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”
To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.
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.
To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.
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.
To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.
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.
Tim Goeglein and Craig Osten’s book, “American Restoration: How Faith, Family, and Personal Sacrifice Can Heal our Nation”, addresses solutions to cultural problems that our society is facing in religious liberty today. Learn more at FirstLiberty.org/Briefing.
Tim Goeglein and Craig Osten just released their new book, “American Restoration.” It’s a critical examination of our time and place, recognizing the cultural battles our society faces and proposing common sense solutions to the problems Tim and Craig identify.
I’m particularly taken by their evaluation of the state of religious liberty in our country today. There’s a recognition throughout the chapter that there is a clash between world views and religious liberty seems to be losing ground.
Their solution is simple, yet profound. “If we are to restore religious liberty, we must engage,” they say. “We must be involved. This is a time for a historic flood tide of faithful men and women to get involved in the media, in culture, and in public policy debates at the local, state, regional, and national levels.” That’s both vitally true and should be obvious to any reader paying close attention.
But, here’s the payoff. After calling for involvement at every level, they conclude, “But in doing so, we cannot compromise the core beliefs of our faith if we are to successfully restore America’s spiritual formation and God-given freedoms.”
Compromise erodes freedoms and that is not less true in the battle for religious freedom. The loss of religious freedom is itself a loss of freedom. And, at the same time, the more gains for the free exercise of religion we achieve, the more free our nation becomes.
The founders understood that. My friends Tim Goeglein and Craig Osten do too. Perhaps you ought to also read their new book, “American Restoration: How Faith, Family, and Personal Sacrifice Can Heal our Nation.”
South Dakota has new law that public schools will display the national motto, “In God We Trust”, and many people are unhappy about it. Every circuit court has deemed it constitutional and it has been upheld that the motto has nothing to do with the establishment of religion. Learn more at FirstLiberty.org/Briefing.
Under a new law, South Dakota’s public schools will now display the national motto on school property. But, not everyone is very happy displaying “In God We Trust” on public property.
One anti-religion activist called the idea “exclusionary and aimed at brainwashing American schoolchildren.”
Well, the only brainwashing seems to come from anti-religion activists with a bent to exclude, based on inaccurate information! Indeed, few words are more in keeping with our history and law than the National Motto.
Francis Scott Key included the line, “And this be our motto: ‘in God is our Trust’” in the further verse of the Star Spangled Banner. It went on our coins in 1864 and became the official motto in 1956, a year before it appeared on all our currency. It’s even displayed above the Speaker’s Rostrum in Congress!
Every one of the 11 circuit courts of appeal to consider the motto has deemed it constitutional. The Ninth Circuit has twice upheld the motto, explaining in one case that the motto “has nothing whatsoever to do with the establishment of religion.”
So, the next time you hear someone suggest that it violates the constitution, just use the words of the Sixth Circuit who determined that a court removing the motto from government property would be “ludicrous.”
Supreme Court of the United States sends Aaron and Melissa Klein’s case back to Oregon Courts to ensure the Klein’s had a fair trial and address the $135,000 state sanction that was put on them for discrimination. Learn more at FirstLiberty.org/Briefing.
The Supreme Court of the United States recently sent our case involving Aaron and Melissa Klein back to Oregon. You may be wondering: why didn’t the Justices just decide the issue once and for all?
It’s a fair question, and only 9 Americans really know the answer, but perhaps part of the reason is that state-sanctioned hostility to religion keeps getting in the way. By remanding the case for review in consideration of the Masterpiece Cakeshopdecision, it seems the Justices are asking the lower court to ensure, first, that the Kleins had a fair trial.
That could be difficult. Oregon’s administrator evaluating the charges suggested that the Kleins needed to be “rehabilitated.” But, only the guilty are in need of rehabilitation. Prejudging the case seems unfair.
