Kennedy v. Bremerton: Green Lighting Student Indoctrination at Public Schools

On June 27, the Supreme Court ruled that a high school football coach’s prayers at a public school were protected free speech. This ruling is a blatant attempt by six member so of the court to inflict a certain political and religious agenda on the rest of the country. It erodes the separation of church and state in public schools.

What happened in this case? Joseph Kennedy, a high school football coach in Washington State, prayed with his team on the field at a game. The school superintendent told Kennedy that actively inviting (i.e. coercing) players to join him in Christian prayer on the 50-yard-line was a violation of school policy  — and the Constitution’s Establishment Clause.

Kennedy refused to stop the prayers, and was placed on administrative leave. He sued the school district and went to the media, bringing national attention to the situation. As a result, the high school football team members found themselves in the spotlight, where they were essentially forced to pray or face the consequences of non-participation.

Writing for a 6-3 majority, Justice Neil Gorsuch described Kennedy’s proselytizing on government property during a public-school function as “private,” “personal” and “quiet.”

It was none of the above. Rather, the coach’s religious display was public, vocal and coercive; as players and community members testified at subsequent hearings, participation was “expected.” This left at least one atheist team member feeling “uncomfortable and unsafe” as, at one point, more than 500 people ran down onto the field to join in Kennedy’s prayers.

What does this mean moving forward? This ruling opens the door for staff at public schools to push their own faith on students, and is a step toward turning public schools into places where students can be indoctrinated. This ruling also exacerbates the risk that religious minorities already face, including exclusion, bullying, threats, physical harm and erasure.

Read more about the implications of Kennedy v Bremerton here.

Carson v. Makin: Separation of Church and State is Now a Constitutional Violation

On June 21, 2022, in a 6-3 decision the Supreme Court issued a ruling in Carson v. Makin requiring the state of Maine’s tuition assistance program to pay for religious education at private religious schools.  The program was designed to pay for rural students to attend a private school, if their town does not offer a public school option.

The ruling in Carson v. Makin means Maine taxpayer dollars will fund private, religious schools. Such schools are allowed to discriminate… against LGGTQ+ students and their parents, against atheists, or against anyone else under the guise of religious freedom.

This decision will result in far-reaching consequences for both public education and for church-state separation, and infringes upon the liberties of those who do not conform to a certain, privileged notion of religious thought.. It’s perhaps best summarized by Justice Sotomayor’s dissent:

“What a difference five years makes. In 2017, I feared that the Court was ‘lead[ing] us . . . to a place where separation of church and state is a constitutional slogan, not a constitutional commitment. Today, the Court leads us to a place where separation of church and state becomes a constitutional violation.”

MADDONNA V. HHS, U.S. DISTRICT CT. S.C. AUGUST 10, 20

MADDONNA V. HHS, U.S. DISTRICT CT. S.C. AUGUST 10, 20

The state funded adoption center, Miracle Hill, refused Aimee Maddonna as a volunteer or foster parent because she was Catholic and they only served Protestants who agreed with their statement of faith. After the challenge, they dropped the formal ban against Catholics but applicants still had to agree with their statement of faith that was printed on their website. Maddonna said she could not as it conflicted with her beliefs. Miracle Hill had gotten an exemption from state and federal law in order to discriminate.

Maddonna filed on an establishment clause violation of the first amendment and discrimination against the equal protection clauses of the fifth and 14th amendments. Also she alleged that the behavior violates APA as arbitrary, capricious, and an abuse of discretion.

Miracle Hill is not part of the suit but the plaintiff asked that the government either provide the services in a religiously non-discriminatory way or stop the funding. The court held that since the governments (state and federal) authorized Miracle Hill to discriminate, the government remained liable for it.

