Not a Christian Nation: Constitution and Democracy Mandate Separation of Church and State

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

Secular Summit 2020

The Secular Summit has gone virtual! Click here to join the event on Zoom.

Join secular supporters from around Arizona at our annual Secular Summit on 12/5/2020 for presentations, networking, education, advocacy and more.

Because we’re meeting online, we’re not charging for tickets this year. However, if you’re able, we ask that you please support Secular AZ by:

This year, our keynote speaker is Katherine Stewart, journalist and author of The Power Worshippers: Inside the Dangerous Rise of Christian Nationalism and The Good News Club: The Christian Right’s Stealth Assault on America’s Children.

We’ll also have updates on the upcoming legislative session and Secular AZ’s legal activities, and hear from the Executive Director of the Secular Coalition for America, Debbie Allen.

Please join us on Saturday, December 5, from 9AM – 3:30PM. Click here to join the event on Zoom.

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

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?

Dianne Post, Secular AZ Legal DirectorCan 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 Trump administration, 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. Black people 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.

– Dianne Post, Legal Director

Phoenix New Times Names Secular AZ “Best Activist Group” for Best of Phoenix 2020

“If you see a state official promoting the Holy Ghost, who you gonna call? The Secular Coalition for Arizona, that’s who. This freethinking organization celebrated its 10th anniversary in the state this year, and many Arizonans are glad to have it. The group protects the rights not just of nonbelievers, but of all Arizonans who don’t think public money, resources, and messages should be spent pushing religious dogma.

Chaired and directed by Zenaido Quintana, and with high-powered hitters like lobbyist and spokesperson Tory Roberg and progressive attorney Dianne Post on the payroll, this is a group that regularly gets attention. Whether it’s slamming Governor Doug Ducey for posts about Jesus during Easter, denouncing Bible studies in public schools, or fighting for atheist lawmakers’ rights to give the invocation at the State Legislature, the Secular Coalition for Arizona has been the state’s voice of rational disbelief.”


Thank you, Phoenix New Times! We’re honored – and it’s all thanks to the Secular AZ Board, Members, Supporters, Donors and Staff who fight for the (constitutional) separation of church and state every day!



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



Fulton v. City of Philadelphia, PA: “Let Me Have My Cake and Eat it Too”

Fulton v. City of Philadelphia, PA is another case in which a religious group, in this case Catholic Social Services, seeks to receive money from the government for foster care services but also seeks to ignore laws that prohibit discrimination i.e. let me have my cake and eat it too – let me get the money but not follow the rules. The case will be argued at the Supreme Court in November and Freedom from Religion Foundation, Center for Inquiry and the American Humanist Association have filed an amicus brief.   

Fulton is yet another attempt to enshrine religious doctrine over laws established by the people (through legislatures).  For over 100 years, courts have held that neutral laws that do not target religious groups must be followed by religious people just like everyone else.  That is what the Rule of Law means. That is what “no one is above the law” means. To allow a carve out for one person’s belief means we have no law left.

A man who murdered his wife and her partner in Glendale said it was required under his religious belief.  Should he be excused?  Will we make polygamy legal again?  What about child marriage? How about a “church of the opioids” where taking them was a part of the ritual?  Or a “church of spare the rod and spoil the child” where children were regularly beaten?  And no mosque should have to pay the interest on a loan because it’s against their faith. These examples are not imaginary. Children have been ritually beaten in religious services. Members of some ultra-orthodox Jewish communities have been harassed to prevent them reporting sexual abuse to the police. Harassment of people leaving the Church of Scientology is legion.

The darling of the religious right, Justice Scalia highlighted this very principle:  “Laws,” we said, “are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . Can a man excuse his practices to the contrary because of his religious belief ? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” 494 U.S. at 879 (quoting Reynolds v. United States, 98 U.S. 145 (1878)).

But that is exactly what the religious nationalists are seeking to do – make the doctrines of religious belief superior to the law of the land. Religious groups, led by Scottsdale’s own Alliance Defending Freedom, has mounted a concerted attack on religious neutrality and the Rule of Law to seek favoritism for religious doctrine. They want government money but they don’t want to obey government rules. Such groups have sued because they didn’t get FEMA money, because they didn’t get tourism money (to the fake ark), and even because they didn’t get a contract to teach art!  But they have received handouts of COVID money while they often remain as its biggest spreaders. Those who cried the loudest about LGBT people seeking “special rights” when all they seek is equality are the same ones now seeking “special rights” for religious organizations to avoid the law.

The religious nationalist arguments focus on people who were fired for adhering to their religious beliefs. There are “reasonable accommodations” for that, but what they were doing i.e. going to church rather than work or refusing to make weapons was not illegal. What the religious organizations are doing now, discriminating against LGBT, against women, or against those of a different religion, is illegal.   

