Saving Our Locker Rooms

by Brandon McGinley 

We need to offer cogent, rational arguments against non-discrimination laws that would de-segregate single-sex personal facilities.

California Governor Jerry Brown recently garnered headlines for signing a bill requiring all public schools to permit students to use the restrooms, locker rooms, and other personal facilities that correspond with their "gender identity." The purpose of the law is to ensure that transgender Californians can use facilities corresponding to the sex they perceive themselves to be, rather than the one they appear to be.

Conservatives must resist two temptations in considering this development.  First, we can't dismiss the bathroom bill as a ridiculous "Left Coast" idiosyncrasy concocted by "Governor Moonbeam" and his crazy cabal of unreconstructed hippies. Second, we cannot and ought not assume that we can rely on disgust, discomfort, or any other visceral reaction to carry the day in opposing such progressive legislative innovations. Efforts to remove gender distinctions from public facilities are national and serious, and should be treated as such.

The Supreme Court of Maine is considering whether, under the state's new gender identity non-discrimination law, a fifth-grade boy who identifies as a girl can be permitted to use a staff restroom but not the girls' restroom. In Colorado, state courts have already ruled that a six-year-old boy who identifies as a girl must be permitted to use girls' facilities. And in Washington state, a state college says it is powerless to prohibit a 45-year-old man who identifies as a woman to parade around locker rooms used by young girls' swim teams because, per a spokeswoman, "gender identity is one of the protected things in discrimination law in this state."

In my home state of Pennsylvania, official legal guidance published by the city of Philadelphia on its gender identity ordinance declares that discomfort with sharing personal facilities with those of the opposite biological sex stems from "unsubstantiated fears and discriminatory attitudes" that employers are bound by law to attempt to "eliminate." And legislators from both parties have signed onto a bill--HB/SB 300--in the Pennsylvania legislature that would effectively expand this concept statewide.

None of these jurisdictions has a law exactly like California's. Which is to say: California's "bathroom bill" is not a unique innovation, but merely the codification of the necessary implications of sexual orientation/gender identity (SOGI) non-discrimination statutes all over the country.

Proponents of bills like Pennsylvania's HB/SB 300 and the federal Employment Non-Discrimination Act (ENDA) forswear the implications of these measures for use of personal facilities, focusing instead on issues of employment and workplace discrimination. But not only have these bills led to the de-gendering of personal facilities as a matter of fact, they must do so as a matter of principle, no matter what pragmatic proponents argue.

Under the logic of measures like ENDA, strictly sex-segregated personal facilities represent invidious discrimination because they deny "gender-non-conforming" individuals a right that most take for granted--the use of personal facilities in accordance with one's "gender identity." Simply placing the words "gender identity" and "gender expression"--the inward/psychic and outward/physical manifestations of gender, respectively--into discrimination law enshrines these concepts in our jurisprudence, where they will be invoked to eliminate perceived discrimination of all kinds.

To be clear, the scandal here is not that legislation like ENDA introduces the distinction between sex and gender into our law. We could affirm that gender is distinct from sex, and even that its contours are complex, fluid, and partially socially-construed, without affirming the radical view that our biology is irrelevant to our gender.

Conservatives embark on a fool's errand when they try to argue that our--or any--particular social understanding of manhood and womanhood represents the essential nature of our being as gendered creatures. Pinkness does not inhere in womanliness. More seriously, neither courage, nor fortitude, nor any other virtues inhere exclusively in manliness as opposed to womanliness.

We can say all of this without saying that our socially- and personally-constructed gender constitutes our essential identity exclusive of our biological sex. And it is precisely this idea--that sex is irrelevant to gender, and that gender is "who we are"--that is smuggled into our law when the phrases "gender identity" and "gender expression" are placed there.

We are told, though, that biological sex cannot really matter because it doesn't really exist, at least in the traditionally understood male-female binary. This binary is undermined, even more than by transgender individuals, by intersex and hermaphroditic people who are born with mixed or ambiguous genitalia and/or chromosomal structures. Gender, then, must be an internal, chosen identity--not a collection of macro or micro physical traits.

But does the existence of congenital blindness mean that humans are not sighted creatures? It is not insulting or demeaning to blind persons to say that humans are sighted by nature; it is a fact of our species. Do intersexuality and hermaphroditism mean that humans are not by nature male and female? No; they mean that some people are afflicted with abnormal sexual and reproductive capacities, in a similar way that blind people have abnormal human capacity for sight.

These afflictions, as with any other, call for care and compassion, not for trying to redefine the human species. They are a reminder, also, that we are all imperfect, physically and morally, and require the compassion of our fellow men.

Just as same-sex marriage redefines the most fundamental human relationship, enshrining "gender identity" into law redefines human sexuality itself. And, whether proponents of such legislation say so or not, this redefinition will reach public personal facilities from elementary schools to nursing homes.

For many Americans, understanding this eventuality would be enough to turn them against adding "gender identity" to our legal lexicon. But we err if we think visceral discomfort with sharing restrooms will win the day, just as many erred in thinking visceral discomfort with homosexuality made same-sex marriage unlikely. The laws are changing just slowly enough not to raise wide alarm in our apathetic society, and when they do change it is with an air of progressive inevitability (abetted by the media) that subtly suffocates opposition.

