Progressive activists know the old adage that “the process is the punishment.” The RFMA, which gives private parties the power to bring lawsuits to enforce its provisions, gives those activists a new right and a new weapon to confront religious organizations that maintain their sincere religious convictions about marriage. The unpredictability of the “under color of State law” inquiry is itself a threat to religious liberty. The Court itself said that there “cannot be a simple line” between the government and private organizations. Under that test, courts ask whether the private organization and the government are “sufficiently entwined.” In one of its major state action cases, the Supreme Court said that this inquiry is “a matter of judgment” and that “the criteria lack rigid simplicity.” It stated that “no one fact can function as a necessary condition across the board for finding state action nor is any set of circumstances absolutely sufficient, for there may be some countervailing reason against attributing activity to the government.” The Court declared that “ur cases have identified a host of facts that can bear on” attributing a private organization’s action to the government.ĭoes that sound like a “very bright line” to you? Me, neither. David dutifully identifies two of the primary tests: whether the government is actually directing the private entity and whether the private entity is performing a traditional, exclusive public function.īut he conspicuously fails to mention a third test-the very test courts have used to find a lot of private entities to be state actors. In different contexts, courts have developed various “tests” for determining whether a private organization or individual is “acting under color of State law” and thus subject to the restraints the Constitution and other federal laws impose on the government. David also claims that the test for determining when a private entity is a “state actor” is a “very bright line.” He concedes that courts sometimes hold that private organizations are “acting under color of State law” but claims that the circumstances in which this happens are “ very narrow” (his emphasis), implying that I overstated the RFMA’s threat to religious non-profits like foster and adoption placement agencies. This is one of the statements David says he is stumped by. My statement was based on the fact that courts have said in other contexts that private organizations-not just government agencies and officials-can act “under color of State law.” In a column published in WORLD Opinions, I wrote that the bill “imposes a new obligation to recognize same-sex relationships on religious organizations that work closely with government.” I was referring to Section 3 of the bill, which declares that “o person acting under color of State law” may refuse to recognize a same-sex marriage. 8404), which ADF opposes and David supports. In a piece titled, “ An Open Letter to Those Who Think I’ve Lost My Christian Faith,” Dispatch columnist David French writes that he was “stumped” by my recent summary of the Respect for Marriage Act ( H.R.
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