Like the Maddonna case, a program that allegedly cares about foster children is seeking to prohibit a large number of citizens from helping these very children.  Twenty-six percent of Americans claim no religious affiliation which means they all would be prohibited under the rules of both agencies from helping a foster child.  Why?  Because the religious organization believes their doctrine is the best doctrine and all other doctrines should be prohibited. Sounds like the inquisition to me. 

“There was a time when religious law ruled the world. It was called the Dark Ages.” Ruth Hurmence Green

Unfortunately, we can no longer trust our courts to protect our rights.  So under our system of checks and balances, we have to turn to the executive and legislative branches. That is one reason this upcoming election means so much. We have to work for candidates, donate to them, and vote all up and down the ballot on November 3.

The Decline of the Establishment Clause?

The Decline of the Establishment Clause?

Dianne Post, Secular AZ Legal Director

The ABA sponsored a 90-minute seminar on October 8 on the Establishment Clause of the First Amendment. Marc Stern, general counsel of the American Jewish Committee, moderated the presentation.  He began by outlining the two strands of Establishment Clause jurisprudence: a strict prohibition against aiding religion versus accommodation to religion.

The first speaker was Thomas C. Berg, a professor of law and public policy at the University of St. Thomas in Chicago. He said the Establishment Clause is declining in both a good and bad way.  The good way, as he believes, is that government money can now go to religious operations. Repeatedly he trumpeted the Espinoza v. Montana mandatory school funding decision as allowing impoverished parents to choose which schools to send their children to. That is a complete red herring, as most students in private and religious schools come from well-off families, not the poor, and “school choice” is code for school discrimination as the South developed it after Brown v. Board of Education mandated integration.

To Enforce the Establishment Clause is Not Discrimination

What listeners in the chat pointed out is that the religious want “religious choice” to pick a religious school with taxpayers paying for it, but they don’t want women to have “religious choice” to use contraception, or have an abortion and have the government or even insurance pay for it.

The bad way was an increase in allowing the government itself to pray and display religious symbols as in the Town of Greece v. Galloway city council invocation case and Bladensberg cross case. That was about the extent of our agreement.

I understand they don’t want to pay for my abortion; I don’t want to pay for your child to go to religious school either.  They don’t want to pay taxes, but they want tax money. They want to be able to discriminate, but they don’t want to be discriminated against.  They want to have their cake and eat it too.

Steven Green, professor of law and director of the Center for Religion at Willamette University in Oregon, was the next speaker.  He noted that this struggle has been going on since the Great Society began giving money to private groups to engage in government welfare programs.  The trend has accelerated. Green argued that we can accommodate religion, but when it is a zero sum game and a burden is transferred to another person, that we cannot do (e.g. the Hobby Lobby case was wrongly decided as  “religious personhood” of a business is a complete farce and the “burden” was transferred to someone else, the women employees locked out of health care).

Green said the Establishment Clause has been turned on its head, especially in Espinoza; i.e. the original intent — that government should not fund religious activity — has come to mean that government cannot discriminate against religious activity in funding. But to enforce the Establishment Clause is not discrimination.Religions get benefits that others don’t, such as:

  • paying no tax
  • filing no donation/income documents
  • getting breaks on zoning, parking, drinking, dietary practices, running businesses, and other regulations

They want to continue to get all those benefits that other non-profits don’t, and get the money too.

Green also argued that the expression clause has also been eroded in the last 10 years. He pointed out that we cannot look at a frozen point in time 240 years ago and identify all the history impacting the actions nor understand the motivations. Also, we have to allow for changes in attitudes and perceptions. 

Disestablishment (states having a state religion) disappeared in 12 years.  That was a total change in attitude. At the time of the First Amendment, over 90% of Americans were Protestants. Now less than 50% are. We cannot cherry-pick certain speeches or laws and use those as an analogy. No social impetus has driven the court to support religion. Usually social trends lead the court; in this case, the court is trying to create a trend to take us backward to some previous time.

Holly Hollman, general counsel and associate executive director of the Baptist Joint Committee, spoke next.  She was clear that their history is one of supporting separation of church and state. Our country is envied for its tolerance and lack of discord over religion. These religious decisions are destroying that balance.  They believe that keeping government and religion separate benefits religion; it is not hostile to it. Separation avoids government financial entanglement, which was the main purpose. We have gone from no funding of churches to mandatory funding of churches in the Trinity Lutheran case.  Hollman argues that this trend is harming churches by decreasing their independence, by encouraging attacks on churches for the special treatment they now get (why should churches be exempt from taxes when they get tax money etc.), and discourages fairness to all religions, which leads to intolerance and the weakening of religious freedom for everyone.

Asma Uddin, from the Religious Freedom Center at UCLA, was the last speaker.  She claimed that the main purpose of the Establishment Clause was to expand volunteerism, a point Green completely disagreed with.  She claims that the court in Espinoza simply expanded religious choice (with no consideration for those who chose no religion). Uddin reiterated the holdings of a bunch of cases, read some list written by a professor, and repeated slogans like “leave religion alone” and “religious choice,” but really had not much to add to the discussion.

