Separation of Church and State Had A Bad Week

In this episode, we look at the just concluded US Supreme Court term and how it shakes out for religious freedom. It isn’t good.

Episode 43: Separation of Church and State Had A Bad Week

In this episode, we look at the just concluded US Supreme Court term and how it shakes out for religious freedom. It isn’t good.

02:28 Boston Flag Case
13:15 Free Money for religious schools
20:12 Coach is kneeling on a prayer

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Shurtleff v. City of Boston

Carson v. Makin

Kennedy v. Bremerton School District

Appignani Humanist Legal Center
Americans United for Separation of Church and State
Freedom From Religion Foundation


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Voice Over 0:00
This is Glass City Humanist, a show about humanism, humanist values by a humanist. Here’s your host, Douglas Berger.

Doug Berger 0:10
In this episode, we look at the just concluded US Supreme Court term and how it shakes out for religious freedom. It isn’t good

Voice Over 0:19
Glass City Humanist is an outreach project of the Secular Humanists of Western Lake Erie Building Community Through Compassion and Reason for a Better Tomorrow. If you live in the Greater Toledo, Ohio area and are looking for a humanist community, then please check us out. You can reach our group at, or from a link on our website,

Doug Berger 0:50
Well, I think you won’t find anybody denying the fact that separation of church and state took a very serious hit this term at the United States Supreme Court. And one of the major hits that separation of church and state took, obviously was the overturning of Roe v. Wade, and Casey V. Planned Parenthood in the for abortion rights. And we’ll probably talk about that in a future episode. Because that’s a whole other thing to talk about. And so I just want to let you know that Sholay, the secular secular humanists of Western Lake Erie, Erie, we issued a statement at the time that the decision that was released on June 24, was leaked in May. And we updated that with now that it’s an official ruling. So suffice it to say that, as a group, we will not work with any other group that do not support abortion rights, completely. And so we also made some comments about the ruling itself. So if you want to check that out, check, it’s on one of our blog pages at humanist w And again, we’ll we’ll talk about that I have interviews lined up with somebody that works at the Toledo abortion center. And we’ll talk about and they happen to be a member of the group. And so we’ll have a chat about Roe v Wade, going forward, and abortion rights in general. So we’ll talk about that.

Doug Berger 2:38
What I wanted to discuss today is there were two particular actually three cases decided this term from October of 2021. Till now that focused on or turned on interpretations of the First Amendment and the separation of church and state. The first one, I think I might have talked about it before, it was a the Boston flag case. Sure, shirtliff v, Boston. And what that was, is that Boston had three flagpoles in front of their municipal building in Boston. And the first two was the American flag in the city flag. And then the third flag was open to any group in the city that wanted to fly a flag. So obviously, like pride, and pow Mia, and in things like that, they would fly that there was just a basic form you had to fill out, and they would fly it well. This gentleman who ran a Christian, summer camp or day camp, I can’t remember what one had to fly the Christian flag and the Christian flag is, is white. And it has, where the, if you know, the American flag, where the stars are, it was a blue with a cross Latin cross Christian cross and see if the, quote, official, quote, official flag unquote, of Christianity, right. If you go go to a lot of churches, a lot of Protestant churches, you’ll see this flag flying sometimes or they’ll be on a stand inside. So he wanted to fly that flag. And the city said no, because if they flew that flag, people would think that the city of Boston was supporting Christianity, and they were afraid that it would violate the First Amendment. They refuse to fly the flag. So the gentleman sued. And and he sued and in the initial courts ruled for the city. Well, it got to the Supreme Court, and the Supreme Court ruled you animus Lee. So all nine of them agreed that the city of Boston violated the Constitution when it rejected the application to fly the Christian flag. One of the reasons why the court rejected the city of Boston in this case, was because Justice Breyer is the one I believe that wrote the majority decision, and he went through this whole big long checklist of, you know, is this government speech? And, and would people think it was government speech, and, and, and in the end, because it was a public forum,

