Does Separation of Church and State Mean Kids Can’t Pray in Public Schools?

Myth: Thanks to separation of church and state, kids can’t pray in public schools.

Some Arizona lawmakers have made headlines claiming that we don’t need to keep guns out of schools; we need to bring more prayer in.  Once again, a legislator has introduced a bill (HB2060) to mandate a quiet reflection and moral reasoning time as a way to stick the camel’s nose under the tent.

But as long as there are algebra tests, there will be prayer in school.  What the U.S. Supreme Court banned in 1962 (Engel v. Vitale)  and 1963 was government-sponsored, compulsory prayer and Bible reading in public schools.  Voluntary prayer was never banned but, given the diversity of religions in the U.S. (1,500 to 2,000 estimated), it is a very good idea to prohibit government-sponsored or compulsory prayer.  

Prior to those rulings, Jewish and Muslim kids were required to recite Christian prayers.  Catholics were required to listen to verses from the King James version of the Bible that was written by the Anglican church that ridiculed the beliefs of the Catholics.  The non-religious were required to accept it all.  Parents rights regarding how and in what religion to bring up their children were ignored.

Legitimate Educational Goals v. Coercion and Retaliation

Today, young people can pray and read religious books in a non-disruptive way but no one can be compelled or singled out for refusing to do so.  Kids can set up religious clubs in non-instructional time but they have to be open to all, student run, and voluntary. Religion can be discussed in classes like history, art, literature and others. The Bible and other religious texts can even be read as part of a comparative religion course. As long as the approach has legitimate educational goals, public school officials will not get into trouble for teaching about religion.  This is truly the American way, not coercion and retaliation.  

It’s the Bible, after all, that says in Matthew 6:5-6, “And when you pray, do not be like the hypocrites, for they love to pray standing in the synagogues and on the street corners to be seen by others.”  Those advocating for public prayer in the school ought to pay attention to their own good books. 

The hysteria about praying in schools is just that, hysteria, or perhaps worse.  It is the shifting of blame from the state legislature’s refusal to regulate guns as the vast majority of Arizonans want to, claiming that the problem is prayer.  It’s the shifting of blame from the state legislature’s depletion of funding for our schools, to blaming our schools’ poor scholastic record on lack of prayer.  Those making these claims would not argue that the Koran should be read in class or the Torah or the Humanist Manifesto.  

In “Religion in the Public Schools: A Joint Statement of Current Law,” 35 religious and civil liberties organizations give the following summary of the rights of students to express their faith in a public school:  Students have the right to pray individually or in groups or to discuss their religious views with their peers so long as they are not disruptive.

The Premise and Promise of Democratic Pluralism

Because the Establishment Clause does not apply to purely private speech, students enjoy the right to read their Bibles or other scriptures, say grace before meals, pray before tests, and discuss religion with other (willing) student listeners.

In the classroom, students have the right to pray quietly, except when required to be actively engaged in school activities (e.g. students may not decide to pray just as a teacher calls on them).

In informal settings, such as the cafeteria or in the halls, students may pray either audibly or silently, subject to the same rules of order as apply to other speech in these locations.

However, the right to engage in voluntary prayer does not include, for example, the right to have a captive audience listen or to compel other students to participate. (Student Religious Expression in Public Schools: United States Department of Education Guidelines) 

So first, know the facts: prayer is not excluded, it just cannot be government-sponsored or compelled. 

And second, the rules that apply to one, apply to all.  The Williamsburg Charter that was signed in 1988 by Presidents Carter and Ford, two then-living Chief Justices, and 200 other leaders states in part: 

We affirm that a right for one is a right for another and a responsibility for all. A right for a Protestant is a right for an Eastern Orthodox is a right for a Catholic is a right for a Jew is a right for a Humanist is a right for a Mormon is a right for a Muslim is a right for a Buddhist—and for the followers of any other faith within the wide bounds of the republic. 

That rights are universal and responsibilities mutual is both the premise and the promise of democratic pluralism. The First Amendment, in this sense, is the epitome of public justice and serves as the golden rule for civic life.

Rights are best guarded and responsibilities best exercised when each person and group guards for all others those rights they wish guarded for themselves. 

