The Religious Freedom Restoration Act as a Gun

By Matthew Adler, Secular AZ legal intern

In a recent unanimous decision, the Supreme Court held that government officials may be sued in a personal capacity for money damages when they violate the Religious Freedom Restoration Act (RFRA). This decision was a step towards providing much needed justice to a group of Muslim men who had been victimized by the FBI following 9/11, but it also served to strengthen a highly dubious piece of legislation that is routinely used to circumvent the law. Continue reading

Urgent: final votes imminent on dangerous religious exemptions bill

On short notice, religious exemptions bill HB2648 has been fast-tracked for final votes at the State Legislature today.

Proponents of HB2648 claim that the bill merely protects the right to worship during public emergencies. But the bill is much more extreme.

As written, HB2648 would essentially give any self-proclaimed religious organization — including extremist and fringe organizations — a “get out of jail free” card for nearly any violation of any law at any time. This would particularly jeopardize children, as it would diminish Arizona’s ability to enforce laws shielding them from abuse and other harms within the walls of such organizations.

HB2648 is not only dangerous. It is unnecessary. Current Arizona law  already protects religious freedom, even in times of crisis.

The bill could receive final votes in the Senate any minute. From there, it would go to quickly to the House and then the Governor.

Please join us in contacting our State Senators (again) ASAP.

52 years after Stonewall, a new call to action

We believe that Pride — observed this month to mark the Stonewall Uprising of June 28th, 1969 — is both a celebration and a call to action. We delight in the size and diversity of the LGBTQ+ community while coalescing around the struggle for justice.

52 years ago, this meant rapidly organizing to protect LGBTQ+ communities against violence at the hands of authorities.

Such organization is still meaningful today, but much more of it than ever takes place on the systemic level. In Arizona, this involves opposing a deluge of bills dropped at the state Legislature targeting LGBTQ+ people for discrimination.

It also means advocating for laws that repair the damage of institutional bigotry, such as making schools affirming environments for LGBTQ+ youth.

So 52 years after Stonewall, what is the legislative outlook for equality?

The national front

Advocates claim this is the worst year for state legislative attacks against LGBTQ people in history.

This year, the Equality Federation has recorded that legislatures nationwide have altogether introduced:

  • 337 anti-LGBTQ+ bills
  • 150 anti-transgender bills
  • 75 bills discriminating against transgender athletes
  • 40 bills discriminating against LGBTQ+ people in healthcare

So far this year, eight bills discriminating against LGBTQ+ people have been signed into law, and another 10 are sitting on governors’ desks awaiting signatures, according to the Human Rights Campaign.

The passage of these bills would mean that states will have enacted more anti-LGBTQ+ bills in 2021 alone than in the last three years combined.

What is Arizona’s part in all this?

We recently did a roundup of the current numbers:

  • 4 bills were introduced protecting “conversion therapy” (SB1269, SB1325, SB1482, SB1426)
  • 3 bills sought to silence LGBTQ+ in schools through sex education restrictions (HB2035, HB2184, SB1456)
  • 2 bills discriminated against trans people on government documents (HB2709, HB2725)
  • 1 bill would have introduced invasive restrictions on transgender student athletes (HB1637)
  • 1 bill sought to grant sweeping legal immunities based on “religious freedom” — exempting organizations from anti-discrimination ordinances, bans on conversion therapy, and more (HB2648)
  • 5 bills expanded the school voucher program, which sends public money to schools that may discriminate against LGBTQ+ people (HB2503, SB1118, SB1273, SB1452, SB1513)

Thankfully, so far none of these bills have been signed into law — though school erasure bill SB1456 came close, and several others are still in play.

What about pro-LGBTQ+ legislation?