When You are Used to Being Dominant, Fairness Feels like Oppression

Marc Stern remarked that society is becoming less religious by the decade, and asked how does this or should this influence the court. Green pointed out that the court is seeking to return to an earlier place because white Protestants are concerned about losing their privileged status in society.  They realize they are being deposed from their positions and so they feel attacked. When a group has been in control and held power and then equality is imposed, that group feels they are being treated unfairly.

Studies have been done in school where teachers called on boys disproportionately.  The teachers didn’t believe it until they watched the video tapes.  They thought they were calling on girls equally – they weren’t.  So they started calling on girls equally. The boys complained that they were not being treated fairly. When you are used to being dominant, fairness feels like oppression.

Green pointed out an extremely interesting contradiction: In the Lady of Guadalupe case, the church argued that teachers in the school, even if teaching math, were in fact part of the religious education of the school, because everything the school does is for the purpose of religious teaching. Thus the teachers came under the ministerial exemption and could be fired at will by the church.

But on the other hand, in Espinoza the school argued that they were discriminated against not based on what they did (religious teaching) but what they were (a religious school).They claimed this was “status discrimination” against them, not based on what the school did i.e. religious teaching.

These two positions are completely at odds. If you can’t discriminate against a religious school because it’s a status discrimination and what they actually do (teach religion) is not important, then how can the teachers in Lady of Guadalupe school be so integral to the religious teaching because that is the sole purpose of the school that they don’t come under Title VII, but the ministerial exemption to be fired at will by the church? Is the purpose of a religious school education (as they argued in Espinoza) or religion (as they argued in Lady of Guadalupe)? Again, they want to have their cake and eat it too.

The Secular Coalition has prepared a 37-page report outlining all of the 208 religious exemptions, special privileges, and harmful provisions in the Arizona state law from religious favoritism.  We hope to work with you and state legislators in a new legislature in 2021 to remove these attacks on our religious liberty.

Dianne Post


INVEST IN EDUCATION ACT: An Initiative for 2020

INVEST IN EDUCATION ACT: An Initiative for 2020

After more than three years work, teachers and their supporters, parents and their children have succeeded in getting the initiative on the ballot for November when the Supreme Court so ruled on August 19.  Since we support secular public education, we have taken a deeper look at the provisions.  As stated in Section 2, the purpose of the act is that Arizona students deserve qualified teachers and safe environments.  Yet years of underfunding by the state legislature has led to the crisis we find ourselves in – being at the bottom of the barrel in school funding with an increasing teacher gap.   For Arizona to advancewe need educated students, including in the skilled trades, and careers looking toward the future.

The money in the fund does not revert to the state general fund to be frittered away in tax giveaways. The monies are to be spent in this order:  the cost to the state treasurer to administer, the state auditor general, the department of education, the department of revenue, and the state board of education to implement, and any other mandatory expenditures.  There are no “unfunded mandates.”

The state treasurer makes up the forms and transfers the money twice annually.  Fifty percent goes to school districts and charter schools in proportion to the weighted student count for the prior fiscal year.  That includes the school for the blind and deaf.

Twenty-five percent goes to school districts and charter schools in proportion to the weighted student count to hire student support services personnel and increase their base compensation.

Ten percent goes to school districts and charter schools in proportion to the weighted student count to provide mentoring and retention programs for new teachers.  The State Board of Education creates the rules.  A mentor may have no more than 15 new classroom teachers.

Twelve percent goes to the career training and workforce fund and 3% to the AZ teacher’s academy fund.

Classroom support personnel means nonadministrative such as librarians, nurses, counselors, social workers, speech pathologists, behavior coaches and psychologists.  A new classroom teacher is in the first, second, or third year of teaching.

Student support services means non-administrative personnel who provide services such as classroom aides, media specialists, health assistants, security personnel, student food service personnel, clerical staff, student transportation personnel, and site plant operators.

The career training and workforce program works with student in 9-12th grade.  The Department of Education shall create rules for the program related to medium to high wage, high demand careers that result in direct work experience, industry certification, or postsecondary credits.  It is also aimed to encourage them to become teachers.  The money can be used to hire counselors and develop accelerated program and college level and dual-credit courses.  Districts can establish summer bridge programs for at-risk, incoming ninth graders, implement evidence-based programs to combat absenteeism, and provide tutoring.

Each district that receives money has to establish a method of separate accounting.  These funds cannot be the reason to reduce any other funds or be considered local funds that would reduce the district’s ability to obtain other monies.

Those enrolled in the AZ teacher’s academy, graduate or community college classes can get the actual cost of tuition and fees for two academic years covered plus the cost of the national certification. Funding is provided now but at lower levels. A marketing and promotion plan shall put emphasis on the diversity of the state’s population.