 

Dianne Post

Legal Director, Secular Communities for Arizona

Virtual Memorial in Honor of Mark Nisski

Please join us at a virtual memorial service for Secular AZ Board Member and friend Mark Nisski.

Late last year, Arizona’s secular community lost a bright light. Mark’s enthusiasm, intellectual curiosity, energy and kindness are sorely missed.

On Saturday, January 30 at 4pm, Mark’s family, friends and the secular community will gather together on Zoom to honor his memory.

Join Zoom Meeting:
Meeting ID: 825 9122 5523
Passcode: 735733

Does This Communion Come with COVID?

Does This Communion Come with COVID?

by Sophie Carney, Secular Communities for Arizona Legal Intern

New York Governor Andrew Cuomo issued Executive Order 202.68 on March 7, 2020 which, in part, placed limitations on the capacity allowances for houses of worship. In the zones of New York most severely affected by COVID-19, houses of worship were to be subjected to a capacity limit of 25% of maximum capacity or 10 people, whichever was fewer.

In moderately affected zones, houses of worship were to be subjected to a capacity limit of 33% of maximum capacity or 25 people, whichever was fewer. The least affected zones were to be subjected to a capacity limit for houses of worship of 50% of maximum capacity. 

In response to this executive order, the Roman Catholic Diocese of Brooklyn, New York and Agudath Israel of America and its affiliated entities applied for injunctive relief in order to prevent Governor Cuomo from enforcing Executive Order 202.68 while they seek appellate review of the Order.

Their applications were based on the idea that the Executive Order violates the Free Exercise clause of the First Amendment of the Constitution. The Free Exercise Clause of the First Amendment holds that, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise [of religion] … .” 

Under the law, plaintiffs seeking preliminary injunctions have to prove that they are likely to succeed on the merits, that they are likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tip in their favor, and that an injunction is in the public interest. The Supreme Court held that both the Roman Catholic Diocese and Agudath Israel of America met all of these standards for relief.

To succeed on the merits, the applicants had to make a showing that the restrictions they are challenging are not neutral. The Supreme Court held that the applicants were able to show this through the lack of evidence that they have contributed to the spread of COVID-19 and the admittedly more relaxed rule for other non-religious services that have been deemed “essential.” For example, the order allows certain large retail stores to allow, “literally hundreds of people shopping there on any given day,” while restricting houses of worship to 10 or 25 people.

The Supreme Court voted in the majority that, “[t]here can be no question that the challenged restrictions, if enforced, will cause irreparable harm.” The basis for this opinion is that those who want to go to religious services in person will suffer harm that will never be fixed, such as Roman Catholic Diocese patrons’ inability to receive communion and Orthodox Jewish peoples’ inability to meet their requirement for personal attendance. 

Finally, the Court held that the granting of the applicants desired relief will not harm the public. This, according to the Supreme Court, is because the State has not claimed nor shown that the public health would be in jeopardy if less restrictive measures were imposed.

Free Religious Exercise? Not in Question

The dissenting opinions in this case provide a different viewpoint on the matter. Supreme Court Justice Sotomayor’s dissent points out that free religious exercise is an important constitutional right, but it is not being called into question in this case. The Constitution, Sotomayor writes, “does not forbid States from responding to public health crises through regulations that treat religious institutions equally or more favorable than comparable secular institutions … .”

This is the case for New York Executive Order 202.68, which treats houses of worship far more favorably than their secular counterparts. For example, large gathering places such as movie theaters and concert venues have been forced to shut down completely and places like grocery stores and shopping malls have capacity limits, mask mandates, and even special hours for people who are more likely to suffer from COVID-19. These types of ordinances have been upheld in lower courts across the country and should serve as a precedent for all places that seek to have large gatherings, whether it is a house of worship or not.  

Further, the hypocrisy in applying heightened scrutiny to Cuomo’s Executive Order is illuminated by the Court’s failure to apply heightened scrutiny to clearly religious-based laws such as Donald Trump’s self-described “Muslim Ban” that was designed to thoroughly prohibit Muslim people from entering the United States. If the Executive Order that Cuomo proposed, which does not specify any one religion or even treat houses of worship more harshly than their secular counterparts, is not neutral enough to meet the aforementioned requirement of neutrality to religion to avoid heightened scrutiny, how is it that a Presidential Proclamation singling out the Muslim religion is neutral enough?

