The Freedom From Religion Foundation’s closely watched federal challenge over illegal partisan politicking by churches just got a green light from U.S. District Judge Lynn Adelman of the Western District of Wisconsin.
Adelman’s decision will allow FFRF’s historic challenge to continue to discovery, so that the public may learn the facts regarding IRS inaction over church politicking.
The court decision came five days after a coalition of mostly evangelical organizations overtly urged Congress to repeal prohibitions against partisan pulpit politicking.
FFRF, a national state/church watchdog with more than 19,000 members nationwide, sued the Internal Revenue Service last December over its lack of enforcement of its own policies prohibiting churches from endorsing from the pulpit. As Adelman observed, “A condition of this [501(c)(3) tax] exemption is that the entity not participate in or intervene in any political campaign on behalf of, or in opposition to, any candidate for public office.”
Adelman issued a decision and order on Aug. 19 denying the IRS motion to dismiss FFRF’s challenge: “The Foundation has standing to seek an order requiring the IRS to treat religious organizations no more favorably than it treats the Foundation.”
Adelman added: “If it is true that the IRS has a policy of not enforcing the prohibition on campaigning against religious organizations, then the IRS is conferring a benefit on religious organizations (the ability to participate in political campaigns) that it denies to all other 501(c)(3) organizations, including the Foundation.”
The IRS sought to suppress the lawsuit, claiming FFRF lacked standing to sue, and that the U.S. is barred by sovereign immunity from being sued. Adelman rejected both claims, noting FFRF itself is a 501(c)(3) and is alleging “disparate treatment,” and that “it is the IRS’s own policy that is causing the alleged unequal treatment.” FFRF is not asserting a “generalized grievance but rather its own, particularized interest in receiving equal treatment.”
Adelman noted “the IRS does not dispute that this court has the raw power to issue an injunction preventing the IRS from continuing to follow a policy of favoritism toward religious organizations.”
FFRF Co-President Annie Laurie Gaylor blasted the recommendations by last week's evangelical report, closely aligned to the Evangelical Council for Financial Accountability, which is “committed to helping Christ-centered organizations.”
Participating members include those connected to the usual theocratic groups, including the Liberty Counsel, Alliance Defending Freedom, the Christian Legal Society, Campus Crusade for Christ and the U.S. Conference of Catholic Bishops, with a few token non-Christian groups thrown in.
“If churches — even along with all other 501(c)(3)s — were allowed, despite their privileged tax-exempt status, to endorse candidates and engage in partisan politicking, the result would make Citizens United look like child’s play,” Gaylor added.
FFRF is also in federal court suing over preferential treatment of churches, which do not file annual statements of financial accountability with the IRS, unlike all other 501(c)(3)s. It is also awaiting a decision over its federal lawsuit challenging the parish exemption, in which clergy are uniquely gifted with the right to be paid through “housing allowances,” and to deduct those allowances from taxable income. The stated purpose of the exemption when enacted by Congress was to reward clergy for fighting “godlessness.”
“The time for a free ride for churches is over,” Gaylor said. “The rest of us pay so much more in taxes because clergy pay so much less. If these churches — which are accountable to no one in government yet get so many favors — are allowed to engage in tax-exempt politicking, it would be the ruination of our democracy.”
The Freedom From Religion Foundation sent a letter of complaint Sept. 13 to Chancellor Jimmy Cheek of the University of Tennessee-Knoxville about prayers over the loudspeaker at Neyland Stadium before Volunteers football games.
An alumnus wrote FFRF in August that an announcer asks fans to stand for the invocation, which is delivered by a clergy member.
“It is also our information and understanding that the pastors giving the prayers routinely invoke Jesus Christ,” said FFRF Co-President Annie Laurie Gaylor.
“As you are undoubtedly aware, FFRF sent a letter of complaint to the University of Tennessee-Chattanooga regarding prayer at its football games in May of this year,” Gaylor wrote. “Last week, UTC Chancellor Roger Brown announced that UTC would no longer schedule prayers at the start of football games. Instead, in an effort to be more inclusive and allow ‘all in attendance to reflect and address their individual beliefs in their own ways,’ UTC will observe a moment of silence.”
That news garnered widespread media attention and spurred similar complaints about football prayer at Neyland Stadium.
