Can Religious Exemptions Trump Public Accommodations Laws?

On April 12, 2019, a man in west Phoenix, Arizona, shot and killed his wife and two children. Then he drove to another location and shot and killed a man there. When the police stopped him, he said that he had a sincerely held religious belief that in his church, not only would this behavior be all right, it would be mandated by God because he thought his wife was having an affair with the other man.

This is where we are going with this movement to justify a religious exemption to public accommodations laws. And it is a movement. It is an attempt to change this democracy into a theocracy. As the court said in Washington v. Arlene’s Flowers, it is not about cakes or flowers any more than the sit-ins in the south in the 1960s were about sandwiches and soda. This is about equality and fairness.  This movement is a betrayal of American values and the Constitution.

An Attempt to Change Democracy into Theocracy

The underlying movement here is to create a religious exemption to public accommodations laws. We’ve seen this attack across the country in a variety of public services. To create such an exemption would take us back to the 1950s, when hotels, restaurants, department stores, hospitals, etc. could refuse to serve Black people, when Blacks and whites couldn’t inter-marry, when women couldn’t get birth control.

The Bible was the justification for the separation of the races as it is today, for the attack on the LGBT community, and attacks on women’s health care.  Slavery was once justified by religion. Banning of Muslims is justified by religion. These are facts, not “hostility to religion.”

These ideas are not just limited to the LGBT community. A woman in South Carolina wanted to be a foster mother and passed all the checks.  She was denied the ability at the last question. Why?

Because she was the wrong religion: Catholic. The appeals court in that case rejected the discrimination asserting that, “religious belief will not excuse compliance with general civil rights laws.” The government may not grant special religious exceptions from a law when it would cause harm to others. For more, read Maddonna v. U.S. Department of Health and Human Services (on appeal).

Over the objection of an Orthodox Jewish community, a court in New Jersey in A Country Place v. Curto et al ruled that the swimming pool regulations that determined that women and men had to swim at different times — and then gave all the best and most times to men — was discrimination against women and could not stand.

Using Religion to Deny Medical Care

Even more dangerous is using religion to refuse medical care and treatment to women.

The federal Department of Health, under the current administration, has devised a new religious rule that will endanger millions of woman. Under the rule, health care workers can refuse to treat patients under the guise of religious freedom.

Such rules already exist, so long as the patient is given notice and options. This rule would increase the people and organizations to which it applies, and would cover additional things such as payments, grants, contract, and insurance. All a person or organization has to do is claim a religious justification and they can discriminate at will.   

Ambulance drivers could refuse to drive a person to the hospital. ER rooms could refuse to give the morning after pill to a rape or incest victim. A nurse could refuse to put in an IV for a person with AIDS. A clerk could refuse to sign in a Muslim or an atheist.  The staff could refuse to adhere to patients’ end-o-life decisions. Three separate federal courts have enjoined this rule.

None of this is new. Blacks were denied admission into white hospitals at one time, and often died before reaching a Black hospital. A woman in Sierra Vista, AZ who was having a miscarriage was denied services at a Catholic hospital so had to be driven another hour to Tucson. Such discrimination was wrong before.  It’s wrong now.

Majority of People Oppose Religiously Based Service Refusals

A recent public opinion poll by Public Religion Research Institute (PRRI) found that:

• 69% of Americans favor laws that would protect LGBT people from discrimination in jobs, public accommodations, and housing. That has held steady for eight years.
• Nondiscrimination protections for LGBT Americans enjoy bipartisan support, with majorities of Democrats (79%), independents (70%), and Republicans (56%) reporting that they favor laws that would shield LGBT people from various kinds of discrimination.
• Solid majorities of all major religious groups in the U.S. support laws protecting LGBT people from discrimination in housing, public accommodations, and the workplace.
• While white evangelical Protestants (54%) and Jehovah’s Witnesses (53%) are least likely to support LGBT nondiscrimination protections, even among these groups support remains in the majority.

Further, in 2018, 57% of Americans opposed allowing a small business owner in their state to refuse products or services to gay or lesbian people if providing them would violate their religious beliefs. Only 36% of Americans support such a policy.

Majorities of Americans of all racial and ethnic groups oppose religiously based service refusals. Black Americans (66%) are most likely to oppose allowing small business owners to refuse service to gay and lesbian people based on their religious beliefs.

