The Wall of Separation Blog

Taxpayer Funding Of Religion

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America’s religious demographics are changing. A nation that for many years had been predominantly white and Christian is now less of both. Some Christian denominations have experienced steep membership declines as growing numbers of Americans declare that their religion is “none.”

Religion News Service recently examined how this phenomenon might affect the provision of social services through “faith-based” initiatives. The story notes, “As organized religion shrinks, replaced by a spiritually unaffiliated and unorganized demographic known as the nones, how will faith-based charities respond? And who will take their place if they collapse?”

The last question is interesting, but it begs another: Why is our country relying so much on religious groups to help people in need in the first place?

To be sure, a lot of what houses of worship and religious organizations do in this area is voluntary and motivated by a sincere desire to help those who have hit hard times. But much of the growth of faith-based programs was due to government policy. During the 1990s, the federal government and many states began aggressively promoting the idea that religious groups, backed by taxpayer funding, could serve as agents of the government in tackling various social problems such as poverty, substance use disorders, homelessness, chronic unemployment and others.

The idea really took off during the administration of President George W. Bush, who was a big fan of the approach. At the time, Americans United warned of looming problems. We were right. Some religious organizations (chiefly conservative evangelicals) are happy to contract with the government and accept public funding – but they don’t want to serve everyone, they insist on subjecting people to unwanted proselytism during vulnerable points in their lives and they’ll only hire people who share their faith.

Discrimination – on the taxpayer's dime – isn’t uncommon. In recent years, we’ve seen an escalation in the number of tax-funded religious agencies that refuse to serve LGBTQ people, the nonreligious, people who don’t go to the “right” church and others who don’t pass a religious litmus test. (For an example of this, see the case of Aimee Maddonna, a Catholic woman in South Carolina who was denied the opportunity to volunteer with a taxpayer-funded foster care agency because she couldn’t sign the evangelical Protestant statement of faith that the agency requires. AU is suing on her behalf.) Trump administration policies, which can leave vulnerable people bereft of services, are only making matters worse.

The Supreme Court, now even more conservative with Amy Coney Barrett on it, may give its blessing to tax-funded faith-based groups even if they discriminate. (A case like that is pending.) But if current demographic trends continue, sooner or later our nation will have to face the issue of whether faith-based initiatives are the best way to provide a range of social services in a country of 328 million.

Many nations have found ways to help their citizens without compelling them to rely on religious entities where their rights may be violated. It’s time for the United States to do the same and ensure that the rights of those in need are fully protected.

Issues

Government-Funded Discrimination

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faith-based initiative

Barrett And Senate Republicans Prioritize Her Religious Freedom Over Mine

boston — Tue, 27 Oct 2020 13:30:10 +0000

Barrett And Senate Republicans Prioritize Her Religious Freedom Over Mine boston Tue Oct 27, 2020 - 09:30

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By Claire Davidson Miller

Claire Davidson Miller is a member of Americans United’s Youth Organizing Fellowship. She is a senior at Brown University.

Watching Amy Coney Barrett’s confirmation hearing, my roommate remarked, “This might be the first time I’ve felt like a religious minority in America.” I could not agree more. Despite the fact that Jews make up only around 2% of the U.S. population, I have almost never felt alienated because of my Jewish identity. Yet, Barrett’s confirmation hearings underscored how, despite the promise of the First Amendment, the United States often extends preference to Christianity. The experience highlighted for me the ways in which my religious freedom is under attack.

Throughout four days of hearings, Barrett only mentioned religious freedom for Jews once, and she did not discuss Muslims at all. In fact, both Barrett and the Republican senators who threw her softball questions seemed focused on the purported religious freedom of only one American: Amy Coney Barrett.

If the rhetoric surrounding Barrett’s nomination hearing is any indication, the Republican leadership of this country only cares about “religious freedom” when it can be claimed as a tool for those who want to impose their religious beliefs on wider society. Neither Barrett -- nominated to the very court that rules on religious freedom -- nor the Republican Senate majority elevating her there, actually understands what religious freedom means.

