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!
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)
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
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.
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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!
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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.
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.
Myth: Thanks to separation of church and state, kids can’t pray in public schools.
Some Arizona lawmakers have made headlines claiming that we don’t need to keep guns out of schools; we need to bring more prayer in. Once again, a legislator has introduced a bill (HB2060) to mandate a quiet reflection and moral reasoning time as a way to stick the camel’s nose under the tent.
But as long as there are algebra tests, there will be prayer in school. What the U.S. Supreme Court banned in 1962 (Engel v. Vitale) and 1963 was government-sponsored, compulsory prayer and Bible reading in public schools. Voluntary prayer was never banned but, given the diversity of religions in the U.S. (1,500 to 2,000 estimated), it is a very good idea to prohibit government-sponsored or compulsory prayer.
Prior to those rulings, Jewish and Muslim kids were required to recite Christian prayers. Catholics were required to listen to verses from the King James version of the Bible that was written by the Anglican church that ridiculed the beliefs of the Catholics. The non-religious were required to accept it all. Parents rights regarding how and in what religion to bring up their children were ignored.
Legitimate Educational Goals v. Coercion and Retaliation
Today, young people can pray and read religious books in a non-disruptive way but no one can be compelled or singled out for refusing to do so. Kids can set up religious clubs in non-instructional time but they have to be open to all, student run, and voluntary. Religion can be discussed in classes like history, art, literature and others. The Bible and other religious texts can even be read as part of a comparative religion course. As long as the approach has legitimate educational goals, public school officials will not get into trouble for teaching about religion. This is truly the American way, not coercion and retaliation.
It’s the Bible, after all, that says in Matthew 6:5-6, “And when you pray, do not be like the hypocrites, for they love to pray standing in the synagogues and on the street corners to be seen by others.” Those advocating for public prayer in the school ought to pay attention to their own good books.
The hysteria about praying in schools is just that, hysteria, or perhaps worse. It is the shifting of blame from the state legislature’s refusal to regulate guns as the vast majority of Arizonans want to, claiming that the problem is prayer. It’s the shifting of blame from the state legislature’s depletion of funding for our schools, to blaming our schools’ poor scholastic record on lack of prayer. Those making these claims would not argue that the Koran should be read in class or the Torah or the Humanist Manifesto.
In “Religion in the Public Schools: A Joint Statement of Current Law,” 35 religious and civil liberties organizations give the following summary of the rights of students to express their faith in a public school: Students have the right to pray individually or in groups or to discuss their religious views with their peers so long as they are not disruptive.
The Premise and Promise of Democratic Pluralism
Because the Establishment Clause does not apply to purely private speech, students enjoy the right to read their Bibles or other scriptures, say grace before meals, pray before tests, and discuss religion with other (willing) student listeners.
In the classroom, students have the right to pray quietly, except when required to be actively engaged in school activities (e.g. students may not decide to pray just as a teacher calls on them).
In informal settings, such as the cafeteria or in the halls, students may pray either audibly or silently, subject to the same rules of order as apply to other speech in these locations.
However, the right to engage in voluntary prayer does not include, for example, the right to have a captive audience listen or to compel other students to participate. (Student Religious Expression in Public Schools: United States Department of Education Guidelines)
So first, know the facts: prayer is not excluded, it just cannot be government-sponsored or compelled.
And second, the rules that apply to one, apply to all. The Williamsburg Charter that was signed in 1988 by Presidents Carter and Ford, two then-living Chief Justices, and 200 other leaders states in part:
We affirm that a right for one is a right for another and a responsibility for all. A right for a Protestant is a right for an Eastern Orthodox is a right for a Catholic is a right for a Jew is a right for a Humanist is a right for a Mormon is a right for a Muslim is a right for a Buddhist—and for the followers of any other faith within the wide bounds of the republic.
That rights are universal and responsibilities mutual is both the premise and the promise of democratic pluralism. The First Amendment, in this sense, is the epitome of public justice and serves as the golden rule for civic life.
Rights are best guarded and responsibilities best exercised when each person and group guards for all others those rights they wish guarded for themselves.
Legal Director, Secular Communities for Arizona
Please join us at a virtual memorial service for Secular AZ Board Member and friend Mark Nisski.
