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FALLOUT & FUTURE: A Year After the Supreme Court Marriage Decision, Where is Your Religious Freedom Headed?

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July 1, 2016

One year ago, the Supreme Court redefined marriage in the 5-4 decision in the case of Obergefell v. Hodges, with vast dangers for religious freedom. First Liberty Institute was prepared with a 5-point plan. How has our plan—and your religious freedom—fared? And where might our first freedom be headed in light of the continuing shockwaves of that decision?

First Liberty’s response plan consisted of what we called “legal firewalls” to protect religious liberty. The plan was in the works well before the decision, as the legal team anticipated the probability of a decision imposing legalized same-sex marriage on the entire nation.

GOAL #1: AN AFFIRMATION OF RELIGIOUS FREEDOMS BY THE SUPREME COURT

Before the Court’s decision, First Liberty submitted a friend of the court brief hoping to convince the Court to word the Majority Opinion to recognize legal protection of open faith-based disagreement with same-sex marriage. In other words, safe harbor for a person of faith’s right to openly disagree. The goal was to obtain, on record, words that in future legal action could be cited to keep many Americans from being fired, fined, or otherwise punished—and free to express their faith.

Status: Accomplished—but Being Tested. While the ruling to abandon the millennia-old definition of marriage as the sacred union of one man and one woman is certainly disappointing, the silver lining in 103-pages of the opinion: All nine Supreme Court Justices recognized the vital role of religious liberty. From the majority opinion, Justice Anthony Kennedy wrote:

“Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered . . .”

GOAL #2: ALERT PEOPLE OF FAITH TO MAKE THEIR STAND IN THE JUDICIAL SYSTEM.

First Liberty intensified efforts to communicate to churches, ministries, individual people of faith, and others that the future of religious freedom would now be won or lost in courts, not in the ballot box. While elections are important, First Liberty warned that the foes of religious freedom would move rapidly to twist the Court’s decision to try to snuff out freedom to believe. In response, people of faith must fight now rather than waiting for an election to save freedom. Delay could be fatal.

Status: Victories—but More Battles Lie Ahead. As predicted, many people of faith did not passively accept violations of religious freedom flowing from the Obergefell decision or from attempts—both before and after the decision—to misuse sexuality and gender-related controversies.

  • In the first legal outcomes since the decision, First Liberty won favorable settlements for three clients suffering unlawful discrimination in the workplace for their faith-based stance on marriage.
  • In September 2015, three months after the decision, First Liberty won a major victory when the U.S. Navy exonerated our client, Chaplain (Lt. Cmdr.) Wes Modder, who had been disciplined and was facing possible court martial and dishonorable discharge for expressing his religious views on marriage.
  • First Liberty filed lawsuits that include legal action on behalf of Aaron and Melissa Klein, penalized by the State of Oregon for politely declining to bake a custom cake celebrating a same-sex wedding.

While we’ve fought and won victories, how many other people have backed down? Not knowing your rights can lead to unnecessarily surrendering them.

GOAL #3 USE EXISTING LAWS TO KEEP WINNING

First Liberty litigators have a 90 percent-plus win rate, even in tough cases, because they know how to use existing laws and court precedents to win legal cases—laws like:

  • The Civil Rights Act of 1964,
  • State and Federal Religious Freedom Restoration Act (RFRA),
  • State and Federal constitutional rights
  • U.S. military regulations, and
  • Numerous court precedents are on our side.

Status: Using Protections in Ongoing Legal Action for Religious Liberty. The Supreme Court’s marriage ruling does not change the truth that Americans have a constitutional right to speak and to act according to our beliefs. The victories mentioned above are evidence that existing laws can bring success in the hands of skilled attorneys.

GOAL #4: USE NEW LAWS TO WIN

First Liberty attorneys provided legal analysis and guidance on the religious liberty implications of several state and federal statutes to state legislatures and the U.S. Congress. These laws will make it easier to win in court.

Status: New Laws Are Ready for Action. Combining new and previous laws, 60 percent of states have some type of religious protection. Recent legislation includes exemptions for certain officials, faith-based programs, pastors, medical personnel, and religious entities.

GOAL #5: EXPAND OUR RELIGIOUS LIBERTY PROTECTION PLANNING

Organizations and individuals can take proactive measures to protect themselves. Organizations can inoculate themselves by writing legal protections into their documents. And individuals can learn their religious rights. At no charge, First Liberty attorneys devised an entire initiative to offer such protection.

Status: Protection is Available and Spreading. First Liberty has guided churches and ministries, either through customized audits or through Religious Liberty Protection Kits—painstakingly crafted documents available online and in print. First Liberty enables organizations to legally immunize themselves, as much as possible, against attacks from government or other hostile organizations seeking to cripple them. This planning is already protecting numerous organizations, and is spreading to protect many more.

See our Religious Liberty Protection Kits for churches, ministries, Christian schools, the workplace, and more.

CHALLENGES AHEAD

Yet the challenges will only become more intense. The targets of this angry, new, frightening wave of hostility have remained the same, while the pace and intensity of attacks has picked up. First Liberty President and CEO Kelly Shackelford lists areas of vulnerability, including:

  • Tax-exempt status for churches and ministries.
  • Christian colleges and school accreditation.
  • Faith-based adoption and foster care providers.
  • Federal and state contractors and grantees.
  • Students with loans for religious schools.
  • Hiring at faith-based organizations.
  • Military personnel that don’t follow the new agenda.
  • Government employees at all levels.
  • Faith-based businesses.
  • Professional licenses for those who hold traditional views of marriage.

“No one will escape,” he warned. At the same time, he assured supporters of First Liberty, “our strategic response plan gives real hope to defeat these new attacks.”

WHAT CAN YOU DO?

First, pray. For wisdom and restraint from the government. For favor for people of faith under attack and those advocating for them. And for courage on the part of those who need to stand for liberty and for those who stand with them as lawyers or financial supporters.

Second, know your rights. The onslaught will either touch you or someone you know. So equip yourself with information found in First Liberty’s Religious Liberty Protection Kits, and have First Liberty’s contact information handy.

Third, inform others. Having religious rights does no good if Americans don’t know they have them. So spread the word—including First Liberty resources—in your circles of influence, including church, school, social media, and more.

“The very reason this country was founded was so people could actually disagree with the government’s position,” said Kelly Shackelford last year. “That’s why people came on boats to found this country. Our Constitution protects that, and we’re just going to have to fight these things out . . . . If we’re diligent in standing for our rights, we can win and keep those freedoms.”

News and Commentary is brought to you by First Liberty’s team of writers and legal experts.

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