“We urge you to follow UTC’s lead and drop prayer from UTK football games and all other UTK-sponsored events,” Gaylor said. “First and foremost, prayers at public university events that are sectarian in nature violate the Establishment Clause. Sectarian prayers at public universities have been struck down as unconstitutional in the Sixth Circuit, which is binding in Tennessee.
“While students, athletes, and athletic event attendees may choose to gather privately in prayer, a public university has no place in encouraging or endorsing religious ritual.”
UT-Knoxville must take action to stop any further involvement, endorsement, encouragement or scheduling of prayers at university functions and sporting events, Gaylor said.
FFRF, which advocates for state-church separation, has about 18,500 members nationwide and 285 in Tennessee.
This week the Wisconsin Department of Public Instruction will randomly select 500 students under Wisconsin’s huge expansion of vouchers to receive vouchers at taxpayer expense to attend 25 Christian schools. Christian schools were the only winners, and more than 80% of such schools are Catholic.
Contrary to the pro-voucher propaganda insisting the expansion would give public schools “choice,” only a quarter of the participating students will come from public students A full 76% of student applicants did not attend public school last year and 67% of accepted students were already attending private schools.
“It is appaling that taxpayer funding is going to Christian education for students already attending religiously segregated and unaccountable parochial schools,” said Annie Laurie Gaylor, FFRF co-president.
Under the new statewide voucher scheme, the 25 schools receiving the most applicants will receive a tuition voucher worth $6,442 per enrolled student. Every one of the 25 schools announced last week is a Christian school: 18 Catholic schools, four Lutheran schools and three non-denominational Christian schools.
“Where is the ‘choice’ in that?” asked Gaylor.
One Madison school was chosen — Madison’s Lighthouse Christian School — which apparently will be teaching creationism, compliments of state taxpayers.
“ . . . there is one bright line past which no public dollars should cross, it’s the line between schools that teach evolution and schools that shun evolution for 'intelligent design,' creationism or some such similar religiously based nonsense that warps kids’ minds and leaves them ill-prepared for responsible citizenship.
“Thoughtful people should be disturbed that Madison’s Lighthouse Christian School is among those eligible to take voucher students under the Legislature’s recent expansion of the state program."
The Wisconsin Legislature and Gov. Scott Walker expanded vouchers across the state in the 2013-15 budget. The expansion was touted as providing a “choice” for public school students to attend a private school as an alternative to “failing” public schools.
State Rep. Sondy Pope, a voucher critic, said, “The voucher program is no longer providing the escape option from a failing public school; it has become a new state entitlement program that will cost taxpayers and directly compete with our constitutionally required public school system.”
Only the top 25 schools out of 48 receiving student applicants received funding, heavily weighting funding in favor of established Christian schools. Two Jewish schools, one Muslim school and the only secular school to apply did not receive enough student applicants to break into the top 25.
“Under the state’s system, only select religious schools were able to garner a high number of student applicants. The U.S. and Wisconsin Constitutions do not allow for preferential treatment to religion, which includes the prohibition against majority-rule funding schemes like this,” said FFRF Staff Attorney Patrick Elliott.
The number of vouchers will increase from 500 this year to 1,000 next year. Vouchers in Wisconsin were initially limited to Milwaukee but were expanded to Racine in 2011. Milwaukee's voucher program started with 341 students in 1990 and now has nearly 25,000 students, with over 21,000 of them attending religious schools. It is expected that an average of $192.5 million in taxpayer funds will be spent each year on vouchers during the 2013-15 budget cycle.
“This voucher program is being used as an inroad into completely funding religious education with taxpayer money. Vouchers must be stopped, not expanded,” said Gaylor.
Daniel Koster is the recipient of the Thomas W. Jendrock Student Activist Award of $1,000. It’s endowed for 2013 by FFRF’s very kind member Thomas Jendrock.
By Daniel Koster
On Hug an Atheist Day, someone who I thought wanted a hug picked me up and tried to throw me in a garbage can. A crowd of jeering students encouraged him. For a moment this was amusing, but then it occurred to me that these kids might actually hurt me.
This was our club’s first public event, and I began to consider that everything we did might be marked by disapproval and threats of violence. I worried that I might be accosted after school or followed home. As much as secularism meant to me, I was not signing up to be martyred for the cause. I started Wekiva Atheist and Secular Alliance in January 2012 to gain acceptance for nonreligious students. My excitement that the administration had not blocked us, however, was short-lived. We put up friendly posters (with permission from the school) that reminded students with doubts about religion that they were not alone.