Doug Berger 5:44
the city could not reject anybody. They had to, if you filled out the form, and, and, and there was a general checklist of things you had to add to, I think you had to have a, you had to be a nonprofit or something like that there was like a form you had to fill out. And that applied to everybody. So they could not, they could not reject an application based on the content, or suppose had content of the flag. And so what I wanted to talk why I mentioned this case, in particular to start off is because for several years now, the conservative members of the court have been wanting to get rid of the lemon test. And the lemon test is used in church and state cases a lot of times to decide if a government action or policy violates the First Amendment. And so what what the lemon test does, is it just gives a a small checklist of things to look at. And then that way you’re able to make that decision. And the lemon test came from a court case in 1971, called lemon versus Kurtzman. And what that decision was, the court ruled in an eight to zero decision that Pennsylvania’s non public elementary and secondary education act from 1968 was unconstitutional. And in an eight to one decision at Rhode Island’s 1969 salary supplement Act was unconstitutional, unconstitutional violating the Establishment Clause of the First Amendment. The Act allowed the superintendent of public schools to reimburse private schools, mostly Catholic for the salaries of teachers who taught in these private elementary schools, from public textbooks and with public instructional materials. And so lemon was a major precedent in federal and local courts. And then, and then it was overruled, or overturned by a case that was decided another case that was decided this term, and we’ll get to that it was the Kennedy V. Bremerton school district. And so, the lemon test basically was three prong it was considered three prongs, whether or not a government’s action was deemed unconstitutional under the Establishment Clause. All right, so the first amendment has two different clauses. It prevents the government from establishing a religion or prohibiting the the practice of religion so that it’s like a two different sides of the coin. So the lemon test, said that a statute must have a secular legislative purpose. And then the second prong was the principal or primary effect of the statute must neither advance nor inhibit religion. And then finally, the statute must not result in excessive government entanglement with religion. And this is one of the so if any of those prongs is violated, then the government’s action is deemed unconstitutional. And so for since 1971, or even more recently, starting in the 80s, when a lot of these cases came forward, is that that government actions would be deemed unconstitutional, or if it seemed to be an excessive entanglement? And some of the examples that were used in this case in the in one of the occur concurrences was Christmas decorations on a courthouse lawn. So the lemon test was one of the tools used by courts to evaluate these different cases about church and state who We see the first. Well, it’s not the first, but we kind of see in justice. Gorgeous. Yeah. And Justice Gorsuch concurrence in the Boston case.

Doug Berger 10:17
He talks about the lemon test being unworkable and impractical. And then that Supreme Court and other courts have avoided it for decades, which is technically true. But basically, what would happen is that a government entity, when it was challenged, for establishment purposes normally would say, you know, we don’t want to fight this. So they would change their behavior, and be done with it, because because the establishment, you know, violating the Establishment Clause was very subjective. That’s why they wanted to have this test this lemon test to hell to help the courts. Now I did want to mention about the Boston case is, initially when I heard about it, and it was argued this term, I kind of figured that Boston would be the court would rule against Boston, because what happens is, if you create a public forum, if a government creates a public forum, like a courthouse lawn for Christmas decorations, or the lobby of of your state house for holiday messages, or things like that, where you allow everybody to come in, you cannot censor any viewpoint, you cannot prevent any viewpoint from coming in that legally, you could see in public put it that way. I mean, there’s caveats to the First Amendment. But if you have a flagpole and you’re flying flags, you cannot say no to religious groups, you just can’t. So I kind of figured Boston would lose this case. And the other thing to consider too in the Boston case, if you have a chance, and I’m I got the links up in the show notes. You don’t have to read this. You don’t have to read the decision. But the SCOTUS blog that I did I read all the time, they have a good general overview of the case. If you want to take a look at that, you’ll find out that the city has never had never denied a permit from a group to fly a flag until that gentleman’s group was denied. So So basically, the conservatives on the court saying that the city was being hostile to religion. So keep that point in mind, because it’s coming back.

