January 2023 Church & State Magazine - January 2023

Glancing Back And Looking Ahead: 2022 Saw Unprecedented Assaults On Church-State Separation. Here’s How Americans United Responded – And A Glimpse At What Waits In 2023

  Glancing Back And Looking Ahead: 2022 Saw Unprecedented Assaults On Church-State Separation. Here’s How Americans United Responded – And A Glimpse At What Waits In 2023

Editor’s Note: This story examines 10 crucial church-state developments of 2022, with an emphasis on Americans United’s activities. Versions of these items originally appeared on AU’s “Wall of Separation” blog last month. You can read the blog online at au.org/the-latest/wall-of-separation/. To read stories in back issues of Church & State, go to au.org/the-latest/church-state/.

Americans Say They Want To See The Johnson Amendment Enforced

The American people made one thing clear in 2022: They don’t like it when partisan politics invades our houses of worship. A poll released Oct. 27 by the Pew Forum found that 77% oppose houses of worship intervening in partisan politics by endorsing or opposing candidates for public office. That number has actually increased in recent years.

But here’s another thing that’s clear: The Internal Revenue Service (IRS) has not been very diligent in enforcing the federal law that bars partisan politicking by nonprofits.

That law is called the Johnson Amendment. It’s named for former President Lyndon B. Johnson, who sponsored it when he was a U.S. senator in 1954. The provision covers all nonprofits that hold 501(c)(3) tax-exempt status, which includes houses of worship.

Polls show Americans oppose pulpit politicking (Getty Images)

The IRS put increased emphasis on enforcing the Johnson Amendment and educating nonprofits about it in the 1990s. One church lost its tax-exempt status, and a few others were warned about activities that crossed the line. But for various reasons, by the end of the 2000s, the IRS’s enforcement and educational activities dried up. Then Donald Trump, in his efforts to garner the support of Christian nationalist leaders, constantly attacked the Johnson Amendment during his presidency, sowing disinformation and confusion about the law.

A recent report by the Texas Tribune and ProPublica was headlined, “Churches are breaking the law and endorsing in elections, experts say. The IRS looks the other way,” which pretty much sums up the situation. The story quoted AU’s Andrew Seidel about the dangers to the integrity of our elections and nonprofits if the law is not enforced: “If you pair the ability to wade into partisan politics with a total absence of financial oversight and transparency, you’re essentially creating super PACs that are black holes.”

In May, Americans United wrote to the IRS and urged officials there to look into the activities of Pastor Greg Locke, a Tennessee religious leader and Christian nationalist extremist best known for burning books in bonfires.

During a May 15 sermon, Locke told his congregation, “You cannot be a Christian and vote Democrat in this nation” and “If you vote Democrat, I don’t even want you around this church. You can get out.”

Violations of the Johnson Amendment don’t come much clearer than that. If the IRS, which received a huge influx of new funding under the Inflation Reduction Act, is looking to reinvigorate its enforcement of the amendment, that’s a good place to start.

The American people are waiting. (RB)

Read More About It: For a profile of Christian nationalist pastor Greg Locke, see “Preacher of Christian Nationalism,” October 2022 Church & State.

A Nationally Recognized Church-State Expert And Author Joins AU’s Staff

Andrew L. Seidel, one of the nation’s leading experts in separation of church and state, joined the Americans United staff in 2022, giving AU a new and powerful voice in the fight to maintain separation of religion and government.

Seidel was catapulted into the national spotlight in 2019 with the publication of his book The Founding Myth: Why Christian Nationalism Is Un-American.

It’s a powerful, stunning rebuke to those who claim the United States was founded to be a Christian nation. Marshaling evidence from a variety of sources, Seidel shows conclusively that not only are the values of Christian Nationalism not the foundation of our Constitution, but they’re also often incompatible with it.

In September, Seidel published American Crusade: How the Supreme Court Is Weaponizing Religious Freedom, an indictment of the high court’s adoption of a dangerous theory of religious freedom that exposes people to harm and takes away their rights. Once again, Seidel pulled together a host of evidence to explain how the court’s stance conflicts with our nation’s traditions and history.

Seidel arrived at AU shortly after he co-published a report with the Freedom From Religion Foundation and the Baptist Joint Committee for Religious Liberty about the influence of Christian Nationalism on the Jan. 6, 2021, insurrection at the U.S. Capitol.