Even more, the Supreme Court has refused to enjoin restrictions on churches in places like California and Nevada, so why are they doing so in New York? We place trust in the Supreme Court, in part, because of its consistency in decision-making, but this strays from that standard and calls into question the legitimacy of the Court as a whole. 

There is also, of course, the fact that there actually is a possibility that this preliminary injunction could have a detrimental effect on public health. The Court notes that New York has not claimed that attendance at various religious services has resulted in the spread of the disease. However, there is no way to ensure that allowing houses of worship to operate at their desired capacity will not lead to an increase in the spread except for granting the injunction and hoping for the best. The majority opinion of the Court even admits that they are not public health experts, and that they should defer to scientists who are more educated on the matter, yet they continue to maintain their decision to allow the injunction to be granted.

The Supreme Court of the United States, on November 25, 2020, granted the preliminary injunction to the Roman Catholic Diocese of Brooklyn, New York and Agudath Israel of America. By granting these injunctions, the state of New York was prohibited from enforcing the restrictions on the applicants’ religious services that were present in Executive Order 202.68.

It is not clear the public health consequences this decision will bring, nor the costs of the Constitutional injustices brought about by allowing powerhouses in the religious world to pick and choose what laws they want to follow rather than adhering to the secular conventions of the Constitution.

 

No, Children Cannot Be Required to Recite the Pledge of Allegiance

Children cannot be required to recite the Pledge of Allegiance.

Let the shenanigans begin. Now that the state legislature has started, lawmakers are working hard to figure out ways to impose group think. Representative Fillmore from the far East Valley and Pinal County has introduced HB2060, that would require school children in the first through fourth grade to recite the Pledge every morning. Under current law, they may if they like; his change would require they do so unless their parents write an excuse. 

Today’s pledge is credited to Francis Bellamy in 1892. Bellamy’s version did not include “under God,” though he was a Baptist minister and Christian socialist. The language of the Pledge has been changed several times since Bellamy’s version. In 1923, “my flag” was changed to “the Flag of the United States” so that immigrants knew it meant their new flag, not their old one.  The words “of America” were added in 1924. That new version was recognized by Congress in 1942.  

The words “under God” were not added until 1954 during the Cold War, when the U.S. wanted to differentiate itself from the godless communists.  Several previous attempts to add that wording had failed; it was finally achieved by a joint resolution of Congress.  However, some historians argue that in fact it was not the fear of godless communists that motivated the addition of “under God” but the desire to conflate Christianity and capitalism as a challenge to the New Deal legislation of President Franklin D. Roosevelt. The “prosperity gospel” of today has certainly conflated Christianity and capitalist excess.  

The pledge was first used in public schools in 1892 in connection with the World’s Fair in Chicago. My friends from other countries are astonished that school children are required to recite such a pledge, as they consider it akin to brainwashing.  Five states do not require the pledge (CA, HA, IA, VT, and WY) and the U.S. Supreme Court has said that schools may not require students to do so.  So Fillmore’s bill is unconstitutional.  However, that has not stopped this legislature in the past.

Over the years, many lawsuits have been brought against mandatory recitation of the Pledge and the wording “under God.”  Jehovah’s Witnesses brought many of the cases because they consider the pledge to be idolatry and against their religion.  In 1943, in West Virginia State Board of Education v. Barnette, the Supreme Court said that public school students cannot be required to say the Pledge and that such ideological dogmata is antithetical to the principles of our country.  

The justice concluded with: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.”

Other objections have been that for a democratic republic built on freedom of dissent, citizens should not be required to speak, as in reciting a pledge, because it violates the First Amendment.  Secondly, children who are forced to recite the Pledge are not of an age that they can consent to the speaking. Third, the addition of “under God” in 1954 violates the First Amendment protection against the establishment of religion.  

