Reflecting on the biggest stories of 2019, I am left with a central line of questioning that hangs over many of them: Where is the backstop? Where are those lines in the sand, the fundamental commitments that simply cannot be crossed in light of our obligation to ensure religious liberty for all?
In disputes, for example, over displays on government property, government funding of religious institutions, and teaching the Bible in public schools, the lines protecting the critical distinctiveness of religion and assuring religious liberty for all continued to blur in 2019. Unfortunately, many are increasingly equating resistance to that trend with an attack on religion itself, and especially Christianity.
At the same time, grassroots efforts from people of faith are rising up against this trend, including Christians joining together in unprecedented ways and with a new focus to combat the conflation of Christianity with patriotism. These concerns didn’t just materialize over the course of 2019, and they won’t be resolved in 2020. But this does feel like a moment for people who believe in faith freedom for all to take stock and stand up for those lines that must not be crossed if our religious liberty is to remain vibrant.
Here, then is my year in review – my perspective on the biggest stories of 2019 related to religious liberty and the separation of church and state. As always, I am extremely grateful to readers and invite you to keep up with the Latest News by bookmarking the feed page and by following me on Twitter @BJCBlog. Merry Christmas, happy holidays and happy New Year to all who celebrate!
- The Threat of Christian Nationalism Grows Clearer, Inspires Christian Opposition
Of all the 2019 stories in the United States related to religious liberty, both the most harrowing and the most encouraging for me revolved around the growing threat of Christian nationalism and the Christian opposition it inspired.
Defined as the merging of Christian and American identities, Christian nationalism is not a new phenomenon. But, this year we saw increasingly brazen efforts to introduce Christian elements into quintessentially civic spaces. Several states considered or enacted legislation that, for example, would have authorized or required school districts to create public school courses specifically on the Bible. That was no coincidence. A coordinated campaign called Project Blitz seeks to propose state legislation informed by Christian nationalism ideas. At the same time, government leaders – including the attorney general of the United States – described attempts to enforce religious liberty for all people as an attack on traditional Christian values.
The message of Christian nationalism is clear: Christianity holds a privileged place among religions in America, and being a true American requires one to be Christian. It treats non-Christians as outsiders and less than full Americans who should be grateful for being tolerated.
Fortunately, this year also brought a strong response to the growing threat of Christian nationalism. A coalition of civil and religious liberty advocates including BJC announced their opposition to Project Blitz in February. In a statement, the coalition called it out for what it is: an “alarming effort… to harness the power of the government to impose the faith of some onto everyone else, including our public school students.”
Even more notably, BJC launched Christians Against Christian Nationalism, which gathered the signatures of more than 10,000 Christians of different denominational affiliations representing all 50 states in just 10 days on a statement of opposition. “As Christians,” it reads in part, “we must speak in one voice condemning Christian nationalism as a distortion of the gospel of Jesus and a threat to American democracy.” A fantastic new BJC Podcast series on Christian nationalism brought expert perspectives in 10 episodes to discuss the threat. Search for “BJC Podcast” on your favorite podcast provider to check it out.
- U.S. Supreme Court Upholds Memorial Cross
In June, the Supreme Court issued a 7-2 decision allowing a 40-foot memorial cross to remain on government land in Bladensburg, Maryland. The case was closely watched as the Court had not decided a church-state case involving a religious display in several years.
The scope of the decision – written by Justice Samuel Alito – appeared to be limited by the particular history of the cross in question. The Bladensburg Cross, Alito emphasized, has stood for 90+ years, and commemorated fallen soldiers from World War I, when crosses were common grave markers for U.S. soldiers overseas. Alito warned that removing such a long-standing cross could be perceived as an act of hostility toward religion (and thus, he reasoned, more damaging to religious freedom than leaving it up), but nowhere in the Court’s ruling is there support for the constitutionality of constructing new Christian-only monuments on government land.