Seidel, who joined the AU staff in March as vice president of strategic communications, is an attorney and an author. He graduated cum laude from Tulane University in 2004 with a B.S. in neuroscience and environmental science and magna cum laude from Tulane University Law School, where he was awarded the Haber J. McCarthy Award for excellence in environmental law. He studied human rights and international law at the University of Amsterdam and completed his Master of Laws at Denver University Sturm College of Law in 2011. (RB)

Read More About It: An excerpt from American Crusade appears in the October 2022 issue of Church & State.

Church-State Legislation Moves (And Stalls) In Congress

When the Supreme Court abolished the constitutional right to abortion in June’s Dobbs v. Jackson decision, AU warned that the court’s ultra-conservative bloc was paving the way for more attacks on civil rights.

“The court has opened the door to a nationwide abortion ban. The right to contraception is at risk. So are LGBTQ rights. So is progress on racial justice. Religious extremists and their lawmaker allies are willing to destroy our democracy to force all of us to live by their narrow beliefs. None of our rights are safe,” AU President and CEO Rachel Laser said at the time.

That’s why AU and allies began pushing Congress to take action. We’ve made progress. Last month, the Respect For Marriage Act, which will ensure that the marriages of same-sex and interracial couples are treated with equal respect, became law.

Despite what Christian nationalist opponents claim, the Respect for Marriage Act does not penalize people or religious institutions that oppose same-sex marriage. It essentially maintains the status quo – a necessary step given fears that this conservative Supreme Court could overturn the landmark decisions Obergefell v. Hodges, which gave same-sex couples the nationwide right to marry, and Loving v. Virginia, which gave interracial couples that right.

“The Respect for Marriage Act is a vital step in our nation’s march toward freedom without favor and equality without exception,” Laser told the Associated Press.

Even before the Dobbs opinion dropped, Americans United was part of the coalition that called on Congress to protect abortion access by passing the Women’s Health Protection Act (WHPA), which would establish a statutory, nationwide right to abortion. When Justice Samuel Alito’s draft Dobbs opinion leaked a month early, AU and allies urged the Senate to follow in the House’s footsteps by passing the bill, but the WHPA, while it received a simple majority of 51 votes in the Senate, failed to reach the 60 votes necessary to overcome a filibuster.

“The Senate’s failure to protect nationwide abortion access undermines both reproductive and religious freedom,” Laser said, while promising that AU would continue to take action to protect both religious and reproductive freedom.

Americans United continued to press Congress and the Biden administration to advance laws and policies that support church-state separation, religious freedom and the many issues that depend on them. We will continue to advocate for the Do No Harm Act, which protects religious freedom while ensuring it is not used as a license to harm others; the Equality Act, which expands nondiscrimination protections for LGBTQ people and other vulnerable groups while preventing religious freedom from being misused as a loophole; and policy fixes that we prioritized for the Biden administration in our “Agenda to Restore & Protect Religious Freedom,” such as enforcing the Johnson Amendment and protecting the religious freedom of people who use government-funded social services. (LH)

Read More About It: Read AU’s “Agenda to Restore & Protect Religious Freedom” in the December 2020 issue of Church & State.

Americans United Opposes Discrimination In Foster Care Programs

Americans United and our allies scored an important win in June when our client, Kelly Easter of East Nashville, Tenn., was finally allowed to participate in a federal program to foster refugee children. For more than two years, federally funded, faith-based providers denied Kelly that opportunity because she is a lesbian.

Easter, whom AU represented alongside Lambda Legal and the law firm Orrick, Herrington & Sutcliffe LLP, voluntarily dismissed her federal lawsuit when the taxpayer-funded agency involved – the U.S. Conference of Catholic Bishops (USCCB) – told the federal government it no longer had a religious objection to working with a single lesbian foster parent. It said it will allow Easter the opportunity to provide a safe and loving home for refugee children.

While it was a victory for Easter, it was only a partial win in the broader fight to ensure federal and state governments don’t allow religious discrimination against prospective foster parents by organizations that receive taxpayer funds to care for foster children.