We must argue, then, for why we have sex-segregated personal facilities to begin with. Are they a holdover from a bygone era, like facilities segregated by race, or legal employment discrimination against women? Or are there reasons beyond the fact that it has always been this way?

The various activities that take place in restrooms and locker rooms implicate the distinct physical differences between men and women. In most other public places--offices, restaurants, sidewalks--these differences don't matter. Men and women require no particular accommodation in virtue of their sex in these places; it is often illegal to treat men and women substantially differently precisely because the differences between them are irrelevant.

Sex-segregated personal facilities exist because there are some very particular ways in which men and women remain different, and always will be different. We need not go into detail to observe that men and women have different experiences in restrooms, locker rooms, and other sex-segregated places because of the differences in their anatomy. Separating the sexes in these facilities allows for distinct physical accommodations proper to the needs of men and women, but more importantly it allows for camaraderie among those who share the whole life experience of manhood or womanhood--among those who are the same. Advice, help, humor--there are some things that only those of the same sex can fully understand and appreciate, and which would not only be awkward but senseless to discuss with someone of the opposite sex (other than, perhaps, a spouse).

Secondarily, these personal facilities also implicate parts of the body that are particularly sexual in nature, even if nudity is not present. Personal facilities are sex-segregated in order to reduce their sexual nature. Healthy and professional non-sexual relationships between men and women depend on banishing the specter of sexuality from public facilities--even placing to one side the threat of harassment and general boorishness.

That visceral discomfort many feel when confronted with the idea of sharing personal facilities with those of the opposite biological sex can thus be explained rationally, and not just as the unreasonable result of social conditioning. And we must make the argument, for without it, as with marriage, those who feel this discomfort but do not understand it will be cowed into thinking that they're the unwitting products of a grand scheme of disenlightenment, and will sheepishly acquiesce in the march of progress.

The de-gendering of personal facilities is the next logical step in the introduction of radical theories of gender into public policy. Governor Brown has explicitly codified this step, and probably knows exactly what he's doing, but across the country at the state and federal level legislators are lining up behind "non-discrimination" legislation with no understanding of its meaning or repercussions. We must take these efforts seriously and offer cogent, rational arguments against them. Relying on disgust and discomfort would be like building a sandcastle as the tide rolls in.

Brandon McGinley is the field director of the Western region for the Pennsylvania Family Institute.

This article originally appeared in PublicDiscourse, the online journal of the Witherspoon Institute of Princeton, NJ, it is reprinted with permission.

Military priests face arrest for celebrating Mass in defiance of shutdown

As posted on Catholic Vote:

Our government is out of control.

First, it was the World War II veterans who had to break down barriers to see the open air, un-attended memorial erected in their honor.  A memorial which is on public land but is supported – including the National Park Service fee – with private funds. This week there was more security surrounding this memorial — just to keep elderly veterans out — than there was at our embassy in Benghazi the night it was attacked.

* * *
But now there’s a story just coming to light that takes things even further. According the Archdiocese for Military Services, GS and contract priests (who are paid by the federal government as independent contractors in places where there aren’t enough active-duty priests to meet the needs of Catholics in military service) are being forbidden from celebrating Mass, even on a volunteer basis.

If they violate this restriction, they face possible arrest FOR CELEBRATING MASS. 

From John Schlageter, General Counsel for the Archdiocese:

“[I]f a Catholic family has a Baptism scheduled at the base chapel at Langley AFB this weekend, unless they can locate a priest who is not a GS or contract priest, they should consider it cancelled.   Likewise, a Marine who attends Sunday Mass at the Quantico Chapel will have to go elsewhere this weekend.” 

***
This is outrageous. It is a violation of the First Amendment. It is a prohibition of the free exercise of religion to order priests under penalty of arrest that they cannot volunteer their time to offer Mass to the faithful on base. This cannot be allowed to stand.

We are also learning that some chapel musicians will not be able to play at Sunday Mass during the furlough.

Please do contact your local member of Congress and welcome our service members into your parishes. And continue to spread the message about these restrictions.

Read the entire story here.

Ruling against college for permitting disruption ofpro-life display allows lawsuit to continue; motion by college to dismiss is denied.

Late Tuesday, U.S. Magistrate Judge Hugh B. Scott issued his recommendation that the civil rights lawsuit filed by the American Freedom Law Center (AFLC) against several officials from the State University of New York at Buffalo (SUNY-Buffalo) for permitting an unruly mob of protestors to purposely disrupt a peaceful, anti-abortion demonstration on the university’s campus proceed to discovery.  

Robert Muise

In his report, the federal judge recommended denying the motion to dismiss filed by the SUNY-Buffalo officials, who argued that the lawsuit failed to state a constitutional violation.

AFLC filed the case in the United States District Court for the Western District of New York on behalf of the Center for Bio-Ethical Reform, Inc. (CBR), a California-based, pro-life organization; Gregg Cunningham, the executive director of CBR; Darius Hardwick, an employee of CBR; BU Students for Life; and two student officers of the pro-life student organization. 

