Freedom From Government Sponsored Religion Is America's First Liberty

President Trump issued a lengthy Proclamation recognizing Dec. 29, 2020 as the 850th Anniversary of the Martyrdom of Saint Thomas Becket. The Proclamation reads in part: "Before the Magna Carta was drafted, before the right to free exercise of religion was enshrined as America’s first freedom in our glorious Constitution . . ." 

Actually, the "free exercise of religion" is the SECOND right listed in the First Amendment. The "FIRST right" is the freedom from "an establishment of religion" -- that is, freedom from government sponsored religion. Or, as Presidents Thomas Jefferson and James Madison expressed the principle, a separation of church and state. 

Robert V. Ritter, Founder, Jefferson Madison Center for Religious Liberty 

 

Photo: President James Madison. On June 8, 1789, (then) Virginia Representative Madison proposed a bill of rights in the First Congress. As modified, they would become the Bill of Rights in 1791.

 

Supreme Court has lost its legal compass

[Take 2 . . . ] 

I have been a student of the U.S. Constitution for nearly 50 years. Yesterday, the conservative Catholic majority on the Supreme Court in Town of Greece v. Galloway simply ignored the First Amendment in giving the green light for town councils starting their meetings with sectarian prayers. 

The Town of Greece decision has nothing to do with free speech and everything to do with Christian dominion. The five conservative Roman Catholics -- Chief Justice Roberts and Justices Scalia, Thomas, Kennedy and Alito -- did an end run around the Establishment Clause of the First Amendment. That clause prohibits government preferring one religion over another or religion over non religion. In other words, under the First Amendment governments must neutrality with respect to religion. 

So what does the Catholic cabal on the Court do if the Constitution gets in their way of allowing governments to promote Christianity -- simple -- ignore it. Justice Kennedy, writing for the majority, made up a sham legal argument like our country's heritage permits town councils to open their meetings with Christian prayers. Strange, it's not my Atheistic heritage or the heritage of minority religions. Rather Christian prayer is an evangelistic tactic of a tyrannical majority (or maybe just a few council members) foisting their religion on their community. In so doing, notwithstanding the majority's holding in Town of Greece, the Constitution's mandate of separation of government and religion is violated. 

And guess what -- there's no appeal of the Supreme Court's decision. The justices are not truly bound by the Constitution because they have life tenure. We can and do criticized them but this bad decision is likely to stand for decades until there is a fundamental change in the composition of the Court.

Oh, and by the way, the justices in the minority weren't much better -- for they would still permit prayers at government meetings as long as the prayers were nonsectarian. Prayer is prayer is prayer. It necessarily causes excessive governmental entanglement with religion in violation of the First Amendment. 

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.