When A Religion Seeks Special Privileges, Is It Getting More Than It Bargained For?

Submitted by:  Tom Cara, Director, FFRFMCC

In their ongoing quest to undo the framers’ intentions to make state/religion entanglements unconstitutional, religious organizations keep taking their demands for special privileges to court, arguing that government and faith must be intertwined — specifically, the Christian faith.  In doing so, and winning, they just keep opening that proverbial can of worms, but then find themselves struggling to keep those worms from escaping.

On April 19th, 2017, the U.S. Supreme Court began hearing oral arguments for the case of Trinity Lutheran Church of Columbia v. Comer.  This is one of the first cases to be heard by newly appointed conservative justice Neil Gorsuch, a former federal court judge who had frequently sided with faith-based organizations in cases pertaining to religious freedom.  Or, as many secularists like to refer to it — religious privilege.

The question being raised in this particular case is:  Should religious institutions be entitled to government-funded grant programs made available to other non-profits?

This had been brought to the U.S. Supreme Court after the State of Missouri denied Trinity Lutheran Church in Columbia, MO its request to receive funds from a state program which offers grants to nonprofits.  The church sought the grant to resurface its playground with recycled tires.  Lower courts had ruled against the church on Establishment Clause grounds.  But the church was firm in their convictions that Christian privilege must be taken all the way to the Supreme Court.

While we must respect the church’s desire to maintain a safe playground for its congregant children, and for also wanting to do so in an environmentally conscious way, a SCOTUS decision in favor of the church will certainly pave the way for more taxpayer dollars being used for just about anything religious institutions think they’re entitled to, with taxpayers suddenly finding themselves supporting the refurbishing of Latin crosses and stained-glass images of Jesus adorning Christian churches.

Though such decisions may benefit them in many respects, most religious institutions that achieve victories for the continued entanglement of state and religion often don’t anticipate what future headaches these decisions might cause them.  And when conservative Christians become confronted with a headache, their intolerance to anything not Christian comes shining through.

Early indications are SCOTUS will overturn lower court decisions preventing state funds from being funneled to religious institutions, with even progressive justices Stephen Breyer and Elena Kagan looking as though they are leaning in favor of Trinity Lutheran Church.  And such a decision will without question further entangle government and religion, and ultimately wield more power to religion, primarily the Christian religion.  But if a decision does come down in favor of the church, we will certainly see parallels with previous court decisions and legislation that had been fought for by the Religious Right in the name of “religious liberty,” but have then become a thorn in their side when they discover non-Christian institutions justly expect the same entitlement.

In 1984, the Equal Access Act was passed, which made it “unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.”

This Act was the result of pressure from Christian-based organizations to allow schools to have faith-based extra-curricular clubs in public schools.  This Act provided for such as long as the clubs met the following criteria:

(1) The meeting is voluntary and student-initiated

(2) There is no sponsorship of the meeting by the school, the government, or its agents or employees

(3) Employees or agents of the school or government are present at religious meetings only in a non-participatory capacity

(4) The meeting does not materially and substantially interfere with the orderly conduct of educational activities within the school

(5) Non-school persons may not direct, conduct, control, or regularly attend activities of student groups.
While schools can easily opt out of the Equal Access Act by not allowing any extracurricular clubs whatsoever, this ultimately led to the influx of the bible-based “Good News Clubs” in public schools, which is a program devised by the Child Evangelism Fellowship designed to indoctrinate impressionable school-age children into accepting Jesus Christ as their “lord and savior,” and doing so on public school property.  This has also resulted in other faith-directed activities such as student-led “prayers at the flagpole” becoming more commonplace on public school grounds prior to the beginning of the school day.  The problem we have seen however, is that it is often just as commonplace for public school administrations and faculty members to either promote, endorse and/or participate in these activities.  And it usually takes action on the part of legal watchdog groups such as the Freedom From Religion Foundation, American Atheists, Americans United for the Separation of Church and State, the American Humanist Association, or the ACLU to intervene and point out when constitutional violations are occurring.  But sadly, this only happens when either a concerned parent or student has the courage to speak out and actually file a complaint.

