GetReligion
Friday, April 04, 2025

RFRA

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Separation of church, state and pot: NYTimes says religious liberty issues here are not a joke

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Think of it as one of the defining mantras of America’s church-state orthodoxy: state officials are supposed to avoid getting entangled in deciding what is good doctrine and what is bad doctrine. They are, of course, allowed to worry about matters of profit, fraud and clear threat to life and health.

However, the legal powers that be have also had wrestle with other questions tied to the stunningly liberal (in the old sense of that word) framework created by the First Amendment: Who gets to decide what is a “religion” and what is not? How does the state decide who is sincere and who is, well, sleazy?

You can see all of these issues rumbling about in an important New York Times piece that I have been trying to sort out for some time now. This topic has been covered before (click here for earlier GetReligion posts), but this story — in my opinion — probes deeper. Here is the sweeping double-decker headline:

Inside the War for California’s Cannabis Churches

Illegal marijuana dispensaries outnumber legal ones more than three to one in California. What’s the role of the cannabis church?

Now, church-state experts have — at the U.S. Supreme Court and in Congress — wrestled with issues related to religious rights that involve drugs that are or have been illegal. It’s natural to ask if these religious organizations are offering rites incarnating centuries of religious traditions and doctrines (think Native Americans and peyote) or are they modern innovations to help people avoid laws they do not accept?

At first, I thought that money questions were going to completely dominate this Times piece — which is understandable. Is the Jah Healing flock a church or a cannabis storefront? I was glad when broader church-state issues entered the discussion.


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Religious Freedom Restoration Act: AP story shows why this is a law liberals could love

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Many of us may have heard of the Religious Freedom Restoration Act, which has been in effect since 1993 during the administration of President Bill Clinton. This was an era in which a broad coalition of liberals and conservatives often worked together on religious liberty issues.

Of course, RFRA has been vilified by liberals as a sop to conservatives, chiefly because it was used successfully in the 2014 U.S. Supreme Court “Hobby Lobby” case that allowed the crafts store chain to not provide birth control coverage for its employees. RFRA is frequently connected to religious liberty debates linked to LGBTQ issues, as well.

But now, many critics of RFRA are praising it after it was employed in the defense of Scott Warren, a Unitarian who was charged with harboring illegal aliens near a border crossing in the Arizona desert in January 2018. Our own Bobby Ross wrote about this case here and here.

A new Associated Press analysis describes why RFRA suddenly became important again:

Religious liberty is often a high priority for conservatives, but last week’s acquittal of an Arizona man prosecuted for aiding migrants along the U.S.-Mexico border is spotlighting the ability of religious freedom law to shield people of faith regardless of political ideology.

The case of Scott Warren, a college instructor and volunteer with a humanitarian group that helps migrants, gained nationwide notice as he challenged what he called the government’s “attempt to criminalize basic human kindness.”

Much of that attention focused on Warren’s acquittal on felony charges of harboring. But he was also acquitted Wednesday of a separate misdemeanor charge after his lawyers argued that his religious beliefs motivated him to leave water for migrants crossing through a desert wilderness area.

This was written by Elana Schor, the AP reporter for religion and politics who is part of AP’s new global religion reporting team, announced Sept. 5 that’s being paid for by a grant from the Lilly Endowment. (I broke the story about the grant here back in April 2018).

Warren’s acquittal this past week was a huge victory for the Religious Left.


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Arizona media sizzle over whether calligraphers can decline to create gay wedding invites

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Lawsuits involving gay plaintiffs and businesses in the wedding industry are plentiful these days. Usually these cases involve a jilted couple whose bakery, event destination or photographer wants no part of the nuptials for religious reasons.

But this time around, a pair of Phoenix calligraphers sued the city's human rights ordinance, saying they have a right to turn down requests to create gay-themed custom-designed invites. The state Supreme court ruled in their favor on Monday.

How did the mainstream press respond? Did this story get covered as news or did it draw editorial lightning bolts and that’s that?

We'll start with the Arizona Republic's news story with the headline: Phoenix artists don't have to make LGBTQ wedding invitations, Arizona Supreme Court rules.”

