No one can deny Lawrence VanDyke’s excellent credentials for the federal court system. Attempting to deface his reputation nonetheless, the ABA and its progressive counterparts in the Senate questioned his impartiality toward LGBTQ litigants due to his faith. Learn more at FirstLiberty.org/Briefing.
President Trump and I have a common friend in Lawrence VanDyke. I know Lawrence from the time he’s spent volunteering with First Liberty Institute and as solicitor general of both Nevada and Montana. President Trump nominated him to an open seat on the U.S. Court of Appeals for the Ninth Circuit.
As you might guess, he took a few shots during his confirmation hearing. This time, the real culprit seems to be the American Bar Association. Somehow, the ABA is perceived to be a neutral evaluator of judicial nominees. So, rating Lawrence as “not qualified” is a severe blow to his nomination.
When senators inquired if he would be fair toward LGBTQ litigants, Lawrence’s emotions got the better of him. Choking back tears, he managed to say, “It is a fundamental belief of mine that all people are created in the image of God. They should all be treated with dignity and respect.”
No one can honestly and credibly attack VanDyke’s sterling credentials. No one even tries. But attacks on someone’s legal research, writing, and advocacy are not in the playbook for today’s progressive left, which is driven by a militant secularism that worships at the altar of wokeness.
Lawrence VanDyke is a compassionate man with a brilliant intellect who has donated hours and hours of his professional career defending religious liberty. I hope the senate ignores the ABA’s biased letter and confirms my friend, Lawrence VanDyke.
To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.
A Cameron, Missouri, school district superintendent has received a series of complaint letters regarding religious activity in school. However, these letters are rife with unsubstantiated claims and unidentified sources. In order to be taken seriously, legal demand letters require litigants and facts—not anonymous threats and gripes. Learn more at FirstLiberty.org/Briefing.
It should come as no surprise to find religion mixed with sports in America, whether that is Tim Tebow’s eye black or Coach Kennedy’s silent prayer.
However, with these public displays of religions often come needless, often intimidating complaints that are probably better ignored.
A group known for making noisy, public complaints about religion in public life groused to the Cameron R-1 School District in Cameron, Missouri. In a letter bearing the rough semblance of a legal demand letter, the group makes several unsubstantiated claims upon the school’s superintendent, demanding an investigation and that he “take immediate action” to end any religious activity.
But something always seems to be missing with these letters: A litigant.
Fundamentally, unless a lawyer, law firm, or legal organization identifies a plaintiff — a parent and/or student actually aggrieved by any of the alleged conduct attributable to the school district — such a letter amounts to little more than a public gripe.
Federal courts were not established to serve roving bands of censors and scolds. Only those with legitimate, legal standing are permitted to challenge complained-of behavior.
Religious liberty is a hallmark of our nation’s brand of freedom. The free exercise of religion, protected by the First Amendment, guarantees the rights of all citizens to exercise their faith. That freedom should not be casually limited by mere complaints from unidentified sources voiced by those who fund national television advertisements that mock religion.
To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.
In a recent speech, Secretary of State Mike Pompeo noted that his leadership is informed by his Christian faith. Ignoring both the Constitution and precedent, secularists are now accusing him for his “proselytizing religious speech.” Learn more at FirstLiberty.org/Briefing.
We recently discussed Attorney General Barr’s excellent speech on religious liberty. But, he’s not the only one in the Trump administration talking about religion.
Secretary of State Mike Pompeo also delivered a speech that progressives found troubling because he dared note that his leadership is informed by his Christian faith.
The fourth in line to the presidency admitted to learning a great deal about leadership while at West Point, in his service in the Army and Congress, and as director of the CIA. Yet Pompeo focused on how his faith has informed his leadership.
Secularists now demand that the Inspector General of the United States investigate and punish Secretary Pompeo for his “proselytizing religious speech.”
It may come as a surprise to some that even civil servants look to their personal faith in making leadership decisions. When those decisions align with calls for social justice and progressive calls for economic equality, the Left celebrates.
Yet, admit that a secretary of state relies upon his faith to be humbler, listen better, and make wiser decisions, and suddenly it crosses the line into a constitutionally dubious attempt to establish an official church of the United States.
Americans of every walk of life — elected or not — are free to be known by their faith in both public and private life. More than that, they are free to rely upon that faith in their disposition, dialogue, and decisions.
To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.
