The Obama Justice Department’s Disastrous Course on Religious Liberties

The Obama Justice Department’s Disastrous Course on Religious Liberties March 19, 2013

Editor’s Note: I’m in Miami at the Faith Angle Forum, where today I’m listening to Tim Keller speak on the future of American evangelicalism.  I look forward to writing all about it soon.  Below is a guest post from my friend Ammon Simon, an attorney focused on constitutional issues with the Judicial Crisis Network.


The DOJ and the Life of Julia

By Ammon Simon 

The Obama Administration’s Department of Justice has been on the frontlines of an assault on religious freedom and intermediary institutions, showing disrespect for the First Amendment and a proclivity for big government that even the Clinton Administration would not have dared approach. From targeting churches and their hiring practices, to attacking pro-lifers and attempting to marginalize certain societal institutions from the public arena, the DOJ has used the full force of its national enforcement power to implement a far-reaching, government-centric agenda.

Understanding the full destructive power of this attack on the First Amendment requires a philosophical context: President Obama’s apparent belief, at least in practice, in government as the source of All Good Things. One need look no further than his disturbing Life of Julia ad, which followed a woman whose only significant and enduring relationship was that between her and the state apparatus; her life’s only assistance came from government programs. President Obama’s inauguration speech also echoed this theme, sounding like, as Charles Krauthammer put it, “the perfect homily for the marriage of Julia…and the state,” and “an ode to the collectivity.”

This is particularly true of the president’s conception of religious freedom. Instead of endorsing the full spectrum of religious freedom, the President gravitates toward merely protecting freedom of worship, which amounts essentially to what happens in a church. Under this view, as Carrie Severino has argued, “the Constitution should only protect a dead faith that is free of works,” making religious freedom inapplicable when your faith pushes you to step outside your church’s four walls, and penalizing those religious institutions that do.

The HHS abortion pill mandate is a perfect example of this distinction, where the Obama Administration exempted only a narrow band of religious institutions from the abortion pill mandate, leaving other conscientious objectors including bible publishers and Christian colleges as well as individual business owners out to dry.

Fighting this government-centric worldview’s appeal requires a more compelling alternative vision of society for the less fortunate, a vision that cannot cohere together without robust societal institutions. Patrick Garry in “Conservatism Redefined: A Creed for the Poor and Disadvantaged” argues that society also “involve[s] a vast array of private institutions like religions and families and volunteer associations” (p. 23). Echoing Alexis de Tocqueville, he explains that these institutions “provide the moral and spiritual supports necessary to ensure the healthy functioning of a stable democratic order…” (p. 39). Government certainly has a role in providing for certain material needs, but by definition that role is constrained. Intermediary institutions are much more effective at injecting people into the daily lives of the needy, creating long-term transformation, instead of short-term fulfillment.

Unfortunately, President Obama’s government-centric philosophy undercuts these essential parts of society, religious and not, that have historically served as more-effective alternatives to centralized government and its legion of bureaucrats. The DOJ is at the forefront of these efforts, as the following examples make clear.

Hosanna Tabor v. EEOC

This case involved the ministerial exception, which shields religious institutions from liability for violating employment laws for “ministerial” hires. For example, it would shield conservative churches from liability for not hiring female head pastors. The DOJ took such an extreme position — completely rejecting the ministerial exception except in, at best, a very narrow band of cases — that Justice Roberts’ unanimous opinion characterized it as the “remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.” The DOJ’s position would have implicated churches who maintain a male priesthood, exposing them to a multitude of new discrimination claims. This position went too far for leftist groups such as ACLU and Americans United for Separation of Church and State, and even Justice Kagan found it to be “amazing.” If the DOJ had been successful, crippling fines would have forced some churches to either shut down or compromise on core elements of their faith. Thankfully, a unanimous Supreme Court opinion rejected the DOJ’s extreme efforts to gut religious freedom.


The Department of Justice has been targeting and intimidating peaceful pro-life activists, stepping into realms ordinarily reserved for advocacy organizations like the ACLU, not our nation’s law enforcement. Their efforts center on the Freedom of Access to Clinic Entrance Act, which prohibits, in part, the use or threat of force or physical obstruction to prevent a person from obtaining reproductive services. While enforcing legitimate violations of the FACE act is understandable, the DOJ’s far-reaching enforcement of the FACE act targets the legitimate free speech of activists, while undermining societal institutions that work outside of government channels to reduce abortion.