USCCB’s policy may now permit single LGBTQ parents like Easter to foster children, but the agency still discriminates against married same-sex couples like Fatma Marouf and Bryn Esplin. The couple was rejected by a USCCB sub-grantee in Texas because, as a married same-sex couple, they didn’t “mirror the Holy Family” as the agency requires. AU and Lambda Legal represent Marouf and Esplin in their federal lawsuit, Marouf v. HHS. While the federal government has taken some steps in response to our lawsuit, the litigation continues because the government continues to violate the Constitution by denying equal treatment to married same-sex couples and sanctioning religion-based discrimination in federal foster-care programs.

AU also continues to fight in court on behalf of Aimee Maddonna, a Catholic mother of three from South Carolina who was turned away by a taxpayer-funded agency because Maddonna and her family are the “wrong” kind of Christians – they don’t share the agency’s evangelical Protestant beliefs. In November, AU  filed a motion for summary judgment, asking a federal court to rule in Aimee’s favor and stop the federal government and South Carolina from authorizing and encouraging religious discrimination by religious foster care agencies when acting on the government’s behalf.

Aimee Maddonna poses for a photo with two of her children, all look at the camera

Maddonna: A victim of religious discrimination (B. Smith Photography)

In January, AU filed a new lawsuit on behalf of Gabe and Liz Rutan-Ram, a Jewish couple from Knoxville, Tenn., who were unable to adopt a child from Florida when a state-funded agency that provides foster care placement, training and other services on behalf of the Tennessee Department of Children’s Services refused to serve the Rutan-Rams because they are Jewish.

“Liz and Gabe Rutan-Ram were subjected to outrageous and unacceptable religious discrimination because of their Jewish faith,” said AU President and CEO Rachel Laser. “This loving couple wanted to help a child in need, only to be told that they couldn’t get services from a taxpayer-funded agency because they’re the wrong religion. Everyone should be appalled by the treatment they received. Liz and Gabe deserve their day in court, and Americans United intends to see that they get it.”

The case gathered extensive media attention, especially since it was filed amidst the dangerous rise in antisemitism our country is experiencing. AU featured the couple, along with Maddonna, in ads in the Boston Globe and the Los Angeles Times to call out taxpayer-funded antisemitic discrimination and anti-Catholic bigotry.

A state trial court panel ruled 2-1 in June that the Rutan-Rams and other plaintiffs don’t have standing – the right to sue – and thus dismissed the case. AU has filed an appeal. (LH)

Read More About It: A story about Kelly Easter’s lawsuit appears in the December 2021 issue of Church & State. You can read about Liz and Gabe Rutan-Ram’s case in the March 2022 issue. For an overview of Aimee Maddonna’s case, see the April 2019 issue.

AU Targets Abuses Of The Ministerial Exception

Americans United notched several victories this year for our clients who are fighting attempts by religious employers to claim they are above the law.

Many religious employers and Christian nationalist groups are urging courts to adopt an ever-broader interpretation of the “ministerial exception,” which was meant to ensure that houses of worship could freely choose their clergy. These employers want the ministerial exception applied not just to clergy and some private school educators with significant religious duties, but to virtually all employees at religious organizations. The ministerial exception was never intended to give religious employers free rein to discriminate against all workers and ignore civil rights laws.

In August, the 2nd U.S. Circuit Court of Appeals allowed the defamation case of Father Alexander Belya to proceed.

Belya was falsely accused of forging documents to gain a position as Bishop of Miami within his Orthodox denomination. Church officials libeled him and dragged his reputation through the mud in letters and social media posts. The defamation severely hampered his prospects for future employment.

After Belya filed his federal defamation case in August 2020, the defendants argued that the ministerial exception and another esoteric legal concept, the church-autonomy doctrine, shields them from litigation or any requirement to answer for their unlawful behavior in a court of law. The 2nd Circuit disagreed and allowed his case to continue.

Margaret DeWeese-Boyd, a professor of social work at a Christian liberal arts school in Massachusetts, also can continue her case alleging Gordon College denied her a promotion because of her gender and because she challenged the school’s policies toward LGBTQ students.

Gordon College in 2016 denied tenure to DeWeese-Boyd, who has taught at the school for more than 20 years and despite the Faculty Senate recommending her for the promotion. When she sued to challenge this unlawful discrimination, the school claimed it can’t be held liable because of the ministerial exception.

When the Massachusetts courts refused to dismiss DeWeese-Boyd’s case, the school asked the U.S. Supreme Court to weigh in. In February, the Supreme Court declined to take the case, meaning DeWeese-Boyd can move forward with her civil rights claims.