Upon receiving a Gospel tract in the mail, New York resident Annmarie Trombetta sued the sender for causing “severe emotional distress” due to “extreme and outrageous conduct.” Thankfully, a New York trial court concluded that sharing God’s Word isn’t intentionally harmful. Learn more at FirstLiberty.org/Briefing.
You will be pleased to know that a New York trial court has declared that proselytizing someone does not rise to the level of the intentional infliction of emotional distress.
Back in 2015, Lauren Kruse mailed a religious pamphlet to Annmarie Trombetta. The pamphlet, also known as a ‘tract,’ featured a cartoon depiction of someone who is sent into the "lake of fire" to "burn in hell" because they did not follow the version of Christianity promoted by the pamphlet which is evangelical Baptist.
Eventually, she learned that Lauren had sent her the tracts. Lauren explained that she was concerned for Annmarie’s eternal soul, along with many others to whom she had sent the tract.
Annmarie sued Lauren, including a claim for the intentional affliction of emotional distress, which requires a showing of (i) extreme and outrageous conduct; (ii) intent to cause severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress.
Ultimately, the court noted that the “First Amendment to the United States Constitution prohibits the courts of this State from evaluating the religious beliefs of a church or individual,” and, further, “While the court understands why the plaintiff found the tract and email disturbing, the court does not find that the conduct rose to the level of intentional infliction of emotional distress.”
And, for the majority of Americans, that’s a good thing.
Religious exemptions to the Contraceptive Mandate are under attack once again. After several states filed lawsuits against the Trump administration for protecting the rights of religious objectors, the U.S. Court of Appeals for the Third Circuit held that RFRA does not permit a broad religious exemption from this very mandate. The case now heads to The U.S. Supreme Court. Learn more at FirstLiberty.org/Briefing.
You would think that, in light of the Supreme Court’s Hobby Lobby decision a few years ago and the Trump administration’s efforts to undo the so-called contraceptive mandate, the fight over forcing religious adherents to compromise their religious convictions would be over.
You would be wrong. First Liberty recently filed a friend-of-the-court brief with the U.S. Supreme Court, urging them to review yet another Little Sisters of the Poor case. This case stems from lawsuits filed by several states, including Pennsylvania and New Jersey, against the Trump administration for providing religious exemptions to the contraceptive mandate.
The U.S. Court of Appeals for the Third Circuit ruled against religious objectors, concluding that RFRA does not permit a broad religious exemption from the Contraception Mandate, jeopardizing the exemptions granted to the nuns and others. The Little Sisters appealed that decision to the Supreme Court.
We argue in our brief that this decision ignores binding precedent and forces the courts to evaluate the sincerity of an employees’ religious convictions—which is against the law. Left alone, the Third Circuit’s decision threatens religious freedom by allowing courts to assess which religious convictions are reasonable.
As my colleague, Keisha Russell said when we filed the case, “Enough is enough. The Supreme Court of the United States needs to finally protect Little Sisters of the Poor and all other religious objectors from government-forced violations of their faith.”
Along with many of her peers, Skylar Carson, a student within the Steamboat Springs (CO) School District, was forced to read and analyze explicit lyrics in her “Music Literature” class. In doing so, her teacher had broken school policy (requiring parental consent to teach controversial material). No student should have to undergo such treatment—and neither teacher nor school district should get away with it. Learn more at FirstLiberty.org/Briefing.
Skylar Cason started her school day like any other, by attending her “Music Literature” class. She left with feelings of guilt and shame no student should be forced to endure while at school.
Steamboat Springs School District teacher Ryan Ayala decided to required students to fill-in-the-blanks in which a district-approved textbook had censored out much of the lewd and vulgar language of the infamous poem, “Howl” by Allen Ginsberg—words mostly used by pornographers.
Then, he assigned students to analyze the song, “Teenagers take off your clo” which seems to normalize sexting and ends by the singer noting his power over now nude teenagers as he holds their clothes.
None of this came with a warning—not to Skylar, nor to her parents. School policy permits teachers to instruct on controversial materials, but they are required by that policy to obtain parental permission before they do. No one at Steamboat Springs School District told Skylar’s parents and, therefore, they could not request an alternative assignment or exercise the option to opt-out in order to protect her religious conscience.
We sent a letter to the superintendent, asking that the teacher be required to apologize for the lack of forewarning and that the entire district undergo several hours of sensitivity training.
No student should feel guilt or shame—much less have their religious conscience violated by the actions of a teacher.
