February 2018 Church & State - February 2018

One Organization, Seven Decades, Ten Epic Battles

  Rob Boston

Americans United for Separation of Church and State was formed by a coalition of leaders from religious, educational and fraternal communities late in 1947. Last year, the organization celebrated seven decades of activism.

By 1948, AU, fully staffed and head­­­quartered in Washington, D.C., was taking on a host of church-state battles – and people were taking note. A front page article in The New York Times that ran on Jan. 12, 1948, was headlined “New Body Demands Church Separation.”

This year, Americans United marks the 70th anniversary of its first full year of work in defense of the church-state wall. As such, it’s the perfect time to step back and consider some of the great church-state battles from days gone by. A lot has happened since the late ’40s, and it’s always going to be a subjective exercise to pluck 10 incidents from a period that long, but here’s our modest effort to revisit some of those struggles – and highlight the role AU played in them. (They are listed in loose chronological order.)

Issue: Access To Birth Control Comes Under Fire Years: 1948-65

What Happened: Access to birth control was a major issue when Am­er­i­cans United was founded. Several states (especially in heavily Rom­an Catholic areas such as New England) had laws on the books that barred distribution of birth control – and information about it – even to married couples.

Doctors were often gagged. If a couple asked for help in limiting the size of their family, physicians in some states were not allowed to suggest anything other than “natural” family planning.

AU used Church & State to educate Americans about what was going on. Early issues of the magazine are full of stories about clerical efforts to limit access to contraceptives. The July 1949 issue, for example, reported on four doctors at a hospital in Greenfield, Mass., who were fired because they would not stop publicly advocating for changing a state law that banned contraceptives.

AU highlighted the severity of some of these laws and the heavy handed clerical interference that kept them on the books. In June of 1953, Church & State reported that legislators in Connecticut had, for the 14th time, killed a bill that would have allowed doctors to give information about birth control to married women whose health would have been endangered by new births. The state’s powerful Catholic hierarchy had lobbied against the measure.

In 1965, when the Supreme Court struck down Connecticut’s anti-contraception law in Griswold v. Connecticut, AU praised the ruling, noting that its effects “have been positive and prodigious.”

Where We Are Now: Unfortunately, this issue has reared its head again in recent years in a different form. Some for-profit businesses, colleges and nonprofits have insisted that they shouldn’t have to include birth control coverage in employee health care plans, despite a provision in the Affordable Care Act that mandates that contraceptive care be included in most cases. The Trump administration is trying to make it easier for nonprofits and universities to drop contraceptive coverage entirely. Americans United and its allies are suing to stop this. See “Contraceptive Clash,” December 2017 Church & State.

Issue: The Supreme Court Rules On Prayer In Public SchoolsYears: 1962-63

What Happened: In 1962, the Supreme Court issued a landmark ruling striking down a New York law that allowed public schools to require students to recite a government-composed prayer every day.

The case, Engel v. Vitale, was widely misunderstood, and some commentators insisted that the high court had removed all religious expression from public schools. In fact, the decision only affected compulsory, school-sponsored prayer programs. Students remained free to pray voluntarily.

In the wake of the decision, AU moved quickly to correct the record. In a statement, the group observed, “We predict that when the current wave of emotion has subsided the Court’s decision in Engel v. Vitale will loom as a landmark of religious freedom.”

An editorial in Church & State also appealed for calm. “When a group of public officials in New York State made up a prayer for use in the schools, they were establishing a religious exercise and therefore what they did violated the First Amendment of the Constitution which forbids this,” it read. “That was what the Court said. Whence, then, this hullabaloo about the triumph of materialism, Communist takeover, comfort to Karl Marx, complete secularism, insult to God and the like? Your guess is as good as ours.”

The following year, when the Supreme Court issued a similar ruling invalidating mandatory Bible reading in public schools in Abington Township v. Schempp, AU again issued statements noting that the decision had merely struck down compulsory religious exercises.

But AU did more than issue statements. It took the lead in opposing several school prayer amendments that were introduced in Congress in the wake of the Engel and Schempp rulings. The issue dragged on for years, but in the end, these amendments were all defeated. (AU’s Legal Department also sponsored litigation to buttress the school prayer rulings.)