A Phoenix ordinance that protects lesbian, gay, bisexual and transgender people from discrimination cannot be used to force artists to create custom wedding invitations for same-sex couples, the Arizona Supreme Court ruled Monday. The high court's decision overturns multiple lower-court decisions that protected the portion of Phoenix's nondiscrimination ordinance that applies to the LGBTQ community. An attorney for Phoenix insisted that the ruling was narrow and did not strike down the city law. Rather, the court ruled that "one company" could refuse to make "one type of product" for LGBTQ couples, he said.

"Today's decision is not a win, but it is not a loss. It means we will continue to have a debate over equality in this community," Mayor Kate Gallego said. However, LGBTQ community advocates fear that the decision, however narrow, creates a pathway for other lawsuits. "This decision opens the door for other bigoted owners to outright discriminate against LGBTQ people for who we are and who we love," Brianna Westbrook, vice-chair of the Arizona Democratic Party, tweeted after the ruling.

Not only are the plaintiffs not even mentioned until one-third of the way through the piece, there is no reaction from conservative First Amendment groups.

The only POVs provided are from left of center.


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For your 2020 agenda: The Democrats' Equality Act sets up a religion-news sleeper issue   

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Following committee approval last week, the House of Representatives will soon vote on the “Equality Act” (H.R. 5, text here), which would add “sexual orientation” and “gender identity” protections under the 1964 Civil Rights Act.

Crucially, the proposal would explicitly ban use of the conscience guarantees in the Religious Freedom Restoration Act signed by President Bill Clinton. Only two Democratic senators voted against that 1993 act, with names like Biden, Daschle, Feinstein, Kennedy, Kerry and Leahy in the yes column.

That’s a news story — right there. Journalists should compare such bipartisan unanimity with today’s stark party divide in this First Amendment battle, as on so many other issues.

The clause states that the religion law “shall not provide a claim concerning, or a defense to a claim under, a covered title, or provide a basis for challenging the application or enforcement of a covered title.”

Need a local angle for coverage? Reporters will want to analyze the impact that would have upon federal funding and other benefits for colleges, health facilities and charities that hold to traditional religious teaching. Anticipate years of lawsuits and political infighting.

The House will pass the Equality Act because it is sponsored by all but one of the majority Democrats. But a narrow defeat looks probable in the Senate, where so far Maine’s Susan Collins is the only member in the Republican majority backing the bill. Adding political fuel, the U.S. Supreme Court is set to rule next year on parallel questions.

All that will play out as reporters cover voters pondering whether to re-elect President Donald Trump and keep Republican control of the Senate, thus determining appointments of federal judges and whether the Equality Act becomes law. Among Democratic candidates, Joe Biden backed a similar equality bill in 2015, and the 2019 version is endorsed by the seven others atop polls (Booker, Buttigieg, Harris, Klobuchar, O’Rourke, Sanders and Warren).

The Equality Act would cover a broad array of businesses and agencies that provide goods or services to the public, forbid sexual stereotyping and make bisexuals a protected class. It would require access to rest rooms, locker rooms, dressing rooms and presumably women’s shelters, on the basis of self-identified gender rather than biological gender.


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Religious freedom vs. gay rights: Debate is back in Georgia, and so are the scare quotes

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Georgia’s legislative fights over gay rights vs. religious freedom have made headlines before.

In fact, I wrote a 2016 post headlined “Down in Georgia, here's what the news media's love of 'religious liberty' scare quotes tells you.”

I noted then that most major media insisted on scare quotes around "religious liberty" or "religious freedom.”

By the way, Dictionary.com defines scare quotes this way:

A pair of quotation marks used around a term or phrase to indicate that the writer does not think it is being used appropriately or that the writer is using it in a specialized sense.

Fast-forward to present day, and a similar bill is making news again in Atlanta. The differing treatments of that bill by The Associated Press and the Atlanta Journal-Constitution are interesting.

