Special report: Christian nationalism and Jan. 6

The Freedom From Religion Foundation and the Baptist Joint Committee for Religious Liberty have together published “Christian Nationalism and the January 6, 2021, Insurrection,” a comprehensive report of how Christian nationalism played an integral role in last year’s Capitol insurrection. 

“Even with the voluminous coverage of the events of Jan. 6, 2021, one area that has not yet been studied enough is the role that Christian nationalism played in bolstering, justifying and intensifying the attack on the U.S. Capitol,” writes Amanda Tyler, executive director of the Baptist Joint Committee.

The full report will be available in February. 

“Drawing on reporting, videos, statements and images from the attack and its precursor events, this report contains the most comprehensive account of Christian nationalism and its role in the Jan. 6 insurrection,” Tyler writes. 

The contributors include Tyler; Andrew Whitehead and Sam Perry, authors of Taking America Back for God: Christian Nationalism in the United States; Katherine Stewart, author of The Power Worshippers: Inside the Dangerous Rise of Religious Nationalism; Dr. Jemar Tisby, author of The Color of Compromise; and Andrew L. Seidel, director of strategic response at FFRF and author of The Founding Myth: Why Christian Nationalism is Un-American, which was just released in paperback with a new epilogue that’s about Jan. 6. 

The report includes an overview of Christian nationalist demographics and statistics, and a look at who is behind the network of money and power that support Christian nationalism. The bulk of the report includes the evidence compiled by Seidel. It concludes with potential solutions of how to combat Christian nationalism. 

“The scale and severity of the Jan. 6 attack warrant a dedicated report of this kind.” 

Insurrectionists carry a large wooden cross outside the Capitol on Jan. 6. (Shutterstock photo)

FFRF legal department kept busy in 2021

By Rebecca Markert

The legal department at FFRF has been working tirelessly to protect the wall of separation and to represent nonbelievers at every turn.

There’s been a lot of work this past year. It feels like it’s been nonstop:  from continuing violations stemming from the Covid-19 pandemic to dealing with a new ultraconservative U.S. Supreme Court taking more and more cases with an increased interest in religious liberty. 

I would like to thank our amazing legal department staff. Our attorneys and assistants weren’t just working remotely half of last year — they were at home during a global health crisis. They deserve kudos for rolling with the punches. 

Here are some of our notable achievements from 2021.

Court victories

In the past year, FFRF filed one new lawsuit, and has five ongoing cases. Two we have won, but they’re on appeal. We also closed one case permanently, a victory for FFRF.

Cragun v. Merrill

Victory! FFRF represented four Alabama residents who filed suit in the U.S. District for the Northern District of Alabama on Oct. 1, 2020, challenging a religious oath ending “so help me God” that voters were required to sign in order to register to vote. As part of a settlement, the Alabama secretary of state changed the voter registration forms and the applicable regulations. New voter registration forms allow voters to opt out of signing a religious oath. 

MAZON v. HHS 

FFRF joined a coalition of service and advocacy organizations in a lawsuit at the U.S. District Court for the Southern District of New York against eight federal agencies for undoing rules that protect those receiving social services from being discriminated against. The Trump administration adopted new rules that do not require faith-based organizations to inform recipients of their legal right to be free from discrimination, not have religious programming, and to refer recipients to an alternative provider if requested. The Biden administration has indicated it will undo these provisions and will likely propose new rules in 2022. The case is stayed pending the adoption of the new rules. 

FFRF v. Gov. Greg Abbott 

FFRF filed a federal lawsuit in 2016, challenging Texas Gov. Greg Abbott’s removal of its approved Bill of Rights “nativity” display from the Texas State Capitol. FFRF had a permit and a legislative sponsor for its display. Abbott, as chair of the Texas State Preservation Board, ordered the display taken down three days after it was erected on Dec. 18, 2015, lambasting it as indecent, mocking and contributing to public immorality. In 2018, the district court entered judgment against Abbott and the State Preservation Board for violating FFRF’s free speech rights. The state appealed the case to the 5th U.S. Circuit Court on the basis that the district court was not permitted to issue the remedy that it provided to FFRF. The 5th Circuit ruled in FFRF’s favor in April 2020 and remanded the case for a final remedy. The district court issued a favorable ruling in May 2021. Texas appealed that decision to the 5th Circuit, arguing that the case had become moot. An opinion is likely forthcoming this year.

FFRF v. Mercer County Bd. of Ed. 

FFRF filed a civil rights lawsuit with the U.S. District Court for the Southern District of West Virginia against Mercer County Schools in early 2017 over the school system’s egregiously unconstitutional “Bible in the Schools” classes for elementary school students. In late 2017, the district court dismissed the case on jurisdictional grounds. FFRF appealed to the 4th U.S. Circuit Court, which, in late 2018, ruled in favor of FFRF and found that the plaintiffs have standing. The school system sought an appeal to the Supreme Court, which declined to take the case. In October 2021, the parties engaged in mediation and settlement discussions, which will likely resolve the lawsuit. 

