Tag Archives: Establishment Clause

Religious Rights And Privileges

Religious conflicts have been the subject of a number of my recent posts, and have triggered some fairly robust discussions in the comments. I think both the posts and the subsequent conversations evidence the persistence and extent of efforts to have government privilege certain beliefs over others.

Significant numbers of Americans reject the Constitutional separation of church and state.

The First Amendment has two religion clauses. The Establishment Clause basically removes government from matters of faith. As the Supreme Court has repeatedly ruled, government cannot sponsor religious observances or endorse religious beliefs. (As I rather inelegantly put it to my students, government is supposed to “butt out” of our souls.) The Free Exercise Clause forbids government from interfering with the beliefs of citizens, or with citizens’ religious observances to the extent that those don’t violate “laws of general application.” (Your religion may tell you to sacrifice your firstborn, or ingest hallucinogens, but laws of general application prevent you from acting on those particular beliefs.)

Government was withdrawn from matters the Founders believed should properly be the purview of churches and individual consciences.–This decision was based upon respect for individual autonomy, but it was also an effort to minimize public conflicts over matters of faith. (The Founders were all too aware of Europe’s history of religious conflict).

So why are people in the United States constantly arguing about religion?

Katherine Franke, a law professor who recently plunged into the religious wars in a column for the Washington Post, suggests one reason. She writes that this administration has “weaponized the notion of religious liberty” to advance a blatantly partisan, conservative agenda. In other words, efforts to privilege some religious beliefs over others are really efforts to advance a decidedly political agenda.

The column began with a description of an unusual lawsuit by a religious order–nuns who claim their religious-freedom rights are being violated by the construction and pending use of a natural-gas pipeline on their land in Pennsylvania. They say their faith requires that they “treasure” the land.

Needless to say, the government’s response has been less than solicitous, despite numerous sanctimonious pronouncements about religious “liberty” from Vice-President Pence and Attorney General Sessions. As Franke notes,

You can count on the government’s support if you’re a cake baker who considers same-sex marriage to be an abomination, or a nun who believes that contraception is murder, or a school administrator whose faith tells him that a person’s sex is fixed by God at birth. In these cases, Justice Department lawyers will show up like the cavalry, ready to go down fighting.

But not so much for Unitarians, whose faith drives them to leave water and food in the desert for migrants who will die without help. Or Catholic activists who believe that nuclear weapons are a death pact with the devil. Or the “Adorers,” who oppose the building of a gas pipeline on their property. Or Muslims in almost any context.

…..

The Justice Department is aggressively prosecuting faith-based humanitarian volunteers with the organization No More Deaths, a group affiliated with the Unitarian Church in southern Arizona. Its mission includes leaving water and food for migrants crossing the scorching-hot Sonoran Desert, where hundreds of people die every year. The government lawyers have trivialized these faith-based humanitarians’ religious-liberty claims, calling them scoundrels. This prompted a group of law professors who are experts in law and religion, myself included, to file a friend-of-the-court brief in the case, pointing out to the judge how the Justice Department has misconstrued religious liberty law in this case.

These official responses to actions motivated by faith make it patently obvious that the pious proclamations of concern for religious sensibilities are highly–and politically–selective. A congregation feeding undocumented immigrants cannot expect the same degree of forbearance or respect as the baker or florist refusing to serve a same-sex couple.

The Supreme Court has repeatedly noted that religious-liberty rights are not absolute, yet they should be given serious consideration in light of the government’s other compelling interests. What we see from this government is the evangelization of its own policy goals, accompanied by the demonization of its critics. In no way was this what religious liberty meant to the nation’s founders, nor should it be what it means today.

The God Squad In The Courts

Rewire has a feature called “Gavel Drop,” with brief descriptions of recent lawsuits involving religion and the First Amendment, and providing links to longer descriptions of the parties and issues involved. This particular issue highlights the current (sad) state of “faith-based” America.

Allow me to share a few of the featured entries.

The Alliance Defending Freedom is now arguing in federal court to allow homeless shelters to deny services for transgender people. Downtown Soup Kitchen in Anchorage, Alaska, filed the religious freedom lawsuit against Anchorage earlier this year over the city’s nondiscrimination law; a case had been filed against the center after it denied a transgender woman admission to its shelter. The shelter director said that the woman was denied because she appeared drunk, but also that it would never accept a “biological man.”

In the linked article describing the lawsuit, ThinkProgress points out that ADF’s claim for relief  isn’t simply a request to allow this particular discriminatory act; it is a demand that the court overturn the city’s anti-discrimination ordinance in its entirety. It’s part and parcel of the Christian Right’s persistent attacks on any and all LGBTQ protections, in the name of “religious liberty.”

If a homeless transgender woman has to be thrown out into the cold Alaskan street in order to show proper deference to the religious sensibilities of the “Christians” who run the shelter, well, those are the breaks.

Speaking of religious liberty, the Gavel Drop also reported on this lawsuit from Illinois.

