Friday, December 19, 2014

UNHAPPY HOLIDAYS: New Government Mandate Forces Religious Contractors to Violate Faith . . . or Lose Income

Washington bureaucrats blemished the holiday cheer with a workplace rule that attacks the religious convictions of a vast number of businesses and families.

On December 4, the U.S. Department of Labor published a new rule that bans federal contractors and sub-contractors from discriminating on the basis of “sexual orientation” and “gender identity.”  The rule goes into effect 120 days from the ruling, and applies to federal contracts that are new or modified (including renewed) on and after the effective date.

According to the Labor Department, the new rule will cover roughly 100,000 federal contractors in its first year, and at least half-a-million in the next five years.


Among the hundreds of thousands of businesses that depend on federal contracts are countless owned by people of faith—including conservative Christians, Jews, and Muslims—whose centuries’-old scriptures teach that sexual relations outside of opposite-sex marriage are deeply immoral, and that individuals who are physically male or female cannot morally claim to be another sex and behave accordingly. 

Such people of faith consider this behavior to constitute very serious sin—affecting human relationships that are the bedrock of society.  Thus, they view same-sex sexual acts and “transgenderism” in the same category as the violation of marriage vows.

The federal government disagrees.  And it is willing to force religious business owners to ignore their sincerely held religious beliefs when deciding whether or not to employ individuals practicing such behavior. 

It apparently does not matter to the Obama Administration that a Christian, Jewish, or Muslim employer wishes to conduct its business and charitable work in a manner consistent with sincerely held religious beliefs.  The business owner must violate his or her conscience or suffer loss of income from federal contracts.

This rule is the latest act in a long drama.  For decades, well-funded corporatist and LGBT organizations have unsuccessfully sought to enact the Employment Non-Discrimination Act (ENDA), which would impose a national labor standard requiring faith-based organizations to hire persons who openly reject their sincerely held religious beliefs on marriage, sexuality, and gender identity. 

Having failed to enact ENDA, these same corporatist and LGBT organizations are seeking through executive and administrative fiat what they failed to achieve through the proper legislative process: the addition of poorly defined “sexual orientation” and “gender identity” protected classes through Executive Order and administrative rulemaking.  The LGBT Final Rule, officially published on Tuesday, December 9, is the formal implementation of that Executive Order.

What impacts will this order and rule have?


“One of the first steps to violating or removing religious liberty is to use government to humiliate or marginalize people of faith for holding a religious belief,” said Kelly Shackelford, Liberty Institute President & CEO.  “This Final Rule does just that.  It not only attacks religious freedom, but is a government statement that, in effect, casts cultural shame on those who hold traditional religious beliefs.  It is a step to marginalizing religious values and shoving them into a outskirts of protected society.”


The Final Rule also threatens the financial well being of countless persons of faith who must choose between religious beliefs and income.  Families of business owners and business employees are in jeopardy of losing massive amounts of income simply because the Obama Administration has enlisted federal agencies in an ongoing culture war to redefine marriage, sexuality, and the very nature of man and woman.  Because they dissent from sexually revolutionized definitions of marriage and gender identity, many faith-based providers face a dilemma: (compete for federal contracts, or comply with the teachings of their Church and the dictates of conscience). 


As written, the Final Rule does not advance the common good. 

First, the Final Rule deprives the American taxpayer of well-run social welfare service providers.  Faith-based organizations help society by providing vital services that benefit “the least of these brothers and sisters.”  In many cases, faith-based service providers are more productive, efficient, cost-effective, and efficacious than their government counterparts.

Second, it hurts the disadvantaged. The federal government contracts with many faith-based organizations to provide expert services that assist the homeless, hungry, battered, orphaned, and trafficked.  When similar LGBT-SOGI rules were enacted in Massachusetts, Illinois, and California, tens of thousands of victims and potential victims lost access to highly effective service providers like Catholic Charities and the Salvation Army.

Matthew Kacsmaryk, Deputy General Counsel for Liberty Institute, says that the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) offered two concessions to religious dissenters: (1) acknowledged that the Supreme Court has held that the First Amendment requires a “ministerial exception” to employment non-discrimination laws, and (2) left intact a Bush-era executive order that allows faith-based organizations “to favor individuals of a particular religion.”

But Kacsmaryk remains cautiously pessimistic:

“Because the Departments of Justice, Labor, Education, and HUD aggressively misread federal law to maximize undefined LGBTQ-SOGI rights while minimizing long-defined religious rights, I anticipate that the Administration will argue the narrowest possible reading of ‘religion’ under Title VII of the 1964 Civil Rights Act and ‘particular religion’ under the Bush-era executive order.”

