With few exceptions, we seculars are having an abysmal year in the courts. American Atheists lost two high-profile cases: its battle against the so-called 9/11 cross and its challenge to Internal Revenue Service (IRS) rules that grant nonprofit status to religious organizations on more favorable terms than nonprofits of other types. The American Humanist Association (AHA) failed in its equal-protection challenge to the Pledge of Allegiance in Massachusetts. The Freedom From Religion Foundation (FFRF) won at the district-court level in its suit contesting clergy housing tax-exemptions, but the verdict was immediately appealed. On the upside, FFRF has apparently reached a favorable settlement in its 2012 suit accusing the IRS of failing to enforce no-electioneering rules against churches.
Then there’s the U.S. Supreme Court, which seems bent on returning to the Dark Ages. On May 5, in Town of Greece v. Galloway, it legitimated sectarian prayer before legislative meetings. On June 30 came Burwell v. Hobby Lobby, which created an unprecedented right for closely held for-profit corporations (which employ some 52 percent of American workers) to claim exemption from laws to which their owners object on religious grounds. Both 5–4 decisions represented mighty swings of the wrecking ball against Jefferson’s wall of separation. Let’s review each one in some detail. Then (spoiler alert!) I’ll turn to that one conspicuous exception, the only significant courtroom victory by any major national secularist organization in the past year or more—a victory that may suggest a direction for more effective secularist litigation in the future.1
Let Them Pray
Greece v. Galloway looked so promising—which was why Americans United for Separation of Church and State (AU) invested heavily in developing the case. (Most national organizations in the movement contributed amicus curiae briefs, including the Council for Secular Humanism’s supporting organization, the Center for Inquiry.) The town board of Greece, New York, a Rochester suburb, had invited a succession of Christian ministers to give invocations at town-board meetings, many of which were overtly sectarian. Challenged by two non-Christian residents and AU, the town board clung to its ways. So provocative was the town board’s behavior that prospects for victory seemed bright. But the court ruled otherwise, declaring that persistent sectarian prayer before legislative meetings is constitutional, notwithstanding its chilling effect on community members not of the majority religion.
In the wake of Galloway—and contrary to language in the ruling that actually called for religious inclusiveness—the county supervisor of Roanoke, Virginia, called for all prayers before future legislative sessions to be Christian. “The freedom of religion doesn’t mean that every religion has to be heard,” he insisted. Meanwhile, in Sussex County, Delaware, and Carroll County, Maryland, both of which had earlier discontinued Christian prayers in response to legal actions by AU and the AHA, respectively, lawmakers prepared to reinstate prayers.
No doubt, Galloway is a hideous ruling. It oppressively reinforces the status of the nonreligious as second-class citizens. That seems spectacularly tone-deaf at a time when humanists, atheists, and other freethinkers are actually, if slowly, achieving growing visibility and acceptance. Still, even amid disaster, some irony could be found. When Greece lawmakers read the Supreme Court decision they’d just won, they discovered some fairly reasonable guidelines for selecting who gives invocations and realized that even though they’d won the case, their past conduct didn’t measure up. On July 15, 2014, Dan Courtney, a Rochester atheist, was allowed to open a Greece town-board meeting with a prayer-free invocation steeped in the Declaration of Independence and the Enlightenment. Thanks in part to media relations work by the Center for Inquiry, the event made national news.(At press time, Greece adopted narrow new standards restricting invocations to representatives of well-established local churches.)
Okay, let’s move on to the no-less-hideous decision in Burwell v. Hobby Lobby. (“Burwell” is Sylvia Mathews Burwell, who succeeded Kathleen Sibelius as Secretary of the Department of Health and Human Services this past June, inheriting the role of defendant in this case.) Most national organizations (once again, including the Center for Inquiry) contributed amici favoring the government’s side. As in Greece, the majority significantly reinterpreted previous law, endowing a subset of religious believers with a shiny new right. Closely held for-profit corporations can now claim religious exemption from laws that would otherwise require them to take actions their owners find religiously objectionable.
In her dissent, Associate Justice Ruth Bader Ginsburg predicted that the ruling would unleash a torrent of negative consequences. She warned that Hobby Lobby’s logic might encourage organizations run by Scientologists to bar coverage for antidepressants. Jewish- or Muslim-owned firms might refuse to cover medications made from pigs. Within hours of the decision, it grew clear that though Ginsburg was right, she’d only foreseen the plausible parts. Putatively religious organizations, profit and nonprofit alike, scrambled to extend the ruling’s logic, mostly to shield religion-based discrimination against LGBTQs.
Hobby Lobby turned not on the First Amendment but on a 1993 statute, the Religious Freedom Restoration Act (RFRA). In my view, RFRA was always a disaster waiting to happen. I’m not alone in that opinion; for a book-length critique, see Marci Hamilton’s recently reissued God vs. the Gavel (Cambridge University Press).
RFRA’s Tangled History
RFRA’s history can be partly understood as a slow-motion feud between the Supreme Court and Congress. It all began with Employment Division v. Smith. In that 1990 ruling, the U.S. Supreme Court upheld a state’s denying unemployment to a Native American state employee who had been fired after using peyote in a tribal religious ritual. The ruling held that while states may accommodate otherwise illegal acts motivated by religious beliefs, they are not required to do so.