In 2005, a CA court ruled that forcing children to say “under God” was an endorsement of monotheism that violated the First Amendment.  In 2006, a FL court ruled that requiring students to stand and pledge violated both the First and Fourteenth amendments.  In that case, the student had been ridiculed by the teacher. In 2009, a mother in Maryland sued and won when a teacher berated her child and had her removed from class for refusing to say the Pledge. Should the existence of actual facts come back into fashion, neither the Pledge of Allegiance nor the saying “under God” had any connection with the founding of the nation. 

• • •

Dianne Post, Legal Director

Secular Communities for AZ

A Message from the Interim Chair Re: Zenaido Quintana

During Executive Session of the January 9, 2021 Secular AZ Board Meeting, Zenaido Quintana tendered his resignation effective immediately.  Not all Board members were present at the time so the remaining members scheduled a meeting on January 10 so all members of the Board could participate in a discussion of next steps.  The Board met via Zoom and accepted Mr. Quintana’s resignation.  Given that the Vice Chair is on a leave of absence, the Board asked me to step in as Interim Chair while the Board considers how to structure the Organization for future success.

Zenaido has established a very impressive history of accomplishments, both in the leadership of the Coalition and with assembling and building the Liaised Organizations.  This was no more evident than when the Phoenix New Times recognized “The Secular Coalition for Arizona” as The Best Activist Group for 2020. 

The Board and I want to recognize and thank Zenaido for the tremendous work he contributed over so many years. 

During the coming days and weeks, I will be reaching out to our community to ensure that we understand your objectives and to keep you aware of and understanding what we are doing.  Thank you for your continuing support to our efforts to be the voice of secular voters.

Philip Lentz

Interim Chair

No Religious Test for Public Office

No Religious Test for Public Office

Today’s political campaigns, from president on down, often include references to the religion of the candidate and how pious the candidate is. This should not be a political bellwether.

The only mention of religion in the body of the Constitution of the United States is in Article VI, which states: 

3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. 

The founders made it clear: no official religion or government support for any particular religion; no religious test for office; and anyone can practice any religion they want… or none at all. An oath is not required, an affirmation will do. When Senator Sinema was sworn in, her left hand rested on the Constitution, emphasizing that her duty is to the law and the Constitution not a Bible.

No Official Religion: It’s Constitutional

Many of us have forgotten this provision that was written into the Constitution itself. At the time of the Constitutional Convention in 1787, most of the colonies still had religious establishments or religious tests for office. It was unimaginable to many Americans then that non-Protestants — Catholics, Jews, atheists, Muslims and others — could be trusted with public office. But surprisingly it was Charles Pinckney from South Carolina who proposed the provision, though South Carolina had a state religion at that time. This thinking represented the new spirit of religious liberty exemplified in the Enlightenment thinking of Jefferson. It passed with little dissent. 

It still took until 1961 for Maryland to abolish the last religious test. Torcaso was appointed to the office of Notary Public by the Governor but was refused the commission because he would not declare his belief in God.  He sued and the case went to the U.S. Supreme Court, Torcaso v. Watkins, 367 U.S. 488, 81 S. Ct. 1680, 6 L. Ed. 2d 982 (1961).  

As the Supreme Court pointed out:  

It is true that there is much historical precedent for such laws. Indeed, it was largely to escape religious test oaths and declarations that a great many of the early colonists left Europe and came here hoping to worship in their own way. It soon developed, however, that many of those who had fled to escape religious test oaths turned out to be perfectly willing, when they had the power to do so, to force dissenters from their faith to take test oaths in conformity with that faith.

This brought on a host of laws in the New Colonies imposing burdens and disabilities of various kinds upon varied beliefs depending largely upon what group happened to be politically strong enough to legislate in favor of its own beliefs. The effect of all this was the formal or practical ‘establishment’ of particular religious faiths in most of the Colonies, with consequent burdens imposed on the free exercise of the faiths of nonfavored believers.3

The Kind of “Faith” We Need

Still today, we see those who are in a position of power ready and willing to burden those from another faith or no faith, even to the extent of refusing to wear a mask and possibly infecting them with a deadly disease. But the Torcaso court kept to the founding father’s principles and said, “We renew our conviction that we have staked the very existence of our country on the faith that complete separation between the state and religion is best for the state and best for religion.”  

