The Freedom From Religion Foundation, a state/church watchdog representing nearly 20,000 nonreligious members nationwide, is asking the U.S. Supreme Court to declare city council prayers unconstitutional.
FFRF’s friend of the court brief was filed Monday with the high court, which will be holding oral arguments in November over a case out of Greece, N.Y. Since the town began scheduling prayers to open meetings in 1999, only a handful of non-Christian officiates have given prayers, and two-thirds of the prayers have been sectarian Christian (referring to Jesus.)
Americans United for Separation of Church and State, representing two local residents – a nonreligious woman, Linda Stephens, who is a member of FFRF, and Susan Galloway, who is Jewish – won a unanimous appeals court ruling by a three-judge panel of the 2nd Circuit U.S. Court of Appeals in May 2012, declaring the practice unconstitutional. With the help of a well-heeled Religious Right legal group, Alliance Defending Freedom, the town appealed the ruling to the Supreme Court.
FFRF notes in its supporting brief that FFRF was originally formed in 1976 explicitly to stop prayers at the local government level. Government prayer is the second most common complaint FFRF receives. FFRF has written to hundreds of legislative entities about government prayers in nearly every state, on behalf of its members who feel offended and excluded.
FFRF asks the court to overturn its 1983 decision, Marsh v. Chambers, which blessed nonsectarian government prayer. FFRF noted that the Marsh decision relied on flawed historical analysis, excusing Nebraska statehouse prayers as “traditional” because the practice was longstanding, and calling prayers “a tolerable acknowledgment” of widely held beliefs. FFRF called Marsh an “outlier” which does not comport with other court decisions interpreting the meaning of the Establishment Clause of the First Amendment.
“Marsh relied on colonial prayers that were given years before the Constitution and First Amendment were adopted but minimized the fact that the framers did not pray during the Constitutional Convention when composing our godless Constitution,” FFRF’s brief said.
FFRF urged the court to place legal principles over history. Some of the Supreme Court’s most-ill-advised decisions, such as the Dred Scott ruling, have used “tradition” to justify violations of citizens’ constitutional rights: “Sometimes, a long history is simply a longstanding injustice – as this Court’s treatment of anti-miscegenation and discrimination against gay citizens demonstrates.”
“Marsh wrongly subjugates fundamental rights to majority rule. Majority will does not trump rights. This country’s rapidly shifting religious demographics should force this Court to revisit Marsh’s ‘tolerable acknowledgment’ argument,” FFRF told the court.
The brief cites statistics showing that a fifth of today’s population is not religious, making government prayer highly exclusionary.
The brief was submitted on behalf of FFRF by Richard L. Bolton, counsel of record and by FFRF Staff Attorneys Andrew L. Seidel, Patrick C. Elliott, Rebecca S. Markert and Elizabeth Cavell.
By Billy Hallowell
Below is the testimony today of Staff Attorney Patrick Elliott:
Wisconsin Assembly Bill 244 would create a religious and exclusionary Wisconsin license plate. Elected officials should not use their government position and influence to promote their religious views.
The phrase “In God We Trust” is not representative of all Wisconsinites. To be accurate, it would have to say, “In god some of us trust.” The Pew Research Center reports that nearly 20% of adult Americans, and one in three young adults, is now non-religious. According to Department of Defense data from 2012, 23% of military personnel identified as non-religious. A survey of FFRF’s membership also demonstrated that 24% of its members are veterans.
State legislators are elected to represent all citizens, including those who do not believe in a monotheistic god or any gods. Both supporters and opponents of the bill recognize that “In God We Trust” is a religious statement. The fact that a portion of the plate fees would go to the state’s Veterans Trust Fund does not mitigate the problems with a religious plate.
In addition to being a religious endorsement, the bill is a failure as a matter of policy. Rep. Kaufert, who introduced the bill, told the Capital Times this week that veteran-themed plates are only available to current and former military members. This is false. The state already offers a “Wisconsin Salutes Veterans” plate, which honors all and excludes no one. The Department of Transportation promotes, in bold font, that the current plate is available to anyone who is “interested in expressing support for Wisconsin’s veterans.”
As the Supreme Court has said, “[S]ponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherents ‘that they are outsiders, not full members of the political community and accompanying message to adherents that they are insiders, favored members of the political community.’”
The history of the motto “In God We Trust” evidences no secular purpose; on the contrary, the motto was first adopted in 1956 during the Cold War, as a reaction to the purported “godlessness” of Communism. “E Pluribus Unum”,” meaning “out of many, one” was the entirely secular motto that was selected by the founders, including Thomas Jefferson, John Adams and Benjamin Franklin.
A private group may already utilize the normal process that is available for special group plates. This bill specially approves an “In God We Trust” plate. Such special approval was a primary reason that an “I believe” religious plate in South Carolina was ruled unconstitutional. The court said in that case:
“Any religious message approved through South Carolina’s legislative process (such as was used to create the “I Believe” plate) would likely violate the Establishment Clause because the speech involved is predominantly government speech and the legislative approval of it evidences approval of the referenced religion.”
The Wisconsin State Assembly should respect the beliefs and non-belief of all citizens and reject Assembly Bill 244.