Cobranchi v. Parkersburg 

FFRF and two Parkersburg, W.V., residents sued the city of Parkersburg in a challenge to the City Council’s practice of reciting the “Lord’s Prayer” at each meeting. Council members and most attendees recite the Lord’s Prayer in unison to start each bi-monthly meeting. At least one member of the council has been openly hostile to people who do not participate in the prayer. FFRF is awaiting a decision on its summary judgment briefing. 

Orsi v. Martin

FFRF and a coalition of plaintiffs filed a district court lawsuit on May 23, 2018, against Arkansas Secretary of State Mark Martin seeking the removal of a massive Ten Commandments structure from the grounds of the Arkansas Capitol. The plaintiffs include FFRF, the American Humanist Association, and the Arkansas Society of Freethinkers, as well as seven individual plaintiffs. The case is proceeding slowly, with summary judgment briefing expected to be filed in early 2022. 

FFRF v. Judge Wayne Mack

FFRF refiled a lawsuit against Justice of the Peace Wayne Mack in 2019 for opening each of his court sessions with chaplain-led prayer. On May 21, 2021, the district court judge ruled in favor of FFRF and local attorney “John Roe,” finding that Mack’s courtroom prayer practice violated the Establishment Clause. Mack filed an immediate appeal and the 5th Circuit Court of Appeals stayed the district court’s decision. The case is being briefed on the merits and a decision is expected in 2022. 

Amicus briefs

FFRF staff attorneys filed five amicus (or friend-of-the-court) briefs in 2021. Four of those were filed at the U.S. Supreme Court.

Carson v. Makin 

FFRF pointed out to the Supreme Court that Maine’s refusal to fund sectarian schools is supported by a proper understanding of the First Amendment. The First Amendment ensures that taxpayers are not compelled to subsidize a religion that is not their own. Also, the “no aid” principle avoids government entanglement with religious education. 

Dobbs v. Jackson Women’s Health 

FFRF filed a brief with the Supreme Court that identified religion as the center of anti-abortion legislation. Mississippi’s total ban on abortion after 15 weeks was motivated by religious ideology. FFRF argued that judicial review of pre-viability abortion prohibitions is hampered by governments that obscure their true purpose in adopting abortion prohibitions. 

Ramirez v. Collier 

A person on death row brought suit over Texas’ denial of his request for a minister to “lay hands” on him and audibly pray with him in the execution chamber. FFRF argued to the Supreme Court that the death penalty, which stems in part from biblical roots, violates the First and Eighth amendments. FFRF’s brief also asserts that if executions are allowed, end-of-life accommodations must be made equally available to all, not just the religious. 

Shurtleff v. Boston

An organization called Camp Constitution requested to fly the Christian flag at Boston’s City Hall. The city refused to allow the display. FFRF, joined by Center for Inquiry, argued that Boston correctly denied the request because the city’s flag poles are not open for free speech for the general public. The city’s concern in not violating the Establishment Clause is a reasonable justification for the denial. 

Kluge v. Brownsburg Schools

FFRF filed a brief on behalf of the Secular Student Alliance, arguing before the 7th Circuit that public school teachers do not have the right to subject students, including transgender students, to the teacher’s religious whims. Based on his Christian beliefs, an Indiana teacher refused to call transgender students by their first names. The school system refused to grant FFRF permission to file the brief, which supported the school’s position, indicating that FFRF’s name and mission are disfavored by public school officials. The court granted permission for FFRF to file on behalf of SSA.

Nonlitigation advocacy

In 2021, our intake team processed 1,874 contacts from members of the public over state/church concerns. Our staff attorneys and legal fellows sent 592 letters of complaint to government agencies over state/church violations. We received 167 victories from these complaints, with more to come this year. FFRF also sent out “mass mailings” educating government officials on violations, including the state of religion in public schools in Florida, mask mandates in Wisconsin, and the National Prayer Breakfast.

Educating the public

In November, FFRF issued a report, “Casting Light: The Sunshine State’s Problems of Religion in its Public Schools,” calling attention to the myriad unconstitutional activities taking place in public schools all over Florida. The report documented serious, systemic Establishment Clause violations in Florida public schools, ranging from teachers imposing their personal religion on students to administrators establishing chaplaincies. Florida school districts must educate staff and adopt sound policies ensuring all school-sponsored programming, including athletics, are free from religious activity and pressure. The report has been sent to every Florida school district. 

In August 2021, just before the school year started, FFRF released a short report about prayer walks in public schools, a bizarre but growing phenomenon whereby community members gather and walk through and/or around the schools praying for the upcoming school year. FFRF’s report shows why such events — typically involving religious leaders praying, sermonizing and even sprinkling “holy water” over school grounds — are constitutionally impermissible. 

