The Freedom From Religion Foundation condemns the unconstitutional, possibly corrupt handout of taxpayer funds to churches, including churches run by some of President Trump’s closest allies, under the Paycheck Protection Program. New data released by the Small Business Administration on the program’s forgivable loans shows that more than 12,400 American churches took in billions of taxpayer dollars (while some were helping to spread the pandemic).
Trump’s Evangelical Advisory Board reaped substantial benefits. The First Baptist Church, run by Robert Jeffress, a vocal supporter of Trump’s Christian Nationalist policies, took in between $2 million and $5 million. Other members of the board fed at the government trough, many also receiving $2 million–$5 million, including: Jack Graham (Prestonwood Christian Academy); David Jeremiah (Shadow Mountain Community Church); Greg Laurie (Harvest Christian Fellowship), and Tom Mullins (Christ Fellowship Church). Still others connected to the board obtained smaller amounts, such as Paula White (City of Destiny), whose church received at least $150,000.
And yet other churches closely aligned with Trump also got forgivable loans of $2 million or more, including King Jesus International Ministry in Miami, led by Trump ally Guillermo Maldonado. It is difficult to determine with specificity how much taxpayers were forced to give to church leaders personally connected to Trump, but the figure is at least close to $50 million.
FFRF analysis, made possible by an initial search through the data for houses of worship (conducted by Professor Ryan Burge and posted publicly) reveals that U.S. churches took in at least $6 billion of taxpayer funds, possibly much more, in the Paycheck Protection Program. FFRF sounded the alarm in May about precisely this problem with the program’s funding, and has been vigorously investigating it ever since.
“These numbers are staggering,” says FFRF Co-President Annie Laurie Gaylor. “It’s everything the framers of our godless Constitution dreaded: the government wielding its taxing power to force citizens to support churches and pay preachers’ salaries. Where public money goes, public accountability should follow, but that is not the case with church finances.”
“One of the real dangers with unconstitutionally sending taxpayer funds to churches is that they become beholden to politicians,” adds FFRF Co-President Dan Barker. “This was one of the harms our Founders worried about.”
Roman Catholic churches and dioceses also dominated the list of recipients. For instance, the Diocese of Pittsburgh took in between $2 million and $5 million. That diocese was infamously featured in the Pennsylvania grand jury report on abuse and rape of minors involving 90-plus priests, some of whom marked victims with gold cross necklaces so other priests could more easily spot them. The church received its taxpayer infusion 20 months (to the day) after the grand jury report was finalized.
The Small Business Administration loan numbers were not specific, but were released in five sets of ranges: $150,000–$300,000; $350,000–$1 million; $1 million–$2 million; $2 million–$5 million; $5 million–$10 million.
The many reports and news stories about churches and worshippers acting as superspreaders of the coronavirus, with a number of them suing the government for preferential treatment from stay-at-home orders, make this gross violation of the principle of separation between state and church all the more appalling. As FFRF has documented, scientific data shows that churches have often been responsible for spreading the virus.
FFRF intends to continue its investigation into this constitutional violation and the appearance of political cronyism. This is just the tip of an unconstitutional iceberg.
Under the government’s Paycheck Protection Program, at least two dozen religious organizations received the highest tier of funds (between $5 million and $10 million), according to Religion News Service.
Of those dozens, two megachurches — Willow Creek Community Church near Chicago and Life.Church in Edmond, Okla. — were included.
“The notion of separation of church and state is dead, and the PPP loan program is the evidence of that,” Micah Schwartzman, a professor at the University of Virginia School of Law, told Reuters. “The money is going to fund core activities of many organizations, including religious organizations. That’s something we’ve not seen before.”
Religion News Service reported that several Protestant denominations, such as the Evangelical Lutheran Church in America and the Presbyterian Church, also received between $5 million and $10 million, as did a dozen Roman Catholic entities and at least two Jewish organizations — the Jewish United Fund of Metropolitan Chicago and the Union of Orthodox Jewish Congregations. Joseph Kushner Hebrew Academy in New Jersey, which is named after President Trump’s son-in-law and adviser Jared Kushner’s grandfather, got a loan in the range of $1 million to $2 million.