Most importantly, the Court generally rejected troubling arguments put forward by some that the memorial cross is constitutional because it is a secular rather than a purely religious symbol. That would certainly be news to Christians and non-Christians alike, since the cross is the preeminent symbol of Christianity around the world. The court reiterated the religious significance of the cross and thus avoided a ruling of more sweeping impact that may have fundamentally altered church-state jurisprudence in ways more harmful to religious liberty.
What are the consequences of the Bladensburg Cross decision? Only time will tell, as lower courts apply its reasoning to other disputes, but as BJC General Counsel Holly Hollman wrote for SCOTUSblog, “the court’s narrow opinion should limit the potential damage of its ruling.”
- Disputes Intensify Over Taxpayer Funded Discrimination in Child Placement Services
This year saw an escalation in the controversy surrounding the applicability of nondiscrimination laws to taxpayer-funded child placement services. Because many such entities are religious organizations, they are increasingly requesting relief from laws prohibiting them from engaging in discrimination – including religious discrimination – using government funds.
In one high-profile case, for example, a South Carolina woman who was qualified to serve as a mentor to foster children was declined by a government-funded placement agency simply because she is Jewish. A waiver issued by the Department of Health and Human Services in January allowed Miracle Hill to deny her application on the basis of religious identity. BJC Executive Director Amanda Tyler called the move “a dramatic and troubling shift.”
In November, HHS proposed to eliminate a catch-all regulation that prohibits discrimination in federally funded programs on the basis of religion, sex, sexual orientation, or gender identity. As Religion News Service reported at the time, the proposal “may pit religious groups against each other” while leaving children caught in the middle.
Courts are also weighing in on the relationship between nondiscrimination requirements and religious freedom protections. In Michigan, a federal court in October ruled that the state’s policy requiring all organizations contracting with the government to provide child placement services to comply with nondiscrimination rules is a violation of a religious agency’s rights under the First Amendment and the Religious Freedom Restoration Act.
In April, meanwhile, the 3rd U.S. Circuit Court of Appeals upheld as constitutional the city of Philadelphia’s decision to halt a foster care placement contract with Catholic Social Services (CSS) because they refused on religious grounds to place foster children with same-sex couples. The court found that the policy is neutral with respect to religion and that the state has a compelling interest in eradicating discrimination. In July, CSS asked the U.S. Supreme Court to intervene. That request is still pending.
- Conflicting Supreme Court Rulings Raise Issue of Death Row Inmates’ Right to Clergy in Execution Chamber
One of the most unexpected religious liberty debates to arise in 2019 was the result of requests to temporarily suspend executions in two different cases, which produced two different outcomes by the U.S. Supreme Court. At issue were claims made by the inmates that the process leading up to execution discriminated against them. They were not allowed to have clergy representing their respective faiths in the execution chamber with them, but Christian clergy were available.
In February, the Supreme Court overturned a stay issued by the 11th U.S. Circuit Court of Appeals and allowed the execution of a Muslim inmate who claimed his religious freedom rights were violated because he was only offered the services of a Christian chaplain in the execution chamber. BJC Executive Director Amanda Tyler called the decision an “astonishing display of Christian preferentialism” that “seems to have crossed a line for a decent civilization.”
Just one month later, the Court halted the execution of Patrick Murphy, a Buddhist inmate in Texas, who was offered only Christian and Muslim clergy to be present with him in the execution chamber. Justice Brett Kavanaugh expressed his view that the Constitution “prohibits such denominational discrimination.” Sadly, Texas responded to the Court’s ruling not by offering an accommodation but by barring all clergy from the execution chamber, thus in theory eliminating the charge of differential treatment.
In November, Murphy’s execution was again halted, this time by a district judge, who found that the state continues to treat death row inmates of different faiths differently. Murphy also argues that religious freedom law requires the state to not only treat all inmates the same regardless of faith, but it requires the state to allow him to have a religious leader of his choice in the execution chamber with him, as a protected expression of his religious faith.