The funding provisions that have caused so much angst among the wealthy is the surcharge of 3.5% of taxable income in excess of $250,000 for a single person or over $500,000 for married couples or single head of households.

First, it has to be taxable income.  Most wealthy people don’t get their money from taxable income but from investment income or inheritance income so it still doesn’t touch the idle rich.  A 3.5% tax on $250,000 for a single person with no children is $8,750.  They make more than that in two weeks.  For married couples or people with children, a 3.5% tax on $500,000 is $17,500.  They also make more than that in two weeks.

The average American makes $50,000 in a year or $926 a week.  That average American would need to work 10 weeks to make $8,750 that the single person makes in two or 19 weeks or nearly 5 months to make what the couple makes in two weeks.  The U.S. has one of the highest income and wealth gaps in the world and now dwarfs the inequality of the Gilded Age that led to the Great Depression.

Anticipating that the legislature would rush to eliminate the tax by changing or eliminating the tax brackets, they put in a fail-safe that the monies must be collected regardless.  It also has a severability clause, an exemption from rule making clause, and a “standing” clause that if the attorney general refuses to defend the law, any citizen can and fees shall be awarded to said resident.

It is unfortunate that the citizens of this state have to go to such great lengths to fund their public schools – a responsibility that is mandated in the State Constitution to the government.  Public schools are the great leveler – giving us all the same opportunity by teaching every one the country the same set of facts, principles, scientific method, and most importantly – civics and history – how our government works and has worked, and that every person must step up and do our duty from voting to paying taxes, from jury duty to following the law – including wearing a mask to protect my fellow citizens from a pandemic.

Unfortunately our state legislature has shown for the last thirty years that they have no interest in good education or equal opportunity.   They have not fulfilled their responsibility to fund public education from pre-school through university.  They have only given tax cut after tax cut to the wealthy and large corporations that need it least.  That has not created a robust economy that benefits us all but one that only benefits those already in the upper reaches.

So as good citizens, people who care about education, who care about children, who care about the future – we must take the reins and insist that those who bring us the future deserve a good here and now.


AZ Primary Election Analysis: August 7, 2020

AZ Primary Election Analysis – August 7, 2020

AZ’s primary election delivered some surprises, with a handful of incumbents losing in the primary. Competitive districts to watch in November are LD 6, 8, 17, 18, 20, and 28. Check our Secular Scorecard for information on incumbent votes.


Arizonans turned out in record numbers to vote in the primary election held on August 4, 2020, surpassing the sum total number of votes cast in the 2018 Arizona Primary: 1,208,113 were cast then, 1,226,771 are tallied now. The vast majority of all votes were cast safely and securely using vote-by-mail. You can find more information on how to register to vote or request a mail-in ballot on the Secretary of State website

Secular Coalition for Arizona, a non-partisan 501c4 advocacy group committed to separation of church and state, watched the primary election with particular interest in several legislative races

Why Elections Matter

The partisan split in the Arizona State Senate is 17 Republicans to 13 Democrats; the Arizona State House is 31 Republicans to 29 Democrats. Most legislation requires a simple majority for passage (50% + 1), so if Senate Republicans vote as a unified caucus, they can pass almost anything with 16 votes. The House Republicans MUST vote together as a unified caucus (31 votes). If Democrats vote as a unified caucus and convince 2 Senate Republicans or 1 House Republican to vote with them, they can block legislation. Unfortunately, minority party bills are not often heard on the House or Senate floor and don’t even make it to committee.

We have several supporters of secular government in the State House and Senate; our annual “Secular Scorecard” tracks how lawmakers sponsor or vote on legislation that we support or oppose. Congratulations to returning “Secular Stars” who won their primaries and are expected to win in November: 

House: Daniel Hernandez (LD2), Andrea Dalessandro (LD2), Charlene Fernandez (LD4), Arlando Teller (LD7), Pam Powers Hannley (LD9), Randy Friese (LD9), Reginald Bolding (LD27), and Raquel Terán (LD30) 

Senate: Sally Ann Gonzales (LD3), Victoria Steele (LD9), Kirsten Engle (LD11), Rebecca Rios (LD27), and Martín Quezada (LD29).

These lawmakers have gone above and beyond just voting to ensure secular government, but are not an exclusive list of secular supporters. We are very close to achieving a legislative majority which values separation of church and state. This is why elections matter. If Arizona voters elect a majority of lawmakers who support secular public policies in either chamber, we will have our bills heard in committee, discussed, voted, and moved through the legislative process. 

Primary Election Results Analysis

Here are primary election results as of August 7. Please note these are unofficial results, but that we do not anticipate the official results to be different. Read on for a breakdown of what the primary results could mean for the November election and the new Legislature.