Of course, Barrett should never be barred from holding any position because of her personal beliefs. At the same time, however, she should not be given the means to impose those beliefs on others. As AU likes to say, religious freedom is a shield, not a sword.

To speak frankly: Barrett’s appointment to the Supreme Court threatens the religious freedom of millions of Americans. For instance, she will attempt to use claims of “religious freedom” as a weapon, in order to take away the right to abortion, which would actually impede the ability of Jews to follow our own religious teachings.

Not only does Jewish tradition permit abortion, but in some cases, it actually mandates it. The Talmud (central collection of Jewish law) cites a view that “until forty days from conception” the fetus is considered to be “mere water” and not in any way a living being (Yevamot 69b). Even as the pregnancy progresses, Judaism prioritizes the life of a mother over the potential life of a fetus, with the Talmud telling us that pregnancies can be terminated if they endanger the life of the mother (Sanhedrin 72b). In fact, one of the greatest Jewish sages of all time, Maimonides, permits abortion up until the moment of birth, if giving birth will kill the mother (Mishneh Torah).

While these texts I’ve just cited are centuries and millennia old, contemporary rabbis continue to permit abortion when the pregnancy causes detriment to a mother. One modern expert on Jewish medical ethics, Rabbi Eliezer Yehuda Waldenberg, reinforced the fact that “if there is a danger to the mother from continuing the pregnancy, one should permit abortion without hesitation.” More importantly, perhaps, he emphasized that “if her health is poor...or to relieve her from great pain, it is necessary to abort the fetus, even if she is not in actual danger” (Tzitz Eliezer 9:51 Chapter 3). Note the wording here: Whether or not a pregnant person’s life is endangered, Judaism not only permits, but requires, the termination of a pregnancy which causes harm to the person carrying it.

Of course, there is no unanimous “Jewish view” on almost any issue, and not all Jews ascribe to the exact teachings on abortion I have laid out here. That being said, there is no Jewish text, law, or teaching to suggest that life begins at conception or that abortion should be outlawed entirely.

It is not that Judaism places a lower premium on life than other religions; in fact, Jewish texts teach us that “one who takes the life of another, it is as though he has destroyed an entire world, and one who saves the life of another, it is as though he sustains the entire world” (Mishnah Sanhedrin 4:5). Take a moment to reflect on that: Judaism considers each person a world unto himself, such that even a single unjust death is equivalent to the destruction of the entire world. This is a value placed on life so high that it is nearly impossible to understand. And it is because Judaism values life over all else, that we know lives must be protected, and that forcing people to carry unwanted or health-endangering pregnancies runs contrary to this principle.

Not only does Barrett seek to misuse religious freedom as a weapon to undermine the rights of millions of pro-choice Americans, but in doing so she will also undercut the freedom for Jews to follow the precepts of our religion.

Consider this a call to action. Not only must we keep fighting to ensure that religious freedom cannot be used to harm others, but we must also broaden our definitions of religious freedom. We must recognize that simply because some claim “religious freedom” as a tactic to undermine certain rights, such as the right to have an abortion, does not mean that all religions hold similar doctrines. We must recognize that those who pushed through Barrett’s confirmation were trying to convince us that it is her religious freedom that is currently under attack, rather than ours. We must not let them succeed.

Photo: Amy Coney Barrett is sworn in during a White House ceremony. Screenshot from C-SPAN

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AU’s Youth Fellows: Barrett’s Views On Religious Freedom, Health Care Will Harm Our Communities

LHayes — Mon, 26 Oct 2020 20:16:36 +0000

AU’s Youth Fellows: Barrett’s Views On Religious Freedom, Health Care Will Harm Our Communities LHayes Mon Oct 26, 2020 - 16:16

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During the Supreme Court confirmation hearings of Amy Coney Barrett, the issue of church-state separation was in the national spotlight. Adding Barrett's extreme views to the Supreme Court's conservative majority has implications that can affect the quality of life of many Americans in different ways. As members of Americans United’s Youth Organizing Fellowship, we offer our perspectives on how the disregard for church-state separation, unchecked religious extremism, and an ultra-conservative Supreme Court will affect the lives of diverse Americans.