The next highest group that opposed such discrimination was Hispanic Americans (60%), Asian-Pacific Islander Americans (59%), people who are mixed race or another race (58%), white Americans (54%), and Native Americans (52%).

Majorities of most major religious groups oppose religiously based service refusals, including: 

• 83% of Unitarian Universalists
• 69% of Americans who identify with New Age religions
• 68% of Jews
• 66% of Black Protestants, Buddhists and the religiously unaffiliated
• 61% of Hispanic Catholics
• 60% of Muslims and Hindus
• 59% of other non-white Catholics,
• 57% of Americans who identify with other religions,
• 55% of white Catholics
• 54% of white mainline Protestants
• 53% of Orthodox Christians
• 52% of Hispanic Protestants

What’s really happening here is an effort to give special privileges to a narrow segment of society while stigmatizing other groups and refusing them equal protection under the law. It’s based on the patriarchal underpinnings of religion and the fear of losing power.

We should reject it from the root to the branch. You know what you have to do: VOTE.

– Dianne Post, Legal Director

“If you see a state official promoting the Holy Ghost, who you gonna call? The Secular Coalition for Arizona, that’s who. This freethinking organization celebrated its 10th anniversary in the state this year, and many Arizonans are glad to have it. The group protects the rights not just of nonbelievers, but of all Arizonans who don’t think public money, resources, and messages should be spent pushing religious dogma.

Chaired and directed by Zenaido Quintana, and with high-powered hitters like lobbyist and spokesperson Tory Roberg and progressive attorney Dianne Post on the payroll, this is a group that regularly gets attention. Whether it’s slamming Governor Doug Ducey for posts about Jesus during Easter, denouncing Bible studies in public schools, or fighting for atheist lawmakers’ rights to give the invocation at the State Legislature, the Secular Coalition for Arizona has been the state’s voice of rational disbelief.”

Thank you, Phoenix New Times! We’re honored – and it’s all thanks to the Secular AZ Board, Members, Supporters, Donors and Staff who fight for the (constitutional) separation of church and state every day!

Fulton v. City of Philadelphia, PA is another case in which a religious group, in this case Catholic Social Services, seeks to receive money from the government for foster care services but also seeks to ignore laws that prohibit discrimination i.e. let me have my cake and eat it too – let me get the money but not follow the rules. The case will be argued at the Supreme Court in November and Freedom from Religion Foundation, Center for Inquiry and the American Humanist Association have filed an amicus brief.   

Fulton is yet another attempt to enshrine religious doctrine over laws established by the people (through legislatures).  For over 100 years, courts have held that neutral laws that do not target religious groups must be followed by religious people just like everyone else.  That is what the Rule of Law means. That is what “no one is above the law” means. To allow a carve out for one person’s belief means we have no law left.

A man who murdered his wife and her partner in Glendale said it was required under his religious belief.  Should he be excused?  Will we make polygamy legal again?  What about child marriage? How about a “church of the opioids” where taking them was a part of the ritual?  Or a “church of spare the rod and spoil the child” where children were regularly beaten?  And no mosque should have to pay the interest on a loan because it’s against their faith. These examples are not imaginary. Children have been ritually beaten in religious services. Members of some ultra-orthodox Jewish communities have been harassed to prevent them reporting sexual abuse to the police. Harassment of people leaving the Church of Scientology is legion.

The darling of the religious right, Justice Scalia highlighted this very principle:  “Laws,” we said, “are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . Can a man excuse his practices to the contrary because of his religious belief ? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” 494 U.S. at 879 (quoting Reynolds v. United States, 98 U.S. 145 (1878)).

But that is exactly what the religious nationalists are seeking to do – make the doctrines of religious belief superior to the law of the land. Religious groups, led by Scottsdale’s own Alliance Defending Freedom, has mounted a concerted attack on religious neutrality and the Rule of Law to seek favoritism for religious doctrine. They want government money but they don’t want to obey government rules. Such groups have sued because they didn’t get FEMA money, because they didn’t get tourism money (to the fake ark), and even because they didn’t get a contract to teach art!  But they have received handouts of COVID money while they often remain as its biggest spreaders. Those who cried the loudest about LGBT people seeking “special rights” when all they seek is equality are the same ones now seeking “special rights” for religious organizations to avoid the law.

