A New String of State Bills Could Give Religious Organizations Blanket Immunity from Any Wrongdoing
During Arizona's 2022 legislative session, lawmakers are considering , a bill that is nearly identical to legislation they tried to enact in 2021 (HB 2648). Though similar to the previous bill, HB 2507 is more alarming in at least one way: Its definition of “discriminatory act” is even broader. Among other things, the 2021 legislation would have forbidden the government from imposing any fees, penalties, injunctions, or damages against a religious organization or religious corporation in connection with the organization’s exercise of religion. By comparison, under HB 2507, a “discriminatory act” is defined as any “direct or indirect act” that “adversely affects” a religious organization, including “exclusion, restriction, segregation, limitation, refusal, or denial.” In other words, religious organizations and religious corporations could claim that the bill allows them to be free from any governmental action they say adversely affects them.
Religious exemptions on steroids: That’s the only way to describe legislation being considered this week by lawmakers in Arizona, South Carolina, and Montana. Under the guise of protecting the ability to worship during emergency disasters, these bills could give religious organizations blanket immunity from all civil and criminal liability — as long as they claim to be exercising their faith while engaging in the unlawful conduct.
Granting religious organizations these broad, unprecedented, and frightening exemptions from the law could result in untold harm for states and communities across the board. For example, passing the bills would mean that:
- Religious organizations in that state could claim immunity from criminal prosecution and civil liability for the sexual abuse or physical harm of children in connection with religious activities or rituals;
- Religious organizations could be shielded from the consequences of violating state nondiscrimination laws that conflict with their religious beliefs;
- Religiously motivated hate groups could avoid prosecution for criminal activities associated with exercising their beliefs; and
- Patients at religious hospitals could be unable to sue for medically negligent or reckless care that was provided based on the hospital’s religious beliefs.
Religious organizations would even be exempt from more mundane laws. For example, a house of worship that violates fire codes by exceeding capacity limits during religious services could not be fined or otherwise forced to comply with the law.
Exempting religious organizations from nearly every law and shielding them from civil and criminal liability — no matter the harm to others — is the type of religious preference that the U.S. Constitution forbids.
These bills don’t end there, though. Additional provisions would further undermine the separation of church and state and make the government an accomplice to discrimination. For example, the bills could prohibit the state from denying state contracts, licenses, and certifications, as well as tax exemptions based on religious organizations’ exercise of their faith. Under these provisions, the state could be required to give government contracts to groups like the KKK, which claim to be religiously based, or organizations that claim a religious right to discriminate against certain social-services beneficiaries.
The bills also mean that a state could be prevented from recovering public funds used by religious organizations for fraudulent or improper purposes, as long as the funds were used while engaging in religious activities. The state could likewise be precluded from denying a religious day care a license to operate even if the organization’s religious beliefs and practices prevent it from complying with relevant child protection laws. And the state could be forced to approve tax-exempt status for a religious charity that blatantly discriminates and refuses to hire people of color.
These religious exemptions are so unprecedented and radical that it’s not surprising that supporters are hiding them in bills that, at first glance, appear to simply address the right to hold worship services during an emergency. Throughout the pandemic, this right has been at the forefront of litigation challenging restrictions on in-person gatherings. The question has even reached the . The court has issued several decisions making clear that, although limits on worship services in the name of public health, the restrictions may not be more severe than those imposed on comparable secular gatherings.
Despite the Supreme Court’s affirmation that the First Amendment already protects worship services during times of crisis, longtime advocates of religious exemptions have pushed dozens of bills in state legislatures across the country purporting to safeguard the right to worship during emergency disasters, such as the pandemic. Many of these bills are deeply problematic because they exempt worship services from general emergency restrictions on in-person gatherings without any consideration of the potential harm they may cause. Other bills go even further, exempting all religious organizations in a state from any emergency restrictions or deeming their operations “essential” — again, without any regard for the danger this poses to the public and despite the fact that secular activities of comparable risk may be prohibited.
But bills like , , and take the matter to whole new, never-before-seen level. While the bills do have language relating to the ability of religious organizations to operate during emergency disasters, tucked into them are provisions that would allow religious organizations to make broad claims of civil and criminal immunity, both during a public emergency and, arguably, in non-emergency contexts as well.
Specifically, the bills prohibit the government from taking certain “discriminatory” actions against religious organizations and their employees based on their exercise of religion. Among the acts defined as “discriminatory”: imposing any monetary fine, fee, criminal or civil penalty, damages award, or injunction against a religious organization; withholding or denying state contracts, grants, licenses, certifications, etc. for religious organizations; and altering the tax treatment of religious organizations.
