Convention speech — Daniel Mach: Courts push religion over rights

This is the speech given by Daniel Mach on Oct. 29, 2022, at FFRF’s national convention in San Antonio. He was introduced by Steven Hirtle, chair of FFRF’s Executive Board. To watch the full speech, go to ffrf.us/convention-2022.

Stephen Hirtle: I am here to introduce our next speaker, and there’s a little story that goes with it. In 2017, FFRF Lifetime Member extraordinaire Henry Zumach approached FFRF about creating an endowment for a new award called the Freedom From Religious Fundamentalism Award. Note that if you put these together, you get FFRF’s FFRF award.

Hank has grown the endowment to $35,000. I’m honored to introduce the recipient of the 2022 Henry H. Zumach Freedom From Religious Fundamentalism Award, which is going to the ACLU Program on Freedom of Religion and Belief. Accepting the award on behalf of the program is its director, Daniel Mach.

Dan often writes, teaches and speaks about religious freedom issues. He currently serves as an adjunct professor of law at the George Washington University Law School, focusing on constitutional law and religious liberty. We know he’ll have a lot to say about both of these topics. Please come up, Dan, and accept this plaque, and the award on behalf of the ACLU.

By Daniel Mach

Good morning, everyone.

The sun is shining today, the birds are singing and I’m going to ruin that all with some good old-fashioned pessimism and a little doom-saying thrown in for good measure. 

First, I want to thank FFRF for hosting this wonderful event and for this honor. We at the ACLU can always count on FFRF, whom we view not only as our colleagues, but also as our friends and almost as our family. We are with you walking hand in hand or joining together on amicus briefs, supporting each other’s litigation or collectively reminding the government that it should stay out of the religion business.

Ours is a special partnership, and it’s a vital partnership and it’s never been more necessary. As you know all too well, we find ourselves in an unprecedented, dangerous era for religious liberty. It all starts at the top, with the U.S. Supreme Court and its ultra-conservative super majority. I’m going to talk a bit about that today.

The justices in that supermajority have embarked on an alarming project to elevate the free exercise of religion, which we at the ACLU value highly, but they’re elevating it above other crucial rights and constitutional protections, and, at the same time, they are engaged in an outright assault on separation of church and state, which is, of course, a cornerstone of religious freedom.

Disturbing trend

This past Supreme Court term, two cases in particular illustrate this disturbing trend. Both were about religion in schools.

The first case was called Carson v. Makin, in which the court required the state of Maine to fund private religious education if it supported private secular education.

What was the case about? Briefly, it involved a school voucher-type program in Maine, a tuition assistance program, which pays for students in rural areas who don’t have their own public high schools, to go to another public or private high school. Under the program, the state will pay, but not if the school uses the government funds to finance religious instruction or indoctrination. Now, the limitation that the state placed on those funds reflected both the state’s longstanding interest in promoting separation of church and state, and the fact that this was a unique program that was meant to provide some rough equivalent of a public education to those who can’t get it.

In June, the Supreme Court ruled 6 to 3, a very common vote at this point, that the state’s restriction on that funding violated the federal Free Exercise Clause because it supposedly discriminated against religion. Now, why is this a problem?

When it comes to government funding of religion, the script has been completely flipped. In the past, the court used to guard against government-funded religion, and for good reason. Shielding taxpayers from compulsory support of religion lies at the heart of the Constitution’s religious liberty protections. In fact, James Madison, the principal architect of the First Amendment, explicitly warned against government funding of religion because it would be the first step he feared in permitting the state to force citizens to conform to the preferred faith of those in power.

Now, though, the court isn’t just allowing such funding, it is requiring it.

And the Maine case, Carson, went further than ever before. In two earlier decisions, bad ones to be sure, the court had held that states couldn’t deny funding solely on the basis of the recipient’s religious status. That is, just because they themselves were religious.

But, in Carson, the court expanded that rule to prevent states from denying funding based on the religious uses of the money, including religious instruction or indoctrination. This is all despite the fact that not too long ago, the court recognized that such funding could violate the Establishment Clause, which protects the separation of church and state.

As the defense in that case warned, we’re now not only at a point where the court is ignoring the separation of religion and government, which would be bad enough, the court now thinks that protecting that vital separation is somehow its own constitutional violation. That further limits what states can do on their own to protect us all when the federal courts are falling short, which they’re doing all too often these days.

Kennedy v. Bremerton

Now, the other truly dangerous religion decision from last term was a case called Kennedy v. Bremerton.

In Kennedy, the Supreme Court held that a public school had to allow its football coach to pray at the 50-yard line after games. Now, this case is problematic for so many reasons. I don’t have time to get into them all right now, but here are a few. 