FFRF also made it a priority these last two years to increase legal scholarship on state/church separation, particularly after seeing the dangerous use of (often inaccurate) history as rationale in our cases. To that end, FFRF gave a grant to Roger Williams University School of Law in Rhode Island to put on a symposium titled “Is This a Christian Nation?” The virtual symposium was held in September 2020, but the important part of this scholarship was the journal published as a result. All presenters wrote articles that were printed in a special issue of the law school’s law review in the spring of 2021. FFRF then sent copies of the journal to every Supreme Court justice and appellate court judge in the country.

As we dive into 2022, FFRF’s Legal Department is poised to meet the challenges of the new Supreme Court, remains passionate about protecting the right to a government free from religion, and is dedicated to ensuring the wall of separation between state and church is protected to ensure true religious liberty for us all. 

Rebecca Markert is FFRF’s legal director.

FFRF gets legal, historian support in prayer case

The Freedom From Religion Foundation has received briefing support from Americans United for Separation of Church and State on behalf of 13 well-known historians and legal scholars in its federal lawsuit against a praying Texas judge.

On behalf of “John Roe,” the national state/church watchdog filed suit against Montgomery County Justice of the Peace Wayne Mack for opening each of his court sessions with clergy-led prayer.

FFRF welcomes the amicus brief in support of FFRF and its plaintiff, an attorney who regularly practiced in Mack’s court and objects to the courtroom-prayer practice.

Mack, a formerly ordained minister who attended Jackson College of Ministries, made the unprecedented decision to solicit chaplains to open his court sessions with prayer, a practice not replicated by any other court in the country. 

Mack’s bailiff announced the prayers, saying that anyone could leave during the prayer, but then locking the courtroom doors. Mack entered, talked about his chaplaincy program, introduced a chaplain, and gave the name and location of the chaplain’s church. While everyone in the courtroom remained standing, the chaplain, who was almost always Christian, delivered a prayer, with no guidelines regarding permissible content. Attendees have reported that Mack has surveyed the courtroom during prayers, causing concern that their cases would be affected if they did not participate.

Mack’s main defense throughout the lawsuit has been that his prayer practice enjoys a long and unbroken history in this country, a claim he has advanced without expert support from a single historian.

The “friend of the court” brief filed by Americans United on behalf of the scholars and historians demonstrates that Mack’s history claim is false. The brief first traces the history of the development of religious freedom in America, citing the views of key founders such as James Madison and Thomas Jefferson, noting that the Establishment Clause was intended in part to prevent governmental religious coercion.

The historians’ brief then picks apart Mack’s dubious claim of historical legitimacy. “Proper historical analysis reveals that there was no long, unbroken, or established history of courtroom prayer in the United States,” the brief asserts. “Instead, it shows that courtroom prayer is not consistent with the purpose of the Establishment Clause, would not have been supported by the Founders whose ideas the Establishment Clause reflects, and was rare around the time of the ratification of the First Amendment.”

FFRF and Attorney Roe, the plaintiffs in the lawsuit, previously dispatched Mack’s bogus history argument when they won their case in district court. In May 2021, U.S. District Judge Kenneth M. Hoyt ruled in favor of the plaintiffs, writing: “The court is of the view that the defendant violates the Establishment Clause when, before a captured audience of litigants and their counsel, he presents himself as theopneustically inspired, enabling him to advance, through the chaplaincy program, God’s ‘larger purpose.’ Such a magnanimous goal flies in the face of historical tradition, and makes a mockery of both religion and law.”

A second amicus brief, filed in support of plaintiffs by the nonprofit Institute for Justice and the Foundation for Individual Rights in Education, argues that a panel of judges on the U.S. 5th Circuit Court of Appeals misstated the law in holding that lawsuits against state officials (such as Mack) cannot arise under 42 U.S.C. § 1983 and must instead be brought as an equitable cause of action recognized in Ex Parte Young. While this highly technical issue was not raised by the parties on appeal, and did not need to be resolved in order to adjudicate the issues on appeal, Judge Andrew Oldham, a Trump appointee, nevertheless advanced this novel and unprecedented interpretation of the law in his written opinion. IJ and FIRE urge the 5th Circuit to address and overturn this incorrect holding when resolving the case on the merits.

“We’re grateful for the support of these groups, historians and legal scholars in documenting the truth — that courtroom prayer cannot be excused as a historic practice,” says FFRF Co-President Annie Laurie Gaylor. “Mack’s conduct is coercive, inappropriate, ill-mannered and unconstitutional.”

The case is now on appeal before the 5th Circuit. FFRF and Roe are represented by FFRF Associate Counsel Sam Grover, with Attorney Ayesha Khan of Washington, D.C., serving as co-counsel.