By the end of the day, all had been torn down. We later learned many were removed not just by students but also by a teacher. We know of no disciplinary action taken again the teacher.
Not to be deterred, we put up another round of posters, which disappeared even more quickly than the first. As frustrating as this was, I knew it only proved how important our efforts were. There was real prejudice in the school.
This year we had the chance to send a message not only to schoolmates but also to the school board. When a Christian group got permission from the board to distribute bibles in our high schools, the club monitored the distribution to ensure they were following the rules (they weren’t).
Then, working closely with FFRF and Central Florida Freethought Community, we planned our own distribution of atheist materials. Our goal was to show the board that if they let in Christian groups, they had to give the same opportunity to everyone, even atheists.
This process involved attending school board meetings, participating in conference calls, consulting attorneys, interviewing for the news and writing articles — things that can be hard to balance with homework but are always more fun. But it wasn’t all fun.
Delayed and censored
The school board kept postponing our distribution date. Once it was approved, they censored much of our freethought literature. At Wekiva High, administrators tried to apply rules to students that only applied to outside volunteers, even though they paid no attention to whether the Christian groups were following the rules. Freethought activists can expect every step of the process to be more difficult than it is for anyone else. Our goal is to get equal treatment for everyone.
Since coming out about my atheism, my relations with parts of my family have become strained. I am extremely lucky to have supportive parents, but even my mother fears (probably correctly) that what I do will cause some of the family to stop loving us. Though plenty of my religious friends still support me, plenty more have cut me off completely.
This was never my intention, but I know that these are the kinds of sacrifices every meaningful activist in history has had to make. Despite what I’ve lost, what I’ve gained has been spectacular. I have met the most wonderful people both in the local and national freethought movement and worked with them toward a goal we all believe in. I truly believe our work has had a real impact on how people at this school think.
Far from being a martyr for the cause, I have been able to live for it. I urge all those who believe in equality and secularism to join me.
Daniel Koster, 18, Orlando, Fla., will be attending New College of Florida in Sarasota to major in an undetermined as yet area of science. In high school he founded Wekiva Atheist and Secular Alliance and was active in other local freethought groups.
Mitch Kahle, founder of Hawaii Citizens for the Separation of State and Church, received FFRF’s Freethinker of the Year award at the 34th national convention Oct. 8, 2011, in Hartford, Conn., for his work in convincing the Hawaii Senate to drop prayers to open legislative sessions. A longtime FFRF supporter, he was assaulted by Senate security for civilly protesting prayers.
I’m so honored to be here. Thank you so much for this award, and I am very proud of all of you. Before I begin, I would like to show you a brief video that has some clips from Hawaii news media about things we’ve done in the past.
[VIDEO]: This is KITV-4 news at 5. A familiar sight at the Kolekole Pass in Wahiawa is no more. The Army today tore down the Schofield cross today, saying it would cost too much to repair. But a citizen group said the landmark came down because of their lawsuit.
[MITCH KAHLE]: The Army has $285 billion dollars a year. The cross was a minor expense but a major exposure. We think it violates the First Amendment, and we are glad that they’re taking it down and we don’t have to continue with the lawsuit.
[VIDEO]: So, your kid joins a youth club, right? A place to meet other kids, to learn and grow and have some fun, and each kid gets a membership card, a card the child has to sign. And on that card it says, “I believe in God. Have a problem with that?”
[KAHLE]: If you don’t believe in God, then signing a card that says, “I believe in God” is patently offensive.
[VIDEO]: The Boys and Girls Club of Navy, Hawaii (at Pearl Harbor), is removing the phrase, “I believe in God” from its membership cards.
[VIDEO]: Talk over whether multiple theories of origin should be taught in classrooms is stirring controversy at tonight’s Board of Education meeting.
[KAHLE]: Creationism will not be allowed to be taught in Hawaii’s public schools’ science curriculum. (Kahle, after a four-hour meeting): I am very pleased. This puts an end to the controversy, and we’re not going to have to have the educational system dragged into what is in essence, going to be a legal battle.
[VIDEO]: The demonstrators say they won’t go away until the Scouts stop discriminating against homosexuals. “We are protesting the Boy Scouts because they discriminate. They discriminate against gay youth, and they discriminate against youth who do not believe in God.”
[KAHLE]: If you’re morally straight, don’t discriminate.