Where We Are Now: The issue of the proper role of religion in public schools soon became central to AU’s work. Through litigation, lobbying and educational efforts, AU works to remind Americans that while public schools may not impose religious worship onto youngsters, students have broad rights to pray, read religious texts and engage in other religious activities as long as these activities are freely chosen and non-dis­rup­tive.

In the mid-1990s, AU stepped up its work in this area after a new school prayer amendment surfaced in Congress. Cooked up by House Speaker Newt Gingrich (R-Ga.) and U.S. Rep. Ernest Istook (R-Okla.), the so-called “Religious Freedom Amendment” grew to include other issues; had it passed, the amendment would have severely weakened the church-state provisions of the First Amendment, if not removed them entirely. AU and its allies worked overtime to oppose the reckless provision. The amendment received a vote in the House on June 4, 1998. It garnered a simple majority of 224-203 but fell 61 votes shy of the super-majority required for the passage of a constitutional amendment.

Protecting the religious neutrality of public education remains a key part of AU’s mission.

Issue: The Supreme Court Issues A Pivotal Decision On Taxpayer Aid To Religious SchoolsYear: 1971

What Happened: The Supreme Court in 1971 handed down a ruling in a seminal church-state case called Lemon v. Kurtzman that laid down a crucial three-part standard for determining when a law violates church-state separation.

The lawsuit challenged laws in Pennsylvania and Rhode Island that diverted taxpayer funds to private, religious schools, but the standard it spawned, the “Lemon Test,” has been cited in church-state cases of all types ever since. Under the test, a law violates the religious-freedom provisions of the First Amendment if any one of three conditions is present: the law lacks a valid secular purpose; the law has the primary effect of advancing or inhibiting religion; the law fosters excessive entanglement between church and state.

Although the core findings of Lemon were later somewhat undermined by the high court, it has never been overturned and is still used as a guide by lower courts. Church-state scholars agree that Lemon is one of the most important church-state cases ever handed down by the Supreme Court.

The named plaintiff in Lemon was Alton Lemon, a social worker, civil rights activist and humanist. But there were several organizational plaintiffs as well, and Americans Uni­ted was one of them. (Others included the Pennsylvania Council of Churches, the Pennsylvania Jewish Community Relations Conference, the Pennsylvania State Education Association, the National Association for the Advancement of Colored People and the American Civil Liberties Union.)

Americans United hailed the ruling in the September 1971 Church & State, writing, “The impact of the Lemon … ruling will be widely felt. It has struck a blow to clericalist ambitions and heartened the sometimes weary and harried defenders of church-state separation and religious liberty.”

Where We Are Now: Lemon has buttressed the church-state wall for decades. The decision also drew the ire of many conservatives. Justice Antonin Scalia once likened it to “some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.” The decision is still cited by lower courts, but its fate remains precarious; the next few years could be crucial for its long-term survival.

Issue: Voucher Referenda Occur In The StatesYears: 1967-2016

What Happened: Since the late 1960s, advocates of taxpayer aid to religious schools have tried repeatedly to use the ballot box to win support for their ideas. They’ve been defeated every time, and Americans United has played a high-profile role in all of these battles.

The proposals took on many forms. Some would have established voucher plans in the states outright, while others would have paved the way by removing provisions in state constitutions that bar the diversion of tax aid to religion.

In every case, AU worked with its allies in the education, religious and civil liberties communities to defeat these dangerous proposals. Often, voters trounced them by wide margins.

Notable examples include: New York in 1967 (72 percent to 28 percent); Washington in 1975 (61 percent to 39 percent); Washington, D.C., in 1981 (89 percent to 11 percent); Massachusetts in 1986 (70 percent to 30 percent); California in 2000 (71 percent to 29 percent); Utah in 2007 (62 percent to 38 percent) and Missouri in 2016 (60 percent to 40 percent).

Where We Are Now: Although vouchers have been defeated at the ballot box time and again – a clear sign that the American people don’t support these plans – lawmakers in several states have nonetheless rammed voucher bills or tax credit schemes through the legislatures. In addition, Washington, D.C., has had a federally funded voucher “experiment” since 2003. Although numerous objective studies of existing voucher plans have shown that they do not boost student achievement, Trump and Education Secretary Betsy DeVos have endorsed the concept. AU continues to oppose these misguided schemes.

