A comment on CAP's "Religious Liberty for Some or Religious Liberty of All"

Joshua Dorner recently published an issue brief titled Religious Liberty for Some or Religious Liberty for All. Dorner is the Communications Director at Center for American Progress.

The following is an edited critique of Religious Liberty that I sent to Dorner today:

I read your Religious Liberty issue brief this morning. While I am generally supportive of the end result, your rationale is one sided -- it ignores the free exercise rights of those who, in practicing sincerely held religious beliefs, would discriminate against someone. For them, what you call balanced is NOT balanced at all.

Contrary to your statement that "The truth is that religious liberty is not in conflict with marriage equality or with women's reproductive rights ...", the real truth is that for many Americans there is an enormous conflict. You simply ignore the conflict by failing to give ANY weight to the free exercise of religion side of the equation.

For example, if it is permissible under our laws for clergy to be exempt from performing a same-sex wedding, why can’t a baker legally refuse to bake a cake for that wedding or a photographer refuse to take photographs of the wedding -- as long as their refusals are based on sincerely held religious belief that gay marriage is immoral?

I have been struggling with issue of discrimination in the name of religion for a number of years and do not have an honest answer, nor have I heard a persuasive answer from my liberal colleagues.

The best justification that I am aware of is that people who serve the general public should serve the public without discrimination. Perhaps clergy argue that they serve private congregations, not general public.

Or what about a person who starts a small business (and I have started and owned two businesses) and wants to run it consistent with his or her religious beliefs? Does he or she have freedom if government dictates how the business must be run? It's a good question. The truth, pretty or ugly, is that our freedoms are not unlimited. Some restrictions are necessary to prevent chaos.

The bottom line for me is that the Supreme Courtis decision in Employment Division v. Smith (1990) – holding that a law does not violate the Free Exercise Clause if it is neutral and general applicability – is the best balancing test we have where free exercise rights conflict with government promoting the general welfare (e.g., nondiscrimination). This being said, I am honest enough to admit that some people will be denied free exercise of religion. No right is absolute, even religious freedom.

Judge orders Mt. Soledad cross removed; Stays decision pending appeal

Pursuant to a remand from the 9th Circuit, U.S. District Court Judge Larry Burns issued a permanent injunction enjoining the display of a 43-foot Latin cross atop Mt. Soledad in California. Judge Burns stayed his decision pending appeal. The decision/order in Trunk v. City of San Diego (S.D. Cal. December 12, 2013) is here and the ACLU's announcement here.

This case has been going on forever. Almost. Philip K. Paulson a filed a law suit in 1989. Paulson, who died in 2006, has was succeeded by Steve Trunk as the lead plaintiff. Also in 2006, Jewish War Veterans and others filed a separate law suit. The two cases have been consolidated. 

The problem with a religious symbol as the predominant part of the memorial is quite simple.  The giant Christian cross is inappropriate because it does not represent the faiths or nonbelief of many veterans who have honorably served our nation.

I vividly recall Peter Eliasberg's response to Justice Scalia's statement during oral arguments in Salazar v. Buono that the Mojave Desert Christian cross was "erected in honor of all of the war dead." Eliasberg responded: "The cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew. [Laughter.] So it is the most common symbol to honor Christians." (Salazar v. Buono, No. 08-472 (October 7, 2009), transcript, at pp. 37-38.) Justice Scalia's face turned bright red in embarrassment.

Echoing Justice Scalia's insult, a plaque near the cross states: "Dedicated in 1954, as a tribute to all branches of the armed forces of U.S.A. servicemen and women." (Emphasis added.)

While the facts of Trunk (this case) differ from (1) Buono, 559 U.S. 700 (2010), (2) American Atheists v. Duncan, 616 F.3d 1145 (10th Cir., 2010) and (3) American Atheists v. City of Starke, 509 F.Supp.2d 1221 (MD FL 2007), in all four case courts found that the government's display of a Christian cross -- the preeminent symbol of the majority religion -- constituted a governmental endorsement of Christianity in violation of the First Amendment. (Note: In Buono, the 9th Circuit found the display to be an endorsement of Christianity. The issue before the Supreme Court was what affect was to be given to a land transfer to a private party.)

The bottom line is that the display of a religious symbol unique to one religion -- such as the Christian cross atop Mount Soledad -- has the purpose and effect of advancing one religion over others, and religion generally over nonbelief in violation of freedom from government sponsored religion guaranteed by the U.S. Constitution. The Constitution, which established a national government of limited powers, gave Congress and the President no powers in matters of religion.