For two days back in April, CBR partnered with the SUNY-Buffalo chapter of Students for Life to bring CBR’s Genocide Awareness Project (GAP) to the university campus.  GAP is a traveling photo-mural exhibit that compares abortion to historically recognized forms of genocide, such as the Holocaust.  

CBR and the student organization followed the university’s procedures to reserve a prime location outside of the Student Union for the anti-abortion display.  The request was initially met with resistance from university officials.  However, the organizers pointed out that this location had been reserved in the past for student speech activity; therefore, to deny access to this forum for the anti-abortion display would violate the First Amendment.  The officials reluctantly approved the request.

During the actual GAP display, however, university officials permitted protestors to purposely block the graphic, anti-abortion images.  At times, the student protestors would use umbrellas and bed sheets to accomplish their task.  When the organizers of the event requested assistance from the university police, including its chief of police, they refused, thus prompting this lawsuit.

In his report, the federal judge concluded that AFLC had set forth sufficient factual allegations to demonstrate a violation of the First Amendment, stating: “Plaintiffs thus have pled that what defendants did or allowed equated to a denial of the use of the reserved area, since their message was obstructed as much as if defendants had forbidden the GAP exhibit outright.”  

Robert Muise, AFLC Co-Founder and Senior Counsel, and another former guest on Faith on Trial, commented: “Government officials have an affirmative duty to protect a private citizen’s right to peacefully engage in free speech, particularly when he or she is doing so pursuant to a permit.  Here, SUNY-Buffalo officials grossly breached that duty in violation of the U.S. Constitution.  And while the judge’s report and recommendation is a first round victory, we are confident that we can prove the factual allegations in the lawsuit to ensure an ultimate and final victory.”

David Yerushalmi, AFLC Co-Founder and Senior Counsel, added: “Instead of fostering the free exchange of ideas in the ‘marketplace of ideas’ that is a university campus, SUNY-Buffalo officials legitimized and encouraged its students to respond to political speech they don’t like with censorship and the denial of free speech.  This is very much the tactic of Alinskyite progressives, who would rather violate the Constitution by denying speech that is contrary to the established ‘liberal orthodoxy.’”

 
AFLC is asking the court to declare that university officials violated its clients’ fundamental constitutional rights, to permanently enjoin the officials from permitting protestors to disrupt and silence future anti-abortion speech activities on campus, and to award nominal damages.

Hostility towards Christianity continues in our schools

We received the following from Robert Tyler, president and general counsel for the Advocates for Faith and Freedom, and a frequent guest on Faith on Trial:

Robert Tyler

Recently, concerned parents came to us with a story that is all too common.  Their child attends Margarita Middle School in Temecula, CA, and his teacher had given students a reading assignment assignment: read a nonfiction book for 30 minutes to an hour, and then bring the book into class.  This student had read the Bible and, as per the assignment, brought it to school and placed it on his desk. 

As the teacher came by – stamping the other students’ assignments as approved – he stopped at his desk. He told the boy that the Bible was not a nonfiction book, and the student responded, “Honestly, I believe it is.”

The teacher then turned to the class and asked, in a demeaning fashion, how many of the students believed that the Bible is nonfiction. All but two kids raised their hands. Instead of humiliating our client, it was the teacher that was humiliated! Undeterred, the teacher responded that he thought the Bible is a work of fiction. Right then, class ended, and the matter was left unresolved.

We will be sending a letter to the school in order to protect the rights of this student. This is an example of the growing hostility towards Christianity that is being displayed in our public classrooms, and we believe we must take a stand! We believe that the actions of this teacher violate the Establishment Clause, which requires the State to remain neutral on issues of religion.

At Advocates, one of the main goals of our ministry is to protect our children from the persecution and hostility that they are facing in schools more and more as a result of their faith. We are actively looking for more cases such as this one where school officials express hostility toward Christianity. If you hear of any kind of violation of a teacher’s or student’s religious liberties, please contact us at (888) 588-6888 end_of_the_skype_highlightingor through our website at www.faith-freedom.com.

God bless you,
Robert Tyler
General Counsel

Do abortion clinics cover-up statutory rape? Do they protect the predators who prey on young girls? Life Dynamics’ study says “Yes”

A few weeks ago we posted the story of a Fort Wayne, Indiana abortionist who was being investigated for failure to report on an abortion he performed on a 13 year old girl.  Sexual relations with a girl of that age is considered statutory rape and in this doctor’s case he did not make a timely report.

That led us to do a bit of research about how many rapes – and rapists – of young girls are being covered up by the abortion industry. So we went to the Life Dynamics website where it posted the results of an investigation it conducted in this matter.  First, some interesting statistics Life Dynamics reported:

§  Between 60 and 80 percent of girls 15 and younger who become pregnant were impregnated by adult men.

§  As the age of the victim – the young girl – goes down, the age of the perpetrator goes up.

§  It is now more likely that a junior high girl who becomes pregnant will become pregnant by an adult rather than by someone close to her own age.

§  The average age of men who father children with girls 13 and under is now higher than the average age of men who father children with 18–year-olds.

