Last week, the Supreme Court permitted the state of Alabama to execute a Muslim man, Domineque Ray, without his religious advisor present. The court’s 5-4 decision reversed an emergency lower-court that had temporarily delayed the execution because of grave concerns that Alabama’s practice of allowing only the state’s Christian chaplain to be present in the execution chamber unconstitutionally favored Christian prisoners.
Without even acknowledging those concerns, the court issued a brief, callous decision that is, as Justice Kagan , “profoundly wrong.” It is also the latest example of a disturbing trend of religious favoritism, in which minority faiths — particularly Islam — are given second-class legal status.
The Supreme Court has repeatedly emphasized that the “clearest command” of the First Amendment’s Establishment Clause “is that one religious denomination cannot be officially preferred .” The strict rule against denominational preference lies at the heart of American religious liberty, and it dates back to the founding of our nation. The constitutional framers recognized that “religion is too personal, too sacred, too holy, to permit its ‘’ by a civil magistrate.” When the government officially favors one faith over others, it intrudes on matters of conscience and religious autonomy, fosters religious division and animosity, and tramples our national commitment to equality among faiths.
Yet that’s precisely what happened in Alabama last week. Although Alabama routinely permits a Christian chaplain to be present in the execution chamber to minister to the needs of Christian prisoners, state officials rejected Ray’s request for the same treatment. With the green light from the Supreme Court, Alabama executed Ray without his imam to attend him in his final moments. As the court of appeals recognized, the religious favoritism could not have been clearer: “If Ray were a Christian, he would have a profound benefit; because he is a Muslim, he is denied that benefit.”
Alabama prison officials offered no meaningful defense of their discriminatory policy, beyond unfounded, conclusory assertions that in the interest of safety and security, only the state-employed Christian chaplain could be present. As Justice Kagan made clear, however, the state “offered no evidence to show that its wholesale prohibition on outside advisers is necessary to achieve” the general goal of prison security. And the Supreme Court majority simply ignored the substance of the policy and any claimed justifications for it. Rather, in lifting the stay of execution and reversing the lower court, the majority merely fell back on a two-sentence procedural argument that Ray had waited too long to make his request.
But Justice Kagan easily refuted that theory, noting that Ray had, in fact, sought judicial relief only five days after learning that his imam wouldn’t be with him in the execution chamber — and not, as the majority implied, three months after. Faced with compelling evidence that Alabama’s policy violated “the Establishment Clause’s core principle of denominational neutrality,” the Supreme Court could have allowed the lower courts to address this weighty constitutional issue. Instead, the majority rushed to “short-circuit that ordinary process,” just to let the state have its “preferred execution date.”
Sadly, the Alabama case was hardly the first threat to religious equality in recent years. Just last term, the Supreme Court issued a pair of decisions that cast serious doubt on its commitment to religious liberty for all. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the court ruled on narrow grounds in favor of a Christian-owned bakery in Colorado that wouldn’t sell a wedding cake to a same-sex couple on the same terms as all other customers. The court in Masterpiece excused an indisputable violation of the state’s civil rights law because, in the majority’s view, state officials had acted with anti-religious hostility when enforcing the law against the bakery.
The purported evidence of bias was weak at best, yet the court went to great lengths to remind us that fundamental religious freedom “bars even subtle departures from neutrality on matters of religion.” The First Amendment, the court noted, “commits government itself to religious tolerance, and upon even slight suspicion” that state policies “stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures.”
Alabama prison officials apparently never got that message. Nor, evidently, did President Trump, when he repeatedly disparaged Islam and Muslims and then enshrined that animosity into national immigration policy with his Muslim ban. Remarkably, only weeks after the Masterpiece decision, the Supreme Court let him get away with it.
In Trump v. Hawaii, a deeply divided court upheld the president’s ban, which imposed strict, indefinite entry restrictions on individuals from certain Muslim-majority countries. Unlike in Masterpiece, the evidence of anti-religious hostility underlying the Muslim ban was massive, consistent, and unambiguous. Throughout his presidential campaign, Trump regularly vilified Islam and called for a “total and complete shutdown of Muslims entering the United States” in a statement that remained on his campaign website well into his presidency. Only one week into his presidency, Trump made good on that deplorable promise, issuing an executive order that targeted Muslim-majority countries and included thinly veiled attacks on Muslim communities here and abroad. Later iterations of the ban followed the same basic blueprint, and the president continued to Islam .
But none of that mattered to the Supreme Court majority in Trump v. Hawaii. In upholding the final version of the ban, the court essentially ignored the overwhelming evidence of blatant anti-Muslim animus underlying the policy, crediting superficial changes the president made in response to earlier court rulings. In the end, the court gave Trump a free pass to discriminate against an entire faith.
Coming on the heels of the Masterpiece decision, the message came through loud and clear. The Muslim ban ruling, Justice Sotomayor explained in dissent, “erodes the foundational principles of religious tolerance that the Court elsewhere has so emphatically protected, and it tells members of minority religions in our country that they are outsiders, not full members of the political community.”
Later this month, religious neutrality will face another crucial test in the Supreme Court. On Feb. 27, the court will hear oral argument in American Legion v. American Humanist Association, addressing the constitutionality of a 40-foot-tall, government-owned Latin cross. Applying decades of precedent, the lower court in the case that government’s giant display of the cross — “the preeminent symbol of Christianity” — as a war memorial to honor the sacrifices of all veterans violates the First Amendment’s ban on official religious preference. Proponents of the state-sponsored cross, including the Trump administration, hope to upend that precedent and thereby open the floodgates to divisive religious meddling by the government.
But the lower court got it right, and the American Legion case powerfully illustrates the multiple dangers of governmental favoritism in matters of faith. First, the state’s elevation of this singular, prominent religious symbol as a war memorial conveys a message of exclusion and disfavor to non-Christians who sacrificed their lives for their nation. As the Jewish War Veterans of the USA , “A government undertakes few tasks more solemn than honoring its war dead. And when the memorial takes the form of a religious symbol of an afterlife available only to Christians, the government favors one faith over others in a profound way. . . . Veterans of all stripes are united by their love of country, but they are not united by the cross.”
Second, just as the , the government’s display of a Latin cross, including its strained effort to secularize the meaning of this unambiguously and uniquely spiritual symbol, threatens a serious degradation and corruption of the faith. In their amicus brief to the court, a coalition of Christian and Jewish groups, led by the Baptist Joint Committee For Religious Liberty, pointedly noted that the government’s “welter of alleged secular meanings for the cross, and their efforts to minimize its religious meaning, are offensive to many Christians. The [state] violates its obligation to be neutral among faiths both when it sponsors the cross and when it spins stories attempting to secularize the cross.”
Although the Supreme Court continues to pay lip-service to the “clearest command” of the Establishment Clause, its recent decisions have fallen woefully short. In the American Legion case, the court has another chance to honor the constitutional promise of religious neutrality. For Domineque Ray, it’s already too late. But let’s hope the trail of religious favoritism ends here.
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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