Does This Communion Come with COVID?
by Sophie Carney, Secular Communities for Arizona Legal Intern
New York Governor Andrew Cuomo issued Executive Order 202.68 on March 7, 2020 which, in part, placed limitations on the capacity allowances for houses of worship. In the zones of New York most severely affected by COVID-19, houses of worship were to be subjected to a capacity limit of 25% of maximum capacity or 10 people, whichever was fewer.
In moderately affected zones, houses of worship were to be subjected to a capacity limit of 33% of maximum capacity or 25 people, whichever was fewer. The least affected zones were to be subjected to a capacity limit for houses of worship of 50% of maximum capacity.
In response to this executive order, the Roman Catholic Diocese of Brooklyn, New York and Agudath Israel of America and its affiliated entities applied for injunctive relief in order to prevent Governor Cuomo from enforcing Executive Order 202.68 while they seek appellate review of the Order.
Their applications were based on the idea that the Executive Order violates the Free Exercise clause of the First Amendment of the Constitution. The Free Exercise Clause of the First Amendment holds that, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise [of religion] … .”
Under the law, plaintiffs seeking preliminary injunctions have to prove that they are likely to succeed on the merits, that they are likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tip in their favor, and that an injunction is in the public interest. The Supreme Court held that both the Roman Catholic Diocese and Agudath Israel of America met all of these standards for relief.
To succeed on the merits, the applicants had to make a showing that the restrictions they are challenging are not neutral. The Supreme Court held that the applicants were able to show this through the lack of evidence that they have contributed to the spread of COVID-19 and the admittedly more relaxed rule for other non-religious services that have been deemed “essential.” For example, the order allows certain large retail stores to allow, “literally hundreds of people shopping there on any given day,” while restricting houses of worship to 10 or 25 people.
The Supreme Court voted in the majority that, “[t]here can be no question that the challenged restrictions, if enforced, will cause irreparable harm.” The basis for this opinion is that those who want to go to religious services in person will suffer harm that will never be fixed, such as Roman Catholic Diocese patrons’ inability to receive communion and Orthodox Jewish peoples’ inability to meet their requirement for personal attendance.
Finally, the Court held that the granting of the applicants desired relief will not harm the public. This, according to the Supreme Court, is because the State has not claimed nor shown that the public health would be in jeopardy if less restrictive measures were imposed.
Free Religious Exercise? Not in Question
The dissenting opinions in this case provide a different viewpoint on the matter. Supreme Court Justice Sotomayor’s dissent points out that free religious exercise is an important constitutional right, but it is not being called into question in this case. The Constitution, Sotomayor writes, “does not forbid States from responding to public health crises through regulations that treat religious institutions equally or more favorable than comparable secular institutions … .”
This is the case for New York Executive Order 202.68, which treats houses of worship far more favorably than their secular counterparts. For example, large gathering places such as movie theaters and concert venues have been forced to shut down completely and places like grocery stores and shopping malls have capacity limits, mask mandates, and even special hours for people who are more likely to suffer from COVID-19. These types of ordinances have been upheld in lower courts across the country and should serve as a precedent for all places that seek to have large gatherings, whether it is a house of worship or not.
Further, the hypocrisy in applying heightened scrutiny to Cuomo’s Executive Order is illuminated by the Court’s failure to apply heightened scrutiny to clearly religious-based laws such as Donald Trump’s self-described “Muslim Ban” that was designed to thoroughly prohibit Muslim people from entering the United States. If the Executive Order that Cuomo proposed, which does not specify any one religion or even treat houses of worship more harshly than their secular counterparts, is not neutral enough to meet the aforementioned requirement of neutrality to religion to avoid heightened scrutiny, how is it that a Presidential Proclamation singling out the Muslim religion is neutral enough?
Even more, the Supreme Court has refused to enjoin restrictions on churches in places like California and Nevada, so why are they doing so in New York? We place trust in the Supreme Court, in part, because of its consistency in decision-making, but this strays from that standard and calls into question the legitimacy of the Court as a whole.
There is also, of course, the fact that there actually is a possibility that this preliminary injunction could have a detrimental effect on public health. The Court notes that New York has not claimed that attendance at various religious services has resulted in the spread of the disease. However, there is no way to ensure that allowing houses of worship to operate at their desired capacity will not lead to an increase in the spread except for granting the injunction and hoping for the best. The majority opinion of the Court even admits that they are not public health experts, and that they should defer to scientists who are more educated on the matter, yet they continue to maintain their decision to allow the injunction to be granted.