While elementary students in Knoxville, Tennessee, can legally opt for Bible study time during their school days, complaints have recently arisen regarding this practice. Critics should recall that The Supreme Court of the United States approved and even commended this tradition in Zorach v. Clauson. Learn more at FirstLiberty.org/Briefing.
Is it possible for public school students to go to a church or synagogue to receive religious education during the school day? In fact, yes it is.
Release time education is one such example. Instruction provided by release time education is not and cannot be provided by the school, and no school support or participation of any kind is allowed—including transportation. No student is required to participate, and no student can participate without specific parental consent and it cannot be held on school property.
In Tennessee, for example, students from Sterchi Elementary School are released during the school day to travel to the Church at Sterchi Hills. There, some 70 students spend about an hour of time receiving a Bible lesson.
Some will raise complaints about the religious instruction received during release time, but those are entirely unfounded. The Supreme Court of the United States approved the idea almost 70 years ago in a case called Zorach v. Clauson. The Justices recognized that “[w]e are a religious people whose institutions presuppose a Supreme Being” and went on to not only uphold release time programs as perfectly lawful, but further explained that “[w]hen the State encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it then follows the best of our traditions.”
So according to the Supreme Court, Bible release time is not merely lawful — it exemplifies what it means to be an American.
An atheist group has criticized Wayne Ivey, Sheriff of Brevard County, Florida, for lettering “In God We Trust” on the exterior of his police department’s vehicles. This accusation is nothing short of ridiculous—even the United States and the State of Florida claim this phrase as their official mottos! Learn more at FirstLiberty.org/Briefing.
The Sheriff of Brevard County, Florida, Wayne Ivey, made a decision that one group hates, but you will probably love.
He decided to put new lettering on all of his cruisers and department vehicles. That lettering is the National Motto, “In God We Trust.” That merited Sheriff Ivey a nasty letter from a group of atheists. Usually this group cites a few cases to make their point, but this time, they didn’t cite a single case in support of their demands that he remove the motto from the vehicles.
That’s probably because it is nearly impossible for them to cite any binding case invalidating the National Motto. As we have observed before on this program, every federal appellate court to have considered the motto has deemed it perfectly constitutional. This past summer, the U.S. Supreme Court rejected a request to review the constitutionality of the motto appearing on our coinage.
More ironically, not only is “In God We Trust” the official motto of the United States, the State of Florida adopted the phrase as its official state motto as well. So, it’s a little hard to figure how it would be inappropriate—much less, illegal—for a sheriff in the State of Florida, within the United States, to publish the state’s official motto on his cruisers.
We sent a letter to Sheriff Ivey letting him know he’s on solid ground with his decision. And, with that support, I’m happy to report that he’s not changing his mind anytime soon.
In a recent speech, Attorney General Bill Barr emphasized religious liberty’s importance in our federal republic. Echoing the Founders, he maintained that religious liberty promotes individual self government and morality—needed virtues in American citizenry. Additionally, Barr explained why governmental neutrality depends upon religious liberty’s protection. Learn more at FirstLiberty.org/Briefing.
Another Trump Administration official has come out in favor of religious liberty, this time with one of the best speeches on the topic in modern memory.
Bill Barr serves the nation at Attorney General. In October of 2019, Barr delivered a speech to his law school alma mater, Notre Dame.
The entire speech is worth reading, but his primary point was to explain that the framers of our Constitution believed self-government was only as effective as the people were moral. Without a common moral commitment to restrain them, people will turn to tyranny to have moral restraints forcefully applied or licentiousness brought about by the complete absence of morality. The Constitution succeeded because its framers relied upon the ethics of Judeo-Christianity in drafting it.
But, as Barr notes, the problem now is that “militant secularists” are engaged in “an unremitting assault on religion and traditional values.” He says, “The problem is not that religion is being forced on others. The problem is that irreligion and secular values are being forced on people of faith.”
That’s what his critics fail to grasp. To them, neutrality means government-enforced secularity. But, the genius of the U.S. Constitution is that it guards against hostility masquerading as secularized neutrality.
America’s founding era is replete with efforts by the founding generation to preserve space for people of faith to exercise religion independent of the government’s preferences. Such historic toleration is what is rightly called, “neutrality.”
Opeleika, Alabama officials prohibit a tradition of student-led prayer over the loudspeaker before football games. This ban directly violates a standing state law. Learn more at FirstLiberty.org/Briefing.
Prayer under the Friday night lights is once again in the crosshairs of activists.