Unfortunately, one state legislature, Arkansas, already enacted a similar liability shield bill last month. Hopefully, lawmakers in Arizona, Montana, South Carolina, and other states will not make the same mistake. They should recognize these bills for what they are: a Trojan horse.
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Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
Press ReleaseNov 2024
Religious Liberty
Civil Liberties Organizations Unite to Oppose Oklahoma Education Superintendent Ryan Walters’ Latest Push for Religion in Public SchoolsCivil Liberties Organizations Unite to Oppose Oklahoma Education Superintendent Ryan Walters’ Latest Push for Religion in Public Schools
The American Civil Liberties Union, ACLU of Oklahoma, Freedom From Religion Foundation, Americans United for Separation of Church and State, and Oklahoma Appleseed Center for Law & Justice are uniting to challenge Oklahoma State Superintendent of Public Instruction Ryan Walters’s latest attempt to impose religion on students in the state’s public school system. On Friday, the coalition sent a letter to every superintendent in Oklahoma urging them not to show or disseminate Walters’ prayer video. The letter emphasizes the constitutional requirement for public schools to remain secular and warns that promoting the video to students and parents would violate both the First Amendment of the U.S. Constitution and Article I, Section 2 of the Oklahoma Constitution. The letter also points out that Superintendent Walters lacks the authority to require local school districts to play the video (or any other video) to their students. On Thursday, to promote his new “Office of Religious Liberty and Patriotism,” Superintendent Walters emailed all superintendents within the state a “Mandatory Announcement” that linked to a video entitled “Prayer for the Nation.” Additionally, the email asserted that all Oklahoma schools must play the video for all their students and send it to their parents. In the video, Walters blames the “radical left” and “woke teachers unions” for “attacking” religious liberty and then delivers a lengthy prayer supporting President-elect Donald Trump. Walters encourages students to join in his prayer. “Requiring students to watch a prayer video violates students’ religious freedom, including their Establishment Clause rights,” the coalition’s letter warns. “It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise[.]” The coalition reminds superintendents of their responsibility to protect all students’ religious freedom, regardless of their personal beliefs. By promoting a specific religious perspective, schools risk alienating students who do not share those beliefs, fostering an environment of exclusion and discrimination. The coalition encourages parents and students to report any incidents where the video has been shown or used in schools. Walters separately announced on Thursday that he purchased more than 500 Bibles for Advanced Placement (AP) Government classrooms. In October, the coalition filed a lawsuit on behalf of 32 Oklahomans urging the Oklahoma Supreme Court to block Walters’ mandate that all public schools incorporate the bible into their curricula. This coalition stands firm in defending the rights of every student to receive a secular education free from religious influence. A copy of the letter can be found here: https://ffrf.org/wp-content/uploads/2024/11/State-Superintendent-Ryan-Walters-OK-Religious-Video-Mandate.pdf -
MaineNov 2024
Religious Liberty
St. Dominic Academy v. MakinSt. Dominic Academy v. Makin
The ACLU, ACLU of Maine, and Americans United for Separation of Church and State filed an amicus brief with the U.S. Court of Appeals for the First Circuit arguing that religious schools in Maine participating in the state’s school tuition program must comply with all eligibility requirements of the program – including a prohibition on discrimination on the basis of religion, sexual orientation, and gender identity, among other protected characteristics. -
Press ReleaseNov 2024
Religious Liberty
Court Blocks Louisiana Law Requiring Public Schools to Display Ten Commandments in Every ClassroomCourt Blocks Louisiana Law Requiring Public Schools to Display Ten Commandments in Every Classroom
BATON ROUGE, LA – In a victory for religious freedom, a federal district court issued a preliminary injunction today in Rev. Roake v. Brumley, prohibiting implementation of a Louisiana law that requires all public schools to permanently display a government-approved, Protestant version of the Ten Commandments in every classroom. In the ruling, Judge John W. DeGravelles determined that Louisiana’s H.B. 71, enacted last June, violates the First Amendment and longstanding Supreme Court precedent. More than 40 years ago, in Stone v. Graham, the Supreme Court overturned a similar state statute, holding that the First Amendment bars public schools from posting such displays. The defendants conceded during oral argument that Stone remains good law and is binding on lower courts. In his 177-page opinion, the judge explained: [T]hese displays must be posted in every “classroom in each school,” all year round, regardless of subject matter, and regardless of the age of the student. Thus, the question is not whether the Biblical laws can ever be put on a poster; the issue is whether, as a matter of law, there is any constitutional way to display the Ten Commandments in accordance with the minimum requirements of the Act. In