Friday, November 20, 2015

RELIGIOUS FREEDOM, EQUAL PROTECTION, AND THE ETHOS OF JESUS: CIRCLE, COLLISION, OR CO-EXISTENCE

I delivered the following lecture on Thursday, November 12, 2015, at Fuller Theological Seminary in Pasadena, California, at the invitation of the Baptist Joint Committee for Religious Liberty.

RELIGIOUS FREEDOM, EQUAL PROTECTION, AND THE ETHOS OF JESUS:  CIRCLE, COLLISION, OR CO-EXISTENCE
©Wendell Griffen, 2015[1]
Baptist Joint Committee Lecture Series
Fuller Theological Seminary (Travis Auditorium)
Pasadena, California
Thursday, November 12, 2015, 10 AM

Dr. Mark Labberton (President and Professor of Preaching), Dr. Joel Green (Dean of the School of Theology), Dr. Brent Walker (Executive Director, Baptist Joint Committee for Religious Liberty), sisters and brothers:

         Thank you for inviting me to deliver the first in what I hope will become a long and transformative series of lectures about religious liberty under the auspices of Fuller Theological Seminary and the Baptist Joint Committee for Religious Liberty.  When I was first approached about this opportunity my initial reaction was shock, followed by an almost overwhelming urge to cringe.  My primary professional education is in the areas of law and public policy.  Most of my theological formation occurred outside seminary and divinity school venues. 

So, I was more than a little surprised when Brent Walker and Charles Watson of the Baptist Joint Committee asked me to consider presenting lectures at what many informed observers consider the most prominent evangelical Christian seminary in the United States, if not the entire world.  I learned that Brent and Charles were not pulling a prank.  However, if they were, I will cooperate.   

My remarks today are titled, Religious Liberty, Equal Protection, and the Ethos of Jesus: Circle, Collision, or Co-Existence.  The title is inspired by several events.

Increase in Non-Discrimination Laws 

         In recent years, a growing number of cities and counties across the United States have adopted non-discrimination laws that cover conduct considered immoral by some persons, including reproductive freedom, sexual orientation, and gender identity, even if there is no comparable statewide law to that effect.  According to one source, “[a]t least 185 cities and counties prohibit discrimination on the basis of gender identity for public and private employees,” and that “at least 20 cities and counties prohibit such discrimination in public employment only.”[2] 

         According to the National Conference of State Legislatures, “five states—Alabama, Georgia, Mississippi, North Carolina, and Texas—do not have an accommodation law for nondisabled individuals.  All states with public accommodations laws prohibit discrimination on the grounds of race, gender, ancestry, and religion.  In addition, 18 prohibit discrimination based on gender identity. Nineteen jurisdictions also prohibit age-based discrimination in areas of public accommodation.”[3]

         Litigants have brought suit based on such non-discrimination laws concerning public accommodations, employment, and housing in various jurisdictions.  To the consternation of some persons, courts have ruled in favor of parties who complained they were subjected to unlawful discrimination in public accommodations, employment, and housing based on the professed religious beliefs of defending parties, and despite claims by defending parties that their allegedly discriminatory conduct was motivated by sincerely held religious beliefs. 

For instance, federal courts rejected the employment discrimination claim of a New Jersey nurse who alleged she was subjected to religious discrimination when she was fired from her job at a public hospital for refusing to participate in two emergency procedures, on religious grounds, that would have required termination of pregnancies.[4]  Earlier this year, the Colorado Court of Appeals upheld a decision by the Colorado Civil Rights Commission that a cake shop unlawfully discriminated against a gay couple by refusing to sell them a wedding cake.[5]  In 2013, the New Mexico Supreme Court held that a commercial photography business violated the state human rights act by refusing to photograph a same-sex commitment ceremony, and that the state religious freedom restoration statute did not protect the photographer from liability under the non-discrimination statute.[6] 

More states and localities have enacted non-discrimination measures covering employment, public accommodations, and housing.  More litigants have prevailed in discrimination lawsuits based on the non-discrimination statutes. 

Burwell v. Hobby Lobby

On June 30, 2014, the Supreme Court of the United States issued, by a 5-4 vote margin, its decision in the case of Burwell v. Hobby Lobby,[7] in which the Court, for the first time in its history, held that a closely held for-profit corporation has the right to claim religious belief in order to be covered by the federal Religious Freedom Restoration Act (RFRA).[8]  The issue in Burwell was whether the contraceptive mandate adopted by the U.S. Department of Health and Human Services under the Affordable Care Act violated RFRA.  The Supreme Court held that the contraceptive mandate, although adopted to further the compelling governmental interest of guaranteeing cost-free access to contraceptive care, burdened the exercise of religion because it was not the least restrictive way to ensure access to contraceptive care.  Burwell v. Hobby Lobby was the first time the U.S. Supreme Court has held that a for-profit business could assert a claim to religious liberty based on RFRA. 

