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Lauryn Seering

Lauryn Seering

1andrewscalia

The Supreme Court, or at least the five all-Catholic, all-male conservative majority on our Supreme Court, elevated religious belief above the law in the Hobby Lobby decision earlier this year. Last week, Justice Antonin Scalia, a member of that male Catholic majority, spoke at Colorado Christian University and stated what could only be inferred in the Hobby Lobby decision: that religious people are special and deserve special treatment. Among other things, Scalia said

  • "I think the main fight is to dissuade Americans from what the secularists are trying to persuade them to be true: that the separation of church and state means that the government cannot favor religion over nonreligion,"
  • "... to say that's what the Constitution requires is utterly absurd."
  • "Our [the court's] latest take on the subject, which is quite different from previous takes, is that the state must be neutral, not only between religions, but between religion and nonreligion. That's just a lie. Where do you get the notion that this is all unconstitutional? You can only believe that if you believe in a morphing Constitution."

Fortunately, the Hobby Lobby decision was interpreting a federal statute, the Religious Freedom Restoration Act (which everyone should ask their senators and representative to repeal), not the Constitution. But Scalia's recent comments are about the Constitution. His views are both terrifying and flawed.

The Supreme Court has explicitly rejected the idea that the Establishment Clause only prohibits sectarian preference: "this Court has rejected unequivocally the contention that the Establishment Clause forbids only governmental preference of one religion over another." Abington School District v. Schempp, 374 U.S. 203, 216 (1963). The best expression of this came nearly 30 years ago. In 1985, the court wrote: "At one time it was thought that this right merely proscribed the preference of one Christian sect over another, but would not require equal respect for the conscience of the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism." Wallace v. Jaffree, 472 U.S. 38, 52 (1985) (note omitted). This is the erroneous view Scalia clings to and which the court repudiates:

But when the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all. This conclusion derives support not only from the interest in respecting the individual's freedom of conscience, but also from the conviction that religious beliefs worthy of respect are the product of free and voluntary choice by the faithful, and from recognition of the fact that the political interest in forestalling intolerance extends beyond intolerance among Christian sects—or even intolerance among 'religions'—to encompass intolerance of the disbeliever and the uncertain." Wallace, 472 U.S. at 52-54 (emphasis added and notes omitted).

The high court refuted Scalia in the first real Establishment Clause case 67 years ago. The First Amendment "requires the state to be neutral in its relations with groups of religious believers and non-believers." Everson v. Board of Educ., 330 U.S. 1, 18 (1947).

In Texas Monthly, Inc. v. Bullock, the court overturned a sales tax exemption for religious and only religious literature. Justices Blackmun and O'Connor explicitly stated that the "government may not favor religious belief over disbelief." 489 U.S. 1, 27-28 (1997) (separate opinion concurring in judgment). They were refuting Justice Scalia.

In Schempp, the wonderful victory that friend-of-FFRF Ellery Schempp achieved 51 years ago, Justice Goldberg wrote: "[t]he fullest realization of true religious liberty requires that government ... effect no favoritism among sects or between religion and nonreligion." 374 U.S. at 305 (1963)(Goldberg, J., concurring).

The court put it bluntly 55 years ago, "We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally ... pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs." Torcaso v. Watkins, 367 U.S. 488, 495 (1961).

Not only do Scalia's views contradict virtually every major Establishment Clause case, they also fail to account for the Equal Protection Clause of the Fourteenth Amendment. It declares that no state shall "deny to any person within its jurisdiction the equal protection of the laws." In other words, our government and our laws must treat all people equally regardless of their belief.

Justice Scalia often tries, as he did here, to claim that his view is that of the framers—the original view. But again, he's wrong. The framers agreed on Article 6 ,Section 3 of the Constitution, which prohibits any religious test for public office. During the North Carolina ratification debate, future Supreme Court Justice James Iredell, said: "(I)t is objected that the people of America may, perhaps, choose representatives who have no religion at all, and that pagans and Mahometans may be admitted into offices. But how is it possible to exclude any set of men, without taking away that principle of religious freedom which we ourselves so warmly contend for?" Jonathan Elliott (Ed.), Debates in the Several State Conventions on the Adoption of the Federal Constitution, vol. 4 194 (1836).