Fun times in Boston

FFRF Lifetime Member Ellery Schempp offers a hearty laugh while speaking with Barbara Alvarez, FFRF’s reproductive rights intern, during the Saturday dinner at FFRF’s national convention in Boston on Nov. 20. Schempp was the initiator of the landmark 1963 United States Supreme Court decision of Abington School District v. Schempp, which declared that required public school sanctioned Lord’s Prayer and bible readings were unconstitutional.

(Photo by Ingrid Laas)

Linda Greenhouse speech: Cheesecake, anyone?

Linda Greenhouse (Photo by Ingrid Laas)
Linda Greenhouse holds her Clarence Darrow Award, given to her at FFRF’s national convention in Boston on Nov. 19, 2021.

Journalist and author Linda Greenhouse was introduced on stage by FFRF Co-President Annie Laurie Gaylor during FFRF’s convention on Nov. 19:

“Veteran Supreme Court observer and commentator Linda Greenhouse has earned this year’s Clarence Darrow Award. You know her for her Pulitzer Prize-winning coverage of the Supreme Court for 30 years and for her continuing and important biweekly column on the court for The New York Times.  

“A fierce defender of reproductive rights, her books include Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court. 

“Linda finds deft and effective ways to question the role of religion in the political or judicial agenda. Linda, you are FFRF’s legal touchstone and we are so grateful to you for your acumen, your empathy, for sharing wise, frank expertise and warnings about the evolving state of the Supreme Court, especially your writings on the Establishment Clause.”

Linda Greenhouse gave this speech (slightly edited) at FFRF’s national convention on Nov. 19. 

By Linda Greenhouse

My brief talk has a title: “Cheesecake, anyone?” I will explain that title soon. But first, I want to mention something that occurred to me as I heard other convention presentations today. Justice Ruth Bader Ginsburg received several shout-outs — well-deserved, because by the end of her time on the Supreme Court, she was the most committed separationist among the justices. But I want to remember another distinguished woman who served on the Supreme Court: Justice Sandra Day O’Connor, who left the court in early 2006. She is still alive at 90, living with dementia.

In the summer of 2005, Justice O’Connor wrote an opinion concurring with the majority in a case called McCreary County that invalidated a Ten Commandments display on the wall of a Kentucky courthouse. Justice David Souter’s majority opinion found the display to be a violation of the Establishment Clause. Justice O’Connor agreed. This is what she wrote:

“At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate. Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?”

FFRF asks people to ask this question. It could be an FFRF motto.

And now to my talk.

Even were I not receiving this wonderful award, it would be an honor and a pleasure simply to be here, among people who are not shy about challenging the surge in religiosity that is sweeping across our supposedly secular country. In my new book and in my opinion columns, I look at this growing problem with a focus on the Supreme Court’s role. But of course, the court is a reflection, not a source of the problem. Supreme Court justices don’t fall from the sky, and the makeup of the current court is a reflection of our domestic politics.

I don’t mean to let the court off the hook for its series of decisions that have placed religion in a position of privilege that would have astounded our Constitution’s Framers, to whom conservative judges and justices purport to pay so much homage. I’m only suggesting that “We the People” paved the way to the Supreme Court we have today, either by active participation in or by passive acquiescence to the wave of religiosity that deposited the most recent justices onto the court’s bench. 

What distinguishes FFRF is its refusal to stand silently by. To stand silent, as most people do, even those who are troubled by what they see, is to enable. Religion, as I’ve written, is the last taboo in American society. Unlike when most of us grew up, we can now talk unabashedly about sexual identity, gender nonconformity, money, race, social class — anything but religion. To comment on the fact that the last three Republican presidents have placed a total of five conservative Catholics on the court — and I mean doctrinally conservative, not simply politically conservative — and you risk being considered rude or even bigoted. But to remain silent in the face of this astonishing fact is to become an enabler. What I admire about FFRF is that you refuse to be enablers.

Now, what could I possibly mean by the title for my talk? Last month, one of our great federal appeals courts declared that Jewish prison inmates had a legal right to be served cheesecake on the Jewish holiday of Shavous.

Yes, you heard that right. It’s the 6th Circuit U.S. Court of Appeals, which covers Ohio, Kentucky and Michigan, which is where the case of Ackerman v. Washington arose. I’m guessing that some in this audience have some acquaintance with Jewish tradition and practice, as I do. For those from Christian backgrounds, Shavous is Revelation, the handing down of the Ten Commandments.  What on heaven or Earth does this have to do with cheesecake? This is the story.

