Strategy vs. principle


The various approaches to creating additional legal protections for religious liberty is a particularly relevant issue this week, given the passage of Indiana’s new religious freedom law, the subsequent protests of that law by the left, and Utah’s own unique approach to the issue. But before getting there, it’s important to understand why religious freedom needs such protections at all.

For instance, many on the left have taken to opposing religious liberty legislation by arguing that we have the First Amendment to protect religious liberty. Now that may sound good on the surface, but it’s kind of like arguing that we don’t really need anti-discrimination laws because the 14th Amendment guarantees that everyone has “equal protection of the law.” I think most reasonable people would agree with Abraham Lincoln’s point to his opponent for the U.S. Senate when he asked him “Do you support the Constitution if, knowing or believing there is a right established under it which needs specific legislation, you withhold that legislation?”

The repeated instances in recent years of individuals being fired or retaliated against for expressing religious beliefs outside the workplace or in political causes, and even being taken to court by their own government for trying to reasonably apply their moral conscience in their lives illustrates that religious freedom needs specific legislation. For anyone who would claim to support the freedoms guaranteed by the Constitution, the facts would seem to suggest that it’s both a matter of integrity and logical consistency to see a need for legislation protecting religious liberty.

One approach to doing so is to create blanket protections for religious belief and expression. This is the approach of Indiana’s new religious liberty protection law, which is patterned after 31 similar state and federal laws that exist due to actions taken either by legislatures or state courts. These laws exist in a diverse range of states – from red states like Texas, Arizona and Alabama to purple states like Virginia, Pennsylvania and Ohio, and even to blue states like Washington, Massachusetts and Illinois.

Another approach can be called the context-specific approach, which is reflected in Utah’s recently passed laws. In this approach, the law establishes religious liberty protections based on specific contexts that people and organizations experience. For example, Utah’s new laws protect some of the conscience rights of individuals as employees, employers, public officials or religious officials. Read more


Hysteria over Indiana’s protection of religious liberty: Elites take leave of their senses

The reaction to the Indiana Legislature’s enactment of a generic religious liberty law seems increasingly unhinged. The long knives of business, entertainment and political elites are coming out. Even, amusingly, “gamers.” This does little to assuage concerns that proponents of sexual revolution are motivated by animus towards people of faith.

The basic reality is that the law passed by Indiana is almost the same as a law approved by the U.S. Congress in 1993 with overwhelming bipartisan support. The bill simply directs courts considering religious liberty claims to ensure that when the government, or a private party bringing a lawsuit, does something that creates a “substantial burden” on the exercise of religion, it is doing so to further a “compelling interest” in the narrowest way possible to protect that interest. At least 19 other states have similar laws.

Indeed, the legal rule codified in Religious Freedom Restoration Acts reflects the U.S. Supreme Court’s interpretation of the First Amendment for decades (before the court abandoned the principle). The federal RFRA was Congress’s attempt to restore the old rule.

Law professor Daniel O. Conkle, who notes his own support for gay rights and same-sex marriage, showed great integrity recently by pointing out that labeling Indiana’s law “a license to discriminate” does not comport with reality.

One will search far and wide for any example of people being thrown out of restaurants because of a state or federal Religious Freedom Act, though that is being urged as a foregone conclusion by opponents of the law. Why would Indiana’s law create a different result than any other state’s laws, or the federal government’s for that matter? As Stanford Law Professor Michael McConnell notes: “In the decades that states have had RFRA statutes, no business has been given the right to discriminate against gay customers, or anyone else.”

In fact, Professor McConnell and Professor Conkle both note that courts are likely to prioritize discrimination laws over religious liberty if there were to be a conflict.

That may be why Utah opted to pursue a different approach to religious liberty protections this last session. Rather than leave to courts to balance religious liberty with conflicting claims, Utah’s law straightforwardly limited the application of laws that might otherwise impact religious liberties to prevent the litigation in the first place.

But whatever approach a state chooses: stating a principle for courts to apply, like Indiana, or creating rules to prevent attacks, like Utah — protecting religious liberty is not an attack on the rights of others, whatever demagogues may claim to the contrary.

Why should we embrace religion?

Because freedom is the combination of liberty and virtue, religion provides a natural and voluntary source of moral guidelines to assist us in living virtuous lives.

Human beings need and want to belong in communities. In a free society those communities are natural and voluntary: family, friends, religion, neighborhoods, community groups, etc.

Tyrants understand that to take control of any people the tyrant must become the “community” for the people. Hence, dictators such as Hitler and Stalin first sought to erase the intermediate layer of society that stood between the individual and the state. Only then – only after family, religion and natural communities are destroyed – can a tyrant assert moral authority. Healthy religion is the enemy of an overreaching state.

Of all natural moral influences within a free society, the positive and constructive influence of religion is second only to family.

