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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The End of Christianity As We Know It

Two pieces of legislation, one pending in Tennessee and one just passed in Indiana, and the reactions to them are bringing me ever closer to the belief that Christianity as we know it is coming to an end in the United States.

The bill in Tennessee is a rather straightforward one that I have no doubts our Founding Fathers would have passed in a heartbeat. The bill would prevent professors in the most atheistic department on our public college campuses—psychology—from using the power of the state that their professorial position entails to force a student counselor-in-training to counsel a client contrary to the student’s religious beliefs.

However, the bill is opposed by accrediting agencies and that has made its passage tenuous. Let’s be clear about what’s going on here. Accreditation trumps religious liberty.

And I understand the thinking. If we lose accreditation, it will hurt our universities. They won’t be able to attract students from out of state. And it will hurt the career opportunities afforded our students, who may not be able go to other states to practice if they don’t have a degree from an accredited program. Protecting religious liberty could be costly.

The other bill is one Indiana passed this week to protect religious freedom in the marketplace. It would protect Citizen A from Citizen B using the power of the judicial branch to force Citizen A to do something contrary to Citizen A’s sincerely held religious belief unless there is some really compelling reason for government to trample on religious liberty.

Again, this is something I believe our Founding Fathers, based on the language of the Declaration of Independence, would have supported at the risk of their life, liberty, and property.

But the NCAA is now thinking about whether it should hold basketball tournaments in the state because, in their view, the bill fosters discrimination. And two major conventions slotted for Indianapolis have threatened to look elsewhere for the same reason. Again, protecting religious liberty just might prove costly.

So what does this have to do with Christianity and particularly the “end of it as we know it?”

What I’m referring to is the kind of Christianity whose adherents hold to and live consistently with the historic doctrines of the church rooted in Scripture and are still able to get along with everybody else without it costing very much. That kind of Christianity, I believe, is coming to an end in America.

What will take its place is a costly Christianity, the kind of which Dietrich Bonhoeffer wrote before he was hanged for his opposition to Hitler’s totalitarian Nazi regime.

But that is actually the kind of Christianity that is true to its historical roots. Christianity will always be tied to and rooted in the Cross, and only those willing to embrace that Cross really embrace Christianity. When embracing the Cross, one’s hands cannot embrace other things the world might offer in its place.

It was because he’d already embraced the Cross that the Apostle Paul found himself in situations in which he was beaten and left for dead. It was because they’d already embraced the Cross that Christians were willing to deny primacy to Caesar though it meant being fed to lions and used as human torches. It’s because of his faith in the Cross, rather than institutional church, that Martin Luther penned the words, “Let goods and kindred go, this mortal life also; The body they may kill. God’s truth abideth still. His kingdom is forever!”

And, indeed, God’s truth will endure as will the “Kingdom” kind of Christianity that is build upon it, even as it has for more than two thousand years.

But what’s going on in America’s culture is eventually going to make all of us who fill the pews and pulpits of our churches decide whether we will really embrace the costliness of the Cross when our time comes.

To be honest, I don’t relish that thought, but more than ever I think that day is coming. And perhaps this season of the Cross is the right time to think about it.

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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Supreme Court Exposes Its Hypocrisy

When the U.S. Supreme Court issued its opinion on Monday holding that the invocations given prior to meetings of the town council for Greece, N.Y., are constitutional, it was hailed as a great victory for religious liberty. It was a victory, but the hypocrisy of the majority opinion was clearly showing.

Many Christians, in particular, are celebrating the Court’s decision, because prayers offered before the council meetings were, over the years, predominately Christian in nature and were often given “in the name of Jesus.” That such prayers are constitutionally permissible is good.

But the hypocrisy of the majority in which so many exult cannot be ignored. The Court rightly said, “the Establishment Clause must be interpreted ‘by reference to historical practices and understandings.’” They got the fact right that prayers before legislative bodies have a long history in our nation, going back to our Founding Fathers.

But that is what makes the following statement by the Court so maddening:

“‘[T]he line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers.’ A test that would sweep away what has so long been settled would create new controversy and begin anew the very divisions along religious lines that the Establishment Clause seeks to prevent” (emphasis mine).

Reading the last sentence, one can’t help but ask, “So why have you spent the last sixty years or so sweeping away long-established religious practices, and the public practices related to and recognitions of Christianity in particular?”

And I can’t help but wonder whether it’s possible that the “very divisions along religious lines” that facture us today are a product of the Court’s modern practices of “prostrating Christianity” for the sake of other religions.

My last thought would probably evoke the ire of a majority of our justices and perhaps every liberal in America, which is why I put the words “prostrating Christianity” in quotes. The words are not mine. They come from the very first commentary written on the Constitution, written by Supreme Court Justice Joseph Story, who happened to be living at the time the Constitution was adopted and who taught constitutional law at Harvard University:

“The real object of the First Amendment was not to countenance, much less to advance Mohammedanism [Islam], 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.”

Let’s put the pertinent part of that statement in language with which we’re more familiar.  Using the Webster 1828 Dictionary that would reflect the meaning of the words Justice Story used to define “countenance” and “infidelity” and “prostrating,” the first part of his sentence would read:

“The real object of the First Amendment was not to [aid, support, encourage, abet; to vindicate, by any means,] much less advance  . . . [disbelief of the inspiration of the Scriptures, or the divine original of Christianity] by [laying flat, throwing down or destroying] Christianity.”

In other words, the modern Supreme Court, in utter disregard for what “accords with the history and faithfully reflects the understanding of the Founding Fathers,” has done exactly what the First Amendment was not to do: aid, abet, and even advance atheism by throwing down Christianity.

Maybe some day the Court will take its own admonitions seriously and get their history straight as well. That would be a victory really worth celebrating.

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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