This marked a major shift in RFRA jurisprudence.  The Religious Freedom Restoration Act was enacted in 1993 by Congress after the Supreme Court ruled in Employment Division v. Smith, that state unemployment benefits could be denied to two members of the Native American Church who were fired because they used peyote as part of their religious ceremonies in the face of an Oregon statute that made intentional possession of peyote a crime.[9]  The statute did not include an affirmative defense for religious use.   The unemployment benefits claims were denied because the firings were deemed “misconduct.”  After the denials were overturned on appeals to the Oregon Court of Appeals and Oregon Supreme Court on First Amendment grounds,[10] the U.S. Supreme Court vacated and remanded the case to the Oregon Supreme Court to determine if sacramental use of illegal drugs violated Oregon’s drug laws.[11]  On remand, the Oregon Supreme Court held that Oregon law prohibited consumption of illegal drugs for religious purposes, but that the prohibition violated the free exercise of religion clause of the First Amendment.[12] 

The state then took a second appeal to the U.S. Supreme Court which upheld, by a 6-3 margin, the denial of the unemployment benefits by reasoning that because the Oregon drug laws were “neutral laws of general applicability,” which did not target the Native Americans’ religious practices, application of those laws to Native Americans did not offend the First Amendment.  Justice Scalia’s majority opinion emphasized that Oregon’s ban on peyote possession applied to anyone who might possess peyote for whatever reason, and that the First Amendment does not allow a person to use a religious motive as justification for disobeying such neutral laws of general applicability, citing an 1878 Supreme Court ruling which stated that “to permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”[13]  Thus, Justice Scalia wrote, that generally applicable laws do not have to meet the strict scrutiny standard of review, which requires that governmental action that infringes on First Amendment liberties further a “compelling governmental interest” and be “the least restrictive” means for doing so.

Under RFRA, when a neutral law of general applicability imposes a substantial burden on the exercise of religion, the validity of that law is reviewed under strict scrutiny (compelling governmental interest/least restrictive alternative) analysis.  In the 1997 case titled City of Boerne v. Flores,[14] involving a dispute between the Archbishop of San Antonio and local zoning officials who denied a request to enlarge a 1923 mission-style church in a historic district, the Supreme Court held the RFRA unconstitutional when applied to the states under the Fourteenth Amendment.  The Archbishop successfully argued that his congregation had outgrown the existing structure so that the zoning decision denying permission to enlarge the structure was a substantial burden on free exercise of religion without a compelling state interest.  The RFRA was later amended in 2000 by the Religious Land Use and Institutionalized Persons Act (RLUIPA),[15] which statutorily redefined exercise of religion as any exercise of religion, “whether or not compelled by, or central to, a system of religious belief,” and emphasized that the statute was to be “construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the [statute] and the Constitution.”
The importance of the Supreme Court’s decision in Burwell v. Hobby Lobby becomes more obvious when one takes this history into account.  Burwell v. Hobby Lobby did not involve individuals who contended that governmental actions infringed on their freedom to practice their religious faith, as was the case of the Native Americans whose unemployment benefits claims were denied in Employment Division v. Smith.  Nor did Burwell v. Hobby Lobby involve claims by a religious institution or entity as was the case of the Catholic archdiocese in City of Boerne v. Flores that challenged a local zoning ordinance as a burden on the ability to exercise religion. 
Burwell v. Hobby Lobby challenged a provision in the federal Affordable Care Act[16]  that health insurance cover "additional preventive care and screenings" for women, as specified in federal regulations which require coverage for "[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity." This mandate applies to all employers and educational institutions except for religious organizations. The regulations were controversial among certain religious groups, most notably evangelicals, Lutherans, and the Roman Catholic hierarchy, whose hospitals, charities, educational institutions of higher learning, as well as other enterprises, oppose contraception on doctrinal grounds. 
The challenge asserted in Burwell v. Hobby Lobby, however, was not from a religious group, institution, or charity, but from a closely-held for-profit corporation, owned by evangelical Christians opposed to certain forms of contraception that mandated for coverage under Affordable Care Act regulations.  The owners of Hobby Lobby and Conestoga Wood Specialties, a furniture company owned by a Mennonite family, argued that the contraceptive coverage mandate was a substantial burden on the exercise of their religious liberty protected by the Religious Freedom Restoration Act (RFRA).
The Supreme Court ruled by a 5-4 vote in Burwell v. Hobby Lobby that the contraceptive coverage mandate in the Affordable Care Act substantially burdens the exercise of religion.  Writing for the majority, Justice Samuel Alito declared that “allowing Hobby Lobby, Conestoga, and Mardel to assert RFRA claims protects the religious liberty of the Greens and the Hahns [the family owners of those entities],” and rejected the government’s contention that for-profit corporations could not be considered “persons” under RFRA, noting that federal Health and Human Services regulations treat non-profit corporations as “persons” within the meaning of RFRA.
State Religious Freedom Restoration Legislation

