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Jay Wexler: Courts have smashed down wall of separation

Boston University School of Law Professor Jay Wexler gives a talk at FFRF’s national convention in Boston on Nov. 19, 2021. (Photo by Chris Line)
Jay Wexler said he fears religious cases being heard by the Supreme Court: “Truly, I don’t want the next school prayer case to show up on Justice Barrett’s desk. I don’t know what will happen if it does.” (Photo by Chris Line)

This is an edited version of the speech that Jay Wexler gave at FFRF’s convention on Nov. 19, 2021, in Boston. He was introduced by FFRF Attorney Sam Grover.

Sam Grover: I’m very excited to be introducing our next speaker, Professor Jay Wexler, who has been teaching at Boston University School of Law since 2001, after he clerked for Justice Ruth Bader Ginsburg and after working for the Department of Justice. In addition to teaching law, Wexler is the author of the Twitter handle “SCOTUS Humor,” which tracks the number of laughs each Supreme Court justice receives during oral arguments, with a running tally for each term. Jay is also an accomplished author with six books. You can find out more about his books and his other works at his website jaywex.com. His newest book is called Our Non-Christian Nation: How Atheists, Satanists, Pagans and Others Are Demanding Their Rightful Place in Public Life.

Please welcome Professor Jay Wexler.

By Jay Wexler

Good morning, everybody. This is spectacular. There are so many people here! It’s always a pleasure and a privilege to speak at an FFRF event.

And it’s particularly thrilling to talk about my 2019 book, Non-Christian Nation, because the Freedom From Religion Foundation and its members are really one of the major heroes of the book. Indeed, the book is dedicated to the courageous plaintiffs who have fought for separation of church and state, and many of those plaintiffs and, of course, their lawyers, are here today. It’s like a who’s who of extremely important plaintiffs in big cases. I see Linda Stephens there, who was the plaintiff in Town of Greece v. Galloway. David Williamson is a plaintiff in the Williamson v. Brevard County case. Dan Barker, of course, is a plaintiff in a case challenging the House of Representatives’ policy about chaplains. So, it’s really a thrill.

It’s just not often that one gets to talk about a book to those who inspired the book. What I’m going to do is talk briefly about the book and then mention a few recent developments that have post-dated the book.

Our Non-Christian Nation

Our Non-Christian Nation grew out of two straightforward facts about the United States, neither of which I think will surprise anybody here.

The first fact is that in the past 25 years, the Supreme Court has really smashed down the wall of separation between church and state, basically rendering the Establishment Clause practically a dead letter, and vastly increasing religion’s access to government property, government money, government institutions. The last time the Supreme Court struck something down under the Establishment Clause, the First Amendment, was 2005.

That’s a long time now. How has it done this and in what areas has the Supreme Court acted in this way? Four main areas that I talk about in the book are of extreme importance.

First of all, it’s funding of religion as a result of the 2002 case called Zelman, which involved the Cleveland voucher program, and the 2000 case Mitchell v. Helms. And the most recent Espinoza case that came out two years ago. 

Basically, the government can funnel tons of money — billions of dollars — to religion, so long as it does so in kind of formally the right way, which is actually pretty easy to do. And, moreover, the government can’t choose to exclude religious recipients from general funding programs as a result of the new reinvigoration of the Free Exercise Clause, which is one of the biggest developments in separation of church and state law that we see today. 

The second is legislative prayer. In 2014, the Supreme Court, in the Town of Greece case, held that town boards, as well as state and local legislatures, can start off their sessions with prayers. And not just nonsectarian prayers, which, of course, don’t exist, but the Supreme Court likes to talk about nonsectarian prayers. Not only can they start off with a nonsectarian prayer, they can start off with a completely sectarian prayer to the Lord Jesus Christ and anything else like that before a legislative session.

Third, contacts in the public schools. Previously, the courts did pretty well in policing the line in public schools between keeping religion out, such as in school prayer cases. But in a line of cases culminating in the case about the Good News Club, the court said that public schools, if they open up their classrooms to organizations after the school day,  can’t exclude religious groups from using those classrooms and those facilities, even if those groups are proselytizing to 6-year-olds and giving them candy and money for remembering bible verses.

And, finally, there’s the context of religious displays and symbols on public property where the court has, over the past 20 years, basically approved many of these kinds of government-supported monuments, such as the Ten Commandments in Texas, and, most recently, the 40-foot cross in Maryland. I went to that argument at the Supreme Court because I was just a masochist and just wanted to see the Establishment Clause fall right in front of my face. And I just sat there open-mouthed as the justices debated for 70 minutes about whether a 40-foot-cross is, in fact, a religious symbol. I looked it up. That’s two and a half giraffes. I looked that up just because I wanted to see how big the cross was with the units of giraffes, which are apparently 15 feet tall. 