Not all LGBTQ-centric bills introduced at the Legislature this year were negative. In fact, a similar number sought to expand rights for queer and trans people. However, unlike the above list, each was shut down quickly by the Legislative majority:

  • 4 bills sought to create statewide non-discrimination policy (HB2653, HB2744, SB1425, HB2642)
  • 3 bills would have created pathways to equality in state-issued documents for trans people (SB1162, HB2655, SB1163)
  • 3 bills promoted LGBTQ+ equality in school curricula (SB1317, HB2647, SB1340)
  • 2 bills sought to lower rates of anti-trans hate crimes (SB1424, HB2610)
  • 2 bills would have made the practice of “conversion therapy” an act of professional misconduct (HB2487, SB1426)
  • 1 bill would have established a task force addressing societal inequities for trans people (HB2652)
  • 1 bill was aimed at reducing bathroom-based discrimination (HB2743)

This outlook at the Legislature demands united action. Public opinion is increasingly on the side of LGBTQ+ equality. But will these changing attitudes be enough to stop the current wave of anti-LGBTQ+ legislation from becoming law?

So far, the answer is no. Because attitudes don’t create change. Actions do.

So before Pride month wraps, let’s make sure we’ve done more than celebrate. Let’s make sure we’re taking measurable actions to advance equality.

Here are groups that we partner with, both locally and nationally, in the fight for LGBTQ+ equality. We encourage you to visit their websites and support their very important work.

Equality Federation
Equality Arizona
Human Rights Campaign
One Arizona
one•n•ten
Aunt Rita’s
AZTYPO

The first wave of LGBTQ+ activism turned into tsunami 52 years ago at Stonewall. We’re being called on to create the next big surge today.

State budget set to reflect Christian nationalist priorities

Voting resumed at the State Capitol this week after a long deadlock over the state budget.

This was an intense week. The majority party pushed through a budget that was neither discussed with nor vetted with the rest of the Legislature. This included several pieces of contentious Christian nationalist legislation that had previously failed as individual bills.

The bad news

  • The House and Senate approved $1.5 to be sent to the Human Coalition: a corporation that tracks and uses deceptive marketing to push pregnant people into religious limited-service pregnancy centers.
  • An additional $100,000 was also approved to be handed out piecemeal to various other such faux clinics.
  • Both chambers have now approved the anti-LGBTQ sex education bill HB2035, which passed the House on party lines.
  • SB1838 (formerly SB1022) has passed the Senate and will go to the House. This bill adds language to statute defining a fetus as an “unborn child.”
  • Both chambers have approved an amendment to the K-12 budget which prohibits “critical race theory” discussions in classrooms. This bill uses model language introduced in 16 other states to continue the ideologies of white Christian nationalism.
  • Both chambers approved an amendment requiring partisan “Freedom Schools” to write civics education for Arizona students, rather than using the rigorous process required of all other curricula.
  • HB2898 passed the House, with provisions that ban public schools and universities from requiring masks or COVID-19 vaccines.

The cautiously optimistic news

Holdout Representatives Joel John (R-4) and Michelle Udall (R-25) blocked the House majority from passing a big expansion of school vouchers, which send taxpayer money to private and religious schools.

This now puts the House’s version of the budget in opposition to the Senate’s when it comes to the expansion, diminishing its prospects (though not yet fully defeating it).

The good news

The end of session is near. Final votes could happen as soon as next week, closing out a difficult and complex year.

Join our full recap

2021 has seen an unusually high number of issues to follow in Arizona — even for people like us who live and breathe the Legislature.

That’s why we’re preparing a full Legislative recap on July 2nd, 12 PM via Zoom. We’ll fill you in there on our perspective of things happening behind closed doors at the Capitol.

Please join us by RSVPing today, and invite your friends.

Breaking Down Fulton v. Philadelphia

Last week, the US Supreme Court once again ruled in favor of forcing Americans to fund religious organizations — and handed those organizations another special license to discriminate.

Under Fulton v. Philadelphia, the Court ruled that the city could not deny a contract to a Catholic adoption agency due to its policy of turning away prospective LGBTQ+ parents — a policy that conflicted with Philadelphia nondiscrimination ordinance.

What Happened?

Catholic Social Services (CSS) alleged that their rights to Free Speech and Free Exercise were violated by a contract with the City, which stipulated that CSS must not discriminate based on sexual orientation.

No same-sex couple applied for CSS’s foster parent programs leading up to its initial lawsuit. Rather, a news story prompted the City to withdraw the contract after it highlighted CSS’s policy against certifying gay couples.