As the Supreme Court was considering the Burwell v. Hobby Lobby case, and following its decision, state legislatures in several states debated bills aimed at creating state versions of RFRA.  In Arizona, the state legislature passed Senate Bill 1062 that was intended to amend an existing law and provide an exemption to any individual or legal entity, from any state law, if the law substantially burdened their exercise of religion, including Arizona law requiring public accommodations.[17]  That measure was vetoed, however, by Arizona Governor Jan Brewer on February 26, 2014, after critics of Arizona SB 1062 observed that the measure would have permitted discrimination against anyone, and was intended to target persons who are lesbian, gay, bisexual, or transgender (LGBT), based on religious grounds.[18]

Arizona Bill 1062 was supported by groups considered politically conservative such as the Center for Arizona Policy and the Alliance Defending Freedom.  The Alliance Defending Freedom is one among a network of political groups funded by the National Christian Charitable Foundation, an entity supported by billionaire David Green, founder of Hobby Lobby.[19]

Bills similar to Arizona 1062 were introduced in several other state legislatures.[20] Most of those measures were defeated or withdrawn in the face of fierce opposition.  But state legislatures in Indiana and Arkansas passed state versions of RFRA introduced by proponents who contended that the measures merely protected the right to free exercise of religion as guaranteed by the First Amendment to the U.S. Constitution.  The Indiana Religious Freedom Restoration Act,[21] signed into law by Governor Mike Pence, and the Arkansas Religious Freedom Restoration Act[22], signed into law by Governor Asa Hutchinson, were measures supported by religious conservatives opposed to extending the reach of non-discrimination laws to persons who are LGBT.  Supporters of these measures, and proposals similar to them, have also expressed concern that antidiscrimination laws will force people with religious objections to same-sex relationships to offer services to same-sex couples or otherwise accommodate persons who are LGBT in ways that contradict their religious beliefs. 

Obergefell v. Hodges and the Kim Davis Controversy

The various state RFRA measures and the decision in Burwell v. Hobby Lobby were followed by the June 26, 2015 landmark decision by the United States Supreme Court in Obergefell v. Hodges.[23]  The Court held in Obergefell that state laws prohibiting same-sex marriage, including laws that refuse to recognize the validity of same-sex marriages solemnized in other states, violate the Due Process and Equal Protection provisions of the Fourteenth Amendment to the U.S. Constitution.[24] 

After the Obergefell decision, Kentucky Governor Steve Beshear issued a directive that county clerks begin issuing marriage licenses to same-sex couples.[25] When Governor Beshear ordered all state executive branch agencies to follow the decision in Obergefell, Rowan County Clerk Kimberly Davis requested that Governor Beshear issue an executive order that would exempt county clerks with moral objections from being required to issue marriage licenses to same-sex couples. 

When Governor Beshear rejected her request, Davis, who identifies as an Apostolic Christian in the Oneness Pentecostal tradition, began refusing to serve gay couples who sought marriage licenses from her county office.  Then, she refused to issue any marriage licenses, to same-sex as well as opposite-sex couples, based on her belief that by issuing licenses to same-sex couples she would be violating religious beliefs protected by the First Amendment.[26]   

Four couples (two same-sex couples and two opposite-sex couples) brought suit against her in the United States District Court for the Eastern District of Kentucky.[27]   They sought to enjoin Davis from enforcing her announced policy of refusing to issue marriage licenses to any couple based on her belief that by doing so she would avoid discriminating against same-sex couples.  On August 12, 2015, United States District Judge David Bunning issued a preliminary injunction that enjoined Davis “from applying her ‘no marriage licenses’ policy to future marriage license requests…”[28]

When both the Sixth Circuit and the U.S. Supreme Court upheld Judge Bunning’s order, Davis defied it by turning away several couples who sought marriage licenses based on her assertion that she was acting “under God’s authority.”  Judge Bunning then held her in contempt of court and remanded her to jail until she complied with the court order to issue marriage licenses.  She remained in jail five days, and was released after Judge Bunning ordered that she “not interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples.”[29]