That is the kind of “faith” we need.  

Until the nomination of Al Smith in 1928, all presidential and vice-presidential candidates nominated by the two parties were Protestants. In 1960, the election of John Kennedy, a Roman Catholic, broke the informal political barrier that had long excluded non-Protestants from the presidency.

Churches didn’t just fight against each other: they fought within their own religion.  Today, politicians fight to declare who is the most sincerely “born again.”  The Deist religious convictions of Thomas Jefferson — based on reason, rather than revelation —were attacked, as was Romney, a Mormon, when he ran for president.  

In Arizona, Article II section 12 of the State Constitution provides:

12. Liberty of conscience; appropriations for religious purposes prohibited; religious freedom 

Section 12. The liberty of conscience secured by the provisions of this constitution shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of the state. No public money or property shall be appropriated for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment. No religious qualification shall be required for any public office  or employment, nor shall any person be incompetent as a witness or juror in consequence of his opinion on matters of religion, nor be questioned touching his religious belief in any court of justice to affect the weight of his testimony. 

The Arizona Constitution protects not only public office holders from any religious test, but also witnesses and jurors. In Kelley v. ADBO, M.D., 2005, the decision was reversed because of prejudicial cross examination about the plaintiff’s belief in Wicca, which the court found was not necessary for any valid purpose in a Mormon community except to be prejudicial.

So Arizona, too, has made it clear that a religious test may not be imposed in the public square to bar anyone from their duties or responsibilities.  Unfortunately, our current state leaders honor the Constitution in the breach by posting religious messages on government communication sites and refusing to adhere to health and science requirements in a pandemic.

We need each of you to step up and report such violations so action can be taken.

Dianne Post

1/4/2021

Dianne Post: Update

Earlier, I reported on the pages of Black Collar crime from FFRF; one of the cases reported in that edition was two Amish brothers who had impregnated their 13-year-old sister.  They were given a 15-year-suspended sentence with 5-years probation, community service, and have no contact with the victim. 

Within 3 days, they had violated the document they both just signed. So they were sent to prison.  How arrogant must you be to risk 15 years in prison?

I also mentioned the 93,000 men who had filed claims in the Boy Scout bankruptcy. All BSA units are owned and operated by chartered organizations and 65% of them are chartered to faith-based groups.

The Mormons lead the pack with 37,933 units and 437,160 members and withdrew from scouting in 2019; the United Methodist Church was a distance second with 10,703 units and 349,614 members; and the Catholic Church third with 8,131 units and 259,297 members.  

Are Mormons Christians? The Question and its Implications

Are Mormons Christians?  The Question and its Implications

by Matthew Adler, Secular Communities for Arizona Legal Intern

In a recent Arizona appellate case, the court was confronted with the age-old question of whether Mormons can be considered Christians.  The lower court had declared unequivocally “that Mormonism does not fall within the confines of Christian faith.”  The appellate court, however, cried foul and vacated the judgement. 

In so ruling, the court held that to address such a question would violate the little-known but long-established judicial rule known as the “ecclesiastical abstention doctrine.”  This doctrine, which has its genesis in an 1871 Supreme Court case, essentially states that courts may not adjudicate issues that require the resolution of theological questions. For most of its history, this doctrine has been relatively uncontroversial.  Recently, though, some courts around the country have expanded the doctrine in ways that endanger the public’s access to justice.

The vast majority of the applications of the ecclesiastical abstention doctrine have been to issues that fall squarely within the realm of religious dogma. As such, the doctrine has not historically been the subject of much public debate or scrutiny. One example of a typical application of this doctrine is whether a church can fire a priest for the alleged violation of some specific religious tenet. Were the priest to sue for wrongful termination, the court would likely dismiss the case on the grounds that the court is both ill-equipped to and prohibited by the free exercise clause of the first amendment from addressing such a question. Recently, however, certain courts have weaponized this doctrine in order to dismiss cases that do not actually have anything to do with religion.