Initially, lower courts denied CSS relief and ruled that both the contract and ordinance did not single out CSS for discrimination. These courts cited earlier cases for precedent — notably the landmark Employment Division v. Smith, which ruled that states may enforce laws impacting religious exercise so long as they are neutral and  broadly applicable.

In the Fulton case, however, the court said Smith did not apply. Justices decided that Philadelphia’s contact was not “generally applicable” — that it allowed individualized exemptions. Ironically at the heart of this matter was a clause allowing the City Commissioner to use his or her discretion to ignore the non-discrimination rule. The court decided this meant the contract allowed for too much subjective decision-making, and was therefore not generally applicable.

The court also claimed the city’s non-discrimination ordinance did not apply to the contract, since the “services” provided by the agency weren’t being made generally available to the public.

Lasting Impacts

Thankfully, while this ruling was harmful, its scope was mercifully narrow. The court did not consider CSS’s arguments about whether its rights to Free Speech were violated. And the City of Philadelphia may now re-write its next contact with CSS to remove the Commissioner’s discretionary powers — making the contract broad enough to fall under the precedent set in Smith.

So Fulton will not impact cities’ ability to enforce anti-discrimination ordinances overall. The impact of the case will instead remain confined to issues over this particular type of contract.

The problem, however, is that while there are several adoption agencies in metropolitan Philadelphia, there are many places in the US where a religious agency is the only foster parent certification program available. Fulton sets precedent for these organizations to enforce their own anti-LGBTQ+ policies when contracting with governments — paving the way for de facto prohibitions on all same-sex adoptions in these regions.

This case is the Christian nationalist mindset in a nutshell: carving out one special privilege for religious groups after another, regardless the collateral damage to vulnerable people — in this case, kids who will pointlessly languish in the foster system rather than go to a loving home.

On Pride

Intersectionality is at the heart of activism.

That’s why we’re taking this month to commemorate June 28, 1969 — the day police raided the Stonewall Inn, a New York meeting place for LGBTQ+ people. When police demanded to do “sex verification” checks on trans women, a spontaneous protest erupted — led by trans women of color like Sylvia Rivera and Marsha P. Johnson.

Stonewall is credited for igniting the struggle for LGBTQ+ rights in the U.S. Within weeks of the protests, the local community organized into activist groups focused on creating places for gay and trans people to be safely open about their identities. Within two years, gay rights groups were in every major American city.

Despite this rapid progress, LGBTQ+ people are still navigating a complicated network of systemic oppression and injustice. And in recent years, it’s gotten worse.

This June, a survey showed shocking rates of stigmatization exist today among LGBTQ+, as well as troublingly similar rates of negative outcomes like depression and suicidality.

Anti-LGBTQ+ resistance is notably rooted in religious attitudes, which are being politically weaponized to drive LGBTQ+ back into the shadows. Hundreds of discriminatory bills have blitzed state legislatures this year alone — some even laying the groundwork for modern “sex verifications” like the ones that incited Stonewall. (Take for example HB2706, requiring student athletes to “prove” their gender if accused of being trans.)

This year, 34 of the 70 bills on Secular AZ’s watch list pertained to topics impacting the LGBTQ+ community. Several were positive. Many others, however, were written to suppress LGBTQ+ identities in schools and civic life — essentially to recreate the conditions of erasure that led to Stonewall in the first place.

All this makes it more important than ever to amplify LGBTQ+ voices. That’s why this week we’re highlighting partner organization Equality Arizona (EQAZ). Our work simply wouldn’t be possible without this group of highly effective advocacy leaders. If you haven’t already, please give them a like, subscribe, or shout out.

Marsha P. Johnson once said, “You never completely have your rights, one person, until you have all your rights.” That includes the right to live according to your personal truth without fear of bullying, censure, or harm. Secular AZ, EQAZ, and countless others have one another’s backs in the fight to protect this right. We hope you’re in with us.

EQAZ Executive Director Michael Soto and activists at our intersectional demonstration against 2021 LGBTQ+ erasure bill SB1456.