Reuters reported that the Roman Catholic Diocese of San Bernardino, Calif., received between $5 million and $10 million, despite publicly acknowledging its role in decades of sexual abuse.
And Ken Ham’s infamous Ark Encounter in Kentucky, the $100 million boondoggle meant to prove that the bible is literally true, has taken in between $1 million and $2 million through the PPP.
Most of the churches (70 percent) listed in the data received between $150,000 and $300,000, according to Ryan Burge, an assistant professor of political science at Eastern Illinois University who examined the data.
But highly controversial figures have also received aid, including televangelists Jimmy Swaggart, Jim Bakker and Peter Popoff.
Swaggart, who leads the Family Worship Center in Louisiana, was defrocked by the Pentecostal Assemblies of God in the early 1990s after being implicated in sex scandals. His church got between $2 million and $5 million.
Bakker, of Morningside Church Productions in Missouri, was also defrocked by the Assemblies of God after a highly publicized sexual encounter with a church secretary and was imprisoned in the 1990s on dozens of fraud and conspiracy charges surrounding his church fundraising. Morningside received between $350,000 and $1 million.
Popoff, of People United for Christ in California, was exposed for using an earpiece to receive radio messages from his wife so he could pretend to know personal details about his audience members during religious services. His church received between $350,000 and $1 million.
Between 12,000 and 13,000 of the 17,000 Catholic churches in the United States also applied for PPP loans, CBS News reports. The larger the church, the more likely it was to have applied for federal aid. Half of the pastors at churches that average 200 or more attendees said their church applied for a loan, compared to only a third of churches that average fewer than 50 attendees.
Pete Evans, an investigator of religious fraud for the Trinity Foundation, said he had expected controversial churches would receive the aid.
“You’re getting free money, and that’s what these guys are good at,” Evans told The Guardian.
Note: As a qualifying secular 501(c)(3) nonprofit, FFRF was eligible for and received a forgivable loan under the PPP of less than half a million dollars. Unlike churches, FFRF discloses its finances to the government and the public.
This article appeared in The New York Times on June 8 and is reprinted with permission.
By Nelson Tebbe,
and Richard Schragger
The First Amendment’s Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” This has long been thought to prohibit direct government support for religion. The contours of that idea have been contested, and they have contracted over time. But the commitment to some form of separation of church and state has endured.
Yet in response to the coronavirus pandemic, Congress has approved a huge payout to small businesses and nonprofits that allows funding for clergy salaries — a direct payment of tax dollars for a core religious use that would have been unthinkable in previous eras.
Thousands of churches applied for help under the Paycheck Protection Program, and many have had their funding approved. We are witnessing an important moment in the nation’s constitutional history: the quiet demise of the already ailing separation of church and state.
In 1785, James Madison, the chief architect of the Establishment Clause, argued against a Virginia bill that would have paid for clergy salaries with tax dollars, even though it would have supported a relatively wide range of denominations. Madison’s essay making that case was once widely thought to provide the best historical evidence for the meaning of the clause. He believed it was a violation of religious freedom to “force a citizen to contribute three pence only of his property” to pay for the salaries of clergy, a mandate he saw as an “establishment” of religion by the government. Thomas Jefferson made much the same point in his religious freedom bill, which became the law in Virginia.
One hundred and sixty-two years later, in 1947, the Supreme Court evoked Madison’s essay in a seminal Establishment Clause decision, asserting that the clause “means at least this:” That “no tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.”
In that decision, the court in fact upheld a New Jersey program that supported the transportation of students to all schools, including religious schools. But it emphasized that transportation services, like ordinary police and fire protection, were “so separate and so indisputably marked off from the religious function.”
