IV. How are Progressives Attacking Religious Liberty?
Leiter’s views justify the war on religious liberty for Progressives. Progressives have adopted a variety of strategies to destroy religious liberty, particularly the religious liberty of Christians. Seven of these strategies have been reviewed by the U.S. Supreme Court, and each is explained below. These strategies include: (1) driving Christian influences out of education, (2) driving Christian influences out of the public square, (3) government discrimination against religious speech and activities, (4) destroying Christian businesses, religious institutions, and educational institutions through arbitrary regulations and excessive fines, (5) destroying freedom of speech for Christians, (6) using federal discrimination laws to usurp the authority of Christian churches and schools to select their own leaders, and (7) destroying the livelihoods of Christians who refuse to abandon their faith.
The first Progressive strategy for attacking religious liberty focused on driving Christian influences out of education. Schools and universities are particularly influential in our culture because they provide access to the greatest number of impressionable minds. William F. Buckley, Jr.’s first book, God and Man at Yale (1951), described the hostility of Yale University professors to religious faith. Buckley criticized his Yale professors for their efforts to destroy their students’ religious beliefs.(59)
Early attacks on religious liberty in public schools enjoyed significant success. School prayer was attacked in Engel v. Vitale (1962).(60) Engel outlawed compulsory school prayer in public schools. Engel involved compulsory recitation of the following prayer:
“Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country.”(61)
Justice Hugo Black, in a 6-1 decision, held that the compulsory prayer violated the Establishment Clause of the First Amendment, made applicable to the states through the Fourteenth Amendment. The prayer was a religious activity composed by government officials as part of a governmental program to further religious beliefs.
The Engel opinion did not turn on the compulsory nature of the prayer. Justice Black wrote that school prayer violated the Establishment Clause, even if student observance was voluntary. Black justified his holding by observing that governmentally established religion is historically associated with religious persecution.(62)
School District of Abington Township v. Schempp (1963) and its consolidated case, Murray v. Curlett (1963),(63) outlawed recitation of the Lord’s Prayer n Pennsylvania and Baltimore public schools. Bible verses were read, without comment, followed by recitation of the Lord’s Prayer. Students were excused upon parental request. Justice Thomas C. Clark, in an 8-1 decision, held this practice violated the Establishment Clause. Justice Clark’s opinion cited expert testimony that New Testament verses were “psychologically harmful” to Jewish children and “caused a divisive force within the social media of the school.”
Schempp established the following test. If either the purpose or the primary effect of the government action advances religion, then the action is unconstitutional. The purpose of any government action must be secular. The primary effect of any government action must neither advance nor inhibit religion.
Wallace v. Jaffree (1985)(64) outlawed moments of silence in public schools. Wallace involved an Alabama law authorizing one minute of silence “for meditation or voluntary prayer.” Justice John Paul Stevens, in a 6-3 decision, found the statute violative of the Establishment Clause. The purpose of the statute was to endorse religion. The statute was not motivated by any clearly secular purpose.
Notwithstanding these school prayer cases, however, the U.S. Supreme Court made it clear in Tinker v. Des Moines Independent Community School District (1969)(65) that students and teachers do not “shed their constitutional rights at the schoolhouse gate.” A student’s free speech rights apply “when in the cafeteria, or on the playing field, or on the campus during authorized hours…”(66) The student’s right to free speech includes the student’s right to engage in voluntary prayer. As the U.S. Supreme Court stated in Santa Fe Independent School District v. Doe (2000),(67) “Nothing in the Constitution as interpreted by this Court prohibits any public school student from voluntarily praying at any time before, during, or after the school day.” School officials have no authority to approve, edit, or censor student speech because it contains a religious component.(68)
Stone v. Graham (1980)(69) outlawed posting the Ten Commandments in public schools. Stone involved a Kentucky law requiring the posting of the Ten Commandments in classrooms. The posted copies were purchased with private contributions, and the Kentucky statute recited a secular purpose: “The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.”
The Supreme Court, in a per curiam opinion with three dissents, held the statute violated the Establishment Clause. Since the Ten Commandments did not confine themselves to secular matters, the law had no secular legislative purpose. Posting the Ten Commandments served no constitutional educational function. “If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments.”(70)
Lemon v. Kurtzman (1971)(71) outlawed state aid to parochial schools. Pennsylvania reimbursed parochial schools for teacher salaries and materials incurred in teaching secular subjects. Rhode Island supplemented the salaries of such teachers.
The Pennsylvania statute prohibited payment for any course containing “any subject matter expressing religious teaching, or the morals or forms of worship of any sect.” Nevertheless, Chief Justice Warren Burger, in a 7-1 decision, held that such aid violated the Establishment Clause.
Justice Burger wrote that the Establishment Clause was designed to avoid the “three evils” of “sponsorship, financial support, and active involvement of the sovereign in religious activity.” These goals required three tests. First, the statute must have a secular legislative purpose. Second, its principal or primary effect must be one that neither advances nor inhibits religion. Third, the statute must not foster “an excessive government entanglement with religion.”