In Opeleika, Alabama, school officials ended the practice of students praying over the loudspeaker prior to kickoff. Sadly, the decision ignores the law the Alabama legislature passed in 1993. According to the law, the legislature meant “to properly accommodate the free exercise of religious rights of its student citizens in the public schools.” But, not merely their rights within the school building, but also (and this is quoting from the law) “at public school events,” including football games.
In fact, the law explicitly says that “non-sectarian, non-proselytizing student-initiated prayer, invocations and/or benedictions, shall be permitted [at] school-related sporting events.”
One court, upholding the law, explained: “So long as the prayer is genuinely student-initiated, and not the product of any school policy which actively or surreptitiously encourages it, the speech is private and it is protected.”
And what about those who don’t like the prayers? Well, the same court explained that they are simply “free not to listen, and to express their disagreement by not participating in any way.”
In other words, genuinely student-initiated prayer is nothing to be feared and everything to be protected. Alabama law makes it abundantly clear: students may pray over the loudspeaker at public school football games. Driving religious expression by students off of public property is never the right option.
The City Council of Cleveland, Ohio desires to reinstitute the practice of legislative prayer before its meetings. As legislative prayer is a long-standing and constitutional practice upheld by the U.S. Supreme Court—and even the U.S. Court of Appeals for the Sixth Circuit, Cleveland Councilmembers should not fear legal retribution for reincorporating it into their meetings. Learn more at FirstLiberty.org/Briefing.
Legislative prayer is as old as the United States. In fact, offering a prayer before a public meeting should be one of the least questionable topics of our day.
That is why some on Ohio’s Cleveland City Council would like to bring the practice back to its meetings. Thankfully, the law supports them if they do.
Not only has the U.S. Supreme Court upheld the practice of legislative prayer—twice—the U.S. Court of Appeals for the Sixth Circuit has even said that the lawmakers themselves can lead such invocations.
That’s partly why we litigated The American Legion v. AHA where Justice Samuel Alito agreed with our understanding of the First Amendment and noted that “religiously expressive” practices, such as legislative prayer, that have long been a part of our nation’s history and heritage, bear “a strong presumption of constitutionality.” Just a few weeks later, the U.S. Court of Appeals for the Third Circuit in Fields v. Speaker of the Pennsylvania House of Representatives noted that presumption of constitutionality extends to legislative prayers.
As we recently explained in a letter sent to the Councilmembers, the Cleveland City Council is on solid legal ground to restart its practice of legislative prayers. Extending that level of freedom to all Americans, whether they are private citizens or elected officials, reflects the very best of the American brand of freedom.
When Drew Brees, the New Orleans Saints’ quarterback, endorsed “Bring Your Bible to School Day,” he received a lot of criticism from the “woke” culture. Nonetheless, the Constitution protects Brees’ freedom of speech as well as the right of students to read their Bibles at school. Building on these principles, First Liberty has successfully defended individuals maligned for expressing their faith in the academic and professional spheres. Learn more at FirstLiberty.org/Briefing.
Drew Brees is not only a Super Bowl winning quarterback, he’s been an outspoken advocate for several issues dear to his heart. That includes his faith.
But when he cut a public service announcement for a project by Focus on the Family called, “Bring Your Bible to School Day,” the woke, cancel culture whipped itself into the usual frenzy. The whole situation made me think of a few of our past clients.
For instance, officials in Georgia removed Dr. Eric Walsh from being a public health official over something he said in a sermon as a lay minister. Giovanni Rubeo, just 12 years old at the time, was told he could not read his Bible during free reading time at school.
Drew Brees probably won’t lose his job like Dr. Walsh did, but I worry about kids who actually do bring their Bible to school, like Giovanni did. While the law is crystal clear that students have every right to carry, read, and reference their Bible at school, we all brace for the next student who runs up against the teacher who doesn’t think the student should have the freedom to do so.
All of us ought to appreciate Drew Brees for what makes him different from us, even if that is his religion. That’s what our commitment to religious liberty and the guarantee to exercise that religion in public demands.
By the way, in case you’re wondering, we won Dr. Walsh’s case and, after several exchanges with Giovanni’s school, they admitted their teacher made a mistake. So, don’t be afraid of living out your faith in public either. We’re here to help.
Cases have recently reached the U.S. Supreme Court hinging on the court’s definition of “sex” in Title VII of the Civil Rights Act. The justices’ potential altering of this definition would greatly injure the democratic process as well as the state of religious liberty in America. Learn more at FirstLiberty.org/Briefing.