Secular Speaker Series: Virtual Presentations

COMING UP:

 

PAST PRESENTATIONS:

More videos available on Secular AZ’s Youtube Channel

Press release on extreme legal immunity bill for religious groups

Secular Coalition for Arizona – www.secularaz.org

Contact: Tory Roberg, Director of Government Affairs – tory@secularaz.org – 623-570-6396

FOR IMMEDIATE RELEASE: Extreme legal immunity for religious groups decried by community organizations

(Mon., Mar. 8, 2021) Phoenix, Ariz. — Faith communities, civil liberties organizations, and other community groups today released a joint statement raising the alarm about an Arizona bill that would provide unprecedented legal immunity for religious organizations that violate nearly any criminal or civil law at any time. The statement reads:

As community leaders and advocates committed to the safety of our communities, we are deeply concerned about the incredible danger posed by HB 2648. This bill is disguised as religious liberty legislation protecting the right to worship during public emergencies, yet whether intentionally or unintentionally, the bill as written would give religious organizations immunity from all criminal and civil liability for any behavior connected to that organization’s religious exercise. This means religious schools and organizations could avoid liability for child abuse; religious hospitals could avoid accountability for refusal of services; employees of religious schools and hospitals could lose the right to sue for harassment, discrimination, or criminal behavior; a house of worship could disregard fire codes; religious daycares could refuse to comply with child-protection laws. The list of potential abuses and harms is endless.

Religious freedom is indeed an essential right, and as such, it already has strong federal and state protection, even in a time of crisis — including during our current pandemic. The Arizona Religious Freedom Restoration Act provides that the “government shall not substantially burden a person’s exercise of religion,” and the U.S. Supreme Court’s recent rulings protect worship services during a time of crisis.

HB 2648 goes far beyond the current law to allow religious organizations to directly endanger members of the public and the members of those organizations themselves. We implore our Arizona State Senators to vote down this dangerous bill that jeopardizes the lives and wellbeing of children and other vulnerable people.

The statement was signed by: National Council of Jewish Women AZ (NCJWAZ); Protecting Arizona’s Family Coalition (PAFCO); American Civil Liberties Union (ACLU); American Civil Liberties Union of Arizona (ACLU of Arizona); Secular Coalition for Arizona (Secular AZ); NARAL Pro Choice America; Equality Arizona (EQ AZ); Desert Star Family Planning; Arizona Center for Women’s Advancement (ACWA); Arizona NOW; American Association of University Women Arizona (AAUWAZ); Affinis Humanity; Arizona Jews For Justice (AJJ).

HB 2648 passed the Arizona House on February 23 with a unanimous Republican majority along with Democrats César Chávez; Diego Espinoza; Alma Hernandez; Aaron Lieberman; Jennifer Longdon; Robert Meza; and Amish Shah. The bill passed the Senate Government Committee today [along party lines].

# # #

Secular Coalition for Arizona (Secular AZ) is a nonprofit advocacy organization that works to ensure a secular state government. We lobby on behalf of all individuals who believe that public policy free of religious preference is the best way to ensure freedom of conscience for Arizonans of all faiths and of none. Secular AZ is the local affiliate of the Secular Coalition for America.

Attachments:

Arizona HB 2648

HB 2648 one page talking points

Christian Nationalism is Coming for You

“[Christian Nationalists’] 20-year court packing scheme has resulted in decisions that imprint Christianity in society as privileged, and they use the court system to create exceptions for them. The recent decisions allowing churches to violate public safety standards and continue spreading Covid is a clear example.  Now our state legislators want to enshrine that favoritism in law with HB2648.  The bill passed the House 38-22 with seven Democrats voting with the Republican majority. Exemptions from the law for “sincerely held religious beliefs” are simply code to be able to discriminate. Religious doctrine said that it was permissible for one people to enslave another, that the races could not intermarry, and that a certain race could not join the church. The court has declined to question these so those called “beliefs.”  Religious freedom to the Christian nationalists means privilege for those with the “right” religion.  To claim they want neutrality is a farce when one sect already has a leg up….