Religious Liberty, Equality, and the Gospel of Jesus

The Burwell v. Hobby Lobby decision, legislative efforts to enact state versions of the federal Religious Freedom Restoration Act, the decision in Obergefell v. Hodges, and the Kimberly Davis controversy highlight the tension between the religious freedom guarantee in the First Amendment and the right to equal protection of the laws guaranteed by the Fourteenth Amendment.  One suspects that the movement to enact state versions of RFRA similar to Arizona Senate Bill 1062, Indiana Senate Bill 101, and Arkansas Senate Bill 975 will continue as proponents of those measures point to Kimberly Davis and contend that legislation is needed to provide a legal claim or defense to persons whose ability to exercise their religion is burdened by governmental actions or regulations, particularly state and local non-discrimination enactments that include sexual orientation and gender identity among the categories protected from discrimination.[30]   

The movement to enact state versions of RFRA is also occurring alongside a backlash against efforts to enact state and local laws that extend protection against discrimination to include sexual orientation and gender identity.  On November 3, 2015, voters in Houston, Texas, the fourth largest city in the United States, rejected such a measure.[31]  Earlier this year, the state legislature in Arkansas enacted a measure that forbids Arkansas local governments from adopting anti-discrimination ordinances and which, arguably, scuttles existing local anti-discrimination laws that would cover sexual orientation and gender identity.[32]  Arkansas Governor Hutchinson allowed that bill to become law without his signature, after refusing appeals to veto it. 

One can read the various opinions in Burwell v. Hobby Lobby and Obergefell v. Hodges to glean the divergent legal perspectives on RFRA, reproductive rights, and same-sex marriage.  I am more concerned, as a follower of Jesus[33] and jurist, in provoking serious thought and conversation about how the constitutional values of religious liberty and equal protection are understood vis-à-vis the “love thy neighbor” ethic in the gospel of Jesus.  

At Luke 10:25-37, we find the following memorable passage:

25 Just then a lawyer stood up to test Jesus. ‘Teacher,’ he said, ‘what must I do to inherit eternal life?’ 26He said to him, ‘What is written in the law? What do you read there?’ 27He answered, ‘You shall love the Lord your God with all your heart, and with all your soul, and with all your strength, and with all your mind; and your neighbour as yourself.’28And he said to him, ‘You have given the right answer; do this, and you will live.’
29 But wanting to justify himself, he asked Jesus, ‘And who is my neighbour?’ 30Jesus replied, ‘A man was going down from Jerusalem to Jericho, and fell into the hands of robbers, who stripped him, beat him, and went away, leaving him half dead. 31Now by chance a priest was going down that road; and when he saw him, he passed by on the other side. 32So likewise a Levite, when he came to the place and saw him, passed by on the other side. 33But a Samaritan while travelling came near him; and when he saw him, he was moved with pity. 34He went to him and bandaged his wounds, having poured oil and wine on them. Then he put him on his own animal, brought him to an inn, and took care of him. 35The next day he took out two denarii, gave them to the innkeeper, and said, “Take care of him; and when I come back, I will repay you whatever more you spend.” 36Which of these three, do you think, was a neighbour to the man who fell into the hands of the robbers?’ 37He said, ‘The one who showed him mercy.’ Jesus said to him, ‘Go and do likewise.’
         How does the “love thy neighbor” ethos of Jesus square with respect for religious liberty and equality?  How should followers of Jesus contemplate that ethic as we evaluate measures such as Arizona Senate Bill 1062, Indiana Senate Bill 101, and Arkansas Senate Bill 975? 

These are not idle questions, nor are they only pertinent for  judges, lawyers, legal scholars, and political officials to ponder.  Whether one is religious or not, these questions force us to decide whether religious liberty, equality, and the love ethos of Jesus function in a circle, collide, or can somehow co-exist.  Because evangelical followers of Jesus are a significant part of American society, it is especially important that evangelical followers of Jesus and the people who lead, teach, and purport to represent them ponder these questions. 

Another reason why evangelical followers of Jesus should ponder the relationship between religious liberty, equality, and the ethos of Jesus arises from reactions of political figures.  Mike Huckabee, a former Arkansas Governor, Fox Television personality, and current aspirant for the Republican nomination in the 2016 presidential contest, commented on Twitter that the Obergefell v. Hodges decision was a “flawed, failed decision” and “an out-of-control act of unconstitutional judicial tyranny.”[34] Texas Attorney General Ken Paxton called the Obergefell decision a “lawless ruling” and pledged free legal defense for state workers who refuse to marry couples on religious grounds.[35] Chief Justice John Roberts and Justices Clarence Thomas, and Samuel Alito each wrote separate dissenting opinions to the decision in Obergefell in which they criticized that decision as portending dire consequences for religious liberty.