Iredell's point, and the point made by his black-robed successors, is that genuine freedom of religion requires the right to dissent, the right to be free from religion. And if the government can favor religious belief over a lack thereof, the people are not truly free because they are not truly equal.

Scalia is breathtakingly wrong. But what else can you expect from a man who believes, literally, in the Devil: "I even believe in the Devil... he's a real person"? 

Eustis High School in Eustis Fla., will no longer permit a football coach to require prayer before team meals in the school’s cafeteria. FFRF received a complaint that the coach would often call upon players at random to offer prayers before the entire team. FFRF also raised concerns about a local citizen promoting prayer events at school on an unaffiliated Facebook page titled #PRAYWITHEUSTIS.

FFRF Staff Attorney Andrew Seidel sent a letter on Sept. 11 to the district advising them to cease school-led prayer before football meals. Seidel warned the district that if the #PRAYWITHEUSTIS event was school-sponsored in any way it must be cancelled:

“If this event is school-sponsored it is illegal. . . Permitting events like #PRAYWITHEUSTIS to take place on school property, in connection with a school sanctioned event ‘sends the message to members of the audience who are not Christian 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.’”

An attorney for the Lake County Schools district sent a response on Sept. 12: “Be advised that we are aware of the pitfalls of any coach promoting organized prayer and direct our coaches accordingly. Any misstep that might have occurred at a meal involving [the coach] has been corrected and we do not expect it to occur again. As to the Facebook advertisement that you provided that came from a private citizen who has not contacted the school regarding her promotion and which was unknown at the school until we received this correspondence, be advised that we are appropriately dealing with that situation as well.”

Elk Grove Unified School District in Elk Grove, Calif., took down signs promoting a local church after a complaint was filed by FFRF.

Signs reading “AnswersChurch.com” with pictures of a Latin cross enclosed in a lightbulb, were posted at Harriet Eddy Middle School. At least two signs were displayed on the school’s chain link fence. Answers Church rents the school on weekends (as allowed by a misguided Supreme Court decision) but displayed their signs throughout the week. Beliefs espoused at the website include, “There shall be a bodily resurrection of the dead, of the believers to everlasting joy with the Lord and of the unbeliever to judgement and everlasting conscious punishment.”

FFRF Staff Attorney Andrew Seidel sent a Sept. 3 letter informing the school of its constitutional obligation to remain neutral toward religion:

“If the church wishes to advertise its services on school property, it may only use school property during the time it has rented the property — on Sundays. It must put up the banners no earlier than when the rental time begins and take them down when the rental time ends.”

On Sept. 11, the district agreed, “[O]ur protocols allow for the sign you reference to be displayed only during the time of the event, such as when the Church has been approved to use the facility, and is not to be placed on the property beyond those times.”

Elk Grove is the site of the famous Elk Grove Unified School District v. Newdow case brought by Michael Newdow, in which the U.S. Court of Appeals for the Ninth Circuit ruled that the words "under God" in the Pledge of Allegiance are an endorsement of religion and therefore violate the Establishment Clause of the First Amendment to the Constitution when recited in public schools. (Sadly, the case was later thrown out by the Supreme Court on standing.)

Akron Public Schools in Akron, Ohio, has stopped football coaches from wearing religious T-shirts once again. In 2013, FFRF filed a complaint with the district after Buchtel Community Learning Center athletic personnel and faculty wore T-shirts stating “God Rules Buchtel Athletics” and “Jesus Is My Hero.” The district reported taking swift action but the T-shirts resurfaced this September with the football team.

FFRF Senior Staff Attorney Rebecca Markert reminded the district on Sept. 25 that coaches, like teachers, are restricted from certain religious activities and expression while acting in their official capacities for the school: “These coaches were working with public school students at a regularly scheduled school-sponsored activity. Thus, they cannot wear religious T-shirts.”