…America is special not because we are a chosen people, but because we did not organize a government based on religion. The countries that are based on religion – Iran, Saudi Arabia, Pakistan – are notorious for their violations of human rights, violence toward women, and silencing of those who disagree. Christian nationalism fueled the attack on the Capitol on January 6, 2021.  We must not underestimate its danger to our democracy.”

Read the entire op-ed by Secular AZ Legal Director Dianne Post in the March 2, 2021 Arizona Capitol Times.

HB2648: Unprecedented Legal Immunity for Religious Groups

HB2648 is the single most dangerous piece of Christian nationalist legislation introduced at in years. (Click here to read the bill’s text.)

 

TAKE ACTION

 

Proponents of HB 2648 claim that the bill merely protects the right to worship during public emergencies. But the bill is much more extreme. Whether intentionally or unintentionally, this bill is a wolf in sheep’s clothing. As written, it would essentially give religious organizations a “get out of jail free” card for nearly any violation of any law at any time. No state has ever adopted an exemptions law this radical, for good reason: It would be dangerous and blatantly unconstitutional.

Under the bill, the government, including courts, would be forbidden from imposing any “monetary fee, civil or criminal penalty, damages award, or injunction” against a religious organization in connection with the organization’s exercise of religion. No criminal liability. No civil liability. A complete exemption from complying with any law whenever a religious organization claims to be engaged in the exercise of religion.

Giving Religious Groups Blanket Immunity from the Law Harms Others

The broad exemptions in HB 2648 would allow religious organizations to engage in behavior that harms others with total impunity. For example:

• Religious schools and organizations could claim immunity from criminal or civil liability for child abuse.
• A religiously motivated hate group could avoid prosecution for criminal activities associated with its religious beliefs.
• Religious organizations of all types could be shielded from state and municipal nondiscrimination laws.
• A house of worship that routinely violates the fire code or exceeds capacity limits during worship services could not be fined or required by a court to comply with the law.
• A patient would lose the right to sue a religious hospital for medical neglect or reckless care provided consistent with the hospital’s religious beliefs.
• A family whose child was injured or killed due to negligence or recklessness by a religious school could be prevented from suing the school.
• Arizona could not recover state funds used by religious organizations for fraudulent or improper purposes, as long as the funds were used while engaging in religious activities.
• Employees of religious schools and hospitals could be prevented from suing if their employers engaged in harassment, discrimination, or even criminal behavior.
• Individuals and groups are less likely to contract with religious organizations (e.g., to host weddings, events, or even provide insurance) if they cannot enforce their rights in court.

Arizona Law Already Provides Strong Protections for Religious Exercise

HB 2648 is not only dangerous. It is unnecessary. Current Arizona law already protects religious freedom, even in times of crisis. For example, the Arizona Religious Freedom Restoration Act provides that the “government shall not substantially burden a person’s exercise of religion” unless the government can meet a very high legal standard.
HB 2648 is also much more extreme than the U.S. Supreme Court’s recent rulings, which already protect worship services during times of crisis. The Court has made clear that government may not impose emergency restrictions on worship services that are more severe than restrictions imposed on comparable secular gatherings. HB 2648 would go far beyond this common-sense rule to prevent the government from imposing any restriction or liability on a religious organization at any time. Even if the religious organization directly endangers the lives of the public or the members of the organization itself, the government’s hands would be tied.

 

This bill has passed the State House and Senate Government Committee. It likely will proceed to the Senate floor.

What can you do?

  1. Click here to email your Senator, Governor, and other key lawmakers.
  2. Register for the virtual Secular Day at the Capitol 3/15, where we will lobby against HB2648

8th Annual Secular Day at the Capitol

Curious about what happens at the legislature? Want to meet your lawmaker and connect with other people who care about secular government? Tired of religious intrusions into state statute? Then we have the virtual event for you!

Join us Monday, March 15th for our 8th Annual Secular Day at the Capitol.

COVID-19 has restricted us to an online forum but we are still here and we are still asking lawmakers to SEPARATE CHURCH AND STATE!