Lemon held that the Rhode Island and Pennsylvania statutes failed the third prong of fostering “an excessive government entanglement with religion.” Although the state could easily ascertain the content of secular textbooks, teachers could easily and impermissibly foster religion. Furthermore, state aid to parochial schools could lead such political divisiveness as would “pose a threat to the normal political process.”
A second Progressive strategy for attacking religious liberty is driving Christian influences out of the public square. This strategy, described in Richard John Neuhaus’ The Naked Public Square,72 seeks to exclude all religious speech from the public arena and foster public hostility to religious belief. This strategy includes prohibiting public prayer and forcibly removing religious symbols on public property.
Town of Greece, New York v. Galloway (2014)(73) involved public prayer. The town of Greece opened its monthly board meetings with a prayer by local clergy selected from congregations listed in the local directory. The prayer program was open to all creeds, but since the majority of local congregations were Christian, a majority of the prayer givers was Christian. Plaintiffs claimed the prayer program violated the Establishment Clause by preferring Christians to other prayer givers. Plaintiffs sought an order limiting the town to “inclusive and ecumenical” prayers referring only to a “generic God.”
Justice Anthony Kennedy upheld the town’s prayers in a 5-4 decision, writing that the Establishment Clause must be interpreted “by reference to historical practices and understandings.” The governing issue is whether the prayers fit within the tradition followed by Congress and state legislatures. This tradition was approved in Marsh v. Chambers (1983),(74) which upheld Nebraska’s employment of a legislative chaplain. The Court found that the Town of Greece’s prayers fit within this tradition. The prayers to a “generic God” demanded by the plaintiffs, however, did not.
Van Orden v. Perry (2005)(75) involved a suit to remove a monument containing the Ten Commandments from the Texas capitol grounds. Van Orden, a suspended attorney, sued to force the monument’s removal under the Establishment Clause. Chief Justice William Rehnquist, in a 5-4 decision, ruled the monument did not violate the Establishment Clause.
Rehnquist began by holding that Lemon v. Kurtzman (1971),(76) which prohibits “excessive government entanglement with religion,” is inapplicable to a passive monument. Instead, the analysis should be driven by the monument’s nature and the nation’s history. The Ten Commandments are clearly religious, but they also have an undeniable historical meaning. Rehnquist noted numerous depictions of Moses and the Ten Commandments on federal buildings and monuments in Washington, D.C. The Texas monument did not violate the Establishment Clause simply because it contained religious content or promoted a message consistent with religious doctrine.
On the other hand, the U.S. Supreme Court ordered two counties in Kentucky to remove copies of the Ten Commandments from their courthouses in McCreary County v. American Civil Liberties Union of Kentucky (2005).(77) McCreary County reached the opposite result from Van Orden v. Perry (2005), even though the
U.S. Supreme Court issued both decisions on the same day. McCreary County involved a display of the Ten Commandments surrounded by eight equally sized items, including the Bill of Rights and a picture of Lady Justice. The eight items were displayed under the heading, “Foundations of American Law and Government.” Contrary to its holding in Van Orden v. Perry (2005), the U.S. Supreme Court found that displaying the Ten Commandments violated the Establishment Clause. The Court reasoned that earlier displays of the Ten Commandments in the courthouses had a religious purpose, even though the current display, on its face, appeared not to have a religious purpose.(78)
Another Progressive attack on religious symbols was litigated in American Legion v. American Humanist Association (2019).(79) American Legion involved the Bladensburg Cross, a 32 foot high cross erected by the residents of Prince George’s County, Maryland, in 1918. The cross bears a plaque naming 49 soldiers from Prince George’s County who died during World War I. The Bladensburg Cross has served as a site for numerous patriotic events honoring veterans, and monuments honoring the veterans of other conflicts have been added to a nearby park. The Maryland-National Capital Park and Planning Commission acquired the Bladensburg Cross and land in 1961 and uses public funds for its maintenance.
In 2014, the American Humanist Association filed suit alleging that the presence of the Bladensburg Cross on public land, and the Commission’s maintenance of the memorial with public funds, violated the Establishment Clause. The American Legion intervened to defend the Cross. The Supreme Court held that the Bladensburg Cross did not violate the Establishment Clause. “Even if the monument’s original purpose was infused with religion, the passage of time may obscure that sentiment.” The monument may be retained for the sake of its historical significance or its place in a common cultural heritage. “The passage of time gives rise to a strong presumption of constitutionality.”
Furthermore, “as World War I monuments endured through years and became a familiar part of the physical and cultural landscape, requiring their removal or alteration at this date would be seen by many not as a neutral act.” Instead, it would be seen as the manifestation of “a hostility toward religion that has no place in our Establishment Clause traditions.”(80)
A third Progressive strategy for attacking religious liberty is government discrimination against religious speech and activities. The Freedom of Speech Clause of the First Amendment81 prohibits government from engaging in “viewpoint discrimination” against religious activities. Government must afford religious activities the same opportunities it affords secular activities. Two cases establish this principle.