Katie Fleischer, Smith College

One thing has become very clear as Republican leaders rush to confirm Barrett to the Supreme Court during the 2020 presidential election: They see religious freedom as a weapon to use against me, my communities and anyone who has different moral beliefs than they do. As a queer woman, my existence, relationships and rights are constantly under attack from far-right groups, many of whom attempt to use their religious beliefs to legislate my community out of existence.

Barrett is no exception. She has a history of being openly hostile toward LGBTQ people, and would likely vote to overturn the right to marriage equality, as well as LGBTQ nondiscrimination protections. I spent the first 15 years of my life knowing that I wouldn’t be able to marry or start a family with a same-gender partner, before Obergefell v. Hodges. Barrett criticized that opinion, demonstrating she wants to return to that time and force millions of people back into the closet. Religious freedom is never an acceptable reason to discriminate against marginalized groups.

Sophia Kics, University of Notre Dame

As a student at the University of Notre Dame, the same dangerous ideology that Barrett uses to interpret the law dictates the lives of myself and my peers on our campus. And I can attest that it doesn’t in any way, shape or form work for anyone.

In addition to (unfortunately) being the institution from which Barrett graduated law school and taught for many years, the University of Notre Dame upholds a certain worldview that doesn’t represent the view of many of its students. From the incredibly well-funded DeNicola Center for Ethics and Culture that uses vague language around “morality” and “ethics” to advance an anti-abortion agenda, to the utter lack of sexual health resources on campus, and even to the admissions quota that requires a certain proportion of admitted students identify as Catholic and/or as legacies (i.e. wealthy and white), I think it is fair to say that this is the version of the United States that Barrett and her ideological base desire. Even more blatant evidence of their support for eroding church-state separation can be found in a tweet on Notre Dame’s official Twitter account praising the July 2020 Supreme Court ruling that allowed the Trump administration to permit employers and universities to cite their religious beliefs to deny workers and students birth control access. Notre Dame’s contained campus provides a terrifying example of what is to come across the United States if Barrett is to be confirmed to solidify a conservative Supreme Court.

Claire Davidson Miller, Brown University

If I learned one thing from Barrett’s confirmation hearings, it was that neither she nor the Republican Senate majority attempting to push through her confirmation to the Supreme Court actually understands the meaning of religious freedom (ironically, a freedom guaranteed by the very court to which she will soon be confirmed). In four days of confirmation hearings, the only religious minority whose freedoms were even mentioned was the Jewish community, and even then only once.

I am lucky to belong to strong Jewish communities and to religiously diverse communities which are supportive of my religious beliefs and practices. Yet, due to the distortion of religious freedom spurred by the kinds of political polemics exemplified by Barrett’s confirmation hearing, I am never allowed to forget that I am a minority. Furthermore, Barrett’s and the Senate Judiciary Committee’s deep misunderstanding of the meaning and uses of the First Amendment frightens me. How can I expect someone who clearly does not understand religious freedom to protect mine? Frankly, I don’t. And, if Barrett is confirmed to a lifetime appointment on the highest court in the land, I fear the future of religious freedom and protections for my Jewish community, our Muslim siblings, and other religious minorities.

Kevin Chisolm, Howard University

The separation of church and state is an important characteristic of a functioning democracy. A Supreme Court justice who would use religious freedom as a sword to harm others puts millions of Americans at risk of losing not only their civil liberties, but their health care under the Affordable Care Act (ACA) as well, including its requirement of providing contraception.

Of the 20 million Americans covered by the ACA, Black Americans have seen the largest drop in uninsured rates due to the law. During the 2020 coronavirus pandemic, Black Americans have seen disproportionately high infection rates of COVID-19. If the ACA is struck down by the Supreme Court this fall, it would disproportionately leave Black Americans without access to health care during one of the most dangerous stages of the pandemic. This is an example of how Supreme Court decisions can have life or death consequences for the most vulnerable in our society. We must be sure that those we put in positions of power and influence adhere to the important jurisprudential concept of separation of church and state.