- Labor Department Proposes New Rules Allowing Religious Discrimination with Taxpayer Funds
It wasn’t just the Department of Health and Human Services that sought to roll back nondiscrimination rules in the name of religious liberty. The Labor Department in August proposed new rules broadening the religious exemption for government contractors to be able to discriminate on the basis of religion, using government funds. Under the new definition, for-profit contractors receiving federal funds could refuse to hire employees of a certain faith – or certain religious beliefs – if doing so would conflict with the religious mission of the company. As NBC News reported, “[t]he company need not be primarily religion-oriented. It need only declare itself to be … religious … .”
BJC issued a public comment to the proposed rule, calling it a “harmful and unnecessary expansion of the existing religious exemption.” Expanded exemptions, BJC said, “are not justified in the context of government-funded jobs to provide government-funded services that must be provided without regard to religion.” The fight over the ability of government-funded employers to impose a religious test on job applicants promises to continue in 2020.
- State Decisions Address Disputes Over Discrimination, Religious Objections
This year brought decisions from two state supreme courts in closely watched cases, both related to claims for exemption from public accommodation laws on the basis of religious objection to same-sex marriage.
In Arlene’s Flowers v. Washington, the Washington Supreme Court reaffirmed its previous ruling against a florist who refused to create custom flowers for a same-sex wedding. The court held that no hostility toward religion was evidenced by the actions of the court in adjudicating the discrimination claim against her.
Meanwhile, in Arizona, the Supreme Court sided with business owners who argued that religious freedom guarantees do protect them against enforcement of nondiscrimination laws for refusing to create custom wedding invitations for same-sex couples. The court cited the state’s equivalent of the Religious Freedom Restoration Act and determined that enforcement of nondiscrimination law places an unnecessary substantial burden on the free exercise of the business owners.
- Supreme Court Takes Montana Case
In June, the U.S. Supreme Court agreed to hear Espinoza v. Montana Department of Revenue, a case challenging Montana’s right to restrict the state’s tuition tax credits from being used for religious education in light of a state constitution that prohibits taxpayer dollars from being used to fund religion.
The Montana Supreme Court struck down the program, and parents argue that denial amounts to religious discrimination in violation of the First Amendment. BJC filed a brief in this case arguing that, in fact, such distinctive treatment of religion is essential and a hallmark of the religious liberty safeguards enshrined in our Constitution.
The plaintiffs in Espinoza rely heavily on the Supreme Court’s decision in Trinity Lutheran Church, where the Court held that denying access to a playground refurbishment grant pursuant to a similar state law was unconstitutional. The Court indicated, however, that its ruling was narrow and limited to the particular facts of that case. Does Trinity Lutheran mean that states must fund religious education itself?
The case is scheduled for oral argument on January 22, 2020.
- Religious Exemptions From Vaccination Requirements Reconsidered
A measles outbreak earlier this year renewed questions about religious exemptions from vaccination requirements. In June, New York Governor Andrew Cuomo signed into law a measure repealing that state’s religious exemption. Lawmakers in several other states also considered similar legislation. Meanwhile, a Kentucky appeals court affirmed a local health department’s exclusion of an unvaccinated student from school events where the student refused vaccination on religious grounds.
- Trump Falsely Claims End to Johnson Amendment
One of the great accomplishments by religious liberty advocates in 2017 and 2018 was the continued protection of the Johnson Amendment, the part of the tax code requiring tax-exempt organizations – including religious institutions that are 501(c)(3)s – to refrain from engaging in electoral campaigning. Despite consistent support from faith leaders and secular leaders for keeping our houses of worship free of the messy, divisive world of electoral politics, some elected officials have continued their efforts to politicize our congregations by supporting a dismantling or repeal of the Johnson Amendment. Thus far, they have failed. Thankfully, the Johnson Amendment remains intact.
It’s all the more troubling that President Trump has continued to claim falsely that his administration has brought about the destruction of the Johnson Amendment. Presumably, this may continue to be a feature of his campaign speeches through 2020.
Is it a big religious liberty story for something not to have happened while Americans are led to think that it did? After all, the protection remains in place. I believe that is a significant story, especially to the extent that houses of worship, relying on the word of our highest elected official, jeopardize their tax-exempt status by injecting electoral politics into their official work. This false claim also gives Americans the wrong idea about how both our religious liberty and our democracy are being protected under the law.