First of all, the court’s six-person supermajority did the same thing that it did in the Maine case. They decided that well-meaning efforts by the government, which in this case was the public school, to maintain church-state separation, have now become their own constitutional violation.

The case is also a telling example of the lengths to which this new majority on the court will go to advance its crusade — playing fast and loose with the facts when it suits them, even when there’s photographic evidence to the contrary, like there was in this case. In the Kennedy decision, the majority adopted what one lower court called a deceitful narrative that had been spun by the coach and his lawyers.

In the case, the Supreme Court described the coach’s prayers as personal and quiet, but they were nothing of the sort. The coach delivered his prayers audibly, at the 50-yard line, immediately after of games, and often surrounded by students. In the court decision itself, there are pictures that show this. The majority also said that the coach had given up any intent to pray with his students, when, in fact, he repeatedly demanded that he be able to continue praying with his students, even saying he was “helping these kids be better people.” 

The court also claimed that no students were coerced into the prayer, but the record in the case shows that some of the families complained and they said they participated in this prayer with the coach only to avoid separating themselves from the team and suffering all of the possible consequences that can come with that. Like losing playing time.

Regardless, that misses the point. As the Supreme Court had recognized for over 50 years before that, just forcing students to make that choice, putting them in that position to choose between joining your teacher or your coach in prayer, or choosing not to and making a public protest, and sending that message to someone who has such authority over you — just putting students to that choice is inherently coercive, and therefore, unconstitutional. That’s what the court had acknowledged many times. Not this time.

Killing the Lemon test

Now, maybe one of the biggest bombshells of the Kennedy case was that the court finally scrapped what was known as the Lemon test for determining whether there is a violation of the Establishment Clause, whether the separation of church and state has been breached. That test, dating back to the ’70s, has had its critics over the years, but it’s generally served the cause of religious freedom pretty well over the years. Not anymore. In the Kennedy case, the court took the final step of killing that test and its offshoot, something known as the endorsement test, and maybe showing a little bit of embarrassment at how many landmark cases the court has been overturning lately. The court pretended in the Kennedy case that the Lemon test was already dead before this case. They said it had long since abandoned the test, even though that was just not true.

But they didn’t want to come out and say, “OK, here’s another one we’re overruling.” Now it will be much harder to show that a government action or policy violates the separation of church and state.

It’s now not enough to prove that, say, a government religious display or a government-sponsored prayer has the purpose or has the effect of promoting or endorsing religion, as had been the case under the Lemon test, which had been in place for the past 50 years. So, what’s the new test that the court gives us to replace this Lemon test? The court only offers vague suggestions. The court says we should determine whether the Establishment Clause has been violated by reference to “historical practices and understandings.”

Historical practices and understandings? What does that mean? The court doesn’t say. The court doesn’t even try. But, if other cases are any indication, “history” might mean everything from what the founders supposedly thought about a specific religious practice, to some hopelessly malleable notion about the country’s overall commitment to religious exercise.

And, if that is what “historical practices and understandings” mean, then government action promoting religion could almost always be found constitutional. Anything goes, maybe. Unless the government is actually forcing you to attend church or forcing you to profess religious beliefs with the threat of criminal or civil penalties. Yeah, it’s scary and I fear we’re going to see a lot more blatant religious favoritism very soon.

Unfortunately, those are not the only bad developments in the Supreme Court, as you all know. Obviously, there is the radical Dobbs decision, which overturned Roe v. Wade. While that is technically not a religion case, I think you can see why religious favoritism is looming in the background of that case. This was a shameful revocation of a vital constitutional right, and the court’s conservative majority effectively sanctioned an understanding of abortion that is largely associated with particular religious viewpoints, with no regard for the fact that followers of other faiths or none believe that access to abortion is essential for all.

Codifying religious views

As we know, there is a wide diversity of faith perspectives and non-faith perspectives about abortion. Yet, immediately after Dobbs, many lawmakers are rushing to codify just one set of religious views at the expense of all others, including the nonreligious.

The extreme conservatives have gotten so used to having their way on the Supreme Court that they cannot fathom a loss, even a minor procedural one. 

Take the recent dispute over Yeshiva University in New York, where an LGBTQ student group has been denied recognition by the school solely because it’s an LGBTQ student group. What does that mean? They can’t hold meetings on campus. They don’t have access to bulletin boards or the listserv at the school to announce their activities. So, they went to state court. 

A few facts are important to know here. First of all, an LGBTQ student club has existed at the Yeshiva Law School for decades, and Yeshiva’s public policies guarantee equal treatment under New York City’s human rights law. For those reasons and others, the lower court in the state ruled for the student group. They said that the human rights law applied, the civil rights law applied, and that the school had to recognize the group.