Illinois’ Fourth District Appellate Court upheld a lower court’s dismissal of a lawsuit challenging a state law that provides funding to Medicaid and state employee health insurance plans that cover abortion services. Anti-abortion groups, represented by the Thomas More Society, are planning to appeal the case to the Illinois Supreme Court.

I note that, for these “good Christians,” religious liberty goes only one way: their way. Adherents of religions that permit abortion are to be denied the liberty to follow their beliefs.

Nothing more clearly demonstrates the hypocrisy of the “religious freedom” movement as piously promoted by people like Mike Pence and organizations like ADF and the Thomas More Society than this insistence that “liberty” means their right to have government impose their beliefs on everyone else.

The theologies of these “Christian” plaintiffs prohibit abortion (for them and for any of their neighbors); but those theologies evidently do allow flat-out lying in service of their “godly” goals. Their argument against the law included the repeated accusation that the measure promoted taxpayer-funded abortion services.

“Taxpayer-funded abortion” is a myth pedaled by abortion-rights foes that feeds on public ignorance about abortion funding. Two-thirds of the public is unaware the federal Hyde Amendment prohibits paying for abortions with federal Medicaid dollars, according to a Kaiser Family Foundation poll.

Also among the lawsuits listed in the Gavel Drop was yet another effort to have government endorse Christianity by displaying a cross on public property.

The city of Pensacola, Florida, is asking the U.S. Supreme Court to intervene and allow a large memorial cross to remain standing on public land in Bayview Park. Earlier this month, the U.S. 11th Circuit Court of Appeals upheld a lower court judge’s ruling that displaying the cross on publicly owned land violated the Establishment Clause of the U.S. Constitution. The city of Pensacola is represented by The Becket Fund for Religious Liberty.

These public monument cases are brought repeatedly, and just as repeatedly dismissed under a long line of precedents invoking the Establishment Clause. Not only do I fail to see how moving the cross to private property violates anyone’s  “liberty,” I fail to understand why the Christian Right is so dead-set on having the government endorse their brand of religion.

Okay, that’s a lie. I do understand.

They’re theocrats, just like the Taliban. They want government to post their symbols in order to remind the rest of us that this is their country, and the rest of us are just here by virtue of their forbearance.

I don’t know about the rest of you, but I really get tired of these people.

Taxes and Religion

Last week, the Indianapolis Star did something called “journalism.” (These episodes have become sufficiently rare that we should applaud loudly when they occur. I’m clapping.)

Snark aside, the Star followed the money, in this case, our tax dollars, which are flowing ever more generously to Indiana’s parochial schools. And as the introductory paragraphs made clear, these are schools that take both their religious identity and religious instruction seriously.

At Colonial Christian, an Indianapolis school on the northeast side that receives public funds through Indiana’s private school voucher program, students are warned they can be kicked out of school for “promoting a homosexual lifestyle or alternative gender identity.”

At even more voucher-accepting schools, families are required to sign statements of faith as a condition of enrollment, affirming that they hold the same religious beliefs and values as the school.

Theology classes are required for four years at Bishop Chatard High School, as are hours performing service and outreach. And some schools, including Bethesda Christian in Brownsburg, require a recommendation by a pastor.

There is absolutely nothing wrong with having religiously-based private education available to parents who want their children educated in such environments. Whether that education should be paid for with tax dollars, however, is a different question.

The U.S. Supreme Court ruled several years ago that voucher programs could  pass constitutional muster, despite the Establishment Clause, because the voucher (theoretically) was issued to the parents, and those parents could (again, theoretically) choose either a secular or religious school.

When Indiana’s Supreme Court was faced with specific language in the state constitution that seemed to foreclose the federal evasion, Indiana’s Court nevertheless opted to follow the same “logic.” (So much for “originalism” and “textual” analysis, which–had either of those purported judicial approaches actually been applied–would have required a different outcome.)

The Star’s article on religious schools’ participation in the state’s voucher program was the fourth in a series on Indiana’s voucher program, a program that was “grown” by former Governor Pence to be the largest in the country. Pence–like Betsy DeVos– was clear about his intent to privilege religious education, and neither of them seems troubled by the constant stream of research showing that children using vouchers do more poorly in English and math than children from similar backgrounds who attend public schools.

In Zelman v. Simmons-Harris, the 5-to-4 Supreme Court decision upholding the constitutionality of vouchers, the majority indulged in an abstract–and intellectually dishonest– exercise: the pretense that the voucher went to the parents (it is my understanding that, while the parents choose the ultimate recipient, they never touch the money), and –far more consequently–that the parents are free to choose from among religious or secular private schools. The “facts on the ground” are otherwise; almost all of the nonpublic schools accepting vouchers are religious, and those that are not tend to be geared to special populations: children with disabilities or behavioral issues or the like.

Let’s be honest, at least. Vouchers are support for religious education, and the quotations from parents in the Star article underscore the reality that most parents opting for vouchers do so because they want to send their children to a religious school.

