By Rebecca Markert
FFRF’s Legal Department has been busy ensuring the wall of separation between state and church is high despite all the obstacles thrown our way in 2020. The pandemic changed how and where we work, but it hasn’t changed what we do. Last year, as our homes became our offices, we still continued to advocate for your rights and work to keep our government free from religion through litigation, persuasive letters to government agencies asking them to resolve violations, and education on the importance of state/church separation.
There were some staffing changes in 2020. Our legal team bid farewell to our legal fellow, Dante Harootunian, whose fellowship ended in August.
We welcomed a new legal fellow, Joseph McDonald, who recently graduated from the University of Wisconsin with a dual degree: a Juris Doctorate and a Master’s in Public Health. Our team welcomed a new intake legal assistant, Stephanie Dyer, who is also a recent graduate from the University of Wisconsin. Both Joseph and Stephanie were onboarded remotely and have adapted to our “work from home” office environment well.
• In 2020, FFRF secured two court victories and finalized a victory in another case. FFRF, together with Humanistas Seculares de Puerto Rico (HUSE) filed a lawsuit against Puerto Rico’s education secretary and the principal at Luis M. Santiago School challenging an hour-long Christian prayer practice led by teachers at the school every other Monday that students were required to attend. Because of her secular humanist beliefs, our plaintiff mother had been keeping her children home during the school-led prayers. The children were threatened with tardy marks for arriving late to class in order to avoid the prayers. At a mediation session in March, the defendants agreed to permanently prohibit teacher-led prayers at the school and to remove any tardy marks from the students who avoided school during the prayers. And importantly, the secretary of education agreed to circulate a memo on nondiscrimination to Department of Education employees and to conduct a training for all employees at the school on avoiding religious endorsement.
• FFRF favorably settled a case it filed with Citizens for Responsibility and Ethics in Washington (CREW) against Secretary Ben Carson’s Department of Housing and Urban Development. HUD had a pattern and practice of denying fee waivers on Freedom of Information Act requests “where disclosure of the requested documents is likely to cast the agency or HUD Secretary Ben Carson in a negative light.” The agency had denied waivers in FFRF’s requests over records relating to the White House bible study. In April 2020, we settled the case after it agreed to issue guidance to employees on fee waivers, provide mandatory training, and to pay the attorneys’ fees to both groups — which totaled nearly $18,000.
• In April, FFRF won its case at the appeals court level against censorship of its Bill of Rights “nativity” display in the Texas Capitol by Gov. Greg Abbott. The unanimous opinion by the three-judge court panel of the 5th U.S. Circuit Court of Appeals granted FFRF additional relief. The judgment sent the case back to the district court that previously ruled in FFRF’s favor, to issue a more expansive remedy to protect FFRF’s right to place displays in the future and to ensure a similar constitutional violation cannot happen to other organizations.
• In May, a year after FFRF won a resounding victory halting millions in tax dollars flowing unconstitutionally to repair churches in Morris County, N.J., a judge ruled that FFRF and its attorneys are entitled to attorneys’ fees. The Superior Court of New Jersey ordered a total of $217,949.15 to FFRF’s attorneys, including $124,687.50 to outside counsel Paul Grosswald and $28,875 to constitutional scholar Erwin Chemerinsky, who defended FFRF at the Supreme Court level. FFRF was reimbursed the remainder for the work of its staff attorneys Andrew L. Seidel and Ryan Jayne.
• FFRF, along with the ACLU and AU, finalized the victory in a case against the Brevard County Board of County Commissioners. The board agreed not to resume its past practice of discriminating against people who do not belong to mainstream, monotheistic religions when selecting invocation speakers to open board meetings.
• Right before the election, FFRF filed a lawsuit on behalf of four Alabama citizens, challenging a mandatory voter registration oath that concludes, “so help me God.” Alabama is the only state to require voters to sign a religious oath in order to register to vote. In all other states, voters are provided a completely secular registration form or are not required to submit an oath or affirmation at all. Our suit seeks a declaratory judgment that mandating the oath, without a secular option, is unconstitutional and a permanent injunction prohibiting the secretary of state from requiring voters to swear “so help me God.” It also asks for an order to the secretary of state to provide forms that permit voters to register without swearing a religious oath.
One of the most impressive accomplishments in 2020 was the number of amicus briefs (or “friend of the court” briefs) FFRF was able to submit in state and federal courts across the country. FFRF submits these briefs to help guide the court in decision-making and are invaluable in contributing the voice of freethinkers and the nonreligious in cases involving religious liberty. Our attorneys submitted a record number of 10 amicus briefs in 2020! Four of these were filed at the U.S. Supreme Court for cases involving religious exemptions and the Religious Freedom Restoration Act. Two were filed in our home state at Wisconsin’s Supreme Court and involved religious exemptions to the restrictions involving the pandemic. Others involved other exemptions to stay-at-home orders, prayer at school, a nativity scene on public property and the Muslim travel ban.
In 2020, our intake team processed over 2,000 contacts from members of the public over state/church concerns. Our staff attorneys and legal fellows sent nearly 600 letters of complaint to government agencies over state/church violations. FFRF also sent over 350 letters in “mass mailings” educating government officials on state/church violations, including letters to governors regarding the constitutionality of prohibiting in-person worship services during a pandemic.
Our final achievement for 2020 was publishing a report on Trump judges entitled, “Religious Liberty Under Threat: The Christian Nationalist Capture of the Federal Judiciary.” (See summary on Page 1.) This report exposes the Christian Nationalist takeover of the federal courts and the damage this is causing to the separation of state and church. The report describes in alarming detail how over the past four years, President Trump stacked the federal courts with ultraconservative judges who will now hold their positions for life.
As you can see, the pandemic has not slowed our legal team. As we enter 2021, we will continue to fight for you and for our right to have a secular government.
Rebecca Markert is FFRF’s Legal Department director.