The Supreme Court of the United States, on November 25, 2020, granted the preliminary injunction to the Roman Catholic Diocese of Brooklyn, New York and Agudath Israel of America. By granting these injunctions, the state of New York was prohibited from enforcing the restrictions on the applicants’ religious services that were present in Executive Order 202.68.
It is not clear the public health consequences this decision will bring, nor the costs of the Constitutional injustices brought about by allowing powerhouses in the religious world to pick and choose what laws they want to follow rather than adhering to the secular conventions of the Constitution.
Children cannot be required to recite the Pledge of Allegiance.
Let the shenanigans begin. Now that the state legislature has started, lawmakers are working hard to figure out ways to impose group think. Representative Fillmore from the far East Valley and Pinal County has introduced HB2060, that would require school children in the first through fourth grade to recite the Pledge every morning. Under current law, they may if they like; his change would require they do so unless their parents write an excuse.
Today’s pledge is credited to Francis Bellamy in 1892. Bellamy’s version did not include “under God,” though he was a Baptist minister and Christian socialist. The language of the Pledge has been changed several times since Bellamy’s version. In 1923, “my flag” was changed to “the Flag of the United States” so that immigrants knew it meant their new flag, not their old one. The words “of America” were added in 1924. That new version was recognized by Congress in 1942.
The words “under God” were not added until 1954 during the Cold War, when the U.S. wanted to differentiate itself from the godless communists. Several previous attempts to add that wording had failed; it was finally achieved by a joint resolution of Congress. However, some historians argue that in fact it was not the fear of godless communists that motivated the addition of “under God” but the desire to conflate Christianity and capitalism as a challenge to the New Deal legislation of President Franklin D. Roosevelt. The “prosperity gospel” of today has certainly conflated Christianity and capitalist excess.
The pledge was first used in public schools in 1892 in connection with the World’s Fair in Chicago. My friends from other countries are astonished that school children are required to recite such a pledge, as they consider it akin to brainwashing. Five states do not require the pledge (CA, HA, IA, VT, and WY) and the U.S. Supreme Court has said that schools may not require students to do so. So Fillmore’s bill is unconstitutional. However, that has not stopped this legislature in the past.
Over the years, many lawsuits have been brought against mandatory recitation of the Pledge and the wording “under God.” Jehovah’s Witnesses brought many of the cases because they consider the pledge to be idolatry and against their religion. In 1943, in West Virginia State Board of Education v. Barnette, the Supreme Court said that public school students cannot be required to say the Pledge and that such ideological dogmata is antithetical to the principles of our country.
The justice concluded with: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.”
Other objections have been that for a democratic republic built on freedom of dissent, citizens should not be required to speak, as in reciting a pledge, because it violates the First Amendment. Secondly, children who are forced to recite the Pledge are not of an age that they can consent to the speaking. Third, the addition of “under God” in 1954 violates the First Amendment protection against the establishment of religion.
In 2005, a CA court ruled that forcing children to say “under God” was an endorsement of monotheism that violated the First Amendment. In 2006, a FL court ruled that requiring students to stand and pledge violated both the First and Fourteenth amendments. In that case, the student had been ridiculed by the teacher. In 2009, a mother in Maryland sued and won when a teacher berated her child and had her removed from class for refusing to say the Pledge. Should the existence of actual facts come back into fashion, neither the Pledge of Allegiance nor the saying “under God” had any connection with the founding of the nation.
• • •
Dianne Post, Legal Director
Secular Communities for AZ
During Executive Session of the January 9, 2021 Secular AZ Board Meeting, Zenaido Quintana tendered his resignation effective immediately. Not all Board members were present at the time so the remaining members scheduled a meeting on January 10 so all members of the Board could participate in a discussion of next steps. The Board met via Zoom and accepted Mr. Quintana’s resignation. Given that the Vice Chair is on a leave of absence, the Board asked me to step in as Interim Chair while the Board considers how to structure the Organization for future success.
Zenaido has established a very impressive history of accomplishments, both in the leadership of the Coalition and with assembling and building the Liaised Organizations. This was no more evident than when the Phoenix New Times recognized “The Secular Coalition for Arizona” as The Best Activist Group for 2020.