On the one hand, scare quotes still seem to be in vogue at AP, which has this headline:

'Religious liberties' bill renews a recurring Georgia debate

AP’s lede also relies on scare quotes:

ATLANTA (AP) — A ‘religious liberties’ bill that aims to add greater protections for personal beliefs has renewed a recurring debate in Georgia about discrimination and religious freedom.

Republican state Sen. Marty Harbin of Tyrone said Thursday his proposal was drafted to mirror the Religious Freedom Restoration Act, passed by Congress in 1993 and signed into law by President Bill Clinton.

“I believe that Georgians need to be fully protected under the First Amendment from not only federal law, but also state and local law,” Harbin said at a news conference.

But critics say the bill would allow discrimination against the LGBT community.

Republican Gov. Brian Kemp pledged during his election campaign last year to sign “nothing more, nothing less” than a mirror image of the federal law. His predecessor, GOP Gov. Nathan Deal, vetoed a similar bill passed by lawmakers three years ago amid threats by major companies to boycott Georgia if the measure became law.


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Unitarians in the desert: A few basic facts go a long way in explaining religious freedom lawsuit

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I’m shaking my head.

The answer was easy. So easy.

Why then didn’t NPR bother to include it?

Here’s what I’m talking about: Back in October, I wrote about an NPR piece with a compelling title of “Deep In The Desert, A Case Pits Immigration Crackdown Against Religious Freedom.”

I offered lukewarm praise for parts of that report, but mostly I questioned the lack of specific facts concerning the lawsuit and, more precisely, the religion angle. I noted that NPR mentioned a humanitarian aid organization called No More Deaths and quoted a volunteer named Scott Warren.

But I complained:

Is it too much to want to know the specific nature of Warren’s religious beliefs? Does he belong to an actual faith group? Or are his beliefs purely personal in nature?

Such information would be extremely helpful and enlightening to know.

Fast-forward to today when the Wall Street Journal published a story on the same lawsuit.

And guess what? The Journal nails the crucial details that NPR missed. I love it when that happens!

Let’s start at the top — and see if any vital information that NPR missed doesn’t grab you up high:


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NPR sort of dives into a case involving immigration, religious freedom and a vague faith

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Really, it’s a fascinating story — sort of.

I’m talking about an NPR piece out today with the compelling title of “Deep In The Desert, A Case Pits Immigration Crackdown Against Religious Freedom.”

Forgive my wishy-washiness, but the report has elements — such as its explanation of the 1993 Religious Freedom Restoration Act and how it works — that deserve praise. But at the same time, NPR fails to answer obvious, basic religion questions.

NPR’s opening sets the scene:

In January, Border Patrol agents walked up to a ramshackle old building on the outskirts of a small town in Arizona's Sonoran Desert. They found three men.

Two were Central Americans who had crossed the border illegally. The third was an American — a university lecturer and humanitarian activist named Scott Warren.

Warren was arrested and ultimately charged with two federal criminal counts of harboring illegal migrants and one count of conspiracy to harbor and transport them. Warren has pleaded not guilty.

Warren's arrest briefly flickered across the national news amid the partisan tug-of-war over the administration's immigration policy before fading into the background.

But his legal team's decision to stake out part of his defense on religious liberty grounds has made the case a clash between two of Attorney General Jeff Sessions' top priorities: cracking down on illegal immigration and defending religious liberty.

Keep reading, and NPR outlines cases that have cited RFRA — such as Hobby Lobby’s Supreme Court win in 2014 — and notes Attorney General Jeff Session’s stated support for religious liberty.

Then NPR quotes progressive legal sources, including a Columbia Law School professor and an American Civil Liberties Union official, who accuse the Trump administration of a bias toward conservative religious liberty causes.

That’s all perfectly reasonable material to include, although it would be interesting to ask conservative legal voices — such as the Alliance Defending Freedom — to weigh in. It would be interesting to see if they would side with Warren or the Trump administration in this specific case.

But my bigger question for NRP: What about the specific facts of the Arizona case in question? That’s where this report keeps things really vague.


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This week's podcast: Colorado fine-tunes legal campaign against Masterpiece Cakeshop owner

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No doubt about it, there was a big, big religious-liberty story back on June 28 out in the often-overlooked Rocky Mountain Time Zone.