short, the Court finds that there is not. First, Stone remains good law and is directly on point, and this Court is bound to follow it. Second, even putting Stone aside . . . , Plaintiffs have adequately alleged that H.B. 71 fails to comply with the Establishment Clause analysis laid out in Kennedy and Fifth Circuit precedent. Judge DeGravelles also recognized that H.B. 71 would lead to unconstitutional religious coercion of the children-plaintiffs in the case by imposing religious doctrine on them for nearly every hour of the school day, throughout their entire public-school education. And, pointing to the testimony of plaintiffs’ expert, Dr. Steven K. Green, the court found that there is no historical support for permanently displaying the Ten Commandments in public-school classrooms and that doing so would be at odds with our nation’s Founders’ understanding of the separation of church and state. The court’s opinion concludes: Each of the Plaintiffs’ minor children will be forced “in every practical sense,” through Louisiana’s required attendance policy, to be a “captive audience” and to participate in a religious exercise: reading and considering a specific version of the Ten Commandments, one posted in every single classroom, for the entire school year, regardless of the age of the student or subject matter of the course. And, despite the differences among the Plaintiffs’ religious beliefs (be they Unitarian Universalist, Reform Jewish, Presbyterian, or atheist/agnostic), the common threads are (1) that the required posting of the Decalogue conflicts with specific parts of their faith, and (2) that one of those articles of faith, shared by nearly all Plaintiff parents, is raising their children in accordance with their own beliefs and values. Considering the totality of the circumstances, the Court finds that the Act and its requirements are coercive and inconsistent with the history of First Amendment and public education. The court further ruled that H.B. 71 also violates the plaintiffs’ rights under the Free Exercise Clause. After finding that the law violates the plaintiffs’ constitutional rights, the court prohibited the defendants from “(1) enforcing H.B. 71; (2) adopting rules or regulations for the enforcement of H.B. 71; and (3) requiring that the Ten Commandments be posted in every public-school classroom in Louisiana in accordance with H.B. 71.” The Court additionally directed the state defendants to provide notice of its order and H.B. 71’s unconstitutionality to all Louisiana public elementary, secondary, and charter schools, and all public post-secondary education institutions. Because the court denied the defendants’ request to pause (or “stay”) the preliminary injunction while they seek relief from the U.S. Court of Appeals for the Fifth Circuit, it immediately takes effect. “H.B. 71 is a direct infringement of our religious-freedom rights, and we’re pleased and relieved that the court ruled in our favor,” said Rev. Darcy Roake, who is a plaintiff in the case along with her husband, Adrian Van Young. “As an interfaith family, we expect our children to receive their secular education in public school and their religious education at home and within our faith communities, not from government officials.” “This ruling should serve as a reality check for Louisiana lawmakers who want to use public schools to convert children to their preferred brand of Christianity,” said Heather L. Weaver, Senior Staff Attorney for the ACLU’s Program on Freedom of Religion and Belief. “Public schools are not Sunday schools, and today’s decision ensures that our clients’ classrooms will remain spaces where all students, regardless of their faith, feel welcomed.” “We are pleased that the First Amendment rights of students and families are protected by this vital court decision,” said Patrick Elliott, Legal Director of the Freedom From Religion Foundation. “This ruling will ensure that Louisiana families – not politicians or public school officials – get to decide if, when and how their children engage with religion,” said Rachel Laser, president and CEO of Americans United for Separation of Church and State. “It should send a strong message to Christian Nationalists across the country that they cannot impose their beliefs on our nation’s public school children. Not on our watch.” “Religious freedom—the right to choose one’s faith without pressure—is essential to American democracy,” said Alanah Odoms, Executive Director of the ACLU of Louisiana. “Today’s ruling ensures that the schools our plaintiff’s children attend will stay focused on learning, without promoting a state-preferred version of Christianity.” Jon Youngwood, Co-Chair of Simpson Thacher’s Litigation Department, added, “We are heartened by the District Court’s well-reasoned and detailed opinion, which rests upon the wisdom of the First Amendment to the Constitution and the protections it affords regarding the separation of church and state and the free exercise of religion.” Represented by the ACLU, ACLU of Louisiana, Americans United for Separation of Church and State, and the Freedom From Religion Foundation, with Simpson Thacher & Bartlett LLP serving as pro bono counsel, the plaintiffs in Roake v. Brumley are a multifaith group of nine Louisiana families with children in public schools. Today’s opinion, issued by the U.S. District Court for the Middle District of Louisiana, is available online here: https://assets.aclu.org/live/uploads/2024/11/LA-10c-Opinion.pdf