» Establishment Clause

Quarantining Churches as a Community Health Threat

SpeakUpChurch — Mon, 04 Feb 2013 18:00:36 +0000

By Rory Gray, Alliance Defending Freedom Litigation Counsel

Churches have always served a key role in American society, not only as centers of worship but also as polling places, food pantries, concert venues, and general meeting places. So it is hardly surprising that when the Elmbrook Community School District in Wisconsin lacked an adequate venue for its high school graduation ceremonies, it rented a local church. Graduation moved back on campus once a building was completed that could comfortably accommodate every student’s guests. But the District’s secular use of a church building upset the atheists who so often view religion as a kind of communicable disease that must be quarantined from public life. And they filed a federal lawsuit to prohibit the District from renting a church, in the future, for any purpose.

Thankfully, the district court saw the atheists’ religious phobia for what it was and ruled that renting a church to obtain “an adequate, convenient, cost-effective graduation venue” did not violate the Establishment Clause. On appeal, a three-judge panel of the Seventh Circuit in Chicago agreed, citing the lack of evidence that the District had “any religious purpose” in renting the church and noting the District’s clear desire “to make use only of the Church’s material amenities.” But, unfortunately, the fact that everyone acknowledged the District rented the church’s building simply for its large, air-conditioned auditorium was not enough for a majority of the Seventh Circuit’s judges sitting together en banc.

Contrary to what four judges had already found, seven out of ten Seventh Circuit judges sitting on the en banc Court concluded that the District violated the Constitution by failing to run away from the church’s “pervasively religious” facilities at full sprint. Oddly emphasizing the church’s rather conventional religious symbols and decorations, the Court declared that churches are generally off limits, which means that schools must rent secular facilities no matter the inconvenience or cost. For example, the Court noted that if all secular buildings burned to the ground in a natural disaster, the District’s rental of a church would pass muster. Otherwise, the Court viewed exposing high school students to “pervasively religious” church buildings as simply too dangerous. The Court’s fear was that students might voluntarily undertake religious activity inspired not by the District but by their friends.

The Seventh Circuit’s reasoning is deeply troubling because it supports the atheists’ view that religion is a dangerous force that must be isolated and contained—a view which has no basis in the Constitution. Alliance Defending Freedom fights against such misconceptions on a daily basis and we filed a friend-of-the-court brief recently that urges the Supreme Court to take the Elmbrook case. The brief explains that nothing in the Constitution requires government to treat churches like the leper colonies of the modern American state. And it emphasizes the dangers the Seventh Circuit’s reasoning poses to religious freedom by requiring discrimination against not only churches but religious students as well. Indeed, the Seventh Circuit viewed private religious conduct—protected by the Free Exercise Clause—as the primary justification for finding an Establishment Clause violation.

Your support is key in the legal battle ahead. We ask that you pray for the Supreme Court, that the justices would grant review in the Elmbrook case, and for our attorneys, as they continue our legal efforts. And we ask that you would also pray for a change of heart in the atheists: that they would learn Christianity is not a plague that threatens humanity, but the cure by which God chose to save it.

Another National Day of Prayer Victory

Kevin Theriot ADF Senior Counsel — Wed, 14 Dec 2011 22:25:41 +0000

On December 12, Judge Silver, a federal judge in Arizona, threw out a claim that Arizona Governor Jan Brewer violated the Establishment Clause by issuing day of prayer proclamations in observance of the National Day of Prayer. The court cited the Seventh Circuit’s recent ruling in FFRF v. Obama, saying “hurt feelings” don’t give someone standing to bring a federal case. The Court also said that no constitutional injury results from plaintiffs getting up to turn off the TV or avoiding conversations with people because they don’t want to hear about the prayer proclamations.