Arizona State Senate

Of the 30 legislative districts in the state, 12 are considered solid Republican seats (LDs 1, 5, 11, 12, 13, 14, 15, 16, 21, 22, 23, and 25) and 12 are considered solid Democrat seats (LDs 2, 3, 4, 7, 9, 10, 19, 24, 26, 27, 29, and 30). The competitive Senate races to watch between now and November are LDs 6, 8, 17, 18, 20, and 28.

A Win

The biggest win for secular government was the LD26 primary, where incumbent Senator Juan Mendez, a Secular Superstar and key leader in the secular movement, handily won his primary against challenger Jana Lynn Granillo. Now he moves to the November election, where he is expected to win in a heavily Democratic district.

An Upset

The biggest upset for Secular AZ is LD15, where Center for Arizona Policy darling Nancy Barto has won a competitive race against fellow Republican Heather Carter. Senator Carter was known at the Capitol for blocking some of the most egregious bills lobbied for by the Center for Arizona Policy.  Over $1.6M was spent on just this one legislative race, highlighting the importance of this seat to stakeholders and outside interests. With this win for the Center for Arizona Policy, we can expect to see Barto sponsor more bills similar to those she has so far been unsuccessful in passing – bills opposing transgender youth, women’s reproductive rights, vaccines, and Medical Aid in Dying. We have worked in opposition to Nancy Barto’s legislation for many years and we will continue this important work. However, if the State Senate is turned into a majority of secular government supporters, her bills might stay shelved.

Other Senate Races of Interest

In LD23, incumbent Senator Michelle Ugenti-Rita won her primary against newcomer Alex Kolodin. Senator Ugenti-Rita generally does not support positions of the Secular Coalition for Arizona; however, she was the sponsor of a bill we supported last session that would’ve made birth control more readily accessible and available for women statewide.

In LD6, incumbent Senator Sylvia Allen, a young-earth creationist who has championed anti-sex education and anti-science bills and repeatedly expanded the state’s school voucher program, lost her primary race to newcomer Wendy Rogers. Wendy Rogers faces Democrat Felecia French in the November election, and the race is considered quite competitive.

LD11 turnout for Democrats was high, but they still face an uphill battle with registrations for the November election. Incumbent Vince Leach is a darling of the Center for Arizona Policy and will face challenger Democrat primary winner Joanna Mendoza (read Joanna’s secular survey responses).

Two highly competitive senate races to watch are LD20 and LD8. Neither of these races had a primary challenge, so they were uncontested in yesterday’s election. However, these races will heat up in November when incumbent Senator Paul Boyer faces challenger newcomer Democrat Doug Ervin (read Doug’s response to the secular survey here) in LD20, and when incumbent Representative TJ Shope competes against former lawmaker Barbara McGuire in LD8. 

Arizona State House

Each of the 30 legislative districts has two seats in the House of Representatives. For November’s election, 27 seats are considered solid Republican and 25 seats are considered solid Democrat. The remaining eight seats are competitive.


LD26 – Incumbent Secular Superstar Athena Salman handily won her primary, along with her chosen seatmate Melody Hernandez, in a four-way race. Athena and Melody are expected to win in November in this heavily Democrat district.

LD13 – Former state lawmaker and failed congressional candidate Steve Montenegro lost to incumbents Tim Dunn and Joanne Osborne in this heavily-Republican district. While Secular AZ does not receive any kind of secular government support from the LD13 incumbents, our community has been hurt by Steve Montenegro during his tenure as a lawmaker. In 2016, while Mr. Montenegro was majority leader in the State House, he spent hours trying to block atheist lawmaker Juan Mendez from leading the daily prayer on the House floor. In fact, Montenegro released a memo telling representatives if they wish to lead the daily prayer, that they must “pray to a higher power.” He has also been the sponsor of several anti-LGBTQ bills and religious privilege bills. If the unofficial results do not change, he will not return to the state legislature in 2021.

Single-Shot Opportunities

A tactic used by both Republicans and Democrats to try to gain a seat in a slightly competitive district is to run just one candidate when there are two House seats. The theory is that some voters will vote for one Republican and one Democrat in a race with two seats. This tactic sometimes can gain the district’s minority party enough votes to take one of the seats and has worked in the past, most recently in LD17 in 2018 when teacher Jennifer Pawlik (D) earned the most votes in a Republican-leaning district and was elected alongside a Republican counterpart.  Many of the competitive races are so because of the single-shot strategy.  

LD6 – Flagstaff Mayor Coral Evans faces off against former lawmaker Brenda Barton (see how Brenda voted on secular issues in 2018 and 2017)and incumbent Walt Blackman. This single-shot campaign has a real opportunity to win a seat; in 2018 the LD6 senate seat was a very close race, and is indicative of the changing views of the constituency. Mayor Evans did not return our secular survey, but receives an honorable mention in that Flagstaff is one of the few cities in the state which does not open council meetings with a prayer; a sign of respect for separation of church and state.