When Kim Davis was held in contempt and jailed for defying Judge Bunning’s court order to issue marriage licenses in obedience to the Obergefell decision, Governor Huckabee commented that her case illustrated what he called “criminalization of Christianity.”[36]  Huckabee organized a rally outside the jail where she had been held. That rally was also attended by Senator Ted Cruz of Texas, another Republican presidential candidate, who said Davis was a victim of what he termed “judicial tyranny.”[37]  Liberty Counsel, the law firm that defended Davis, issued a public statement that “Kim Davis is being treated as a criminal because she cannot violate her conscience.”[38]

On the other hand, several other political leaders called on Kim Davis to comply with court orders.  Former Florida Governor Jeb Bush said that Davis “is sworn to uphold the law,” while suggesting that some sort of accommodation be made for her.[39]  Republican presidential candidates Carly Fiorina and Senator Lindsey Graham of South Carolina separately suggested that Davis should either comply with Judge Bunning’s order to issue marriage licenses to all legally entitled couples or resign her office.[40]  Democratic presidential candidate, former Secretary of State, and former U. S. Senator from New York, Hillary Clinton, commented regarding the Kim Davis controversy that, “officials should be held to their duty to uphold the law—end of story.”[41]

Followers of Jesus know about and discuss the political arguments surrounding the decisions in Burwell v. Hobby Lobby and Obergefell v. Hodges, state RFRA legislative efforts, and the Kim Davis controversy.   However, there is scant evidence that we are pondering them in light of the “love thy neighbor” ethos of Jesus. 

I have discovered no information showing that many evangelical congregations discuss religious liberty, equality, and the ethos of Jesus in our congregational Bible study groups.  And, I have scarce information that evangelical pastors often, or consistently, include references to the gospel of Jesus when they offer public comments about the relationship between religious liberty and equality.

I have heard and read numerous comments by religious people who are concerned that “conscience” or “religious beliefs” provisions should be enacted to exempt religious people from compliance with anti-discrimination laws which offend their genuinely held religious beliefs.  However, I have yet to hear or read a comment from any of those concerned persons that cites the teachings and conduct of Jesus.  

Religious Liberty and Social Justice are Gospel Imperatives

That is remarkable because the Gospel accounts of the life and ministry of Jesus illustrate that he often violated religious laws and practices.  Jesus healed a man who had been blind from birth on a sabbath day.[42]  He healed a man “covered with leprosy” by touching him, a violation of the longstanding religious view that touching a leper rendered a person unclean.[43]  On another occasion, Jesus did not prevent his disciples from plucking heads of grain and eating them on the sabbath,[44] cured a man with a withered hand on the sabbath,[45] and posed this question to onlookers, “[I]s it lawful to do good or to do harm on the sabbath, to save life or to destroy it?”[46]

Jesus violated religious teachings and practices when he interrupted a funeral procession of a widow’s only son, approached the bier where the dead man lay and touched it before calling the young man back to life.[47]  When Jesus healed a hemorrhaging woman and raised the dead daughter of a synagogue leader, named Jairus, by taking her hand and calling her back to life,[48] Jesus violated longstanding religious traditions found in Leviticus and Numbers.[49]

It is not remarkable that political pundits and people unfamiliar with the ministry of Jesus fail to analyze claims of devotion to religious teachings and beliefs by reflecting on the life and ministry of Jesus as they make pronouncements about religious liberty in the face of demands for equality from people who complain about oppressive practices and policies.  However, when people who profess to be followers of Jesus do so in the face of these and numerous other Gospel accounts about Jesus doing things that violated religious traditions and practices, it is worth noticing. 

At minimum, one would expect pastors, religious educators, and denominational leaders to ponder aloud how support for creating religious exemptions to public laws created to eliminate and discourage discrimination and protect people vulnerable to suffer from it squares with the example of Jesus.  One would expect, at minimum, that people who profess to follow the New Testament Hebrew prophet, whose conduct so frequently offended traditional religious teachings and practices on behalf of vulnerable people that he was labeled a threat to public morality, would ask how and why it is consistent with the religion of Jesus to use religious beliefs and traditions as a license to discriminate against others who are vulnerable. 

Thus, I contend that failure to engage in such serious thought and discourse amounts to moral and ethical misfeasance, if not malpractice, on the part of evangelical followers of Jesus, in the same way that white evangelicals misunderstood, were, and remain derelict concerning racial inequality and racism.  Earlier this year, when I addressed the Judiciary Committee of the Arkansas Senate to oppose a proposed RFRA measure that its proponent called a “Conscience Protection” bill,[50] I reminded the legislators that white evangelicals staunchly defended slavery, racial segregation, and blatant race discrimination in education, employment, political activity, and public accommodations on religious grounds. 