The religious nationalist arguments focus on people who were fired for adhering to their religious beliefs. There are “reasonable accommodations” for that, but what they were doing i.e. going to church rather than work or refusing to make weapons was not illegal. What the religious organizations are doing now, discriminating against LGBT, against women, or against those of a different religion, is illegal.   

Like the Maddonna case, a program that allegedly cares about foster children is seeking to prohibit a large number of citizens from helping these very children.  Twenty-six percent of Americans claim no religious affiliation which means they all would be prohibited under the rules of both agencies from helping a foster child.  Why?  Because the religious organization believes their doctrine is the best doctrine and all other doctrines should be prohibited. Sounds like the inquisition to me. 

“There was a time when religious law ruled the world. It was called the Dark Ages.” Ruth Hurmence Green

Unfortunately, we can no longer trust our courts to protect our rights.  So under our system of checks and balances, we have to turn to the executive and legislative branches. That is one reason this upcoming election means so much. We have to work for candidates, donate to them, and vote all up and down the ballot on November 3.

INVEST IN EDUCATION ACT: An Initiative for 2020

After more than three years work, teachers and their supporters, parents and their children have succeeded in getting the initiative on the ballot for November when the Supreme Court so ruled on August 19.  Since we support secular public education, we have taken a deeper look at the provisions.  As stated in Section 2, the purpose of the act is that Arizona students deserve qualified teachers and safe environments.  Yet years of underfunding by the state legislature has led to the crisis we find ourselves in – being at the bottom of the barrel in school funding with an increasing teacher gap.   For Arizona to advancewe need educated students, including in the skilled trades, and careers looking toward the future.

The money in the fund does not revert to the state general fund to be frittered away in tax giveaways. The monies are to be spent in this order:  the cost to the state treasurer to administer, the state auditor general, the department of education, the department of revenue, and the state board of education to implement, and any other mandatory expenditures.  There are no “unfunded mandates.”

The state treasurer makes up the forms and transfers the money twice annually.  Fifty percent goes to school districts and charter schools in proportion to the weighted student count for the prior fiscal year.  That includes the school for the blind and deaf.

Twenty-five percent goes to school districts and charter schools in proportion to the weighted student count to hire student support services personnel and increase their base compensation.

Ten percent goes to school districts and charter schools in proportion to the weighted student count to provide mentoring and retention programs for new teachers.  The State Board of Education creates the rules.  A mentor may have no more than 15 new classroom teachers.

Twelve percent goes to the career training and workforce fund and 3% to the AZ teacher’s academy fund.

Classroom support personnel means nonadministrative such as librarians, nurses, counselors, social workers, speech pathologists, behavior coaches and psychologists.  A new classroom teacher is in the first, second, or third year of teaching.

Student support services means non-administrative personnel who provide services such as classroom aides, media specialists, health assistants, security personnel, student food service personnel, clerical staff, student transportation personnel, and site plant operators.

The career training and workforce program works with student in 9-12th grade.  The Department of Education shall create rules for the program related to medium to high wage, high demand careers that result in direct work experience, industry certification, or postsecondary credits.  It is also aimed to encourage them to become teachers.  The money can be used to hire counselors and develop accelerated program and college level and dual-credit courses.  Districts can establish summer bridge programs for at-risk, incoming ninth graders, implement evidence-based programs to combat absenteeism, and provide tutoring.

Each district that receives money has to establish a method of separate accounting.  These funds cannot be the reason to reduce any other funds or be considered local funds that would reduce the district’s ability to obtain other monies.

Those enrolled in the AZ teacher’s academy, graduate or community college classes can get the actual cost of tuition and fees for two academic years covered plus the cost of the national certification. Funding is provided now but at lower levels. A marketing and promotion plan shall put emphasis on the diversity of the state’s population.

The funding provisions that have caused so much angst among the wealthy is the surcharge of 3.5% of taxable income in excess of $250,000 for a single person or over $500,000 for married couples or single head of households.