So–back to my original question: why should taxpayers who believe in science and the importance of science education pay for children to attend schools that teach creationism (one of the administrators interviewed insisted that opposition to the “theory” of evolution was essential to his school’s approach)? Why should taxes paid by LGBTQ citizens and their allies be used to send children to schools that proselytize against “homosexual lifestyles”? Why should tax dollars be diverted from a public school system that serves all children and sent to schools that are unaccountable to those taxpayers and that research tells us are not providing an equivalent education?

I remain convinced that the Court in Zelman got it wrong–on both the law and the facts. But even if vouchers are constitutionally acceptable, they fail any reasonable test for what constitutes good public policy. If Americans want to promote alternative educational approaches and parental choice, there are ways to do that within the public system; charter schools, for example, are still public schools, with (among other things) an obligation to teach science and abide by the Bill of Rights.

The Star has illustrated what many educators already know: Indiana’s voucher program is an effort to circumvent the Establishment Clause’s prohibition on government funding for religion.

Educational outcomes are incidental.

 

 

 

 

 

Someone Needs to Explain Free Speech to Micah Clark

Recently, a State Trooper was sued for proselytizing a woman he’d stopped for speeding. The Indianapolis Star has the story.

Not surprisingly, our homegrown theocrats saw nothing wrong with this.

Micah Clark, executive director of the American Family Association of Indiana, said that although the traffic stop might not have been the best time to quiz someone about faith, he questioned whether a police officer should lose his right to free speech because he is wearing a badge.

“I have people pass out religious material all the time. Mormons come to my door all the time, and it doesn’t offend me,” Clark said. “(This case) might not be the most persuasive time to talk to someone about their faith, but I don’t think that a police officer is prohibited from doing something like that.”

Let’s try this slowly, so that even folks like Micah can understand: when people are acting in their individual capacities, they have free speech (and free exercise) rights. When they are acting on behalf of government–when they are what lawyers call “state actors”–the Establishment Clause of the First Amendment prohibits them from using their governmental authority to impose their religious beliefs on others.

That’s why a sectarian prayer from the Speaker’s Podium at the Statehouse violates the Establishment Clause, but a group of legislators voluntarily praying in the back of the chamber or on a street corner is protected by both the Free Exercise and Free Speech clauses of that same Amendment.

When you are acting as a private citizen, you can pray or proselytize to your heart’s content.

When you are acting as a representative of the government of all the people, you can’t.

It isn’t rocket science.

 

Religious Liberty? Hardly.

Historians tell us that the Establishment Clause of the First Amendment went through more than 20 drafts, with the Founders rejecting formulations like “there shall be no National Church.” The Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” The courts have uniformly held that this language not only forbids the government from establishing an official religion or state Church, but also prohibits government actions that endorse or sponsor religion, favor one religion over another, or that prefer religion to non-religion, or non-religion over religion.

In other words, government is prohibited from playing favorites–from either benefitting or burdening citizens based upon their beliefs or lack thereof.

There’s constitutional principle, and then, of course, there’s real life.

A woman named Margaret Doughty, who has lived in the U.S. for 30 years, recently applied for US citizenship. One of the standard questions asked of applicants is  whether they would be willing to take up arms to defend the country. According to Ed Brayton over at Dispatches from the Culture Wars, Doughty replied as follows:

“I am sure the law would never require a 64 year-old woman like myself to bear arms, but if I am required to answer this question, I cannot lie. I must be honest. The truth is that I would not be willing to bear arms. Since my youth I have had a firm, fixed and sincere objection to participation in war in any form or in the bearing of arms. I deeply and sincerely believe that it is not moral or ethical to take another person’s life, and my lifelong spiritual/religious beliefs impose on me a duty of conscience not to contribute to warfare by taking up arms…my beliefs are as strong and deeply held as those who possess traditional religious beliefs and who believe in God…I want to make clear, however, that I am willing to perform work of national importance under civilian direction or to perform noncombatant service in the Armed Forces of the United States if and when required by the law to do so.”

Seems like a heartfelt and entirely acceptable position to me, but no. The immigration service responded by demanding that she “submit a letter on official church stationery, attesting to the fact that you are a member in good standing and the church’s official position on the bearing of arms.” In other words, unless she can demonstrate an affiliation with an established church with an established position on the bearing of arms, this 64-year-old woman cannot become a citizen.

The official position of the immigration service, evidently, is that atheists cannot have moral objections to killing other humans. (Nor, presumably, can members of churches without “official positions” against violence. If you are a Quaker, okay; if you are a Presbyterian or a Jew, not so much.)

When the U.S. still had a military draft, this same approach imposed a real burden on conscientious objectors who could not claim membership in a pacifist congregation. Eventually, the courts agreed that personal moral positions would be deemed adequate–but only if the individual claiming conscientious objector status could “prove” that he had long harbored such compunctions. Members of religious congregations could simply verify that membership; non-members and non-believers had to provide “clear and convincing” evidence of their beliefs, by bringing in people who would testify to past conversations, letters they’d written expressing pacifist sentiments, or the like.

You might think about that, and about Margaret Doughty, the next time some rightwing pundit whines about the advance of the secular hordes, or the (non-existent )”war on Christianity.”