The Michigan Department of Corrections makes vegan kosher meals available to any prisoner with a religious objection to the standard prison diet. This is a universal meal for prisoners with any religious objection, whether based on Jewish, Muslim or other religious dietary requirements. Two Jewish inmates challenged the prison’s practice, claiming that, based on their religious beliefs, they were entitled to kosher meat on the Sabbath and to a dairy meal on Shavous — not just a generic dairy meal but, according to one of the inmates, cheesecake. 

Testifying at trial, one of the inmates, who claimed familiarity with Jewish law, first said that “Shavous is generally associated with cheesecake in the Jewish community,” but later amplified that remark to say that eating cheesecake was, in fact, required. The district court ordered the prison system to provide kosher meat to prisoners requesting it on the Jewish Sabbath and to provide cheesecake on Shavous. 

The prison system appealed, challenging the sincerity of the prisoner’s claims. The 6th Circuit affirmed, crediting the inmates’ sincerity and noting that both had grown up eating kosher food at home. Two of the three judges on the appellate panel were appointed by Donald Trump, but, in fact, that’s largely irrelevant, as I will explain. Writing for the panel, one of those two judges, John Nalbandian, said that while the kosher meat claim for the Sabbath was an easy question, the cheesecake claim was “trickier.” The judge observed that “religious texts don’t say that cheesecake is mandatory.” He cited a note in the Code of Jewish Law that “some have a custom to just eat some dairy” on the holiday of Shavous. 

Why didn’t that end the judges’ inquiry? Why didn’t a finding of “no religious requirement” equate to a finding of “no entitlement”? Aha, and I quote: “But there’s also evidence suggesting that these prisoners do, in fact, sincerely believe that cheesecake is required on Shavout” [a more modern spelling of the name of the holiday]. Noting that the District Court judge had accepted the prisoners’ sincerity on this point, Judge Nalbandian said: “That’s all that is required. Even if we may have come out differently on this issue if we were sitting as district judges, we affirm under the applicable standard of review.” 

Theoretically, Michigan might have rebutted this finding by showing that the state had a compelling interest in not yielding to the inmates’ request. The state offered a financial interest: meeting the dietary demand would cost $10,000 a year. The 6th Circuit rejected that effort, noting that the prison system’s annual food budget was $39 million, and that an addition $10,000 represented “just a tiny 0.02 percent in that multi-million-dollar-food-budget bucket.”

Now, I’m no expert on Jewish law. But I was married in an Orthodox synagogue, and I’m here to tell you that Jews no more require cheesecake on Shavous than Christians require colored eggs on Easter. Fun to have, in both cases, but how did we come to a point where a federal appeals court issues a 23-page opinion addressing a matter that to a person without a stake in the outcome would appear frivolous, even ridiculous?

The fact of the matter is that when it comes to religious claims, nothing is frivolous or ridiculous. And given where the Supreme Court has driven the law, the chain of reasoning that produced the outcome in this case was completely plausible and even predictable. The case was litigated under a 20-year-old federal law, the Religious Land Use and Institutionalized Persons Act, or RLUIPA. The law provides that the government must show a “compelling interest” to justify imposing “a substantial burden on the religious exercise of a person residing in or confined to an institution.” “Religious exercise” is defined as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” Given that statutory language, it’s hardly surprising that the Supreme Court has interpreted the law as triggered by any “sincere” belief, no matter how unfounded. And if all that matters is “sincerity,” who, after all, is to judge?

The law essentially enables judges, if so inclined, to take themselves out of the role of judging. To this effect, it mirrors a companion federal law, the Religious Freedom Restoration Act, which was the law at issue in the Hobby Lobby case that the Supreme Court decided in 2014. This was the case about whether a corporation with a religious owner could exempt itself from the Affordable Care Act’s mandate to provide birth control as part of the employee health insurance plan. The owner of Hobby Lobby claimed that he couldn’t possibly abide by this mandate because certain forms of birth control cause abortion. This does not happen to be true. But it was, ostensibly, the man’s belief. So, the court credited it and ruled in Hobby Lobby’s favor, to the detriment of thousands of women all over the country who work for such employers and as a result have been deprived of an employment benefit contemplated by Congress and enjoyed by women who are lucky enough to work for companies that obey the law.

My point in telling you the cheesecake story, then, is really about a lot more than cheesecake. In context, the 6th Circuit opinion was not crazy. It was, as I said, completely predictable. It’s the law itself that has gone off the rails in full view of anyone who cared to watch. Prisoners can be denied decent medical care, can be abused by guards, of course forfeit their right to vote — but, by God, let them eat cheesecake. 

Something is seriously out of balance, and by the end of the current Supreme Court term it is highly likely to become even more so. The situation urgently requires our attention. I’m comforted by the knowledge that FFRF will keep doing its part.

Science and reason must prevail over religious exemptions

Steve Benson cartoon

Failure to be fully vaccinated in the United States — where the vaccines have been long available for free and where most children are now eligible — is, to state the obvious, prolonging the pandemic. 