The Board and I want to recognize and thank Zenaido for the tremendous work he contributed over so many years.
During the coming days and weeks, I will be reaching out to our community to ensure that we understand your objectives and to keep you aware of and understanding what we are doing. Thank you for your continuing support to our efforts to be the voice of secular voters.
No Religious Test for Public Office
Today’s political campaigns, from president on down, often include references to the religion of the candidate and how pious the candidate is. This should not be a political bellwether.
The only mention of religion in the body of the Constitution of the United States is in Article VI, which states:
3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
The founders made it clear: no official religion or government support for any particular religion; no religious test for office; and anyone can practice any religion they want… or none at all. An oath is not required, an affirmation will do. When Senator Sinema was sworn in, her left hand rested on the Constitution, emphasizing that her duty is to the law and the Constitution not a Bible.
No Official Religion: It’s Constitutional
Many of us have forgotten this provision that was written into the Constitution itself. At the time of the Constitutional Convention in 1787, most of the colonies still had religious establishments or religious tests for office. It was unimaginable to many Americans then that non-Protestants — Catholics, Jews, atheists, Muslims and others — could be trusted with public office. But surprisingly it was Charles Pinckney from South Carolina who proposed the provision, though South Carolina had a state religion at that time. This thinking represented the new spirit of religious liberty exemplified in the Enlightenment thinking of Jefferson. It passed with little dissent.
It still took until 1961 for Maryland to abolish the last religious test. Torcaso was appointed to the office of Notary Public by the Governor but was refused the commission because he would not declare his belief in God. He sued and the case went to the U.S. Supreme Court, Torcaso v. Watkins, 367 U.S. 488, 81 S. Ct. 1680, 6 L. Ed. 2d 982 (1961).
As the Supreme Court pointed out:
It is true that there is much historical precedent for such laws. Indeed, it was largely to escape religious test oaths and declarations that a great many of the early colonists left Europe and came here hoping to worship in their own way. It soon developed, however, that many of those who had fled to escape religious test oaths turned out to be perfectly willing, when they had the power to do so, to force dissenters from their faith to take test oaths in conformity with that faith.
This brought on a host of laws in the New Colonies imposing burdens and disabilities of various kinds upon varied beliefs depending largely upon what group happened to be politically strong enough to legislate in favor of its own beliefs. The effect of all this was the formal or practical ‘establishment’ of particular religious faiths in most of the Colonies, with consequent burdens imposed on the free exercise of the faiths of nonfavored believers.3
The Kind of “Faith” We Need
Still today, we see those who are in a position of power ready and willing to burden those from another faith or no faith, even to the extent of refusing to wear a mask and possibly infecting them with a deadly disease. But the Torcaso court kept to the founding father’s principles and said, “We renew our conviction that we have staked the very existence of our country on the faith that complete separation between the state and religion is best for the state and best for religion.”
That is the kind of “faith” we need.
Until the nomination of Al Smith in 1928, all presidential and vice-presidential candidates nominated by the two parties were Protestants. In 1960, the election of John Kennedy, a Roman Catholic, broke the informal political barrier that had long excluded non-Protestants from the presidency.
Churches didn’t just fight against each other: they fought within their own religion. Today, politicians fight to declare who is the most sincerely “born again.” The Deist religious convictions of Thomas Jefferson — based on reason, rather than revelation —were attacked, as was Romney, a Mormon, when he ran for president.
12. Liberty of conscience; appropriations for religious purposes prohibited; religious freedom
Section 12. The liberty of conscience secured by the provisions of this constitution shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of the state. No public money or property shall be appropriated for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment. No religious qualification shall be required for any public office or employment, nor shall any person be incompetent as a witness or juror in consequence of his opinion on matters of religion, nor be questioned touching his religious belief in any court of justice to affect the weight of his testimony.
The Arizona Constitution protects not only public office holders from any religious test, but also witnesses and jurors. In Kelley v. ADBO, M.D., 2005, the decision was reversed because of prejudicial cross examination about the plaintiff’s belief in Wicca, which the court found was not necessary for any valid purpose in a Mormon community except to be prejudicial.