And that was the point: The New Jersey program, unlike the Paycheck Protection Program that helps congregations pay their clergy members, did not directly support a religious mission. It merely provided students attending public and religious schools equal access to affordable transportation.
The Supreme Court reiterated in 2000 that the Establishment Clause prohibits direct funding of religious activities. “Actual diversion” of public support to religious uses “is constitutionally impermissible,” Justice Sandra Day O’Connor wrote. And concerns are heightened when government aid takes the form of cash payments made directly to religious organizations, she emphasized.
Congress’s Paycheck Protection Program flouts this rule. As applied, the program explicitly extends to nonprofits, including churches — with no restrictions on payment of clergy salaries. Although the aid initially takes the form of a loan, it is largely forgivable if the recipient maintains its payroll size for a sufficient period.
The Small Business Administration waived its normal rules prohibiting aid for religious activities. Remarkably, it relied implicitly but unmistakably on a reading of the First Amendment that not only permits cash aid to houses of worship for core religious activities, but requires the government to pay for those activities.
The Paycheck Protection Program violates the constitutional rule requiring the separation of church and state, and it does so on an enormous scale. Nine thousand Catholic parishes have received loans so far. The Archdiocese of Louisville, for example, was awarded more than $20 million across 84 entities, for an average of $238,000 each. One church, St. James parish and school in Elizabethtown, Ky., received loans totaling $439,800.
Moreover, a national survey found that 40 percent of all Protestant churches had applied for government funds and that 59 percent of those applications were approved. The Jewish Federations of North America reported in late April that 575 organizations had received loans, with a median of $250,000 each and a total of $312 million. Recipients included more than 200 synagogues. With 445 entities awaiting word on their applications, the J.F.N.A. estimated that Jewish nonprofits could receive $500 million from the program.
Of course, the rule laid down by Justice O’Connor 20 years ago is vulnerable to revision by the current court, with its conservative majority. At least five justices have signed opinions indicating a willingness to allow public aid that is administered neutrally with respect to religion and that is secular in content. The court is soon expected to decide a funding case in which it has an opportunity to go further and require religious schools to be included in a school choice program. Almost certainly, the court led by Chief Justice John Roberts will continue its campaign to revolutionize First Amendment law so that it favors religious actors.
What is remarkable is not that the federal government is spending tax dollars for religious uses in a way not seen before, or even that it is doing so on a vast scale. It’s how little pushback this program has elicited. With respect to public funding of religion, the separation of church and state has all but disappeared — without a bang or even a whimper.
More than likely, this tacit acceptance reflects compassion for the small businesses and nonprofits struggling during the pandemic. That concern is entirely understandable, especially given that houses of worship, like many other organizations, have been burdened by state public health restrictions. But as Justice David Souter once observed, “constitutional lines have to be drawn, and on one side of every one of them is an otherwise sympathetic case that provokes impatience with the Constitution and with the line.”
Constitutional interpretations forged during times of crisis tend to persist after the danger has eased. That is especially true in this context, where the separation of church and state had already been under sustained attack, making the foundational doctrine all the more vulnerable.
In 2002, the Supreme Court ruled that states could indirectly fund religious schools through a voucher program. More recently, the court held that a state cannot exclude religious schools from a grant program for school playgrounds, even when the schools are owned and operated by churches.
Now the core constitutional rule against using taxpayer dollars to pay clergy is slipping away in face of the coronavirus crisis. That should give us pause. The obliteration by Congress and President Trump of a basic principle of separation is a significant development in American constitutional culture.
We should take a moment to reflect on what has happened and to reckon with a new constitutional structure in which the government supports the central missions of religious organizations on a large scale. The entanglement of church and state will bring predictable conflicts: efforts by religious groups to control government and by the government to control religious groups. The risk of government favoritism for some religions over others, and for religion over nonreligion, will be heightened.
In other words, the new church-state paradigm will raise the very dangers that Madison and Jefferson warned of when they articulated principles of religious freedom for our country.