Judge Silver got it exactly right. The Establishment Clause doesn’t give anti-religionists license to roam the country or channel surf looking for things to be offended by, and then making a federal case out of them. There is no right not to be offended in America. This decision, like the Seventh Circuit’s decision in FFRF v. Obama in which ADF represented Mrs. Dobson and the National Day of Prayer Task Force, is another very important step in limiting the ability of anti-religion activist groups like FFRF to harass state and local government officials who simply want to acknowledge our nation’s religious heritage. These groups often use lawsuits and the attorney fees that come with them as a vehicle to intimidate government officials into silence about their own religious beliefs, as well as those of our Founding Fathers and the vast majority of present day Americans.

Certainly the government cannot tell people how, and to whom, to pray. But a long line of government officials like George Washington, Abraham Lincoln, Franklin Delano Roosevelt, and Ronald Reagan have encouraged people to pray because they believed it is helpful to our country and rightly acknowledges our religious heritage. Our Founders even had prayer at the Constitutional Convention. The Constitution was never meant to be used to censor this practice, and courts shouldn’t misinterpret it to do so now.

Kudos to Judge Silver for getting this one right, and to Governor Brewer for standing against special interest groups bent on silencing her and eradicating religion from all public acknowledgement.

USAToday Column Proposes Cleansing Politics of Religion

Kevin Theriot ADF Senior Counsel — Tue, 08 Nov 2011 16:38:24 +0000

A recent column in USAToday titled “5 rules for faith and politics 2012” proposes rules the authors say would avoid both theocracy and hostility toward religion. But all they succeed in doing is marginalizing people of faith who have the audacity to think their most cherished beliefs about God and morality should affect all aspects of their lives - including how they vote. A review of their “5 rules” indicates what the authors really want is for people of faith to keep their religious convictions to themselves. Their fear of a theocracy is completely unfounded. Virtually all of the Founding Fathers had a political philosophy that reflected their Christian beliefs and nobody would argue they set up a government that established a theocracy. I suspect what the authors are really afraid of is people of faith waking up to the fact that we must have moral, God honoring leaders if we expect to have a moral, God honoring country. Their proposed rules attempt to shame religious voters into closing their eyes to a candidate’s moral convictions (or lack thereof). Moreover, they ask people of faith and their churches to sacrifice the religious freedom that is the foundation of our country.

Their first rule advocates that the wise constitutional provision prohibiting the government from imposing a religious test for office should apply to individuals also. They say, “Voters should evaluate candidates based on their policies, their values and their character but not on whether or how they choose to worship.” Of course, one’s values and character are heavily influenced by religious beliefs. Not to consider them would be foolhardy. And I highly doubt the authors themselves would vote for someone whose religious beliefs include child sacrifice (which recent tragic reports demonstrate is not merely an implausible hypothetical).

The next rule would prohibit the Catholic Church from denying communion to politicians who fail to abide by and uphold the Church’s beliefs. The authors think churches should not hold their members accountable when members act in a way that is contrary to what they say they believe. This effectively encourages hypocrisy. Under this rule, politicians can say they believe abortion is murder on Sunday but vote to allow it (and force all taxpayers to pay for it) on Monday – and their church is absolutely prohibited from taking any action to correct them. This asks churches to forfeit a long established right to govern themselves and their members without governmental interference.

“Candidates should refrain from citing religion as the exclusive authority for their position on issues,” is the authors’ next proposal and it also restricts religious freedom. The rule is really just a restatement of part of the Supreme Court’s Establishment Clause Lemon Test which requires all government actions to have a secular purpose. Putting aside whether Lemon is a good test or not, it only applies to the government, not a candidate. Obviously, if they are elected to office, candidates will want to be able to articulate reasons for their policies that aren’t necessarily based on religious conviction in order to persuade their colleagues that don’t share those convictions. But when a candidate is running for office, there’s absolutely nothing wrong with saying something like, “my deeply held religious beliefs prohibit me from voting for laws imposing the death penalty.” This creates no constitutional crisis and many voters are interested in what’s underlying a candidate’s views on a particular issue.