The court ruled that she had set forth a violation of the Establishment Clause under Lemon, both the second and fourth prongs (favoring one religion and excessive entanglement). The court rejected the government’s argument that they were just accommodating the beliefs of the organization. The court said that accommodations means the organization can do their own business as they like, but when they do the government’s business (foster care/adoption) it must be under government rules. Government responsibilities cannot be delegated to a religion to do as they like.

Unfortunately the court also said they would review it under rational relation not strict scrutiny because it gave preference to all religions; therefore, they only need rational relation to pass the equal protection test – but what about those who have no religion? They remain discriminated against under any structure! But the court dismissed that claim because all religions were benefited equally. But of course some religions cannot afford to set up their own foster care/adoption agencies. And it leaves out the non-religious completely. Further, religion is a fundamental right not a statutory one.

Under the ruling, the claims for the establishment violations and violation of the APA will go forward. Depending on the outcome, the ruling on the equal protection violation can be appealed.

Govenor Ducey: Extend and strengthen the Postponement of Eviction Actions Executive Order

Read this letter from the Central Arizona National Lawyers Guild requesting that Governor Doug Ducey extend and strengthen the Postponement of Eviction Actions  Executive Order 2020-14 issued on March 24 for 120 days:

July 13, 2020

Dear Governor Ducey,

The National Lawyers Guild is the nation’s oldest and largest progressive bar association and was the first one in the U.S. to be racially integrated. Our mission is to use law for the people, uniting lawyers, law students, legal workers, and jailhouse lawyers to function as an effective force in the service of the people by valuing human rights and the rights of ecosystems over property interests. The Central Arizona National Lawyers Guild chapter in Phoenix through which the work of the NLG is accomplished was established in the 1970s and has been active ever since.

Today we write to urgently request that you extend and strengthen the Postponement of Eviction Actions  Executive Order 2020-14 issued on March 24 for 120 days. Similar to your recent executive order on July 1, 2020-46, Ending termination date of programs, you can simply extend the termination date of the program. 

Other organizations joining us in this call for compassionate action are the Humanist Society for Greater Phoenix; Secular Coalition for Arizona; Freedom from Religion Foundation – Valley of the Sun Chapter; Americans United for Separation of Church and State – Greater Phoenix Chapter; Arizona NOW, Arizona Chapter of the National Association of Consumer Advocates, Flagstaff Chapter NAACP, State Conference NAACP, and Senator Steele along with House Representative Dr. Gerae Peten,

Executive Order 2020-14 should be extended for all the same reasons that required that order to be issued in the first place. Many people must remain isolated for medically necessary reasons, many people have lost jobs and income that has not and is not being replaced, and to protect public health. Because of the late and confused roll out of the tenant assistance program, only 5% of the people who applied were able to get help.   

Since the issuance of that order 2020-14 on March 24, you have issued the June 17, 2020-40 executive order Containing the Spread of COVID 19- Continuing Arizona Mitigation Efforts because of the upsurge after opening.  That increase became even more dramatic resulting in the executive order 2020-43 on June 29, Pausing the Re-opening – Slowing the Spread of the Virus.   That still wasn’t enough. 

We have over 4,000 new infections daily, an extraordinarily high rate of 25% for positive results due to lack of testing and contact tracing, and daily death totals as high as 75 with AZ now mourning the deaths of over 2,000 people.  Failing to learn from New York, we have had to order refrigerated trucks to hold our dead. AZ has more infections and deaths than the entire European Union that has 450 million people. In response to this escalating crisis, you issued executive order 2020-47 Reducing the Risk, Slowing the Spread on July 9.  This pandemic is out of control in Arizona and you need to take drastic measures now.

Since the pandemic started, the state has lost 14,900 public sector jobs. The economic gravity of the shortfall cannot be stressed enough. Without further federal aid to state and local governments, Arizona is projected to lose 95,200 private and public jobs by the end of 2021. The recent resurgence of the virus only compounds the urgency and should dispel all complacency.