Issue: Partisan Politicking Erupts In PulpitsYears: 1988-present

What Happened: A provision in the federal tax code prohibits tax-exempt organizations, including houses of worship, from intervening in partisan politics by endorsing or opposing candidates for public office. Known as the “Johnson Amend­­­ment” for U.S. Sen. Lyndon B. Johnson (D-Texas) who sponsored it in the 1950s, the measure ensures that institutions that receive the benefit of tax exemption remain focused on charitable or educational works that benefit the public, not partisanship.

During the 1988 presidential primary, Americans United noticed that some churches were violating this law. Things came to a head when the Rev. Jesse Jackson announced that he would collect money for his campaign in churches during Sunday services. AU wrote to Jackson and urged him to drop the plan, pointing out that it could jeopardize the churches’ tax-exempt status.

The situation continued to deteriorate, and in October 1992, a church in New York went so far as to place a full-page ad in USA Today advising people not to vote for Bill Clinton for president. AU reported the church to the IRS, which pulled its tax exemption. This was the first time such an action had been taken against a house of worship.

Four years later, AU launched Project Fair Play, a campaign designed to educate religious leaders and the public about what the law requires and, in extreme cases, report abuses to the IRS. Since 1992, AU has reported more than 110 houses of worship and ministries to the IRS for violating the Johnson Amendment.

Where We Are Now: AU put this issue on the map and continues to work on it today. There has been a lot of activity lately. Religious Right groups such as Alliance Defending Freedom urge pastors to openly break the law, and President Donald Trump has vowed to “totally destroy” the Johnson Amendment. Trump even issued an executive order that he claims achieved that goal, but the Justice Department later admitted that the amendment remains in place.

Republicans in the House of Representatives tried to insert language greatly weakening the Johnson Amendment into last year’s tax bill, but the provision did not appear in the Senate version or the final bill that Trump signed into law. AU remains alert because there could be other attempts to undercut the amendment in Congress this year. An important part of AU’s strategy is to rally clergy to defend the Johnson Amendment. Clergy are reminding Americans that partisan politics is not the job of the religious community and pointing out that the amendment protects the integrity of houses of worship.

Issue: Religious Right Attacks LGBTQ RightsYears: 1970s-present

What Happened: The rise of the Religious Right as a political force presented new challenges to the church-state wall and Americans United. These theocratic groups had a wide-ranging agenda. While much of their work focused on getting their dogma taught in public schools, as the ’80s progressed it became increasingly obvious that many Religious Right groups were determined to roll back rights that were being won by the LGBTQ community.

The early Religious Right backlash to gay rights, led by people like singer Anita Bryant, was severe; some proposals were downright vicious. In 1978, a far-right state legislator in California won a spot for a ballot initiative that would have barred gay people and anyone who supported gay rights from teaching in the state’s public schools. The measure was rejected, 58.4 percent to 41.6 percent.

In the face of ugly anti-gay rhetoric by figures like Jerry Falwell and TV preacher Pat Robertson, Americans United began working to highlight the connection between LGBTQ rights and church-state separation. AU argued that U.S. law should not be based on theology, and that the Religious Right had no business policing sexual activity between consenting adults.

A seminal moment for AU occurred in October 1999, when Church & State published a lengthy article titled “The Religious Right’s Gay Agenda,” which exposed how Religious Right groups used homophobia and anti-gay hysteria to raise funds and mobilize support.

After the turn of the century, the issue of marriage equality started to gain traction in some states. Massachusetts recognized it in 2004 after a court battle. Religious Right groups were alarmed, and mobilized to press states to pass laws or amendments to their constitutions stating that valid marriages can exist only between one man and one woman. A number of states adopted such provisions.

The issue moved to the federal courts, which invalidated a number of the anti-marriage equality laws and amendments. In 2015, the Supreme Court ruled 5-4 that measures barring marriage equality violated the Constitution’s Equal Protection Clause.

Americans United filed a brief in that case, Obergefell v. Hodges, pointing out that much opposition to marriage equality is anchored in theological beliefs. AU challenged opponents to articulate a secular reason why same-sex couples should not be permitted to wed, which they could not do.