The day after the Supreme Court of the United States opened the 2019-2020 term of the court, the Justices heard argument in three cases over what is meant by a single word in a federal statute.
The cases involve two homosexual men and one transgendered woman terminated from their jobs because of their sexual orientation. The federal statute, Title VII of the Civil Rights Act of 1964, prohibits employment discrimination on the basis of, among other things, a person’s sex. That’s the word up for debate.
Activists have labored since at least 1974 to update Title VII’s definition of sex to include any number of gender identities and sexual orientations, but Congress has declined to act.
Part of the reason for that has to do with the very real fear expressed by religious conservatives at the potential loss of key religious liberty protections. They fear becoming the next Aaron and Melissa Klein.
Cutting off that democratic debate—one that allows concerns for the protection of religious liberty to be accounted for—is unwise. The question everyone should be asking is what does yet another decision on a significant cultural question by judges mean for our democratic republic?
Equality and nondiscrimination means very little in the hands of a democracy that can be altered by the stroke of the judicial pen.
Activists challenged Lehigh County in Pennsylvania for retaining a cross symbol among the various elements displayed in its county seal. Following the precedents set in The American Legion v. AHA, the U.S. Court of Appeals for the Third Circuit upheld Lehigh County’s right to include the cross in its seal. Learn more at FirstLiberty.org/Briefing.
Activists who dislike the presence of anything religious in public can no longer safely assume that judges will order religious symbols hidden from public view.
In recent decades, progressives have turned to the courts to accomplish what ought to be done in the political arena. No less is that true than when it comes to religiously expressive symbols that appear in public. The U.S. Supreme Court’s decision in The American Legion v. AHA is correcting the faulty understanding of the First Amendment.
In Lehigh County, Pennsylvania, for instance, that county’s seal includes various elements symbolic of their community, including a cross. That, activists say, establishes a religion in violation of the Establishment Clause of the First Amendment to the Constitution. Mercifully, the U.S. Court of Appeals for the Third Circuit disagreed.
Judge Thomas Hardiman explained that what matters is less how old a particular religious symbol is and more whether its use fits within our country’s longstanding traditions.
He said, “The Lehigh County seal fits comfortably within a long tradition of State and municipal seals and flags throughout our Republic that include religious symbols or mottos which further confirms its constitutionality.”
Rather than allow judges to force the removal, destruction, or censoring of religiously expressive monuments, symbols, or practices, The American Legion line of cases safeguards the history of our country, the text of our Constitution, and the simplicity of a self-governed local community.
Because Jeremy and Kristy Morris shared the Gospel via their annual Christmas display, their HOA sued them. This legal action amounts to nothing more than unlawful religious discrimination in housing, an injustice that First Liberty has taken on in the fight for our constitutional freedoms. Learn more at FirstLiberty.org/Briefing.
Some months ago on the First Liberty Briefing, I introduced you to Jeremy and Kristy Morris. Located in northern Idaho, the Morrisses have been embroiled in a lawsuit with their homeowners association over their annual Christmas display.
But, they don’t just put up Christmas lights to look at them. The Morrisses want to bless others with their light display. And so, they decided to spread a little Christmas cheer by inviting folks onto their yard, sharing the Gospel with them over a cup of hot chocolate and asking for donations for disadvantaged kids in the area.
But the HOA told them to get rid of the lights and based their disagreement with the display on the Morrisses’ religion. Jeremy and Kristy sued and convinced a jury that the HOA engaged in unlawful religious discrimination in housing. But, the judge overruled the jury and entered judgment in favor of the HOA instead.
In October 2019, First Liberty and our volunteer attorneys at Gibson, Dunn, and Crutcher appealed the judge’s decision and asked the Ninth Circuit to reinstate the jury’s decision.
As Kristy Morris explained, “I had to go to court because I invited my neighbors for Christmas. I truly hope the judges on the Ninth Circuit will free us to be able to once again celebrate Christmas and raise money for charity.”
Me too. No one should have to fight to spread a little Christmas cheer outside their own home.
Judge Tammy Kemp has received criticism for giving her Bible to a convicted felon in an act of compassion and mercy. Any judge that hands any holy writ to someone in an effort to encourage the improvement of his or her life is legal and worth defending. Learn more at FirstLiberty.org/Briefing.
Everyone seems to have been moved by the remarkable story of forgiveness and mercy of Brandt Jean, brother of Botham Jean tragically killed in 2018 by an off-duty police officer in his own apartment.
