Congress Blesses Mt. Soledad Christian Cross By Sham Land Sale

Sadly, the Senate ignored the FIRST RIGHT protected by the Bill of Rights -- freedom from government sponsored religion (a.k.a. the Establishment Clause) when it passed the National Defense Authorization Bill on Friday, December 12.

Section 2852 of the bill requires the Secretary of Defense to sell the Mt. Soledad Veteran's Memorial to the privately incorporated Mount Soledad Memorial Association. What is significant about the memorial is that its principal component is a 29-foot Christian cross on top of a 14-foot base for a total height of 43 feet. That's a powerful religious endorsement of Christianity telling persons of minority faiths and nonbelief that they are unwelcome or second class citizens.

The Mount Soledad Cross has been the subject of litigation for over 20 years. The City of San Diego and the U.S. government have lost at every step of the way, including a 2013 federal judge ruling from the bench upholding the Ninth Circuit's ruling and ordering that the cross must come down.

Time and again Christian dominionists have used the instruments of government to protect Christian crosses and Ten Commandments monuments on public lands by sham land sales where the religious symbol remains in place within the larger public park or other public property. Only the "donut hole" becomes private property!

A sham land transfer was also used by Congress to "save" the Sunrise Cross in the Mojave National Preserve in California. (I authored an amicus brief in opposition to the sham land transfer in Salazar v. Buono, Sup. Ct. No. 08-472, on behalf of the American Humanist Association, et al.)

Similar sham land transfers were also used by local governments to prevent the removal of Eagles-donated Ten Commandment monuments on public property in La Crosse (Cameron Park), Wisconsin, Hanover, Pennsylvania (Wirt Park), Frederick, Maryland (Memorial Park) and Nebraska City, Nebraska (Otoe County Courthouse).

These governmental acts demonstrate complete disrespect for, if not violation of, the First Amendment. Passage of the National Defense Authorization Bill is a sad day for religious freedom in America.

In concluding this post, I would like to take this opportunity to rebuke my Virginia Senators Mark Warner and Tim Kaine for their vote supporting this egregious violation of religious freedom and remind them that Congress has no authority under the Constitution to prefer one religion over another, or religion over nonbelief.)

Robert V. Ritter

Supreme Court takes a pass and lets gay marriages procede

This morning the Supreme Court denied certiorari in seven cases involving gay marriage—letting stand the decisions of the appellate courts which had all held that state bands against gay marriage violate the Equal Protection Clause of the 14th Amendment.  The cases involved five states: Virginia (4^th Cir.), my home state, Indiana (7^th Cir.), Oklahoma (10^th Cir.), Utah (10^th Cir.) and Wisconsin (7^th Cir.). 

The Court’s order immediately ends delay on marriage in those states. In addition, because the case settles the issue of gay marriage in the circuits of the aforementioned states, the states of Colorado (10^th Cir.), Kansas (10^th Cir.), North Carolina (4^th Cir.), South Carolina (4^th Cir.), West Virginia (4^th Cir.) and Wyoming (10^th Cir.) are also affected. By early afternoon, several states had already started issuing marriage licenses to gay couples. With these eleven states, gay marriage is now legal in thirty states and the District of Columbia.

The Supreme Court’s order comes as a surprise to experts and advocates of gay marriage, including myself, who believed that the Court would agree to hear at least one of the cases in order to definitively rule on such an issue of national importance. It takes at least four justices to agree to hear a case before it is docketed for oral argument. There being five justices on the Court regarded as conservative and presumed to be supportive of the conservative agenda—one would have thought that there would have been at least the four votes necessary to hear the case.  What happened?

I offer four reasons. First, Justice Kennedy, often regarded as a swing vote, wrote the majority decision United States v. Windsor (2013) that held the Defense of Marriage Act (DOMA) unconstitutional holding that DOMA was unconstitutional “as a deprivation of the liberty of the person protected by the Fifth Amendment.” So the Court is probably down to a maximum of four votes to hear the case With Kennedy, Ginsburg, Breyer, Sotomayor and Kagan probably voting no.