LD8 – Incumbents David Cook and fFrank Pratt (consistently low scorers on our scorecard) will be facing secular supporter and newcomer Sharon Girard (read Sharon’s secular survey answers here) as she attempts a single-shot seat in what is considered a competitive district in November.

LD11 – Newcomer Felipe Perez had a strong turnout in LD11 as a single-shot Democrat vying for one of two seats in November. His vote count was under 50 votes shy of the top Republican Incumbent Mark Finchem and over 3,000 more votes than incumbent Bret Roberts. 

LD17 – As mentioned above, Jennifer Pawlik is once again running a single-shot campaign to keep her seat in the Arizona House. LD17 is highly competitive and she was the top vote-getter in the 2018 campaign. She will face incumbent Jeff Weninger and newcomer Liz Harris.

LD20 – This is one of the hottest competitive districts in the state with single-shot newcomer Judy Schweibert (read Judy’s secular survey answers here) challenging Center for Arizona Policy darlings incumbents Anthony Kern and Shawnna Bolick.  

LD21 – Newcomer Kathy Knecht, a former Independent-turned-Democrat received the highest vote count of any primary candidate in heavily-Republican LD21. She will face Republican incumbent Kevin Payne and newcomer Beverly Pingerelli.

Other Competitive Races

LD28 has competitive races in both the House and Senate, and is considered one of the most highly competitive districts in the state. There were no primary races in this district and the lead up to the November election is expected to get heated.

Additional Comments

LD4 incumbent Gerae Peten is a friend to the Secular Coalition and faces a single-shot Republican candidate; this is potentially a competitive race. Read Gerae’s secular survey responses here.



If you support the fight for a secular Arizona government, please consider making a donation today to support our work.


Supreme Court to Arizona: Discrimination is Legal

Arizona’s charter school system isn’t just defunding public education, it’s opened the door to discrimination in the name of “religious liberty.” It’s been decades in the making as the State created a wild west culture of charter school profiteering, but this path has finally led to legal discrimination owing to two decisions of the Trump-stacked Supreme Court.

Luke DouglasFirst, the Court handed us Espinoza v. Montana Department of Revenue. In a 5-4 decision, the Court ruled that private school vouchers could not be limited to religiously neutral schools. Now taxpayers in every state can be required to pay to support other people’s religious education. As a graduate of fundamentalist homeschooling, I can see it’s one thing for parents to pull their kids from public school and opt for creationist, homophobic, or Confederate-flag-waving indoctrination on their own dime like mine did. It’s another to expect your neighbors to pay for it.

Then, just this week, the Court took a sledgehammer tochurch/state separation with a decision whose impact will be drastic when paired with Espinoza. In Our Lady of Guadalupe v. Morrissey-Berru, a private Catholic school fired a teacher for what the teacher alleged was age discrimination. The school argued that anti-discrimination laws did not apply under the ministerial exception, and therefore the EEOC and the court system had no authority to question the firing. The ministerial exception isn’t original to this case. For example, it’s the reason a church that believes it’s a sin to be gay can fire their pastor for being gay.

The problem is determining where the ministerial exception stops. The teacher in this case wasn’t ordained. She didn’t carry the title of minister. She was an English teacher who was required to insert some religious content into instruction. But the Court elevated her position as it said:

“The religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers … lie at the core of their mission.”

Therefore, the ministerial exception applied to her, and the school could fire her without recourse. Her case that the firing was motivated by age discrimination will never be heard. The only question left is where it will stop.

As an attorney, my first thought is to put myself on the other side of future cases that will arise under these precedents. If I’m the lawyer for a private Christian school in Arizona, the first thing I’m doing now is demanding taxpayer funding under Espinoza. Second, I’m advising my client to require their staff to be as active in the religious aspects of the school as possible. Is their math teacher too secular to fall under the ministerial exception? Require them to open every class with prayer. Does a school administrator do their job without the religious mission of the school affecting their work? Mandate all staff to participate in weekly Bible studies so they can’t avoid it.

This is how a Christian school exempts itself from equal opportunity laws. This is how they ensure they can fire those staff later if their personal life doesn’t line up with the school’s faith. And most crucially of all, all of us will have to pay for it with money our public schools desperately need.

What can we do about it? For starters, the Supreme Court isn’t elected, but it’s very much on the ballot this November. But here at home, Arizona needs to take a good look in the mirror. If taking money from public schools means supporting legal discrimination, maybe we should revisit our priorities.

Luke Douglas, Esq., J.D.

Executive Director

General Counsel
Humanist Society of Greater Phoenix

Espinoza vs Montana: Dianne Post Weighs in on SCOTUS’ Judicial Activism

June 30, 2020

Dianne Post, Legal Director

Secular Communities for AZ

The Supreme Court decision in Espinoza v. Montana illustrates the height of judicial activism and the length to which this politicized court will go to enshrine their religious philosophy into the law.  The Montana Supreme Court had already held that the program funding vouchers could not stand and overturned it under state law.  So there was no case or controversy for the Supreme Court to Consider.  But the Supreme Court took the case anyway because they had a principle they wanted to instill – that governments must fund religious beliefs. 