J. Daniel Hays has observed that “[a]fter the American Civil War, the ‘curse of Ham’ was used by white clergymen to fight the notion of racial equality and the rights that would accompany such equality (voting, education, etc.),” and that “the connection between this curse and the slavery of Africans continues to be taught to the church via commentaries that are reprinted and for sale even today.”[51]  In the same way that white evangelicals of my youth denounced integration and inter-racial marriages on religious grounds, Kim Davis and other evangelical followers of Jesus consider same-sex marriages, support for reproductive freedom, and other positions to be sinful. 

We who believe in religious liberty must admit that, for many years, religious leaders justified sex discrimination by citing sacred passages which they argued show that women are inferior to men.  We who believe in religious liberty cannot ignore the reality that some religious traditions continue to hold that inter-racial marriage violates Scripture.  Some religious systems continue to teach that it is morally wrong for women to exercise leadership over men.  We cannot ethically evaluate the impact of state RFRA legislation like vetoed Arizona Senate Bill 1062 and enacted Indiana Senate Bill 101 and Arkansas Senate Bill 975 without remembering this history.

We must also recognize that current support among evangelicals for state RFRA legislation aimed at using religious liberty as a shield against nondiscrimination policies and mandates raises at least three unpleasant suggestions.  One is that evangelicals are unconcerned about the interplay of religious liberty, equality, and the religion of Jesus.  Another unpleasant inference is that demands for religious licenses to avoid complying with laws enacted to respect the inherent dignity and entitlement to equality of each person show that evangelical followers of Jesus believe that religious liberty and fidelity out-weigh the equality guarantee found in the Fourteenth Amendment and the love ethos we read about throughout the Gospel accounts of the life of Jesus.  Yet another (and equally unpleasant) inference—and one that strikes at the heart of my role as a state court jurist—is that state courts, which will have the first responsibility for adjudicating disputes arising from religious liberty defenses based on state RFRA enactments against nondiscrimination measures, will issue decisions that are adverse to persons oppressed by discrimination based on political timidity. 

The third possibility is not to be taken lightly.  As I wrote in another context almost two decades ago, “one need only read Taylor Branch’s Pillar of Fire, the second part in his trilogy on the civil rights era during the King years, and Juan Williams’ Thurgood Marshall:  American Revolutionary,…” to realize that “although state court judges had the first opportunities to provide relief for civil rights violations, they almost never granted relief.   What comes through is a picture of state court judges who were timid, unimaginative, and, in some instances, even disdainful of the arguments put forward by those who attacked racial segregation in our nation.”[52]   I contemplate state court decisions in state RFRA religious freedom/nondiscrimination measures controversies in the same light, and am mindful that judges are elected by popular vote in thirty-nine states.

Respectfully, I contend that these inferences are morally and ethically unacceptable.  I wholeheartedly believe in religious liberty.  Kim Davis must be free to practice her Apostolic Christian beliefs.  She, like many others in our society, must be free to believe that marriage is a union between one man and one woman.  But as a public official, Kim Davis is not free to make her deep and sincere beliefs the official practice of Rowan County, Kentucky.  She can find authority for honoring the ideal of equality and justice not only in the Fourteenth Amendment guarantee of equal protection of the law; she can find authority for doing so also, and more fundamentally, in the life and ministry of Jesus.

I believe that devout photographers, bakers, hotel operators, restauranteurs, and other enterprising people must be free to believe and practice the tenets of their faiths, whatever they may be.  They must be free to profess and proclaim what they believe to be moral, holy, and true.  But that freedom does not operate in a sphere unto itself.  It exists, and must be exercised alongside, and in relationship with, the freedom others have to be protected from discrimination because of who they are, who they love, with whom they may be married or co-habiting, or what they may differently believe and how they practice those beliefs. 

Simply put, in the same way that Jesus refused to use religious tradition as an excuse for disregarding suffering people, followers of Jesus must understand and affirm that religious liberty is no excuse for discrimination and other injustice.  Devout people are not entitled to use religious devotion as a license for social, economic, and political bigotry and oppression. 

This imperative arises not only from the fact that we live in a multicultural, pluralistic society that depends on each person tolerating those who are different.  It is an imperative bottomed on the commandment of Jesus that we, who profess to love God, must also love our neighbors as we love ourselves, including our neighbors whose beliefs, identities, relationships, and behaviors differ from our own and who are, consequently, vulnerable to physical, social, economic, and political oppression.  It is well past time for those of us who profess to follow Jesus to say so, and to act accordingly.



[1] Circuit Judge, Sixth Judicial District of Arkansas (Fifth Division), Pastor, New Millennium Church, Little Rock, Arkansas.  I acknowledge, with profound gratitude, the editorial assistance of Camille Drackette and Meghan Kelleybrew, who are members of my court staff.


