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.