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.

American Core Value -- Religious Neutrality (No Preference for Religion or Nonbelief)

Today, I read as much of Karen Jordan’s A Christian Vision of Freedom and Democracy: Neutrality as an Obstacle to Freedom as I could stand before skipping to the end. It's Roman Catholic propaganda.

Specifically, the article is an apology of Joseph Ratzinger’s (i.e., Pope Benedict XVI) support for a “more moderate use of neutrality principle.” That phrase, however, is code for using government to promote Christianity. Jordan offers this view as an alternative to the Supreme Court's view of neutrality that government may neither prefer one religion over another or religion over nonreligion. As an adherent of secular government, I find the "no preference" view infinitely more appealing.

I had to skip most of the article for fear of overdosing on Catholic theology. The church, Jordan tells us, defines “freedom” as “liberation from sin, and freedom to follow the commandments of God.” As a Catholic-turned-Atheist almost 50 years ago, I’ll take a pass on that unappealing view and go with the traditional view of freedom as being free from government (and church) control.

Last, I would further note that Jordan’s argues that Ratzinger’s believes that current political divisiveness (if not anarchy) is due to the lack of Christian moral values. On that score, I would merely note that the Catholic church, with a long history of immorality, should clean up its own house before meddling in the affairs of others. I'll leave the cause of pluralism for another day.

Response to Cambria Queen's article: Is God in the United States?

Cambria D. Queen wrote a law article (Arizona Summit Law School) titled Is God in the United States? A PDF is available on SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2382189.

I emailed her the following comments in rebuttal:

I am disappointed with your historical revisionism, faux legal analysis and improper citations.

First, the term "God" is inherently religious and its use by government in the manner your article supports necessarily violates the Establishment Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. The failure in most instances of the Supreme Court to recognize this is reflective of the Court's infidelity to the Constitution and pandering to the majority.

Second, historical revisionism permeates your article. For example, I would note that the insertion of "under God" in the Pledge of Allegiance has nothing to do with patriotism and everything to do with religion -- specifically, it was an anti-Atheism slogan promoted by the Catholic organization Knights of Columbus. The organization was initially unsuccessful in getting inserted into the Pledge in 1952, but was ultimate successful in 1954.

Similarly, legislation to make "In God We Trust" was promoted by Christian evangelicals against Atheism. Having lost the war when the Constitution made the U.S. a secular nation, the Christian Right continue to fight battles in their effort to make the U.S. a Christian Nation.

Third, your use of Lemon v. Kurtzman is ironic. The 8th Circuit in Plattsmouth withheld rendering its decision until after a decision in Van Orden v. Perry. As you may be aware, there was no majority decision in Van Orden. Justice Breyer cast the deciding vote and his opinion primarily rested on the fact that the Fraternal Order of Eagles' donated monument had been on the Texas state capitol grounds for 40 years before being challenged. It did NOT rest on a bona fide Lemon analysis. To the contrary, Breyer switched sides in McCreary County which applied a Lemon analysis in holding that the display of the Ten Commandments in the McCreary County Courthouse violated the Establishment Clause. Thus Plattsmouth should be viewed as Van Orden II -- as well as, a misapplication of Lemon.

Fourth, footnote 28 "McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 887-89 (2005)." fails to note that pages 887-89 are from Justice Scalia's dissenting opinion. As cited, the reference implies that it is from Justice Souter's majority opinion. 

Fifth, you failed to site the majority holdings in McCreary and Stone v. Graham (1980). Those cases held that the display of the Ten Commandments on public property violated the Establishment Clause. Moreover, the Supreme Court recently declined certiorari in the Mount Soledad and Utah cross cases in which appeals courts held that the display of Christian crosses on public property violate the Establishment Clause.

And as a final point, I am disappointed that you failed to advance Thomas Jefferson's separation of church and state principle. If Jefferson were on the Supreme Court today he would surely hold "under God" in the Pledge, the U.S. motto of "In God we trust", Ten Commandment Monuments and Christian Crosses on public property, etc. violate of the First Amendment.

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.]