Many have even taken note of Judge Tammy Kemp’s actions as well. After sentencing was complete, Judge Kemp descended from the bench, visited with the Jean family, and was moved to give her personal Bible to Amber Guyger, the newly sentenced felon, when she greeted her.
Ignoring the example of humanity, healing, and mercy demonstrated by Judge Kemp, the Freedom From Religion Foundation stepped in to ruin the moment. They filed a complaint with the Texas Commission on Judicial Conduct, calling the act of Judge Kemp an “abuse of power.”
Our country has a longstanding tradition of respecting the reality that our leaders have both a professional, official role and yet may retain their personal humanity. Not only should Judge Kemp be permitted to be human, including the parts of her humanity informed by her religious beliefs, any judge that hands any holy writ to anyone in any effort to encourage the improvement of their lives is worth defending.
The protests of Judge Kemp should stop and those protesting ought to join the rest of the nation celebrating the compassion and mercy Judge Kemp demonstrated. We should all be thankful the law allows Judge Kemp’s actions. We stand with her and will gladly lead the charge in defending her noble and legal actions if necessary.
For the first time in U.S. presidential history, President Donald Trump hosted a meeting at the United Nations dedicated to religious freedom. This is an extremely important step on the path to eradicating religious persecution across the world. Learn more at FirstLiberty.org/Briefing.
Never in American history has a United States president hosted a meeting at the United Nations dedicated to religious freedom.
But, in late September 2019, as the delegations from around the world descended on the UN General Assembly in New York City, President Donald Trump hosted a meeting focused on international religious freedom.
He explained that, “The United Sates is founded on the principle that our rights do not come from government; they come from God,” but then admitted that “the religious freedom enjoyed by American citizens is rare in the world.”
Indeed it is. As he explained, “Approximately 80% of the world’s population live in countries where religious liberty is threatened, restricted, or even banned.”
President Trump called upon them to “end religious discrimination.” After announcing the formation of a coalition of U.S. businesses that will work to protect religious freedom globally, President Trump ended with this observation, “Too often, people in positions of power preach diversity while silencing, shunning, or censoring the faithful. True tolerance means respecting the right of all people to express their deeply held religious beliefs.”
Indeed it does and, whatever else might be said of President Trump’s foreign policy, his administration appears concerned for the persecuted church. As he said to the persecuted church, “The United States of America will forever remain at your side and the side of all who seek religious freedom.”
In a recent town hall, Democratic candidate Beto O’Rourke contended that religious institutions should lose their tax-exempt status if they oppose same-sex marriage. His statement is an overt attack on The First Amendment and Justice Anthony Kennedy’s promise of the continued protection of religious liberty in Obergefell v. Hodges. Learn more at FirstLiberty.org/Briefing.
At yet another town hall event for Democratic presidential hopefuls, candidate Beto O’Rourke once again peeled back the veneer of political centrism to reveal a disturbing threat to religious liberty.
Asked if he thought that religious institutions should lose their tax-exempt status if they oppose same-sex marriage, Beto wasted no time casting off the shackles of centrism and told the world what the left really believes.
"Yes,” O’Rourke said immediately, “There can be no reward, no benefit, no tax break for any one or any institution, any organization in America that denies the full human rights and the full civil rights of every single one of us.”
That’s a far cry from former Justice Anthony Kennedy’s promise in Obergefell v. Hodges when he said “that religions, and those who adhere to religious doctrines, may continue to advocate with utmost sincere conviction” their religious beliefs regarding human sexuality.
Indeed, Kennedy promised that “The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.”
Yet under an O’Rourke administration, organized religion will have to pay its own freight.
O’Rourke’s purpose is to expand the borders of the increasingly far left. He will not win the presidency. Still, we ought to take with deadly seriousness that he is saying what his party is increasingly thinking.
After the American Legion decision was announced, an activist group is trying to remove a cross from a memorial on Vero Beach. Removing the cross from the monument would reveal a hostility toward religion, which Justice Alito ruled against in The American Legion case. Learn more at FirstLiberty.org/Briefing.
There has been a war on religiously expressive monuments, symbols, and practices occurring in public for some time. The Supreme Court’s decision in The American Legion v. AHA put an end to that, but some haven’t given up the fight.
Back in 1964, residents of Vero Beach, Florida put up a “Lest We Forget” monument. The monument itself looks to be maybe four feet high and about as wide. On top, sits a cross, at the most 19 inches tall and 12 inches wide.