For a long time, Democrats approached this issue following Bill Clinton’s formulation of “safe, legal, and rare.” Then-Senator Hillary Clinton saw abortion as a “sad, even tragic choice to many, many women,” and called for government to “do more to educate and inform and provide assistance” so that abortion would become either rare or non-existent. This still represents a majority public opinion. A 2012 Gallup poll found that only 41% of respondents believed that abortion should be “legal under any” or “most” circumstances,” while 56% believed that abortion should be “legal only in few” or no circumstances.

Supporters of the Clinton formulation should support the work of pro-life activists, who view abortion as more than just a tragic choice. They are responsible for thousands of women deciding to take their babies to term, and use education — not coercion — to make “rare” a reality. As long as they avoid actions that the FACE Act legitimately proscribes — such as violence or interference with private property — there is no reason why pro-lifers should fall under law enforcement scrutiny. Not for the Holder-led DOJ though, as four disturbing cases make clear.

One of the most egregious cases is Holder v. Pine. There, District Court Judge Ryskamp dismissed a baseless FACE lawsuit against Mary Pine, a pro-life advocate, whose only “crime” appeared to be handing out literature and motioning at cars, not stopping them or persisting in unwanted efforts. In dismissing the suit, Judge Ryskamp even felt compelled to speculate that the suit could be the result of explicit coordination between the DOJ and the abortion clinic “to quell Ms. Pine’s activities rather than to vindicate the rights of those allegedly aggrieved by Ms. Pine’s conduct.” He explained that the “record [was] almost entirely devoid of evidence” supporting the DOJ, and he was “at a loss as to why the Government chose to prosecute this particular case in the first place.” The lawsuit was so frivolous that the DOJ paid a $120,000 fine and dropped the lawsuit.

Elsewhere, in Holder v. Hamilton, the DOJ intimidated David Hamilton, a pro-life sidewalk counselor, into accepting a $2,500 settlement rather than face as high as $20,000 in penalties and damages. In the incident in question, Hamilton had broken the arm-lock of two clinic escorts who were trying to prevent him from lawfully talking with women entering the clinic. Even though the clinic escorts appeared to be in the wrong, and Hamilton had not threatened or intimidated women, the DOJ still wielded the FACE act against him.

The DOJ dropped a similar case against Denver resident Ken Scott. The DOJ had speciously argued that momentarily delaying cars from entering from abortion clinic — in an effort to talk to their occupants — was a sufficient obstruction to an abortion to warrant a federal lawsuit. As Scott’s attorney, Peter Breen, explained, “[t]here…[was] no allegation of physical violence, there was no allegation of trespassing…He was merely offering assistance to men and women who were entering Planned Parenthood.” Just as the DOJ might have worked in concert with the abortion clinic in Pine, here the DOJ had built its case upon complaints from Planned Parenthood employees, risking its credibility with the judge, who ruled in a preliminary injunction that the case was unlikely to succeed on its merits.

Finally, the DOJ recently settled a case against Dick Retta, dropping their initial request for $15,000 in damages and penalties, securing instead an injunction against Retta’s presence at an abortion clinic. Retta, who is affectionately described as a pro-life grandpa, is thought to have been responsible for as many as 1,000 abortion “saves” since around 1997. Not surprisingly, this made Retta, who himself instructs sidewalk counselors to allow patients clinic access, a target for clinic workers. As in other cases, Retta does not appear to have done anything that would have triggered a legitimate violation of the FACE act. It even appears that one allegation against Retta originated from when a clinic volunteers stymied a young girl’s attempt to reach out to him, and he pleaded “with the girl to not let the escorts force her to have an abortion.”

Heightened scrutiny for sexual orientation

The DOJ has been advocating for heightened scrutiny for sexual orientation in court, a change that would be disastrous for religious institutions.

Courts subject laws to heightened scrutiny if they distinguish based on factors such as race or gender, making them much more likely to strike down such a law. Gender receives a middle level of scrutiny, intermediate scrutiny, while race receives the highest level of scrutiny, strict scrutiny. Strict scrutiny almost always results in a law’s invalidation, and intermediate scrutiny has a similar, if less-pronounced, track record. For example, in Bob Jones University v. United States, the Supreme Court invoked strict scrutiny to revoke a college’s tax-exempt status for banning interracial dating and marriage, while in VMI v. Virginia, the Supreme Court invoked intermediate scrutiny to order a state-run male-only military academy to admit females.