In October, AU announced it will appeal the dismissal of the federal lawsuit brought by Shelly Fitzgerald, a high school guidance counselor fired by Roncalli High School and the Roman Catholic Archdiocese of Indianapolis because she is married to a woman.

Fitzgerald was a loved and trusted guidance counselor for 15 years at her alma mater. In 2018, four years after Fitzgerald married Victoria, her partner of more than two decades, school officials called Fitzgerald into a meeting and said her relationship was contrary to Catholic Church teachings. They gave her four heartbreaking “options”: dissolve her marriage; resign her position; “keep quiet” about why she was being fired until her one-year contract was up and then be let go; or immediately be fired.

When Fitzgerald refused to dissolve her marriage or resign, the school placed her on administrative leave. The school told Shelly in 2019 that her contract would not be renewed; she filed a federal lawsuit later that year.

Shelly Fitzgerald (c) and her family.

On Sept. 30, a federal district court judge wrongly accepted the school’s argument that courts cannot even examine Fitzgerald’s claims because of the ministerial exception. AU is appealing that decision to the 7th U.S. Circuit Court of Appeals. (LH)

Read More About It: Updates on the Fitzgerald case appear in the “People & Events” section of the December 2022 Church & State. For more information about the Belya case, see “People & Events” in the October 2022 issue.

The Supreme Court Overturns The Right To Legal Abortion – And Americans Push Back

After the U.S. Supreme Court voted June 24 to overturn Roe v. Wade, the landmark 1973 ruling that established a constitutional right to abortion, political pundits predicted a backlash.

It was not long in coming. On Aug. 2, residents of Kansas voted to protect abortion rights in the state. Politically, Kansas is a solidly red state, and abortion opponents tried to tilt the vote by scheduling it for a primary election that was likely to attract more conservative voters. Yet the results were lopsided: 59% voted for choice.

Three months later, voters in five more states – California, Vermont, Michigan, Montana and Kentucky – chose to protect abortion rights. It’s clear that this issue is resonating with voters, and some political analysts argue it contributed to the Republican Party’s failure to generate a “red wave” in the midterm elections.

A number of states have either banned abortion outright or placed such strict restrictions on the procedure that it’s available only in rare cases. And despite conservatives claiming they want states to be able to decide when abortion is legal, U.S. Sen. Lindsey Graham (R-S.C.) proposed a nationwide abortion ban, which AU promptly condemned.

Protesters hold large green sign reading "Legal Abortion Nationwide Now!"

Demanding choice: Abortion rights supporters gather in New York (Getty Images)

Some of the state bans are being challenged in court – and there are more cases in the pipeline. Americans United filed a friend-of-the-court brief in a Kentucky case, explaining why abortion bans violate church-state separation.

When Roe was overturned, Americans United President and CEO Rachel Laser vowed, “Religious freedom demands the right to an abortion so people can make their own reproductive decisions according to their own principles. Abortion bans undermine religious freedom by attempting to impose one religious viewpoint on all of us. Americans United is readying religious freedom litigation which will bring this argument to our courts.”

Look for more information about that litigation in the weeks to come. And be assured that Americans United does not intend to remain idle when reproductive freedom policies are governed by the repressive theologies favored by a minority of Americans.

After all, reproductive freedom is religious freedom. (RB)

Read More About It: For an update on how the abortion issue is playing out across the country, see “Canceling Choice,” November 2022 Church & State.

AU Protects The Religious Freedom Of Public School Students

When the Supreme Court ruled that the Bremerton, Wash., School District was wrong to stop a high school football coach from leading coercive prayers with players on the 50-yard line after football games, Americans United called the decision “the greatest loss of religious freedom in our country in generations” and promised to continue doing all we can to protect the religious freedom of public school students.

“Those who seek to undermine our religious freedoms won’t back down and neither will we,” said AU President and CEO Rachel Laser during a press conference that day. “We cannot let this decision deter us. We must work together to save our public schools and hold back this tide of religious extremism from encroaching on everyone’s rights. Make no mistake, after 75 years we are in the fight of our lives. The work Americans United is doing matters more than ever before. And we will never give up. And if our democracy is to survive, we must prevail.”