Life Dynamics then conducted a “covert survey” of approximately 800 abortion clinics around the country. In the survey a caller to an abortion clinic claimed she was a 13-year-old-girl who became pregnant by her 22-year-old boy friend.  She claimed she needed an abortion so her parents would not find out she was sexually active.  Here, according to Life Dynamics, are the results:

“Even though many of these clinic workers openly acknowledged to our caller that this situation was illegal and that they were required to report it to the state, the overwhelming majority readily agreed to conceal this illegal sexual activity.

“Some employees of these organizations even coached our caller on how to avoid detection, how to circumvent parental involvement laws and what to say or not say when she came to the clinic. In a significant number of instances she was encouraged to lie about - or conceal - her age or her boyfriend's age or to give false names.

“One of the clinic representatives who acknowledged that she was required by state law to inform at least one of our caller's parents in writing that their daughter was seeking an abortion, went on to advise our caller that the best way to hide this from her parents was to use a fictitious address when she checked-in for her abortion.

“During these calls it was not uncommon for the Planned Parenthood or National Abortion Federation representative to warn our caller that if someone were to find out about this situation her boyfriend could go to jail. In those situations it was unmistakable that our caller was being instructed to be more careful about what information she gave out and to whom. It was also not uncommon for the employee to interrupt our caller when she started talking about her age or the age of her boyfriend. On those occasions the obvious indication was that the employee did not want to hear this information.

“In other calls the facility employee advised our caller that she had already provided too much information for them to be able to help her. In those instances she would often be given the number of another family planning facility and encouraged to tell a different story when she called there. At times, this advice was quite specific with the employee telling her exactly what to say - or not say - to the people she talked to at the second facility.

“In states requiring that parents be informed when their underage daughters seek abortions, the law allows those girls to have abortions without their parents being notified if they get permission from a state judge. This is called a judicial bypass. During our calls to states with parental involvement legislation in place our caller was often informed about this option while also being instructed not to voluntarily tell the judge about the age of her boyfriend. In some instances these employees even encouraged her to lie to the judge if specifically asked for that information. Other employees advised her that neighboring states have no parental involvement requirements and that if she went there and either concealed or lied about the age issue, she would have no problem getting a secret abortion. In other words, these people were suggesting to a minor girl that she travel outside the state in order to cover up a crime that was being committed against her.

“In some calls she was given instructions on how to circumvent the parental involvement requirement altogether, even to the point of suggesting that she bring someone along to sign for her who looked old enough to impersonate one of her parents. In one particularly egregious case, the clinic worker lamented the fact that because our caller's boyfriend was only 22 he wouldn't look old enough to pass as her father. She went on to suggest that our caller look for an older person to help her out. When our caller said her boyfriend had a 50-year-old uncle who would do it, the employee said that would be okay as long as the uncle was instructed to not say anything while at the clinic to indicate he was not really her father. The employee stated that the uncle could even drop by, sign the papers, and leave before she actually came in for the abortion, and that the clinic's notary public would notarize the uncle's signature for the state's required documentation - despite knowing that it was a fraudulent representation.

“In a number of cases the employee would not react at all to the age issue, causing us to question whether it had registered with them or not. At that point our caller would simply ask outright if her age or her boyfriend's age was a problem. Generally what she got was a very cavalier "wink and nod" type of response.

“Sometimes she would be told that, technically speaking, the clinic was required to report this activity to the state but that if the caller would either lie about her age or just keep her mouth shut when she came in for her abortion, no one would ask any questions. Several times she was told that the facility had no interest in the ages of the parties involved or that they do not verify ages or check IDs and would accept whatever she told them at face value. One employee went so far as to tell her that if she came in with the cash she could be any age she wanted to be.

“Unfortunately, during these calls, responses like those described here were neither rare nor isolated. In the final analysis, virtually every Planned Parenthood and National Abortion Federation facility we contacted was willing to illegally conceal the sexual abuse of this 13-year-old girl.”

And, of course, the Obama Administration is making it easier for sexual predators to prey on young girls; it has, among other things, made “Plan B,” the “morning-after” pill available over the counter to girls of any age, a certain boon to any older man who needs to cover up an illicit affair with a pre-teen girl.

Today Obamacare goes into effect with approved plans covering abortion (they said it wouldn’t) and rules that force all organizations, even Catholic groups and those opposed, to provide free contraception and abortifacients to their employees.

So much for religious freedom; so much for protecting our daughters.  Thanks, Obama.  Thanks, Democrats who pushed for this and to protect Planned Parenthood, and gave, in prayer, their thanks to God for abortionists at the Iowa State Capitol last month. And thanks to all you good Catholic voters who see abortion as a political – not a moral or societal – issue and voted for these folks.

You can read the full Life Dynamics report here.

Bipartisan coalition introduces “Marriage & Religious Freedom Act”

Rep. Raúl Labrador (R-ID), Rep. Steve Scalise, Chairman of the Republican Study Committee, Rep. Mike McIntyre (D-NC), and Rep. Dan Lipinski (D-IL) introduced a landmark bipartisan bill to protect freedom of conscience on the issue of marriage.  Their bill – H.R. 3133, the Marriage and Religious Freedom Act – would prohibit discrimination through the federal tax code against individuals or institutions that exercise religious conscience regarding marriage as the union of one man and one woman. 