The DOJ has advocated for heightened scrutiny for sexual orientation since February 2011, when it refused to defend Section 3 of the Defense of Marriage Act. The DOJ has also argued for heightened scrutiny in the two pending Supreme Court same-sex marriage cases, U.S. v. Windsor and Hollingsworth v. Perry.

Heightened scrutiny would create a tidal wave of lawsuits against religious institutions that receive tax-exempt status, federal funding, or similar federal benefits, treating them like racists under the law for objecting to homosexual conduct. This could implicate hiring practices, admissions policies, and religious doctrine. Certain organizations could have to relinquish their religious character or operate in the shadows under increasing costs. Religious schools, such as my alma mater, Wheaton College (IL), could lose their tax-exempt status — as in Bob Jones — or access to federal student loans. This new regime could also ban state licensing of religiously motivated adoption agencies (lest government condone unconstitutional discrimination), or force other religious charities and hospitals to shut down or lose eligibility for government money. Even if some religious institutions remained unscathed, their survival would come at a steep litigation cost.

Many on the left cannot understand why coercing religious institutions to embrace their version of tolerance and diversity would be so destructive. In their mind, the DOJ should use its monopoly on force against discriminatory institutions, as it did for racist institutions in the twentieth century. They also believe that the left’s sexual ethics should override “antiquated” religious conceptions of morality. However, even from that perspective, pragmatically, society is much worse off without these institutions. The purging of various societal institutions from the public arena would create a less diverse society, leading to fewer options for people of faith and less hope for the poor. The inevitable result is a larger role for a centralized, faceless, far-off government.

Thankfully, there is hope throughout all of these attacks on societal institutions. At least some courtrooms have rejected the DOJ’s targeting of pro-life activists, and the Supreme Court, in Hosanna Tabor, handed the DOJ an embarrassing loss. However, the biggest stakes could come up this term, as the Supreme Court could grant in either Windsor or Hollingsworth if sexual orientation should receive heightened scrutiny. Although no one can know likely swing vote Justice Kennedy’s thoughts, hopefully he will realize the disastrous consequences of following the Justice Department’s lead on religious liberty.


Ammon Simon is policy counsel at the Judicial Crisis Network and a former assistant attorney general of Missouri. 

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  • The discussion of heightened scrutiny–particularly regarding the Bob Jones and VMI cases–is misleading, because the cases were decided on different grounds.

    Heightened scrutiny is a jurisprudential test used by courts to determine whether a law or other state action (such as the policies of a state college or university) that discriminates against certain categories runs afoul of the 14th Amendment’s Equal Protection Clause. Because VMI is a state school, so its policies can be evaluated under the 14th Amendment (intermediate scrutiny in this case, because it dealt with sex discrimination).

    In the Bob Jones case, the IRS denied the University’s tax exempt status because of IRS regulations that say that a school (which would normally be tax exempt) is only tax exempt if it does not have racially discriminatory policies. The University challenged the regulations on First Amendment grounds, claiming that denying the school its tax exemption because, among other reasons, violates the Free Exercise Clause. The court does not spell out all of its logic incredibly clearly, but the court says, on 604, “The interests asserted by petitioners cannot be accommodated with that compelling governmental interest, see United States v. Lee, supra, at 259-260; and no ‘restrictive means,’ see Thomas v. Review Board of Indiana Employment Security Div., supra, at 718, are available to achieve the governmental interest.” The court is using heightened scrutiny language here, and it is citing cases about whether laws that impact freedom of religion are constitutional under the 14th Amendment’s Equal Protection Clause, because laws that impact a fundamental right (free speech, freedom of religion) are also evaluated under heightened scrutiny.

    The point is, the court did not evaluate Bob Jones University’s policy under heightened scrutiny. It can’t; Bob Jones Univeristy is not the government. The court evaluated whether the IRS regulation’s impact on Bob Jones University’s religious freedom passed the heightened scrutiny test.

    I’m going to say this again, because it is incredibly important: Bob Jones University’s policy was not subjected to heightened scrutiny because it was racially discriminatory; the IRS regulation was subjected to heightened scrutiny because it impacted religious freedom. Bob Jones University’s policy against interracial dating and marriage was not subject to heightened scrutiny, and could not be, because Bob Jones University is not a part of a state government or the federal government.