The first case, Lamb’s Chapel v. Center Moriches Union Free School District (1993),(82) involved a New York school board. State law permitted after-hours use of school property. The board permitted use of school property for social, civic, and recreational purposes, but prohibited its use for religious purposes. A Christian church made two requests to use school facilities for a film series by Dr. James Dobson on child rearing. The board denied both requests as “church-related.” Lamb’s Chapel considered whether the school board could discriminate against religious speech.
Justice Byron White, in a 9-0 decision, answered that government could not discriminate against religious speech. The facilities were not denied because of the subject, child rearing, but because of the religious viewpoint. Such “viewpoint discrimination” cannot withstand strict scrutiny under the First Amendment.
The second case, Good News Club v. Milford Central School (2001),(83) involved the same New York law. Milford Central School enacted a policy permitting the use of its building by district residents for instruction in education, learning, and the arts. It also permitted use for social, civic, recreational, and entertainment purposes.
The Good News Club, a Christian children’s club, was denied use of the building because school policy prohibited religious worship. Club activities included songs, Bible lessons, scripture memorization, and prayer. Justice Clarence Thomas, in a 6-3 decision, found the school’s denial violated the First Amendment’s Freedom of Speech Clause. Furthermore, the Establishment Clause did not require the school to exclude the club.
Justice Thomas wrote that Milford Central School operated a limited public forum. The state may restrict speech in such a forum, but its power to restrict speech is subject to two limits. First, the restriction must be reasonable in light of the forum’s purpose. Second, under Lamb’s Chapel, the restriction must not involve “viewpoint discrimination.” Speech cannot be excluded because of its religious nature.
The school’s act demonstrated an impermissible state “hostility” to religion. This case was not akin to cases where students felt compelled to act within the classroom setting, such as Engelv. Vitale (1962).(84) The club’s instructors were not teachers, the meetings were after-hours, and parental permission was required for attendance. Justice Thomas lastly condemned “heckler’s veto” jurisprudence in religious expression cases. “We decline to employ Establishment Clause jurisprudence using a modified heckler’s veto, in which a group’s religious activity can be proscribed on the basis of what the youngest members of the audience might misperceive.”
A fourth Progressive strategy for attacking religious liberty is forcing Christian businesses, religious institutions, and educational institutions to abandon their faith-based practices through arbitrary government regulations and excessive fines. The Obama administration targeted opponents of abortion using regulations issued under Obamacare. These regulations required Christian businesses, religious institutions, and educational institutions to provide life-terminating abortifacient drugs and abortion-causing IUDs to their employees.
The “Affordable Care Act,” popularly known as Obamacare, became law in March, 2010.(85) On June 28, 2013, the Department of Health and Human Services (“HHS”) issued an Obamacare mandate that required employers actively to participate in the government’s scheme to distribute abortion- causing drugs and abortion-causing IUDs.(86) This HHS mandate was a bureaucratic regulation, issued by the Administrator of the HHS, without any review by Congress or any other elected official. The HHS issued this mandate despite repeated objections by religious organizations.
Hobby Lobby, the Little Sisters of the Poor, and Houston Baptist University refused, on religious grounds, to comply with the HHS mandate. Life-terminating abortifacient drugs and abortion-causing IUDs violated their religious beliefs. Hobby Lobby, a Christian business, faced ruinous fines of $475 million per year for refusing to comply with the HHS mandate on religious grounds.(87) The Little Sisters of the Poor, a Catholic order of nuns that runs homes for the elderly poor across the country, faced ruinous fines of $70 million per year for refusing to comply with the HHS mandate. Houston Baptist University, a Christian educational institution, faced ruinous fines of $13 million per year for refusing to comply with the HHS mandate. Hobby Lobby, the Little Sisters of the Poor, and Houston Baptist University were forced to litigate all the way to the U.S. Supreme Court to protect their religious liberty. Hobby Lobby prevailed in Burwell v. Hobby Lobby Stores, Inc. (2014).(88) Little Sisters of the Poor and Houston Baptist University prevailed in Zubik v. Burwell (2016).(89) All three defendants relied on the Religious Freedom Restoration Act of 1993 (RFRA).(90) To destroy RFRA’s protection of religious liberty, Progressives in Congress are now seeking passage of the so- called “Equality Act.”(91)
On October 6, 2017, Health & Human Services issued a new rule(92) with an exemption that protects religious ministries, in compliance with the Supreme Court’s ruling in Zubik v. Burwell (2016)(93) and a Presidential Executive Order.(94) In its new rule, the federal government admits that it broke the law by trying to force the Little Sisters of the Poor and others to provide services in their health plans that violated their religious beliefs. On November 7, 2018, the government finalized that rule,(95) continuing to protect the Little Sisters of the Poor and other religious ministries.
Shortly after the new rule was issued, however, several states sued the federal government to take away the religious exemption. These states admit they have many programs to provide contraceptives to women who want them.