In 2017, a group of activists threatened Vero Beach officials, demanding they remove the memorial or at least knock off the cross from atop the monument. But, nothing came of it. Now, after The American Legion v. AHA, the same group is making noise once more.
I’m not sure why. As you may have recently heard on the First Liberty Briefing, the Supreme Court has explained that monuments like this are “presumptively constitutional.”
The passage of time may further reinforce that this memorial is in keeping with the history and tradition of our country, but what is certainly true is that those opposed to the cross on top of this memorial have no neutral solution. Taking a sledge hammer to the cross atop this memorial would reveal a certain hostility toward religion that, as Justice Samuel Alito observed in The American Legion v. AHA, tearing down monuments in the name of the law would be “evocative, disturbing, and divisive”
The landmark decision in The American Legion case protects war memorials from destruction all across the country. Americans no longer need to fear these religious symbols on government property. Learn more at FirstLiberty.org/Briefing.
Over the last five episodes, we have been winding our way through the Supreme Court’s decision in First Liberty’s case The American Legion v. AHA. Before we move on to other areas of religious liberty, let’s tie the whole thing together.
It’s undeniable that The American Legionis a landmark decision. The days of activist courts catering to the offense of those who would illegitimately weaponize the First Amendment’s Establishment Clause to attack religious symbols on public land are over.
Not only is the Peace Cross safe from destruction, so are the hundreds of war memorials honoring veterans across the country.
Our Founders would’ve been appalled at attempts by activists to purge the landscape of religious symbols in our country.
We are a religious people, living in a diverse society. None of us should be surprised at the presence of religious symbols interspersed with secular ones in the public square. Quite simply, Americans need no longer fear reprisals against the display of the Ten Commandments, a Nativity scene, or the national motto on government property.
It is fitting that a memorial to the men who died in the “war to end all wars,” now ends the war to end all memorials with religious shapes or symbols. Thanks to the efforts of The American Legion, and some good lawyering at First Liberty Institute, today we have more freedom than we did just a few weeks ago.
The Lemon Test is the main proponent in religious monuments and symbols being torn down. While the American Legion case didn’t overrule the Lemon Test, the Justices expressed significant skepticism of it. Learn more at FirstLiberty.org/Briefing.
Over the last few episodes, we have been making our way through First Liberty’s latest Supreme Court case, The American Legion v. AHA. Today, it’s all about Lemon.
Of course, we’re not talking about citrus, but the test stemming from the court’s decision in Lemon v. Kurtzman from several decades ago. Lemonhas been the primary means by which opponents of religiously expressive monuments, symbols, and practices have torn down, erased, or ended them. But, thanks to The American Legion case, those days are over.
In the words of a plurality of Justices, “Lemon ambitiously attempted to distill from the Court’s existing case law a test that would bring order and predictability to Establishment Clause decision making.”
But it didn’t. So, the plurality expressed significant skepticism of the test, but stopped short of overruling it.
Justice Brett Kavanaugh, concurring, evaluated all the ways the Lemontest has been applied, concluding that unless the state action is coercive, monuments and practices rooted in our history and tradition are just fine. Justice Neil Gorsuch called Lemon“a misadventure.”
Justice Clarence Thomas, also concurring, agreed with the plurality’s thinking, but said, “I would take the logical next step and overrule the Lemon test in all contexts.”
Bottom line for those who wish to attack religiously expressive monuments, symbols, or practices, they’re going to have to find another case.
We’ll wrap up our evaluation of this case in our next episode.
The removal of the Bladensburg monument would not be considered neutral by the justices. The passage of time turns the monument into a historical monument, rather than the focus being on religion. Learn more at FirstLiberty.org/Briefing.
In The American Legion v. AHA, the Supreme Court acknowledged that the Peace Cross was, and is, a religious symbol. The Justices even noted that some who erected the memorial had a religious motivation in doing so. But, the majority of the court rejected the idea that that religious symbolism or religious meaning meant the memorial must be destroyed.
As Justice Samuel Alito wrote for the majority of the Justices, “Even if the original purpose of a monument was infused with religion, the passage of time may obscure that sentiment.”
Over time, he notes, “a community may preserve such monuments, symbols, and practices for the sake of their historical significance or their place in a common cultural heritage” and “as time goes by, the purposes associated with an established monument, symbol, or practice often multiply.”