So Arizona, too, has made it clear that a religious test may not be imposed in the public square to bar anyone from their duties or responsibilities. Unfortunately, our current state leaders honor the Constitution in the breach by posting religious messages on government communication sites and refusing to adhere to health and science requirements in a pandemic.
We need each of you to step up and report such violations so action can be taken.
Earlier, I reported on the pages of Black Collar crime from FFRF; one of the cases reported in that edition was two Amish brothers who had impregnated their 13-year-old sister. They were given a 15-year-suspended sentence with 5-years probation, community service, and have no contact with the victim.
Within 3 days, they had violated the document they both just signed. So they were sent to prison. How arrogant must you be to risk 15 years in prison?
I also mentioned the 93,000 men who had filed claims in the Boy Scout bankruptcy. All BSA units are owned and operated by chartered organizations and 65% of them are chartered to faith-based groups.
The Mormons lead the pack with 37,933 units and 437,160 members and withdrew from scouting in 2019; the United Methodist Church was a distance second with 10,703 units and 349,614 members; and the Catholic Church third with 8,131 units and 259,297 members.
Are Mormons Christians? The Question and its Implications
by Matthew Adler, Secular Communities for Arizona Legal Intern
In a recent Arizona appellate case, the court was confronted with the age-old question of whether Mormons can be considered Christians. The lower court had declared unequivocally “that Mormonism does not fall within the confines of Christian faith.” The appellate court, however, cried foul and vacated the judgement.
In so ruling, the court held that to address such a question would violate the little-known but long-established judicial rule known as the “ecclesiastical abstention doctrine.” This doctrine, which has its genesis in an 1871 Supreme Court case, essentially states that courts may not adjudicate issues that require the resolution of theological questions. For most of its history, this doctrine has been relatively uncontroversial. Recently, though, some courts around the country have expanded the doctrine in ways that endanger the public’s access to justice.
The vast majority of the applications of the ecclesiastical abstention doctrine have been to issues that fall squarely within the realm of religious dogma. As such, the doctrine has not historically been the subject of much public debate or scrutiny. One example of a typical application of this doctrine is whether a church can fire a priest for the alleged violation of some specific religious tenet. Were the priest to sue for wrongful termination, the court would likely dismiss the case on the grounds that the court is both ill-equipped to and prohibited by the free exercise clause of the first amendment from addressing such a question. Recently, however, certain courts have weaponized this doctrine in order to dismiss cases that do not actually have anything to do with religion.
Take, for example, a recent case in Texas in which a student was expelled from a religiously affiliated school merely because he was alleged to have smoked marijuana off-campus, despite the fact that he tested negative for the drug and that the school has a lenient first-offense policy enshrined in its code of conduct. When the parents sued, both the trial and appellate courts refused to even consider the case, citing as justification the ecclesiastical abstention doctrine.
This rationale is highly dubious for a few reasons.First, the ecclesiastical abstention doctrine does not prohibit courts from issuing rulings that affect religious institutions.It only prohibits rulings that explicitly address questions of theology.For example, if a church were to get into a contractual dispute with its electricity provider, the court could and would hear the case because it does not touch on any religious issues.
Likewise, in the Texas case, the issues were whether it could be shown that the student smoked marijuana in the first place and whether the expulsion violated the school’s own disciplinary policy. The issue was emphatically not whether the Christian faith condones the use of marijuana.
Additionally, the school in question is not even a religious institution. It is neither owned nor operated by a church; it merely self-identifies as religiously affiliated. In applying the ecclesiastical abstention doctrine to a secular organization, the court charted a stark departure from judicial precedent. The school was able to avoid even the possibility of liability by merely invoking “religion,” despite the fact that the issues presented by the case were not of a religious nature. This case seems to be yet more evidence of the growing trend of judicial deferment to religious institutions in contexts that deal fundamentally with a person’s civil rights.
Thankfully, the Arizona case discussed in the first paragraph of this post does not present the same problems as the Texas case. The Arizona appellate court was prudent in its application of the ecclesiastical abstention doctrine, as the question of whether Mormons are Christians is a genuine theological dispute that is still the subject of vociferous debate. The court would be unable to resolve such a question, and any attempt to do so would be extraordinarily damaging to the court’s status of impartiality and would be a clear violation of the first amendment.