But, the Justices seem even more concerned with ensuring state officials respect the religious beliefs of those accused of discrimination. Issuing a $135,000 penalty for “emotional damages” and imposing a gag order barring any public speech discussing their beliefs on the situation, suggests that the State of Oregon was less than respectful toward Aaron and Melissa’s religious beliefs.
In other words, it seems that the Justices are trying to stop the bleeding, stemming from an unfair process and state-sanctioned contempt for religious beliefs in public. Once that bleeding stops, perhaps the court can diagnose and treat the actual problem.
Saying “So help me God” at the end of the oath is a part of our country’s history and tradition. Removing it is taking away the acknowledgement of accountability outside oneself. Learn more at FirstLiberty.org/Briefing.
Democratic leadership in the House of Representatives recently decided to remove the phrase, “so help me God” from the end of the oath.
Witnesses appearing before Congress now end the oath that they will bear truthful witness before the body without invoking anything higher than themselves or the politicians they face. Call it a “Congressional pinky promise.”
Representative Steve Cohen told the New York Times, “I think God belongs in religious institutions: in temple, in church, in cathedral, in mosque — but not in Congress.”
George Washington tagged the phrase “so help me God” to the end of his initial oath of office on the balcony of Federal Hall in New York City. The tradition stuck and eventually became part of federal law in 1966.
But, beyond history and tradition, acknowledging accountability outside oneself, or the men and women assembled on the dais of a congressional hearing room, is important in our republican democracy. In other words, the use of the phrase “so help me God” acknowledges there is something to which each of us are accountable beyond ourselves and beyond government.
When we proudly reject these limitations upon our authority, we assert ourselves as an authority unto ourselves.
Federal policy states that their research and education grants must comply with all Federal law, regulations, and policies. Yale is receiving federal grants, so their discrimination of religion is violating federal policy. Learn more at FirstLiberty.org/Briefing.
When a student group demanded that Yale Law School end financial assistance to students choosing to intern or work for faith-based organizations, Yale complied. Now, they’re under investigation.
Yale University’s endowment is $29.4 billion. Yet, it receives in excess of $480millionin federal grants and contracts. As a private institution, Yale is entitled to discriminate on the basis of religion; however, under federal policy, federal contractors and grant recipients are not.
Now, Senator Ted Cruz, chairing the Senate Judiciary Committee’s Subcommittee on the Constitution, has opened an investigation. The question is whether Yale’s new policy runs afoul of President Trump’s Executive Order designed to improve “Free Inquiry, Transparency, and Accountability at Colleges and Universities.”
According to the EO, the various federal agencies administering grants and contracts to the nation’s top institutions of higher learning are to, “take appropriate steps . . . to ensure institutions that receive Federal research or education grants promote free inquiry, including through compliance with all applicable Federal laws, regulations, and policies.”
Yale Law School’s policy of “no stipends for religious work” violates this policy. Taxpayers should not subsidize that decision with a half billiondollars in aid. Religious organizations provide tremendous value to the citizens of this country. Yale’s policy treats them as a scourge.
The San Antonio City Council promises no discrimination, however they removed Chick-fil-A from the airport for being closed on Sundays. The city cannot violate the First Amendment that protects citizens from religious discrimination. Learn more at FirstLiberty.org/Briefing.
You probably know by now that the City Council of San Antonio, Texas decided to remove Chick-fil-A from its airport. That is, as a part of a multi-million dollar renovation of the airport, Chick-fil-A had won the bid to have a store.
But, the city council decided that, because its owners gave money to organizations like the Salvation Army, Chick-fil-A could no longer be a part of their airport.
Of course, the mayor denies that there was any religious discrimination involved. Instead, he blamed it on the fact that Chick-fil-A—which makes more per store than Subway, Starbucks, and McDonald’s combined—is closed on Sunday.
First Liberty Institute sent a letter to the U.S. Department of Transportation asking for an investigation into San Antonio’s decision. Recently, the Federal Aviation Administration announced that they have opened the investigation we asked for, looking into whether San Antonio’s actions violate promises of nondiscrimination they made in seeking millions of dollars in federal grants for the airport renovation.