Voice Over 12:46
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Doug Berger 13:15
So the next case that was reviewed, this term that weighed on church and state issues was Carson V makin, or making I think it’s makin. And what that was was a challenge to the system that Maine uses to provide a free public education to school aged children. In some of the state’s rural and sparsely populated areas, school districts opt not to run their own secondary schools. Instead, they choose one of two options, sending students to other public or private schools that the district designates or paying tuition at the public or private school each student’s selects. But in the latter case, state law allows government funds to be used only at schools that are non sectarian. That is schools that do not provide religious instructions. So two main families went to court arguing that the exclusion of schools that provide religious instruction violates the First Amendment’s Free Exercise Clause. And on Tuesday, on Tuesday, on the day that this was decided, I think it was June 21. The court agreed. Now, there’s there had always been this idea. And this comes from anti Catholic sentiment back in the early 20th centuries, that if tax money is given to religious schools, it couldn’t go. It couldn’t go to Catholic schools. Well, courts had been throwing that out for a long time. So what they did was in many of these people with these anti Catholic sentiments, decided to put into law. These more generic prohibitions of direct tax money for religious schools a lot of times are called Blaine amendments. If you ever heard that term Blaine, Blaine amendments. So there’s been a, there’s been a history of government not directly funding religious schools. So how these religious conservatives get around that is you give the money to the parents. And if they happen to give it to a private school, or religious, private school, they can’t do anything about it. And so that’s why a lot of these voucher cases have happened, the secular purpose people have lost because the courts can’t. Well, they say they can’t tell a parent who were to spend that money. So basically, if a state offers money to parents to pay for schooling, then it has to be open to any school religious or not, that it has to be open to whatever school that the parents choose. And obviously, it’s going to be not every school, because there is a caveat that, you know, it has to be an actual school, you know, you can’t have scam artists and things like that. Or though you probably could, most charter schools. A lot of charter schools are scams anyway, I believe, you know, as long as they’re an official school registered with the state, and they’ve been certified to teach students, then then government can’t tell you, you can’t spend your voucher money or your money that’s given for education at those schools. So, you know, I can see, I can see where a court can’t tell a parent where they can spend that money if it’s provided by the state. But I also see the other side of the coin, where that money is going to a private school with religious instruction. And you cannot divorce the fact that you’re supporting that religion. You know, it’s so people are saying, well, they’re giving money to this private school that happens to have religious instruction. Well, I don’t see it that way, I see it as you’re giving money to this private school, that then supports that religion, because it also pays for that religious instruction. As part of the school day, when we had that local case here in the Toledo area, with the sectarian schools suing about being closed during the pandemic, one of the arguments that they used was that in the sectarian schools, the schools that teach kids and also has Public Instructions, they said you could not

Doug Berger 18:14
detach religion from the school, that it was intertwined in everything that they did. You know, so it’s always and that’s what you see with a lot of these cases is that the people that support supporting religion with government tax dollars, will twist and turn and, and pull stuff out of their butts to justify doing it’s doing so. And they’ll just cherry pick different things. And that’s one of the things that they cherry pick. But to me, if I’m paying, you know, if the taxpayers are paying X amount of dollars to Joe Schmo to send their kids to St. John, you know, that that money that several $100 or whatever the vouchers are nowadays, is then paying that Jesuit to indirectly paying that Jesuit to hold a church service for these kids. And I personally disagree with that. You know, I think I think it should be separated. I think that that, you know, if a parent wants to send their kids to a private school, than any money that they get from a state voucher scheme, or other tax scheme, tax dollar scheme, should be designated to pay for only the school instruction, the pay for science classes, pay for social studies, and it should not pay for religion classes at all. And you should be able to prove that.

Voice Over 19:57
For more information about the topics in this app, sewed, including links used, please visit the episode page at class city humanist dot show.