  • I’m actually more than a little distressed that a former assistant attorney general of Missouri would get that confused.

    • ECS

      That’s not confusion–that’s blatant disinformation.

    • Timothy Dalrymple

      Let’s not get too distressed until we give Mr Simon an opportunity to respond and explain his perspective on it.

  • Ammon Simon


    You are correct, but that does not change what I wrote.

    My piece does not argue that the state would order schools like Wheaton to change their policies. All I argue is that it would implicate their policies (just as Bob Jones case implicated their policies– even if they did not have to change the policy, Bob Jones still paid a cost for those policies: losing tax exempt status), and force them to either (1) change their policies(so they can receive federal benefits like tax exempt status or student loan funding), or (2) operate in the shadows (without federal dollars for example) under increasing costs. Heightened scrutiny implicates state actions. In this case, federal support in the form of federal student loans, science funding, tax exempt status, which is the state action required under heightened scrutiny, might not be able to flow to Wheaton, because of their policies on homosexuality. Those state actions would be subject to heightened scrutiny. I even say that beyond that, even if some institutions remained unscathed, there are still high litigation costs.

    • But my point is, heightened scrutiny is a red herring here.

      Bob Jones U didn’t lose its tax-exempt status because of heightened scrutiny test applied to race discrimination; Bob Jones U lost its tax-exempt status because of Treasury Regulations, which have nothing to do with Equal Protection jurisprudence (it was actually the regs that had to pass heightened scrutiny because they impacted freedom of religion, not Bob Jones U’s policy!).

      Schools that have lost their federal funding for racial discrimination haven’t lost it because of a heightened scrutiny test; they have lost their federal funding because of Title VI of the Civil Rights Act of 1964, which has nothing to do with heightened scrutiny.

      In each of these situations, there is a law or regulation that acts as the coercive factor. Heightened scrutiny has nothing to do with that (except of course that the law or regulationhas to pass the strict scrutiny test as a restraint on freedom of religion!).

      Congress could amend the Civil Rights Act right now to cover sexual orientation, with or without heightened scrutiny. Treasury could promulgate regulations denying tax exempt status to organizations that discriminate against homosexuals right now, with or without heightened scrutiny.

      Heightened scrutiny doesn’t create a new cause of action in litigation either. It wouldn’t authorize new lawsuits that were previously unavailable. It would just change the test for the same lawsuits that are already being brought.

      Look, I agree that sexual orientation shouldn’t be subjected to heightened scrutiny under Equal Protection jurisprudence. And I completely agree that, by arguing that it should, that the DoJ is pushing a radical social agenda for arguing that it should (fortunately I don’t think there is a snowball’s chance in hell that SCOTUS will agree with DoJ).

      But if you’re talking about the law and the law’s ramifications without actually being clear on what they are, you’re being a fearmonger. And if you are a lawyer–especially if you were an assistant AG–you have absolutely no excuse for that. You know better.

      • Granted, you were only an assistant AG for four months…

        • Timothy Dalrymple

          I’m guessing it’s four months more than you?

          Sorry, but snark earns snark. 😉

          • Ammon opened the door to discussing his credentials by citing them. Four months in any legal practice is really barely time to get oriented.

  • Sven

    I see a lot of religious special privilege being eroded, which is not the same as religious liberty.

    • No, there is definitely a religious liberty issue here, which is why the Treasury Regs in Bob Jones were subjected to the strict scrutiny test. Just like a hypothetical amendment to the Civil Rights Act that cut off funds to Wheaton would have to pass the strict scrutiny test.

  • Ammon

    This is difficult, because, as you say, the Court was not that clear. But I don’t see any world where they reach the same result, if race was not subject to strict scrutiny. Check out the quote below, from Bob Jones. Substitute the words “sexual orientation” with “racial discrimination” and the same result occurs.

    “There can thus be no question that the interpretation of 170 and 501(c)(3) announced by the IRS in 1970 was correct….It would be wholly incompatible with the concepts underlying tax exemption to grant the benefit of tax-exempt status to racially discriminatory educational entities, which “exer[t] a pervasive influence on the entire educational process.” Norwood v. Harrison, supra, at 469. Whatever may be the rationale for such private schools’ policies, and however sincere the rationale may be, racial discrimination in education is contrary to public policy. Racially discriminatory educational institutions cannot be viewed as conferring a public benefit within the “charitable” concept discussed earlier, [461 U.S. 574, 596] or within the congressional intent underlying 170 and 501(c)(3).”