There’s no excuse —not even a religious one — in a secular nation predicated on science, not to do one’s part to stop the spread of Covid-19 and its ever-growing variants. Atheists and nonbelievers can take pride that we are the most vaccinated sector in the United States. Unfortunately, white Christian evangelicals, the least vaccinated and most resistant group, wield disproportionate political power to disrupt rational public health policy.

The remedy is at hand, yet vaccine mandates and even “vaccine passports” at the state, public school or other local levels remain the exception. Lawsuits, mostly by religious politicians, individuals or entities, abound against existing mandates, including President Joe Biden’s OSHA rule that companies with 100 or more employees must require vaccination. Litigation, backlash and resistance greet mandates, and the demand for religious exemptions from public health rules is growing.

Public health policy emphatically does require universal mandates, yet confusion reigns over the legality of religious exemptions. 

Vaccine mandates are neutral. A vaccine mandate is a neutral rule that applies to everyone, religious or not. The mandate doesn’t discriminate among religions, just as the novel coronavirus doesn’t “discriminate” among who it infects. 

Vaccine mandates are constitutional. The government’s authority to protect the health and safety of citizens is well-established. The Supreme Court ruled vaccine mandates constitutional over 100 years ago in Jacobson v. Massachusetts (1905), and has affirmed that ruling multiple times over the past century. Jacobson involved the constitutionality of a regulation by the board of health in Cambridge, Mass., to require vaccinations in response to a smallpox epidemic. The Supreme Court held that the mandate represented a valid exercise of the state’s police power and affirmed that “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” 

The Supreme Court again found, in Zucht v. King (1922), that the school district of San Antonio, Texas, could constitutionally exclude unvaccinated students from attending district schools. In Prince v. Massachusetts (1944), the Supreme Court concluded that “[t]he right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.” In Employment Division v. Smith, (1990), the court reaffirmed that the free exercise clause does not “require religious exemptions from . . . health and safety regulation such as . . . compulsory vaccination laws.” 

Mandatory vaccinations are longstanding. Mandatory vaccinations date to a decision by George Washington, as commander-in-chief of the Continental Army, to order an 18th century version against smallpox, which he termed the “most dangerous enemy.” It was a good thing he did, as historian Thomas Schactman notes: “Nothing that Washington did had a greater impact on the outcome of the war than his actions to protect his troops from death by smallpox.” The infection rate among the American soldiers dropped from 17 percent to 1 percent in a year. 

All 50 states and the District of Columbia have long required school-aged children to receive vaccines for measles, rubella and polio. The state of Mississippi does not provide for any exemptions from school vaccinations.

Religious entities do not oppose vaccination policies. No major U.S. religious denomination opposes vaccination outright, with only a few tiny Christian denominations as outliers. 

Legal and practical problems in “accommodating” religious exemptions. As Chicago Tribune columnist Steve Chapman warns, “Employers who choose to accommodate religious exemptions . . . have to investigate subjective matters on which they have no expertise,” noting the exception invites “every phony and crank to escape a basic measure needed to protect those around them.”

Curtis Chang, who is affiliated with Duke Divinity School and is cofounder of Christians and the Vaccine, points out in a New York Times guest essay that any institution considering religious exemptions should require applicants to demonstrate they’ve consistently refused other immunizations for religious reasons. Most evangelicals have historically chosen to be immunized against polio, measles, tetanus and other diseases.

The burden should be on the individual seeking the exemption anyway. Government officials rolling out vaccination mandates have misguidedly assumed they have a legal duty to offer an exemption.

Who’s behind anti-vaccine backlash? Arch-conservative governors, uniformly Christian and rightwing, are outracing each other to ban Covid mandates, such as Texas Gov. Greg Abbott, who’s banned private entities from mandating vaccination. Other Christian nationalist governors include Ron DeSantis, of Florida, who banned vaccine passports, and Arizona’s Doug Ducey, who’s using Covid funds to reward private schools for banning masking. Multiple states with Christian right-dominated legislatures are suing Biden over the OSHA rule. Litigating private entities include Christian Employers Alliance, defended by Alliance Defending Freedom. Among petitioners against the OSHA rules are Ken Ham’s Answers in Genesis. Liberty Counsel is spearheading anti-mandate challenges.

It’s no coincidence that zealous evangelical Gov. Abbott, who signed SB 8  — the notorious law careening Texas into the land of The Handmaid’s Tale — has been among the most aggressive public officials in banning Covid mandates, hypocritically condemning them as federal “overreach.” Mandatory motherhood is not government “overreach,” but a jab in the arm to protect health and defeat a pandemic is? The religious motivation to ban both abortion and Covid mandates is irrefutable.