[VIDEO]: A group which says lawmakers have no right to post religious symbols on their State Capitol office doors struck back today. The group says the religious symbols violate the separation of church and state, and so they posted their own symbols on the doors as a protest.
[VIDEO]: Some folks are questioning tomorrow’s Good Friday holiday. A handful of protesters making their way through the Capitol today, are upset that it’s a state and county holiday. Activist Mitch Kahle, dressed as Jesus, was accompanied by members of the Hawaii Citizens for Separation of State and Church.
[KAHLE]: It is an exclusively Christian holiday. There are no secular precepts to Good Friday whatsoever. And so we would like to see the state take action to create an Aloha Day holiday in its place.
[VIDEO]: An advocacy group is protesting prayer tonight at the Honolulu City Council. The group believes that the invocation at the start of council meetings is unconstitutional. Mitch Kahle spent hours going over city records. In his mind, they all show one thing.
[KAHLE]: In the last year, all of the prayers except one have been of a Christian nature. They are showing favoritism to the Christian religion over the wide diversity of religions that there are in Hawaii.
[VIDEO]: A group that advocates the separation of church and state wants the city to remove four words taken from the oath taken by new Honolulu police officers. Until tonight, the police officers’ oath ended with the phrase, “so help me God,” but it was removed after a local citizens group complained the phrase violated our state constitution.
[KAHLE]: The actual wording of the oath does not include, “so help me God.”
[VIDEO]: Our top story tonight, a code of honor controversy at McKinley High School. It has to do with the words “love for God” in the school’s honor code, which dates to 1927.
[KAHLE]: This is posted in the classrooms, it’s part of the student handbook and it probably appears elsewhere, although those are the two areas that we’re concerned about most now.
[VIDEO]: In the unresolved problems segment tonight, we continue our investigation into the holy war that the American Civil Liberties Union has launched against God and America. Are we going to play this game, Mr. Kahle? Or are we going to be honest?
[KAHLE]: It’s your program, Bill. We can play whatever game you want. It’s inappropriate for a public school to be telling students what to believe and how to feel. And I’m really surprised that you would actually support the government telling students what to think and believe.
[BILL O’REILLY]: I’m not supporting anything like that.
[VIDEO]: When lawmakers got to work, the day began with a scuffle and an arrest. Just as the invocation was being delivered in the Senate chamber, protesters from the Hawaii Citizens for the Separation of State and Church interrupted.
[KAHLE]: This is a violation of the Constitution! This is a violation of the Constitution!
[VIDEO]: Seven months after he was hauled off in handcuffs and charged with disorderly conduct, a judge has found Kahle not guilty. Kahle’s protest lasted about seven seconds, then sat down. But the sergeant-at-arms was determined to remove Kahle.
I’m what’s known as a public troublemaker, and I would encourage all of you to join me in doing the same. It’s about participating in your community. When you do participate in your community, whether you go to a city council meeting or go to a board of education meeting, or go to your legislature, this is where you see the most egregious violations of separation of state and church.
I want to clarify that I always use the term “state and church,” not “church and state,” and that’s because the state is superior to church always. We need to remember that.
I have been protesting government prayer for over 15 years. I am personally, deeply offended when I am forced to participate in some sort of a prayer. It causes a disconnect in my brain, and I have to say I actually get angry.
The question I have when people ask, “Well, why do you get so angry?” is “Why aren’t you?” I think everyone should be angry at this sort of thing.
You can write letters, and that’s a great way to start. It’s very important that when you identify a violation that you remain calm, initially, and that you start out by writing a letter of complaint. Make your voice heard. Make it known that what the government is doing is improper and that you would like them to stop.
Sometimes you have to write more than one letter, and don’t be discouraged if you’re ignored. I had been ignored on the issue of legislative prayer long enough that I decided I had a right that when the gavel was pounded to bring the session to a start, and when the president of the Senate invited audience members to please rise, I knew I had every right to stand up and object to a violation of my civil rights.
I wrote letters of complaint and letters of warning that we would be coming to the Capitol and standing up to object to the prayer, if it violated the Constitution. We had examined videotapes of previous sessions and had seen that the prayers had been, over 90%, overtly Christian. Pretty much always ending in Jesus’ name.
And so we made good on our threat, and on the day of the incident — April 29, 2010 — we wrote letters to the president of the Senate, with copies to the attorney general, that we were going to come and object to the prayer.