First, it has to be taxable income.  Most wealthy people don’t get their money from taxable income but from investment income or inheritance income so it still doesn’t touch the idle rich.  A 3.5% tax on $250,000 for a single person with no children is $8,750.  They make more than that in two weeks.  For married couples or people with children, a 3.5% tax on $500,000 is $17,500.  They also make more than that in two weeks.

The average American makes $50,000 in a year or $926 a week.  That average American would need to work 10 weeks to make $8,750 that the single person makes in two or 19 weeks or nearly 5 months to make what the couple makes in two weeks.  The U.S. has one of the highest income and wealth gaps in the world and now dwarfs the inequality of the Gilded Age that led to the Great Depression.

Anticipating that the legislature would rush to eliminate the tax by changing or eliminating the tax brackets, they put in a fail-safe that the monies must be collected regardless.  It also has a severability clause, an exemption from rule making clause, and a “standing” clause that if the attorney general refuses to defend the law, any citizen can and fees shall be awarded to said resident.

It is unfortunate that the citizens of this state have to go to such great lengths to fund their public schools – a responsibility that is mandated in the State Constitution to the government.  Public schools are the great leveler – giving us all the same opportunity by teaching every one the country the same set of facts, principles, scientific method, and most importantly – civics and history – how our government works and has worked, and that every person must step up and do our duty from voting to paying taxes, from jury duty to following the law – including wearing a mask to protect my fellow citizens from a pandemic.

Unfortunately our state legislature has shown for the last thirty years that they have no interest in good education or equal opportunity.   They have not fulfilled their responsibility to fund public education from pre-school through university.  They have only given tax cut after tax cut to the wealthy and large corporations that need it least.  That has not created a robust economy that benefits us all but one that only benefits those already in the upper reaches.

So as good citizens, people who care about education, who care about children, who care about the future – we must take the reins and insist that those who bring us the future deserve a good here and now.

AZ Primary Election Analysis – August 7, 2020

AZ’s primary election delivered some surprises, with a handful of incumbents losing in the primary. Competitive districts to watch in November are LD 6, 8, 17, 18, 20, and 28. Check our Secular Scorecard for information on incumbent votes.

Arizonans turned out in record numbers to vote in the primary election held on August 4, 2020, surpassing the sum total number of votes cast in the 2018 Arizona Primary: 1,208,113 were cast then, 1,226,771 are tallied now. The vast majority of all votes were cast safely and securely using vote-by-mail. You can find more information on how to register to vote or request a mail-in ballot on the Secretary of State website. 

Secular Coalition for Arizona, a non-partisan 501c4 advocacy group committed to separation of church and state, watched the primary election with particular interest in several legislative races

Why Elections Matter

The partisan split in the Arizona State Senate is 17 Republicans to 13 Democrats; the Arizona State House is 31 Republicans to 29 Democrats. Most legislation requires a simple majority for passage (50% + 1), so if Senate Republicans vote as a unified caucus, they can pass almost anything with 16 votes. The House Republicans MUST vote together as a unified caucus (31 votes). If Democrats vote as a unified caucus and convince 2 Senate Republicans or 1 House Republican to vote with them, they can block legislation. Unfortunately, minority party bills are not often heard on the House or Senate floor and don’t even make it to committee.

We have several supporters of secular government in the State House and Senate; our annual “Secular Scorecard” tracks how lawmakers sponsor or vote on legislation that we support or oppose. Congratulations to returning “Secular Stars” who won their primaries and are expected to win in November: 

House: Daniel Hernandez (LD2), Andrea Dalessandro (LD2), Charlene Fernandez (LD4), Arlando Teller (LD7), Pam Powers Hannley (LD9), Randy Friese (LD9), Reginald Bolding (LD27), and Raquel Terán (LD30) 

Senate: Sally Ann Gonzales (LD3), Victoria Steele (LD9), Kirsten Engle (LD11), Rebecca Rios (LD27), and Martín Quezada (LD29).

These lawmakers have gone above and beyond just voting to ensure secular government, but are not an exclusive list of secular supporters. We are very close to achieving a legislative majority which values separation of church and state. This is why elections matter. If Arizona voters elect a majority of lawmakers who support secular public policies in either chamber, we will have our bills heard in committee, discussed, voted, and moved through the legislative process. 

