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.

 

Matthew Adler

Secular Communities for Arizona Legal Intern

In preparation for what we hoped would be a very different legislative session in 2021, the Secular AZ legal department scoured the entire Arizona code to find all statutes related to religion and determine what needed to be fixed.  We searched for “religion”, “religious,” “god,”  “church,” or “faith-based.”

We were astounded to discover 220 different statutes.  

Many were necessary statutes that prohibited discrimination based on religion, e.g. in employment and public accommodation. A small number related to exemptions due to the practices of specific sects, such as kosher and halal butchering practices, minors drinking wine at religious ceremonies, higher penalties for criminal acts against a religious building, wearing religious head coverings, etc.  These we left alone.

But those statutes — and there are many — that allow religious treatment, prayer, or laying on of hands to substitute for health care are concerning.  If a person wants that for themselves, that is fine… but if the public is paying for it (such as workers compensation, an industrial accident, or AHCCCS) that should not be allowed on the public dollar.  Some people have taken this to the absurd level of refusing to wear masks, thus putting many other individuals and the economy in jeopardy for their “beliefs.”   

The next category was more concerning, with a great number of statutes that use god language in a required oath, e.g. in court, or excuse behavior due to an “act of god.”  These are simple fixes by using “swear or affirm” and removing the god language from the oath. For the “act of god” language, the term “force majeure” is already an acceptable replacement.

Violating the Establishment Clause

Also of some concern is the number of religious or faith-based institutions or people in government enterprise. There is no requirement that non-religious people be represented in those bodies making government policy. Many of these positions are on “family related” committees and advisory boards… as if non-religious folks don’t have families? In some programs, such as the healthy family program, the program is allowed to push for people to be involved in religion.

I would argue that this is a violation of the First Amendment establishment clause. There is no evidence that being involved with a religion makes a family any healthier! Children are also allowed to be excused from school, which interferes with their tax-payer-funded education. Often, state-funded treatment programs give no options other than religious ones. This has been litigated in other states but successfully resolved thus far in AZ.  

Of increasing concern is the number of exemptions given to religious organizations because they are religious. This includes wine, chickens, bank deposits, and others. The exemptions regarding corporations are especially concerning. Such corporations can exempt themselves from many of the reporting and transparency requirements to their own members as well as to the public. This can result in fraud, such as was seen in the Baptist Foundation of Arizona case in 2006. 

Religious Exemptions for Clergy and Healthcare Providers

Of special concern are the provisions exempting clergy from reporting child abuse or having to testify. Two bills were introduced last year into the legislature to resolve this, but were not heard. Given the well-known history of clergy abuse of children, keeping this protection for clergy is very dangerous and harmful for children.

The statutes that allow medical professionals to refuse treatment based on their so-called “religious beliefs” have resulted in serious medical harm to patients. Not only is it a violation of medical ethics, but for the safety of patients, this must be stopped.

 Likewise the ability to refuse to vaccinate your child based on religious belief or in fact no reason at all is medically dangerous to public health and individual children. These provisions elevate religious belief above public safety and put the public at risk, especially vulnerable persons.

The taxation exemptions have always been a problem. The statute that allows business to lease to religious entities and then get a tax deduction is even more concerning, since the exemption is extended to non-religious corporations. An earlier analysis by our group found that the state is losing more than $1 million a year in tax money from this. Churches make money or they don’t… just like every other business. If they don’t, they won’t be burdened with taxes. If they do, they should pay like every other business since they are using infrastructure created and paid for by taxpayers — roads and streets, mail services, internet, courts, corporation commission, education system, libraries, zoning, traffic control, law enforcement, etc.  

Codified Discrimination Based on Religion

Very concerning is the discrimination allowed by religious organizations because they are religious. For example, failure to oversee charter schools, refusal to provide medical treatment or insurance, failure to protect employees from discrimination, or refusal to follow the patient’s wishes. The failure to oversee charter schools has resulted in a cash cow of public monies to the founders (often legislators) as reported in the Arizona Republic in a 2018 expose. The refusal to provide appropriate medical services harms the employees directly and public health indirectly.  

Other favoritism given to religious organizations includes:

• prisoners can be released to attend services
• children can opt out of HIV information and sex education
• religious mottos can be placed in public places
• sex discrimination is allowed

For reasons unknown, corporate boards are given carte blanche to believe the statements of religious people without doing due diligence as to the truth of the statements. As in the Baptist Foundation case, this can result in real harm to the customers and the public. The conflict of interest provisions don’t apply either.   

Even more astounding is that a student can give a completely wrong answer on a test, e.g. that the earth is 6,000 years old, and can get credit if that wrong answer is allegedly based on the student’s religious beliefs. Science does not care whether you believe it or not; it is the truth. While religions can discriminate against us, we can’t discriminate against them e.g. in issuing contracts.  