Two closely-watched lawsuits involve Christian, anti-abortion healthcare workers in Maine and New York State. The Maine religious healthcare workers, so far losing their lawsuit, have asked the U.S. Supreme Court to intervene. Sooner or later this or a similar case will be scheduled for the Trump court’s “shadow” or regular docket. Then, watch out. We can expect to see the Religious Freedom Restoration Act invoked to assert that those with “sincerely held religious beliefs” are above the law. Clearly, individuals who deny science and/or who place their idiosyncratic religious beliefs above the health of patients don’t belong in the health care or nursing home care professions.

“Religiously-motivated anti-vaxxers challenging mandates act like not being vaccinated is somehow a courageous act of personal integrity,” comments FFRF Co-President Annie Laurie Gaylor. “It is in fact the height of selfishness. These latter-day Know-Nothings fail to grasp or honor the fact that vaccinations work not only by providing protection to the individual, but to the community through herd immunity.” Unfortunately, the current estimate is that we will only reach Covid-19 herd immunity when 90 percent or more of the population is vaccinated. 

As the centuries-old battle of science versus faith continues unabated, the Freedom From Religion Foundation will continue our vital work to ensure that reason and science — not religious obstructionism — end up prevailing in the fight against the coronavirus pandemic. The United States and the world have a long way to go, and irrationality is still “the most dangerous enemy.”

Thanks to FFRF Attorney Chris Line for his research and drafting of much of this statement.

FFRF’s Capitol exhibit marks 25 years

FFRF Legal Assistant Stephanie Dyer, Director of Operations Lisa Strand and Freethought Today Editor PJ Slinger installed the two displays in the Wisconsin Capitol on Dec. 1

FFRF’s annual Winter Solstice exhibit is celebrating its (almost unbroken) silver jubilee at the Wisconsin Capitol.

The secular display is back in FFRF’s hometown legislative building for a breathtaking 25th time after a pandemic-forced hiatus last year. A gilt sign in the Madison-located Statehouse features FFRF’s traditional message from its principal founder Anne Nicol Gaylor. 

A major addition to the exhibit in the rotunda for more than half a decade now is FFRF’s whimsical Bill of Rights “nativity.” The irreverent cutout by artist Jacob Fortin depicts Founders Benjamin Franklin, Thomas Jefferson and George Washington gazing in adoration at a “baby” Bill of Rights while the Statue of Liberty looks on.

FFRF vouches for Maine’s school funding program

In a case that will be heard by the Supreme Court, FFRF has delivered an amicus brief siding with the state of Maine on its refusal to use taxpayer money to fund religious education and proselytization through the state’s school funding program.

A year ago, the case of Carson v. Makin case was decided in favor of Maine by the 1st Circuit Court of Appeals. That ruling has been appealed and now heads to the Supreme Court.

FFRF’s brief states: “This court should not undo the Maine Legislature’s decision not to subsidize sectarian education. Neither the parents seeking public money, nor the religious schools, have a right to taxpayer funds, directly or indirectly. The state’s decision is the only path consistent with fundamental principles of religious liberty.”

In its decision on Oct. 29, 2020, the 1st Circuit concluded that even in light of precedent established in the Supreme Court’s disastrous decisions in Trinity Lutheran and Espinoza, the plaintiffs in Carson v. Makin could not successfully challenge Maine’s requirement that its tuition assistance program fund only “nonsectarian” education. Simply put, the decision stated that the “nonsectarian” requirement did not exclude religious schools based on their religious status, but rather protected the state’s interest in only supporting education that was itself nonreligious. Thus, schools are excluded from Maine’s program not based upon what they are or what they believe, but solely based on what they propose to do with the state’s money.

If the Supreme Court would reverse the circuit court’s ruling, FFRF writes, “Minority religious and nonreligious citizens would be immediately coerced into subsidizing religious education with which they fundamentally disagree. . . . If they begin receiving state funding, religious schools will likely be subjected to the state regulation that must necessarily follow — although they may well fight in court for the special privilege of receiving state funding without the concomitant oversight, in which case it will be the students who suffer most.”

Back in November 2019, FFRF had filed a similar amicus brief arguing that Maine’s existing distinction between religious and secular private schools protects religious liberty by ensuring that Maine taxpayers are not compelled to support a religion that is not their own.

“The constitutional prohibition on states taxing citizens for the benefit of religion, directly or indirectly, guarantees religious liberty for all,” the brief stated. 

The 1st Circuit agreed with FFRF.

“Maine’s Constitution instructs the state’s Legislature to ensure that its local institutions have the means to provide the benefits of a free public education to their children,” the circuit court’s decision stated.

Despite the long-established, foundational nature of this constitutional principle, the Supreme Court has telegraphed its intentions to undermine it. 

FFRF will be closely monitoring the Carson v. Makin case as it heads to oral argument later this year.