The fourth proposed rule, as explained by the authors, appears to be relatively benign. As I understand it, they believe politicians should avoid alienating anyone who does not share their religious beliefs, but they should be free to express their personal religious beliefs. They use former President George W. Bush’s reference to Christ as being the most influential political philosopher in his life as being acceptable. To the extent the authors are saying they think it’s smart for politicians to avoid offending people of different faiths, that makes sense. But the idea that this can be accomplished by not using references to God, and instead saying “the Creator,” “the Almighty,” or “Divine Providence” is naive. These terms may offend any number of groups, including atheists and polytheists.

The final proposed rule is fraught with danger and inaccuracy. It reflects the current law (the “Johnson Amendment”) which prohibits pastors from preaching to their congregations about how a candidate’s platform lines up with scripture. The authors claim this law is necessary to avoid election fraud. But pastors who preach sermons and apply Scripture to political candidates are not making an “end-run” around campaign finance laws. They are exercising their right to freedom of religion. The tax code restrictions that prevent churches and pastors from specifically discussing how their faith applies to a particular election and the candidates in that election trample the First Amendment. (Click here for an excellent article by my colleague Erik Stanley summarizing the constitutional problems with the Johnson Amendment). Other tax-exempt organizations, such as veterans’ groups, are allowed to endorse or oppose candidates and remain tax-exempt while giving their donors a deduction for contributions. Why single out churches and religious organizations for discriminatory treatment?Further, whether such endorsements or oppositions are “deeply problematic from a religious perspective” is a great question for churches to debate but not for the government to mandate. Those who believe their faith requires that they apply Scripture and its teachings to specific candidates and elections are prohibited from doing so by the Johnson Amendment. The government, in effect, has mandated a winner in what is a quintessential theological debate: namely whether churches should apply Scripture in a way that opposes or endorses a candidate. The Johnson Amendment allows government to act as a type of “orthodoxy police” to enforce its own view of how religion should apply to candidates and elections. That is not only offensive from a religious perspective, it is blatantly unconstitutional.

Professor Carl Esbeck is fond of saying, “The government does not establish religion by leaving it alone.” But the authors’ “5 rules for faith and politics” have the opposite effect. For the most part, they meddle in the religious affairs of churches and individuals, requiring them to check those beliefs at the door whenever the realm of politics is entered. This misguided attempt to “cleanse” politics of religion is a bad idea because it tramples religious freedom, and would make politics a completely secular, amoral undertaking. God knows it’s bad enough already!

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“Our _, Who Art In _ … Nobody Knows Your Name”

Joel Oster - ADF Senior Legal Counsel — Wed, 05 Oct 2011 19:51:16 +0000

Have you ever thought about who you pray to? The name. The deity. Jabez cried out to the “God of Israel.” Daniel prayed, “O Lord, the great and awesome God….” Jesus himself, when giving us an example, prayed, “Our Father, who art in Heaven….”

The point is that, when we pray, we are communicating with God, so we call Him by His name. We are reverent. We are sincere.

It is hard to think of a practice more intimate, more to the core of a person’s religious beliefs, than the name in which a person prays. Calling to a deity is a person announcing who he believes in.

So that is why it is so odd that the government is now trying to get in the business of telling people how and to whom to pray.

Let me provide a little context. In Marsh v. Chambers, the United States Supreme Court was presented with a legal challenge to the Nebraska Legislature’s practice of permitting a chaplain to open its sessions with prayer. This chaplain, Rev. Palmer, had been hired by the Nebraska Legislature and, for 16 years, offered prayers before the legislature. According to the plaintiff, these prayers were unconstitutional because they were exclusively in the Judeo-Christian tradition, many were in Jesus’ name, and thus the prayers favored Christianity.

The Supreme Court, after reviewing all of the prayers, and after noting that the practice of legislative prayers has been going on in America since before we became a nation, found that the prayers did not violate the Constitution. The Court said,

“The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country. From colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom.”