Establishment of Religion by the State

In addition to those sections explicitly based on religion, there remain sections where religion is not stated directly but is the under girding reason. For example, abstinence education (a complete failure), adultery, and all the abortion provisions that base law-making on the belief of one sect that life begins at conception when many other sects do not agree. This is establishment of religion by the state.

This review of the Arizona statutes shows clearly that if there is any “war,” it is on the nonreligious, not on religion. In fact, religious belief and religious institutions are given advantage after advantage, from tax breaks to lack of transparency, from exemption from many laws to the ability to discriminate and punishing others who attempt to act on their beliefs.

We do not have neutrality on religion – we have favoritism for a certain religion. We must even these scales.

The priorities for the 2021 legislative session will be discussed at the (virtual) Secular Summit on Dec. 5.

Join us and let us know what you think.  

 

Dianne Post, Legal Director

Secular Communities for AZ

 

The claim that this nation was founded on Christianity directly contradicts the Constitution and more than 200 years of history.  The First Amendment says: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;…” 

They shall not establish a religion and they shall not prohibit citizens from exercising their own religions – whatever they may be. At that time, some colonies did have established religions and even taxed all citizens to support them. If someone didn’t like that religion, they could be imprisoned, tortured or killed. A period of disestablishment followed.

“No Man Shall Be Compelled”

Jefferson’s proudest claim was the Virginia Statute for Religious Liberty that he and James Madison passed to end Virginia’s established church.  The statute says:

We the General Assembly of Virginia do enact that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer, on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.

The United States was deliberately founded so as not to be reliant on or connected to any religion.  The founders all had experience in or knowledge of countries where religious differences had torn them apart, some for hundreds of years, over doctrinal disputes.  Various religions already existed in the colonies and to weld all that into one country would not only take some skillful doing, but require that religion could not be the weapon that tore it all apart.

The founders themselves were religious but they had seen that the mixture of government and religion — both in the old country and the new — resulted in oppression and tyranny.

An America Where Separation of Church and State is Absolute

The Constitution contains no mention of religion except in Article VI that prohibits any religious test for public office. The founders did not want a government that could exclude people based on religion. Many of those who fought for this provision were clergy because they understood, as did James Madison, that mixing faith and government weakens both.

I’m old enough to remember the uproar over John F. Kennedy being a Catholic. The rumor mill ran wild with fears that if Kennedy won, the Pope would be running the county. In response, Kennedy said:

“I believe in an America where the separation of church and state is absolute – where no Catholic prelate would tell the President (should he be Catholic) how to act, and no Protestant minister would tell his parishioners for whom to vote – where no church or church school is granted any public funds or political preference – and where no man is denied public office merely because his religion differs from the president who might appoint him or the people who might elect him.

I believe in an America that is officially neither Catholic, Protestant nor Jewish – where no public official either requests or accepts instructions on public policy from the Pope, the National Council of Churches or any other ecclesiastical source – where no religious body seeks to impose its will directly or indirectly upon the general populace or the public acts of its officials – and where religious liberty is so indivisible that an act against one church is treated as an act against all.”

Kennedy was elected and none of the hysterical claims became reality in his term. But today, it appears many politicians accept instruction on public policy from their church and even brag about it in violation of Article VI. We have seen several examples in Arizona with a church in Mesa holding a voter registration program for supporters of the current president and a church in Cave Creek hosting a campaign speech – both in violation of the law. IRS complaints were filed about both.

Today, as in 1776, churches disagree with each other on doctrine, structure, and social issues. Some support same sex marriage, some oppose; some support women as church leaders, some oppose; some offer sanctuary to refugees, some oppose; some support abortion, some oppose. So which sect would rule?   

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 to name a few – are notorious for their violations of human rights, violence toward women, and silencing of those who disagree.

Attorney and historian Andrew Seidel in The Founding Myth:  Why Christian Nationalism is Un-American, lays out a brilliant argument on why the efforts of Christian nationalists to destroy the “wall of separation” between church and state is in fact traitorous. Only the separation of church and state maintains religious freedom for us all.

• Dianne Post

• Legal Director, Secular Communities for AZ

• November 12, 2020

The Power Worshippers”: Dianne Post Reviews Katherine Stewart’s Latest (Terrifying) Book

She’s done it again — she’s terrified me. Katherine Stewart has another great book in The Power Worshippers:  Inside the Dangerous Rise of Religious Nationalism.

I don’t know how she:

1. gets into these religious meetings;
2. convinces these people to talk to her; and
3. manages not to lose her mind.

As Stewart says, Christian nationalism is a political ideology, not a religious one. It’s also not a grass roots movement, but a grab for ultimate power driven from the very top. They have captured the Republican party and seek to undermine American institutions that are the bulwark of democracy. The Republican party is now ranked internationally as authoritarian as are the political parties in Turkey or Hungary. They are totally in bed with the Russian Orthodox church which is one of the most authoritarian in the world – working hand in hand with the Russian state, just as in the time of the Czars.

