The Slow Death of Religious Liberty

The Supreme Court refused to hear a case in which the State of Washington changed its pharmacy referral rules for the sole purpose of forcing a handful of pharmacists to carry the “morning after” pill in violation of their religious and moral belief that life begins at conception. Pharmacist referral on the basis of conscience is legal in all 49 other states, and this practice is supported by the American Pharmacists Association and more than 30 other medical and pharmacy associations. In addition, the trial court record contained voluminous evidence that the specific intent of the State was to target “religiously-motivated conduct.” Read more

Why the ‘Bible Bill’ in Tennessee Was Important

I earlier promised myself that I would not write about the bill to make the Holy Bible the official state book, but I couldn’t help myself. The debate among our Representatives was too important not to observe.

I know there were those who might have thought it was a waste of time, that the time should have been spent on something “important.” But I would submit that such a view reflects the very reason the debate was important.

This bill raised very important issues about the meaning of the term “separation of church and state,” what constitutes an “establishment” of religion, and perhaps most importantly, who we are as Tennesseans.

Religious Neutrality or Hostility?

Regarding the constitutional debate, we need to begin with the acknowledgement there is nothing unconstitutional about having a state book. And as Rep. Matthew Hill said, if we’re going to have a state book, what other book could we name that has had the kind of historical, practical, and economic impact as that of the Bible? There is none.

But if the constitutional point is that no religious text can even be entered into the debate, then I submit that we are not being neutral on the issue of religion. Rather, we are advancing secularism at the expense of religion. As Supreme Court Justice Potter Stewart remarked in a different Establishment Clause context:

[A] refusal to permit religious exercises [in schools] thus is … not … the realization of state neutrality, but rather … the establishment of a religion of secularism, or at least, … governmental support of the beliefs of those who think that religious exercises should be conducted only in private.

The Myth of Neutrality

The sooner we wake up to the myth of neutrality the better. Neutrality is the mantra of those who would use it until such time as they suppress the reigning orthodoxy of the views with which they disagree. When those people succeed, they abandon neutrality in order to maintain control of the new orthodoxy. If you don’t believe me, go ask the florists, bakers, and T-shirt makers who have run into the “neutrality” of those who advocate for same-sex “marriage” and homosexuality as a civil right.

An ‘Establishment’ of Religion?

Further, from a constitutional perspective, neither the “separation of church and state” referenced in a letter by Thomas Jefferson (and not found in the Constitution) nor the Establishment Clause were ever intended to divorce religion or its influence from the public square. As Supreme Court Justice, Harvard law professor, and author of the first comprehensive treatise on the Constitution, Joseph Story, wrote in 1833:

The real object of the First Amendment was not to countenance, much less to advance Mohammedanism, or Judaism, or infidelity, by prostrating Christianity, but to exclude all rivalry among Christian sects and to prevent any national ecclesiastical establishment which should give to an hierarchy the exclusive patronage of the national government” (emphasis mine).

Putting aside for the moment the question of whether the state should or should not have recognized the profound historical influence and impact of the Bible, its historical use as a record of the lives of Tennesseans, and the impact its printing has on Tennessee’s economy, it is clear that such recognition is not the kind of “establishment” at which the First Amendment was directed.

I would submit that the failure of many Christians to understand that history and their uninformed acquiescence to those who misrepresent that historical meaning have led to the suppression of religious liberty in the public square that today they lament. So, to me, just having the public debate over that history was worth the effort.

The Importance of Remembering

But let me be even more clear about why the debate was important. Karl Marx once said, “A people without a heritage are easily persuaded.” Mr. Marx was merely reflecting what God knew was true about us. It is why He constantly urged His people to set up memorials; they needed to remember who they were.

Whether one was “right” or “wrong” before God in supporting or opposing the “Bible bill” I’ll leave for others to debate, but I am fully persuaded of this: there are many who would have us remove from our public life and the public square any recognition of our religious heritage. And perhaps they do so for the very reason given by Mr. Marx – it makes it easier for them to persuade us to do things that, in a different generation, knowing who we were, we would not do.