We are contemplating hosting an in-person, outdoor ,covid-safe SECULAR AZ visibility event at the Capitol to coincide with our virtual day. Please let us know in the registration form if this is something you’d like to do. If we have enough interest we will move forward. If we don’t, we don’t. What can we say – the weather is lovely, Secular AZ folks wear masks properly, and we value science!

Monday, March 15, 10AM – 2:00PM (flexibility and breaks built in so you can participate while tending to children, working, etc)

(Tentative) Schedule:
Welcome & Issue Overview & Meeting Practice
Breakout Rooms: 15 minute meetings with lawmakers; guest speakers in breakout rooms
Lunch Panel & Q&A
Secular Invocations and Introductions from the House and Senate
Closing/ end of day / call to action

REGISTER HERE FOR SECULAR DAY AT THE CAPITOL 2021

We are offering a legislative pre-training before Secular Day starts at 10am. Please sign up for this training in addition to the Day at the Capitol. Registration is separate for this meeting; click here to register for this free training.

SPONSOR SECULAR DAY AT THE CAPITOL!

Help us raise ALL of our voices at the Capitol! Sponsor Secular Day… and support our advocacy and activism at the Arizona State Legislature. Sponsors will be recognized on our website, in our newsletters, and at the event.

Since we can’t do in-person tabling this year, organizations that sponsor Secular Day will get time to speak at the event to provide updates on group activities. Click here to become a sponsor!

A HUGE “THANK YOU” TO OUR SECULAR DAY SPONSORS!

  • AARON CONNOR
  • ARIZONA END-OF-LIFE OPTIONS
  • BOBBIE HOWARD
  • BOBBIE MORGENSTERN REAL ESTATE
  • BOBBIE VANDEGRIFF
  • DIANNE POST
  • DON AND NANCY LACEY
  • DONNA GRATEHOUSE
  • ELLEN GITTLEMAN
  • FREEDOM FROM RELIGION FOUNDATION – VALLEY OF THE SUN
  • FREETHOUGHT ARIZONA **SUPER SPONSOR**
  • HOWARD JOHNSON
  • MARK MANOIL
  • MARTHA O’CONNOR
  • PHILIP AND SHERRON LENTZ **SUPER SPONSORS**
  • RON RUSSELL
  • SECULAR HUMANIST JEWISH CIRCLE
  • WHIT JOHNSON

“Warriors for Christ” Fight Against Racial Equality

“Warriors for Christ” Fight Against Racial Equality

by Sophie Carney, Secular Communities for Arizona Legal Intern

On June 5, 2020, District of Columbia Mayor Muriel Bowser had “Black Lives Matter” painted in block letters two blocks long and the entire width of 16th Street NW in Washington D.C. leading up to the White House, a site of prominence during summer protests in response to the execution of George Floyd at the hands of officers from the Minneapolis Police Department. A group opposing the mural filed suit against the Mayor, seeking to remove the mural from the road. The United States District Court for the District of Columbia promptly threw out the Complaint.

As one could imagine, opposition to the mural arose from many places. Almost immediately, the Washington D.C. Chapter of BLM Global Network posted to their Twitter account about their opinion on the display stating, “[t]his is a performative distraction from real policy changes. Bowser has consistently been on the wrong side of [Black Lives Matter DC] history. This is to appease white liberals while ignoring our demands. Black Lives Matter means defund the police.”

As for the other side of the movement, Pastor Rick Penkoski, Chris Sevier, and Tex Christopher filed a lawsuit against the Mayor of Washington D.C. These three plaintiffs make up the leadership of “Warriors for Christ”, a religious group that is included in the Southern Poverty Law Center’s list of extremist hate groups known for anti-LGBTQ speech.

The plaintiffs argue that the painting is a sign that non-black Christians are no longer welcome in the D.C. area. The painting, they claim, is a declaration of Washington D.C.’s preference for Black citizens who practice a secular and humanistic lifestyle. They see this favoritism as a  violation of both the Establishment Clause and the Equal Protection Clause of the Constitution. In response to this lawsuit, Mayor Muriel Bowser and her defense team victoriously argued that the Plaintiffs lacked the ability to bring this suit in the first place, let alone argue it all the way to a win. 