In May, Arizona had an unemployment rate of 8.9 percent, one of the highest rates ever recorded, with roughly 160,000 more state residents out of work than in February.  As of early July, approximately 740,000 Arizonans, representing 20.4 percent of the state’s February labor force, have led unemployment insurance claims since the beginning of March. Some estimates are projecting a double-digit unemployment rate well into 2021. Without jobs, people cannot pay their rent.  The state must step in. 

The Arizona unemployment offices were so ill prepared for the applications that the system broke down and a private contractor had to be called in.  Still today all of the applications are not caught up and people have not even received all of their unemployment benefits so they could pay their rent.  Problem piles on top of problem to create a tsunami that will swamp us all.   

Data suggests tens of thousands of Arizonans will become homeless on July 23 if you do not extend your current eviction delay order. On this date, months of back rent will become due but tenants will not be able to pay. Most tenants will not even have the benefit of a 5-day waiting period because a majority of county justices of the peace have already approved eviction orders. On July 10, we spoke to a constable who verified that there are piles of eviction orders on the desk awaiting service.  On July 13, I spoke to another constable who verified that they are planning on going to serve the documents immediately but in teams anticipating problems.

In Maricopa County, approximately 1,700 eviction orders have been issued since mid-March. We can expect well over 2,000 evictions to be ripe for enforcement upon the expiration of your Order July 23rd. But the number could well be much higher as we know landlords have held off filing eviction actions this spring due to your Eviction Order. Once your Order expires, there will be no reason to hold off, and we are likely to see a flood of eviction actions.

Already overstretched relief agencies will not be able to handle the sheer number of persons who will need housing assistance and many will end up homeless. They will have no place to wash their hands or isolate. Because many of those evicted will themselves be sick with COVID-19 or be caring for a family member sick with the virus, to evict them from their homes and put them on the street or in congregate facilities will endanger the lives of many others.

These evictions will kick off a period of the largest number of homeless people in the U.S. since the Great Depression. Arizona already had a housing crisis with insufficient numbers of low- and moderate-income housing available.  Nationally 26% of households could not pay last month’s rent.  Even if landlords do evict, there will be one to replace the evicted tenants who can pay the rent so it will not help landlords pay their mortgage either.

There will be no cost savings by doing this.  Public costs will go up for the police, jails, child welfare organizations, emergency rooms, shelters, and juvenile justice systems. You will be doing the private sector no good either as the landlords will not find renters who can in fact pay the mortgage. We need the banks that we bailed out to now bail us out by stopping mortgage collections. 

One step is to simplify, speed up, and extend the Rental Assistance program administered by ADOH so that these landlords receive the rent owed them. Landlords can revise leases to put the payments at the end of the lease. The banks that the people bailed out with tax money just a few short years ago can wait for payments on the mortgages owed on the property. 

Failure to take action now will result in both a short-term and long-term disaster. The short-term disaster is that many tenants will resist. It is the middle of a very hot summer and to be evicted means no shade, no water, no air conditioning, no refrigeration for food or medicine. The libraries are closed so the homeless cannot go there to be cool as they have in the past. The watering stations are closed due to the pandemic.  The schools are closed so children can’t get respite or lunch. Violence is bound to ensue to the harm of families and law enforcement.

Second, the evicted families and children will face extreme hardship from the heat, the lack of services, the spread of the pandemic, and the inability to protect themselves by isolation or handwashing.  Many of them will be infected who should not have been and especially because they are vulnerable in so many ways, many will die.

Third, the evicted persons must by necessity spread the pandemic throughout the community causing yet another spike.  All of this can be avoided by taking compassionate action immediately.  We ask that you extend your Executive Order 2020-14 indefinitely until such time as the pandemic in Arizona is brought under control. 

Pima county is working with their constables to alleviate this foreseeable disaster.  No such work is happening in Maricopa county.  We need you to act on a statewide level. Thank you. 

Sincerely, 

Facilitator

Central Arizona National Lawyers Guild