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Home » Archives » News Archives » 2007 » Religious Freedom Goes to Court

Religious Freedom Goes to Court

By Alan J. Reinach, Esq.

Our national commitment to religious freedom is undergoing serious scrutiny in both the California Supreme Court and the United States Supreme Court this year. As I write, the Church State Council is filing a friend-of-the-court brief in a case in which doctors refused to provide certain family planning services to a lesbian couple on religious conscience grounds.

Guadalupe Benitez, the woman who was seeking medical services, claims she was misled and defrauded. The doctors claim they fully disclosed what services they could conscientiously provide, and that they would refer if additional services were necessary. No court or jury has yet determined the facts. Instead, Benitez wants to prevent the doctors from presenting any evidence in support of a religious freedom defense.

This approach might make sense in a murder case. A murder suspect who claims that God instructed him to kill a certain individual because of their sin may be able to introduce such evidence in support of an insanity defense, but not in order to gain acquittal. In a civil case, Benitez is asking the California Supreme Court to rule that religious freedom simply doesn’t count. If successful, this approach could have serious implications in a wide variety of claims that could be brought against religious institutions. The Church State Council is urging the court to consider that religious freedom can and must count, and cannot be ruled “out of order” as a defense. The outcome may well determine whether religious freedom continues to have any traction in the California courts.

In February, the United States Supreme Court heard oral arguments in a critically important case, Hein v. Freedom From Religion Foundation. This organization filed a legal challenge to the Bush Administration’s so-called “Faith-based initiative,” arguing that it violates the separation of church and state. Before that case can go to trial, the Supreme Court will rule on a preliminary matter — whether the plaintiffs have the legal right to file the lawsuit in the first place. The Supreme Court ruled 40 years ago that taxpayers can file Establishment Clause challenges when taxpayer funds are used to pay for religion. Now the Court will decide whether this includes challenging executive branch expenditures.

If taxpayers cannot challenge such expenditures, the Establishment Clause becomes a dead letter. Imagine what a president could authorize if he didn’t have to worry about a constitutional challenge. Why not pay salaries of Muslim clergy, and provide sermons, as they do in Turkey, to insure they don’t become too radical? Or build mosques to build bridges in fighting the war on terror? How about building great monuments of the Ten Commandments in federal buildings throughout the land?

The only way to have a Constitution that means anything is to give citizens the right to enforce its provisions. If the Supreme Court deprives ordinary Americans of the right to challenge the executive branch when it spends money on religious activities, religious freedom will have suffered a devastating blow. Our weekly radio show, Freedom’s Ring, regularly discusses these cases, and stays abreast of current developments. Tune in to our podcasts on the web at, and check for local broadcast listings.

There is a theme running through both cases — whether religious freedom will have any leg to stand on in court. Stay tuned, and by all means, keep praying!