“Regardless of your ideology, we can all agree about the importance of religious liberty in America,” said Rep. Labrador.  “Our bill will protect freedom of conscience for those who believe marriage is the union of one man and one woman.  This is not a Republican or Democrat issue.  As President Obama said, ‘Americans hold a wide range of views’ on marriage and ‘maintaining our nation’s commitment to religious freedom’ is ‘vital.’ We agree.

“Our bill will ensure tolerance for individuals and organizations that affirm traditional marriage, protecting them from adverse federal action.  I’m proud to be joined by my colleagues in introducing this bill, and will strongly advocate for its passage.”

Most religious institutions fall within the 501(c) portion of the U.S. tax code, which allows for tax exemption.  Under the Marriage and Religious Freedom Act, no individual or institution which celebrates and defines marriage as between one man and one woman would be denied or lose exemption from taxation provided for under federal law.

The Marriage and Religious Freedom Act would prohibit government discrimination against individuals and institutions that exercise religious or moral conscience regarding marriage as the union of one man and one woman by ensuring that the federal government will not:

·         Deny or revoke an exemption from taxation under Sec. 501 of the IRS Tax Code

·         Disallow a deduction for Federal tax purposes of any charitable contribution made to or by a person

·         Deny or withhold any federal benefit

·         Deny or exclude a person from receiving any federal grant, contract, loan, license, certification, accreditation, employment, or other similar position or status

·         Otherwise discriminate against any individual organization

Voice of the Voiceless claim: University LGBTQ resource centers in Virginia engage in viewpoint discrimination

Press Release reports that undercover investigation reveals medically inaccurate, discriminatory, and biased counseling

Voice of the Voiceless (VoV), an advocacy organization dedicated to defend the rights of former homosexuals, individuals with unwanted same-sex attraction, and their families, went undercover into seven of Virginia’s fifteen state universities to document a variety of misconduct among publicly-funded employees, including medically-inaccurate advice, view point discrimination, and biased counseling for students who experience unwanted homosexual feelings. The investigation, which occurred over a 2 ½ week period in September, involved two former homosexuals posing as graduate students seeking anonymous counseling for unwanted homosexual feelings at university resource centers for lesbian, gay, bisexual, transgender, or questioning (LGBTQ) students.

The LGBTQ Resource Centers in violation include the University of Virginia, James Madison University, George Mason University, Virginia Commonwealth University, Old Dominion University, Christopher Newport University, and the College of William and Mary. Liberty Counsel, an international nonprofit litigation, education, and policy organization dedicated to advancing religious freedom, the sanctity of life, and the family, [we’ve had several attorneys form Liberty Counsel on Faith on Trial--ed] sent letters to all seven university presidents regarding their LGBTQ Resource Centers, urging them to include all viewpoints on this issue, and informing them that presenting only one viewpoint is not only wrong, but can cause harm to students.

“State-funded universities are required to provide value-neutral, medically-accurate information to all students in need of guidance. What we uncovered was a deliberate withholding of potentially life-saving information for students who may desire counseling to overcome unwanted homosexual feelings,” commented Christopher Doyle, President and Co-Founder of VoV. “A counselor at George Mason University told me that if I sought therapy to change, I would likely become psychologically-damaged, depressed, and even commit suicide.  Instead of referring me to a licensed mental health practitioner or faith-based counselor that aligned with my spiritual values. I was told to attend the gay-affirming Metropolitan Community Church and read a book called 'The Lord is my Shepherd, and He knows I'm Gay.'"

At Old Dominion University, the LGBTQ Resource Center staff said being gay was genetic, natural, and part of your personality, and that therapy to help individuals who want to change is nothing but "brain washing" attempts to "pray away the gay" and "not valid."

Organizations such as Parents and Friends of Ex-Gays and Gays (PFOX) have been providing informational pamphlets, free of charge, to state-funded Virginia universities for many years in an effort to advocate for students with unwanted same-sex attraction. But while gay-affirming information is readily available and prominently displayed for students to collect, ex-gay pamphlets are routinely destroyed and/or suppressed by biased resource center employees, who are required by law to provide equal access for all views on homosexuality. “At George Mason University, I nearly begged the counselor to give me an ex-gay pamphlet, which was buried in the bottom drawer of his filing cabinet. At UVA, the resource center’s director refused to show or give me an ex-gay pamphlet because he said he did not have enough of them to hand out. When I asked him where I could find scientific research on homosexuality, he referred me to the Huffington Post,” commented Doyle.

Becket Fund partners with UCLASchool of Law student clinic to defend church benefit plans

On Thursday The Becket Fund for Religious Liberty submitted a friend-of-the-court brief o a San Francisco federal district court in a case challenging certain church employee benefit plans as violating church-state separation.

The brief argues that “church plans” are a constitutionally permissible accommodation of religion. The brief was prepared by Professor Eugene Volokh and UCLA School of Law students Nathaniel Barrett, Garry Padrta, and Paulette Rodríguez López, as part of the new UCLA First Amendment Amicus Brief Clinic. Professor Volokh is a nationally known First Amendment scholar who recently founded the Clinic and is also one of the founders of the prominent “Volokh Conspiracy” legal blog.

