The Supreme Court — sequestered in its shadow docket after midnight on Sept. 1st — made several things clear with Whole Women’s Health v. Austin Reeve Jackson.
First: the court has zero credibility. They no longer decide legal cases based on the Constitution, the law, precedent, science, or facts. They decide solely on politics. Continue reading
Roman Catholic Diocese of Brooklyn v. Cuomo.
Fulton v. Philadelphia.
Tandon v. Newsom.
Whole Woman’s Health v. Jackson
Throughout the pandemic, the highest court of the land has favored religious adherents to the detriment of public health, LGBTQ+ people, and the Constitution’s Establishment Clause. I felt nauseous as I read majority opinions from the 2020-2021 term; arch-conservative Supreme Court Justices had institutionalized a complete disregard for the separation of state and church. Christian nationalism has taken hold of our democracy. Continue reading
by Beth Houck, Secular AZ Legal Committee volunteer attorney
This summer, Secular AZ’s Legal Committee has been reviewing the invocation policies and practices in every county’s board of supervisors’ meetings, and in the city council meetings of the cities that are county seats. It’s a big project, requiring many public records requests and listening to hundreds of hundreds of recordings going back to the beginning of 2020. Continue reading
State lawmakers worked hard this session to figure out ways to impose groupthink on students. Representative Fillmore from the far east valley and Pinal county introduced HB2060, requiring school children in grades 1-4 to recite the Pledge every morning. Under current law, they may if they like; under Fillmore’s bill — which thankfully died in committee — they would have been required to do so unless their parents wrote an excuse. Continue reading
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
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. Continue reading
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
“[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.
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.
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.
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.
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.
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
No Religious Test for Public OfficeToday’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.
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
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.
In Arizona, Article II section 12 of the State Constitution provides:
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.
Dianne Post
1/4/2021