Importantly, the removal of a cross from government property would not be an act of hostility towards religion but rather an act resulting in neutrality towards religion and nonbelief.

Pres. Obama is ignorant -- we are a not Nation under god

In his Thanksgiving proclamation (full text) President Obama said in part:

This Thanksgiving Day, let us ... lift each other up and recognize, in the oldest spirit of this tradition, that we rise or fall as one Nation, under God.

 
President Obama is an ignoramus. You would have thought that the former con law professor was familiar with the Preamble, no religious test clause and the establishment clause of the U.S. Constitution. These provisions of the Constitution clearly establish the that United States is a nation under "the People" (ourselves), not some mythical god or gods.

Mike Newdow and I lost Newdow v. Roberts (a lawsuit challenging the religious practices of the 2009 presidential inaugural ceremony) by an unjust judiciary which of late denies that Atheists are harmed by flagrant violations of the Establishment Clause -- by government sponsored religion. Justice is blind, very blind. And President Obama is an enabler.

Religious freedom is not to be had from our three branches of government that bow at the feet of Christian dominionists. This WE are not thankful for.

Housing allowance for ministers of the gospel held unconstitutional

Congratulations to Freedom From Religion Foundation for its win in FFRF v. Lew (W.D. Wisc., Nov. 22, 2013).

The U.S. District Court Judge Barbara B. Crabb held in an opinion filed today that the housing allowance exemption for "ministers of the gospel" -- IRC Sec. 107(2) -- violates the Establishment Clause under the Supreme Court's holding in Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989).

26 USC § 107 - Rental value of parsonages reads in part:

In the case of a minister of the gospel, gross income does not include— 

(2) the rental allowance paid to him as part of his compensation, to the extent used by him to rent or provide a home and to the extent such allowance does not exceed the fair rental value of the home, including furnishings and appurtenances such as a garage, plus the cost of utilities.

This is a major victory for freedom from government sponsored religion, for the First Amendment of the Constitution prohibits government favoring one religion over another, or religion over nonreligion.

The benefit of the §107(2) exemption to clergy has been estimated to relieve ministers of $2.3 billion in taxes over five years. See statement of Congressman Jim Ramstad regarding the Clergy Housing Allowance Clarification Act of 2002, 148 Cong. Rec. H1299-O1 (Apr. 16, 2002).

Judge Crabb noted: "Some might view a rule against preferential treatment as exhibiting hostility toward religion, but equality should never be mistaken for hostility." I made a similar point in my October 19th blog Myth #11: Removal of the Tombstone to Jesus Christ Would Constitute Hostility Towards Religion. 

The Quest for Separation of Church and State

I admit that Secularists, including me, seek to cleanse the public square of government sponsored religion.  While we individually, and even as part of a group, have the rights of free exercise of religion and free speech in public squares, we do NOT have a right under the First Amendment to use the instruments of government to aid, promote or endorse religion.  The Constitution not only doesn’t grant government any religious powers, the First Amendment specifically prohibits any governmental act “respecting an establishment of religion.”  In short, government is prohibited from preferring one religion over another, religion over nonbelief or nonbelief over religion. The only realistic way of achieving this mandate is for government to stay out of the religious sphere.

A week ago (Nov. 6), Americans United for Separation of Church and State argued the case Town of Greece v. Galloway before the Supreme Court. Americans United is seeking to require the Town of Greece to limit prayers before its town council to be “nondenominational.” Similarly, in 2005 the ACLU sued Cobb County, Georgia to require the prayers before its meetings to be nonsectarian.  The ACLU lost its case (Pelphrey v. Cobb County (11th Cir. 2008)). It would take a miracle for Americans United's to win because, quite frankly, the Court is stacked with Dominionists who favor some forms of government sponsored religion.  There is also a practical side -- courts don’t to be religion police.

But here's my problem with the case. As an attorney who practiced church-state law and as an Atheist, it is shocking that Americans United and the ACLU – both groups while purporting to support the principle of church and state are actually are or have taking litigation positions that infuse religion into government, albeit of a watered down variety.

Why don’t Americans United and the ACLU sue to prohibit governmental entities from opening any of their meetings with a prayer?