So that should have settled this issue that prayers are permitted to open legislative sessions. But it didn’t. Groups like Americans United for Separation of Church and State had lost one fight but were not about to give up. But since they could not challenge the prayers themselves, they instead attacked the deity to whose name the prayers are offered. These groups want the various town councils, counties, and state legislatures to tell people that they cannot pray to Jesus.

They want the government to tell people how and to whom to pray!

One would think that a group that calls itself “Americans United for Separation of Church and State” would not be advocating for the government to tell people how and to whom to pray. If anything, one would think that if the town did tell people how to pray, this group would be on our side. I mean, if “separation of church and state” means anything, it should mean that the government should not be in the business of telling people how or to whom to pray.

But that is exactly what they were asking the Town of Greece to do in the case , a case pending before the U.S. Court of Appeals for the Second Circuit.

Surely, no federal court would require a government official to tell a private person how to pray. But in Joyner v. Forsyth County, the U.S. Court of Appeals for the Fourth Circuit recently ruled that the county’s practice of allowing prayer before its meetings was unconstitutional because it did not instruct the prayer giver on how to pray, or rather, to whom the prayer giver should not pray. According to the court, because the county failed to properly instruct the prayer givers on how to pray, many prayers were given in Jesus’ name, and thus were unconstitutional.

Attorneys for the Alliance Defense Fund represent the county in this lawsuit, and we will be asking the Supreme Court to take this case and restore some consistency to the law governing legislative prayers. We believe that the government should not be in the business of telling private individuals how or to whom to pray. This is a matter best left between the person and God. The question of whether a town council or a legislature can open its session with prayer has already been decided by the Supreme Court: such deliberative bodies clearly can.

The issue, then, becomes, to whom should that person pray? And at the very least, the Establishment Clause should mean this – the government should not be establishing an official deity to whom it is acceptable to pray. Now that would be an unconstitutional establishment of religion.

Top Legal Issues That Concern Churches – Issue #7 Equal Access

Kevin Theriot ADF Senior Counsel — Fri, 09 Sep 2011 21:02:07 +0000

Some local governments still discriminate against churches that would like to use community facilities like public auditoriums and schools even though the Supreme Court determined back in 1993 in the Lamb’s Chapel case that such discrimination is unconstitutional. This is especially problematic for new churches that often start out meeting in schools or other public facilities as they try to grow large enough to have a place of their own. ADF currently represents a church in New York in the case Bronx Household of Faith v. Board of Education where the city is attempting to prohibit the church from renting school facilities to hold worship services. Once again, it’s important that pastors and church leaders educate themselves on the legal protection for churches and not allow themselves to be bullied by public officials, even if it means going to court to defend religious freedom. Our “Equal Access FAQ” document on the resource page provides a good overview of this issue.

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Giving Churches the Business

Kevin Theriot ADF Senior Counsel — Wed, 04 May 2011 17:01:17 +0000

If you’ve ever watched “Leave it to Beaver” re-reruns, you know that Beaver, the young star of the show, was always getting hassled by his older brother’s friend, Eddie Haskell. Eddie was the neighborhood smart-mouth. When the abuse became unbearable, the Beaver would say something like this, “Gee Dad, Eddie’s giving me the business again.”

That’s exactly what the Sixth Circuit did to a church’s religious school in the EEOC v. Hosanna-Tabor case last year. It didn’t just give churches the business, it got the government involved in their business when it ruled the school could not fire one of its teachers for threatening to sue them. The teacher was a commissioned minister in the church and tasked with teaching church doctrine to students, not only by leading daily devotions, but also by infusing every subject with a biblical worldview. When she threatened to sue the religious school over an employment dispute, the church revoked her status as a minister and let her go. The church and its school observe the New Testament admonition that Christians should not bring their disputes before secular judges. (As I demonstrated in a recent blog,such suits among believers are not only unbiblical, they are foolish). More details on the Hosanna-Tabor case and a copy of the Sixth Circuit opinion are available here.

