Freedom From Religion Foundation’s 2020 report exposes the Christian Nationalist takeover of the federal courts and the damage this is causing to the separation of state and church.
Over the Trump administration’s four years, the federal courts have been taken over by ultraconservative judges who have radical views on religious liberty, and who are rapidly redefining the First Amendment in ways that expand Christian privilege and erode the wall of separation between state and church.
The right of every American to freely exercise any religion requires a government free from religion. But the federal judges appointed by Trump have shown increasing hostility toward the principle of separation between state and church, while jumping at every chance to exempt conservative Christians from laws that protect the rest of us.
President Trump has made three Supreme Court appointments, 54 appellate court appointments, and 174 district court appointments.
As Trump appointees continue to decide cases in the decades to come, we will continue to see courts sanction government favoritism of religion.
FFRF has outlined this alarming development in detail here. Below we continue to follow the alarming influence of these radical judges in the federal courts:
Supreme Court
Justice Gorsuch
- Voted in 2018 ruling that Colorado violated a bakery owner’s free exercise rights when state officials criticized the baker’s practice of refusing to sell wedding cakes to same-sex couples.
- Voted in 2019 to uphold an outsized Latin cross displayed on public property, and argued that citizens should not even be allowed to challenge religious displays in court.
- Voted in 2020 to expand the “ministerial exception,” which allows religious organizations to fire so-called “ministerial” employees for any reason — even because of race, sex, religion, age, national origin, etc. with legal impunity.
- Voted in 2020 to require taxpayers to fund religious schools.
- Voted in 2020 to strike down public health restrictions limiting the crowd size at gatherings including worship services, characterizing the classification of worship services as non-essential as “religious discrimination.”
Justice Kavanaugh
- Voted in 2020 to expand the “ministerial exception,” which allows religious organizations to fire so-called “ministerial” employees for any reason — even because of race, sex, religion, age, national origin, etc. with legal impunity.
- Voted in 2020 to require taxpayers to fund religious schools.
- Voted in 2019 to uphold an outsized Latin cross displayed on public property, and argued for a relaxed legal analysis under which there is not much the government could do to violate the Establishment Clause.
- Voted in 2020 to strike down public health restrictions limiting the crowd size at gatherings including worship services, characterizing the classification of worship services as non-essential as “religious discrimination.”
Justice Barrett
- Voted in 2020 to strike down public health restrictions limiting the crowd size at gatherings including worship services, characterizing the classification of worship services as non-essential as “religious discrimination.” Less than four months earlier, when Justice Ginsburg was still on the Court, it voted 5-4 the other way, upholding public health restrictions in the midst of a deadly pandemic. Justice Barrett flipped the Court on this issue.
The Circuit Courts of Appeal
Fifth Circuit
- Judge James Ho wrote a dissent arguing that religious objections could invalidate a fire department’s immunization policy, and that the free exercise clause must accommodate the devoutly religious above others. “It would be of little solace to the person of faith that a nonbeliever might be equally inconvenienced. For it is the person of faith whose faith is uniquely burdened — the non-believer, by definition, suffers no such crisis of conscience.”
Sixth Circuit
- Judge Amul Thaper during oral arguments about a professor’s lawsuit against a public university that disciplined him for intentionally misgendering a transgender student, posed the analogy of the university requiring a Jewish professor to refer to a student as “my Fuhrer” to illustrate the consequences of a ruling requiring professors to refer to trans students in class by their proper pronouns.
Eighth Circuit
- Judge David Stras ruled in 2019 that a wedding video company likelyhas a constitutional right to deny service to same-sex couples in violation of Minnesota’s anti-discrimination laws. He argued forcing videographers to provide equal services violates their free speech rights.
Ninth Circuit
- Judge Ryan Nelson dissented in December 2018 from a ruling to deny rehearing a case that struck down school-sponsored prayer at school board meetings. He argued for the court to revisit the established case law prohibiting prayer at school board meetings.
- Judge Mark Bennett joined in dissenting in December 2018 from a ruling to deny rehearing a case that struck down school-sponsored prayer at school board meetings.
Eleventh Circuit
- Judge Kevin Newsom wrote a September 2018 opinion openly urging the Supreme Court to overrule the circuit’s opinion and allow crosses on public land since there is “lots of history underlying the practice.” The Supreme Court took up his admonition the following year, eviscerating decades of federal court precedent and upholding a cross on public land.
- Judge Britt Grant ruled in November 2020 to block enforcement of an ordinance that bans conversion therapy of minors, dismissing evidence of the harm conversion therapy causes to children, stating, “People have intense moral, religious, and spiritual views about these matters — on all sides.”
- Judge Barbara Lagoa joined in the November 2020 opinion that blocked enforcement of an ordinance that bans conversion therapy of minors, dismissing evidence of the harm conversion therapy causes to children.
The District Courts
- Judge Justin Walker of the Western District of Kentucky ruled in April 2020 to allow large Christian congregations to gather for Easter services in violation of a neutral statewide pandemic public health, Walker stated: “On Holy Thursday, an American mayor criminalized the communal celebration of Easter.” Despite being rated as not qualified for judicial office by the nonpartisan American Bar Association, Walker was nominated and confirmed shortly after this opinion to the D.C. Circuit Court of Appeals, which is thought of as the second most powerful court in the nation.
- Judge Daniel D. Domenico of the District of Colorado in October 2020 temporarily blocked enforcement of state public health orders against churches, writing, “And while the religious, like the irreligious or agnostic, must comply with neutral, generally applicable restrictions, the First Amendment does not allow government officials, whether in the executive or judicial branch, to treat religious worship as any less critical or essential than other human endeavors.”
- Judge Trevor N. McFadden of the U.S. District Court for the District of Columbia, also in October 2020 temporarily blocked enforcement of a public health order restricting churches from holding outdoor worship services in excess of 100 congregants. He quoted scripture in his opinion, arguing, “It is for the Church, not the District or this Court, to define for itself the meaning of “not forsaking the assembling of ourselves together.” Hebrews 10:25.”