Though the program had already been held unconstitutional under the state law, the Supreme Court went ahead and ruled that the no-aid provision in the state constitution discriminated against religious schools and families whose children attended.  But the schools were not even plaintiffs in the suit – only the families who wanted to exercise their religious beliefs at the cost of everyone else’s.  Like those who believe they have a right to refuse to wear a mask (which is not a fundamental right) even though it would support a public health goal for all of the people.  One judge had such sympathy for the single mother who worked three jobs and could not afford the school but he failed to question why a single mother has to work three jobs?  Why doesn’t she get paid a living wage at one job?  If she did, perhaps she could afford the school of her choice.   

The court said the Free Exercise Clause protects religious observers against unequal treatment.  With at least 1,500 different religious sects in the U.S., what observance will be protected?  Praying five times a day?  Praying a rosary?  Killing a chicken? The five-member majority  (Roberts, Gorsuch, Alito, Thomas, Kavanagh) argued that the reasoning wasn’t based on what the school was to do as in the Locke case where he was going to be a priest and proselytize,  but their status as a religious school.

They also astonishingly claimed there was history in the U.S. of not funding the training of clergy but no history of not funding religious schools – except perhaps the entire First Amendment jurisprudence.   Breyer’s dissent outlined a substantial history of exactly that. 

The only solution is to have no voucher system at all.  That is what the people of Arizona told the state legislature by a margin of over 60%. In disregard of the people, the legislature went right ahead and approved more vouchers.  This in spite of the fact that the school “choice” program has been proven to be discriminatory, provide no better education than public school, and have insufficient oversight to prevent graft and fraud. 

The parties in the case did not argue the establishment clause only the free exercise clause.  The court repeated that the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs. It is interesting that religions want to receive public benefits under neutral government programs.  But when the neutral government program or law gives a benefit to someone else, the religions want to be exempted.  For example, the neutral government law mandating public accommodations says that no business may discriminate against a person because s/he is a gay or lesbian. But religious people don’t want to abide by that neutral law that benefits the LGBT community.  No they even brought a pre-enforcement suit in Phoenix to exempt themselves from having to give other people the benefit of neutral laws.  They should not be able to have it both ways.  If they get to benefit from neutral laws, then they should abide by neutral laws.  If they don’t abide by neutral laws, then they should not benefit. I fear this Supreme Court does not care about this hypocrisy as they didn’t in Hobby Lobby where the corporation in question was heavily invested in the very birth control company they refused to allow their employees to partake.

A lot of ink was spilled over the Trinity Lutheran case where the court ruled that a church who was seeking a grant to resurface a parking lot could not be prohibited where a student seeking a grant to get a divinity degree could in Locke.  Stunningly they decided that a parent wanting a religious education for her child was more like a parking lot than like a divinity student so the reasoning of Trinity Lutheran applied.      

Even more ink was spilled to prove that the country had a tradition of supporting religious schools.  The court’s own story shows that supporting such schools resulted in chaos, fights, divisions, even riots and violence – precisely why the government should stay completely out of religion.  They said well the early fights were against Catholics and we should not countenance such discrimination.  If that is the case, then put the Equal Right Amendment into the Constitution because that discrimination should not be allowed to stand.  Eliminate the Electoral College because that discrimination should not be allowed to stand.  And I could go on.

The court simply cannot see how Montana’s argument that the no-aid provision promotes religious freedom can be. They reject the wisdom of many a religious leader who knows that when government interferes in religion, it won’t be long before it controls it.  When it controls it, it will substitute its own religion for that of the individual and nothing but discord will abound in the land. 

The court says that states do not have to subsidize private education at all – which is what Montana decided when it ended the program. But the court then ordered Montana to do something even though there is no program to end.  The court seems offended that the Montana court ended the program by declaring it unconstitutional rather than the legislature ending it.  But that is what courts do all the time – declare statutes unconstitutional.  Since Marbury v. Madison that has been their job – determine what the law is.  Yet the Supreme Court chastises the Montana Supreme Court for doing just that.  Why?  Because the Supreme Court is laying the groundwork to force states to fund religious schools.   

The Thomas and Gorsuch concurrence argues that the entire First Amendment jurisprudence is wrong and has been for a long time.  According to Thomas, and now he has another adherent, the amendment only applies to the federal government imposing a religion on the states and to nothing else. It does not, according to him, prohibit preferring one religion over another or religion over non-religion.  His real argument is that those who want to discriminate on moral grounds as he defines them should be able to do so citing Masterpiece Cake

After saying he doesn’t believe historical factors should be taken into account, Alito takes historical factors into account by arguing that it was anti-Catholic bias that motivated the passage of the no-aid provisions.  He outlines the history of mob violence and riots between Protestants and Catholics – making precisely the case for the government staying out of religion!  He mentioned that Catholics had to establish their own schools because of using the King James Bible in public schools (which is why no Bible is allowed in school) but he does not mention the establishment of private schools after the Brown v. Board of Education decision to avoid integration or the reason there were religious schools in Reconstruction was because Blacks were not allowed to go to school with whites.