He warned:

“Following a nine-to-zero loss in Hosanna-Tabor, the Administration must concede that a faith-based organization may freely hire and fire an employee who is clearly ministerial:  pastors, priests, deacons.  But Administration lawyers will simultaneously argue that federal employment law effects a narrow ‘co-religionist’ hiring preference that does not permit hiring, firing, or disciplinary actions against employees who fall into the new protected classes of ‘sexual orientation’ and ‘gender identity.’  In summary:  Catholic Charities must hire Roman Catholics who are same-sex married.  Baptist Homes must hire Southern Baptists who counsel women to seek abortions.”

Kacsmaryk predicts a new round of lawsuits:  faith-based contractors assert First Amendment, RFRA, and Title VII rights to enforce standards of conduct rooted in sincerely held religious beliefs; federal agencies assert that employment laws do not countenance any exemptions to the new protected classes of “sexual orientation” and “gender identity.”


Liberty Institute represents non-profit faith-based clients who contract with the federal government, seeking to preserve their First Amendment and statutory rights to serve the poorest of the poor.  These clients serve the common good and are often more cost-effective than their government counterparts.

With the financial backing of our valued supporters, we are actively consulting with these clients to interpret the new “non-discrimination” Final Rule, and guide them in a way that will preserve their integrity and ability to continue serving.

About Liberty Institute
Liberty Institute is a nonprofit legal group dedicated to defending and restoring religious liberty across America — in our schools, for our churches, in the military and throughout the public arena. Liberty’s vision is to reestablish religious liberty in accordance with the principles of our nation’s Founders. For information, visit

REALLY? Religion-Hostile Georgia Bureaucrats Create Misleading Story for Firing of Dr. Eric Walsh

Liberty Institute corrects inaccuracies in Department of Public Health’s attempt to escape religious discrimination charge

This week, Liberty Institute, with volunteer attorney Andrew Coffman of Parks, Chesin, & Walbert, sent a response to the U.S. Equal Employment Opportunity Commission (EEOC) addressing the factual inaccuracies in the State of Georgia Department of Public Health’s (DPH) answer to Liberty Institute’s charge of religious discrimination after DPH fired Dr. Eric Walsh for religious beliefs he had expressed in church.

“The State of Georgia Department of Public Health has worked hard to invent a ‘new narrative’ that covers up their documented religious discrimination against Dr. Walsh,” said Jeremy Dys, Liberty Institute Senior Counsel.  “We want to correct these distortions and ensure the EEOC has the information it needs to continue its investigation of the Georgia Department of Public Health’s religious discrimination and retaliation against Dr. Walsh.”


On May 5, 2014, the State of Georgia Department of Public Health (DPH) hired Dr. Walsh as District Health Director, contingent on a routine background check.  But only 11 days later—a day after Dr. Walsh, an ordained lay minister and member of the Seventh-day Adventist Church, supplied DPH with links to sermons Georgia officials labeled, “problematic”—DPH terminated Dr. Walsh because of his religious beliefs.  Liberty Institute has internal emails of Georgia government officials assigning which government official would read which of Dr. Walsh’s sermons.  He was fired shortly thereafter.

In September, Liberty Institute, with our volunteer attorneys, filed a charge of discrimination with the EEOC on behalf of Dr. Walsh, charging the State of Georgia Department of Public Health with religious discrimination and retaliation.  In a November 17 letter responding to Liberty Institute’s charge, DPH made excuses, shifted the blame, and created a new story trying to excuse the firing of Dr. Walsh.


This week, Liberty Institute corrected DPH’s distortion of the facts with over 100 pages of documented evidence.  Liberty Institute’s letter is summarized below:

  • DPH’s concern was Dr. Walsh’s sermons, not ‘outside employment.’   Multiple DPH emails obtained by Liberty Institute reveal the truth:  a DPH official assigned several employees to listen to over ten hours Dr. Walsh’s sermons, and another official received complaints from political factions in Georgia who were upset over Dr. Walsh’s religious beliefs.  The day after DPH reviewed the sermons (in itself a violation of federal law), Dr. Walsh was fired.

  • DPH crafted a story about Dr. Walsh’s outside employment to distract the EEOC from the evidence.  DPH suggested that Dr. Walsh didn’t tell them or his former employer in California about his outside employment.  But in almost 100 pages of interview notes, there is no evidence that DPH ever even asked Dr. Walsh about outside employment and his former employer was aware of his outside work as a pastor
  • Dr. Walsh was hired by DPH, leading him to resign his previous job, and is protected by federal law.  DPH claimed that Dr. Walsh was never hired.  However, in internal emails obtained under a public records request by Liberty Institute attorneys, DPH officials are shown to be advising Dr. Walsh of his start date, granting him time off for a pre-planned vacation, introducing him to his staff, and even offering the use of one official’s personal cabin to Dr. Walsh and his family during his transition to Georgia.  In one email, DPH’s own Director of Human Resources made Dr. Walsh’s hiring quite clear:  “[Dr. Walsh] has accepted the position and will begin work on June 16, 2014.”

