WHAT IN THE WORLD IS GOING ON WITH RELIGIOUS LIBERTY?

            Recently the airwaves and newspapers of America (not to mention the rounds of various internet social media sites) have been burning up with stories about laws that would allow Christians to act in a prejudiced manner against those desiring service at the gay marriage ceremony.  At least this is what the majority of reporting claims about our current legislation in Indiana and Arkansas. What is fascinating about all this is the way a majority of these stories are more about reactions to what possibly could happen, rather than what is actually in the bills.  Also lost to all but a few of these articles are the very real concerns of evangelical Christians.  They are concerned about whether there is going to be a perceived repeal of the 1st Amendment protection of religious liberty without the issue ever being debated in Congress, and without proper Constitutional due process.

             This article is not meant to be anything more than one pastor’s take on all this.  I’ve also included at the end the printed text of the Indiana and Arkansas bills so that those who truly want to be informed may actually read them.  This is so that we won’t go off half-cocked on this issue without some reading and thinking – two skills that from what I’ve seen could be used much more extensively by all involved.  Far too much of this controversy has been due to knee-jerk reactions by those supporting gay rights – as well as by Christians who have not seriously thought through some things they should consider.  Lost in all of this from the Christian vantage point is what God may be allowing for His purposes and intentions.  He is working in the culture of the United States and in our government.  He is working by His divine providence and His is divine judgment in what He is allowing to happen in our nation.

             First of all allow me to offer one pastor’s opinion on what is happening.  I believe much of this is due to the Hobby Lobby case that was decided by the Supreme Court last year – and the backlash from those upset with how religious liberty affected that case.  That case dealt with Hobby Lobby’s religious objection to The Affordable Care Act and how it was seeking to force them to provide for certain kinds of abortifacient forms of birth control.  Eventually the court sided with Hobby Lobby that they could not be forced to do something against conscience and against the free exercise of their religious beliefs.  The reaction of many who support big government being able to invade the privacy of ordinary citizens was horror, disbelief, and a hatred of how the idea of religious liberty protected Hobby Lobby’s evangelical Christian owners.  One could see that a line was crossed and battle lines for the future were drawn.  Those lines would require that religious liberty be severely curtailed so that religious conscience would not be protected when it came up against an agenda opposed to its views of sexuality in the future. 

             Since that decision we’ve watched as an avalanche of decisions at the state level made gay marriage legal in a majority of the states.  It should be duly noted that none of these were based on laws passed within legislatures.  Courts who were acting as legislatures decided – often against a vote of the people as well as state constitutional amendments  - that gay marriage should be legal.  Now a challenge is before the Supreme Court from several states that will be decided this year. 

             Historically next, was several cases involving primarily bakers, photographers, and florists who said that their sincerely held religious beliefs prevented them from participating in a gay wedding ceremony.  The argument was that their professions involved an artistic expression intended to celebrate something that their religious conscience could not agree to do.  In several states these individuals were sued after refusing to give service to the gay couples wanting them to bake, arrange flowers, or photograph their weddings.  One such judgment threatens a $150,000 fine imposed on the owner for discriminating against the couple wanting to pay for services.  These events led to a perfect storm when the Indiana legislature passed their Religious Freedom Restoration Act which was signed by Governor Pence.  Arkansas, which was due to pass their own legislation similar to that of Indiana, was next to face this controversy.  This has led to where we are now – with corporations threating states – with other state officials threatening a ban on travel and business with other states – and with our national conversation ablaze with these matters. 

             Sorry for the length of this – but that is what I see as the context of all of this.  In order to be as fair as I can – there are many on the gay marriage side of this who believe that no one should be able to refuse services to a gay couples seeking to be married.  They assert that to do so is nothing more than prejudicial discrimination akin to racial prejudice – and that the government should not protect evangelical believers who say that their religious rights or rights to conscience are involved in their denial of service.  Some of those who are more radical state that such actions indicate hate and that all such hate against gay couples and LBGT rights should be squelched and eventually crushed by government with extreme prejudice. 

             First of all – neither bill’s actual language says anything about the gay marriage issue or LGBT rights.  An honest appraisal of the situation has to admit that they were written to protect the religious rights and rights of conscience of those who held religious reasons why they could offer their creative services for a gay marriage.  But, as some have stated wrongly – there is nothing in the actual language that states anything about hate, prejudice, or discrimination.  The bills were initiated because of the way that some in government were prosecuting those who were honestly seeking to follow their conscience on the grounds of exercising their religious freedom.  The United States Constitution promises the right to the freedom of religion – and forbids the United States government from establishing religion (Which was meant to keep the US government from having a state church) or from prohibiting the free exercise thereof. 