Nelson Tebbe is a professor at Cornell Law School. Micah Schwartzman and Richard Schragger are professors at the University of Virginia School of Law.
FFRF commends Mississippi lawmakers for finally taking action to remove the racist Confederate Battle Flag from the state flag. Mississippi’s flag was indefensible when it was created in 1894 — and remains an unconscionable affront and threat to Black Americans.
Voters will eventually choose the new flag design. Unfortunately, state lawmakers have decided that every possible design must include the divisive religious phrase, “In God We Trust.” This decision was rammed through the state Legislature on a Sunday afternoon, allowing virtually no opportunity for public input.
In case there was any doubt which god lawmakers intend the phrase to refer to, Mississippi House Speaker Philip Gunn reportedly celebrated the unusual Sunday passage as occurring “on the Lord’s day.” In addition to excluding all nonbelievers in Mississippi, Gunn has made it clear that only those who share his personal version of Christian belief will be represented by the state flag.
“In God We Trust” is a phrase that is intimately entwined with slavery and segregation, making it a particularly ironic choice to replace the Confederate Battle Flag. The phrase was first added to one coin toward the end of the Civil War at the urging of a preacher raging at the “ignominy of heathens,” and was belatedly adopted as the national motto and added to paper currency in the 1950s — the height of segregation and the Red Scare.
Mississippi typically ranks as one of the most religious states, but even so, about 17 percent of Mississippians are not Christians, according to a 2014 Pew study. In other words, Mississippi is once again choosing to exclude citizens from its flag.
Instead of this divisive religious phrase, Mississippians might consider the original national motto for the overwhelming part of U.S. history, E Pluribus Unum (“From many [come] one”). E Pluribus Unum would send the message that Mississippi has truly learned from its past mistakes, replacing exclusion with inclusion and seeking to heal and grow as a state.
The Freedom From Religion Foundation has submitted a brief in solidarity with the state of California in response to churches challenging pandemic social prohibitory measures.
“The suit, Gish v. Newsom, says that religious services may not lawfully be restricted,” reports a California TV station. “The lawsuit says that the state and some counties have given exemptions to many businesses so that they may remain open, but has forced churches to halt in-person worship services.”
Churches suing first claimed they were discriminated against because certain essential services such as grocery stores are open, a fallacious contention, as FFRF points out in its amicus brief filed before the 9th U.S. Circuit Court of Appeals.
“None of California’s public health orders targets any activity or organization for unfavorable treatment for having a religious character,” the brief states. “Initial restrictions on gatherings applied not only to churches, but to movie theaters, concert halls and other secular locations.”
Stay-at-home orders regulate conduct, rather than religious status, FFRF emphasizes: “If anything, the current order actually favors churches because it allows churches to gather now, but similarly situated secular gatherings (such as concerts and sporting events) are not permitted until later phases of the re-opening.”
The new argument raised by church litigants — that the rule limiting worship service attendance to the lesser of 25 percent capacity or 100 people targets religion — is not true. The rule also applies to similarly situated secular gatherings.
And the central argument of the case is misbegotten, the brief underscores.
“California’s public health orders do not target religious activity for unfavorable treatment,” says FFRF’s brief. “Parity is not persecution and equality is not discrimination. Whatever religious freedom argument the plaintiffs are attempting to make, it must fail because they are treated equally.”
Churches asking for religious exemptions to public health orders are not simply asking for a right to gather, they are also asking for a right to risk the health and lives of every other member of the community and country, FFRF asserts. California doesn’t need to look beyond her borders to understand the unique danger posed by in-person worship gatherings during a pandemic: Sacramento County, Mendocino County and Butte County have traced infection clusters back to religious gatherings, including church services that violated the state’s original public health order. For this reason, Chief Justice John Roberts recently observed that California’s orders “should not be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence, and expertise to assess public health.”
The plaintiffs’ claims are without merit, FFRF’s brief concludes.
