Revival of the Free Exercise Clause

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

   

Christians Only: Nonbelievers Need Not Apply?

The AZ Legislature has a long history of discrimination against atheist legislators, who have been repeatedly hazed, harassed, and belittled for opening legislative sessions with secular invocations.

It happened again this week, at our annual Secular Day at the Capitol. Senate President Karen Fann’s Office confirmed that Sen Juan Mendez would give the opening invocation that day, in order to represent the growing number of Arizonans who don’t believe in God. She broke her word and gave the invocation to Senator Mesnard, who gave a (conveniently ready-to-go) Christian prayer.

This action symbolically slapped Sen Mendez and AZ atheists, dozens of whom were in the gallery that day, in the face.

We’re tired of this disrespect toward nonbelieving Arizonans. We’re also tired of the controversy that surrounds public prayer and the petty theatrics it seems to attract.

Arizona can do better.

We’re calling upon Senate President Fann to stop the religious bigotry and end invocations in the Arizona Senate.

Please sign our petition to end invocations in the AZ Senate.

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Tell Senate President Karen Fann: Stop Religious Discrimination at the AZ Capitol

 

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Click here to sign this petition.

Religious Preference in the House: Rep. Salman and Secular AZ in “The Nation”

Secular Coalition for Arizona was featured in The Nation magazine this week. The article — entitled An Arizona Legislator Gave an Invocation that Didn’t Mention God. You Won’t Believe What Happened Next — detailed the controversy that erupted after Representative Athena Salman offered an invocation that didn’t mention a “higher power” on the House floor this week.

Secular AZ is proud to support Rep. Salman’s constitutionally protected right to offer a secular invocation rather than a religiously based prayer. As our Board Chair, Zenaido Quintana, noted at yesterday’s Standing for Our First Freedom interfaith event, “By requiring these ‘prayers’ to recognize a ‘higher power,’ the House rules silence secular lawmakers and prejudicially deny them a platform to speak that is available to their religious colleagues.”

Read the article in The Nation here:

The Nation Secular AZ article

Will you stand with us as we support the separation of church and state in Arizona’s government? Please become a member of Secular AZ or donate today to help us continue to fight.