In other words, what was once viewed as religious may now simply be considered historical. But, the passage of time makes that line more difficult to see. But, that’s ok.
As Justice Alito explained, “With sufficient time, religiously expressive monuments, symbols, and practices can become embedded features of a community’s landscape and identity. The community may come to value them without necessarily embracing their religious roots.”
And, if it is so firmly rooted to the community, he concluded, “removing it may no longer appear neutral.”
On the next First Liberty Briefing, let’s talk about what The American Legion case means for the Lemon test.
The Justices wanted to remain neutral and tearing down the monument would be hostile towards religion. They emphasized that respecting monuments and symbols of religion is the best way to remain neutral towards religion. Learn more at FirstLiberty.org/Briefing.
This is the third in a series of episodes exploring the impact of the Supreme Court’s decision in First Liberty’s case, The American Legion v. AHA. In this episode, we turn to the issue of hostility toward religion.
It’s clear that the Justices wished to respect the presence of the memorial and what it has come to mean for the people of Bladensburg, Maryland. Though opponents of the memorial clamored for neutrality, removing the Peace Cross would not be a neutral act by the government.
As the majority explained, “requiring their removal would not be viewed by many as a neutral act” and “would be seen by many as profoundly disrespectful.” Worse, the court’s majority observed, “a campaign to obliterate items with religious associations may evidence hostility to religion even if those religious associations are no longer in the forefront.”
In our next episode, we will look at that last part and the evolution of this particular religious symbol into what it means today, but don’t miss this critical point: the Justices of the Supreme Court are communicating to the nation that genuine neutrality toward religion means respecting religiously expressive monuments, symbols, and practices, not destroying, altering, or hiding them.
As Justice Alito explained in his majority opinion, “A government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine will strike many as aggressively hostile to religion.”
Stay tuned for more.
A lawsuit could once be filed because someone was offended by the fact that a religious monument was in a public area. Now instead of being removed just because someone dislikes it, the monument must be proved unconstitutional, which is much more difficult to achieve. Learn more at FirstLiberty.org/Briefing.
In our last episode, we learned that memorials with religious symbolism bear a “strong presumption of constitutionality,” according to Justice Alito’s majority opinion in The American Legion v. AHA. But what does that mean?
Well, to fully appreciate the court’s decision, you need to understand how these lawsuits once worked. Previously, if someone saw what the Supreme Court calls “religiously expressive monuments, symbols, and practices,” a lawsuit could be filed based on little more than the offense of having been exposed to such a thing on public property.
It was called “offended observer standing” and, as Justice Gorsuch made clear in his concurring opinion, “If individuals and groups could invoke the authority of a federal court to forbid what they dislike for no more reason than they dislike it, we would risk exceeding the judiciary’s limited constitutional mandate and infringing on powers committed to other branches of government.”
Instead, those merely offended by the presence of a religiously expressive monument, symbol, or practice must now rebut the presumption that such religious displays are constitutional. That’s a far more difficult standard to overcome and one certain to dissuade suits from even being filed.
Of course, there’s a reason why the court shifted the burden. On our next episode of the First Liberty Briefing, we will discuss how the Justices are combatting hostility toward religion.
Seven out of nine Supreme Court Justices rule that the Bladensburg Peace Cross in Prince George County, Maryland should remain standing. The majority opinion acknowledges that the memorial’s age makes it a part of the community. Learn more at FirstLiberty.org/Briefing.
It may have been a long time coming, but the freedom First Liberty Institute secured in The American Legion v. AHA is significant.
You will recall that at issue in the case was the Peace Cross, a World War I monument Gold Star Mothers erected to remember 49 sons of Prince George’s County, Maryland who died in the Great War. That idea came in 1919 and The American Legion dedicated it in 1925.
Everything was fine until 2013 when someone decided they were offended at the presence of a cross on public property, ignoring the surrounding memorials to other wars in what is known as Memorial Park.
In June of 2019, the Supreme Court of the United States handed down its decision. Seven of the nine Justices wrote an opinion, making the decision somewhat difficult to decipher. But the clear majority of seven Justices ruled that the memorial should stay right where it is.
The majority opinion, written by Justice Samuel Alito, explained the fact that the memorial bears religious symbolism does not mean the memorial must be destroyed or moved to private property. That is all the more true when memorials age and become a central part of the community itself. “The passage of time,” Justice Alito wrote, “gives rise to a strong presumption of constitutionality.”
In our next episode, we will explore what this “strong presumption of constitutionality” means today.