           This is where my second point is to be made.  Either our Constitution provides these freedoms to all – or they are specious at best.  There is a very serious danger that we are trumping original Constitutional rights with a new form of erotic rights embraced by the LGBT community and the growing number who support them.  Our founders reserved the right for us to disagree with each other on issues – without the government intruding.  They definitely did not support the kind of heavy-handed way that the government is making it very clear that those who do not side with their current views will be punished and clamped down upon with severe prejudice.  When a baker, who offered three alternative bakers to do the work faces a fine of $150,000 for acting according to her sincerely held religious views, we have a problem.  This is in effect demanding of evangelical Christians that they only hold their views inside the church building – which fundamentally goes against what sincerely held views are for – which is living all of life according to them.  What Christians are being told to do by their government is to relegate their sincerely held views of God and Scripture to only be opinions they hold – but never speak through their lives or their professions.  This places a very serious burden upon Bible believing Christians.  And it is a burden that governmental leaders in Indiana and Arkansas were attempting to alleviate. 

             Now – at the risk of being seriously criticized by some in the evangelical Christian community – I want to discuss some things WE need to consider.  As a pastor there are marriages that I cannot perform due to my sincerely held beliefs based on what I read and study in Scripture.  I cannot perform a gay marriage.  But I also cannot perform marriages where a divorce has happened in a way that the Bible does not allow.  What I am stating here is that it is difficult to be consistent on such matters.  I’ve had couples request for me to marry them who were living together and having sex outside of marriage.  In a loving way I’ve had to tell them that until they repented of that choice in life, I could not do a wedding ceremony for them.  It is my hope that I remain biblically consistent on these things.  But what about a business owner who is asked to provide a service for an event?  Where do we draw the line on these things?  How far do we go with such things?  And, if a believer does provide a service, does it mean that they are in sin in doing so?  Here is where I defend the various ways that conscience is expressed – even under the Bible.  I know of some who say that their services are offered to any – on a business level.  Others respond that they cannot be involved in a gay wedding service.  I even know one business owner who will perform a service – but is sure to tell the person that if asked, they will have to admit that they see homosexuality as sin.  Their service is offered as a paid service and should not be viewed as agreement with gay marriage.  What we need to do as believers is hold to the truth – and yet allow business owners to act according to their conscience on the matter.  I know that for some in the evangelical community that won’t be too popular.  But the question is asked – are we asking everyone about the details of their event or lifestyle before serving them?  But please know that I also hold that someone whose conscience is bothered by offering services at a gay wedding should be defended to the full extent to act in accordance with their views.  One thing I MUST state in all this is that for Bible-believing business owners – there is not an option to say that gay marriage is acceptable without running afoul of what Scripture itself says.

             Now for my last point in this article I want to answer this question.  Why is God, Who is absolutely sovereign over all matters, allowing this to happen in our nation?  Has God changed His mind on matters of sexuality?  Is there an honest, biblically sound interpretation of Scripture that would allow for heterosexual immorality or any acting out of homosexual acts?  The answer to the last question is that Scripture states that both heterosexual immorality (sex outside of biblical marriage between one man and one woman) and all homosexual sex acts is sin.  But I believe there is a reason God is allowing such things to happen in our nation.  Jesus said in Matthew 5 that we are to be the light of the world and the salt of the earth.  The context of that call is godly character and evangelistic actions that seek to lead the lost to Christ.  When this is gone.  When the church loses her evangelistic zeal and purpose – there is nothing else left except for God to allow the church to be trodden under foot by men.  Historically this has meant government or dictatorial oppression.  God actually allows the church to be crushed under foot by the powers that be.  That is what I truly believe is happening in our nation today – and I believe it is why God is allowing this current controversy to set our nation ablaze with such strong reactions. 

             For decades the church has needed a thorough work of revival and restoration.  We’ve left God and have run after the world.  There is no longer in the church a zeal for holiness, the presence of God, and evangelism.  We’ve somehow lost our heart for God – becoming as Revelation 3 puts it – lukewarm in our faith.  The sexual revolution began in the early 1960’s and has only steadily pushed ahead in my lifetime.  In the meantime the church spent herself in the 70’s pursuing church growth by studying man rather than knowing and following God.  In the later 70’s and 80’s the church turned to politics and the moral majority to try to push righteous behavior through legislation.  The 1990’s saw the drive to ban gay marriage in state after state.  But I’ve watched as the church has turned from God more and more through these years.  There have not been concerted calls for revival – for broken prayer over our own sin – and for a return to God with all our hearts.  In 2001 we watched in horror as we were hit with the 9-11 attacks.  Ablaze with patriotism the country adopted the slogan, “God bless America!” without asking the question of why He should.  The church all through these years was rocked with shocking revelations of sexual immorality and financial misconduct.  The church began to adopt a theology that embraced health, wealth, and prosperity without adopting holiness, brokenness, and submission to the will of God in living a sacrificial, good-works, and gospel proclaiming lifestyle.  The salt has lost its savor.  The result has been that in  progressive stages – God has been allowing the church to be thrown out and trampled underfoot by our culture – and now increasingly by our government.  What can we do? 