Christian nationalists’ reading and interpretation of the Bible is at odds with centuries-old mainstream religious beliefs. In a George-Orwell-style reversal, they want to punish the poor, destroy the environment, and expel the strangers. Poverty is due to lack of spiritual growth, and multiculturalism introduces pagan and new age ideas, such as Gaia, and social causes such as environmentalism

Ending Public Education: Theocracy, Segregation and Greed

The move to end public education is part of the religious nationalists’ campaign to transform America into a theocracy. They claim public schools are too secular. It’s also about segregation, just as private schools were in the 1960s. But what they really want is to get their greedy hands on the money that goes to public schools — the real gravy train.

Church planting is one method of using public school dollars. They “plant” a church inside a school campus so Monday through Friday it’s a school, but Sunday it’s a church. They don’t pay for the school or the upkeep or the utilities, and the “rent” they pay is minuscule compared to the costs the taxpayers have borne to build and maintain the school. The Harvest Preparatory Academy in Yuma is one of these, with its World Harvest Church run by the same people “planted” in the same space.

Total Submission of Women

The total submission of women is another Christian nationalist main theme. They argue that if women don’t want male “protection” then they are agreeing to be raped. They also urge the complete obedience of children to the tune of beating little ones in a high chair for not following orders.  The abortion issue is entirely a political calculation, nothing to do with morality or life or ethics or religion.

It is ironic how the religious nationalists don’t believe in government, but they want government to impose their choices on us. They don’t believe in masks because “my body, my choice,” but that doesn’t apply to women who want to control their bodies. They believe preachers should be able to preach politics from the pulpit, but doctors cannot tell women truthful scientific health information in the privacy of their own offices.

Some mainstream Christians and progressives have stood up against this juggernaut, but not strongly enough. Some of the nationalist groups are burrowing within to destroy even those.

Stewart lists corporations whose funding drives the movement, as well as the people (and even whole families) who control the trajectory. She outlines the inner workings of the outer manifestations we see.  She divulges a litany of delusional people with very bizarre ideas about holy war, property in slaves, health care, and education. Though poor whites are the system’s biggest losers, they have bonded — like Stockholm Syndrome victims — with the oppressors to seek to “take back” the country to a time that never was.

The Courts are Already Packed

Biden cannot pack the courts because twenty years ago, Christian nationalists already started packing the courts… and they have pretty much done the job. Legal decisions since then show that they want to imprint Christianity in society as privileged and use the court system to create an exception for them from the general law.

The ruling that invocations at public meetings and crosses on public lands are allowable because they are symbolic only engrains those religious symbols in public spaces and into the public consciousness. The Trinity Lutheran ruling — that churches can compete for government funds for physical renovations — was the camel’s nose under the tent; money is fungible and what is not spent on the parking lot will be spent on proselytizing.

In the Town of Greece v Galloway decision, they pretended that religious speech was the personal speech of the speaker so  that to prohibit it would be discrimination. In fact, the speakers are public officials at a public meeting. Yet when a public official says an obvious truth, i.e. religion has been used in many terrible ways to harm people, that is found to be discrimination against religion and required reversal of the decision! 

Claiming to Seek Neutrality is a Farce, When One Sect Already Has a Leg Up

“Sincerely held religious beliefs” are simply code to be able to discriminate against anyone you want. To claim they seek neutrality is a farce when one sect already has a leg up. Religious freedom to them means privilege for those with the “right” religion.

In the Espinoza v Montana case, the court said that to prohibit religious schools from public money is to discriminate against religious schools. That “reasoning” renders meaningless the First Amendment, which prohibits the government from establishing religion.

A recent case in Maine rejected that foolishness by ruling that to deny religious schools from publicly funded vouchers is not discrimination based on religion, but based on the fact that they would spend government money in the way government money must not be spent: to establish religion.

Health Care by Priests, Rather than Doctors

Stewart covers a breadth of topics, from the minister’s housing scam to the lies of the Good News Clubs. She devotes a chapter to the problem of Catholic health institutions, relating story after story of how such institutions put women’s lives in danger. They take public money but deny reproductive rights and end of life requests, and lie to patients about legal rights and medical options. Often, they are the only medical resource available, resulting in health care by priests rather than doctors.

Arizona is a hotbed of these religious nationalist groups. According to the Southern Poverty Law Center, Arizona is the home to a large number of illegal armed domestic gangs, white supremacist groups, and of course the infamous Alliance Defending Freedom (ADF).

Arizona is also the petri dish for vouchers and has a sordid history of corruption in charter schools, as reported in the Arizona Republic in 2018. The vouchers were cash cows on the public dime. Eddie Farnsworth, a representative and then senator, made $14 million as he voted again and again not to regulate vouchers.