Take, for example, a recent case in Texas in which a student was expelled from a religiously affiliated school merely because he was alleged to have smoked marijuana off-campus, despite the fact that he tested negative for the drug and that the school has a lenient first-offense policy enshrined in its code of conduct. When the parents sued, both the trial and appellate courts refused to even consider the case, citing as justification the ecclesiastical abstention doctrine. 

This rationale is highly dubious for a few reasons.First, the ecclesiastical abstention doctrine does not prohibit courts from issuing rulings that affect religious institutions.It only prohibits rulings that explicitly address questions of theology.For example, if a church were to get into a contractual dispute with its electricity provider, the court could and would hear the case because it does not touch on any religious issues.

Likewise, in the Texas case, the issues were whether it could be shown that the student smoked marijuana in the first place and whether the expulsion violated the school’s own disciplinary policy. The issue was emphatically not whether the Christian faith condones the use of marijuana. 

Additionally, the school in question is not even a religious institution. It is neither owned nor operated by a church; it merely self-identifies as religiously affiliated. In applying the ecclesiastical abstention doctrine to a secular organization, the court charted a stark departure from judicial precedent. The school was able to avoid even the possibility of liability by merely invoking “religion,” despite the fact that the issues presented by the case were not of a religious nature. This case seems to be yet more evidence of the growing trend of judicial deferment to religious institutions in contexts that deal fundamentally with a person’s civil rights.

Thankfully, the Arizona case discussed in the first paragraph of this post does not present the same problems as the Texas case. The Arizona appellate court was prudent in its application of the ecclesiastical abstention doctrine, as the question of whether Mormons are Christians is a genuine theological dispute that is still the subject of vociferous debate. The court would be unable to resolve such a question, and any attempt to do so would be extraordinarily damaging to the court’s status of impartiality and would be a clear violation of the first amendment.

The ruling does, however, raise a few interesting hypotheticals. I am by no means an expert on religion, but Mormonism and Christianity seem highly intertwined, considering that Jesus Christ is a central figure of both faiths. One would assume that if the court had instead been presented with the question of whether or not Islam could be considered a form of Christianity, the court would not have hesitated to rule on the matter. But what if the father had instead converted to the Native American Church, in which the Great Spirit is often held to be synonymous with Jesus Christ, and in which the ritual use of Peyote is an integral practice of the faith.

In such a hypothetical scenario, would the court rule that exposing the child to such religious practice violates the parenting agreement, or would the court still have applied the ecclesiastical abstention doctrine?  Luckily for the court, it was not presented with such a thorny question.

Although the recent Arizona case was not problematic, it does serve to draw our attention to related issues that do seem to pose a genuine threat to the religiously neutral administration of justice.

 

Matthew Adler

Secular Communities for Arizona Legal Intern

My Dad’s Bigger than Your Dad: When Favorable Treatment isn’t Enough

My Dad’s Bigger than Your Dad: When Favorable Treatment isn’t Enough

by Adriana Lujan-Flores, Secular Communities for AZ Legal Intern

On November 25, 2020, the U.S. Supreme Court ruled to stop New York Governor Andrew Cuomo from limiting church capacity in areas with high concentrations of COVID-19 cases. Executive Order 202.68 imposed a 10-person occupancy limit on “red zones” and a 25-person occupancy limit on “orange zones”— areas determined to be hot spots for the deadly virus. The 5-4 decision ruled that Cuomo’s executive order violated the free exercise clause of the First Amendment by allowing certain essential businesses (such as shops and laundromats) to operate with a higher occupancy than religious organizations.

The majority opinion insists that there is no reason to assume that churches and synagogues are more dangerous than other businesses, and that attending religious services from home is “not the same as personal attendance.” Justice Gorsuch’s concurrence belabors the point by repeatedly claiming that allowing liquor stores and bike shops to operate at a different standard from churches and synagogues is “treating religious exercises worse than comparable secular activities.”

However, liquor stores and bike shops are in no way comparable to churches and synagogues. As Justice Sotomayor points out in her dissent, people do not gather in large groups for over an hour in stores the way they do in houses of worship. Furthermore, Cuomo’s executive order actually treated religious organizations more favorably than comparable secular events such as concerts and cinemas, which have been closed entirely.