The statements contained in this lecture, and any comments offered by the author in response to questions or during discussions associated with this lecture, reflect the views of the author alone.  In no way do they reflect, or should they be ascribed to the views of any other person or entity, including but not limited to, members of the judiciary (whether in Arkansas or elsewhere), as well as religious bodies, (including New Millennium Church and any other entity with which the author is affiliated).

The Scripture quotations and citations contained herein are from the New Revised Standard Version Bible, copyright © 1989 by the Division of Christian Education of the National Council of the Churches of Christ in the U.S.A., and are used by permission.  All rights reserved.
[4] Sheldon v. University of Medicine & Dentistry, 223 F.3d 220 (3d Cir. 2001).
[5] Craig & Mullins v. Masterpiece Cakeshop, Inc., et al., Colorado Court of Appeals, 2015 COA 115 (August 13, 2015).
[6] Elane Photography v. Willock, 309 P.3d 53 (N.M. 2013), cert. denied, 134 S. Ct. 1787 (2014).
[7] Burwell v. Hobby Lobby, 573 U.S. __, 134 S. Ct. 2751, WL 2921709 (2014).
[8] 42 U.S.C. § 2000bb et seq.
[9] 494 U.S. 872, 110 S. Ct. 1595 (1990).
[10] 75 Or. App. 764, 709 P.2d 246 (1985); affirmed without remand, 301 Ore. 209, 721 P.2d 445 (1986).
[11] 485 U.S. 660 (1998).
[12] 307 Ore. 68, 763 P.2d 146 (1988).
[13] Reynolds v. United States, 98 U.S. 145 (1878).
[14] 521 U.S. 507, 117 S. Ct. 2157 (1997).
[15] 42 U.S.C. § 2000cc et seq.
[16] Public Law 111-148 (enacted March 23, 2010), also known as Obamacare.
[17] Arizona Senate Bill 1062, http://www.azleg.gov/legtext/51leg/2r/bills/sb1062s.htm.
[19] http://www.salon.com/2014/03/27/hobby_lobbys_secret_agenda_how_its_secretly_funding_a_vast_right_wing_movement/
[20] Other states where bills similar to Arizona SB 1062 were introduced included Arkansas, Georgia, Hawaii, Indiana, Idaho, Kansas, Maine, Mississippi, Missouri, Nevada, North Carolina, North Dakota, Oklahoma, Ohio, Oregon, South Dakota, Tennessee, Utah, and West Virginia.
[21] 2015 Bill Text IN S.B. 101, 2015 Bill Text IN S.B. 101
[22] 2015 Bill Text AR S.B. 975, 2015 Bill Text AR S.B. 975
[23] Obergefell v. Hodges, 576 U.S. __, 135 S. Ct. 2584, 192 L. Ed. 2d 609, 2015 WL 2473451 (2015).
[24] Constitution of the United States, Amendment XIV.
[25] Miller v. Davis, (E.D. KY. Civil Action No. 15-44-DLB., Opinion of U.S. District Judge David Bunning.  Governor Beshear’s directive to Kentucky county clerks stated:

Effective today, Kentucky will recognize as valid all same sex marriages performed in other states and in Kentucky.  In accordance with my instruction, all executive branch agencies are already working to make any operational changes that will be necessary to implement the Supreme Court decision.  No that same-sex couples are entitled to the issuance of a marriage license, the Department of Libraries and Archives will be sending a gender-neutral form to you today, along with instructions for its use.

Opinion of Judge Bunning, p. 6.  Governor Beshear later addressed religious concerns expressed by some county clerks in the following statement.

You can continue to have your own personal beliefs, but you’re also taking an oath to fulfill the duties prescribed by law, and if you are at that point to where your personal convictions tell you that you simply cannot fulfill your duties that you were elected to do, th[e]n obviously an honorable course to take is to resign and let someone else step in who feels that they can fulfill those duties.

