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VOL. 10, NO 2 | WINTER 2014 A PUBLICATION OF THE CHRISTIAN LEGAL SOCIETY LIBERTY AND JUSTICE for All ALSO IN THIS ISSUE • Religious Freedom vs. LGBT Rights? It’s More Complicated by John D. Inazu • Progressivism and Religious Liberty by Thomas C. Berg • Why Protect Religious Freedom? by Michael W. McConnell FROM THE EXECUTIVE DIRECTOR Freedom versus Tyranny s I write this, I am look- will eventually fall into that as Aing at a reminder I have it well, but it may not be the tyr- posted on the upper corner of anny of our making. my computer monitor. It is the A little over a decade ago, Arabic letter for “N” – standing many Christians were critical for Nazarene. My father grew up of the religious liberty stance a Christian in Iraq, a Chaldean, of CLS. Our Center for Law & and he often told me that we as Religious Freedom fights for the religious lib- David Nammo, Christians are referred to as “Nazarenes” there. erty rights of all Americans. I heard from many Executive Director Now, the world watches as ISIS paints that letter Christians and Christian lawyers who felt that and CEO on the houses of Christians, some of whom are we should protect Christian values, and that my relatives, in my father’s former homeland. protecting non-Christian religions was foolish Needless to say, the Christian community in at best. Iraq is nearly decimated. The persecution and Perspectives have changed in America in just killings have driven most of the Christians out the past decade. The church is waking up to the of the country. The stories I have heard are too importance of religious liberty. Christians now gruesome to recount. Those who have put realize that our “freedom” is not just something their faith in Jesus Christ are being killed for it. written in an old Constitution, but something “Liberty and Justice for All” is the theme of this worth cherishing and fighting to keep alive – issue. The toughest part of that phrase may not certainly for our children and our grandchildren. actually be “liberty” or “justice,” it may be “for Christians in America are increasingly fighting all.” It is “freedom” that gives “all” liberty and in many places to live out their faith in all walks justice. And freedom is a tough pill to swallow of life – like the Christian photographer in New if you cannot abide your neighbor’s beliefs, Mexico and the Christian baker in Colorado – practices, or ideals. both of whom lost their battles in court. Free- Proverbs reminds us that if we dig a pit, we will dom is not free. But the ruin of religious lib- fall in it. And if we lay the foundation for free- erty is religious intolerance. And as my family dom, we eventually will need to fall into that knows personally, the death of religious liberty same net. But if we lay the groundwork for tyr- eventually results in cultural tyranny, where ev- anny – protecting only one interest – we also eryone loses. Editor-in-Chief Advertising Office Manuscript Policy The Christian Lawyer is David Nammo Christian Legal Society We encourage the submission of article a publication of: Managing Editor 8001 Braddock Road, Suite 302 and story ideas by our readers. For a copy Philip Lewis Springfield, Virginia 22151 of our editorial guidelines, please write or send an e-mail to [email protected]. Editor For advertising inquiries, email Unsolicited manuscripts and poetry are Greta Simpson [email protected]. not accepted. A query letter must be sent Christian Legal Society Design & Production 8001 Braddock Road, Suite 302 Advertising in The Christian Lawyer does not imply first to [email protected] describing Springfield, Virginia 22151 Perceptions Studio editorial endorsement. Opinions expressed in The a proposed manuscript. Any unsolicited Main Office: 703-894-1070 Editorial E-Mail Christian Lawyer are solely the responsibility of manuscripts will not be returned. the authors and are not necessarily those of the [email protected] © Copyright 2014. Christian Legal editors or members of the Christian Legal Society. Society. All rights reserved. IN THIS ISSUE Liberty and Justice for All ......................................2 Religious Freedom vs. LGBT Rights? It’s More Complicated by John D. Inazu Prisons, Whiskers, and Religious Liberty: What’s at Stake in Holt v. Hobbs by Heather Rice-Minus and Jesse Wiese Progressivism and Religious Liberty by Thomas C. Berg Why Protect Religious Freedom? by Michael W. McConnell Religious Freedom and LGBT Equality: Conflicting Currents in Washington, DC, by Stanley Carlson-Thies CHRISTIAN LEGAL AID Who is My “Neighbor”? .......................21 Ken Liu ATTORNEY MINISTRIES Suing a Brother ..............................23 Louis Bellande CENTER FOR LAW AND RELIGIOUS FREEDOM After Hobby Lobby ...........................26 Kim Colby LAW STUDENT MINISTRIES CLS National Conference: One Student’s Reflections ..................................29 Sarah Murray CLS Attorney Chapters List ..................32 LIBERTY AND JUSTICE for All 2 THE CHRISTIAN