing weighty or controversial constitutional issues when they can base rulings on narrower grounds. When the U.S. Supreme Court sided with cake designer Jack Phillips in 2018’s Masterpiece Cakeshop decision, it cited the Colorado Civil Rights Commission’s overt hostility to Phillips’ religious beliefs after he declined to design a custom cake for a same-sex wedding. That rationale left open the door to new lawsuits when Phillips refused to design a cake celebrating a gender transition.

And even though the same law was in question, a U.S. District Court in Colorado said the Masterpiece ruling did not apply in its decision that the state could require designer Lorie Smith to make websites that express messages that violate her religious beliefs. Smith has appealed the decision.

Kentucky Justice David Buckingham, in a concurring opinion, seemed to anticipate further problems, writing separately to address the constitutional issues. This case, he said, was about speech, not conduct: “Hands On was in good faith objecting to the message it was being asked to disseminate.” And unlike conduct, any regulation of expression that could impinge on rights found in the First Amendment to the U.S. Constitution is subject to strict scrutiny by courts.

There are bright spots: In early October, the Arizona Supreme Court ruled that Phoenix could not force Brush & Nib artists Joanna Duka and Breanna Koski to design and create custom wedding invitations with messages in conflict with their Christian beliefs. Later that month, the 8th U.S. Circuit Court of Appeals ruled unconstitutional a Minnesota law requiring Telescope Media’s Carl and Angel Larsen, who are Christians, to make and produce videos of same-sex weddings.

Despite mixed outcomes, one thing seems certain: Creative Christian professionals will continue to endure uncertainty and persecution until the U.S. Supreme Court draws a bright line protecting people who object to promoting messages that violate their religious beliefs. For small business owners like Adamson, that can’t come too soon.

Respite for faith-based adoption agencies

The U.S. Department of Health and Human Services last week proposed a rule to allow adoption and foster care agencies to place children according to their religious beliefs.

The new rule, announced on Friday, brings HHS grant regulations into compliance with recent court decisions and the Religious Liberty Restoration Act, a 1993 law protecting religious liberty.

Though many private child-placing agencies don’t directly receive federal grants, state child welfare departments do. And when a private agency contracts with the state to help place foster and adoptive children, it comes under the umbrella of federal regulations. Those regulations included sexual orientation as a protected class, and many faith-based agencies ran afoul of the rules by declining to place children with same-sex couples. Until recently, most states allowed faith-based agencies to refer same-sex couples who wanted to foster or adopt a child to other agencies.

Challenges to such religious accommodations have had mixed results. Miracle Hill Ministries in Greenville, S.C., received a waiver from the Trump administration, allowing it to continue child-placing services in accordance with its Christian beliefs. But that was only after months of uncertainty, and the exception didn’t necessarily protect other faith-based agencies.

In Michigan, Attorney General Dana Nessel, a Democrat, tried to require faith-based agencies to work with same-sex couples and LGBT individuals in the child-placement process. A federal court temporarily halted enforcement of those state rules as well as federal rules, but the case remains unresolved.

Philadelphia shut out Catholic Social Services from serving foster children and families because of unfavorable rulings in the federal courts. That case is currently on appeal to the U.S. Supreme Court.

“Ultimately, we need not just better regulations, but a clear answer from the courts,” tweeted Becket’s Lori Windham, co-counsel on the Philadelphia case. Until then, faith-based agencies face an uncertain future in their efforts to assist orphaned and vulnerable children. —S.W.

Reasonable request

A Christian school in Maryland asked a federal court for temporary relief after a school voucher program booted it out for requiring its preschool through eighth-grade students to refrain from sexual misconduct.

Bethel Christian Academy in June sued the state for not only terminating it from the voucher program but also for asking it to reimburse nearly $100,000 in voucher funds paid during the two years it participated in the program. The money had allowed many low-income students to attend the school.

Alliance Defending Freedom attorneys filed a motion in U.S. District Court on the school’s behalf, asking the court to stop the state from kicking the school out of the program or making it pay back the money until the case is resolved. They argued the state would only harm students who will be “forced to leave Bethel—or are deterred from attending Bethel—because the school can no longer receive their vouchers.”

“The government can’t discriminate against religious schools simply because it dislikes their religious beliefs,” said ADF counsel Christiana Holcomb, adding, “The U.S. Supreme Court ruled as recently as 2017 in Trinity Lutheran Church of Columbia v. Comer that the government can’t exclude religious groups from a neutral government program just because of their religious character.” —S.W.

Church vs. California abortion mandate

A church took the state of California to court over rules forcing it to cover elective abortions in its employees’ insurance plans. Attorneys for Skyline Wesleyan Church in La Mesa, Calif., presented the case to the 9th U.S. Circuit Court of Appeals in Pasadena on Monday.

In a brief filed before the hearing, attorneys for Skyline Wesleyan Church in La Mesa, Calif., argued the mandate unconstitutionally forced the church to violate its beliefs about the sanctity of life. State attorneys argued the church had not sought a religious exemption, but the judges seemed skeptical.

“You’re litigating this case, and if you wanted to give them an exemption, you could have just done it instead of spending lots of time writing briefs and coming here,” quipped U.S. Circuit Judge Michelle Friedland. To the nodding heads of the other judges, she added, “I don’t understand why we should think they really have a chance of getting an exemption when you’ve been fighting them tooth and nail.”

Alliance Defending Freedom attorneys filed the lawsuit after a 2014 rule change by California’s Department of Managed Health Care required religious organizations to cover elective abortion. The church appealed to the 9th Circuit after a U.S. District judge ruled against it. —S.W.

All clear

An aerospace company in New Mexico doesn’t have to remove workplace signs that use the word “God.” First Liberty attorneys contacted the U.S. Department of Energy when an overzealous government official directed a company contracting with the agency to expunge the word from inspirational signs at its workplace at Kirtland Air Force Base. The department quickly retracted the demand, leaving the company, whose slogan is “God, Family, Country,” buoyant. —S.W.