             We can realize that this fight won’t be won with political clout.  We can realize that we need to repent and return to God.  Not that our nation needs to do this – THE CHURCH needs to do this!  What is needed is brokenness, deep repentance, and prayer.  We need to cry out to God, confessing our sins, and calling for Him to return to the church in power.  We are already losing and will lose this fight if it is fought in the political realm alone.  If all we do is whip ourselves into an angry frenzy of court cases and calls for taking our country back through the upcoming election – we WILL lose.  With very few exceptions, just about every elected official has backed away from this fight – or declared for a restriction of religious rights from the start.  To our knees brothers and sisters – that is where we need to begin.  We need to do so, not seeking a restoration of political power – but of Holy Spirit power in the church.  We may not win the day politically, but we can prepare our hearts to stand and be salt and light again with the gospel in our society.  Let me ask a simple question as I conclude this very long article.  Where are the calls for a solemn assembly?  Where are the calls for radical, sacrificial, prevailing prayer?  Where are the calls for the church to repent and return to God?  I have always been amazed at the mercy of God upon Ninevah in Jonah’s day.  If we knew that we only had 40 days until God’s judgment is released in its fury upon our nation – would we drop everything and repent in sack cloth and ashes?  Would we devote 3 days to praying day and night – repenting and returning to God?  The answer to these questions has far more to do with where this will lead – than what will happen in Indianapolis, Little Rock, or Washington D.C.  God have mercy on us – and grant us true repentance and return.

 
INDIANA SENATE BILL  568 
Religious freedom restoration act. Provides that a state or local government action may not substantially burden a person's right to the exercise of religion unless it is demonstrated that applying the burden to the person's exercise of religion is:

(1) essential to further a compelling governmental interest; and
(2) the least restrictive means of furthering the compelling governmental interest. Provides that a person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a state or local government action may assert the burden as a claim or defense in a judicial proceeding, regardless of whether the state or a political subdivision of the state is a party to the judicial proceeding.

Allows a person who asserts a burden as a claim or defense to obtain appropriate relief, including:

(1) injunctive relief;
(2) declaratory relief;
(3) compensatory damages; and
(4) recovery of court costs and reasonable attorney's fees.
 

ARKANSAS RELIGIOUS FREEDOM RESTORATION ACT

For An Act To Be Entitled AN ACT TO ENACT THE RELIGIOUS FREEDOM RESTORATION ACT TO BE KNOWN AS MARY'S LAW; TO PROVIDE PROTECTION FOR RELIGIOUS PRACTICE AND TO PROVIDE REMEDIES AND PENALTIES FOR VIOLATING OR ABUSING RELIGIOUS PROTECTIONS; TO DECLARE AN EMERGENCY; AND FOR OTHER PURPOSES.

 Subtitle 20 TO ENACT THE RELIGIOUS FREEDOM RESTORATION ACT; AND TO DECLARE AN EMERGENCY.  BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:

SECTION 1.

Legislative findings. The General Assembly finds that it is a compelling governmental interest to comply with federal civil rights laws. SECTION 2. Arkansas Code Title 16, Chapter 123, is amended to add an additional subchapter to read as follows:

Subchapter 4 — Religious Freedom Restoration Act 16-123-401. Title. As Engrossed: H2/11/15 S2/26/15 S3/16/15 S3/26/15 HB1228 2 02-02-2015 14:07:32 BPG217 This subchapter shall be known and may be cited as the "Religious Freedom Restoration Act".  16-123-402.

Legislative intent.  It is the intent of the General Assembly to:

(1) Ensure that in all cases in which state action substantially burdens the exercise of religion strict scrutiny is applied;

(2) Provide a claim or defense to a person whose exercise of religion is substantially burdened by state action; and

(3) Implement Article 2, § 24, of the Arkansas Constitution, 10 which states that "[N]o human authority can, in any case or manner 11 whatsoever, control or interfere with the right of conscience”. 16-123-403.