“Church plans are a common-sense way for the government to accommodate both the unique nature of religious institutions of all faiths and protect benefits for those who work in the field of religion,” said Eric Rassbach, Deputy General Counsel at the Becket Fund and a former guest on Faith on Trial. “This trial lawyer attack on the constitutionality of church plans is rooted in the wrong-headed notion that separating church and state means government should pretend there is nothing special about religious organizations at all.” Rassbach also stated, “We are happy to partner with Professor Volokh and the law students at UCLA on this important brief and thank them for their service in the cause of religious liberty.”

The case, Rollins v. Dignity Health, claims that Dignity Health, a Catholic healthcare system, is not sufficiently Catholic to qualify for “church plan” status under federal pension benefits law. The Becket Fund’s brief does not address this largely factual question, focusing instead on the plaintiffs’ separate attack on church plans as unconstitutional.

Kansas sued over atheistic elementary school science standards

Brad Dacus

The Pacific Justice Institute has filed a federal lawsuit challenging the Kansas State Board of Education's (BOE) adoption of certain science standards which would create a hostile learning environment for those of faith. The standards being challenged are the Next Generation Science Standards adopted by the BOE June 11, 2013, and the corresponding Framework for K-12 Science Education: Practices, Crosscutting Concepts and Core Ideas.

The suit claims that the standards cause the state "to promote religious beliefs that are inconsistent with the theistic religious beliefs of plaintiffs, thereby depriving them of the right to be free from government that favors one religious view over another."

Brad Dacus, President of Pacific Justice Institute noted, "it's an egregious violation of the rights of Americans to subject students—as young as five—to an authoritative figure such as a teacher who essentially tells them that their faith is wrong." He continued, "it's one thing to explore alternatives at an appropriate age, but to teach theory that is devoid of any alternative which aligns with the belief of people of faith is just wrong."

Is Faith on Trial going off the air? Oh no, say it ain’t so!

It is so, well, then again it ain’t. So let me explain.

The station is re-doing its line-up and formats and Faith on Trial and a few of the other local programs are going on hiatus through our fall Care-A-Thon the week of October 14 – 18.  By the way, speaking of the Care-A-Thon, I’ll be hosting a two hour segment Tuesday, October 15 from 9 to 11 a.m. so save your dollars and call in then with them.

After the Care-A-Thon, we will be back on the air LIVE starting Tuesday, October 22 at 9 a.m. The program will then re-play at 9 p.m. I don’t have all the details about weekend re-plays, but I do know the station is planning on doing a live video simulcast so stay tuned for those details. There will also be a few changes to our broadcast schedule and even a new face or two.

In the mean time, I will still be doing my Tuesday morning updates at 7:35 on the morning show with Jon Leonetti, Jeanne Wells and Dowling Hall of Famer Mark Amadeo, as well as our blog and Facebook posts.

If you have been with this program from the beginning you know we started very small, with an 8 minute segment during the morning show; that was expanded into our half-hour taped format for the weekend schedule. Now we are going LIVE with a video simulcast, so this is really an upgrade for the program and gives me some time before October 22 to get the Grecian Formula in my hair working … hey, we’re going Hollywood!

Iowa Catholic Radio: 1150 AM; 88.5 & 94.5 FM and streaming life at IowaCatholicRadio.com.

 

Little Sisters of the Poor file fist class action lawsuit against HHS Mandate; seek protection from IRS fines for following their vows

The Becket Fund for Religious Liberty filed a lawsuit against the controversial HHS Mandate on behalf of the Little Sisters of the Poor, a religious order of Sisters dedicated to caring for the elderly poor.  Without relief, the Little Sisters face millions of dollars in IRS fines because they cannot comply with the government’s mandate that they give their employees free access to contraception, sterilization, and abortion-inducing drugs. 

The Little Sisters are joined by their religious health benefits providers, Christian Brothers Services and Christian Brothers Employee Benefits Trust, and a class of other religious organizations facing similar fines, in the first class action lawsuit against the Mandate.

The Little Sisters of the Poor are an international Roman Catholic Congregation of women Religious founded in 1839 by St. Jeanne Jugan.  They operate homes in 31 countries, where they provide loving care for over 13,000 needy elderly persons.  Thirty of these homes are located in the United States.

“Like all of the Little Sisters, I have vowed to God and the Roman Catholic Church that I will treat all life as valuable, and I have dedicated my life to that work,” explained Sister Loraine Marie, Superior for one of the three U.S. provinces in the Congregation.  “We cannot violate our vows by participating in the government's program to provide access to abortion inducing drugs.”

Although the Little Sisters’ homes perform a religious ministry of caring for the elderly poor, they do not fall within the government’s narrow exemption for “religious employers.”  Accordingly, beginning on January 1, the Little Sisters will face IRS fines unless they violate their religion by hiring an insurer to provide their employees with contraceptives, sterilization, and abortion-inducing drugs.

“The Sisters should obviously be exempted as ‘religious employers,’ but the government has refused to expand its definition,” said Mark Rienzi, Senior Counsel for the Becket Fund for Religious Liberty and lead counsel for the Little Sisters.   “These women just want to take care of the elderly poor without being forced to violate the faith that animates their work.  The money they collect should be used to care for the poor like it always has—and not to pay the IRS.”