So that’s the first development, where the wall has really come down on the separation of church and state. 

More nonbelievers

The second development is a social-cultural development. The Supreme Court is doing all this demolishing, even though the United States has become much more religiously diverse. You see anywhere from 15 percent to 30 percent as the number of how many people believe in no religion at all. We have growth in religious diversity and nonbelief at the same time that the Supreme Court is smashing down the wall of separation of church and state. The natural question that follows is, “What should religious minorities and atheists do in a post-separation of church and state nation?”

There are lots of different possibilities. One possibility is to continue to fight in the courts to promote separation of church and state, and, of course, we have to do that. FFRF does that better than anybody, and especially just hearing the cases that FFRF is litigating now, I mean, yes, if there are some baptisms in the public school, there needs to be action taken. 

So, we got to keep fighting, keep litigating in the courts. But at the same time, there’s only so far that can go these days with our current Supreme Court, which has gone very far to the right. When I think of Justice Amy Coney Barrett replacing my former boss and hero on the Supreme Court, the only good thing about that is when I’m doing community theater and I need to weep on demand, I’ll think about that. 

I really fear cases getting to the Supreme Court. Truly, I don’t want the next school prayer case to show up on Justice Barrett’s desk. I don’t know what will happen if it does. 

So, what else can atheists do? One thing we could do is just give up. We could cede the public square to Christianity. The Supreme Court has said the government can support Christianity in all these ways I described. Maybe we just give up and go home. I doubt anybody in this audience would want that, for good reason.

So, what else might we do? Well, we could do what FFRF does, which is writing letters, lobbying, public education, etc., to make sure that people understand some of the dangers of religion and some of the goals of secularism. 

Equal participation

But there’s one other thing that we can do. And that is to demand equal participation in the public square alongside Christians. The Supreme Court has opened up the public square in terms of money, institutions, property, religion. But it has also, at the same time, said that the government can’t discriminate on the basis of what religion or nonreligion people believe in.

That means that not only can Christians put up displays, but, of course, so can atheists. We can have secular organizations in the public schools proselytizing with candy, I suppose, if necessary. 

The idea that we, as religious minorities or atheists, should be participating in public life, that’s not what we wanted to do. We wanted to keep religion and the government and the public square separate. It’s kind of strange in a way. We’ve got to get over the hump that we’re stuck with religion participating in the public square. 

One of the main things we can do to counter it is to participate alongside Christians. And, indeed, religious minorities and atheists have started doing exactly that. And that’s what much of the book is. It’s about telling the stories. 

Many of the stories in the book involve religious minorities. There’s a story about a Muslim school in North Carolina, for example, that participates in that state’s voucher program. That was a school which saw three of its graduates shot to death in a hate crime. 

There’s a story of a wife of a Wiccan war hero who, with the help of Americans United for Separation of Church and State, sued to get the Wiccan pentacle approved by the Veterans Administration for placement on the National Cemetery gravestones. And now, if you go to the National Cemetery in Washington, D.C., there are at least eight headstones with the Wiccan pentacle.

There’s the story in the book of how I went to Belle Plaine, Minn. Belle Plaine is this tiny town, the town where the very first Satanic monument on public property was going to be erected. I went there to go see if that was going to happen. But what happened is that the town actually closed down its free-speech zone rather than allow a Satanic veteran’s monument to be next to a bunch of crosses in their Veterans Memorial Park. 

  There are all of the secular invocations that have been given before town boards by the fantastic CFFC in central Florida. Linda Stephvens did a fabulous secular invocation in front of the same town that she took to the Supreme Court, which I thought was one of the bravest things I’ve ever seen.

Of course, there’s the FFRF holiday displays. We’ve seen the nativity displays with Benjamin Franklin and the Statue of Liberty. 

Sometimes, these events go really smoothly. At Linda’s invocation, I went to town of Greece, and I secretly hoped that there would be  some kind of hullabaloo that I could report on. But really, luckily, looking back on it, there was not, and it was very peaceful.

The only thing was that I was sitting next to a guy, and when Linda was introduced, the town board guy said, “There’ll now be a prayer.” And then the guy sitting next to me took off his baseball hat. And then when it was clear that it wasn’t going to be an actual prayer, he put the hat back on. That was the extent of the controversy there. So, sometimes these things go very smoothly. 

Not always smooth

But, of course, as you can imagine and know from all FFRF’s work, oftentimes they don’t go smoothly. And I tell some stories in the book about that. There are stories, for example, of invocations being shouted down, counterinvocations being given, displays being torn down. There’s the story of legislators in Louisiana who supported a voucher program until they learned that there were such things as Muslim schools, at which point they decided, “Well, we better get rid of that voucher program.”