I can think of two reasons why the organizations do not. First, they are afraid that an adverse decision will embolden legislatures, boards and councils to become even more sectarian. And second, they are afraid of alienating a significant number of their members.  

Government sponsored prayer is their only hypocrisy. Neither Americans United nor the ACLU will stand up and fight these church-state violations:

• Eliminate congressional chaplains.
• Administer the presidential oath without “So help me God.”
• End the Supreme Court’s practice of opening its sessions with “God save the United States and this honorable Court.”
• Remove “under God” from the Pledge of allegiance.
• Repeal “In God We Trust” as our national motto. 

I call upon our branches of government to cease and desist from engaging in the above unconstitutional establishments of religion so that all Americans – both the religious and nonreligious – can enjoy the rights and privileges of being an American.

I also hope that Americans United and the ACLU will take notice that until the above infringements are remedied, religious freedom will be incomplete.  Congress, the President and the Supreme Court serve as role models for the rest of the nation and if they can violate the Constitution, other governmental entities will feel that they can too.

[Note: I have been a member of the ACLU for over 40 years and a member of Americans United for many years. Tho I support the overall mission and programs of both groups, I feel that it is important to speak out about what I view to be their major weakness – their failure to advocate for complete separation religion and government.  I also served as co-counsel with Michael Newdow in Newdow v. Roberts which challenged the religious practices of the 2009 presidential inaugural ceremony.]

Time for the Supreme Court to End Government Sponsored Prayer

Last Wednesday (Nov. 6) at the Supreme Court, I joined a group from the Secular Coalition of America in support of the plaintiffs in the Town of Greece v. Galloway who opposed Christian prayers before the town’s council meetings. I have since come to realize that that was a false choice – one between Christian prayers and watered down prayers. What about no prayers at all?  Isn’t that what the “No Establishment” Clause requires?  What part of “no” don’t we understand?

The seed of illumination began when I heard Americans United legal director Ayesha Khan tell reporters after oral arguments: 

Participating in one’s local government is a universal right of citizenship. It should not be conditioned on recitation of the Lord’s Prayer or participation in any other prayer that is unique to a particular faith tradition. Town residents attend these meetings not as spectators but as participants. Children's sports teams are invited to receive awards, people come to ask the board to take particular action and they come to seek zoning permits.  Exercising those rights and seeking those important benefits should not be conditioned on bowing one’s head in recognition of Jesus Christ.

It is important to understand that we are not asking the board to discontinue its practice of presenting prayers.  We are asking that citizens not be pressured to participate in those prayers and that the prayers be nondenominational and [in audible].  Our national motto is “In God We Trust,” not “In Christ We Trust.”  Our Pledge of Allegiance refers to “one nation under God,” not “one nation under Jesus,” “under Allah” or “under Buddha.”

We brought this lawsuit because the Town of Greece has chosen to thumb its nose at this long standing historical and constitutional provision that has served us so well.  Under the town’s view, residents who come to participate in these meetings to be asked to join in a prayer that promises eternal hell fire to anyone who does not accept Jesus Christ as their savior.  That can’t possibly be constitutional.  We hope that the Supreme Court will agree that civic participation should not be conditioned on compromising one’s religious beliefs.

Something was missing from Ms. Khan’s remarks, so I asked her: “What do you say to Atheists that don’t believe in god?  They shouldn’t have to hear even nondenominational prayers.” 

Ms. Khan dodged the latter question by responding: “Yes, as Professor Laycock [who argued the case on behalf of the plaintiffs] said this tradition that the country has followed does in fact not recognize the increasing diversity of this country.  We do believe under the proposal we have made that Atheists would be allowed to come forward and present a prayer, as would polytheists or anybody else who comes from a more diverse tradition than the monotheistic one that the Court opened with today.”

While the Americans United’s “sausage” proposal may be the best we could hope for given the religiosity of the Supreme Court (six Roman Catholic and three Jewish justices), it doesn’t cure the problem of government sponsored religion.  It’s time for the Supreme Court to say that prayer – as a part of governmental meetings – violates the No Establishment Clause of the First Amendment.

And so it comes to past that after years of supporting Americans United, I painfully conclude that the organization is a front for mainstream Protestantism. This really should not be surprising.  Originally, it was founded in 1947 as Protestants and Other Americans United for Separation of Church and State to oppose Catholic influence on government.  The organization has since dropped “Protestants and Other” from its name and added Christian fundamentalism to its opposition list.  It is also notable that its executive director is an ordained Protestant minister and has two Christian ministers and two Jewish rabbis on its board of trustees.