LAWYER | DECEMBER 2014 Religious Freedom vs. LGBT Rights? It’s More Complicated The legal context for what’s happening at Gordon College, and how Christians can respond despite intense cultural backlash BY JOHN D. INAZU private Christian school holds what it considers a biblical How should Christians respond to these circumstances? First, A view of marriage. It welcomes all students, but insists that we must understand the history from which they emerge. Sec- they adhere to certain beliefs and abstain from conduct that ond, we must understand the legal, social, and political dimen- violates those beliefs. Few doubt the sincerity of those beliefs. sions of the current landscape. Third, and finally, we must recog- The school’s leaders are seen as strange and offensive to the nize that arguments that seem intuitive from within Christian world, but then again, they know that they will find themselves communities will increasingly not make sense to the growing as aliens and strangers in the world. numbers of Americans who are outside the Christian tradition. This description fits a number of Christian schools confronted today with rapidly changing sexual norms. But the description How We Got Here also would have fit Bob Jones University, a school that barred Many of the questions today simply were not in play that long interracial dating until 2000. And in 1983, that ban cost Bob ago. For one, governmental regulations have a far wider reach Jones its tax exemption, in a decision upheld by the U.S. Su- than they did even 100 years ago. We work, play, worship, preme Court. Even for a relatively small school of a few thou- and live in spaces regulated by government. Just look around sand students, that meant losing millions of dollars. And the the next time you step foot in your local church. Some of the government’s removal of tax-exempt status had a purpose: one building was probably subsidized through state and federal tax Supreme Court justice described it as “elementary econom- exemptions. Any recent construction likely encountered lo- ics: when something becomes more expensive, less of it will cal zoning ordinances. The certificate of occupancy, fire code be purchased.” compliance, and any food service permits all reflect govern- The comparison between Bob Jones in 1983 and Christian ment regulation. Today, the government, its money, and its schools today will strike some as unwarranted. Indeed, there laws are everywhere. are historical reasons to reject it. The discriminatory practices We can pin many of these changes on the New Deal, but just in Bob Jones were linked to the slavery of African Americans as influential were the civil rights era and the battle to end seg- and the Jim Crow South. The 1983 Court decision came with- regation. Civil rights laws extended to what had previously in a generation of Brown v. Board of Education, and its legal been seen as private spaces and transactions. The laws focused principles extended to private secondary schools (including on commercially operated public accommodations, such as “segregationist academies”) that resisted racial integration. transportation, lodging, and restaurants. But they also extend- There are also significant theological differences between Bob ed to private schools, neighborhoods, and swimming pools. Jones’s race-based arguments and arguments that underlie to- The reach of these laws was unprecedented—and rightly so. day’s sexual conduct restrictions. Those differences are rooted The pervasive impediments to equal citizenship for African in contested questions about identity, as well as longstanding Americans have not been seen in any other recent episode in Christian boundaries for sexual behavior. Gay and lesbian Chris- U.S. history. Our country has harmed many people (including tians committed to celibacy show that sexual identity and sexual my grandparents, who were stripped of their possessions and conduct are not always one in the same. But these points are in- imprisoned for four years during World War II solely because creasingly obscured outside of the church. We see this in the cas- they were Japanese Americans). But the systemic and structur- tigation of any opposition to same-sex liberties as bigoted. That al injustices perpetrated against African Americans—and the kind of language has moved rapidly into mainstream culture. And extraordinary remedies those injustices warranted—remain in it is difficult to envision how it would be undone or dialed back. a class of their own. WWW.CHRISTIANLAWYER.ORG 3 In less than three decades, the Supreme Court has moved from That reasoning has broad implications, because many if not most upholding the criminalizing of gay conduct to affirming gay laws are generally applicable. For example, under current law, a re- marriage. The tone of the debates has also shifted. ligious believer will almost certainly lose a free exercise challenge to an antidiscrimination law that covers sexual orientation.

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