Legislative findings. The General Assembly finds that:

(1) The Arkansas Constitution recognizes the free exercise of religion;

(2) Laws neutral toward religion have the same potential to burden religious exercise as laws purposely intended to interfere with religious exercise;

(3) Governments should not substantially burden the free exercise of religion without compelling justification;

(4) In Employment Division v. Smith, 494 U.S. 872 (1990), the United States Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion;

(5) In response, Congress passed the Religious Freedom Restoration Act of 1993, 42 U.S.C., § 2000bb, to restore the compelling interest test set forth in the federal cases of Wisconsin v. Yoder, 406 U.S. 29 205 (1972), and Sherbert v. Verner, 374 U.S. 398 (1963);  

(6) The compelling interest test is a workable test for striking sensible balances between religious liberty and competing government interests;

(7) In City of Boerne v. Flores, 521 U.S. 507 (1997), the United States Supreme Court held that the protections of religious exercise afforded by the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb, only applied to religious exercise burdened by federal law or As Engrossed: H2/11/15 S2/26/15 S3/16/15 S3/26/15 HB1228 3 02-02-2015 14:07:32 BPG217 agencies and provided no protection from burdens on religious exercise from state or local law or governments;

(8) To provide the same level of protection from burdens on religious exercise from state or local governments, a state must enact an equivalent to the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb, that was passed by Congress; and (9) Since the 1997 Supreme Court decision in City of Boerne v. Flores, many states have enacted statutes similar to the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb, including: Alabama, Arizona, Connecticut, Florida, Idaho, Illinois, Kansas, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, and Virginia. 16-123-404.

Definitions. As used in this subchapter:

(1) "Compelling governmental interest" means a governmental interest of the highest magnitude that cannot otherwise be achieved without burdening the exercise of religion;

(2) "Exercise of religion" means the practice or observance of religion including without limitation the ability to act or refuse to act in a manner substantially motivated by a person's sincerely held religious beliefs, whether or not the exercise is compulsory or central to a larger system of religious belief;

(3) "Government entity" means: (A) A branch, department, agency, board, commission, or other instrumentality of: (i) State government; or (ii) A political subdivision of the state, including without limitation a city or county; or (B) An official or other person acting under color of state law;

(4) "Person" means an individual, association, partnership, corporation, church, religious institution, estate, trust, foundation, or other legal entity;

(5) "Prevails" means to obtain prevailing party status as defined by courts construing the federal Civil Rights Attorney’s Fees Awards As Engrossed: H2/11/15 S2/26/15 S3/16/15 S3/26/15 HB1228 4 02-02-2015 14:07:32 BPG217  Act of 1976, 42 U.S.C. § 1988;

(6) "State action" means the implementation or application or any law, including without limitation state and local laws, ordinances rules, regulations, and policies, whether statutory or otherwise, or othe action by the state or any political subdivision thereof and any local government, municipality, instrumentality, or public official authorized by law in the state; and

(7)(A) "Substantial burden" means to prevent, inhibit, or curtail religiously-motivated practice consistent with a sincerely held religious belief. (B) "Substantial burden" includes without limitation withholding benefits, assessing penalties, or an exclusion from programs or access to facilities.123-405. Religious freedom preserved.  A state action shall not substantially burden a person’s right to exercise of religion, even if the substantial burden results from a rule of general applicability, unless it is demonstrated that applying the 19 substantial burden to the person’s exercise of religion in this particular 20 instance:

(1) Is essential to further a compelling governmental interest; and

(2) Is the least restrictive means of furthering that compelling governmental interest. 16-123-406. Construction and applicability. This subchapter does not:

(1) Authorize a government entity to substantially burden a religious belief;

(2) Affect, interpret, or in any way address those portions of this subchapter, Article 2, §§, of the Arkansas Constitution, or the First Amendment to the United States Constitution that prohibit laws respecting the establishment of religion;  

(3) Prohibit a grant of government funds, benefits, or exemptions to the extent permissible under those portions of this subchapter, Article 2, §§, of the Arkansas Constitution, or the First Amendment to As Engrossed: H2/11/15 S2/26/15 S3/16/15 S3/26/15 HB1228 5 02-02-2015 14:07:32 BPG217 the United States Constitution that prohibit laws respecting the establishment of religion; or

(4) Create a right or cause of action with respect to an employee against an employer if the employer is not a government entity. 123-407. Remedies and penalties.  (a) Regardless of whether the state or one of its political subdivisions is a party to the proceeding, a person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, in violation of § 16-123-405, may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding. (b)

(1) A person asserting a claim or defense under this subchapter may obtain appropriate relief, including relief against the state or a political subdivision of the state when the state or the political subdivision of the state is a party to the proceedings.

(2) Appropriate relief under this subsection includes without limitation:

(A) Injunctive relief;

(B) Declaratory relief;

(C) Compensatory damages; and

(D) Costs and attorney's fees. 16-123-408. Exemptions. The Department of Correction, the Department of Community Correction, a county jail, and a detention facility are exempt from this subchapter.

SECTION 3. EMERGENCY CLAUSE. It is found and determined by the General Assembly of the State of Arkansas that there is not a higher protection offered by the state than the protection of a person's right to religious freedom; and that this act is immediately necessary because every day that a person's right to religious freedom is threatened is a day that the First Amendment to the United States Constitution is compromised. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; As Engrossed: H2/11/15 S2/26/15 S3/16/15 S3/26/15 HB1228 6 02-02-201

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