Courts have long kept out of employment decisions made by religious organizations regarding their ministers. The doctrine is called the “ministerial exception” and it’s rooted in the idea that a secular court isn’t equipped to review a spiritual decision by a religious organization regarding individuals charged with communicating theology to others. One of the clear reasons for the First Amendment’s Establishment Clause is to keep the government from entangling itself in church affairs. As Professor Carl Esbeck often says, “the government doesn’t establish religion by leaving it alone.” But the Sixth Circuit ignored these well-established principles when it determined that, even though the teacher was tasked with inculcating religious principles into students throughout the day, she also taught secular subjects like history and science.  ”Everyone” knows a biblical worldview is not important in these types of subjects, and there are no religious principles to be learned!

The good news is the U.S. Supreme Court has agreed to review the Sixth Circuit’s decision this year. It will be the first time the Court has directly ruled on the ministerial exception, which is widely recognized by lower courts. This will likely have significant ramifications for all churches so please be in prayer for this case. ADF recently became involved in this case at the trial level, and one of our allies, the Beckett Fund, is representing the school before the U.S. Supreme Court. We will continue to work to help the Court come to a decision that protects religious freedom and keeps the government out of the business of churches.

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Poetic Justice

Kevin Theriot ADF Senior Counsel — Mon, 18 Apr 2011 14:47:32 +0000

It was exactly one year ago that a Wisconsin federal court incredibly ruled that our 200 year practice of praying together as a nation is unconstitutional by striking down the statute establishing the National Day of Prayer. But on April 14, 2011, the day before the anniversary of that troubling ruling, the Seventh Circuit Court of Appeals reversed it in a fantastic opinion holding that the anti-religious Freedom From Religion Foundation should not have been allowed past the courthouse gate because they suffered no legal injury.

Voting 3-0, the Seventh Circuit held that FFRF doesn’t have standing to even challenge the NDOP. Chief Judge Easterbrook, a very prominent and nationally respected judge, wrote the opinion and said that “offense at the behavior of the government, and a desire to have public officials comply with (plantiffs’ view) of the Constitution, differs from a legal injury.”   Without a legal injury, plaintiffs can’t sue, and merely being offended isn’t enough. The court went on to say, “the ‘psychological consequence presumably produced by observation of conduct with which one disagrees’ is not an ‘injury’ for the purpose of standing…. Plaintiffs have not altered their conduct one whit or incurred any cost in time or money. All they have is disagreement with the President’s action. But unless all limits on standing are to be abandoned, a feeling of alienation cannot suffice as injury in fact.” Even the judge that was most sympathetic to the FFRF at oral argument said they didn’t have standing because  ”the observation of conduct with which [they] disagree …was insufficient to confer standing.”

So the only court to ever hold that the statute directing the president to issue a prayer proclamation on the first Thursday in May was unconstitutional has now been reversed. Of course, the folks at FFRF have vowed to ask all of the judges at the Seventh Circuit to review this ruling in a petition for rehearing en banc. And they will likely petition the Supreme Court to hear the case if that fails. But their chances of success are slim given the unanimous ruling and the seniority of Chief Judge Easterbrook.

This ruling adds to the list of recent setbacks for anti-religious forces in America in Establishment Clause cases. It reflects a trend of restricting the requirements of standing in these cases as demonstrated in Hein v. Freedom From Religion Foundation (no standing to challenge President Bush’s faith-based initiative), and ACSTO v. Winn (no standing to challenge tax credits for school choice).

What a great day for religious freedom and our nation’s heritage.

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No April Fool’s Day for Religious Freedom

Kevin Theriot ADF Senior Counsel — Fri, 08 Apr 2011 16:28:22 +0000

April 1 wasn’t a Fool’s Day for religious freedom in Kentucky. In Nelson v. Baker, the Court of Appeals soundly rejected a claim by former members of First Baptist Church of Jeffersontown, Kentucky who sued for the right to access the church’s financial information. It is foolish for believers to sue one another despite the Bible’s clear admonition not to in I Cor. 6:7. But that’s a different, more fundamental, matter I’ll get to in a second.