Primary Election Results Analysis

Here are primary election results as of August 7. Please note these are unofficial results, but that we do not anticipate the official results to be different. Read on for a breakdown of what the primary results could mean for the November election and the new Legislature.

Arizona State Senate

Of the 30 legislative districts in the state, 12 are considered solid Republican seats (LDs 1, 5, 11, 12, 13, 14, 15, 16, 21, 22, 23, and 25) and 12 are considered solid Democrat seats (LDs 2, 3, 4, 7, 9, 10, 19, 24, 26, 27, 29, and 30). The competitive Senate races to watch between now and November are LDs 6, 8, 17, 18, 20, and 28.

A Win

The biggest win for secular government was the LD26 primary, where incumbent Senator Juan Mendez, a Secular Superstar and key leader in the secular movement, handily won his primary against challenger Jana Lynn Granillo. Now he moves to the November election, where he is expected to win in a heavily Democratic district.

An Upset

The biggest upset for Secular AZ is LD15, where Center for Arizona Policy darling Nancy Barto has won a competitive race against fellow Republican Heather Carter. Senator Carter was known at the Capitol for blocking some of the most egregious bills lobbied for by the Center for Arizona Policy.  Over $1.6M was spent on just this one legislative race, highlighting the importance of this seat to stakeholders and outside interests. With this win for the Center for Arizona Policy, we can expect to see Barto sponsor more bills similar to those she has so far been unsuccessful in passing – bills opposing transgender youth, women’s reproductive rights, vaccines, and Medical Aid in Dying. We have worked in opposition to Nancy Barto’s legislation for many years and we will continue this important work. However, if the State Senate is turned into a majority of secular government supporters, her bills might stay shelved.

Other Senate Races of Interest

In LD23, incumbent Senator Michelle Ugenti-Rita won her primary against newcomer Alex Kolodin. Senator Ugenti-Rita generally does not support positions of the Secular Coalition for Arizona; however, she was the sponsor of a bill we supported last session that would’ve made birth control more readily accessible and available for women statewide.

In LD6, incumbent Senator Sylvia Allen, a young-earth creationist who has championed anti-sex education and anti-science bills and repeatedly expanded the state’s school voucher program, lost her primary race to newcomer Wendy Rogers. Wendy Rogers faces Democrat Felecia French in the November election, and the race is considered quite competitive.

LD11 turnout for Democrats was high, but they still face an uphill battle with registrations for the November election. Incumbent Vince Leach is a darling of the Center for Arizona Policy and will face challenger Democrat primary winner Joanna Mendoza (read Joanna’s secular survey responses).

Two highly competitive senate races to watch are LD20 and LD8. Neither of these races had a primary challenge, so they were uncontested in yesterday’s election. However, these races will heat up in November when incumbent Senator Paul Boyer faces challenger newcomer Democrat Doug Ervin (read Doug’s response to the secular survey here) in LD20, and when incumbent Representative TJ Shope competes against former lawmaker Barbara McGuire in LD8. 

Arizona State House

Each of the 30 legislative districts has two seats in the House of Representatives. For November’s election, 27 seats are considered solid Republican and 25 seats are considered solid Democrat. The remaining eight seats are competitive.

Wins

LD26 – Incumbent Secular Superstar Athena Salman handily won her primary, along with her chosen seatmate Melody Hernandez, in a four-way race. Athena and Melody are expected to win in November in this heavily Democrat district.

LD13 – Former state lawmaker and failed congressional candidate Steve Montenegro lost to incumbents Tim Dunn and Joanne Osborne in this heavily-Republican district. While Secular AZ does not receive any kind of secular government support from the LD13 incumbents, our community has been hurt by Steve Montenegro during his tenure as a lawmaker. In 2016, while Mr. Montenegro was majority leader in the State House, he spent hours trying to block atheist lawmaker Juan Mendez from leading the daily prayer on the House floor. In fact, Montenegro released a memo telling representatives if they wish to lead the daily prayer, that they must “pray to a higher power.” He has also been the sponsor of several anti-LGBTQ bills and religious privilege bills. If the unofficial results do not change, he will not return to the state legislature in 2021.