Doug Berger 20:06
And then finally, what I wanted to do was talk about the big the big case this one is this one was a major basically blow up of previous church and state case law, you know, they you know, and we already saw this the the conservative majority is already blown away Roe v Wade. And now they’re blown away, in this case, the lemon test. And what they’ve been doing is they’ve been ignoring the establishment clause, and I’ll get into that here in just a little bit. How what I mean by that, but it was Kennedy V. Remington school district. And, and this was ruled on the 27th June 27. They ruled in favor of a high school football coach who lost his job because of his postgame prayers at the 50 yard line. By a vote of six to three, the justices ruled that Joseph Kennedy’s conduct was protected by the First Amendment. Now, before we start talking about this, I want to explain that the petitioner in this case, Joseph Kennedy, the football coach, lied about the facts of the case. He lied about the facts of the case. The respondents explained that he lied about the case, the conservative majority ignored that those facts. So I don’t find that this decision is very legitimate. It’s almost as illegitimate as Roe v. Wade as overturning Roe v. Wade. But it is what it is. Okay. Well, first of all, the reason why he lied is because he was not fired, he quit. And he quit. And he probably would have been fired. But it wasn’t because he was doing given his prayers is because of the insubordination. The school district asked him not to pray at the 50 yard line, they offered to make accommodations so that he could pray. But they didn’t want him making a spectacle of it at the end of the game. And it was and so he, the this court case, just was talking about him having a private moment. So like, like people are thinking, well, it’s the end of the game, people are scurrying around doing what they’re doing. And he just took a knee and prayed. And that’s not the case. That’s not how it turned out. The general idea about church and state in a public school was that, that coaches and teachers and administrators were per are prohibited from leading prayers with students. Anytime that there’s any religious activity in a public school that has to be led by students. So you know, students can pray anytime that they want, as long as they’re not being disruptive. They can bring bibles to school, they can have a Jesus t shirt, whatever. Teachers and administrators and faculty members, on the other hand, are limited in what they can do. And that’s been like that for 50 or 60. You know, 50 or 60 years since the Bible reading cases, like Madalyn Murray O’Hair is case in the 60s that prohibited Bible reading in schools. And that’s one of the things and one of the reasons why is because students are captive, they have to go to school, they can’t leave. Most adults when they’re exposed to religion, they can leave. Okay. Students cannot also the other reason is that, that teachers, a faculty, people and people that work for schools, are there voluntarily. You know, they’ve accepted that job. If they can’t, if if they believe that their religion means more to them than protecting a student’s religious beliefs, then they’re free to leave. They’re free to quit. And that’s what Joseph Kennedy did he quit. You know, he claimed he was going to get fired. Maybe he would maybe he wouldn’t. The school board only recommended to hear his contract, not be renewed. Okay. So that was the first lie that he told. And then of course, the second one was that it was just a quiet, personal prayer. And so the court decision basically said that people that want to have a personal private prayer for you to do so anywhere they want. I don’t have a problem with that because that’s true. You can you If I’m walking down the street and and I don’t know, unicorn forbid that I want to pray, I can do it anytime. You know, as long as I’m not violating somebody else’s rights to do so.

Doug Berger 25:14
Or as long as I’m not cool, cohere seen somebody to do it with me. And that’s what’s different about a football coach, a football coach is the head of the football team. And usually, if a coach tells a kid who wants to play football to do something, the kid will do it. If the coach is doing something, an activity, you know, the kids more than likely are going to want to do that activity too, because they are kissing the behind of the coach. They want playing time. And so it and and I’m just flabbergasted that the US Supreme Court, the majority on this case, don’t don’t understand the dynamics. And that’s what it is. It’s about a power dynamic. The coach gathers all the boys up after a game, and he’s like bow your heads. And everybody bows their heads, whether they believe it or not. Now, I’m not saying that that’s what happened in this case, because it did, supposedly it did. But if you see a coach going to the 50 yard line, and praying, and you’re going to join in, because you want to play football, and you don’t want to make the coach mad. Now, that’s why this case is different than most most cases, is because it’s a coach, it’s a teacher. It’s somebody with, you know, it’s the power dynamics of the teacher student relationship. And they just totally ignored that. In fact, it says the court rejected the public school district’s argument that allowing Kennedy’s prayers to continue would have violated the constitutional Establishment Clause, which bars the government for both establishing official religion and preferring one religion over another. And it pushed back against the argument that students might have felt obligated to join Kennedy’s prayers, stressing that learning how to tolerate speech or prayer of all kinds as part of learning how to live in a pluralistic society, a trait of character is central to a tolerant citizenry. Well, that may be true. Neil Gorsuch may believe that. But we know from practice, that Christian nationalists don’t want other religions, they don’t, they don’t want to see other religions. They don’t tolerate other religions, other than Christianity. So if you would have had a football coach that had Islamic prayer rug, and took it out there to the 50 yard line, which they wouldn’t, but if they did, you would know that that coach probably would have been fired the next day. And there wouldn’t be anything he could have done about it. But what I wanted to make the point, the point that I wanted to make, even though that this was a bad decision for secular people, the point that I wanted to make was this change about the Establishment Clause. In these recent rulings? They’ve been ignoring, like in the the main case, they’ve been ignoring the Establishment Clause in that the change was, it used to be that, you know, with this lemon test, you could evaluate the appearance of an establishment of a religion or or favoring one religion over another in a government action. Now that with this conservative majority on the court, this six justices, that’s not important anymore, they are more focused on the free exercise part of the First Amendment. So any government action, then encroaches on free exercise, whatever that means. They’re against it. And we saw that with the, with the, with the decisions during the pandemic, when they sided with churches that wanted to hold services in person, and they said, you know, you know, the health department closing churches was a violation because you’re preventing people from practicing their religion, what’s you’re not? Yeah, you don’t need a building. Anyway, I’m going to get off on a tangent. I’m going to go off on those those rulings from the past couple summers. But that’s their thinking, okay. And that’s different than previously.