Senator Yarborough was another who retired to enjoy his ill-gotten gains. Glen Way got $18 million in no-bid public monies contracts to build charters. Yet these same people are wailing crocodile tears about a surcharge of 3.8% for those earning above $250,000 to pay for the public education that they have decimated.

Another religious nationalist case was argued to the Supreme Court the first week in November, with religious zealot Barrett not afraid to bare her colors.

As religious nationalists point out, it only takes action from 10% of the country to make radical changes. We need you to be that 10%.

Step up: join; volunteer; take action; run for office; write letters to the editor; protest; donate; lobby: no one can do everything, but everyone can do something.

Katherine Stewart will be the keynote speaker at the annual Secular Summit on December 5. Become a member of Secular AZ and show up at this virtual event.

 

Dianne Post

Legal Director, Secular Communities for AZ

November 5, 2020

Can Religious Exemptions Trump Public Accommodations Laws?

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

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

An Attempt to Change Democracy into Theocracy

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

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

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

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

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

Using Religion to Deny Medical Care

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

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

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

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

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

Majority of People Oppose Religiously Based Service Refusals

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

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

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

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

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

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

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

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

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

– Dianne Post, Legal Director

Revival of the Free Exercise Clause

Dianne Post, Secular AZ Legal Director

In a follow up to the previous webinar about the decline of the Establishment Clause of the First Amendment, the American Bar Association’s next topic was the revival of the Free Exercise Clause. Two lawyers presented on the secular side and two on the religious side. 

As expected, the religious side said that the Employment Division v. Smith case in 1990 was a sea change in the law; the Religious Freedom Restoration Act (RFRA) was necessary to correct the balance; and the Fulton v. City of Philadelphia, PA case (now at the Supreme Court) would restore the law to what it had been pre-Smith.

“A Great Imbalance in Freedoms”

The secular side disputed every point; i.e. the Smith case was no change at all, RFRA has caused an imbalance, and the Fulton case, if decided wrongly, would create a great imbalance in freedoms.    

Those arguing for religion to be supreme were Stephanie Barclay — now a professor at Notre Dame law school but previously with Beckett Fund — and Douglas Laycock at U of TX law school, who argued the ministerial exemption cases. Barclay thought government should have to explain why their regulations should be able to “burden” religion because religion stands in a “preferred position.” In her mind, we should look only at the alleged harm to religious people, not to all people. That attitude is counter to every principle of our founding documents and the evolution of our Constitution.

Laycock thought the court has been wrong on the cross and prayers cases, but is right on the money cases because handing out money is a neutral general rule and withholding money punishes religion. He also claims that the decisions regarding church closures during COVID should not focus on how bad the health crisis is or the impact on the pandemic, but on how religion has been burdened. This argument suggests that the public health of the entire country — indeed the world — is less important than the ability of a few to meet in large crowds.

This is no religion I grew up with.

No Restrictions on Religion… At All

Richard Katskee from Americans United for Separation of Church and State pointed out that the two clauses, Establishment and Free Exercise, should not be at odds, but should be in harmony. He argued that churches already get lots of special privileges from the government, and that no one has the right to get government money (or any money) and then refuse to do the job they were hired to do.

But the Christian Nationalists are arguing that there can be no restrictions on religions at all, which is clearly wrong. This would give them a “favored” place, as everything else is and can be regulated.  These same Christian Nationalists certainly believe women’s bodies can be regulated.

Ira Lupu from George Washington University Law School argued that Smith was not a sea change at all and was not based on a religious exemption, but on “good cause” for an unemployment benefits decision. He claimed it was the Warren Court that expanded not only criminal and civil rights, but religious rights, as well. The attempts today to overturn Smith are an expansion of religious rights, especially Burwell v. Hobby Lobby.

The biggest disagreement came when Laycock suggested that religious agencies should just be left to refuse customers/clients based on any reason they like, so long as they refer them elsewhere. Katskee disputed that by saying compare it to race; would we say that religious agencies can refuse service by saying “we don’t serve your kind here,” go elsewhere?

In some situations, other options don’t exist; in Madonna v. US District CT SC, the evangelical placement agency that refused Catholics was the only one in the region. Many Catholic hospitals are the only medical care available for women for miles around, and when they refuse reproductive care, they put women’s lives at risk.

Laycock retorted that race is different because we had a civil war and 150 years of civil rights struggle. Is that his suggestion on how to resolve things — have a civil war?  He might get his wish.   

As Katskee pointed out, the question is not should religious groups be prohibited from government money because of religion; the question is should religious groups be able to get government money and refuse to complete the job they were hired to do. The framing of the question often dictates the answer.

We are in for a rough road. We need to outsmart and out-organize the opposition. We need all of you to help.

Dianne Post

10/19/20