Single-Shot Opportunities

A tactic used by both Republicans and Democrats to try to gain a seat in a slightly competitive district is to run just one candidate when there are two House seats. The theory is that some voters will vote for one Republican and one Democrat in a race with two seats. This tactic sometimes can gain the district’s minority party enough votes to take one of the seats and has worked in the past, most recently in LD17 in 2018 when teacher Jennifer Pawlik (D) earned the most votes in a Republican-leaning district and was elected alongside a Republican counterpart.  Many of the competitive races are so because of the single-shot strategy.  

LD6 – Flagstaff Mayor Coral Evans faces off against former lawmaker Brenda Barton (see how Brenda voted on secular issues in 2018 and 2017)and incumbent Walt Blackman. This single-shot campaign has a real opportunity to win a seat; in 2018 the LD6 senate seat was a very close race, and is indicative of the changing views of the constituency. Mayor Evans did not return our secular survey, but receives an honorable mention in that Flagstaff is one of the few cities in the state which does not open council meetings with a prayer; a sign of respect for separation of church and state.

LD8 – Incumbents David Cook and fFrank Pratt (consistently low scorers on our scorecard) will be facing secular supporter and newcomer Sharon Girard (read Sharon’s secular survey answers here) as she attempts a single-shot seat in what is considered a competitive district in November.

LD11 – Newcomer Felipe Perez had a strong turnout in LD11 as a single-shot Democrat vying for one of two seats in November. His vote count was under 50 votes shy of the top Republican Incumbent Mark Finchem and over 3,000 more votes than incumbent Bret Roberts. 

LD17 – As mentioned above, Jennifer Pawlik is once again running a single-shot campaign to keep her seat in the Arizona House. LD17 is highly competitive and she was the top vote-getter in the 2018 campaign. She will face incumbent Jeff Weninger and newcomer Liz Harris.

LD20 – This is one of the hottest competitive districts in the state with single-shot newcomer Judy Schweibert (read Judy’s secular survey answers here) challenging Center for Arizona Policy darlings incumbents Anthony Kern and Shawnna Bolick.  

LD21 – Newcomer Kathy Knecht, a former Independent-turned-Democrat received the highest vote count of any primary candidate in heavily-Republican LD21. She will face Republican incumbent Kevin Payne and newcomer Beverly Pingerelli.

Other Competitive Races

LD28 has competitive races in both the House and Senate, and is considered one of the most highly competitive districts in the state. There were no primary races in this district and the lead up to the November election is expected to get heated.

Additional Comments

LD4 incumbent Gerae Peten is a friend to the Secular Coalition and faces a single-shot Republican candidate; this is potentially a competitive race. Read Gerae’s secular survey responses here.

If you support the fight for a secular Arizona government, please consider making a donation today to support our work.

June 30, 2020

Dianne Post, Legal Director

Secular Communities for AZ

The Supreme Court decision in Espinoza v. Montana illustrates the height of judicial activism and the length to which this politicized court will go to enshrine their religious philosophy into the law.  The Montana Supreme Court had already held that the program funding vouchers could not stand and overturned it under state law.  So there was no case or controversy for the Supreme Court to Consider.  But the Supreme Court took the case anyway because they had a principle they wanted to instill – that governments must fund religious beliefs. 

Though the program had already been held unconstitutional under the state law, the Supreme Court went ahead and ruled that the no-aid provision in the state constitution discriminated against religious schools and families whose children attended.  But the schools were not even plaintiffs in the suit – only the families who wanted to exercise their religious beliefs at the cost of everyone else’s.  Like those who believe they have a right to refuse to wear a mask (which is not a fundamental right) even though it would support a public health goal for all of the people.  One judge had such sympathy for the single mother who worked three jobs and could not afford the school but he failed to question why a single mother has to work three jobs?  Why doesn’t she get paid a living wage at one job?  If she did, perhaps she could afford the school of her choice.   

The court said the Free Exercise Clause protects religious observers against unequal treatment.  With at least 1,500 different religious sects in the U.S., what observance will be protected?  Praying five times a day?  Praying a rosary?  Killing a chicken? The five-member majority  (Roberts, Gorsuch, Alito, Thomas, Kavanagh) argued that the reasoning wasn’t based on what the school was to do as in the Locke case where he was going to be a priest and proselytize,  but their status as a religious school.