The San Antonio City Council may spend its taxpayer dollars as its citizens will tolerate. However, it cannot do so in a way that brazenly violates the First Amendment to the U.S. Constitution and Federal law. After all, federal taxpayers should not be required to subsidize bigotry against religion.
The HOA told the Morris Family they were not able to display their Christmas decorations on the basis of religion. This violates the Fair Housing Act which ensures no religious discrimination. Learn more at FirstLiberty.org/Briefing.
Jeremy Morris likes to decorate for Christmas. Actually, that’s underselling it by quite a bit. Jeremy Morris, and his wife Kristy, decorate nearly every inch of their home with Christmas lights.
The display in northern Idaho became such a hit at Christmas time, they decided to make it a community event. When folks would stop by to see the display, they would invite them onto their driveway for hot chocolate, a picture with Santa, and even an opportunity to share with them the Biblical story of Christmas.
When the Morris’s decided to move into a new neighborhood, they looked at the homeowner’s association’s covenants and didn’t see any problem with the display. Still, wanting to be good neighbors, they gave the HOA a heads up. That’s when things took a turn.
The HOA explained in a letter that “some of our residents are non-Christians or of another faith,” noting that they were concerned for the “problems that could bring up.”
So, on the basis of religion, they told them they could not decorate their house at Christmas—even though houses in the neighborhood are decorated for Halloween.
So, Jeremy filed a lawsuit and a jury determined that the HOA violated the Fair Housing Act, engaging in religious discrimination. But, soon after, a federal judge overruled the jury’s verdict!
First Liberty has taken on the appeal, hoping to restore the jury’s verdict.
The United States national motto was declared by Congress as “In God We Trust”. This motto promotes patriotism and references the country’s religious heritage and is protected under the law. Learn more at FirstLiberty.org/Briefing.
The State of Mississippi has a new license plate, but not everyone is happy about it. To understand why, you need a little background.
In 1956, the U.S Congress declared “In God We Trust” to be the national motto. Since then, the Supreme Court of the United States has routinely acknowledged the important, very constitutional, place phrases like, “In God We Trust” have played in the history and heritage of our country. In fact, the Supreme Court has consistently indicated that the national motto plainly does not advance religion, it serves a secular purpose of promoting patriotism, and is simply a reference to our religious heritage.
So, now back to Mississippi’s license plates which have been redesigned to feature in the background the national motto. Someone with an axe to grind about the appearance of the letters “G,” “O,” and “D” in succession and in public sent a letter to the state’s revenue commissioner claiming the new design violates the Establishment Clause of the First Amendment.
Well, First Liberty sent its own letter. Not only did we explain that the license plates featuring the national motto is perfectly acceptable under the law, we offered to represent the state—for free—should anyone be foolish enough to actually file a lawsuit over it.
Hopefully no lawsuit comes and our services won’t be needed, but Mississippi is safe to include the national motto on its license plates.
Activists insist that elected officials praying in public violates the Establishment Clause. However, the Supreme Court has ruled that all elected officials are allowed to pray if they please before public meetings. Learn more at Firstliberty.org/Briefing.
It’s easy to misunderstand the law when it’s confusing, but not when there are multiple decisions on the topic.
In 1983, the U.S. Supreme Court concluded that a paid legislative chaplain is perfectly permissible under the constitution. Then, in 2014, in Town of Greece v. Galloway, the court said those prayers could even be sectarian without violating the Establishment Clause.
But, still activists question the practice. In Mt. Sterling, Ohio, village councilmembers want to start their meetings with prayer. But, activists insist that might be “chipping away at the Establishment Clause.”
That’s hard to imagine, given that not only has the U.S. Supreme Court twice said that legislative prayers do not violate the Establishment Clause, the U.S. Court of Appeals for the Sixth Circuit said in the 2017 decision Bormuth v. County of Jackson that those sectarian prayers can be offered by the lawmakers themselves!