AU followed through on that promise in a number of ways. Before the summer was over and school began this fall, AU had updated and distributed our “Know Your Rights” guides to ensure parents and students know their religious freedom rights in public schools. A separate guide for educators outlines the responsibilities of public school teachers, as well as their own rights to religious freedom while on the job.

AU noted that the Kennedy v. Bremerton case didn’t change decades of established law that prevents government employees from pressuring students to pray in public schools, or other key cases relating to religion in public schools. It’s still the law of the land that public schools can’t coerce students, have official prayers at school events, teach creationism or other religious doctrines, or display religious iconography or messages on school property.

Americans United also continued its work assisting students and families who believe their religious freedom has been violated in public schools or in their communities to report those violations to us so our attorneys can review them.

Every year, AU attorneys review hundreds of complaints, the majority of them relating to violations at public schools. While much of this work happens behind the scenes so that we can seek quick resolutions out of court and protect our clients, some of our work on behalf of public school families becomes public – such as our letter demanding a Louisiana school district stop including religious content in school programs and events after high school students and their parents reported they were deceived into attending a school-sponsored, faith-based program at a church under the guise of it being a “college and career fair.” We also demanded an investigation into a Tennessee school district after a Jewish family reported antisemitic and proselytizing content.

Americans United also spoke out against religion-based censorship in public schools. From book bans to state laws aimed at suppressing LGBTQ-inclusive content and instruction on the history of racism in America, Christian nationalists and other extremists are trying to inject religion into public schools and force everyone to live by their narrow beliefs.

In Florida, AU launched an investigation into new educational standards that reportedly promote white Christian Nationalism, downplay the importance of church-state separation and whitewash our nation’s history.

Just as we have for 75 years, AU remains committed to protecting secular, inclusive public schools that welcome all students, regardless of their religious beliefs. (LH)

Read More About It: AU’s “Know Your Rights” guides are online at au.org/knowyourrights/.

AU Exposes A Shadow Network Of Religious Extremists

In February and March, as Americans United prepared to argue in front of the U.S. Supreme Court on behalf of the Bremerton, Wash., School District and its students, we watched as a multitude of Christian nationalist organizations and their political allies filed friend-of-the-court briefs in support of the public school football coach asking the court to let him lead coercive prayers with students on the 50-yard line after games.

Some of these organizations are prominent legal groups that stake out Christian nationalist positions in the courts and lobby for federal and state policies that undermine church-state separation. They include First Liberty Institute, the organization that represents the coach, along with Alliance Defending Freedom (ADF), the Becket Fund for Religious Liberty and the Thomas More Society – all of whom AU has squared off against in courtrooms across the country over the years.

Other familiar names included conservative Christian advocacy groups like the Family Research Council and American Family Association and the conservative policy arms of religious denominations like the Ethics and Religious Liberty Commission of the Southern Baptist Convention and the U.S. Conference of Catholic Bishops.

Some of the groups filing briefs were less familiar, but with vaguely similar names and similarly hazy mission statements espousing a fundamentalist Christian view of freedom, faith and family. For instance, five new groups founded by alumni of the Trump administration were represented, with names including Advancing American Freedom, America First Policy Institute, America First Legal Foundation, American Cornerstone Institute and Defense of Freedom Institute for Policy Studies.

All told, most of these groups work to undermine church-state separation, LGBTQ equality, abortion access and reproductive rights, and secular public education. But many are also involved in an array of far-right causes, like refuting the 2020 presidential election results, busting unions, denying climate change, blocking gun safety measures and fighting against a livable minimum wage, to name just a few. A few have been exposed for promoting dangerous anti-Muslim and/or anti-immigrant rhetoric.

In total, they form an incredibly well-funded, politically connected Shadow Network working both in the public square and behind the scenes to cement their power and privilege even as their ideology is supported by only a small minority of Americans. They are trying to reforge the foundational principle of religious freedom into a sword that forces everyone to live by their beliefs, rather than maintaining it as a shield that protects freedom and equality for everyone. (LH)

Read More About It: Read a cover story on the Shadow Network in the November 2022 Church & State.

The Supreme Court Unleashes An Assault On Church-State Separation

Within the space of a few weeks in 2022, the U.S. Supreme Court unleashed a devastating series of assaults on church-state separation.