The unmistakable fact remains that Americans United supports government sponsored religion, including prayer at government meetings, the motto of “In God We Trust”, the insertion of “under God” in the Pledge of Allegiance and the Supreme Court’s opening sessions with a prayer.  Americans United’s nondenominational half-measure is analogous to granting gays the right to enter into civil unions instead of marriage.  Americans United’s position is undignified.  It’s wrong.

It is important to make these final comments.  First, while some prayers are more sectarian than others, all prayers are inherently sectarian.  Second, removing the wrongful practice of government sponsored religion from the public square is not being hostile to religion.  Rather, it is being faithful to the Constitution which prohibits government from preferring one religion over another, or religion over nonreligion or, in all fairness, nonreligion over religion.  Third, the absence of religion is not the same as being pro-Atheist.  Rather, it leaves to individuals and private institutions they may associate with the practice of religion.  And fourth, the Constitution created a “limited form of government,” granting Congress, the president and the judiciary no religious powers or duties.

If the Supreme Court is faithful to the Constitution, it will first cease opening its own sessions with the prayer “God save the United States and this honorable Court” and then tell the Town of Greece “NO MORE PRAYERS.”

35 United States Supreme Court Majority Opinions Demonstrating Mandate For Religious Neutrality

Loosing is not fun, but loosing because a court ignored established law is especially discouraging.  Mike Newdow and I filed a lawsuit in December 2008 on behalf of over 250 plaintiffs challenging the religious practices of the 2009 presidential inaugural ceremony. One of the documents we filed in the course of the litigation was a list of Supreme Court cases in which the majority recognized the First Amendment mandate for religious neutrality. [1] Tho we lost the case, I remain convinced that the Constitution requires government to be neutral in matters of religion and that we should have won on the merits had the district and appeals courts not exhibited extreme bias.

I offer the list for your consideration:

1.     McCreary County v. ACLU, 545 U.S. 844, 860 (2005) – “The touchstone for our analysis is the principle that the ‘First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.’”

2.     Cutter v. Wilkinson, 544 U.S. 709, 720 (2005) – courts “must be satisfied that the Act’s prescriptions are and will be administered neutrally among different faiths”

3.     Zelman v. Simmons-Harris, 536 U.S. 639, 652 (2002) – “[W]here a government aid program is neutral with respect to religion … the program is not readily subject to challenge under the Establishment Clause.”

4.     Good News Club v. Milford Cent. Sch., 533 U.S. 98, 114 (2001) – “[W]e have held that “a significant factor in upholding governmental programs in the face of Establishment Clause attack is their neutrality towards religion.”

5.     Mitchell v. Helms, 530 U.S. 793, 809 (2000) – “In distinguishing between indoctrination that is attributable to the State and indoctrination that is not, we have consistently turned to the principle of neutrality.”

6.     Agostini v. Felton, 521 U.S. 203, 234 (1997) – “We therefore hold that a federally funded program providing supplemental, remedial instruction to disadvantaged children on a neutral basis is not invalid under the Establishment Clause ...”

7.     Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 839 (1995) – “A central lesson of our decisions is that a significant factor in upholding governmental programs in the face of Establishment Clause attack is their neutrality towards religion.”

8.     Bd. of Educ. v. Grumet, 512 U.S. 687, 696 (1994) – “‘A proper respect for both the Free Exercise and the Establishment Clauses compels the State to pursue a course of ‘neutrality’ toward religion.’”

9.    Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 8 (1993) – referencing “government programs that neutrally provide benefits”

10.   Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 533 (1993) – “A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernible from the language or context.”

11.   Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 393 (1993) – “[T]he total ban on using District property for religious purposes could survive First Amendment challenge only if excluding this category of speech was reasonable and viewpoint neutral.”

12.   Bd. of Educ. of Westside Cmty. Sch. v. Mergens, 496 U.S. 226, 251 (1990) – Government act is constitutional if it “evinces neutrality toward, rather than endorsement of, religious speech.”

13.   Jimmy Swaggart Ministries v. Board of Equalization, 493 U.S. 378, 384 (1990) – noting “‘the constitutional requirement for governmental neutrality.’”

14.   Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 13 (n.2) (1989) – referencing “‘the policy of neutrality’”

15.   Bowen v. Kendrick, 487 U.S. 589, 609 (1988) – recognizing the requirement that “the challenged statute appears to be neutral on its face.”