Gorsuch main argument in his concurrence was that he does not see the difference between status and action.  This is a very dangerous and slippery slope as he argues that the religious have the right to act on their beliefs i.e. to refuse service to an LGBT person because it would cause them to “act” in violation of their religion.  Earlier status/action cases have been successfully managed e.g. homosexual behavior (then criminal) versus homosexual status (not criminal); public drunkenness or drunken driving (criminal) and being an alcoholic (status and not criminal).  But Gorsuch is trying to unthread that needle.   He wants to protect religious actions no matter their impact on another person. This bodes ill for the public accommodations cases.

He also argues that the First Amendment protects religious conduct in receiving public benefits.  This is also troubling given cases before the court in which religious entities receiving public benefits seek to discriminate against other religions than their own (Catholic) and other people specifically LGBT people to prohibit foster care and adoption.  Gorsuch argues that no pressure can be put on a religious person to modify his behavior or violate his belief.  In other words, the owners of the Atlanta Motel should have been able to refuse to rent to Blacks because it violated their religion.  Virginia should have been able to prohibit the marriage of Blacks and whites because it violated the religion of those in the legislature.  Or a county clerk can refuse a marriage license to a gay person because it violates her religious belief.  It is nothing but a fig leaf covering discrimination.      

Gorsuch also argued that taking a neutral stance benefits nonbelievers because those most passionate in their beliefs are prohibited from acting out their very strong beliefs whether it’s knocking on your door to hand out religious pamphlets or refusing to work in a plant making ammunition or exorcising children with coat hanger beatings and near drownings because of belief in the devil or dunking women considered witches or prohibiting birth control or abortions because they say so.  He laments that an intent to protect religion may turn into a cudgel to ensure conformity when in fact that is precisely what his side is doing – they have turned religious freedom into a sword rather than a shield. 

In the Ginsburg and Kagan dissent they point out the obvious – there was no case for the court to decide and the court violated Article III that requires a case or controversy before deciding constitutional matters.  The Supreme Court said that a state could decide to have no program at all and that is what Montana did.  So there was no case.  Yet the Court went ahead and ordered them to do what?

In the Breyer and Kagen dissent they argued that the free exercise and the establishment clauses have to be taken together to avoid religiously based discord and yet secure liberty for all faiths and none.  This decision does the opposite by inflicting a rigid application of strict scrutiny on the free exercise clause and entangling government in religion.   

They cover the history of discord and division from the existence of state funding for religious teaching and argue that is why the government has to be strictly neutral. They also argue that from the founding of the country taxpayer supported religious indoctrination was seen as a threat to individual liberty. They pointed out the history of Madison and Jefferson and the Virginia religious establishment law. Jefferson considered it sinful and tyrannical to force a person to support a religion which s/he disbelieves. The  founding generation, including George Washington, Patrick Henry, and John Marshall, supported Virginia’s Assessment Bill not to tax citizens for a particular religion.

The court does not balance the right of those who choose not to fund religious education, elevating the right of those who do. They also point out the foolishness of the “status” versus “doing” argument by asking what in fact does a religious school do but teach religion. That is why the parents have chosen to send their children there.

As they point out, the Montana law did not punish religious exercise – they chose not to subsidize schools that teach religion. Choosing not to subsidize a fundamental right, such as marriage or voting for example, does not infringe on the right.  However this decision may be laying the groundwork for an attack on public funding of public schools by saying that it is harmful for religious schools not to get their fingers into that public taxpayer money.

The Sotomayor dissent was equally scathing.  As she said, the state supreme court had already ended the program on state law grounds and there was no federal question to be answered.  Not only did the Supreme Court violate Article III, it is clear that they are engaged in judicial activism by reaching hard for this tenuous case and turning it into a vehicle they can use to destroy the wall of separation between church and state. 

After wrongfully taking the case, they wrongly decided it. This is the first time the court is requiring a state to provide funds to a church in clear violation of the First Amendment, precedent, history, and the long supported separation of church and state. The Supreme Court held that because the state did not benefit religious exercise, they are compelled to do so. It is the first time the court orders that public funds must be used to pay for religious education. And it is wrong. The government is not obligated to fund a right e.g. I have a right to free speech but the government is not obligated to pay for my megaphone or website, allegedly I have a right to carry a gun but the government is not obligated to buy me one.  But with this decision, because I have a right to free exercise of my religion, the state is obligated to pay for my children’s schooling. As Sotomayor says, the ruling is perverse.  It turns the amendment on its head and mandates the state pay for someone to exercise their religion.  That was never its intent.