The lawsuit is the first of its kind both because it is a class-action suit that will represent hundreds of Catholic non-profit ministries with similar beliefs and because it is the first on behalf of benefits providers who cannot comply with the Mandate.

The lawsuit was filed in federal District Court in Denver.  There are now 72 lawsuits challenging the mandate.

Dissent priest excommunicated by pope

A priest in Australia who advocated for women priests and gay marriage has been excommunicated by Pope Francis. Fr. Greg Reynolds was excommunicated and dismissed from the clerical state.  Archbishop Denis Hart of Melbourne said the pope’s action was due to Reynolds’ public celebration of Mass without faculties and for his preaching contrary to the teachings of the Church.  Those excommunicated may not receive the sacraments of the Church.

Court: Spousal privilege does not apply to civil unions

A trial court in Kentucky has ruled that the spousal privilege, where one spouse may refuse to testify about things that occur during the marriage, does not apply to couples in a civil union.  The parties involved in the case were joined in a civil union – not a marriage – in Vermont.  Vermont recognizes so-called same-sex marriage but parties joined in a civil union must take specific steps to convert that union into a “marriage.”  The case is a murder trial in which one partner is being asked to repeat statements by the other partner admitting to the killing.  

Doctors charge Planned Parenthood with violating FDA protocols

ADF: Violations account for 2,207 adverse health incidents and 14 maternal deaths

Alliance Defending Freedom and the American Association of Pro-life Obstetricians and Gynecologists sent a letter Wednesday to the New Hampshire Boards of Medicine and Nursing supporting the investigation of Planned Parenthood of Northern New England and its unlawful distribution of abortion-inducing drugs.

Contrary to Food and Drug Administration protocols, Planned Parenthood distributes abortion-inducing drugs to women, oftentimes without requiring an in-person visit, up until two weeks beyond the prescribed 49 days from their last menstrual cycle.

“No matter where people stand on abortion, everyone should agree that Planned Parenthood must abide by established FDA protocols for using a potentially dangerous drug,” said Senior Counsel Michael Norton. “This includes requiring a licensed professional to personally meet with women and examining them before prescribing abortion-inducing drugs which pose serious health risks, and limiting the length of time it can be used.”

The Alliance Defending Freedom letter explains that it is “important to hold healthcare providers to appropriate standards of care for women in New Hampshire in connection with the provision of drugs which result in abortions.”

The letter also explains that if Planned Parenthood is administering abortion-inducing drugs “as late as either 63 gestation, this practice would also be inconsistent with approved FDA guidelines and appropriate standards of care.”

“Planned Parenthood’s main concern should be the health and safety of women, not its bottom line,” added Michael J. Tierney, one of nearly 2,300 allied attorneys with Alliance Defending Freedom. “Planned Parenthood must be accountable to basic health and medical standards. FDA protocols only provide for administering these drugs up to 49 days gestation but PPNNE has been distributing the drugs up to 63 days. We hope that the Boards of Medicine and Nursing will take appropriate action to protect maternal health and safety.”

What Will Become of Equal Protection for Women?

by  Adam J. MacLeod

Laws in Massachusetts and California requiring that sex-segregated facilities be open to both sexes will undermine equal protection for women.

California has followed Massachusetts into uncharted territory by requiring California schools to make sex-segregated facilities and activities available to members of both sexes. Those who advocated this move might not like all of the implications of what they have accomplished. Among the many likely casualties of these laws will be the logic of the Supreme Court's equal protection jurisprudence, which protects females from suspect classifications in law.

Earlier this year, the Massachusetts Department of Education (MDOE) issued regulatory guidance for Massachusetts schools concerning a recent state statute that prohibits discrimination on the basis of gender identity. MDOE interprets the statute to give students a right to use the bathroom, locker room, and changing facilities that correspond to the gender with which those students identify, regardless of their biological sex.

The MDOE directive notes that some students might be uncomfortable disrobing with a member of the opposite sex, but insists, "This discomfort is not a reason to deny access to the transgender student." The directive also encourages school administrators to discipline students who object to sharing a bathroom with a member of the opposite sex.

At the time, Andrew Beckwith and I argued that this development is part of a trend: judges and lawmakers are eliminating sexual distinctions from Massachusetts law, and driving out of public life anyone who perceives inherent differences between male and female. But the MDOE directive presupposes that many sex-segregated activities will persist; indeed, they will persist because at least some transgendered students want them to persist. A biological boy who identifies as a girl does so in part by using the girls' bathroom.

MDOE did what the state legislature declined to do. The legislature had earlier enacted a statute prohibiting discrimination on the basis of "gender identity," but pro-family forces in the Commonwealth defeated a provision in the original bill that would have given boys a right to use girls' bathrooms and vice versa. Yet MDOE proceeded as if the provision had been enacted.

In this respect, and in this respect alone, the law recently enacted in California represents an improvement over the legal change in Massachusetts--at least it was promulgated democratically. The legislature passed, and the California governor signed, a statute giving students the right to choose which gender they will be in sex-segregated activities.