‘Forward’ returns to rightful place

The “Forward” statue is back up outside the Wisconsin Capitol. (Photo by Chris Line)
Close-up of the “Forward” statue. (Photo by Chris Line)

The “Forward” statue, one of the very few sculptures of and by a woman on government property in the United States, was returned to its perch in front of the Wisconsin state Capitol in Madison on Sept. 21. The statue had been damaged by protesters last year.

The statue was originally part of a private feminist campaign for women sculptors to create sculptures embodying their state mottos at the 1893 World’s Columbian Exposition in Chicago. Jean Pond Miner designed the entry for Wisconsin, whose state motto is “Forward.” Wisconsin suffragists were so taken with Miner’s art that they raised the significant funds to recast the statue in bronze repousée (like the Statue of Liberty) and gift “Forward” to the state of Wisconsin. In 1895, it was placed at the east entrance of the Capitol, then rededicated in 1916 and moved to the north entrance.

In the early 1990s, then-Gov. Tommy Thompson announced plans to banish “Forward” to the Capitol basement and replace it with a monument to slain police officers. FFRF principal founders Anne and Annie Laurie Gaylor led the charge to save “Forward,” after state Sen. Fred Risser exposed the scheme, and their protest was joined by thousands of citizens, art preservations and others. Thompson capitulated, agreeing to have his wife, First Lady Sue Ann Thompson, once again raise private funds to make a bronze replica. The original is now inside at the Wisconsin Historical Society. The bronze version at the top of the State Street entrance to the Capitol has served since 1998 as a focal point for many rallies and demonstrations.

“It was the most popular activism my mother and I ever undertook,” recalls Annie Laurie. “People were lined up at the Farmers’ Market to sign our petition, even some very conservative public officials. We’re delighted to see ‘Forward’ returned and consider the statue to be a de facto motto for FFRF.” 

The statue inspired FFRF to begin the “Forward Award,” with a modernized statuette created by world-renowned sculptor Zenos Frudakis. Recipients who have been honored for “moving society forward” have included Bonya Ahmed, Cecille Richards, Katha Pollitt, Gloria Steinem and Margaret Atwood.

FFRF to Supreme Court: Get rid of death penalty

Abolish capital punishment, the Freedom From Religion Foundation and its allies are asking the U.S. Supreme Court.

FFRF’s friend-of-the-court brief on Sept. 27 in the Ramirez v. Collier case (which deals with religious access) argues that the death penalty is unjustified in a secular nation such as the United States, since it stems in part from biblical roots, and is unconstitutional under the First and Eighth Amendments.

Ramirez v. Collier has been in the news recently because of the Supreme Court’s seeming willingness to make a religious allowance for the death-row inmate.

The Supreme Court agreed to postpone the execution of John Ramirez, who was scheduled to die on Wednesday [Sept. 8] in Texas,” reports SCOTUSblog. “The last-minute respite will allow the justices to fully consider Ramirez’s request that his pastor be allowed to physically touch Ramirez and audibly pray in the execution chamber while Ramirez is put to death.”

FFRF’s brief asserts that the issue before the court is Kafkaesque because the law is quibbling over Ramirez’s constitutional rights moments before it takes them away forever. Also, if there is going to be an execution, FFRF maintains, any rule the court hands down should apply to the nonreligious.

The brief makes a number of cogently argued points.

First, it contends, the Supreme Court should hold that capital punishment is unconstitutional, since the current application of the death penalty as a punishment in America is fraught with peril — from its unreliability to its arbitrariness to its cruelty. And of all the ways a state could impermissibly interfere with someone’s free exercise of religion, killing them is certainly the worst way. 

Second, FFRF asserts that the biblically based death penalty should be rejected once and for all. While the root of capital punishment may not be solely biblical, in the Western world the bible’s primitive “eye for an eye, life for a life” injunctions in both the Hebrew and New Testament bibles have been a major sourcebook for the death penalty. The Christian church, in particular, “has played a significant role in validating the state’s use of capital punishment,” as scholar Davison M. Douglas points out. 

Third, FFRF’s brief posits that if executions are allowed to take place, end-of-life accommodations must be equally available. A long string of unbroken precedent holds that neither may the government officially favor one religion over another nor may it favor religion over nonreligion. If the court chooses to allow state-sponsored killings to continue, it must ensure that end-of-life accommodations are made equally available to those of all religions and those with no religion at all.

FFRF’s interest in this case arises from its position that capital punishment is an unconstitutional, inhumane imposition of a religiously based punishment. In modern times, freethinkers have been the first to speak out for the abolition of the death penalty. The overwhelming majority of FFRF’s membership opposes the death penalty, according to its 2020 survey.

FFRF Legal Director Rebecca Markert and FFRF Staff Attorney Ryan Jayne drafted the amicus brief for the organization. The American Humanist Association and American Atheists are the other groups that have joined in FFRF’s brief.