Bryant Nguyen, University of Central Florida

Barrett would greatly impact me as a gay Vietnamese person because I’ve had to have many rights granted to me through Supreme Court decisions, like my right to marry. One of the biggest economic privileges that heterosexual individuals had were tax incentives to marry, which were not granted to LGBTQ individuals. This blatant discrimination negatively impacted LGBTQ individuals who were already at an economic disadvantage.

Not only would Barrett’s confirmation affect LGBTQ individuals, her decisions could also affect those with preexisting health conditions. During the Việt Nam war, the U.S. used a chemical herbicide called Agent Orange used to destroy Vietnam’s luscious forests. Today, millions of Vietnamese Americans are negatively impacted by the effects of Agent Orange, as are veterans and children being born today. Without the requirement for health care companies to cover those with preexisting conditions under the ACA, a lot of individuals impacted by this war would not be able to get health care coverage. Both the LGBTQ community and Vietnamese community will be negatively impacted by this regressive ideology.

(PHOTO CREDIT: Screenshot from C-SPAN.)

Issues

Discrimination In The Name of Religion

Discrimination In Health Care

LGBTQ Rights

Marriage Equality

Denials of Health Care

Tags

Honor RBG, Hold the Seat

Amy Coney Barrett Is The Wrong Choice For The Supreme Court

boston — Thu, 22 Oct 2020 13:30:41 +0000

Amy Coney Barrett Is The Wrong Choice For The Supreme Court boston Thu Oct 22, 2020 - 09:30

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The Senate Judiciary Committee voted this morning on the nomination of Amy Coney Barrett to the Supreme Court. As expected, her nomination passed on a 12-0 vote. (The tally was lopsided because Democrats on the committee boycotted the vote to protest the sham process.) It will now move to the floor of the full Senate, with a final confirmation vote expected on Monday.

It’s not too late to call your senators and urge them to vote against Barrett. As Americans United noted in an in-depth report on Barrett (which we’ve continued to update as more information about her record has become available), she’s hostile to church-state separation, and giving her a lifetime seat on the nation’s highest court would place the rights of women, members of the LGBTQ community, non-Christians, non-believers and others in jeopardy.

During her confirmation hearings, Barrett described the late Justice Antonin Scalia, a vociferous opponent of church-state separation, as her inspiration and mentor. She also expressed support for finding a way to “better organize” the religious freedom provisions of the First Amendment – another way of saying rewrite them. AU’s report contains many other examples that document Barrett’s dangerous views on separation of religion and government.

Not only is Barrett the wrong choice for the Supreme Court, but the Senate is rushing ahead with this sham process to confirm her when we’re in the midst of a presidential election. The Senate should let the American people decide what type of justice they want on the Supreme Court and not confirm anyone until the next presidential term begins in January.

Please contact your senators and tell them to oppose Barrett’s nomination.

Photo: Screenshot from C-SPAN

Issues

Senate Judiciary Committee

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Amy Coney Barrett

Supreme Court

Antonin Scalia

New Poll Gauges Americans’ Belief In The ‘Christian Nation’ Myth

boston — Wed, 21 Oct 2020 13:05:21 +0000

New Poll Gauges Americans’ Belief In The ‘Christian Nation’ Myth boston Wed Oct 21, 2020 - 09:05

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History and Origins of Church-State Separation

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Public Religion Research Institute (PRRI) issued its 2020 survey of American values earlier this week. There’s a lot to chew on, but three questions especially leap out at readers who have an interest in church-state issues.

PRRI asked respondents about their views on religious diversity. People taking part in the survey were asked to put themselves on a 10-point scale. At one end was the statement, “I would prefer the U.S. to be made up of people belonging to a wide variety of religions” and at the other end was the statement, “I would prefer the U.S. to be a nation primarily made up of people who follow the Christian faith.”

Most Americans backed pluralism, but the numbers are not as high as you might think. PRRI reports that 38% mostly agree with the statement backing diversity, while 25%would prefer that the nation be mostly Christian. The rest, 36%, fall somewhere in the middle.

PRRI also asked respondents if they believe the United States is a Christian nation. This is an interesting question because that term can be defined in different ways. Some people really do believe (incorrectly) that our Constitution singles out Christianity for special preference. Others just believe the nation is culturally Christian.