“All 40 million Californians are shouldering the same burden,” the brief ends. “The religious nature of worship gatherings does not entitle plaintiffs to special treatment.”
FFRF Attorney Andrew L. Seidel was counsel of record, with FFRF Legal Fellow Dante Harootunian and FFRF Attorney Patrick C. Elliott writing the brief.
FFRF is decrying the unwarranted expansion of a religious exemption by the U.S. Supreme Court as a blow to the rights of employees everywhere.
“The Supreme Court is allowing religious employers a broad opportunity to discriminate against employees. Their workers now will have less protection under civil rights laws,” says Dan Barker, FFRF co-president.
The consolidated cases of Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel dealt with the “ministerial exception” to civil rights laws, which allow religious organizations to fire their “ministerial” employees for any reason — even because of race, sex, religion, age, national origin, etc. The July 8 ruling, which dealt with the firing of two teachers at different Catholic schools, harmfully expands this exception under the guise of the religion clauses of the First Amendment.
“When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow,” Justice Samuel Alito writes for the 7-2 majority opinion.
In a strong dissent, Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, points out the potentially dire societal consequences of the ruling.
“The court is not only wrong on the facts, but its error also risks upending antidiscrimination protections for many employees of religious entities,” she states. “Recently, this court has lamented a perceived ‘discrimination against religion.’ (Espinoza v. Montana Dept. of Revenue) Yet here it swings the pendulum in the extreme opposite direction, permitting religious entities to discriminate widely and with impunity for reasons wholly divorced from religious beliefs. The inherent injustice in the court’s conclusion will be impossible to ignore for long, particularly in a pluralistic society like ours.”
In an amicus brief filed before the court in March, FFRF had asked the high court to reject such overbroad firing practices.
FFRF’s brief was unique in warning the court that adopting the test preferred by the defendants would have an immediate, devastating impact on the rights of more than 1 million health-care employees — a point that is even more pertinent now than when the brief was filed.
A Georgia school district has stopped the Gideons from distributing bibles in a number of schools after FFRF raised several objections.
Many parents reported to FFRF that Ebenezer Elementary School and Marlow Elementary School in the Effingham County Schools system allowed Gideons to enter classrooms, preach to students about the significance of the bible, and distribute bibles to young students, including our complainants’ children. Every child was reportedly given a bible (although they were told that they could return it to the teacher if they didn’t want it).
Gideons International is an association of Christian business and professional men who are members of Protestant/evangelical churches “dedicated to telling people about Jesus . . . by providing Bibles and New Testaments.” Their website openly refers to “students in the fifth grade and above” as prime targets.
It is unconstitutional for public school districts to permit the Gideon Society to distribute bibles as part of the public school day, FFRF Attorney Chris Line emphasized to Effingham County Schools officials.
FFRF’s admonitions had their effect.
“The Board of Education has authorized me to assure that outside adults, including the Gideons, will not be allowed into the classrooms of any of the schools in the school district to proselytize or distribute religious materials,” the school system’s legal counsel recently responded.
National Day of Prayer ended in Florida town
The town of Callahan, Fla. will no longer sponsor a National Day of Prayer.
The town reportedly had been sponsoring and organizing a National Day of Prayer event annually. This year’s event was held virtually and posted on the city of Callahan’s official website. The video was also recorded in the Town Council meeting room.
FFRF Staff Attorney Chris Line wrote to Callahan Mayor Marty Fontes informing him to refrain from further organization and promotion of religious events, stop having government employees organize the event and stop advertising the event on the official Callahan website.
The town of Callahan’s attorney sent a letter of response informing FFRF that it does not plan to sponsor the National Day of Prayer going forward.
Religious reference removed from email
A staff member at the Protected Species Division of NOAA Fisheries, a federal wildlife conservation organization, has removed a religious reference from its email signature.
FFRF was informed that a government employee in the division was including two bible verses in her email signature on emails sent through her official government email address to members of the public.