I’m not accusing anyone who opposed this bill as sharing such intentions, but I do hope that Christians, in their understandable desire not to demean the Bible by placing it alongside other reminders of who we are found in our official state poems and songs, do not unwittingly join them in their effort.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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Remembering What Jesus Did This Good Friday

As we watch political leaders in Indiana and Arkansas wither under the storm clouds created by those who love the oppression of government more than the liberty promised by our First Amendment, it is easy to see only gloom and darkness. Is there any light? Any ray of hope?

No doubt that is the way the disciples of Jesus felt almost 2000 years ago. The One who had come to proclaim liberty to the captives, and freedom from oppressive religious burdens and the societal structures that “enforced” them was dead. Oppression by civil government in response to the cries of cultural leaders who had whipped the masses into an uninformed frenzy had led to the death of their Leader. Darkness literally overtook the sun, and the earth quaked.

It feels familiar.

But perhaps for them in the days that followed, these words from the prophet Isaiah came flooding into their minds, even as they did in mine today:

Arise, shine; For your light has come! And the glory of the LORD is risen upon you. For behold, the darkness shall cover the earth, And deep darkness the people; But the LORD will arise over you, And His glory will be seen upon you (Isaiah 60:1-2 NKJV).

It is Friday, but indeed Sunday is coming! Let us arise that The Light might shine forth through us in this present darkness!

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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Lessons From Charlie Hebdo, Ben Carson, and King Solomon

Unbeknownst to me, on the same day that I was listening to Ben Carson field questions at a roundtable sponsored by a Nashville area ministry, Islamic terrorists were killing journalists that wrote for the French publication, Charlie Hebdo. Together they provided me a needful and timely lesson, particularly as the “political season” is upon us with the dawning of the new year.

I had never heard Dr. Ben Carson in person. But his manner and style of speech, particularly compared to what I am used to from those who are or would be politicians, was really disarming. The softness of his speech was such that you almost had to lean in to hear him, and you certainly had to be intentional about listening. And while he was very clear in his opinions, even about Islam, he was gentle in the manner in which he spoke about hard and even unpleasant realities.

The next morning I woke up to read about Charlie Hebdo, a publication I had never heard of. What I learned from the news stories was that it was a “satirical publication.” To make sure I understood that term, I looked it up. Satire is defined by Webster’s dictionary as “a literary work holding up human vices and follies to ridicule or scorn.”

When you put the meaning of satire down in black and white, it is easy to see why satirists invite wrath—no person likes to be ridiculed in public or be publicly made the object of scorn.

This does not mean that those Charlie Hebdo scorned and ridiculed—whether Muslims or anyone else—had a right to physically harm them, let alone kill them.

And no doubt “freedom of speech” gave Charlie Hebdo’s journalists the right to be as satirical as they wanted. We should defend their “right” to do so.

But what one has a right to do does not mean it is the right thing to do. And that put me to thinking about the fact that words are powerful things.

As I reflected on this and these two contrasting styles of communication, I remembered that the author of the book of James in the Bible said that the “tongue is a fire … and set on fire by hell.” And the more I thought about words and the manner in which we convey them, I found myself pouring over the book of Proverbs, because I knew it contained much wisdom about how we use our words.

And here are some “words” from Proverbs that I know I would do well to ponder and seek to apply, particularly as I try to share insights on the cultural issues of our day and the words and works of our politicians. (Each Scripture is taken from the NASB, with chapter and verse in parenthesis.):

Death and life are in the power of the tongue:
and they that love it shall eat the fruit thereof (18:21).

A gentle answer turns away wrath,
But a harsh word stirs up anger (15:1).

Like apples of gold in settings of silver
Is a word spoken in right circumstances (25:12).

There is one who speaks rashly like the thrusts of a sword,
But the tongue of the wise brings healing (12:18).

The heart of the wise instructs his mouth
And adds persuasiveness to his lips (16:23).

Drive out the scoffer, and contention will go out,
Even strife and dishonor will cease (22:10).