PRRI found that 36% say the country is a Christian nation. An additional 40% say America was once Christian but no longer is. Only 22% agree with the statement that the United States has never been a Christian nation. (The good news is that belief in America as a Christian nation is declining; in 2016, it stood at 41%.)

Finally, PRRI asked people if they believe God has granted America a special role in human history. This can be a dangerous belief because if one accepts that we are God’s favorite nation with a divine destiny, it becomes difficult to face up to our wrong-doings.

Nevertheless, 40% of Americans believe that God has granted our nation a special role in history, while 58% disagree. PRRI reports that this is the first time since it asked this question in 2011 that a majority has rejected the idea of a God-ordained special role for America. And the number of people who strongly disagree with that notion has doubled.

Polls like this are interesting, but public opinion can’t hold back the tide of change that is washing over the country. The nation is becoming more diverse, with growing numbers of Americans declaring that they have no formal religion. Nor can a belief, no matter how strongly held, rewrite our nation’s history.

The United States was never intended to be an officially Christian nation; rather, it was designed as a haven for people of all faiths and none. That is our proud heritage, and we should not hesitate to embrace it.

Issues

Public Religion Research (PRRI)

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Christian nation myth

polls

Texas ‘Cowboy’ Pastor Rustles Up A Blatant Violation Of Johnson Amendment

boston — Tue, 20 Oct 2020 12:49:36 +0000

Texas ‘Cowboy’ Pastor Rustles Up A Blatant Violation Of Johnson Amendment boston Tue Oct 20, 2020 - 08:49

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Discrimination In The Name of Religion

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A few months after he took office, President Donald Trump issued an executive order that he claimed would “get rid of and totally destroy” a provision in federal law that prohibits tax-exempt, nonprofit entities, which includes houses of worship, from intervening in elections by endorsing or opposing candidates for public office.

Trump’s order did no such thing. The provision in question, known as the Johnson Amendment, is a federal law that Trump can’t just magically overturn with a stroke of his pen. His order was a lot of verbiage but didn’t change the law.

But some religious leaders either think it did or have simply decided to break the law. Among them is Pastor Derek Rogers of the Cowboy Church of Corsicana, Texas, who last week told his congregants to vote for Trump while attacking Democrat Joe Biden.

Rogers’ comments, which he posted to Facebook, were not guarded or subtle in any way. During the sermon, he said the following:

“I do not understand how anybody that calls themselves a Christian could vote for the agenda and the platform of Joe Biden.”

“President Trump, he ain’t the greatest dude in the whole world, but he’s the closest thing that we got to what we need. And I’m gonna encourage you. He’s gonna fight for Christianity. He’s gonna fight for everything that we believe in as Christians and the Bible. And the other party is gonna fight to take away every religious freedom and every right we have as Christians.”

“This Democratic Party is not the Democratic Party that your parents voted for or your grandparents voted for. It is an evil monster.”

“I’m just telling you straight up: It matters this year, and if you’re gonna vote as a Christian, and vote for biblical truth, you better vote for Donald Trump so that we can keep America great and keep our religious freedom and our rights as Christians. So I said it.”

That’s about as clean-cut a violation of the Johnson Amendment that you could find. (Hat tip to blogger Hemant Mehta for breaking this story.) Are you listening, Internal Revenue Service?

Thankfully, most religious leaders in America don’t do this sort of thing. They understand that the Johnson Amendment is actually designed to protect houses of worship from being sucked into partisan political machines, and they follow the law. They also know that the majority of Americans – including evangelical Christians and Republicans – don’t support the idea of faith leaders endorsing politicians from the pulpit.

If you want to hear from some of these sensible religious leaders, check out this video of a webinar Americans United hosted recently. I was especially struck by this advice for politicians offered by the Rev. Wendell Griffen of New Millennium Church in Little Rock: “This is a faith community. I do not go to the legislature and hold worship services. And you don’t come to this congregation and hold a political rally. I’ll stay in my lane, and you stay in yours. You’re welcome to come here and worship. But you’re not welcome to come here and politick.”

Rogers and his Cowboy Church could use a big dose of that wisdom.