They also astonishingly claimed there was history in the U.S. of not funding the training of clergy but no history of not funding religious schools – except perhaps the entire First Amendment jurisprudence.   Breyer’s dissent outlined a substantial history of exactly that. 

The only solution is to have no voucher system at all.  That is what the people of Arizona told the state legislature by a margin of over 60%. In disregard of the people, the legislature went right ahead and approved more vouchers.  This in spite of the fact that the school “choice” program has been proven to be discriminatory, provide no better education than public school, and have insufficient oversight to prevent graft and fraud. 

The parties in the case did not argue the establishment clause only the free exercise clause.  The court repeated that the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs. It is interesting that religions want to receive public benefits under neutral government programs.  But when the neutral government program or law gives a benefit to someone else, the religions want to be exempted.  For example, the neutral government law mandating public accommodations says that no business may discriminate against a person because s/he is a gay or lesbian. But religious people don’t want to abide by that neutral law that benefits the LGBT community.  No they even brought a pre-enforcement suit in Phoenix to exempt themselves from having to give other people the benefit of neutral laws.  They should not be able to have it both ways.  If they get to benefit from neutral laws, then they should abide by neutral laws.  If they don’t abide by neutral laws, then they should not benefit. I fear this Supreme Court does not care about this hypocrisy as they didn’t in Hobby Lobby where the corporation in question was heavily invested in the very birth control company they refused to allow their employees to partake.

A lot of ink was spilled over the Trinity Lutheran case where the court ruled that a church who was seeking a grant to resurface a parking lot could not be prohibited where a student seeking a grant to get a divinity degree could in Locke.  Stunningly they decided that a parent wanting a religious education for her child was more like a parking lot than like a divinity student so the reasoning of Trinity Lutheran applied.      

Even more ink was spilled to prove that the country had a tradition of supporting religious schools.  The court’s own story shows that supporting such schools resulted in chaos, fights, divisions, even riots and violence – precisely why the government should stay completely out of religion.  They said well the early fights were against Catholics and we should not countenance such discrimination.  If that is the case, then put the Equal Right Amendment into the Constitution because that discrimination should not be allowed to stand.  Eliminate the Electoral College because that discrimination should not be allowed to stand.  And I could go on.

The court simply cannot see how Montana’s argument that the no-aid provision promotes religious freedom can be. They reject the wisdom of many a religious leader who knows that when government interferes in religion, it won’t be long before it controls it.  When it controls it, it will substitute its own religion for that of the individual and nothing but discord will abound in the land. 

The court says that states do not have to subsidize private education at all – which is what Montana decided when it ended the program. But the court then ordered Montana to do something even though there is no program to end.  The court seems offended that the Montana court ended the program by declaring it unconstitutional rather than the legislature ending it.  But that is what courts do all the time – declare statutes unconstitutional.  Since Marbury v. Madison that has been their job – determine what the law is.  Yet the Supreme Court chastises the Montana Supreme Court for doing just that.  Why?  Because the Supreme Court is laying the groundwork to force states to fund religious schools.   

The Thomas and Gorsuch concurrence argues that the entire First Amendment jurisprudence is wrong and has been for a long time.  According to Thomas, and now he has another adherent, the amendment only applies to the federal government imposing a religion on the states and to nothing else. It does not, according to him, prohibit preferring one religion over another or religion over non-religion.  His real argument is that those who want to discriminate on moral grounds as he defines them should be able to do so citing Masterpiece Cake. 

After saying he doesn’t believe historical factors should be taken into account, Alito takes historical factors into account by arguing that it was anti-Catholic bias that motivated the passage of the no-aid provisions.  He outlines the history of mob violence and riots between Protestants and Catholics – making precisely the case for the government staying out of religion!  He mentioned that Catholics had to establish their own schools because of using the King James Bible in public schools (which is why no Bible is allowed in school) but he does not mention the establishment of private schools after the Brown v. Board of Education decision to avoid integration or the reason there were religious schools in Reconstruction was because Blacks were not allowed to go to school with whites.

Gorsuch main argument in his concurrence was that he does not see the difference between status and action.  This is a very dangerous and slippery slope as he argues that the religious have the right to act on their beliefs i.e. to refuse service to an LGBT person because it would cause them to “act” in violation of their religion.  Earlier status/action cases have been successfully managed e.g. homosexual behavior (then criminal) versus homosexual status (not criminal); public drunkenness or drunken driving (criminal) and being an alcoholic (status and not criminal).  But Gorsuch is trying to unthread that needle.   He wants to protect religious actions no matter their impact on another person. This bodes ill for the public accommodations cases.