As Judge Sutton wrote, concurring in the en banc decision of the Sixth Circuit, “the United States Constitution does not tell federal judges to hover over each town hall meeting in the country like a helicopter parent, scolding/revising/okaying the content of this legislative prayer or that one.”
First Liberty Institute represented the County of Jackson in that case because we believe that all Americans—even elected officials—should be free to pray (or not) before public meetings and according to their own conscience.
Taking offense does not render a lawsuit, and this is supported by the Supreme Court of the United States. Letters of offense due to religion can be ignored because the law does not exist to resolve offense. Learn more at FirstLiberty.org/Briefing.
Lawsuits exist to redress actual injury. But, it seems that some activists think lawsuits exist to resolve offense.
You hear it all the time. Recently, activists complained about the presence of a Bible at a VA Medical Clinic. A World War II veteran donated it. He was a prisoner of war and thought it appropriate that the VA display it as part of a POW/MIA remembrance table at the clinic. Right on cue, an angry activist sent a letter claiming offense, demanding that this historic Bible be removed.
First Liberty Institute sent a letter reassuring the VA that the display is perfectly legal. We reminded them that removing any Bible from such a display could not only dishonor the memory of the brave men remembered, it might actually be unlawful. Offense is not a cause of action. And the Supreme Court of the United States agrees.
In Town of Greece v. Galloway, Justice Kennedy, writing for the majority, explained:
Offense, however, does not equate to coercion. Adults often encounter speech they find disagreeable; and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views.
So, if you ever get a threatening letter that is based entirely upon someone being offended by the presence of a religious item or symbol, just ignore it.
Just how far must an employer go to accommodate a person’s religious belief at work? Learn more at FirstLiberty.org/Briefing.
Just how far must an employer go to accommodate someone’s religion at work? That’s a question being presented to the Supreme Court of the United States in Patterson v. Walgreens.
Darrell Patterson worked for the drugstore which promoted him to be a trainer of customer-care representatives. The company scheduled him to work on a Saturday, which interfered with his observance of the Sabbath as a Seventh Day Adventist. The company refused to let him swap shifts with a colleague working the same job, but offered to return him to his previous position, which Patterson argues would be a demotion. He refused and Walgreens fired Patterson.
The case explores whether a company must offer an accommodation to an employee if doing so will cause undue hardship. The current definition of “undue hardship” means something more than a “de minimis cost.” That’s a fancy way of saying that an undue hardship is trifling, minimal, or so insignificant that it can be ignored.
Patterson’s case has enormous potential to resolve a number of questions left unresolved by the lower courts. Employers and employees both benefit from such clarity. While employers should respect the religious conscience of its employees, the law does not require them to bend over backwards to do so. Still, employers should probably err on accommodating their employee’s religious beliefs more rather than less.
No one likes a test, especially one based on one’s character or religious belief, and no one should be forced to pass a religious test for office. But does Article VI apply to the states? Learn more at FirstLiberty.org/Briefing.
No one likes a test. At least not the kind that are unfair, meant as a pass/fail standard upon the character of a person.
That is why the Framers of the United States Constitution included a prohibition on a religious test for office in Article VI of the U.S. Constitution. But, did that federal prohibition apply to the states?
That is a question presented by Roy Torcaso to the Supreme Court of the United States. Torcaso, a professed atheist, wished to be a notary public in the State of Maryland, but could not declare his belief in God, as required by the Maryland Constitution.
Justice Hugo Black explained in Torcaso v. Watkins that the prohibition on religious tests for office in the U.S. Constitution was to be extended to state constitutions as well. He wrote, “neither a State nor the Federal Government can constitutionally force a person ‘to profess a belief or disbelief in any religion.’"
That is similar to what James Madison wrote in Federalist 52, where he explains that “the door of this part of the Federal Government, is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith.”
In other words, you don’t have to pass a religious test to qualify for public office in America.