It should go without saying that to give boys a legal right to disregard their Y chromosomes when selecting a place to undress is to invite abuse. It should go without saying that this law is a menace to school-age girls and their families. It should go without saying that a child who feels alienated from his or her own sex ought to be encouraged and affirmed for who he or she is, rather than given a legal right to pretend to be something he or she is not. But alas, such evident truths no longer go without saying.

However, advocates for these laws may have attained more than they intended. These laws undermine a foundational premise of the Supreme Court's equal protection jurisprudence, namely that sex is an immutable characteristic. If the bathroom laws in Massachusetts and California are grounded in truths about human nature and sexuality, then that premise is either false or irrelevant, and it is not clear on what basis the Supreme Court could continue to employ heightened scrutiny when reviewing laws that discriminate between men and women.

For four decades, the Supreme Court has reviewed laws that discriminate between men and women with extra attention. In Frontiero v. Richardson (1973) it struck down a statute that treated husbands of female military personnel less favorably than wives of male personnel for the purpose of distributing allowances and benefits. The Court declared sex to be a suspect classification. It reasoned that

since sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate the basic concept of our system that legal burdens should bear some relationship to individual responsibility.

Therefore, the Court found classifications based on sex to be "inherently suspect," and resolved to review them with heightened judicial scrutiny.

When someone is discriminated against because of immutable traits that do not affect that person's suitability for the opportunity denied to him or her, the discrimination appears more likely than not to be unjust. The classic example of an immutable characteristic remains one's race, and the best example of unjust discrimination remains a law requiring or allowing racial segregation.

Of course, one's sex does make one more or less suitable for certain opportunities--e.g., being a mother--but not for others--e.g., practicing law. Where to draw the line between those sets of opportunities is sometimes a controversial question. But the immutability of sex has long been a given. It explains why the law reasonably discriminates in favor of women when it identifies the mothers of children. It also explains why a law prohibiting women from practicing law would be unjust. Under such a law, a woman would be disqualified for a reason that she cannot control and that does not render her unsuitable for the opportunity.

The immutability of sex has long been a foundation stone of the Court's equal protection jurisprudence. In the landmark case United States v. Virginia, the Court affirmed that physical differences between men and women are "enduring"; that "a community made up exclusively of one sex is different from a community composed of both"; and that inherent differences between men and women are "cause for celebration." But, the Court stated, those differences are not reasonable grounds for segregating the sexes arbitrarily.

Now education regulators in Massachusetts and lawmakers in California have declared sex or gender to be mutable. It is a characteristic to be denied, or even escaped from, if authentic self-definition requires it.

If gender is what counts, and if gender is mutable, then on what ground should references to sex and genetics not be eradicated from the law? And if that is the lesson to be learned from Massachusetts and California then why should the Equal Protection Clause be exempted from the leveling to which all other laws must yield? The Court treats sex-based classifications with higher scrutiny than classifications based on age, for example, in part because it views women as beings who are born with particular traits and genetic compositions that distinguish them from men and do not change with time.

Moreover, the remedial requirements of the Massachusetts and California laws might come into conflict with the requirements of equal protection. Consider again United States v. Virginia. In that case, the Court struck down on equal protection grounds the male-only admission policy of the Virginia Military Institute. The Court required VMI to demonstrate an "exceedingly persuasive justification" for the policy. VMI explained that its rigorous, "adversative method" of educating cadets would need to be made less rigorous to accommodate women. The Court conceded that VMI's program of education would need to be altered, but insisted that because some women would be qualified for the program, this justification was not "exceedingly persuasive."

On this logic, the remedy for unlawful sex discrimination is integration of the sexes for those activities to which men and women are equally suited and segregation of the sexes for those activities in which their differences are important. Women are born as women, and remain women throughout their lives. To treat them justly is to integrate them into the activities of men for which at least some of them can be well suited, while establishing or preserving accommodations for their natural differences.

By contrast, the gender-identity self-authorship that Massachusetts and California now must promote requires at least some segregation of the sexes for those activities to which some men and some women might be equally suited, such as athletic competition. If a member of the male sex identifies as a member of the female gender, and if the community owes to that person opportunities to express himself as a female, then he must have female-specific activities in which to participate. The mutability of gender, on this line of thinking, is a reason to keep men and women separate so that those who would change their gender identity can have opportunities to do so.

Meanwhile, the mutability of gender is also a reason to allow at least some biological boys the right to disrobe with biological girls. If a female is one who identifies as a member of the female gender, regardless of sex, then the biological boy who identifies as female really is a female, and belongs in the girls' room. Whatever burdens this arrangement imposes upon the biological girls in the girls' room are not sufficient reasons to shield them from this newly-recognized reality. And so, on this line of thinking, girls should bear the burdens of sharing bathrooms and locker rooms with some biological boys.

What became of the "the basic concept of our system that legal burdens should bear some relationship to individual responsibility," which the Frontiero Court vindicated? What special responsibilities do school-age girls have to share bathrooms and locker rooms with boys who identify themselves as girls, or of competing with boys for positions on girls' sports teams? This development seems to flip the Supreme Court's equal protection jurisprudence on its head.

Adam MacLeod is an associate professor at Faulkner University's Thomas Goode Jones School of Law.

 This article originally appeared in Public Discourse, the online journal of the Witherspoon Institute of Princeton, NJ, it is reprinted with permission.