Questions of Standing

The Establishment Clause, found within the First Amendment of the Constitution, generally prohibits Congress from creating laws that establish a religion or prohibit the free exercise of religion. The primary cause of action in this case arose under this Clause, leading the Mayor to argue that Plaintiffs lacked standing for this claim. Standing, in the legal world, can be defined as a party’s ability to prove that they have the right to sue.  The argument over standing in this case was not just based on what would be the proper court to have brought this issue in front of, but whether the plaintiffs were even entitled to bring the issue at all. Plaintiffs in this case asserted their standing for this Complaint under the idea of “taxpayer standing.” That is, they pay taxes in the District of Columbia and that provides the foundation for seeking accountability from the District’s government. 

However, as decided by the Supreme Court of the United States in Flast v. Cohen, those attempting to establish standing based on their position as taxpayers must meet two requirements. First, as enumerated in the decision itself, the unconstitutional action being complained about must be, “an exercise of congressional power under the taxing and spending clause of Art. I, §8, of the Constitution.” The second requirement is that the taxpayers must, “establish a nexus between that [taxpayer] statue and the precise nature of the constitutional infringement alleged.” Given these two requirements, Mayor Bowser aptly argued that Plaintiffs would not be able to establish the requisite standing for their complaint under the Establishment Clause. The rule clearly states that an exercise of congressional power is required for the Court to find that a plaintiff has standing. This painting of the street in Washington D.C. by municipal employees was in no way an exercise of congressional power.

Offended Observers?

The leaders of the Warriors of Christ argued in the alternative that their claim under the Establishment Clause could stand on the “offended observer theory.” This cannot be true. Mayor Bowser, the Supreme Court of the United States, and the Washington D.C. Circuit Court all agreed that there is no legal basis in this theory. Further, making an argument for standing under this theory was unwise for these religious zealots who stand opposed to the BLM movement, as many BLM activists have shown public outrage at the continued presence of racist anti-BLM installments across the country such as Confederate war “hero” statutes and memorials that remain standing. If the religious community in this case was successful in their argument for standing under this theory, it would have set a precedent that would allow the BLM movement to bring suit against offensive public works like those previously mentioned since they too were “offended observers.”

The Equal Protection Clause of the 14th Amendment to the Constitution ensures, in pertinent part, that, “[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States […] nor deny to any person within its jurisdiction the equal protection of the laws.” These self-proclaimed religious “warriors”, in their complaint, argued that the BLM Mural is so offensive to them that it makes them feel as though they are “second class citizens,” because of the impression of favoritism it portrays toward the Black community. While such feelings may be valid in in other circumstances, the Supreme Court historically holds that a party cannot base their standing for an Equal Protection Clause challenge on injury caused by being offended by racial discrimination.

Discriminatory Messaging vs. Discriminatory Treatment

The Court makes a distinction between discriminatory messaging and being personally subjected to discriminatory treatment. This was established in Moore v. Bryant, a case in which an African American lawyer sought an Equal Protection challenge to the Mississippi state flag because of its incorporation of the Confederate flag. The religious zealots in this case are now suffering the same fate forced upon Mr. Moore. Their allegation that the BLM Mural is threatening and offensive might be a result of discriminatory messaging but, until there is a showing that Mayor Bowser or the city of Washington D.C. has engaged in discriminatory behavior, there is no standing for Plaintiff’s Equal Protection Clause challenge to the BLM Mural. 

Mayor Muriel Bowser did not stop at the painting of 16th street. Even in the face of backlash, she was successful in changing the name of the two-block-long pedestrian area surrounding the “Black Lives Matter” mural to “Black Lives Matter” Plaza. Depending on who you ask, the name may be seen as performative, it may be considered offensive, or anywhere in between, but one thing is certain so far: Mayor Bowser is not going to back down from her fight for Black Lives Matter.

As for the religious extremists who tried to make the mural go away, they will have to continue to live in a world where people who do not look, think, or act like them enjoy the same rights they do, even if it offends them.