BLOGOn Wins, Losses, and the Never-Changing Price of Being Free

By Alan Sears Posted on: | August 12, 2016

It’s a trite old saying, but it’s true: “you win some, you lose some.” Anyone who practices law for very long has to learn to live with that, and the attorneys of Alliance Defending Freedom are no exception. But when you represent brothers and sisters whose lives are so impacted by these outcomes … well, winning and losing mean even more.

Sometimes, a loss is bigger than it seems … and a win is not as big as it looks.

We rejoice, for instance, in the U.S. Supreme Court’s decision earlier this month to put a hold on a lower court ruling that would have required a Virginia school district to open up its restrooms to members of the opposite sex. But the hold is only temporary, pending the justices’ decision whether or not to take up the case themselves. So the win, while welcome (and for which we thank God), is less “leave that school district alone” than “give us a minute to think about it.”

The good news is that, with similar cases similar cropping up all over the country, a Supreme Court decision to hear this case could put a final stop to the Obama Administration’s unconstitutional directive that requires schools to allow boys into girls’ locker rooms and restrooms, a directive that violates the safety and privacy of schoolchildren nationwide. If the justices decide not to hear the case, though, many more schools will face the loss of federal funding if they don’t give into the administration’s demands – while if the justices choose to hear the case and then uphold the directive, the implications for millions of children are ominous, indeed.

An even more fragile win came out of Iowa last month, when the state’s Civil Rights Commission tweaked a state publication that required churches to open their showers and bathrooms to people of both sexes and those who identify as transgender, and that pastors should forego preaching sermons that suggest sexual activity outside of marriage is wrong. The changes to the brochure, while appreciated, are insufficient to assuage concerns about these interpretations of Iowa law, according to ADF Legal Counsel Christiana Holcomb.

“Cosmetic changes to the alarming language in one brochure won’t fix the unconstitutionality of the Iowa Civil Rights Act,” she says. “Churches should be free to communicate their religious beliefs and operate their houses of worship according to their faith without fearing government punishment. The Iowa Civil Rights Commission had no constitutional basis for including explicit threats against houses of worship in any of its materials.

“No state or local law should threaten free speech and the free exercise of religion as protected by the First Amendment,” Holcomb says. “Because the Iowa law does that, ADF will continue to challenge the law to  bring certainty to Iowa churches.”

Last month, ADF attorneys filed a motion to temporarily suspend application of the Iowa law while the case moves forward in court; earlier this month, we filed a  brief in federal court exposing the deficiencies in the Civil Rights Commission’s arguments.

And then there’s Illinois, where Governor Bruce Rauner has signed a bill forcing doctors and medical facilities to promote abortion regardless of their ethical or moral views on the practice. This, despite Illinois laws that:

  • prohibit government from placing burdens on religious conscience without a compelling interest for doing so
  • protect “liberty of conscience,” saying “no person shall be denied any civil or political right, privilege or capacity, on account of his religious opinions”; and
  • protect free speech, including the right not to be compelled by government to speak a message contrary to one’s own conscience.

The new law is also a clear violation of federal regulations – which means enacting it could jeopardize the state’s federal funding, including Medicaid reimbursements. ADF warned legislators of that danger when they first weighed in on the bill last year, and sent a letter to Rauner this spring, on behalf of numerous pro-life physicians, pregnancy care centers, and pregnancy care center network organizations.

In light of the governor’s decision, ADF attorneys have now filed suit against him in state court, on behalf of an Illinois doctor and two pregnancy care centers.

“Pro-life health care professionals shouldn’t be forced to hand out lists describing how to contact abortionists, yet that’s what this law mandates that they do,” says ADF Senior Counsel Kevin Theriot. “If this profane amendment to Illinois’ conscience protection law remains on the books, doctors and medical staff committed to saving all lives will be forced to promote the killing of some children, women will lose access to doctors who unconditionally value human life, and pregnancy resource centers that offer free help and hope to pregnant women will be forced to refer to abortionists.”

So … you win some, and you lose some. They all matter. But no legal victory is unassailable, and no legal loss is ever final. This is why we must persevere in the courtroom, not only defending what legal ground God has blessed us to gain, but moving, always, to regain more of the crucial liberties lost through the years by our nation’s sad neglect of religious freedom.

"It is the common fate of the indolent to see their rights become a prey to the active,” said John Philpot Curran, an Irish lawyer, some 225 years ago. “The condition upon which God hath given liberty to man is eternal vigilance.” Two centuries haven’t changed the truth of that, and so – win or lose – we watch, and stand, and speak up and speak out for our freedom.

Alan Sears


Alan Sears served as founder of Alliance Defending Freedom, building on his experience as longtime leader of the organization to strengthen alliances, forge new relationships, and develop ADF resources.

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