P.S. You can learn more about the Johnson Amendment and how it protects houses of worship here.

Photo: Pastor Derek Rogers. Screenshot from Facebook.

Issues

Churches and Elections

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Honoring The Legacy Of Bernard Cohen

boston — Mon, 19 Oct 2020 13:30:54 +0000

Honoring The Legacy Of Bernard Cohen boston Mon Oct 19, 2020 - 09:30

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Rebecca Rifkind-Brown

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On Oct. 12, a man named Bernard Cohen passed away from Parkinson’s disease. He was 86.

The name may not ring a bell, but Cohen successfully argued an important case before the U.S. Supreme Court that advanced the rights of millions of Americans and that still reverberates today – Loving v. Commonwealth of Virginia.

In Loving, the Supreme Court struck down state bans on interracial marriages, bans that were, in some states at least, based on racist interpretations of the Bible.

In 1958, Richard and Mildred Loving were arrested in Virginia for violating the state’s ban on interracial marriage. (Richard was white; Mildred was Black and also part Native American.) They had married in Washington, D.C., where interracial marriage was legal but returned to Virginia to live. One night, a sheriff stormed into their house at 2 a.m., informed the couple that their marriage was unlawful and arrested them.

The Lovings originally pleaded guilty to violating Virginia’s Racial Integrity Act of 1924 and, to avoid prison, agreed to leave and not reenter the state for 25 years. Unhappy away from their home, the couple reached out to U.S. Attorney General Robert F. Kennedy who connected them with the American Civil Liberties Union and to Cohen, who took on the case as a volunteer lawyer.

The Lovings lost the first round in court, with a state judge issuing a famously inane ruling that read in part, “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”

Along with his co-counsel, Philip J. Hirschkop, Cohen filed a federal class-action suit. The crux of their argument relied on equal protection and due process under the law. While arguing in court, Cohen cogently stated, “No one can articulate it better than Richard Loving when he said to me, ‘Mr. Cohen, tell the court I love my wife and it is just unfair that I can’t live with her in Virginia.’”

On June 12, 1967, the Supreme Court unanimously ruled that laws prohibiting interracial marriage were unconstitutional. The ruling was frequently cited during the 2015 Supreme Court argument over marriage equality in Obergefell v Hodges (a decision that, unfortunately, may now stand in jeopardy).

Cohen was the son of two Jewish immigrants and was born in Brooklyn in 1934. He studied economics at the City College of New York and graduated from Georgetown Law in 1960. He was just seven years out of law school when he argued the monumental case in front of the Supreme Court. Cohen practiced in Arlington, Va., where he specialized in environmental and employment law. He also served in the Virginia House of Delegates for nearly 20 years, representing sections of Arlington.

Bernard Cohen helped change American history and expanded rights. Thanks to his courtroom work, an injustice was corrected, and a religion-based justification for discrimination was repudiated. It’s a powerful legacy, and we should honor it today by continuing to oppose efforts to allow discrimination under the guise of religious freedom.

Photo: Bernard Cohen (left) and Philip J. Hirschkop during a 1967 ABC News interview.

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Lawsuits

Join AU For A National Call-In Day To Support Church-State Separation And Oppose Barrett

boston — Thu, 15 Oct 2020 12:55:53 +0000

Join AU For A National Call-In Day To Support Church-State Separation And Oppose Barrett boston Thu Oct 15, 2020 - 08:55

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Americans United and several of its allies will be taking part in an effort tomorrow to generate as many calls as possible to U.S. senators urging them to vote against the confirmation of Amy Coney Barrett to the Supreme Court. We hope you’ll join us!

The event is a National Call-In Day for Church-State Separation. You can participate by calling your senators and asking them to oppose Barrett’s confirmation. We’re using a simple “click to call” tool that gives you everything you need to make the call. The tool will connect you with the offices of your senators based on your address and even provides a sample script of what to say. (If you’d rather not use the tool, you can contact your senators by calling the Congressional Switchboard at (202) 224-3121.)

We’ve also have put together a toolkit of materials, including social media graphics, sample emails and tweets so you can help us spread the word. For Twitter fans, the hashtag is #OurCourt.