He also argues that the First Amendment protects religious conduct in receiving public benefits.  This is also troubling given cases before the court in which religious entities receiving public benefits seek to discriminate against other religions than their own (Catholic) and other people specifically LGBT people to prohibit foster care and adoption.  Gorsuch argues that no pressure can be put on a religious person to modify his behavior or violate his belief.  In other words, the owners of the Atlanta Motel should have been able to refuse to rent to Blacks because it violated their religion.  Virginia should have been able to prohibit the marriage of Blacks and whites because it violated the religion of those in the legislature.  Or a county clerk can refuse a marriage license to a gay person because it violates her religious belief.  It is nothing but a fig leaf covering discrimination.      

Gorsuch also argued that taking a neutral stance benefits nonbelievers because those most passionate in their beliefs are prohibited from acting out their very strong beliefs whether it’s knocking on your door to hand out religious pamphlets or refusing to work in a plant making ammunition or exorcising children with coat hanger beatings and near drownings because of belief in the devil or dunking women considered witches or prohibiting birth control or abortions because they say so.  He laments that an intent to protect religion may turn into a cudgel to ensure conformity when in fact that is precisely what his side is doing – they have turned religious freedom into a sword rather than a shield. 

In the Ginsburg and Kagan dissent they point out the obvious – there was no case for the court to decide and the court violated Article III that requires a case or controversy before deciding constitutional matters.  The Supreme Court said that a state could decide to have no program at all and that is what Montana did.  So there was no case.  Yet the Court went ahead and ordered them to do what?

In the Breyer and Kagen dissent they argued that the free exercise and the establishment clauses have to be taken together to avoid religiously based discord and yet secure liberty for all faiths and none.  This decision does the opposite by inflicting a rigid application of strict scrutiny on the free exercise clause and entangling government in religion.   

They cover the history of discord and division from the existence of state funding for religious teaching and argue that is why the government has to be strictly neutral. They also argue that from the founding of the country taxpayer supported religious indoctrination was seen as a threat to individual liberty. They pointed out the history of Madison and Jefferson and the Virginia religious establishment law. Jefferson considered it sinful and tyrannical to force a person to support a religion which s/he disbelieves. The  founding generation, including George Washington, Patrick Henry, and John Marshall, supported Virginia’s Assessment Bill not to tax citizens for a particular religion.

The court does not balance the right of those who choose not to fund religious education, elevating the right of those who do. They also point out the foolishness of the “status” versus “doing” argument by asking what in fact does a religious school do but teach religion. That is why the parents have chosen to send their children there.

As they point out, the Montana law did not punish religious exercise – they chose not to subsidize schools that teach religion. Choosing not to subsidize a fundamental right, such as marriage or voting for example, does not infringe on the right.  However this decision may be laying the groundwork for an attack on public funding of public schools by saying that it is harmful for religious schools not to get their fingers into that public taxpayer money.

The Sotomayor dissent was equally scathing.  As she said, the state supreme court had already ended the program on state law grounds and there was no federal question to be answered.  Not only did the Supreme Court violate Article III, it is clear that they are engaged in judicial activism by reaching hard for this tenuous case and turning it into a vehicle they can use to destroy the wall of separation between church and state. 

After wrongfully taking the case, they wrongly decided it. This is the first time the court is requiring a state to provide funds to a church in clear violation of the First Amendment, precedent, history, and the long supported separation of church and state. The Supreme Court held that because the state did not benefit religious exercise, they are compelled to do so. It is the first time the court orders that public funds must be used to pay for religious education. And it is wrong. The government is not obligated to fund a right e.g. I have a right to free speech but the government is not obligated to pay for my megaphone or website, allegedly I have a right to carry a gun but the government is not obligated to buy me one.  But with this decision, because I have a right to free exercise of my religion, the state is obligated to pay for my children’s schooling. As Sotomayor says, the ruling is perverse.  It turns the amendment on its head and mandates the state pay for someone to exercise their religion.  That was never its intent. 

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