  • In conclusion, the evidence overwhelmingly proves that DPH fired Dr. Walsh because of his religious beliefs.  Liberty Institute’s letter, supported by over 100 pages of documentation, disproves DPH’s distortions of the record and proves that Dr. Walsh was hired and cooperated fully with DPH (including their illegal request to listen to his “problematic” sermons), but was fired after DPH reviewed Dr. Walsh’s sermons.


Dr. Walsh is not the only person Liberty Institute is defending from religious discrimination in the workplace.  Liberty Institute also represents:

  • Craig James, a sportscaster fired by FOX Sports Southwest for his religious beliefs regarding traditional marriage.  Read more.

  • Bob Eschliman, a newspaper editor from Iowa fired for expressing his religious beliefs on his personal blog.  Read more.

  • Walt Tutka, a substitute teacher who gave a Bible—upon request—to a student and was ultimately terminated.  Read more.

Please pray as we work to restore the rights of those who face discrimination for off-the-job religious expression.  There is a direct attempt at “religious cleansing” in the workplace for both employers and employees.  In addition, please give financially.  We win over nine out of every ten of our cases, and because of Liberty Institute’s volunteer attorney model, every $1 you give translates into approximately $6 of legal impact. Thank you for your support!

Other stories:

About Liberty Institute
Liberty Institute is a nonprofit legal group dedicated to defending and restoring religious liberty across America — in our schools, for our churches, in the military and throughout the public arena. Liberty’s vision is to reestablish religious liberty in accordance with the principles of our nation’s Founders. For information, visit

PUNISHED: Army Chaplain Seeks Religious Accommodation to Care for Spiritual Well Being of Soldiers

Liberty Institute prepared to take legal action if Chaplain Lawhorn’s commanding officer denies his request

This week, Liberty Institute sent a second letter on behalf of our client Chaplain (Captain) Joseph “Joe” Lawhorn—this time requesting a religious accommodation to his commanding officer, Colonel David Fivecoat.  You may recall that Chaplain Lawhorn was recently punished by the Army for discussing his personal faith during suicide prevention training.  The Army refused to back down from its stance . . . but with your help, we will not back down either!

In the letter dated December 17, 2014, Liberty Institute Senior Counsel and Director of Military Affairs Mike Berry asserted that Chaplain Lawhorn’s “sincerely held religious beliefs demand that he cares for the spiritual well being of every soldier with whom he comes into contact.”  Moreover, federal law permits Chaplain Lawhorn to include religious expression in suicide prevention training.


Last month, on Thanksgiving Day, Chaplain Lawhorn’s commanding officer, Colonel David Fivecoat, called the Chaplain away from his family and questioned him regarding a suicide prevention presentation Lawhorn gave to an Army Ranger battalion, which the Colonel deemed too Christian in its approach.  Following Army regulations, Lawhorn had recently given an extremely effective suicide prevention message that included Lawhorn’s own personal testimony of how his Christian faith had helped him counter depression. 

Chaplain Lawhorn received a prolonged ovation—and a complaint from a single atheist soldier.  The complaint led to an article in a prominent liberal online publication which then led to the Thanksgiving Day interrogation by Colonel Fivecoat.  Colonel Fivecoat subsequently issued Lawhorn a “Letter of Concern” to be placed in Chaplain Lawhorn’s file.  This serious action has the potential to prematurely end the Chaplain’s stellar Army career, which includes earning the prestigious Army Ranger tab.


In Liberty Institute’s response letter dated December 9, 2014, we requested removal of the “Letter of Concern” from the Chaplain’s file, as well as an in-person meeting with Colonel Fivecoat to resolve the issue amicably and without the need for escalation.  Colonel Fivecoat denied our request.

We have again asked for an in-person meeting with the Colonel in our letter this week, and cited 10 key reasons why religious accommodation for Lawhorn is well within his rights:

1. Chaplain Lawhorn’s request for religious accommodation is consistent with Department of Defense (DOD) and Army regulations.

“Unless it could have an adverse impact on military readiness, unit cohesion, and good order and discipline, the Military Departments will accommodate individual expressions of sincerely held beliefs” (DOD Instruction 1300.17, paragraph 4b). 

2.    Chaplain Lawhorn’s religious expression cannot be used against him to jeopardize his career.

Sincerely held beliefs “may not be used as the basis of any adverse personnel action, discrimination, or denial of promotion, schooling, training, or assignment” (DOD Instruction 1300.17, paragraph 4d).