The Akron Board of Education responded on Sept. 29: “Upon further investigation into these T-shirts, I have become aware that they were being specifically donated to Buchtel CLC by one of the churches in the Akron area. . . I will be forwarding them a letter explaining that the T-shirts they are donating to the school’s athletic program violate the Akron Board of Education’s dress code policy.”

The board had a meeting with the football coaching staff on Sept. 29, “to discuss the prohibition of wearing religious T-shirts” and to remind the football coach of his “duty to continuously enforce theses rules with his coaches.”

The board thanked FFRF for promptly bringing this issue to their attention, adding that, “We are taking immediate action to instruct our coaching staff to refrain from wearing any type of religious T-shirts. Because new coaches are continuously being hired into new positions throughout the district, we have placed the issue of wearing religious T-shirts on the agenda for the upcoming district-wide meeting of all coaches and athletic directors.”

A school board of directors in Mercersburg, Penn., will no longer conduct prayer at meetings, thanks to a complaint sent by FFRF. FFRF Staff Attorney Elizabeth Cavell sent the letter on Sept. 8, informing the board members that praying before meetings is divisive and unconstitutional.

“Calling upon Board members, as well as parents and students of the school, to pray is coercive and beyond the scope of our secular school system. Board members are free to pray privately or to worship on their own time in their own way.”

The letter noted, “The Third Circuit Court of Appeals, which has jurisdiction over Pennsylvania, has definitively held that school board prayer is unconstitutional.”

The Board President Superintendent of Tuscarora School District responded on Sept. 24, informing FFRF that, “The Tuscarora School District Board of Directors will no longer open their monthly meetings with prayer.”

The N.C. Notary Public Education Program in Raleigh, N.C., will no longer allow an instructor to misinform students. A student who took a notary public course contacted FFRF to report that an instructor repeatedly told students they “must believe in god to be a notary.”

On Sept. 5, FFRF Staff Attorney Elizabeth Cavell sent a letter to the General Counsel of the N.C. Department of the Secretary of State to remind them that the U.S. Constitution prohibits any sort of religious test for public office, including notary public:

“I am sure the DSOS recognizes that a belief in god cannot be required in order to obtain a notary public commission (indeed we are informed this information is not in the notary handbook.) [The instructor] may mistakenly believe that Article 6, Section 8 of the North Carolina constitution requires notaries public to believe in god, but this section is unconstitutional and should not be presented as current law. If any instructor in the Notary Public Education Program is informing applicants that belief in god is a requirement to be commissioned as a notary public, this is a serious constitutional issue since the DSOS controls the education and commissioning of notaries public in North Carolina.”

The Supreme Court issued a unanimous decision in 1961’s Torcaso case (brought by the late Roy Torcaso, an honorary director of FFRF) against religious tests for public office, specifically involving a notary public oath.

On Sept. 16, the DSOS replied: “We have reviewed the pertinent provisions of the North Carolina Constitution that apply to notaries public with [the instructor]. [The instructor] has been informed that the provision disqualifying any person from holding a public office for denying the being of Almighty God is not congruent with the U.S. Constitution and is therefore not applicable to notary applicants in North Carolina and should not be taught. Although this specific provision of the constitution is not germane to notary education, we have taken this opportunity to make sure each of our instructors understand that it is not applicable to notary applicants.”

Aberdeen Central High School in Aberdeen, S.D., will no longer permit its coaching staff to engage in pre-game prayers before football games.

After a complaint was filed with FFRF, Staff Attorney Patrick Elliott sent a letter on Sept. 24 to inform Aberdeen School District that this practice violates the Constitution:

“The coaches’ apparent organizing and obvious participation in a team prayer constitutes an unconstitutional government endorsement of religion. A reasonable member of the Central High School football team would certainly perceive such a prayer ‘as stamped with [his or] her school’s approval.’”

On Sept. 29, the superintendent replied, “All members of the administrative leadership team and coaching staff have received follow-up correspondence which instructs them not to organize, encourage, or participate in student prayer at any event sponsored by the District.”