For more on this topic (and others), visit Utah Citizen Network.

Sutherland Institute endorses LDS Church’s principles on religious freedom and nondiscrimination

For Immediate Release: Jan. 27, 2015

Sutherland Institute welcomes the helpful comments from leaders of The Church of Jesus Christ of Latter-day Saints this morning on religious liberty and nondiscrimination. We endorse the principles outlined in the press conference and look forward to continuing a constructive role in ensuring respect for these principles as the Utah Legislature considers these issues.

Sutherland Institute has long called for protection of religious freedom for individuals and organizations. This principle must be reflected in any proposed legislation. Residents of Utah and citizens everywhere are entitled not just to belief, but also to the free exercise of their religious beliefs and moral conscience—both in private and in public.

Our views and those of others will be refined as a civil conversation proceeds. An early version of Sutherland Institute’s efforts on these issues is included on the Institute’s website,

We also reiterate our position that Utah can address valid concerns of mistreatment in employment and housing and public services without contributing to an environment of intolerance toward people of faith and moral conscience.

Sutherland Institute is a state-based, independent public policy organization located in Salt Lake City. Its mission: protecting the cause of freedom, constructively influencing Utah’s decision-makers, and promoting responsible citizenship. Sutherland Institute is recognized as the leading conservative think tank in the state of Utah.


Click here to watch the press conference.

Religion, democracy and the family – Sutherland Soapbox, 12/30/14

"Going to Church," by William H. Johnson, Smithsonian American Art Museum.

“Going to Church,” by William H. Johnson, Smithsonian American Art Museum.

This post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations. The podcast can be found at the bottom of this post.

Reflecting recently on a discussion some years ago with an associate from Asia who had come to the United States to study capitalism and democracy, Harvard business professor and internationally respected author Clayton Christensen was struck by his colleague’s observations about religion, democracy and free markets. Of particular note was the fundamental significance of honesty, commitment and respect for other people’s property – that “their right to freedom is as valuable as yours.” In other words, that capitalism requires willingness voluntarily to follow the rules. (“Clayton Christensen on Business and Religion,” April 23, 2012)

Quoting Dr. Christensen,

Some time ago I had a conversation with a Marxist economist from China. He was coming to the end of a Fulbright Fellowship here in Boston. I asked him if he had learned anything that was surprising or unexpected and without any hesitation he said, “Yeah. I had no idea how critical religion is to the functioning of democracy. ‘The reason why democracy works,’ he said, ‘is not because the government was designed to oversee what everybody does, but rather democracy works because most people most of the time voluntarily choose to obey the law. And in your past, most Americans attended a church or synagogue every week and they were taught there by people who they respected.’ My friend went on to say that Americans follow these rules because they had come to believe that they weren’t just accountable to society; they were accountable to God. My Chinese friend heightened a vague but nagging concern I’ve harbored inside that as religion loses its influence over the lives of Americans, what will happen to our democracy? Where are the institutions that are going to teach the next generation of Americans that they, too, need to voluntarily choose to obey the laws? Because if you take away religion, you can’t hire enough police. (“Clay Christensen on Religious Freedom,” March 5, 2014)

Read more

Is religious expression a ‘fundamental human right’ or a ‘limited right’? – Sutherland Soapbox, 11/25/14

ReligiousSymbolsThis post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations. The podcast can be found at the bottom of this post.

This week I want to talk about religious liberty, which is an issue that is likely to get a fair amount of attention in the upcoming legislative session. If you want to understand why this has become such a heated issue in America, you first have to understand how the various sides view the meaning of religious liberty. Not surprisingly, most of the attention on the issue focuses on where those perspectives disagree.

The first perspective, and the one that most conservatives claim, is the “fundamental human right” perspective. In this view, religious liberty has three main components: first, the ability to freely seek for answers to questions of meaning and value in life from sources that are more than merely human; second, the ability to freely organize and worship in line with the answer one finds to those questions; and third, to live freely in private and in public according to the moral convictions and conscience that are shaped by the answers to those questions.

From this perspective, we have a moral duty to respect this fundamental right for everyone, even if we do not like how they exercise it. To do otherwise is to abandon respect for the dignity that all people deserve as free and reasoning beings in their pursuit of moral and spiritual truth. Some say this means conservatives are arguing that people have faith should have free reign to do whatever they want. But this is irrational because in the “fundamental human right” perspective, people of faith have the same moral duty to respect the fundamental rights and dignity of others as they seek for themselves, and this should correctly be reflected in the law. But there should be a high level of tolerance from both the law and society for both public and private expressions of religious liberty. Additionally, if society desires to legally restrict this fundamental human right, it should be required to have a compelling reason for doing so.

