The latest Humanist Society talk was about a topic very dear to Humanists: Church-State Separation.
Humanist Society President Judy Flattery started by relating the talk to these Affirmations of Humanism. This was very easy! The Paul Kurtz Affirmations of Humanism state:
“We are committed to the principle of the separation of church and state.”
Kalli Joslin is the Steven Gey Constitutional Litigation Fellow at Americans United for Separation of Church and State (AU).
Notice her earrings, which are Christian crosses and which are rainbow colored! She is proud to be Christian and to be a part of the LGBTQ+ community.
Kalli received her Juris Doctor, cum laude, from Georgetown University Law Center, where she served as the Editor-in-Chief of the Georgetown Journal of Gender and the Law and as a student-attorney in the Civil Rights Clinic. She also interned for Lambda Legal and the ACLU Program on Freedom of Religion and Belief.
Joslin began her talk noting that the First Amendment has two clauses regarding religion: The Establishment Clause and the Free Exercise Clause.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”
Although it begins with the word “Congress,” this applies to all government at all levels.
In the past, these two clauses were seen as working together to protect everyone’s rights. But right-wing justices have put them at war with each other in recent years.
One battle has been over government-funded private school vouchers. In 2002, the nine justices on the Supreme Court of the United States (SCOTUS) decided Zelman v. Simmons-Harris, ruling 5-4 to allow vouchers in Ohio to go to religious schools.
It is important to understand that, in many states, even secular private schools do not have to accept and support the range of students that public schools do. Private schools often do not provide the full range of accommodations for disabled students that public schools offer, and some private schools discriminate on the basis of students’ sexual orientation or gender identity.
Religious schools do those things, but are also teaching their religion. Meaning that through vouchers, taxpayers subsidize religion. Joslin described this as removing a brick in the wall between church and state.
By 2017, new SCOTUS justices pushed things further. Trinity Lutheran Church of Columbia v. Comer was not directly about vouchers, but it was related. Missouri’s Constitution provided that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.” But the Court held that Missouri’s decision to prohibit churches from applying for a state grant in accordance with their state constitution violated the federal Free Exercise Clause.
So much for judicial conservatives’ claims of states’ rights.
In 2020, the increasingly conservative Supreme Court applied the logic of the Trinity decision to voucher programs in Espinoza v. Montana Department of Revenue. Like Missouri, Montana had a similar state constitutional ban on funding religious schools. The Montana Supreme Court solved the Montana voucher program’s state constitutional violation by striking down the entire voucher program. But the Supreme Court reversed that decision, holding once again that a state constitution’s prohibition on funding religion violated the federal free-exercise rights of religious organizations that wanted government funds.
Carson v. Makin was a similar case from Maine, which the Supreme Court decided in 2022. The Court took things a step further, holding that any state that gives voucher funds to secular private schools cannot exclude religious schools. In her dissent, the liberal Justice Sonia Sotomayor said that this decision “leads us to a place where separation of church and state becomes a constitutional violation.”
Our January talk by Eugenie Scott on Creationism brought up the “Lemon Test” to evaluate violations of the Establishment Clause. As I wrote then:
Lemon v Kurtzman in 1971 established what came to be known as the “Lemon Test”. It was devised by Justice Warren Burger and had three parts. A government activity in question:
Must have a secular purpose
Must have a principal or primary effect that does not advance or inhibit religion
Cannot foster an excessive government entanglement with religion.
Joslin brought this up in the case of Kennedy v. Bremerton School District, where a public high-school football coach was holding prayers on the field with the players. SCOTUS, now with three Trump-appointed justices, denied the obvious violation of the First Amendment. The conservative majority ignored facts in the record showing that the coach’s prayers coerced students to pray. Instead, they relied on “history and tradition,” essentially arguing that prayer in such situations would have been allowed at the founding of the US. But a lot of things were allowed then that are not allowed now, and for good reason. Not a good argument, especially since judges are not historians.
Similar battles over the correct interpretation of history are now being fought over the meaning of the Second Amendment and in other areas of constitutional law, with judges cherry-picking history to fit their preferred narratives.
Joslin went on to talk about the “Most Favored Nation” theory now used by the Supreme Court in free-exercise cases. This theory claims that religion must get the best possible treatment in the law; comparable accommodations or exceptions from laws offered for secular reasons must also be offered for religious reasons.
Joslin told us that the SCOTUS has a “shadow docket” of often-unsigned decisions. This is how this Most Favored Nation theory was slipped in during COVID to allow churches to stay open and at-home religious gatherings to continue when other in-person gatherings were closed.
AU is fighting back at the state and federal levels. Last year, AU filed or joined 8 amicus briefs; this year, they’ve filed or joined 6 more.