[26] Constitution of the United States, Amendment I.
[27] Miller v. Davis, (E.D. KY. Civil Action No. 15-44-DLB.
[28]Miller v. Davis, supra, p. 28.
[29] Miller v. Davis, 2015 U.S. Dist. LEXIS 105822, (E.D. Ky. Aug. 12, 2015)
[30] The Arkansas Religious Freedom Restoration Act, for example, appears to have been motivated to some extent by concerns on the part of religious conservatives that state non-discrimination protections might be construed by courts as out-weighing religious exercise defenses against discrimination claims.  This observation is particularly compelling because the Arkansas General Assembly enacted the Arkansas Religious Freedom Restoration Act after it enacted Act 137 of 2015, titled the Arkansas Intrastate Commerce Improvement Act, which prohibits Arkansas localities from adopting anti-discrimination measures beyond what is covered in state law.  State law in Arkansas, including the Arkansas Civil Rights Act, currently does not include sexual orientation and gender identity as protected categories against discrimination.  See, http://www.arkleg.state.ar.us/assembly/2015/2015R/Acts/Act137.pdf.  
[33] I will throughout this lecture and its companion use the term “followers of Jesus” instead of Christians, and refer to myself as a “follower of Jesus” rather than as a “Christian.”  Many evangelical Christians consider Christianity, as a world religion, a vigorous protector of religious liberty. However, as a world religion, Christianity is also often identified with imperialism and colonialism at the expense of religious beliefs, traditions, and worship practices observed by indigenous populations. 

Writing about what has been deemed the “Christianization of the Roman Empire,” Joel Spring states:

Christianity added new impetus to the expansion of empire.  Increasing the arrogance of the imperial project, Christians insisted that the Gospels and the Church were the only valid sources of religious beliefs.  Imperialists could claim that they were both civilizing the world and spreading the true religion.  By the 5th century, Christianity was thought of as co-extensive with the Imperium romanum.  This meant that to be human, as opposed to being a natural slave (barbarian?), was to be “civilized” and Christian.  Historian Anthony Pagden argues, “just as the civitas had now become conterminous with Christianity, so to be human—to be, that is, one who was ‘civil’, and who was able to interpret correctly the law of nature—one had now also to be Christian.”  After the fifteenth century, most Western colonialists rationalized the spread of empire with the belief that they were saving a barbaric and pagan world by spreading Christian civilization. 

See, Joel H. Spring, Globalization and Educational Rights:  An Intercivilizational Analysis, (Routledge, New York, 2001), p. 92.

Similarly, Kenyan legal scholar Makau Mutua, among others, argues that Christian efforts at global proselytizing as a function of religious freedom has, ironically, resulted in the erosion of native religious traditions and denial of religious freedom to adherents of native religions.  In Mutua’s words, “Imperial religions have necessarily violated individual conscience and the communal expressions of Africans and their communities by subverting African religions.”  See, chapter titled, Proselyism and Cultural Integrity, at Chapter 28 in Facilitating Freedom of Religion or Belief: A Deskbook, (Oslo Coalition on Freedom of Religion or Belief, 2004), p. 652.

These and related factors lead me to prefer the terms “follower of Jesus” and “the religion of Jesus” over “Christian” and “Christianity.” I do not associate following Jesus—and prefer to not have my religious identity associated—with support for imperialism, manifest destiny, neo-colonialism, militarism, racism, sexism, crass materialism, classism, and techno-centrism.

[34] Zurcher, Anthoy (June 26, 2015), “U.S. Gay Marriage:  Reaction to Ruling,”  BBC News.
[35] “U.S. Gay Marriage:  Texas Pushes Back against Ruling,”  BBC News (June 29, 2015).
[36] Lee, Tony (September 7, 2015), “Mike Huckabee:  We Must Stand With Kim Davis Against ‘Criminalization of Christianity,’” Breitbart.
[37] Sneed, Tierney (September 3, 2015), “Ted Cruz: ‘I Stand With Kim Davis,’” Talking Points Memo.
[38] “Kentucky Clerk Kim Davis Jailed for Her Conscience,” Liberty Counsel, September 3, 2015.
[39] Gehrke, Joel, “Jeb Bush: Kim Davis is ‘Sworn to Uphold the Law,’” National Review (September 4, 2015).
[40] Israel, Josh, “Only 2 Republican Candidates Think Kim Davis Needs to Quit or Follow Law,” Think Progress (September 3, 2015).
[41] Byrnes, Jesse, “Clinton:  Officials should ‘uphold the law,’” The Hill (September 3, 2015).
[42] See, John 9.
[43] See, Luke 5:12-16.
[44] See, Luke 6:1-5.
[45] See, Luke 6:6-10.
[46] See, Luke 6:9.
[47] See, Luke 7:11-15.
[48] See, Matthew 9:18-26; Mark 5:21-43; and Luke 8:40-56.
[49] See, Leviticus 15:25-30; Numbers 19:11-13.
[50] House Bill 1228,
[51] J. Daniel Hays, From Every People and Nation:  A Biblical Theology of Race, (Apollos/Inter Varsity Press, Downers Grove, Illinois) 2003,  p. 53. 
  [52] Wendell L. Griffen, Comment:  Judicial Accountability and Discipline, LAW AND CONTEMPORARY PROBLEMS, (Vol. 61, p. 75, 1998).

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