The upside to the Equal Access Act was that it also opened the door for students to form LGBT clubs and secular or atheist clubs.  None of which of course tend to sit very well with the Religious Right, and the power held by the Christian religion in many communities can be effective in its efforts in pressuring school administrators to deny equal access to such clubs which are claimed to be in conflict with their closely-held religious beliefs.  And sometimes, pressure is not even needed as some school administrators wield their own religious viewpoints to deny students equal access.

The most egregious example we have seen so far has been school districts denying the Satanic Temple equal access to create after school clubs. But we have also seen cases where even less controversial clubs, such as atheist or Secular Student Alliance clubs, have been denied establishment simply because the entire concept completely offends the religious majority of the community.  What typically happens is that either the denial is successfully challenged by the likes of FFRF and other state/church separation groups, or the school district will simply eliminate extracurricular clubs altogether as to avoid any legal confrontations.  But the latter of course becomes nothing but a detriment to students who seek to establish a community within their school, whether it be academic (math, science or foreign language clubs), hobby clubs, or simply cultural identity clubs (which would include religious, non-religious or LGBT clubs).

The Equal Access Act should, for all intents and purposes, allow students the freedom to create their own communities with a school culture.  Unfortunately, the biggest obstacle to such freedom has been the intrusion of religious beliefs to demand control over what students can and can’t do.  In other words, there are those of religious faith who advocate for equal access, as long their religion is more equal than that which is not their religion.

And then in June of 2014, we had the Supreme Court decision in Town of Greece v. Galloway, which granted more religious intrusion into the halls of government by allowing for prayer and invocations in public meetings, but again wound up creating more headaches for Christians which could only be remedied with selfishness, bigotry and intolerance toward anything that wasn’t Christian.  SCOTUS ruled that opening legislative meetings with sectarian prayer does not violate the Establishment Clause.  But this decision also came with a non-discriminatory provision that any procedure of invocation must be open to all religious faiths, as well as those of no religious faith, and not show preference to one specific religious tradition.

Since the ruling, secular invocations have become a bit more commonplace, including several delivered by FFRF members and other non-theists.  But this has not stopped the Religious Right from doing their best to prevent non-Christian prayer in public meetings.  Many people have been denied the opportunity to deliver secular invocations, including FFRF co-president Dan Barker who has been rejected for offering a secular invocation to open a session of Congress, even though he has a Congressional sponsor.  Mr. Barker has had to resort to suing the Federal government for a right the Supreme Court has already given him.  And just recently in the Arizona state legislature, an openly atheist House representative delivered a beautifully written humanistic invocation to open the session, and was chastised by other house members for not invoking a higher power.  One appalled state representative cited that if one does not want to pray to a higher power, then they should not sign up to do the prayer.  In other words, we must believe in a higher power, or keep quiet.

There is also the case in July, 2016 of a member from the Satanic Temple in Pensacola, FL who was given the opportunity to deliver an invocation to open a town hall meeting, which he did in the form of a chant while dressed in a black cloak and hood.  Before he could begin, people in the audience interrupted him by loudly saying the Christian “Lord’s Prayer,” in an obvious attempt to thwart his invocation. One woman can even be heard screaming from the audience “this is not a Constitutional right,” and her intolerant point was loud and clear — those who stand in opposition to her Christian god have no rights.

Once the Satanic Temple member was able to proceed with his invocation, it included such blasphemous words as calling for people to “eat from the tree of knowledge” and to be “responsible for their actions.”  And if the audience members had shown some respect, and truly listened to what the young man was saying, they might have even been impressed.  But people continued to speak over him, offering Christian prayers aloud and reading passages from the bible in their attempt to thwart any injection of non-Christianity into the council chamber halls.