The school went straight up to the Supreme Court, seeking emergency relief. They said, “Please help us, you’ve got to fix this!” Maybe a little surprisingly, the Supreme Court denied that emergency relief, but don’t get your hopes up too much on this. The   denial was just based on procedural grounds. It had nothing to do with the actual merits of the case. It was all about the procedural hoops that the school should have jumped through but didn’t before going to the Supreme Court. 

You have to do certain things before you just try to skip over and go straight to the Supreme Court. The school didn’t do that, and the Supreme Court said, “OK, do that first and once you’ve done that, you can come back to us.” That doesn’t seem like such a big deal, right? The court didn’t say anything about the substance of the case and yet there is a fairly angry dissent written by Justice Samuel Alito complaining basically that the sky is falling for the ultraconservatives. They couldn’t believe this was going on. They characterized that what the school group was doing is asking New York to enforce the state’s preferred interpretation of Torah, of scripture. That was not what was going on in this case at all, but nonetheless, the conservatives were so up in arms in court they called it a shocking development. They promised that when the case got back up there, they’ll rule for the school. “Don’t you worry” is what they said.

Even a slight bump in the road for them is treated as some dramatic shocking development.

Religious rights above others

All of these recent cases in the Supreme Court follow on the heels of action in recent years to elevate religious exercise above other rights and civil liberties.

For example, the courts relatively recently sided with a social service provider who, for religious reasons, discriminated against couples who wanted to be foster parents. The group wouldn’t certify them because they said certifying gay couples was against their religious beliefs. This is one of our cases and the court ruled for the service provider. It said that they had a right to get the contract with the city of Philadelphia, and to continue discriminating against families.

In a related matter, the court has sided with businesses. In the Hobby Lobby case, which you probably know about, it said they don’t have to have insurance that’s required by the Affordable Care Act. They don’t want to cover contraception for their employees for religious reasons. This is the same Supreme Court that, at the height of pandemic, gave churches a religious exemption from health and safety measures. And let’s be clear: The court isn’t just elevating religion over nonreligion, which would be bad enough, it has this automatic embrace of only certain types of religious cases.

Compare two cases. First, the Masterpiece Cakeshop case, another one where we were on the losing side. That seems to be a theme here. There was a bakery that discriminated against our clients, a same-sex couple that wanted a wedding cake. The court sided with the bakery. In none of these cases has the court come out and said, “Yes, there is a blanket religious right to discriminate.” There are nuances in a bunch of these cases. In this case, they said the process was tainted, the process was anti-religion. Why? For one thing, some of the government officials involved in enforcing Colorado’s anti-discrimination laws had made some statements that the court said were so blatantly hostile to religion that they tainted the process.

Here are the statements: “It is one of the most despicable pieces of rhetoric that people can use to use their religion to hurt others.”

This is another statement that was cited: “That the baker can believe what he wants to believe, but he can’t act on that belief and discriminate if he decides to do business in this state.” OK, that was it. Now, despite the fact that there was clear discrimination against gay couples, the court said that the entire process was tainted and we can’t enforce the civil rights laws in that case.

OK, thus far I’ve focused on the Supreme Court.

Not just Supreme Court

But the lower courts have seen their fair share of mischief, too. Last month, in an FFRF case, a federal court of appeals actually allowed a justice of the peace, here in Texas, to lock his doors and open court sessions with a prayer ceremony.

And a federal panel amazingly said that was fine, and said it was not coercive. Keep in mind what’s going on here. This is a prayer ceremony. If you want to excuse yourself, you have to let the court know, and the doors are locked and then you have to appear before this judge who started the prayer ceremony. The federal court said, “That’s fine, it’s not coercive.”

As always, FFRF is fighting the good fight, but you see what we’re all up against here.

A federal judge, also here in Texas, ruled that employers who have religious objections to provide coverage for prep for medication for HIV infection don’t have to provide that coverage because of their religious objections, even though it’s required by the Affordable Care Act. That same judge ruled for plaintiffs challenging another ACA rule. This time, it was an HHS regulation clarifying that the Affordable Care Act bars health care entities from discriminating against patients and employees because they are transgender or because they seek reproductive care.

The list goes on.

In public schools, just garden-variety, old-school violations of the separation of church and state remain. They’re prevalent, despite the fact that the Supreme Court had set clear rules. This goes back to the seminal school’s religion cases in the 1960s. Since then, that has been absolutely clear that public schools, teachers and staff cannot lead kids in prayer and generally that public schools can’t favor or promote religious doctrine.

Despite that, blatant and widespread problems persist, even though the rules have been straightforward for over a half century.

I’ll just give you a few examples of that. We had a case in Tennessee: School events regularly featured Christian prayer. Every week the middle school principal instructed students to pray. One teacher read her students bible verses every morning. There were biblical quotes on the walls, messages posted throughout the school with religious content, and a large Latin cross was painted on the wall of the school gym.