The good news is the court wasn’t fooled by an attempt to characterize access to church financial information as a completely secular matter. Courts have long held that the First Amendment protects churches from interference from government officials in the areas of doctrine, membership, policy, and interaction with its pastors. You can find a detailed analysis of this area of the law - often referred to as “Church Autonomy” – on our resource page in a document titled Church Autonomy White Paper – Protecting Churches From Government Interference.

The Kentucky Court of Appeals rightly applied this law and found that determining who gets access to financial documents is one of  the things churches can decide for themselves. It held: ”The Church’s financial records and method of presentation to the congregation are clearly matters of internal governance and organization, and are, therefore, not subject to interference by the court.” The court’s refusal to encroach upon church autonomy is a reminder that the best way for the government to avoid establishing a religion in violation of the First Amendment is to leave churches alone.

The court’s decision also reminds us that church members should stop foolishly attempting to drag courts into the realm of religion by filing lawsuits against their own church body. The Apostle Paul wisely advised in I Cor. 6:1-6, “If any of you has a dispute with another, dare he take it before the ungodly for judgment instead of before the saints? …[I]f you have disputes about such matters, appoint as judges even men of little account in the church! I say this to shame you. Is it possible that there is nobody among you wise enough to judge a dispute between believers? But instead, one brother goes to law against another – and this in front of unbelievers!”

Lawsuits like this make the whole Body of Christ look foolish.

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Supreme Court Limits Ability of ACLU and its Allies to File Lawsuits under the Establishment Clause

Erik Stanley - ADF Senior Legal Counsel — Tue, 05 Apr 2011 19:41:58 +0000

My colleague David Cortman posted a blog about the recent Supreme Court victory in ACSTO v. Winn. As he points out, there are many great things to celebrate about that case. I thought I would highlight one other positive development from that case. For decades, we have been witnesses to an unprecedented assault on religion in the public square, aided by the Supreme Court who has allowed the ACLU and its allies to file lawsuits against anything the government does that in any way touches religion. These case have removed prayer, Bible reading, and the Ten Commandments from schools, removed the Ten Commandments from courthouses across the nation, struck down prayer at school football games, prohibited religious involvement in government programs, invalidated aid to certain private schools simply because they might be religious, held unconstitutional scholarships that may be used for religious education, and the list goes on and on. Suffice it to say that religion in the public square has taken quite a beating in the last several decades thanks to the ACLU and its allies.

The ACLU has gotten away with this because the Supreme Court has relaxed the “standing” rules to bring lawsuits under the Establishment Clause. Put simply, a person must normally prove they are specifically and uniquely injured in some way in order to seek redress from the courts. If a person only suffers an injury that is shared by all of society, then they are not suffering a particular injury that the court can remedy. As an example, normally a person cannot sue the government and claim that the taxes he or she pays are being used inappropriately. The courts recognize that such a claim of harm is speculative and that the proper remedy for that claim lies in the legislature, not the courts.

Yet the Supreme Court created a broad and expansive standing doctrine under the Establishment Clause that allowed for the ACLU and its allies to essentially roam the country and file lawsuits against anything they saw that offended them. That’s why today we see lawsuits like those in Colorado and Wisconsin that challenge even our ability to engage in a National Day of Prayer. It’s why the ACLU felt it could challenge Arizona’s school choice law.

The Supreme Court, though, in the ACSTO case seems to be saying that it has had enough of these kinds of frivolous and speculative lawsuits. The ACLU and its allies in ACSTO were arguing that they were injured by the school choice program simply because some people in Arizona might choose to give money to a school tuition organization who would then possibly decide to give a scholarship to a student that might be used at a religious school; and then the people who originally gave the money might choose to avail themselves of a tax credit offered by the State of Arizona and, the people represented by the ACLU might have to pay more money in taxes as a result. What a twisted, convoluted, and speculative logic! But the Supreme Court thankfully saw just how twisted this line of reasoning was and held that there was no injury here and the ACLU and its allies had no standing to challenge the school choice law.

