Still looking for relief

Lawsuits on appeal to the U.S. Supreme Court tested the First Amendment’s application of free speech and religious liberty in 2018, and the cases arrived at a court whose ideological bent has shifted since they were filed. The court agreed to hear one case, but the year closes leaving Christian plaintiffs where they began—looking to the New Year for relief.

Back where Jack started

Religious liberty and free speech proponents began the year awaiting vindication from the U.S. Supreme Court in the Masterpiece Cakeshop v. Colorado Civil Rights Commission case, but none was forthcoming. The June ruling provided short-lived relief for baker Jack Phillips only. Christian wedding industry business owners will close out 2018 still fighting for their rights of conscience as Phillips faces a new discrimination allegation whipped up by LBGT activists.

Phillips won, but the half-baked decision failed to address the underlying conflict in Masterpiece: Do nondiscrimination laws require business owners to violate their religious convictions about sex and marriage to service LGBT-affirming events?

With no relief from Masterpiece, similar lawsuits lumbered forward, except for one: The Supreme Court returned florist Barronelle Stutzman’s case back to the Washington Supreme Court for a rehearing in light of its Masterpiece decision. That state court ruled unanimously against Stutzman in 2017. All filings in the case, Ingersoll v. Arlene’s Flowers, are due Jan. 7. Then the court will determine how to proceed.

A second wave of Supreme Court appeals came this fall from Oregon bakers Melissa and Aaron Klein and Minnesota videographers Carl and Angel Larsen. The court has not yet ruled on whether it will hear either case; it issues its next orders list Jan. 7.

At the state level the Arizona and Kentucky Supreme Courts have agreed to hear the cases of, respectively, calligraphers Breanna Koski and Joanna Duka and T-shirt designer Blaine Adamson. Neither court has set a hearing date.

And Phillips is back in Colorado court because LGBT activists want their cake and demand he bake it. Just weeks after his 7-2 Supreme Court win, a transgender attorney filed a complaint with the Colorado Civil Rights Commission because Phillips refused to create a cake celebrating the attorney’s male-to-female “transition.” Phillips sued the commission in response.

Colorado’s religious liberty advocates can expect no assistance from Gov.-elect Jared Polis, who is gay. During his 10-year tenure as a congressman, Polis, a Democrat, championed pro-LGBT legislation including the Equality Act to amend the 1964 Civil Rights Act to include sexual orientation and gender identity as protected classes. —B.P.

Legal assaults on Christian child welfare agencies

Legal challenges at the city, state, and federal level threaten religious child placement agencies’ government funding and state-sanctioned protection from discrimination lawsuits. Refusing to supplant their Biblical convictions about marriage to LGBT demands took its toll in 2018.

“Policymakers and Christ-followers need to understand that the end goal of LGBT activist groups is clear—they want to exclude believers from operating child welfare agencies according to their faith and even from being adoptive or foster parents,” said Eric Teetsel, director of the Family Policy Alliance of Kansas.

Case in point: In May, Teetsel championed a new Kansas law that protects religious agencies from ruinous lawsuits. But Gov.-elect Laura Kelly, a Democrat, called the law “discriminatory” and promised to undermine it.

A federal judge in Michigan ruled Sept. 14 that a case brought by a lesbian couple against that state’s protective law can go forward. The lawsuit could jeopardize the standing of similar laws in seven states.

On the municipal front, officials in Philadelphia and Buffalo, N.Y., after decades of partnering with religious child placement agencies, suddenly demanded they place children with same-sex couples or lose their contracts.

The agencies’ response was mixed. Rather than capitulate, Catholic Charities of Buffalo will let its contract expire in March 2019. In Philadelphia, Bethany Christian Services quietly acquiesced to the demand while Catholic Social Services sued to keep its contract according to its Biblical convictions. Arguments in that case, Fulton v. City of Philadelphia, went before the 3rd U.S. Circuit Court of Appeals on Nov. 6.

At the federal level, the U.S. District Court for the District of Columbia heard arguments Nov. 30 in Marouf v. Azar. A married lesbian couple from Texas sued the U.S. Department of Health and Human Services (HHS) in February for contracting with U.S. Conference of Catholic Bishops (USCCB) and its subcontractor, Catholic Charities, for the care of refugee children. Catholic Charities refused to place a refugee child with the couple.

And the Anti-Defamation League has questioned the constitutionality of HHS funds filtered to religious child placement agencies via the South Carolina Department of Social Services. The organization contends a South Carolina agency’s requirement that prospective parents be confessing Christians amounts to an unconstitutional religious litmus test.

Forcing Christian agencies to close rather than fight expensive litigation would devastate an already overburdened child welfare system, Teetsel told me. —B.P.

The meaning of ‘sex’

Two lawsuits seeking to define one word could slow or even reverse pro-LGBT nondiscrimination regulations established in recent years by judicial fiat or administrative law if the U.S. Supreme Court agrees to hear their cases.

The lawsuits, R.G. & G.R. Harris Funeral Home v. EEOC and Altitude Express v Zarda, ask the high court to define the word “sex” as used in Title VII of the 1964 Civil Rights Act. The Obama-era Equal Employment Opportunity Commission and rogue courts bypassed Congress and established federal policies redefining the word.

“Congress has repeatedly declined to redefine sex as sexual orientation and gender identity,” said Emilie Kao, director of the DeVos Center for Religion and Civil Society at the Heritage Foundation. “Such a redefinition would have a dramatic impact on employers across the country, including requiring them to pay for controversial medical procedures like hormones and surgeries for employees with gender dysphoria.”

The lawsuits arrive at an ideologically different Supreme Court than when first filed. The addition of Justices Neil Gorsuch and Brett Kavanaugh to the bench could produce a majority less inclined to affirm malleable definitions for human biology.

And the Trump Administration’s call for a uniform definition of sex based on immutable biology, not self-perception, in all federal policy could also confound efforts to change the meaning of sex in court.

“The Supreme Court should respect the will of the American people working through their elected representatives when considering attempts to redefine sex,” Kao told me. —B.P.

Razing the cross?

The U.S. Supreme Court has agreed to hear the lawsuit brought by atheists claiming a cross-shaped World War I memorial sitting on public land and maintained by the government violates the Establishment Clause of the U.S. Constitution. The court’s decision could determine whether similar religious displays face the wrecking ball, said Jeremy Dys, an attorney with First Liberty. He is representing the American Legion in defense of the cross in Bladensburg, Md.

The 40-foot-tall cross was erected on private land in 1925 to memorialize 49 U.S. servicemen from Bladensburg who died fighting in the Great War. The monument never moved, but the property lines did. It now sits on public land, and the Maryland–National Capital Park and Planning Commission, a defendant in the lawsuit, maintains the property.

The American Humanist Association claims that arrangement creates a government endorsement of religion and is suing to have the cross removed. The 4th U.S. Circuit Court of Appeals agreed with the atheists earlier this year.

Dys told me if the Bladensburg cross must come down, so, too, must religious imagery at “Arlington National Cemetery and the hundreds of similar memorials across the country.”

The Supreme Court has the opportunity to clarify conflicting Establishment Clause jurisprudence that produces an endless cycle of lawsuits challenging the use of religious imagery by governments, Dys said. A decision protecting the Bladensburg cross would affirm the context in which such displays are erected and allow communities to establish monuments on public land that reflect their common heritage, culture, and, yes, even their religion. —B.P.