In fact, the only reason the order even mentions houses of worship is to give churches preferential treatment by allowing them to be open to the public at all. Sotomayor also points out the Court’s hypocrisy in considering applying heightened scrutiny to this case, but not to the President’s “Muslim ban” in Trump v. Hawaii, which prevented Muslims from certain countries from entering the United States. 

The free exercise clause of the First Amendment prevents the government from prohibiting the exercise of religion. However, the right to freedom of religion doesn’t give every religious group a free pass to ignore the law. Courts have upheld legislation that burdens the free exercise of religion if there is some threat to public safety, peace, or order. Restrictions on large gatherings during a pandemic are intended to protect the public from a deadly virus that spreads through close contact from person to person.

Justice Breyer notes in his dissent that the uncertain nature of COVID-19 creates a strong argument for the state to take actions to curb the risk of spread. But the majority of the Court rejects this as a compelling reason to restrict church capacities — essentially ignoring warnings from public health experts — because there is not evidence that these specific churches have already increased the spread of COVID-19. The court seems to suggest a reactive approach to the pandemic by not allowing local governments to take preventive measures until it is too late. 

Three weeks after the opinion in Roman Catholic Diocese of Brooklyn v. Cuomo was issued, the country is already seeing the decision’s effects. On December 15, the Supreme Court accepted an appeal from a Colorado church fighting a 50-person occupancy limit, despite the fact that the restriction had already been lifted by the governor. On the same day, the Court granted a similar appeal by a New Jersey church. Both cases relied on the precedent set in Cuomo’s case, and it is likely that other organizations will use the case to fight pandemic-related restrictions going forward. 

Notably, the 10-25-person capacity limitations were no longer in effect in New York by the time this case reached the Supreme Court, so the injunction will have little direct impact. Nonetheless, the Court decided to issue an opinion anyway, just in case the restrictions are reinstated.

This case is just an example of religious organizations testing how far the Court will go to allow churches to act above the law. Even though houses of worship were given preferential treatment under Cuomo’s executive order, that was not enough for an entity that is used to having absolute power.

Adriana Lujan-Flores

Secular Communities for AZ Legal Intern

2021 Legislative Agenda: Biden has a Big Job Ahead

Biden has a Big Job Ahead of Him:  Legislative Agenda for 2021

Dianne Post, Secular AZ Legal Director

The Americans United for Separation of Church and State group has put out an ambitious agenda for President-Elect Biden. The Christian nationalists have been working on their agenda for decades and they succeeded in imposing much of their rule during the previous four years.  In respect to the Constitution and democracy, this must be undone.

Religious freedom cannot mean that one particular religion gets to do everything it wants to the exclusion of the rights of all others.  Yet that is where we have been going.  The do-no-harm principle has always been a guiding light to allow believers to practice their faith but not harm non-believers.  This went out the window with this Supreme Court as most recently illustrated by their decision to allow churches to meet in violation of the COVID pandemic rules. 

In other words, their beliefs can be the excuse to harm every person in the country with the increased spread of the virus; the increased burden on first responders, medical personnel, and essential workers; and the increased costs that will flow from these spreader events.  The rest of us will pay for their foolishness; some of them will pay with their lives.

In 2019, a do-no-harm bill was introduced into Congress (HR 1450 / S 593) to restore the balance of powers and protect the majority of Americans. It will have to be re-introduced in the new Congress. Sixty percent of likely voters said protecting the separation of religion and government is either one of the most important issues to them personally or very important to them.

Biden Can Undo Damage by Executive Order

Biden can undo some of the damage by executive order. The discriminatory Muslim Ban is one such act. It has led to families being separated, people being denied access to medical treatments, students and researchers denied permission to study here, and doctors and medical professionals who could help care for COVID-19 patients being prohibited from entering the U.S.

AU has suggested that Biden sign an order setting out principles of religious freedom. We already have that. It’s called the First Amendment. But he can revoke the legal memoranda issued by the Attorney General including the horrific international statement of religious freedom that prohibits reproductive care for women and puts the tenants of one religion above all others.