They had members of the Sheriff’s Department there. Before going into the Senate chamber, we sat down with the head of security and explained to him our rights and explained what we were going to do. He said his officers would be neutral. I didn’t know that that meant beating us up.
We went up to the gallery and waited for the prayer to begin. And, as you saw just a little bit in the video, what happened was as I made my objection, I was summarily singled out and dragged out of the chambers. My wife, Holly, who is also very active in all sorts of causes, stood up a little bit later, and made the exact same objection that I did, but they were really intent on singling me out.
When the prayer ended and they were dragging me out, all the people in the gallery were yelling, “Amen, amen.” So what the government had decided was that voicing approval to the prayer was OK, but voicing disapproval to the prayer got you dragged out and thrown to the ground, my arm badly bent behind my back.
Then they noticed that my friend, Kevin, was filming the whole thing, so they attacked him. The Senate sergeant-at-arms, Bienvenido Villaflor, a former WBA world champion boxer, came over and gave the camera a direct left. From a professional boxer, it’s quite a sight to see, and then told his underlings to “get that camera.”
They knocked Kevin to the ground and smashed the camera. All the while, five deputy sheriffs stood by and did nothing. Then I was thrown to the ground, handcuffed and taken away. I was charged with disrupting government operations, resisting arrest and disorderly conduct.
To be honest with you, like I said, I am a public troublemaker, and this put a big smile on my face the minute it started to happen. I knew it was going to be a great opportunity. I was taken to the Hawaii state prison and locked up. Though two of the three cells were empty, I was put in a cell with a very nice gentleman named Castro, who’d been in prison for 17 years, but it was fine. After almost three hours, Holly came and bailed me out.
Thankfully, there are progressive-minded lawyers in Hawaii, just like there are almost everywhere. My six-month defense, which included four hearings and a trial, was done completely pro bono. I was not charged a dime. I want to thank my attorney, Bill Harrison, for that.
Immediately after my acquittal, which was really a wonderful thing, because the judge looked at the video and her mind was instantly made up that I was innocent. From the bench she said it was wrong what was done to me and said I had every right under those circumstances to stand up and object to that prayer because it was a violation of my constitutional rights.
Truth on our side
It’s very important that you understand that in these cases we are on the right side of the law. We are the ones with truth on our side, so we can do these things with extreme confidence. Believe in the constitutional idea of separation.
We have filed a 14-count lawsuit in federal court against the state of Hawaii, the sergeant-at-arms and his staff and the Sheriff’s Department, and that lawsuit is currently proceeding in federal court.
From my perspective, everything in this case has been positive. I want to carry this forward not as an example that you should get arrested and whatnot, but that when our rights are violated so flagrantly, right in our face, we need to object. We need to say, “What you’re doing is wrong and you need to stop it.”
These young people are so inspiring, I mean, I’m a 230-pound man, 6 foot 2, and little Jessica [Ahlquist, a student activist awardee], she’s going to have a little bit of a problem. What I really would encourage everybody to do is to identify the violations that are going on in your community, because they are. FFRF sent 475 letters of complaint this year, and that’s just the tip of the iceberg. I would be willing to wager that there is not a government body in this country that doesn’t at some time at least violate the First Amendment in this way.
We were at a function recently, and just out of the blue, it was not even on the agenda, someone from the audience said, “Well, we should have a prayer.” She proceeded to go up in front of all the people to say a blatantly Jesus prayer. As soon as she sat down, my wife went over to her and said, “That was highly inappropriate. That was very offensive of you to do. You shouldn’t say a prayer, and if you’re ever going to say a prayer, you should keep Jesus out of it.”
The woman replied, “Well, I can’t say a prayer if I can’t say Jesus.” So we said, “Well, then don’t say one.”
We don’t tolerate overt statements of racism, at a party, for example. You just don’t tolerate it. We have to sort of adopt that tactic when it comes to religion. This might be controversial to say, but religion is a form of discrimination. We have to say something against it.
Mitch Kahle cofounded Hawaii Citizens for the Separation of State and Church (HCSSC) in 1996. Kahle has been a long-time civil rights activist since the mid-1980s while attending Boston University. After moving to Hawaii with Holly Huber in 1992, he became active in local efforts to legalize marriage for same-sex couples. Kahle and HCSSC have been involved in dozens of high-profile state-church controversies in the Islands. Professionally, Kahle is a documentary filmmaker and entrepreneur. In his free time Kahle enjoys sailing, hiking, and is a jazz bass player and composer.