16.   Corporation of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 335 (1987) – “Lemon’s ‘purpose’ requirement aims at preventing the relevant governmental decisionmaker -- in this case, Congress -- from abandoning neutrality and acting with the intent of promoting a particular point of view in religious matters.”

17.    School Dist. v. Ball, 473 U.S. 373, 382 (1985) – “The solution to this problem adopted by the Framers and consistently recognized by this Court is jealously to guard the right of every individual to worship according to the dictates of conscience while requiring the government to maintain a course of neutrality among religions, and between religion and nonreligion.”)

18.   Wallace v. Jaffree, 472 U.S. 38, 60 (1985) – recognizing “the established principle that the government must pursue a course of complete neutrality toward religion.”  Cf. “the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all.” At 53.

19.    Mueller v. Allen, 463 U.S. 388, 398-99 (1983) – “a program ... that neutrally provides state assistance to a broad spectrum of citizens is not readily subject to challenge under the Establishment Clause.”

20.   Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983) – upholding “policy … founded on a ‘neutral, secular basis.’”

21.   Larson v. Valente, 456 U.S. 228, 246 (1982) – “This principle of denominational neutrality has been restated on many occasions.”  “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” (At 244)

22.   Widmar v. Vincent, 454 U.S. 263, 274 (1981) – denying challenge because “the University’s policy is one of neutrality toward religion.”

23.   Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 720 (1981) – a noting “the governmental obligation of neutrality in the face of religious differences.”

24.    McDaniel v. Paty, 435 U.S. 618, 629 (1978) – noting the Establishment Clause’s “command of neutrality.”

25.    Meek v. Pittenger, 421 U.S. 349, 372 (1975) – requiring “that auxiliary teachers remain religiously neutral, as the Constitution demands.”

26.   Comm. for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 792-93 (1973) – “A proper respect for both the Free Exercise and the Establishment Clauses compels the State to pursue a course of ‘neutrality’ toward religion.”

27.   Wisconsin v. Yoder, 406 U.S. 205, 220 (1972) – noting “the constitutional requirement for governmental neutrality.”

28.   Tilton v. Richardson, 403 U.S. 672, 688 (1971) – approving of “facilities that are themselves religiously neutral.”

29.    Lemon v. Kurtzman, 403 U.S. 602, 618 (1971) – recognizing the mandate for “remaining religiously neutral.”

30.   Gillette v. United States, 401 U.S. 437, 449 (1971) – “[W]hat is perhaps the central purpose of the Establishment Clause [is] the purpose of ensuring governmental neutrality in matters of religion.”

31.    Epperson v. Arkansas, 393 U.S. 97, 103-04 (1968) – “Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice.  It may not be hostile to any religion or to the advocacy of noreligion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.”

32.    Sherbert v. Verner, 374 U.S. 398, 409 (1963) – noting “the governmental obligation of neutrality in the face of religious differences.”

33.    Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 215 (1963) – “examining this ‘neutral’ position in which the Establishment and Free Exercise Clauses of the First Amendment place our Government.”

34.    Engel v. Vitale, 370 U.S. 421, 443 (1962) – “The First Amendment leaves the Government in a position not of hostility to religion but of neutrality.”

35.    Everson v. Bd. of Education of Ewing Township, 330 U.S. 1, 15 (1947) – “Neither [a state nor the Federal Government] can pass laws which which aid one religion, aid all religions, or prefer one religion over another.”  Also, “[The First Amendment] requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions, than it is to favor them.” At 18.

In addition, the plurality opinion in Van Orden v. Perry, 545 U.S. 677, 684 (2005) discusses “‘the very neutrality the Establishment Clause requires.’” Justice Breyer provided the fifth vote in Van Orden and he joined the majority opinion in McCreary. Consequently, the Van Orden majority (tho not the majority opinion) recognized mandate for religions neutrality. Sadly, the Van Orden majority failed to recognize that the Eagles-donated Ten Commandments monument erected on the Texas State Capitol grounds is not neutral.

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[1]  This list of cases was originally prepared by Michael Newdow and appeared as Exhibit A in Document 4-2 filed on January 5, 2009 in Newdow v. Roberts (D. D.C., 1:08-cv-02248-RBW). Minor formatting changes have been made. All internal citations are omitted in this listing.