FFRF Staff Attorney Chris Line wrote to Acting Division Director David Bernhart urging him to direct employees to remove religious references from official emails, so as not to create the impression of official endorsement of Christianity.
Bernhart informed FFRF in an email response that the division has established a standardized template for employees to use for their email signatures, free of religious references.
Bible verse taken off Michigan police website
A bible verse was removed from the DeWitt Township Police Department website.
The department had been displaying a verse from the bible, John 15:13, on a page memorializing a fallen officer. The verse read, “Greater love has no one than this, than to lay down one’s life for his friends.”
Former FFRF Legal Fellow Colin McNamara wrote to the department requesting that the verse be removed, which the sheriff’s office has since done.
Teacher to stop reading religious stories to class
A teacher in Fairview Area Schools has been instructed to cease reading religious stories to her class.
A district parent informed FFRF that an elementary school music teacher read her class a story in which a man causes a blind girl to see again by praying and which ends with a moral that “all God’s children should love one another.”
FFRF Legal Fellow Dante Harootunian wrote to the district superintendent, asking that Fairview remove this story from its curriculum and remind staff of their obligations under the Establishment Clause to remain neutral on matters of religion.
Superintendent Bill Lake assured FFRF in a letter of response that he met with the teacher involved and that this story is not a part of district curriculum. This story or any with similarly religious messages will no longer be given to students in the future.
Minnesota district ends baccalaureate service
Independent School District 728 will make certain that staff are no longer involved in planning, organizing, supervising or carrying out a baccalaureate service in their capacity as district employees.
A district student reported that Rogers High School sponsored and promoted a baccalaureate ceremony that took place online last month. The ceremony was promoted on the school’s official Facebook page and an assistant principal and three teachers participated. The program for the ceremony clearly indicated that these staff members participated in their official capacity as representatives of the school.
FFRF Staff Attorney Chris Line wrote to Superintendent Daniel Bittman, informing him that the Establishment Clause prohibits public schools from sponsoring any type of religious practices, including baccalaureate services.
Bittman informed FFRF in a response email that the school district does not permit staff to have any involvement in programs like this one and that “no public resources may be used in planning, organizing, supervising or carrying out such a service.” Bittman added that this information will be part of the district’s back-to-school orientation with school administrators.
Good News Club gets bad news in North Carolina
District officials in Henderson County Public schools will address a religious club run by teachers at Hendersonville Elementary School.
A community member alerted FFRF that elementary school teachers were hosting a Good New Club, a self-proclaimed child evangelism fellowship whose mission is to “evangelize boys and girls with the gospel of the Lord Jesus Christ and establish (disciple) them in the Word of God and in a local church for Christian living.”
FFRF Legal Fellow Brendan Johnson wrote to Superintendent Bo Caldwell, requesting that the district cease allowing any Good News Clubs in its elementary schools, as such clubs violate the First Amendment.
The district’s attorney responded to FFRF with assurances that he will address the legal issues involved with this club with the district.
Oklahoma school takes down religious post
A religious post has been removed from Hinton Public Schools’ official social media page.
FFRF was informed that a Hinton High School coach recently posted a religious message on the football team’s official Facebook page. In this post, he explained that “in the Hinton Football Program, we want to live by a simple biblical principle ‘Love your neighbor as yourself.’” He continued, “We don’t all have the same life experiences but the bible doesn’t call us to love only those like us. It calls us to love everyone.”
FFRF Staff Attorney Chris Line wrote to Superintendent Marcy Derryberry pointing out that, while FFRF agrees with the sentiments of unity and togetherness that the coach promoted in his post, it is in violation of the Establishment Clause for teachers and coaches to endorse a religious message to students.
Derryberry sent a letter of response informing FFRF that the post has been deleted and that employees will be provided training to ensure that such behavior is not repeated. “Our coaching staff and employees have been directed not to utilize school resources or property to engage in religious lessons with students during athletics or at any time they are performing services for Hinton Public School District.”