    If sexual orientation receives heightened scrutiny (especially if it receives strict), the same result could happen, because there is no legal way to differentiate between racial discrimination and sexual orientation discrimination, because they are equal in the eyes of the law. Accordingly, you might as well substitute sexual orientation for racial.

    • Ammon

      The result of the case (as you read above) is that the court concluded that the tax exempt status for institutions that discriminate on the basis of race is disallowed under public policy. It could have upheld the tax exempt status, but it chose not to. It wasn’t that the Court thought that the IRS reg changes was allowed but the IRS did not have to make them (and Title VI was not the deciding factor ), it was that the Court thought that tax exempt status for institutions that discriminate on the basis of race was disallowed, as that above quote shows. I don’t think there would have been any different result if someone had decided to sue Bob Jones because they had funding. And to show that it cites cases such as Brown,not just that a statute says so.

      So, if someone could find an injury for something like federal funding or tax exempt status they could challenge those state actions as unconstitutional. Or, the Treasury could change regulations after deciding that it could “no longer legally justify allowing tax-exempt status [under 501(c)(3)] to private schools which practice [sexual orientation] discrimination” as what happened in Bob Jones. And then when it was challenged, it would be difficult (although hopefully possible) to challenge that change, and the court could have the same conclusion that it did with the regs changes on race– that those changes were required.

      Beyond that, heightened scrutiny would make it more difficult to challenge the revoking of federal funds for religious institutions, because of precedents like Bob Jones, which diminish the saliency of a religious freedom challenge to such revocations. It would also seem very likely that statutory changes are more likely to occur in a world where sexual orientation receives heightened scrutiny. And like I said, if there was a way to find standing to challenge such federal funds, the change wouldn’t only happen from governmental policies, but could happen because of lawsuits. Whereas before these lawsuits would not stand a good chance of succeeding, because it’s VERY easy to pass a rational basis test, they would have a better chance of succeeding under an intermediate or strict scrutiny test.

  • No, Ammon, you completely misread the case. The court upheld the Consitutionality of the regulation, based on public policy considerations. Procedurally, this is a tax case: the IRS denied BJU’s exempt status and BJU paid the taxes that the IRS assessed and sued in federal court (that’s one way to get in court over your taxes; the other way is to not pay and have to dispute it in IRS-friendly Tax Court). BJU was the original plaintiff. In adjudicating the tax dispute, the Court looked at the regulation and the IRS’s action and had to decide (1) if the IRS’s action was proper and within the scope of its authority, (2) whether the regulation was within the scope of Treasury’s rulemaking authority, and (3) whether the IRS’s action and the Treasury regulation were unconstitutional violations of the Free Exercise Clause.

    Again: Bob Jones University’s policy was not being challenged in court. Bob Jones University was challenging the IRS’s denial of tax exempt status in court. BJU was the plaintiff. The court was not evaluating BJU’s discriminatory policy to determine if it was impermissible or unconstitutional. The IRS had already decided it was impermissible under the IRC and Treasury Regs. The Court was deciding whether the IRS’s action and the regs the action was based on were proper. And the court said yes, because (1) public policy is against racial discrimination and (2) the impact on BJU’s free exercise of religion met the strict scrutiny test.

    For the record, nobody ever has standing to challenge your tax exempt status but the IRS. Nobody can sue you to take away your tax exempt status. That’s not how it works. The IRS just takes it away and you have to sue to get it back (whether it’s a religious issue or not). That’s just procedurally how tax controversies work.

    • Ammon Simon

      Regardless of the initial posture of the case, the end result is that if homosexuality receives heightened scrutiny, the case language shows that religious institutions would have to lose their tax exempt status. The case language I quoted wasn’t simply saying that the IRS COULD do this, but that the IRS would have too do this.

  • Ammon Simon

    Beyond that, there’s a chance that the Court could grant taxpayer standing, because the tax could “show that the challenged enactment exceeds specific constitutional limitations upon the exercise of the taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8,” under Flast.

    • Ammon Simon

      But I’m not a taxpayer standing expert, for the record.