This was a story that had been cooking for some time and, yes, it involved Jack Phillips of Colorado, the owner of Masterpiece Cakeshop.

To understand the significance of this news story – the goal of this week's "Crossroads" podcast (click here to tune that in) – it helps to look at the following timeline:

* On June, 26, 2017 – the day the U.S. Supreme Court announced that it would hear Masterpiece Cakeshop v. Colorado Civil Rights Commission – a Colorado lawyer named Autumn Scardina called the bakery and made a rather simple request. Scardina requested a cake with blue icing that was baked with pink batter. The lawyer told a Cake Shop employee that the goal was to celebrate Scardina's birthday, as well as the seventh anniversary of the day he came out as transgender she.

* On June 4, 2018, the U.S. Supreme Court ruled, by a 7-2 margin, that the Colorado Civil Rights Commission had shown anti-religious animus during proceedings leading to its actions punishing Phillips for refusing to create one of his one-of-a-kind wedding cakes to celebrate a same-sex couple's marriage. Phillips offered to sell the couple any of the other cakes or goods in his shop, but – because of his faith – refused to create a special cake to celebrate that rite.

* On June 28, the Colorado Civil Rights Commission ruled that there was evidence that Phillips had discriminated against Scardina because of anti-trans bias, as opposed to this action being another act of conscience by the Christian baker, protected by the First Amendment.

You can assemble those dates in your mind with a bit of editing as you read the Washington Post (or New York Times) coverage of this new chapter in the Masterpiece Cakeshop drama.

So why is the story breaking this week? You can see that in the overture to the Post story:

Add another layer to the legal drama surrounding the Colorado baker who refused to make a wedding cake for a same-sex couple – and took his case all the way to the Supreme Court.

Jack Phillips, owner of Masterpiece Cakeshop in Lakewood, Colo., on Tuesday filed another federal lawsuit against the state alleging religious discrimination.


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After the Cakeshop decision: Celebrations, cynicism and sobering insights from pros

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After the Cakeshop decision: Celebrations, cynicism and sobering insights from pros

So I was at the gym last week (old people with arthritis do things like that) and I fell into a conversation with another old-timer about the 7-2 U.S. Supreme Court ruling in Masterpiece Cakeshop, LTD v. Colorado Civil Rights Commission (.pdf here). She wanted to know what I thought of the decision.

These kinds of conversations happen all the time here in Oak Ridge, Tenn., in part because my column has run for three decades in the nearby Knoxville News Sentinel, a newsroom that played a key role in the birth of "On Religion." I'm that religion guy.

Anyway, I said that it appeared America's one true king – Justice Anthony Kennedy – couldn't decide how to settle this clash between the First Amendment and LGBTQ rights, two issues at the heart of his high-court legacy. So he punted and wrote a narrow opinion, focusing on the anti-religious bias exhibited by Colorado officials. Who knows what will happen next?

I didn't take notes, but this Oak Ridger replied: "Well, I just don't think that guy could refuse to do business with a gay couple like that."

I asked if she knew that baker Jack Phillips offered to sell them anything in his store for their wedding, including cookies, brownies or basic wedding cakes. What he said he couldn't do – because of his traditional Christian beliefs – was make one of his special, handcrafted designer cakes that included themes and details linked to their same-sex union rite.

Well, I don't think it's right for him to single out gays like that, said the woman.

Actually, I noted, Phillips has turned down lots of jobs because of his evangelical beliefs, including making Halloween cakes, cakes containing alcohol, risqué bachelor-party cakes, atheist event cakes and, yes, cakes with slogans attacking gay people. He doesn't reject classes of people, but he does reject delivering specific messages he believes are linked to religion.

This Oak Ridger was silent for a moment, then said: "Well, I haven't heard any of that on CNN."

Maybe I should have told that story in this week's "Crossroads" podcast (click here to tune that in), because it's a perfect example of how simplistic press coverage has helped shape – "twist" might be the right word – grassroots discussions of religious-liberty issues.

Ever since the ruling was handed down, there has been an amazing barrage of opinions from activists on both sides.


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