This was a positive development in the law. Indeed, if we could step back and look at a possible developing trend, we would see that the Supreme Court seems to be cutting back on the ability of the ACLU and its allies to have standing to bring challenges under the Establishment Clause. Just last year the Court decided a case called Hein v. Freedom From Religion Foundation where it held that the Freedom From Religion Foundation did not have standing to challenge expenditures by the Executive Branch of government that touch on religion. The ACSTO case is another step in the right direction of limiting the ability of the ACLU and its allies to roam the country in search of what they perceive to be Establishment Clause violations and then file a lawsuit to have those invalidated.

The Supreme Court still has a long way to go to restore sanity to this area of the law. For example, another way the Court has expanded the standing doctrine under the Establishment Clause is to allow people “offended observer” standing. This allows groups like the ACLU to sue over Ten Commandment displays and the National Day of Prayer simply because they have to come into unwelcome contact with something that offends their religious (or agnostic) sensibilities. The Court should do away with this doctrine like it seems to be doing away with taxpayer standing under the Establishment Clause. ACSTO was a step in the right direction. Let’s pray that the Supreme Court continues this trend of undoing the great damage caused in the courts by the ACLU and its allies.

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To read David Cortman’s blog about the ACSTO v. Winn ruling, click here.

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School Choice Program Prevails. Kids & Parents Ultimately Win

David Cortman — Mon, 04 Apr 2011 22:01:25 +0000

Earlier today (April 4^th), the Supreme Court of the United States handed down an extremely important decision in ADF’s case, ACSTO v Winn. Although the Court doesn’t always get it right, at least in my opinion, it certainly did in this case. And it’s not simply because it was an ADF case. It was because of the important issues that were at stake; such as, whether the ACLU or its clients can even bring a lawsuit over someone else’s donations (like your tithes) to non-profit groups (like your church), whether those donations violate the so-called separation of church and state simply because some of them go to religious groups, or the underlying issue of whether all of our money belongs to the government and only by its “grace” does it not tax it all. And even though these issues came to the Court wrapped in the context of school choice, which is an important issue itself, these are tremendously important issues in all contexts.

For those of you not familiar with the case, the case centers around an ACLU challenge to an Arizona school choice program, brought on behalf of a few taxpayers who were offended by the fact that private religious schools–along with all secular schools–were permitted to participate in the program. The state of Arizona is one of the nation’s leaders when it comes to school choice. Educational options currently include traditional public schools, charter schools, virtual or on-line schools, free out of district schools, home schools, and private schools. As part of these choices, the legislature enacted a law allowing donations to be made directly to public schools, and indirectly to private schools through non-profit 501(c)(3) organizations (called STOs or School Tuition Organizations). Anyone can set up an STO. Any STO can support any group of schools. Any citizen can make a donation to any STO. And any taxpayer may take a state tax credit up to a certain limit for the donation.

Sounds like a good plan, so what was the problem? In my opinion there were at least two fundamental problems that the ACLU had with this program. The first is that the ACLU doesn’t like that religious groups get to participate in government programs–even on a neutral basis. The second is that the ACLU is no friend of school choice.

As to the first problem, the ACLU claims that the program is not “neutral” because more donations are sent to religious schools. This, they claim, skews the choices of parents toward sending their kids to religious schools. And this allegedly violates the Establishment Clause because the government is the one that is supposedly favoring religious schools by enacting the tax credit. Got that? If it sounds convoluted and seems like tortured logic that is because it is. There are so many obvious flaws in this argument that it is almost difficult to know where to begin. But I said “almost,” so here I go. As to neutrality, the constitution requires that the government program be neutral, not the choices of Americans in utilizing that program. Even so, the program allows anyone to donate to any public school directly, or to any private school through an 501(c)(3) STO. Anyone can set up an STO, and that STO can support any group of schools. Sounds neutral to me.   What about more money going to religious STOs and schools? A few responses. Most logically (and supported by simple math), there are more religious private schools than non-religious ones (religious groups tend to be the ones who open private schools). Hence, the part about more money going to religious schools. And not a dime can go to a religious school unless a parent chooses for his child to attend that school and apply for a scholarship. And isn’t this program supposed to be about parental choice in education? At least I thought it was. A bit more math. Even though there are more private religious schools, as a matter of percentages there is more money going to private secular schools than religious ones.