The attack began in earnest on June 21, when the high court ruled that taxpayers in Maine could, under certain conditions, be required to support private religious education. Three days later, the court struck again, ditching 49 years of precedent by overturning Roe v. Wade and declaring there is no constitutional right to abortion. On June 27, the court issued another appalling opinion, ruling that a public high school football coach in Washington state had the right to pray at the 50-yard line after games, even though students felt compelled to join.

This trifecta of alarming rulings, along with an earlier decision compelling officials in Boston to fly a Christian flag over city hall, greatly eroded the church-state wall – AU President and CEO Rachel Laser called it the “greatest loss of religious freedom in our country in generations.”

Image of the United States Supreme Court on a sunny day

Crime scene: The Supreme Court attacked church-state separation in 2022 (Getty Images)

If there’s a silver lining here, it’s that these disturbing decisions laid bare all that’s at stake for the American people – and they demonstrate how Christian Nationalism has invaded the highest court in the land. Americans don’t agree with what the Supreme Court has done. Polls show support for separation remains high. The Pew Forum noted this year that its recent surveys make it clear “that there is far more support for the idea of separation of church and state than opposition to it among Americans overall.”

So where do we go from here? Americans United is calling for a national recommitment to separation of church and state. We must say bluntly that these Supreme Court decisions are wrong: They are wrong for the America we are, and they’re certainly wrong for the America we are becoming. As pluralism in the U.S. expands and growing numbers of our people step away from organized religion, court rulings extending preference and privilege to conservative Christianity and embracing a theory of religious freedom that subjects others to harm or reduces their rights will be increasingly unworkable.

Americans United intends to do all it can to ensure that these rulings are aberrations that won’t long mar our legal landscape and offend our national values. (RB)

Read More About It: The July-August 2022 issue of Church & State contains analysis of the Supreme Court’s church-state rulings.

Americans United Plans For The Next 75 Years Of Church-State Separation

Americans United celebrated its 75th anniversary in 2022. The Supreme Court’s attacks on church-state separation weren’t the gift we’d hoped for, but we’re determined to continue the fight. AU has been at this for three-quarters of a century and has no intention of backing down.

With that thought in mind, in 2022 AU unveiled or stepped up several new campaigns and projects:

The Summit for Religious Freedom: This event, which will take place April 22-24, 2023, in Washington, D.C., and online, will bring together activists, scholars, political leaders, clergy and others to make it clear that church-state separation protects a number of issues including LGBTQ+ rights, reproductive rights, racial justice, public education, the freedom to read and learn, and more. The SRF is designed to equip attendees with the tools they need to fight Christian Nationalists and their ongoing campaign to force us to live by their narrow beliefs.

AU Legal Academy: 2022 saw the launch of the Legal Academy, an exciting project that aims to train a new generation of lawyers to defend church-state separation, freedom and equality in the years to come. Along with our allies in religious freedom and social justice communities, AU brings experts together to give these young minds an intensive crash course in church-state separation and impact litigation and provide arguments why religious freedom must always be a shield that protects, not a sword that lashes out.

Youth Organizing Fellowship: Every year, Americans United brings together a group of youth activists between the ages of 18-25 who want to learn more about church-state separation and how to advocate for it in their communities. The fellows are trained in gaining or sharpening skills in areas such as communication and public speaking, as well as lobbying and coalition building. They learn to work with people of different faith traditions and backgrounds. They will provide the next generation of leadership to carry forth the battle for church-state separation. (Applications for the 2024 cohort will be accepted in the spring, so if you know young people who might be interested, send them our way.)

AU's current Youth Organizing Fellowship members pose for a photograph wearing matching AU hoodies.

Members of the 2022-23 Youth Organizing Fellowship with AU’s Alicia Johnson (l)

As a reader of Church & State, you know that church-state separation is vital to maintaining religious freedom. The projects described here and others will carry our mission forward. Please share the work of AU with your friends and neighbors who might want to join us. (RB)

Read More About It: Learn more about the Summit for Religious Freedom at www.thesrf.org/. To learn more about the Youth Organizing Fellowship, visit au.org/youthfellows/.

Congress needs to hear from you!

Urge your legislators to co-sponsor the Do No Harm Act today.

The Do No Harm Act will help ensure that our laws are a shield to protect religious freedom and not used as a sword to harm others by undermining civil rights laws and denying access to health care.

Act Now