The ruling does, however, raise a few interesting hypotheticals. I am by no means an expert on religion, but Mormonism and Christianity seem highly intertwined, considering that Jesus Christ is a central figure of both faiths. One would assume that if the court had instead been presented with the question of whether or not Islam could be considered a form of Christianity, the court would not have hesitated to rule on the matter. But what if the father had instead converted to the Native American Church, in which the Great Spirit is often held to be synonymous with Jesus Christ, and in which the ritual use of Peyote is an integral practice of the faith.
In such a hypothetical scenario, would the court rule that exposing the child to such religious practice violates the parenting agreement, or would the court still have applied the ecclesiastical abstention doctrine? Luckily for the court, it was not presented with such a thorny question.
Although the recent Arizona case was not problematic, it does serve to draw our attention to related issues that do seem to pose a genuine threat to the religiously neutral administration of justice.
Secular Communities for Arizona Legal Intern
My Dad’s Bigger than Your Dad: When Favorable Treatment isn’t Enough
by Adriana Lujan-Flores, Secular Communities for AZ Legal Intern
On November 25, 2020, the U.S. Supreme Court ruled to stop New York Governor Andrew Cuomo from limiting church capacity in areas with high concentrations of COVID-19 cases. Executive Order 202.68 imposed a 10-person occupancy limit on “red zones” and a 25-person occupancy limit on “orange zones”— areas determined to be hot spots for the deadly virus. The 5-4 decision ruled that Cuomo’s executive order violated the free exercise clause of the First Amendment by allowing certain essential businesses (such as shops and laundromats) to operate with a higher occupancy than religious organizations.
The majority opinion insists that there is no reason to assume that churches and synagogues are more dangerous than other businesses, and that attending religious services from home is “not the same as personal attendance.” Justice Gorsuch’s concurrence belabors the point by repeatedly claiming that allowing liquor stores and bike shops to operate at a different standard from churches and synagogues is “treating religious exercises worse than comparable secular activities.”
However, liquor stores and bike shops are in no way comparable to churches and synagogues. As Justice Sotomayor points out in her dissent, people do not gather in large groups for over an hour in stores the way they do in houses of worship. Furthermore, Cuomo’s executive order actually treated religious organizations more favorably than comparable secular events such as concerts and cinemas, which have been closed entirely.
In fact, the only reason the order even mentions houses of worship is to give churches preferential treatment by allowing them to be open to the public at all. Sotomayor also points out the Court’s hypocrisy in considering applying heightened scrutiny to this case, but not to the President’s “Muslim ban” in Trump v. Hawaii, which prevented Muslims from certain countries from entering the United States.
The free exercise clause of the First Amendment prevents the government from prohibiting the exercise of religion. However, the right to freedom of religion doesn’t give every religious group a free pass to ignore the law. Courts have upheld legislation that burdens the free exercise of religion if there is some threat to public safety, peace, or order. Restrictions on large gatherings during a pandemic are intended to protect the public from a deadly virus that spreads through close contact from person to person.
Justice Breyer notes in his dissent that the uncertain nature of COVID-19 creates a strong argument for the state to take actions to curb the risk of spread. But the majority of the Court rejects this as a compelling reason to restrict church capacities — essentially ignoring warnings from public health experts — because there is not evidence that these specific churches have already increased the spread of COVID-19. The court seems to suggest a reactive approach to the pandemic by not allowing local governments to take preventive measures until it is too late.
Three weeks after the opinion in Roman Catholic Diocese of Brooklyn v. Cuomo was issued, the country is already seeing the decision’s effects. On December 15, the Supreme Court accepted an appeal from a Colorado church fighting a 50-person occupancy limit, despite the fact that the restriction had already been lifted by the governor. On the same day, the Court granted a similar appeal by a New Jersey church. Both cases relied on the precedent set in Cuomo’s case, and it is likely that other organizations will use the case to fight pandemic-related restrictions going forward.
Notably, the 10-25-person capacity limitations were no longer in effect in New York by the time this case reached the Supreme Court, so the injunction will have little direct impact. Nonetheless, the Court decided to issue an opinion anyway, just in case the restrictions are reinstated.
This case is just an example of religious organizations testing how far the Court will go to allow churches to act above the law. Even though houses of worship were given preferential treatment under Cuomo’s executive order, that was not enough for an entity that is used to having absolute power.
Secular Communities for AZ Legal Intern