Second, the same reasoning in Windsor (noted above) would apply to the gay marriage cases. In fact, Justice Scalia said as much in his dissenting opinion in Windsor.  Thus, indirectly, the Supreme Court had essentially already ruled that gay marriage is a protected fundamental right.

Third, there is no split among the circuit courts—the most common reason for the Supreme Court to take a case.

And fourth, perhaps Chief Justice Roberts is concerned about his legacy and did not wish to write an opinion on the wrong side of the national tide strongly in favor gay marriage.

In short, gay marriage's time has come.

The cases are:

     Herbert v. Kitchen (Docket No. 14-124) (Utah)
     Smith v. Bishop (Docket No. 14-136) (Oklahoma)
     Rainey v. Bostic (Docket No. 14-153) (Virginia)
     Schaefer v. Bostic (Docket No. 14-225) (Virginia)
     McQuigg v. Bostic (Docket No. 14-251) (Virginia)
     Bogan v. Baskin (Docket No. 14-277) (Indiana)
     Walker v. Wolf (14-278) (Wisconsin)

7th Circuit Hears Oral Arguments in Housing Allowance Case

Religion Clause blog reports today that the 7th Circuit U.S. Court of Appeals heard oral arguments (audio of full arguments) yesterday in Freedom From Religion Foundation v. Lew, No. 14-1152. FFRF is challenging Section 107 of the Internal Revenue Code which allows "ministers of the gospel" to exempt from their income taxes income designated as a housing allowance. The exemption is just one more example of mythical equal justice under law and the government's favoritism of belief (and Christianity in particular) over non-belief.

The benefit can be quite substantial. For example, Rick Warren, pastor of Saddlebrook Church in California, has been able to exempt a Section 107 housing allowance of hundreds of thousands of dollars per year from his income tax liability -- just one more reason why every man, woman and child share of the nation debt is $55,000.

As an aside, I am jealous of FFRF because Michael Gompertz and Robert Baty requested that I take this case a number of years ago.  FFRF beat me to the courthouse.

Town of Greece decision deprives Americans of religious freedom

The five-justice majority opinion in Town of Greece v. Galloway was horrendous from a religious freedom perspective. But the four-justice dissent wasn’t much better. Essentially Greece was a 9-0 decision reaffirming the Court’s 1983 Marsh v. Chambers decision which held that legislative bodies may open their meetings with a prayer notwithstanding the First Amendment prohibition against government establishments of religion. 

The majority doesn't give a hoot that America is a diverse society with a significant portion of the population that does not believe in a deity. And the minority merely pays lip service to diversity so long as the prayers are of a Judeo-Christian variety. With six Catholics and three Jews on the Court, the result is not surprising -- none supported the Jefferson-Madison principle of separation of church and state.

From a nonbeliever’s perspective, the majority’s opinion written by Justice Kennedy and the minority opinion written by Justice Kagan merely split hairs about how proselytizing the prayers can be.

The problem is that both sides consider the United States to be a religious nation, whereas the truth is that our Constitution established a secular nation that guaranteed Americans the free exercise of religion and nonbelief.

To buttress this viewpoint, I would note that the Constitution grants governments no powers in matters of religion. There are four provisions of the Constitutions which bare directly or indirectly on religion. Article VI prohibits a religious test for public office. The First Amendment prohibits Congress (and by incorporation the states) from acts respecting establishments of religion AND guarantees the free exercise of religion. And the Fourteenth Amendment guarantees equal protection of the laws (i.e., treat religions and nonbelief equally).

As I said at the beginning, the majority opinion by Justice Kennedy and joined by Chief Justice Roberts and Justices Scalia, Thomas and Alito, is horrendous from a religious freedom perspective. I had little-to-no faith in these Christian dominionist justices. So I was not surprised by their pro-Christian position on legislative prayer.