Religious content to be removed from website
Religious content will be removed from a video on the Hutto (Texas) Independent School District website.
A local resident informed FFRF that the school posted a video of its Teacher of the Year award on its official Facebook account, which featured a district principal speaking to the awardee: “Scripture tells us that we all have different gifts according to the grace given to each of us,” the principal said. “Your gifts are the gifts of service and the gifts of teaching.”
FFRF Legal Fellow Brendan Johnson wrote to the district, informing it that in order to avoid Establishment Clause concerns, district personnel must not post religious messages to public social media pages on which they represent themselves using their job titles.
The district informed FFRF it is in the process of editing the video to remove the religious content.
Council prayer replaced with moment of silence
Prayer at Norfolk City Council meetings will be replaced with a moment of silence. A local religious leader representing Satanic Norfolk reportedly had their offer to give an invocation at a Norfolk City Council meeting rescinded after the city clerk learned the leader’s religious beliefs did not include belief in the bible. Every invocation at Norfolk’s city council meetings since at least 2017 has been a Christian one.
FFRF Legal Fellow Brendan Johnson wrote to Norfolk Mayor Kenneth Cooper, pointing out that singling out a religious denomination by denying them a chance to give an invocation, despite allowing similarly situated Christian leaders to offer invocations, amounts to a clear violation of the First Amendment. If a government entity like the City of Norfolk chooses to engage in prayer before its legislative meetings, FFRF pointed out, it may not constitutionally restrict opportunities to give invocations at faith traditions of which the city approves.
City Deputy Attorney Jack Cloud sent a letter of response, informing FFRF:
“After much thought and careful consideration, the city has suspended its practice of inviting community members to give legislative prayers or to engage in the practice of legislative prayer at all. The city now holds a moment of silence instead.”
The U.S. Supreme Court issued a historic ruling upholding civil rights protections for LGBTQ Americans.
In a 6-3 decision issued June 15 in Bostock v. Clayton Co. (with Justice Neil Gorsuch authoring the majority decision), the court declared that the existing federal ban on sex discrimination forbids employment discrimination against LGBTQ workers. The decision reads:
“An employer who fired an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
Justices Brett Kavanaugh and Samuel Alito (Justice Clarence Thomas joining) each issued a dissenting opinion.
Prior to this ruling, more than half of the United States had no laws protecting against employment discrimination based on sexual orientation or gender identity. Very often, the religious beliefs of employers have been used as justification for discrimination against LGBTQ employees. Aimee Stephens, a trans woman fired from her job at a funeral home and one of the plaintiffs at the center of today’s decision, was terminated because, her boss argued, it would violate “God’s commands” if he allowed Stephens “to deny her sex while acting as a representative of the organization.”
This decision encompasses three cases: Altitude Express Inc. v. Zarda, Bostock v. Clayton County and R.G. & G.R. Harris Funeral Homes v. EEOC. The court noted that each of the plaintiffs was a longtime employee fired shortly after revealing their transgender status — and for no other reason than that.
It’s hard to overstate the magnitude of this victory, given the clarity of the decision: “An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
The court’s reasoning stands in stark contrast to the Trump administration’s sustained attack across policy areas to deny civil rights protections to trans people, often citing the preservation of so-called “religious liberty” as its justification. On June 12, in the midst of a global pandemic, the Department of Health and Human Services finalized a rule erasing federal protections for trans patients against discrimination in health care.
Although the decision is a monumental victory for LGBTQ equality, the court failed to address a critical question: Can Christian employers claim a religious right to fire LGBTQ employees? The court didn’t answer that question. This makes the fight for state/church separation all the more vital. We at the Freedom From Religion Foundation recognize the struggle is far from over to ensure that religious dogma is no longer permitted to undermine the rights to full citizenship for LGBTQ Americans or individual liberty for any American.
The U.S. Supreme Court in its decision July 8 lamentably has blessed the Trump administration’s expansion of exceptions to contraceptive coverage for religious reasons.
