Abandoning a longstanding constitutional protection for the separation of church and state, the Supreme Court ruled earlier this week that a church must be allowed to participate in a state program that provides direct taxpayer grants to improve school playground surfaces. The decision was very troubling. As we argued in our friend-of-the-court brief in the case, , the government should not be funneling public funds directly to churches or other houses of worship, for any reason. Period.
Those who support government funding of religion are rejoicing over the ruling, eager to secure public dollars for a variety of religious purposes, including school vouchers that are barred under many state constitutions. But lawmakers shouldn’t take out their checkbooks just yet. As troubling as Monday’s decision was for the separation of church and state, it was based on explicitly narrow grounds. The court went out of its way to note that the ruling applies only to “express discrimination based on religious identity with respect to playground resurfacing,” which the court appeared to view as a secular use of funds.
The decision did not address — and thus left in place — other restrictions on public funding of religion, including what the court characterized as “religious uses of funding,” which have long been prohibited by the Establishment Clause of the First Amendment. The court also affirmed that it is still proper for states to take into account the proposed use for government funds when awarding them. A state may still, for instance, enforce its state constitutional provisions protecting the separation of church and state by declining to provide taxpayer dollars for the training of ministers, even as part of a broader grant program.
In a concurring opinion, Justice Neil Gorsuch, joined by Justice Clarence Thomas, argued that court should have gone further by holding that the First Amendment requires houses of worship and other religious institutions to be eligible for government funding programs regardless of whether the funds will be put to “religious uses.” The other seven justices, however, did not subscribe to this view, which would overturn longstanding precedent on this issue and completely upend — even more so than Monday’s decision — the First Amendment’s delicate balance between safeguarding the free exercise of religion while also protecting against its establishment.
Yesterday, in light of the Trinity Lutheran decision, the Supreme Court also vacated and remanded several state supreme court decisions pertaining to government funding of religious institutions, including a by the ACLU and allies against a Colorado school voucher program. Although the Supreme Court sent those cases back to the state courts for further consideration, it routinely takes this approach when it issues an opinion addressing an issue that relates to existing litigation. It gives the lower courts the first opportunity to determine what effect, if any, recent rulings may have on the case. But it doesn’t affect the limited nature of the Trinity Lutheran decision itself. The Colorado Constitution, for example, prohibits public funds from being used for religious purposes, directly or indirectly. School vouchers, which will fund religious education and indoctrination, as well as religious discrimination against students, plainly violate that provision. Nothing in the Trinity Lutheran decision requires the Colorado courts to abandon the state’s long history of protecting against the use of taxpayer money for such purposes.
While Monday’s narrow ruling does not provide a broad authorization for government funding of religion, it is nevertheless a stark warning for those of us who value the Constitution’s abiding protection for the separation of church and state. As Justice Sonia Sotomayor wisely cautioned in her forceful dissent, whatever one thinks of the outcome in Trinity Lutheran, the real concern is “what it might enable tomorrow.” Never before has the court held that the government may provide direct cash aid to a church. If the court is willing to cross that constitutional line here, it does not bode well for upholding other Establishment Clause principles in the future.
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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