One of the cases AU filed an amicus brief in was Groff v. DeJoy (Louis DeJoy is the Postmaster General, head of USPS). Groff is an evangelical Christian who worked for USPS but wanted Sundays off. Title VII, the federal employment nondiscrimination law, requires that employers must grant requested religious accommodations to employees unless the accommodation would impose an “undue hardship” on the business. When Groff didn’t get his preferred accommodation, he asked SCOTUS to clarify what “undue hardship” means. AU argued in their amicus brief that burdens on coworkers, like forcing them to cover undesirable shifts or subjecting them to proselytizing or misgendering, should count as an undue hardship, but that coworkers’ or customers’ bias against certain religious should not.
SCOTUS ruled unanimously in favor of Groff, but agreed with AU’s main arguments about what kinds of impacts should or shouldn’t count.
The other case in which AU filed an amicus brief that Joslin discussed was 303 Creative v. Elenis. This case was a kind of “do-over” of the Masterpiece Cakeshop v. Colorado case from 2018 where a bakery didn’t want to make a wedding cake for a gay couple. 303 Creative v. Elenis was about a web designer who didn’t want to do web design for same-sex weddings. She claimed that Colorado’s nondiscrimination law violated her free-exercise rights as well as her right to be free from government-compelled speech. In both cases, SCOTUS ruled in favor of the business being able to refuse service to the customer, but the 303 Creative decision that came out this summer affects many more people. AU’s amicus brief argued that businesses shouldn’t be allowed to use individual constitutional rights as a license to discriminate against others. But SCOTUS ruled that “expressive” businesses can’t be forced to express messages with which they disagree—meaning that the web designer has a constitutional right to refuse to make custom wedding websites for same-sex couples if she disagrees with same-sex marriage.
Joslin warned that this is devastating for the LGBTQ+ community and other protected classes. How broadly is this to be applied? What counts as speech? What counts as “expressive”? For example, what if a business said it would not serve Black people?
SCOTUS considered that kind of argument in 1968 in a case called Newman v. Piggie Park Enterprises. Piggie Park Enterprises was, in 1964, a drive-in BBQ chain owned by Maurice Bessinger, the Baptist head of the National Association for the Preservation of White People. Bessinger refused to serve Black people in his restaurants, including Anne Newman, a Black minister’s wife. He argued that he had a free-exercise right to discriminate because of his religious beliefs that integration “contravene[d] the will of God”, but SCOTUS called that argument “patently frivolous.”
But that was in 1968, and this is now—it seems everything is up for being revisited.
AU is also representing parties directly in federal court cases. In Garrick v. Moody Bible Institute, for example, AU represents a teacher fired from a religious school because she complained about sex discrimination. The school claims that she was a “minister” under a SCOTUS doctrine that allows religious employers to discriminate against ministers in employment; AU disagrees. Conservatives are arguing for a broad interpretation of this “ministerial exception”, which would essentially allow all kinds of religious employers to evade employment nondiscrimination laws for all kinds of employees, from camp counselors to custodians.
AU has brought two cases in state courts this year. The first, OKPLAC v. Statewide Virtual Charter School Board, is a state case in Oklahoma. AU is suing with ACLU, Education Law Center, and Freedom From Religion Foundation to stop the state of Oklahoma from using public money to fund what would be the first religious charter school in the country, St. Isidore of Seville Catholic Virtual School.
AU’s other new state-court case, Blackmon v. Missouri, challenges Missouri’s total abortion ban (instituted just hours after the SCOTUS abortion ruling) and several other abortion restrictions as an unconstitutional establishment of religion. Missouri law claims that human life begins at conception. This is a religious claim, not a scientific claim.
Rev. Traci Blackmon, the lead plaintiff in that case, is a minister and leader in the United Church of Christ, which holds a pro-choice position. Several plaintiffs are Jewish. Two are Unitarians. Many religions deny that human life begins at conception. For example, Judaism teaches that human life begins with the first breath. And for Muslims, a fetus does not have a soul until 120 days into pregnancy. The lawsuit, brought with the National Women’s Law Center, argues that the Missouri law is forcing Missouri residents to support laws that favor a religion they don’t belong to.
This is a Missouri state-court case, so SCOTUS shouldn’t get the chance to weigh in on it.
Joslin then took questions and comments from the audience.
Larry Taylor said he met Lemon of the Lemon Test decades ago. Taylor said he believes every word that Jesus said about abortion. Hint: The word abortion does not appear anywhere in anything said by Jesus or his followers in the Christian Bible.
Some people asked what can be done if SCOTUS has made a bad ruling. Joslin said that decisions on constitutional rights, like the Kennedy and 303 Creative rulings, can only be overturned by another SCOTUS decision or a constitutional amendment. But SCOTUS decisions on statutes that Congress passes are easier to get around if Congress passes a new law to clarify its intent.
My note: People often wrongly claim that we have three equal branches of government. That is not true. Congress is the primary branch of government. It also has the power to regulate SCOTUS, but that has rarely been used.
Andrew asked what groups AU works with. AU works with Freedom From Religion Foundation (FFRF) and others. Notably, they work with religious organizations.
Here you can find more information about AU: https://www.au.org/
For more information about upcoming events with the Humanist Society of Santa Barbara or to become a member, please go to https://www.sbhumanists.org/
– Robert Bernstein