3.    The circumstances in which Chaplain Lawhorn exercised his religion—a suicide prevention presentation—are within DOD and Army regulations.

“A Service member’s exercise of religion may be denied only when the military policy, practice, or duty furthers a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest” (DOD Instruction 1300.17, paragraph 4e[1]).

4.     It is against Army regulations to deny a soldier the ability to engage in religious expression.

The Army may not substantially burden a soldier’s sincerely held religious beliefs (AR 600-20).

5.     Chaplain Lawhorn cannot be discriminated against because of his sincerely held religious beliefs.

The Army Equal Opportunity (EO) policy is to “provide EO and fair treatment for military personnel . . . without regard to race, color, gender, religion, [and] national origin” (AR 600-20).

6.    Chaplain Lawhorn’s request for religious accommodation is consistent with and supported by Army regulations and training materials.

Suicide Prevention, A Resource Manual for the United States Army states: 

“Chaplains can certainly speak from their own faith tradition . . .

“Behavioral health providers need to openly advocate spirituality and religiosity as resiliency factors.

“Emphasize the importance of spiritual health, connectivity with a faith community, and a relationship with God.

“Emphasize the phrase ‘that you persevere, that you stay alive.’ This is from a Greek word “Hupomeno” which is used in Christian scriptures, particularly in the Pauline epistles.  It is also used by James, the bishop of Jerusalem, as Jerusalem was in devastation and about to be destroyed.  He wanted all Christians, despite the persecutions and violent times, to not lose hope, to keep on enduring.  Encourage the audience to repeat this word and use it as a motto or mantra when in difficult times.”

7.     By sharing his own personal struggles—and how his faith helped him conquer his own depression—Chaplain Lawhorn is able to help others through example.

AR 600-63, paragraph 1-26 directs chaplains to “share information, trends, best practices, lessons learned, and training developments” when conducting suicide prevention training.

8.    Maintaining good spiritual health is vital in helping Service members who may be suffering from mental health issues, depression, or suicidal thoughts.

Chapters 2 and 3 of Department of the Army (DA) Pamphlet 600-24, Health Promotion, Risk Reduction, and Suicide Prevention, make clear that Army leaders are to include “spiritual fitness” as an integral component of Army suicide prevention training.

9.    Religious beliefs are a viable safeguard against suicide.

A recent “Suicide Prevention and Awareness Training for the United States Army,” prepared by the U.S. Army Center for Health Promotion and Preventive Medicine in conjunction with The American Association of Suicidology, states that “high spiritual resiliency” and “healthy spiritual/religious affiliation” are protective factors against suicide.

10. Refusal to grant Chaplain Lawhorn’s request is a violation of federal law.

The law is on the side of Chaplain Lawhorn—including the Religious Freedom Restoration Act of 1993 (RFRA), a federal law that protects the American people from any federal action that substantially burdens the free exercise of sincerely held religious beliefs, 42 U.S.C. §§ 2000bb2000bb-4—and military regulations.


In order for Chaplain Lawhorn to do his job—to fulfill the mantra of the military chaplain to “bring God to soldiers, and soldiers to God—he requests a religious accommodation.  His sincerely held religious beliefs compel him to provide both religious and secular information when he is conducting suicide prevention presentations as an authorized suicide prevention instructor.

Already, Chaplain Lawhorn’s fellow soldiers, including non-Christians, have poured out more than 30 letters of support for Chaplain Lawhorn.  The Restore Military Religious Freedom Coalition also sent a letter of support this week to express “great alarm” about the disciplinary action taken against Chaplain Lawhorn and to request the withdrawal of the Letter of Concern, as well as that “assurances be provided that Colonel Fivecoat’s actions will not adversely affect Chaplain Lawhorn’s Army Career and reputation.” 

Rabbi Dovid Becker, Director of Chaplain Services for Yeshiva Pirchei Shoshanim (YPS), a Department of Defense-authorized endorsing agency for Observant Jewish chaplains serving in the United States military, also sent a letter of support—saying that “YPS supports the right of all Army chaplains, regardless of their faith background, to incorporate faith and spiritual health into suicide prevention training.”

Please join with them in your support of this Chaplain’s rights—and Liberty Institute’s ongoing defense of the religious freedom of a member of our nation’s military—through your donation and your prayer support today.  And then sign your own “Letter of Concern to the U.S. Army for Violating Religious Freedom.”

About Liberty Institute
Liberty Institute is a nonprofit legal group dedicated to defending and restoring religious liberty across America — in our schools, for our churches, in the military and throughout the public arena. Liberty’s vision is to reestablish religious liberty in accordance with the principles of our nation’s Founders. For information, visit