In the wake of the Obergefell ruling, AU responded to fallacious claims by the Religious Right that cler­­gy would be forced to marry same-sex couples. AU pointed out that under the First Amendment, religious leaders have an absolute right to decide which couples they will marry.

Where We Are Now: AU remains active in the issue of LGBTQ rights. Most recently, the organization has opposed efforts by Religious Right legal groups that are arguing that owners of for-profit businesses and government clerks have a right, based on religious freedom, to refuse service to members of the LGBTQ community and others. A major case dealing with this issue, Masterpiece Cakeshop v. Colorado Civil Rights Com­­mis­sion, is pending at the Sup­reme Court with a decision expected by the end of June.

Issue: An Alabama Judge Promotes The Ten CommandmentsYears: 1997-present

What Happened: In the late 1990s, Roy Moore, a state judge in Etowah County, Ala., came to Americans United’s attention when he attempted, with absolutely no legal justification, to meddle in a lawsuit AU had filed in a federal court in that state challenging a public school’s practices that promoted conservative Christianity. AU also became aware that Moore was displaying a hand-carved Ten Commandments monument in his courtroom.

Moore used the ensuing media ruckus to boost his name statewide and win election as chief justice of the Alabama Supreme Court in 2000. Once on that court, he arranged for a two-ton Ten Commandments monument to be displayed in the Judicial Building in Montgomery.

Representing local plaintiffs, Am­eri­cans United, the American Civil Liberties Union and the Southern Poverty Law Center sued Moore in October 2001. Two federal courts ordered him to remove the religious display, but he defied the rulings until, in 2003, he was removed from his position by the Alabama Court of the Judiciary, an oversight body.

Moore won re-election to the state high court in 2012. Remarkably, he again engaged in open defiance of a higher court. In 2016, the same state judicial oversight body again suspended him from the high court after he told judges in the state to ignore the U.S. Supreme Court’s 2015 decision affirming marriage equality.

Where We Are Now: Portraying himself as a victim, Moore has become something of a folk hero to the Religious Right. Last year he attempted to ride that infamy into the U.S. Senate. Moore won a GOP primary for the seat formerly held by U.S. Sen. Jeff Sessions, who was named attorney general by Trump. Given Alabama’s heavy Republican leanings, many political pundits expected Moore to best his Democratic opponent, Doug Jones, in the Dec. 12 special election. But Moore, battered by allegations that he had sexually harassed and assaulted teen­age girls when he was in his 30s, lost the race by about 21,000 votes. Always a sore loser, Moore hasn’t yet conceded, though Jones was sworn in Jan 3.

Issue: Pat Robertson Devises A Partisan PlotYear: 1997

What Happened: Television evangelist Pat Robertson, founder of the Christian Broadcasting Network, has long been a high-profile opponent of church-state separation. Over the years, he has called that constitutional principle a “lie of the left,” a “Soviet stricture,” and a “myth.”

But Robertson did more than just carp on TV. He formed a legal group, the American Center for Law and Justice, to undermine church-state separation in the courts, and a political unit, the Christian Coalition.

Robertson’s Coalition claimed to be a non-partisan outfit, but it was closely aligned with the Republican Party. In 1997, the group held its annual conference in Washington, D.C., and during this event, Americans United secured a tape recording of Robertson speaking to supporters in a closed-door session. Robertson, assuming that everyone within earshot was a Coalition sympathizer, outlined a highly partisan scheme to merge the Coalition with the GOP and control the party’s presidential nominating process in 2000.

Robertson boasted having told Don Hodel, the Coalition’s president, “My dear friend, I want to hold out to you the possibility of selecting the next president of the United States because I think that’s what we have in this organization. And I believe we can indeed.”

The TV preacher went on to compare the Coalition to infamous political machines, such as Tammany Hall in New York City and the Byrd machine in Virginia, telling attendees, “They had an identified core of people who had bought into the values, whatever they were, and they worked the election and brought people out to vote. The other people were diffuse and fragmented, and they lost and the people that had the core won. I mean, this isn’t complicated, but this is what we’ve got to do.”

Aware that his comments were controversial, Robertson insisted he was “speaking in the family” and added, “If there’s any press here, would you please shoot yourself? Leave. Do something.”