At the time, I welcomed this decision, though I also scratched my head in wonder that Associate Justice Antonin Scalia had penned a ruling that actually widened church-state separation, requiring government to act in a more religion-blind manner. Not many people agreed with me. Groups as diverse as the American Civil Liberties Union and the Christian Legal Society condemned Smith as an erosion of religious liberty, then joined to demand that Congress undo the damage. Lawmakers responded with a ham-handed bill under which government would have to make accommodations when state action provably burdens any sincere religious belief, unless the government is acting in pursuance of a compelling interest and can prove it is acting in the least restrictive manner possible. Instead of operating religion-blind, RFRA would oblige government to, in effect, grant special rights to religious believers solely by virtue of their being religious believers. (To its credit, after initially supporting RFRA, AU reversed itself and opposed the legislation.)
Sadly, AU’s opposition mattered little. In 1993, RFRA surged through Congress, passing the House and Senate with just three dissenting votes. Religious Americans had been hugely empowered at the expense of the rest of us.
The high court struck back with 1997’s City of Boerne v. Flores
, declaring RFRA unconstitutional with regard to the states, though still binding at the federal level. Congress retaliated in 2000 with the Religious Land Use and Institutionalized Persons Act (RLUIPA), which restored most of RFRA’s provisions on slightly different legal grounds. When you read a news story about a prison struggling to prepare meals in accord with the demands of inmates who have adopted obscure faiths—or one about a community helpless to block construction of a traffic-snarling megachurch—that’s RLUIPA in action.
What’s the Answer?
Is RFRA a bad law? Definitely. (So’s RLUIPA.) Should it be repealed? Probably. (And RLUIPA should be repealed along with it.) Is there a chance in hell that this will happen? Nope.
On July 3, FFRF ran a full-page ad in The New York Times calling for RFRA to be repealed. Sadly, that is probably a better platform for fund raising than it is a legal strategy. In reality, there is no conceivable way that this Congress—or any near-term-imaginable U.S. Congress—is going to take such a radical step. Consider S. 2578, the Protect Women’s Health from Corporate Interference Act, which sought to roll back a single aspect of Hobby Lobby, prohibiting employers from denying their workers coverage for birth control and related benefits. Despite its limited scope, the bill could get no traction. Just days after its introduction, Senate Republicans killed it.
Here is the Council for Secular Humanism’s take on RFRA and RLUIPA. Yes, they are horrible laws. They should never have been passed. But seeking their repeal is not a prudent use of time. Now—when nonreligious Americans are attaining increasing visibility and even, occasionally, respect in public life—is not the moment to tarnish our credibility by embracing a utopian repeal campaign. Even though it failed, S. 2578 shows us a better way: encourage and support focused legislation to “plane down” the most troubling provisions of RFRA and RLUIPA, one by one. Hobby Lobby is prodding some religious Americans to see the dark side of these statutes that they long uncritically favored. If we humanists, atheists, freethinkers, and secularists can partner with them and pursue our objectives in an organized and disciplined manner, we may yet prevail.
That Bright Spot
I mentioned that seculars’ legal Annus Horribilis had one bright spot and that it involves the Council’s supporting organization, the Center for Inquiry. On July 14, the Court of Appeals for the Seventh Circuit ruled unanimously that Indiana must permit secular community leaders to solemnize marriages. As I write this, the state has allowed the decision in Center for Inquiry, Inc., and Reba Boyd Wooden v. Marion Circuit Court Clerk and Marion County Prosecutor to take effect; we are hopeful that it will not appeal to the U.S. Supreme Court. This eloquent ruling establishes the right of secular community leaders to perform binding weddings just as clergy and other faith-community leaders do, without ever suggesting that secular humanism (or any other form of nontheism) is a religion or that the law should treat it as one. Judge Frank Easterbrook’s decision employed not the vocabulary of freedom of religion but rather the vocabulary of freedom of conscience. Where Galloway and Hobby Lobby sought to expand freedom of religion—or more accurately, the prerogatives open to some religious believers as religious believers, CFI’s victory expanded the domain of rights rooted in a more secular concern for freedom of conscience. This idea is anything but new. It informs the 1971 U.S. Supreme Court decision in Gillette v. United States, which established that persons without religious affiliation can be recognized as conscientious objectors. And it’s been a driving principle in recent work at the United Nations, inflecting even the name of the UN’s New York-based NGO Committee on Freedom of Religion or Belief (emphasis added). (By the way, that committee’s president is Michael De Dora, director of CFI’s Office of Public Policy.)
By misapplying the honorable principle of freedom of religion, courts have handed humanist, atheist, and secular organizations some stunning defeats. (Council for Secular Humanism v. Crews, our long-running case challenging Florida’s payments to faith-based social-service contractors, may be decided later this year; we’re hoping for better luck.) Galloway and Hobby Lobby are enormous setbacks—reactionary decisions that perversely reinforce Christianity’s improper civic privilege even as the nation embraces an unprecedented religious diversity that also includes the nonreligious.2 Yet even in this toxic legal atmosphere, there is still a way to win. It requires stepping away from the too-familiar arena of “religious freedom” and into the more inclusive arena of freedom of conscience. You could say that’s the very definition of secularism in action.
1. Of course, some qualified observers think secularist legal agitation has reached a dead end; see “The State of American Secularism” by David Koepsell, later in this op-ed section.
2. Speaking of irony amid disaster: Writing the majority opinion in Harris v. Quinn, a decision announced shortly before Hobby Lobby that weakened public-sector labor unions, Associate Justice Samuel Alito actually wrote: “Except in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.” Alito had in mind dues-paying union members whose unions might take political positions to which they object. Obviously, one could scarcely imagine Alito writing the same sentence in regard to, say, nonreligious taxpayers compelled to subsidize legislatures that open their sessions with sectarian prayer!
Tom Flynn is the editor of Free Inquiry and the director of the Council for Secular Humanism.