All opinions aside on whether those of no religious faith should even utilize their time delivering invocations, the law is the law.  And according to the U.S. Supreme Court, no one should be denied the opportunity to speak inspirational words during a time allotted for such by local, state or federal government institutions.  But Christians continue to insist on having all pieces of the pie.  They demand the freedom to proselytize anywhere, including our secular halls of government, but then react vehemently when others seek the same privilege.  Such hypocrisy is the greatest threat to any democracy.

And now, the Trump Administration is giving the Religious Right another power — one they have been seeking for a long time.  Trump’s action would effectively provide an exemption to religious institutions from the Johnson Amendment, which requires 501c3 nonprofits from not engaging in political politicking.  Trump’s executive order is a unilateral attempt to alter a piece of legislation that has been on the books for over 50 years by doing so without congressional approval.  This will give religious institutions the ability to either endorse or oppose political candidates, which is something the Johnson Amendment intended to prevent for all 501c3 nonprofits who are, and want to remain exempt from federal taxation.  By instructing the IRS to not enforce Johnson Amendment restrictions against faith-based groups, Trump is singling out and giving preferential treatment to religious organizations while keeping the IRS provisions intact for all secular 501c3 nonprofits.  The Freedom From Religion Foundation has rightfully filed a lawsuit against this executive order by citing a violation of the Establishment Clause and Due Process Clause, and having acted in excess of presidential authority under Article II of the U.S. Constitution.

What is most interesting about this is that a majority of those of religious faith who have been polled on this subject feel the Johnson Amendment should remain intact, mainly because they understand how polarizing politics can be.  And when their churches begin taking sides on a political candidate or issue, it’s not hard to imagine how much divisiveness this would cause within their own houses of worship.  But we should be very surprised to see anyone in the Christian community staging any kind of protest against Trump’s order.  Because if there is one thing we have learned about religious communities, they are very hesitant to point out any wrong-doing by those within their shared faith.

While Trump’s intention is to show more privilege to religion, this too may ultimately result in further frustration for churches.  Because, like the Equal Access Act and the Town of Greece v. Galloway decision, this will sound good to Christians until those who are not Christian begin seeking the right to the same privilege.  And one wonders if conservative Christians will show concern if U.S. Muslims decide to seek more and more political offices in this country, and then also become recipients of support and endorsement from mosques and imams.

What has become clear in our recent history is the Christian religion demands preferential treatment from its government — a government that was founded to be secular, and one that must be neutral and not show favoritism to any one religion.  But favoritism is what many Christians in this country expect by being the majority religion.  And that is exactly what they are getting.  Secularists have certainly had their share of disappointing federal court decisions providing greater and greater state/religion entanglements.  But we can continue to make strong arguments that religion should not have exclusive privilege to those decisions, which were intended to favor religion.  We must make sure the Religious Right finds it very difficult to prevent secular institutions from seeking the same privileges, and not allow them to use the same old tired (and ridiculous) argument that religion must be entitled to favoritism.

Christians in this country fight in court to demand their prayers be heard in public meetings, and then complain when non-Christians take the podium.  Christians fight in court to demand their faith-based, child-indoctrinating clubs are allowed in public schools, and then complain when atheists, gays and Satanists want the same.  Christians fight in court to demand their religious imagery must be displayed on government property, and then complain when atheists promote non-theism and encourage secularism right alongside them.  This is grossly arrogant thinking which has been allowed to go on far too long, and must be squelched as soon as possible.

Yes, my hope is their constant complaints and whining are becoming a nuisance for them.  So much so that each time they take their demands for special treatment to court, they begin to understand that, while they may prevail with an increasingly conservative Supreme Court, their expectation of an exclusive right to those demands shall not be realized.

It is up to those who honor the Constitutional principle of the separation between state and religion make sure we continue to give them something to complain about.
Responses to this commentary can be sent to:  info@ffrfmcc.org