In Trump v. Pennsylvania, and its companion case “Little Sisters,” a five-judge majority of the court ruled that the Trump administration may have a free hand in permitting employers and private universities to opt out, without notice, of the Affordable Care Act’s contraceptive mandate, which requires employers to offer preventive care, including prescription contraception for women. A district court judge ruled against the Trump administration’s move and issued a preliminary injunction against the rule coming into effect. That decision was upheld by a three-member panel of the 3rd U.S. Circuit Court of Appeals. A Catholic order of nuns, the Little Sisters of the Poor Saint Peter and Paul Home, was permitted to intervene in the case and argue that the mere act of signing an ACA waiver violates their religious freedom and the Catholic view that birth control is a sin.
The Supreme Court decided that the Trump administration had the authority to massively enlarge the contraceptive care exceptions and that its process for doing so was not procedurally improper.
“We hold that the Departments had the authority to provide exemptions from the regulatory contraceptive requirements for employers with religious and conscientious objections. We accordingly reverse the 3rd Circuit’s judgment and remand with instructions to dissolve the nationwide preliminary injunction,” writes Justice Clarence Thomas in his majority opinion that was joined by four other justices.
The majority found that the Affordable Care Act granted broad authority to the Health Resources and Services Administration “to define preventative care and screenings and to create the religious and moral exemptions.”
Justice Elena Kagan, joined by Justice Stephen Breyer, filed a concurring opinion that leaves some hope that the expanded contraceptive exemptions may not survive further review. The case was remanded for further proceedings, which will allow the states of Pennsylvania and New Jersey to show that the new exemptions were “arbitrary and capricious.” As noted by Kagan, “That issue is now ready for resolution, unaffected by today’s decision.” One concern raised by the parties is that the Trump administration rules provide exemptions to contraceptive coverage to publicly traded companies, which will be difficult to justify.
Justice Ruth Bader Ginsburg, joined by Justice Sonia Sotomayor, dissented out of a concern about women’s rights and the intent of the Affordable Care Act to guarantee comprehensive care.
“The original administrative regulation accommodating religious objections to contraception appropriately implemented the Affordable Care Act and the Religious Freedom Restoration Act consistent with Congress’ staunch determination to afford women employees equal access to preventive services, thereby advancing public health and welfare and women’s well-being,”
The Freedom From Religion Foundation is strongly disturbed by the majority judgment.
“This is a disheartening decision that will enable an attack on reproductive rights,” says FFRF Co-President Annie Laurie Gaylor. “Employers should not have free rein to deny women workers much-needed contraceptive care. This is discriminatory and unacceptable.”
FFRF had signed on to a brief before the court, as part of a diverse assortment of groups, contending that the Trump administration was breaching the First Amendment in allowing certain religion-based exemptions from required birth control coverage.
FFRF has also long advocated for the repeal of the Religious Freedom Restoration Act, which is what provides the underlying basis for the Supreme Court’s ruling today, and its ruling in the Hobby Lobby case. These decisions demonstrate the need for Congress to take action and to finally repeal this act.
FFRF thanks and welcomes it new Beyond After-Life Member, one After-Life Member and 16 Lifetime members.
FFRF’s new Beyond After-Life Member is Jerry Walker. Beyond After-Life is a membership category of $10,000.
New After-Life Member is Daniel Kozloff. This membership designation is for donations of $5,000.
Our 16 newest $1,000 Lifetime Members are: James Balko, Lisa C. D’Andrea, Sue Goldwomon, Bill Hall, Thomas J. Hannie Jr., Chris Lampe, Marissa Langseth, Joan E. Lavier, Ronald Mallory, Larry Wayne McHam, Beverly Price, Mark Robinow, Howard Saltzman, Edward Sorel, Nancy Travis and Douglas Young.
States represented are: Arizona, California, Florida, Louisiana, Nebraska, New York, North Carolina, Oregon, Texas, Virginia, Washington and Wisconsin.