And then there’s the whole “this is the government’s money” argument that the ACLU makes. Talk about far-reaching and dangerous. The ACLU argues that because a tax credit is given by the government for the donation, the money is really the government’s to begin with (even at oral argument before the Court, several Justices recognized that this was the essence of the ACLU’s claims). Let’s analyze that claim for a minute. So, if you donate to your church or other charitable organization and take a charitable contribution deduction on your tax return, does that mean that the money you donated was really the government’s and not your own? Because as a constitutional matter, there is no difference between 30 cents on a dollar tax forgiveness for a charitable deduction (depending on your tax bracket) and a 100 cents on a dollar tax forgiveness for the tax credit. Let’s look at where the ACLU’s logic extends. If every dollar that the government chooses NOT to collect from us in taxes is really the government’s money, where does that stop (or start)? To put it plain and simple, it is a communistic/ socialistic theory in its purest form. According to the ACLU, it all belongs to the government—even the portion that they allow us to keep. Talk about elevating the government to a god-like status. But providentially, the Court rightly dismissed that argument by stating, “When Arizona taxpayers choose to contribute to STO’s, they spend their own money, not money the State has collected from respondents or from other taxpayers…. Private bank accounts cannot be equated with the Arizona State Treasury.”

And quickly to that whole school choice issue. The ACLU is obviously a leftist organization, and those on the far left don’t like parents to be able to choose where their own children go to school. These leftist groups, also including the powerful NEA (National Education Association)–which filed a brief in the case supporting the ACLU–enjoy a stranglehold on our public schools. They control billions of dollars (including forced union dues–yes, it’s that whole union thing again) and thereby have financial control of the educational system. And they get to impose what is taught to our children, much of which is far-left ideology. And how are these groups doing running our schools? Let’s see, nearly a 30% high school dropout rate, a U.S. ranking of 25^th out of 30 nations in math scores, and a staggering amount of crime in public schools. A failing grade by any standard. But Arizona’s program, like so many others around the country, is trying to change that by empowering parents to have more realistic options of where to educate their children. And that threatens the left’s control, which they will obviously oppose at any cost.

But the Supreme Court saw through all of that rhetoric and held that the ACLU’s clients have no right to come to court in the first place because they have no legal standing. In simple terms, they have no injury to complain of. The Court agreed with ADF’s argument that the money donated is private money—not the government’s—and that someone else’s donation creates no legal injury to ACLU’s clients. The Court wisely rejected the ACLU’s–and their allies’–extreme arguments. And which groups filed briefs in the case in support of the ACLU? Looks like a veritable cornucopia of groups on the far left: National Education Association, Americans United for Separation of Church and State, American Jewish Committee, The Anti-Defamation League, American Humanist Association, Atheist Alliance International, Council for Secular Humanism, Freedom from Religion Foundation, Institute for Humanist Studies, Secular Coalition for America, Secular Student Alliance, and Unitarian Universalist Association.

So while the Court had no need to reach the question about whether the program was consistent with the Establishment Clause, which ADF believes it was, it nevertheless issued an extremely important ruling that protects school choice programs, parental rights, and charitable giving, while at the same time limiting the ability of the ACLU and its cronies to complain about such programs. But when the next case comes up where the ACLU again challenges a school choice program, and it certainly will—ADF and its allies will be there once again to fight on behalf of our families and our children’s educational future.

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To learn more about how ADF defends Religious Freedom in Education, visit the ADF Public Schools page.

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