In another situation in Louisiana, they read the Lord’s Prayer over the PA system. I’m talking about public schools here, not private schools. 

School officials called evolution a fairy tale and urged students to take the bible literally. Our clients were mocked when they even questioned this.

At a parish in Louisiana, from another case a few years earlier, our client was a Thai Buddhist sixth grader. His science teacher promoted creationism in class, told students that the Big Bang never happened, and that the universe was created by God approximately 6,000 years ago, called evolution impossible and stupid, and that stupid people made it up because they don’t want to believe in God.

Then this was the proof that they’re right and evolution is wrong: If evolution was real, the teacher said, it would still be happening. Apes would be turning into human beings. Yeah.

Just one final example of this kind of thing, this time in South Carolina. School officials were promoting religion at every turn. But it culminated in an evangelical revival assembly that had the stated purpose of “saving” students. It was a full-day event, and it featured a minister who delivered a sermon, a Christian rapper, and church members who prayed with students, and students at the event were urged to sign a pledge dedicating themselves to Christ. Students who didn’t attend the revival were forced to spend the afternoon in the suspension room. Sometimes these things are hard to prove. Sometimes students tell us what happened and then the school denies it all. In that case, the Christian rapper himself was so proud of the event that he filmed it all and posted it online, so that was helpful.

Now, these cases are just the tip of the iceberg. There are cases where we have families that are brave enough to step up and complain. Now, the last ones I mentioned, the schools caved. The family in the South Carolina case won their case, but at great personal sacrifice. They were harassed at their home, they received death threats, their dog was poisoned. They couldn’t get jobs, they lost a bunch of job opportunities and they eventually had to leave town. Things like that happen in many of these cases. In the Louisiana case, as a result of the school official’s conduct, our client was bullied and became so physically ill that they couldn’t attend school and they had to transfer and go 25 miles away.

The family was targeted for harassment, including people showing up dressed in KKK hoods.

We won’t give up the fight

Yeah, so, that’s some of the bad news. Where does that leave us? Well, the good news is that we will never give up the fight.

Our rights are too precious, and we, and you, and everyone in this country who cares about their liberties, will not back down. First of all, we won’t back down in the courts. We’re going to keep fighting there, too. Take the issue of prayer in schools, for example, as I mentioned earlier. The Supreme Court’s majority in that Kennedy case, in the coach case, went out of its way to embrace this deceitful narrative about what actually happened. The court pretended, contrary to the evidence, that the coach was only asking to give quiet personal solitary prayer. Now, that was all an absolute fiction, as the lower courts recognized, but now here we are, we should take the court at its word.

Public schools still have a duty to serve students of all faiths and those of none and significant constitutional restrictions remain on schools’ employees’ ability to promote religion to them. In that Kennedy case, the court upheld the right of the coach only — and this is important — only to engage in a quiet and private act of prayer that was not endorsed by the school. That prayer that fell outside of the coach’s official responsibilities did not involve or coerce students and was not imposed on a captive audience. Leaving aside what actually happened, this is what the court pretended happened.

All of those elements were critical to the decision, and staff prayers that don’t share those features are still unconstitutional like they’ve been for over a half century.

There’s still a lot we can do. In fact, the Supreme Court has, in many cases over the years, including going back to the ’40s, already engaged in a historical analysis of what the founders of this country believed about religion and what should or shouldn’t be allowed when it comes to government religious favoritism.

In doing so, in all of those prior cases, the court repeatedly reaffirmed, based on this historical analysis, looking at what the founders thought, the idea that the government has to be neutral, not only among religions but also between religion and nonreligion. 

So, we’ll all continue to argue that the historical work has largely been done already by the court, which is not to say that the court won’t shift gears or ignore all of that compelling analysis that it did in other cases, but it’s just to say we’re hardly operating on a blank slate. In other words, all is not lost in the courts, at least not yet. That said, we need to continue to fight outside the courts, too, maybe now more than ever. In legislatures, in op-eds, in town halls, on street corners, at the dinner table, we need to tell them that it is not OK to treat everyone who’s not a member of the religious majority as a second-class citizen.

It is not OK to throw out half a century of precedent simply because you now have the votes. It’s not OK to pretend to rely on some idea of what the founders of our nation originally thought about religious liberty and then completely forget about the fact that the key players in the adoption of the Constitution, way back when, they themselves recognized that religious belief or nonbelief is too precious to be left in the hands of government officials. And it’s not OK for politicians, judges, legislators to give a free pass to employers, to businesses, or health care providers to discriminate in the name of religion and impose their faith on others.

It’s not OK, and we will all keep fighting to make sure they know it. Thank you.