Americans United released copies of the recording to major media outlets, and the story ran in The New York Times, The Washington Post, the Associated Press, CNN and other outlets. It was a significant embarrassment for Robertson, whose spokespeople were left scrambling to ex­plain the tape’s explosive contents.

Where We Are Now: Rob­ert­son eventually pulled his support from the Christian Coalition, and the group shrank into irrelevance. Its place was taken by the Family Research Council, American Family Association and other theocratic groups. As for Rob­ertson, he’s 87 and still pushing his cocktail of right-wing politics and fundamentalist Christianity daily on his TV show “The 700 Club.”

Issue: A Pennsylvania Public School System Pushes “Intelligent Design”Year: 2005

What Happened: A majority of members of the school board in Dover, Pa., had a problem with evolution: They didn’t like it, understand it or want it in the classroom. The board faction knew they couldn’t remove it outright, so they sought equal time for “intelligent design” (ID), a souped-up form of creationism. The board proposed to have teachers read a pro-ID “disclaimer” before evolution was taught and add copies of an ID book to the school library.

Science teachers in the district made it clear that they didn’t support the plan. Americans United and other groups warned the district against implementing it. The board didn’t listen and moved ahead. On behalf of a band of Dover parents and taxpayers, Americans United, the American Civil Liberties Union of Pennsylvania, the National Center for Science Education and the law firm Pepper Hamilton sued.

In December 2005, U.S. District Judge John E. Jones III handed down a powerful 140-page ruling that struck down the policy and eviscerated intelligent design. The case, Kitzmiller v. Dover Area School District, was the first legal test of dressed-up creationist ideas, which ID failed badly.

Observed Jones, “The disclaimer’s plain language, the legislative history, and the historical context in which the ID policy arose, all inevitably lead to the conclusion that Defendants consciously chose to change Dover’s biology curriculum to advance Religion. We have been presented with a wealth of evidence which reveals that the District’s purpose was to advance creationism, an inherently religious view, both by introducing it directly under the label ID and by disparaging the scientific theory of evolution, so that creationism would gain credence by default as the only apparent alternative to evolution….”

The school board’s ID ploy backfired badly, and the district ended up paying $1 million in attorneys’ fees to end the case. Jones’ ruling was not appealed because a few months after it was issued, angry voters in the town ejected the pro-ID faction from the school board and replaced them with moderates who backed sound science education.

Where We Are Now: The Dover case was a crucial win for church-state separation and science instruction, and Jones’ decisive ruling undoubtedly persuaded some public school districts to avoid making Dover’s costly mistake. But it did not put an end to this controversy. Creationist bills continue to appear in state legislatures, and some local districts still teach evolution poorly. Americans United remains vigilant.

Issue: AU Fights The “Faith-Based” Initiative In IowaYear: 2007

What Happened: “Faith-based” initiatives, or the idea that government should give tax money to religious groups to address social ills, first took hold during the presidency of Bill Clinton when the plan was called “charitable choice.”

During the presidency of George W. Bush, the idea got a new name and a much more aggressive push. The concept started growing in some states, too. Americans United believed the time was right for a court challenge.

AU had been contacted by inmates at a state prison in Iowa that was sponsoring a program called InnerChange. Devised by Charles Colson’s Prison Fellowship, InnerChange segregated inmates who were willing to live under a fundamentalist Christian program and put them in a special wing. There they were accorded certain privileges, including a fast track to parole.

Americans United brought suit against the plan. In 2007, the 8th U.S. Circuit Court of Appeals ruled that tax funding of the scheme violated separation of church and state.

InnerChange officials were angry and vowed to continue the program with private funds, but it didn’t work out. In March 2008, corrections officials in Iowa severed all ties to InnerChange.

Where We Are Now: The faith-based initiative has survived four presidencies now and looks to be entrenched. Most federal agencies have faith-based departments. While Trump has not yet named a director of the federal Office of Faith-based and Neighborhood Partnerships, his administration is taking steps to allow religious groups to discriminate even as they receive taxpayer funding. Americans United continues to oppose this form of taxpayer-funded discrimination.

Fights like this (and many, many others) forged Americans United during its first 70 years.  We have no way of knowing what the next 70 will bring, but we can say one thing for sure: Wherever and whenever separation of church and state is under threat, Americans United will be there. 



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