The current administration has proposed regulations at nine agencies that would allow such discrimination. These can be stopped. The HHS waiver that allows taxpayer-funded child placement agencies to reject potential parents who don’t meet their religious test can be withdrawn, but the Supreme Court has that case and will unfortunately be the ultimate decider. There is a notice of nonenforcement and proposed rule to eliminate nondiscrimination that can be withdrawn, but it may be moot ,depending on what the Supreme Court says.

Given that the Constitution Article VI says that there can be no religious test as a qualification to any office or public trust, it is pretty astounding that taxpayer-funded contractors and grantees can use religion to discriminate. There is a proposed rule to expand the EEOC religious exemption clause that should be withdrawn. And there is an Attorney General opinion that claims RFRA demands that federal agencies be able to discriminate with taxpayer monies. This should also be withdrawn and the provisions of the Constitution in Article VI be adhered to.

While the administration was never successful in overturning the Johnson Amendment prohibiting churches from endorsing candidates, the IRS is not vigorously enforcing it.  They must be so ordered.

Whose Life is this Anyhow?

Health care is a right not a privilege and the government should fund it fully but right now, many exemptions exist to allow everyone from pharmacists to doctors to refuse care based on their alleged beliefs. This particularly harms women and the LGBT community.

Arizona, too, has many of those same laws including that the hospital doesn’t even have to tell you that they won’t abide by your end-of-life decision. Really – whose life is this anyhow?

The Denial of Care Rule must be rescinded along with the regulations exempting birth control in health care plans. However, again the Supreme Court has failed to protect this right and allowed such discrimination in Hobby Lobby and Little Sisters of the Poor.

Using taxpayer money to pay for religious schools has been an on-going battle with AZ ground zero. The unfortunate Espinoza decision from the Supreme Court shows we cannot rely on them to uphold constitutional principles so we have to stop all voucher programs. Two state courts have refused to follow this decision (Ohio and Maine).

Both courts have said what the Supreme Court should have said – we are not discriminating against these schools because they are religious schools, we are prohibiting state taxpayer monies to go to these schools because of what they would do with the money i.e. teach religion and proselytize which is prohibited by our state constitution. The partisan nature of this Supreme Court has resulted in the loss of respect for its opinions.

Religious Favoritism Must End

Unfortunately, some issues cannot be resolved by executive order. This includes cases at and making their way to the Supreme Court, asking that faith-based organizations receiving government funds to deliver government services be allowed to discriminate according to their claimed beliefs.

AZ has similar laws that the state cannot discriminate against faith-based organizations when handing out taxpayer money, but the faith-based organization can discriminate when doing the contracted work. This religious favoritism must end.

One thing the incoming administration can do is ensure that cabinet picks and incoming administration staff reflect the vast diversity that is the U.S. today, including atheists.  Likewise, judges must be nominated and confirmed who believe in the Constitution — including the First Amendment — and who represent our entire diversity.

In Memoriam: Mark Nisski

Secular AZ mourns the loss of Board Member and friend Mark Nisski, who passed away this week from Covid-19.

Mark was a bright light in Arizona’s secular community. A true secular champion, Mark broke new ground when he founded the Kingman Freethinkers, a freethought group in Kingman, AZ.

Here, Mark put his boundless passion for secular values to work, creating a much-needed and very welcome sense of community in northwestern Arizona. 

Mark quickly realized the need for and potential of his group, and started building connections across the state. In 2019, he was honored as one of our “Secular Stars” for his work with the Kingman Freethinkers. Earlier this year, he joined the Secular AZ Board. 

We will sorely miss Mark’s enthusiasm, his intellectual curiosity, his energy, and — most of all — his kindness. He inspired those around him to look at the world differently and to take action to make things better. Our hearts and thoughts are with Mark’s family.

AZ Code: Chock Full of Religious Favoritism

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

We were astounded to discover 220 different statutes.  

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

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

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

Violating the Establishment Clause

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

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

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

Religious Exemptions for Clergy and Healthcare Providers

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

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

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

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

Codified Discrimination Based on Religion

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

Other favoritism given to religious organizations includes:

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

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

Establishment of Religion by the State

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

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

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

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

Join us and let us know what you think.  

 

Dianne Post, Legal Director

Secular Communities for AZ