Arlington Independent School District in Arlington, Texas, will no longer allow a teacher to proselytize students after a complaint was filed by FFRF.

A concerned parent of a student at James Martin High reported that a teacher, who is also a local pastor, used valuable time during a world history course to proselytize. The teacher told students that the stories of the bible are historical fact and that the the bible is “about the only information we have” about any ancient civilization. The teacher informed the students that the first six weeks of class would rely heavily on “the Hebrew history book.”

The teacher also told the students “carbon dating is wrong,” and posted a portrait of Jesus in the classroom.

The teacher’s u webpage additionally demonstrated blatant intent to teach the bible as historical fact, listing Moses and Jesus as “historical characters.” The webpage included links dubbed “advance training videos,” including the 2009 animated movie The Ten Commandments, which depicts the biblical story of the life of Moses. In the classroom, the teacher reportedly taught how Joseph became a slave in Egypt as if it were part of an accurate historical record and had students reenact a conversation between Moses and the Egyptian pharaoh. During a unit on Egypt, the students extensively covered the “ten plagues” of Egypt.

The teacher also spent parts of multiple class periods complaining about Supreme Court decisions against religious indoctrination in public schools, and how the teacher gets around such prohibitions.

On Sept. 10, FFRF Staff Attorney Sam Grover sent a strongly-worded letter to the district, explaining why religious indoctrination in public schools is an egregious violation of the Establishment Clause:

“Teachers have access to a captive audience of students due to their position as public educators. The District has a duty to prohibit religious proselytizing by teachers in the classroom.”

The school responded to FFRF on Sept. 16, “AISD takes your letter and its contents seriously, and has begun an investigation.”

On Sept. 22, the complainant informed FFRF that the problematic content was removed from the classroom and that the teacher “has not been proselytizing recently.”

The Office of Public Affairs at University of Texas Health Northeast in Tyler, Texas, has stopped sending system-wide email invitations to employees to participate in bible study events at the Hurst Chapel after receiving a letter from FFRF.

A concerned employee contacted FFRF to report that the emails were signed “From the Office of Public Affairs.” In contrast to the bible study invitations, a system-wide email that promoted a Weight Watchers meeting contained the disclaimer, “This program is not in any way supported, endorsed, or managed by UT Health Northeast, other than allowing the meetings to take place on campus as a convenience to our staff. Participation in the program is entirely voluntary.”

It was additionally reported that the employees were invited to attend these bible study sessions in lieu of performing their normal job duties during work hours.

On Sept. 4, FFRF Staff Attorney Sam Grover sent a letter explaining why promotion of these study events is discriminatory and unconstitutional:

“While it may be standard practice in some hospitals to offer patients and their families access to a nondenominational chaplain for spiritual counseling, there is no reasonable justification for a public university-affiliated hospital to provide its employees with access to worship services during the workday. . . Calling upon staff to attend religious worship services is coercive and beyond the scope of a state-run hospital. Employees are free to pray privately or to worship on their own time in their own way.”

On Sept. 24, FFRF received word from the complainant that “Chapel services are still going on every week, but the emails promoting them have stopped.”

Valley View Independent School District in Valley View, Texas, will no longer allow a Middle School teacher to give students religious handouts.

A history teacher distributed tracts to his students after teaching them about the Declaration of Independence. The tract was published by the NCCS and included a link to the NCCS website. The National Center for Constitutional Studies is an overtly religious organization that promotes religion under the guise of teaching American history. The website is both religiously and politically charged and includes a list of reasons to oppose same sex marriage. Articles on the site additionally draw egregiously false connections between the Constitution and the bible.

FFRF Staff Attorney Sam Grover sent a letter on Aug. 29 warning the district that schools may not advance or promote religion:

“Teachers have access to a captive audience of students due to their position as public educators. The district has a duty to regulate religious proselytizing in the classroom.”

On Sept. 10, the superintendent responded that they were looking into alternative pamphlets to distribute in the future and, “. . . VVISD intends to fully protect the rights of all our students and will do everything possible to replace the objectionable materials.”

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