However I was surprised and deeply disappointed by Justice Kagan’s opinion, joined by Justices Ginsburg, Breyer and Sotomajor. I had hoped that they would throw a bone or crumb to nonbelievers – that they (or at least one or more of them) would opine that legislative prayer is inherently religious and, therefore, excessively entangles government with religion and discriminates against nonbelievers.

Marsh and now Greece should be overturned if nonbelievers are accorded full citizenship and equal dignity. Unfortunately, now in my mid-60s, I don’t expect this to occur during my lifetime. Shame, shame, shame on the Supreme Court of the United States for spoiling the dream of religious freedom.

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. 

Town of Greece v. Galloway -- another horrendous decision by the conservative Catholic majority

The Supreme Court held 5-4 today in Town of Greece v. Galloway that sectarian prayers at government meetings do not violate the Establishment Clause. I'm sure that James Madison (Father of the Bill of Rights) and Thomas Jefferson (author of the Virginia Statute for Religious Freedom) are rolling over in their graves.

Justice Kennedy wrote in his majority opinion in Town of Greece: "Legislative prayer has become part of our heritage and tradition, part of our expressive idiom, similar to the Pledge of Allegiance, inaugural prayer, or the recitation of ‘God save the United States and this honorable Court’ at the opening of this Court’s sessions.” Slip op. at 19.

Unbelievable. Not true. Absolutely false. No. No. No.

As co-counsel with Mike Newdow in Newdow v. Roberts (challenging the religious practices of the 2009 presidential inaugural ceremony) -- representing over 250 nonbelievers -- I can say with certitude (just as Peter Eliasberg said during oral arguments in Salazar v. Buono (2010) that you won't find a Christian cross in a Jewish cemetery) that recitation of Christian prayers is NOT part of the heritage of nonbelievers and other nonChristians.

From this (and other decisions of the Court), I conclude that the Town of Greece decision is a fraud perpetrated by the five conservative Roman Catholic justices in furtherance of Christian dominion. They ignore the Establishment Clause at our peril.

Holding High School Graduation Ceremonies in Religious Buildings Violates the Neutrality Principle

Daniel D. Schick’s Keeping Up With The Principle Of Neutrality: Why Courts Should Not Extend Elmbrook’s Mistaken Establishment Clause Analysis * (Mississippi Law Journal, Vol. 84, Forthcoming) reads like one more attempt by the Christian Right to its use of government to advance religion.  The case of Doe v. Elmbrook School District, 687 F.3d 840 (7th Cir. 2012) involves the school district’s holding a high school graduation ceremony in the sanctuary of Elmbrook Church, a non-denominational Christian church. 

The sure giveaways that the article is biased in favor of government advancement of religion is when it tells us that government is “simply” utilizing a religious building to conduct a secular event and that the Pilgrims and Puritans came to America to escape repression in England.  In the case of the former, the only simple thing about the case is that the use of churches for public school graduation ceremonies places students in a coercive religious environment with religious symbols and messages and conditions the government benefit of the graduation ceremony on attendance at a religious institution. (It also has the affect of government endorsement of religion and stigmatizes those students of differing faiths and nonbelievers.) In the latter situation, the article conveniently omits the fact that Pilgrims and Puritans in turn engaged in religious repression. 

The article also fails to mention relevant history – that between the American Revolution and the early 1830s – the states disestablished religion. This, coupled with the ratification of the Bill of Rights, laid a solid foundation for the principle of separation of church and state espoused by Thomas Jefferson and James Madison.

The courts have not gone down a slippery slope by using the Lemon, endorsement or coercion tests or the neutrality principle to interpret the Establishment Clause. Rather, these tests, when properly used, allow the courts to faithfully apply the Establishment Clause to religion cases. The indisputable fact is that the Constitution gave our governments no role to play in the religious sphere.

Schick, a May 2015 Juris Doctor candidate at the University of Mississippi School of Law, argues for government and religion working together in what he calls “a neutral and secular manner to help further society.” This is code for allowing government to advance religion by postulating a secular purpose to cover up the greater religious purpose and effect.  