Sometimes the stories are actually quite unfortunate, which I don’t think will surprise anybody. Although most of the book is descriptive, it also puts forth a normative argument, that this kind of participation in public life, while in a sense kind of a second best to the ideal secular public square, nevertheless, has some real positives that minorities might not get from that kind of secular public square.

For example, having a religious cacophony. That’s how I envisioned it in the public square, where you have Christians talking about what they want and Jews talking about what they believe and atheists saying what they believe and the Satanists and the Wiccans, and everybody talking about what they believe the good life looks like. I find that’s kind of exciting in a way to me. I’m sure some of you will disagree, but the idea of this pluralism in public life is very attractive. 

And I also think that it’s educative. I think it was David Williamson who told me in a conversation that doing an invocation before a meeting as a secularist gives you sort of a two-minute lecture opportunity to both model how atheists are not scary and to teach people who might be afraid of atheists what we believe in. 

There’s an educative benefit to participating in the public square. And maybe, also, over time, we might see more mutual understanding and tolerance and respect. The other possibility, of course, is that you have something like what happened in Phoenix when the Satanic Temple decided it was going to give an invocation and the town decided after a three-hour, really, really hard-to-watch meeting, where the entire city of Phoenix came out to denounce the Satanic Temple, even though they didn’t know what the Satanic Temple was, they closed down the invocation program altogether, kind of like the Belle Plaine park, rather than let a Satanist talk for two minutes once a year. So, you get the secular public square anyway. 

New developments

So that’s the argument of the book and the description contained in the book. And now let me just talk about three developments that have occurred since I wrote the book.

The first development is a really troubling one, and that is the exclusion in some jurisdictions of atheists from invocation programs. It’s true that the Supreme Court and Town of Greece said that the government can’t discriminate on the basis of religion when it lets people give opening prayers. But some jurisdictions, including the United States House of Representatives, have said, “Well, OK, other religions can pray, but atheists can’t pray because atheists can’t pray.” And this has happened in a few jurisdictions. It happened in the 11th Circuit, happened in the 3rd Circuit, and the D.C. Circuit, and FFRF was involved in the litigation of maybe all of those cases, but certainly the D.C. Circuit case in which a judge that I had clerked for before I worked for RBG, David Tatel, actually came out in favor of the government. This was so disturbing to me, the idea that the government could exclude atheists from this pluralistic public square just because atheists don’t believe in a higher power. It’s deeply troubling and really undermines the religious pluralism possibility that is the only silver lining in my view of the Supreme Court’s new Establishment Clause jurisprudence. 

The second development is a case called Shurtleff v. Boston. This is the Boston flag case, which is at the Supreme Court now, and it’s going to be a really interesting case. The city of Boston has these three flag poles right in front of the City Hall. 

One has the U.S. flag, one has the state flag, and the other has the city flag. And sometimes the city flies a private group or civic organization’s flag in conjunction with an event that that group does. And a Christian group said, “Can we put up our flag?” The city said, “No, it’s not consistent with our guidelines.” And then the lawsuit occurred. From a free speech First Amendment perspective, it’s a really interesting and difficult case because it turns on whether those flags are the government speaking, in which case the government can say we’re not putting up a cross, or whether it’s the government facilitating a forum for private speech, in which case, then the government maybe has to put up the Christian flag. But if it does, and if that’s what the Supreme Court rules, I’m really hoping that the Freedom From Religion Foundation has a flag, because that’s what we need to do on day two, is to put that up. 

And finally, I just want to say a word about the Supreme Court’s reinvigoration of the Free Exercise clause. In the last couple of years, we’ve seen this right-turning court really push the Free Exercise clause, finding that religious believers have rights to exemptions from various general laws and other things like that. Recent cases involving things called the “ministerial exception” and the Fulton case from last year, and there was all those Covid cases which the court is deciding on a shadow docket with no oral argument. All those cases represent a new reinvigorated Free Exercise clause. And we can debate about what the proper interpretation of the Free Exercise clause may be. But the point I want to make here is that whatever you think about that, it’s certainly the case that reinvigorating the Free Exercise Clause at the same time that the court is demolishing the Establishment Clause puts the religion clauses out of balance. If we’re going to allow religion to be exempt from some general laws — and maybe we should, maybe we shouldn’t — but if we are, then religion should then also bear the burden of needing to be excluded from government programs on the other end to balance the two rights. 

We often talk about the two clauses in isolation from each other, but I think we ought to be talking about them together. And if the court is going to demolish the Establishment Clause, it doesn’t make any sense for it to reinvigorate the Free Exercise clause at the same time. And I think we need to keep making that point.

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