During the National Call-In Day for Church-State Separation, we want to spread that message that while Barrett’s personal faith is not relevant, her record certainly is – and that record is alarming. Barrett does not respect the constitutional principle of separation of religion and government. If she secures a lifetime seat on the high court, she could jeopardize the rights of LGBTQ people, people seeking access to birth control, religious minorities, the non-religious and others. (Read more about Barrett’s disturbing record in this report prepared by Americans United.)

Several allied organizations will be joining Americans United in this effort, among them American Atheists, American Ethical Union, American Humanist Association, Freedom from Religion Foundation, Jews for a Secular Democracy and Secular Coalition for America.

Please lift up your voice by taking part!

P.S. If you have any questions, feel free to email us at field@au.org.

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Amy Coney Barrett Wants To ‘Better Organize’ Religious Freedom. Let’s Pass On That.

boston — Wed, 14 Oct 2020 13:09:28 +0000

Amy Coney Barrett Wants To ‘Better Organize’ Religious Freedom. Let’s Pass On That. boston Wed Oct 14, 2020 - 09:09

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A telling moment occurred yesterday during the Senate Judiciary Committee’s hearing for Supreme Court nominee Amy Coney Barrett. She said something that makes it pretty clear that she’s eager to begin rewriting church-state law.

The comment came as Barrett was being questioned by U.S Sen. John Cornyn (R-Texas), who asked Barrett about school-sponsored prayers before public school football games, an issue that reached the high court in 2000. Barrett invoked her mentor, Justice Antonin Scalia, for whom she clerked in 1998.

“When I interviewed for my job with Justice Scalia, he asked what area of the court’s precedent that I thought, you know, needed to be better organized or that sort of thing. And off the cuff I said, ‘Well, gosh, the First Amendment.’ And he said, ‘Well, what do you mean?’ And I fell down a rabbit hole of trying to explain without success -- because it is a very complicated area of the law -- how one might see one’s way through the thicket of balancing the Establishment Clause against the Free Exercise Clause. It’s a notoriously … difficult area of the law. And to that, you know, there is tension in the court’s cases -- and I’m giving you no better an answer, I assure you, than I did to Justice Scalia that day. It’s been something that the court has struggled with, you know, for decades to try to come to a sensible way to apply both of those clauses.”

For those of you who aren’t attorneys, the religious freedom provision of the First Amendment is 16 words long: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof….” Members of the legal community often call the first part of that the Establishment Clause and the second part the Free Exercise Clause.

Conservatives love to pretend that these two clauses are at perpetual war with one another, but the claim makes no sense. The founders would not have given us a religious freedom provision with such inherent conflicts.

To the extent that there is conflict, it came about because conservative courts have refused to accept the meaning of the Establishment Clause. In 1971, the Supreme Court fashioned a test designed to ensure that church-state separation would be followed. This test, called the Lemon Test for the case that spawned it, Lemon v. Kurtzman, holds that church-state separation is violated if a law violates any of these three conditions: the law fails to have a legitimate secular purpose; the law has the primary effect of advancing or inhibiting religion; the law fosters excessive entanglement between church and state.

The Lemon Test held sway for a few years, but conservatives on the high court began chipping away at it during the 1980s. That trend accelerated in later years. Although it has never been explicating overturned, the test is clearly on judicial life support today.

A favorite trick of judicial opponents of church-state separation is to take an established precedent, undermine it and then complain that it doesn’t work and must be overruled. Barrett has employed a euphemism – she wants to “better organize” the First Amendment’s religious freedom provisions – but no one should be fooled. She’s advocating for rewriting church-state law.

No thanks! Our country’s religious freedom provision was organized perfectly well when it was written. Barrett and others would do well to remember the words of Vice President Walter Mondale who in 1984 remarked, “Today, the religion clauses of the First Amendment do not need to be fixed; they need to be followed.”

P.S. You can read more about Barrett’s alarming views on church-state separation in this report prepared by Americans United. And please tell your senators to oppose her nomination.

Photo: U.S. Sen. John Cornyn questions Amy Coney Barrett. Screenshot from C-SPAN.

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