Wise words—words of understanding about the nature and power of the tongue and, just as importantly, about the nature of man in the way that he responds to them. While the First Amendment cannot and should not force me to heed their wisdom, Solomon certainly provided an incentive to do so:

A man who wanders from the way of understanding
Will rest in the assembly of the dead (Proverbs 21:16).

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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Hobby Lobby Not a ‘First Amendment’ Victory

Because of the Supreme Court’s ruling on the Hobby Lobby and Conestoga Wood Specialties cases, there was much celebration this week among those Christians who finally woke up to the cultural war against religious liberty when they learned of the victory these two businesses won before the U.S. Supreme Court. But those who woke up better not think they can now go back to sleep. I don’t think the victory was all that it was cracked up to be.

What seems to have been lost over all the euphoria, and I had not really appreciated until I read the Court’s opinion, was that this was not a victory for the First Amendment. So much of what I’ve read would leave the non-lawyers among us with the impression that the First Amendment still applies to protect us.

If so, then your impression is wrong. It was only a statute, the Religious Freedom Restoration Act (RFRA), not the First Amendment, that protected Hobby Lobby and Conestoga Wood Specialties (hereinafter Hobby Lobby). That is not such a happy thought for reasons I’ll explain.

Background to RFRA

Under RFRA, passed in 1993, Congress said that religious liberty would be protected unless the government’s law could survive analysis under what is called the “strict scrutiny” test. Without getting into the legal weeds explaining that test, let’s just say it is a tough test for the government to meet, so Hobby Lobby won. The government couldn’t meet the test.

But it is that very test—strict scrutiny—that our United State Supreme Court struck in 1990 from its First Amendment religious liberty jurisprudence. Now, under a pure First Amendment analysis, the government wins so long as the law at issue is neutral on its face and of general applicability.

Put another way, so long as the law doesn’t target a particular religious belief or practice or a particular religion, we have to do what the government tells us to do or suffer the consequences. Under the First Amendment, Hobby Lobby would have lost.

The Remaining Threat

What all this means is that the threat to religious liberty still hovers over our heads by virtue of the fact that a statute such as RFRA can be repealed or restricted in its scope by simple majority vote of Congress and approval by the President. If you don’t think that would ever happen, then think again.

RFRA was passed in response to the Supreme Court’s 1990 ruling abandoning the First Amendment free exercise clause. But since then, liberalism has become more liberal, and what were then “extreme views” have become more mainstream. As a consequence, some who voted for it, such as Sen. Chuck Schumer, upon learning of the Hobby Lobby decision, have said that RFRA was never intended to protect business owners and that a legislative “fix” is needed. He’s not alone.

Senate Majority Leader Harry Reid said, “If the Supreme Court will not protect women’s access to health care, then Democrats will.”

And White House Press Secretary Josh Earnest said, “Congress needs to take action to solve this problem that’s been created.” If that’s the President’s view and Congress doesn’t “fix” the problem, then expect another unconstitutional executive order from the President.

But some are not just looking at a “fix” to RFRA just to require family business owners to provide abortifacients, but to “fix” RFRA in general. The Center for American Progress has already released its own legislative proposal to place “reasonable restrictions on religious liberty protections” that would prohibit “exemptions [to RFRA] that discriminate against, impose costs on, or otherwise harm others, including those who may belong to other religions and/or adhere to other beliefs.”

In other words, family businesses will no longer have any rights if those rights would stand in the way of fully implementing the anything-goes sexual agenda.

Those who finally woke up to the threats of religious liberty and now think they can go back to sleep because of the Supreme Court’s ruling need to stay awake and put a pot of strong coffee on the burner. The battle for religious liberty is about to begin in earnest, and there will be no First Amendment safety net to protect the religiously devout if they fail.

David’s Press Statement About Hobby Lobby Win

More about the Hobby Lobby And Conestoga Wood Specialties Cases


Freedom From Religion Foundation recently published a full-page ad in The New York Times protesting the Supreme Court’s Hobby Lobby ruling June 30. Here is a partial picture of the ad. Click on the image to see the full PDF of the ad.



A full-page ad in The New York Times protesting the Supreme Court’s Hobby Lobby ruling June 30 – See more at:

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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