Coach Kennedy, a high school football coach in Washington, was fired for taking a knee and saying a silent prayer after football games. First Liberty fought this case all the way to the Supreme Court and despite the troubling decision, they declined to review his case. Learn more at FirstLiberty.org/Briefing.
On January 22, 2019, the Supreme Court of the United States denied Coach Joe Kennedy’s petition to review his case. That’s a setback, but one with a silver lining.
Justice Samuel Alito, writing for Justices Thomas, Gorsuch, and Kavanaugh, issued a statement accompanying the denial. In one part, Justice Alito explained that the court requires additional information that further litigation should supply. In another, he criticized the Ninth Circuit’s decision, characterizing it as “troubling.”
But then the Justices noted that the petition rested solely on a free speech claim, and not a claim under the First Amendment’s Free Exercise Clause. As he explained, that is likely “due to certain decisions of this Court,” namely the 1990 decision of Employment Division v. Smith. Justice Alito observed that the effect of that decision has been to “drastically cut back on the protection provided by the Free Exercise Clause.”
As Coach Kennedy’s attorneys, First Liberty Institute is eager to return to the District Court, answer the questions the justices raised in their statement, and give the Court another opportunity to protect the right of every American to engage in private religious expression, including praying in public, without fear of getting fired.
Thankfully, the Supreme Court seems to understand that banning all coaches from praying just because they can be seen is wrong and contradicts the Constitution.
New York Timesauthor, Linda Greenhouse reveals how much of the mainstream media really views the fight for the Bladensburg World War I Veterans Memorial. Learn more at FirstLiberty.org/Briefing.
It is always interesting to read how the mainstream media views things like the Bladensburg World War I Veterans Memorial. Linda Greenhouse of the New York Timesrecently authored a lengthy commentary. Her conclusion? That the folks trying to destroy the memorial are going to lose, but that’s about it for the good news.
According to Greenhouse, a growing faction of conservative Justices of the Supreme Court that are increasingly committed to interpreting the First Amendment’s Establishment Clause as permitting the display of religious symbols on public property and the Free Exercise Clause as providing, in her words, “robust protection for believers.”
To Greenhouse, this is not good because, she says, “the heart and soul of a diverse country . . . is going in one direction while the Supreme Court . . . is hurtling in the other, toward a destination fraught with uncertainty and danger.”
But, that is factually untrue. For one thing, according to recent polling 80% of Americans agree that memorials using religious imagery to remember our war dead is perfectly reasonable. Those are the real“heart and soul” of this country.
Removing religious imagery from public display does not make us more diverse. It sends a message contrary to the constitution’s promise that religion in American is to be respected in personal and public life.
Teachers are supposed to teach freedom of speech and religion, not censor it. But both teachers and school officials continue to demonstrate their fear of anything resembling an endorsement of religion. Learn more at FirstLiberty.org/Briefing.
On Ash Wednesday, it is common to see individuals bearing the mark of the cross on their foreheads, part of a religious tradition reminding the faithful of their own sinfulness and the atoning work of Christ on the cross.
Evidently not everyone understands that. William McLeod, a fourth grader at Valley View Elementary School in Utah, is Catholic. He showed up to school on Wednesday morning with the traditional mark of the cross on his forehead.
His teacher took him aside, handed him a wet cloth, and instructed him to wash his forehead clean. He attempted to explain the reason for the mark, but to no avail. William spent the rest of the school day embarrassed and upset. Later, school administrators responded to complaints by his family and the teacher apologized.
Students are free to exercise their faith—even at school—so long as doing so does not interfere with the educational mission of the school. A harmless, silent mark of ash on one’s forehead does nothing to prevent such instruction. Situations like this show how afraid school officials have become of any display of religion in school.
As one court wisely put it, in situations like these, “The school’s proper response is to educate the audience rather than squelch the speaker.”
In other words, they should teach, not censor.
Jack Phillips’ case may be over but the Supreme Court has the opportunity to make a lasting impact through the case of ‘Sweetcakes by Melissa.” Learn more at FirstLiberty.org/Briefing.