A second perspective on religious liberty, and the one articulated most often by progressives, is the “limited right” perspective. In this view, religious liberty includes the ability to freely worship according to one’s beliefs in private, as well as the ability to freely organize in order to privately worship. But religious liberty is significantly limited outside this narrow set of rights. Read more

States still need their own religious freedom laws – Mero Moment, 7/1/14

This post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations.

Green River Presbyterian Church in Green River, Utah.

Green River (Utah) Presbyterian Church.

The United States Supreme Court decided an important religious freedom case this week. In a 5-4 decision the court ruled that a privately held corporation is allowed its free exercise of religion. The landmark case, made famous by the mega-craft store Hobby Lobby, held that plaintiffs don’t have to comply with certain parts of Obamacare that offend their religious beliefs. Specifically, Hobby Lobby and two other plaintiffs are not required to pay for an employee’s abortion-related contraception such as the “morning after” pill.

The basis of this precedent-setting decision is a federal law known as the Religious Freedom Restoration Act, or RFRA.

RFRA states that the federal government shall not substantially burden a person’s free exercise of religion and the court held that a privately owned family business is a “person” in terms of this law.

Under RFRA, for the federal government to violate a person’s religious beliefs it has to demonstrate a “compelling government interest” and it then has to pursue a solution to enforce that interest in “the least restrictive means” possible. In other words, to force Hobby Lobby to pay for its employees’ abortion pills, the federal government would have to prove why abortion pills for employees are more important than the religious beliefs of employers and, even if that were possible to prove, the federal government would have to enforce its mandates in the least restrictive means possible. The court properly acknowledged that requiring Hobby Lobby to pay daily fines of $1.3 million, or nearly a half-billion dollars a year, in noncompliance is a clear burden to its free exercise of religion.

Of course, the progressive left is going crazy implying (and sometimes outright lying about) what this decision really means. Read more

How Supreme Court ruling supports integrity, tolerance

Hobby Lobby in Stow, Ohio. (Photo: DangApricot via Wikimedia Commons)

Hobby Lobby in Stow, Ohio.

“Americans need to understand that religious liberty is good for the nation; it’s not just a form of right-wing special pleading,” writes Rachel Lu today in The Federalist. Her article gives the reader “3 ways of promoting religious freedom to your liberally inclined friends and relatives.”

It’s a great explanation of the principles behind the Supreme Court decision that can also help clarify in your own mind just why “[t]he Hobby Lobby decision is a win for personal integrity, cultural diversity, and tolerance”:

Sometimes deep and serious commitments run up against each other, as, for example, when one person’s family commitments conflict with another’s religious beliefs. Those are the hard cases, and we have to sort them out as well as we can. But it’s very hard to argue that anyone’s personal integrity is deeply threatened by an employer’s refusal to pay for their contraceptives. …

[M]odesty gives us an additional reason to be wary of curtailing religious practice. Wise people recognize it’s bad to fool around with things you don’t understand.

Great religious faiths offer their followers a complex and comprehensive metaphysical and moral outlook. It’s extremely difficult to judge from the outside how a given belief or practice fits into that wider perspective. The best policy, therefore, is to respect religious groups’ claims of conscience so far as circumstances allow.

Click here to read the rest of this piece at The Federalist.

Sutherland applauds Supreme Court's Hobby Lobby decision

800px-United_states_supreme_court_buildingSutherland Institute issued the following statement today, June 30, 2014, in reaction to the Supreme Court’s decision in the Hobby Lobby case:

The Supreme Court has done the right thing.

No one should have to choose between acting on their religious beliefs or paying crippling fines to the government, including business owners. The court has recognized the importance of the free exercise of religion, protected in the First Amendment of the U.S. Constitution, which is good news for the principles of religious liberty and limited government.

However, supporters of religious freedom can’t let down their guard. Four justices would have allowed the government to force private companies to act against their beliefs. Today’s decision is a welcome reprieve but no reason to relax our vigilance in protecting religious liberty. Utah can help by passing comprehensive state religious liberty protections as soon as possible.

Even things forbidden will be compulsory

Jack Phillips

Jack Phillips, Colorado baker

The state of Colorado has put out a welcome mat for recreational marijuana use but is decidedly cool to private business owners who want to act on their faith as they conduct business. Last week, the Colorado Civil Rights Commission ordered a bakery owner to make wedding cakes for same-sex marriages and to “submit quarterly reports for two years that show how he has worked to change discriminatory practices by altering company policies and training employees” and “disclose the names of any clients who are turned away.”

One irony of this is that Colorado law, approved by voters in 2006, provides that the state will not recognize same-sex marriages. So, what the state is forbidden to do, private business owners are required to do.

It would be well to remember this in the debates over discrimination laws in Utah. It’s clear that even having a law protecting marriage as the union of a husband and wife would not necessarily prevent these kinds of results here. A law protecting individual religious expression will be necessary, period, however Utah defines marriage.