Quite frankly, the Constitution gave our governments no role to play in the religious sphere. If the churches want to make their buildings available for graduation ceremonies, they must at minimum sanitize them by removing or covering up religious symbols and messages. Then, and only then, can a valid neutrality argument be made.

However, the churches aren’t willing to play fair and be similarly situated with a secular buildings. Thus the Seventh Circuit correctly found that the school district’s use Elmbrook Church’s pervasively religious environment for a public high school graduation ceremony violated the Establishment Clause.

 __________

* Available on SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2394914.

Religion Cannot Justify Discrimination, Nor Does It Belong in Public Schools

State legislatures are going berserk.

Arizona’s legislature recently passed H.B. 1062, the controversial amendments to the state’s Religious Freedom Restoration Act. The bill would have allowed businesses to invoke religious freedom claims to refuse to serve gays and lesbians. 

And the Virginia General Assembly just passed S.B. 236 giving students the right to pray or engage in religious activities or religious expression before, during, and after the school day – essentially to turn public schools into Christian schools.

The good news is that Arizona Gov. Jan Brewer vetoed H.B. 1062 yesterday and Gov. Terry McAuliffe’s office has said that the governor will veto S.B. 236.

Admittedly, I have over simplified both bills. And some would argue grossly exaggerated them.  As an advocate for religious freedom and a student of constitutional law for over four decades, I deny the latter.

What proponents of the so-called religious freedom bills ignore is the harm to others.  In Utopia, we would be able to do whatever we wanted and no one would be harmed.  But that is not reality.

Religious freedom is not absolute. 

We are all generally aware that the Supreme Court has held that public schools cannot lead students in school prayer or reading of Bible verses.  Consider the following three examples to help understand why the right is not absolute.

Tennessee outlaws possession of poisonous snakes.  Unlike the previous eight times Rev. Jamie Coots, pastor of Middlesboro, Kentucky’s Full Gospel Tabernacle in Jesus Name had been bitten, on February 15th Coots died of a rattlesnake snake bite.  No need to charge Coots with possession of a poisonous snake.

Some parents believe that through prayer God cures illness. Based on their sincerely held religious beliefs, they refuse medical treatment for themselves and their children. Their child gets sick. The child’s illness is commonly cured by antibiotics or a blood transfusion. The child dies for want of medical care. The parents could be charged with negligent homicide.

A drug on the (regulated by the Controlled Substance Act) is used in group’s religious rituals. Members believe that using drugs enables them to commune with nature or experience their inner self. To prosecutors, the church was founded to enable its members to get a weekly (if not daily) high. The members could be charged with possession of a controlled substance.

In 1990, the Supreme Court held in Employment Division, Department of Human Resources of Oregon vs. Smith, 494 U.S. 872, that Oregon could deny unemployment benefits to a person fired for violating the state’s prohibition on the use of peyote, even though the use of the drug was part of a religious ritual. Under Supreme Court precedent, states have the power to accommodate otherwise illegal acts done in pursuit of religious beliefs, but they are not required to do so. Importantly, the Court in Smith held that a neutral law of general applicability does not violate the Free Exercise Clause of the First Amendment.  Justice Scalia, writing for the majority, said: “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

Subsequently, the federal government and a number of states enacted Religious Freedom Restoration Acts (RFRA) to circumvent the Smith decision – essentially to arm individuals with a sword (or automatic weapon) to defend all sorts of acts in the name of religion.

Fast forward 24 years.  In the name of religious freedom, more than fifty lawsuits have been filed in the last couple of years challenging contraceptive mandate under the Affordable Care Act.  To permit businesses and institutions to deny employees contraceptive coverage as part of a medical insurance package under the guise of religious freedom would put them above the law.

Returning to Arizona’s and Virginia’s bills, to allow Arizonans the right to discriminate in the name of religion or Virginia students to turn public schools into churches would be a perversion of freedom of religion.  While we have a right to believe whatever we want, we don’t have the right to act in a manner that causes harm to others.