Jack Phillips’ long ordeal appears to be over. But, as Justice Kennedy wrote for the majority in Jack’s case, “The outcome of cases like this in other circumstances must await further elaboration in the courts.”
That includes First Liberty’s clients, Aaron and Melissa Klein.
The State of Oregon shut down Aaron and Melissa Klein’s “Sweetcakes by Melissa,” penalizing them $135,000 for the simple act of declining to create a custom wedding cake for a same-sex wedding ceremony. Oregon rests all of its actions on a law that theoretically applies generally to everyone and, on its face, treats religious exercise neutrally.
That position is grounded in the 1990 decision of the U.S. Supreme Court called Employment Division v. Smith. The product of the late-Justice Antonin Scalia, the majority opinion in Employment Division has been roundly criticized through the years.
The danger of Employment Divisionis that it allows laws that doburden one of the key provisions of the First Amendment—namely, the free exercise of religion—to escape meaningful judicial review. Aaron and Melissa’s case provides the Court an opportunity to correct that.
Jack Phillips’ case left American business owners wondering whether the government can prescribe what they believe and force them to confess accordingly. The Constitution prohibits government officials, high or petty, from compelling small business owners to create a message contrary to their religious beliefs.
Based on an executive order signed by President Trump in 2017 that promotes free speech and religious liberty, Betsy DeVos and the Department of Education recently announced it would no longer enforce a statute preventing religious organizations from providing education services to students. Learn more at FirstLiberty.org/Briefing.
This episode really begins back in May of 2017. That’s when President Donald Trump, just three months into his presidency, walked to the Rose Garden of the White House and signed the Executive Order Promoting Free Speech and Religious Liberty.
That Executive Order commissioned a memo offering guidance to the executive branch by the Attorney General of the United States, then Jeff Sessions. Several months later, the Department of Justice issued that guidance and, about a year later, held a summit on religious liberty at DOJ headquarters, announcing the formation of a religious liberty task force.
That task force provided on-the-ground guidance to executive agencies like the Department of Education, which brings us to the point of this episode.
Secretary Betsy DeVos recently sent a letter to Congress explaining that the Department of Education would no longer enforce a federal statute prohibiting religious organizations from providing educational services to students. DeVos noted that the decision by the Supreme Court of the United States in Trinity Lutheran v. Comer, as explained by the DOJ in former Attorney General Sessions’ memo, requires federal law to permit religious organizations to participate at the same level as secular organizations.
I agree with Secretary DeVos who said, “Those seeking to provide high-quality educational services to students and teachers should not be discriminated against simply based on the religious character of their organization.”
In March 2019, the Supreme Court denied cert of a case that if left at its current status, would bar religious organizations from a general historical preservation fund program. Learn more at FirstLiberty.org/Briefing.
The white-washed churches of New England, often contrasted against the reds and yellows of fall foliage, have captured the imagination of painters and photographers everywhere. But, not the Supreme Court of the United States.
In March of 2019, the Justices declined to review an appeal from New Jersey Supreme Court case finding the funding of grants for the historic preservation of these churches unconstitutional. Such grants allowed local organizations to apply for a grant to repair things like shingles, paint, or mechanical work, but not hymn books, altar pieces, or Sunday school lessons.
At least a few Justices viewed the denial of these funds to churches as religious discrimination. A perplexed, and unequivocal, Justice Brett Kavanaugh, writing for Justices Alito and Gorsuch, said in a statement, “Barring religious organizations because they are religious from a general historic preservation grants program is pure discrimination against religion.”
Indeed, it is difficult to conceive of more unvarnished religious discrimination. The government deciding that religious organizations are ineligible to participate equally in the public square merely because they are religious is precisely the type of religious discrimination the Founders were trying to prevent. Justice Kavanaugh is absolutely right in declaring this to be “pure discrimination against religion.”
No state official should discriminate against people of faith, or the religious organizations they operate, based merely on their religious status.