Doug Berger 29:56
The thing that they used to decide to allow religious ceremonies and things in government in recognition of in government of religion was ceremonial deism. And that was something that they made up out of whole cloth in the 80s, starting in the 80s, to justify religion and government because the Establishment Clause hit, you can’t celebrate Christmas. The United States government cannot celebrate Christmas, I’m sorry. It is a religious holiday. Government should not be celebrating religious holidays, for whatever reason, it doesn’t matter. They shouldn’t be celebrating any religious holiday. But because nobody complained about it in all the decades leading up to the 1940s, when these Church and State cases started coming up, started reaching the court. And nobody, quote complained about it, unquote, it became part of the historical part of government. And so they had to come up with this concept that allowed for it without having to change thing wholesale. Okay. So they policed it, but the stuff that came before they allowed it. And so, ceremonial deism is kind of like the justification that a lot of people use for maintaining statues of Confederate generals, in, in certain, you know, in certain cities that we went through that whole big push to get these removed, is the historical aspect. This is about our history, you know, you know, not, you know, let’s not focus on the fact that the Confederates were supporting slavery and that they lost the war. So why do we have a statue up to the people that lost the war anyway, that’s how they use serial ceremonial deism. So it appears that they’ve moved away from that, and simply just ignored the Establishment Clause, I shouldn’t say ignored. Basically, they are not interpreting the Establishment Clause and, and justice Gorsuch in his concurrence in the Boston case, and again, here, talks about how the lemon test is done, the lemon test is gone now. And they are just going to look at the history, the historical record, and what the founders believed, at the time that they wrote the first amendment, and that they are going to hold the establishment establishment clause means the establishment clause that means did the government establish a religion? Did it promote one religion over another, of course, I’m never gonna get that far. Because though, pull something else out of there behind, because when you start looking at did it favor one religion over another, you’re gonna get into these weeds, like in the, in the voucher cases. Anyway, so they’ve totally chucked the limit test. And now, we’re holding to what the founders believed in historical record. And that’s going to be a problem going forward. And that’s going to be a problem for us in the secular community. Because we can’t, you know, we can’t change history, we can’t go back in a time machine and change history. And, and so a lot of these arguments are going to be like, well, we’ve had this cross up, and we’ve seen it already with that cross case and Maryland. This cross has been up for 100 years. You know, it’s, you know, and it’s similar to the ceremonial deism and that they’re saying it’s been up for 100 years. We can’t change it. So we’re not going to change it. And it’s lost its religious meaning which it hasn’t, because the religious people are still going to say that it’s religious. So just to kind of sum things up, that the lemon test is gone now.

Doug Berger 34:15
They’re pretty much going to ignore the the interpretations of the Establishment Clause the appearance of unconstitutionality. All right, so basically, what’s going to have to happen now from now on probably is somebody’s actually going to have to be harmed by a state action in a basis of religion kind of like what they’ve been doing with the voucher cases and and that cake baking decision is that if a government action forces you are compromises your religious beliefs, Christian religious beliefs, well, we will you know, they do that. I doubt that they’re going to do any other ones, but If it imposes on your religious beliefs for any reason, you’re going to win your case, because it’s you’re answering the question about the Establishment Clause is it’s favoring one religion, or no religion over all others, it’s being hostile to religion. You know, that’s probably what you should do. Now, let me tell you, I’m not a lawyer. So I’m not giving legal advice, I’m just saying, I’m interpreting what I’m seeing. So the lemon test has gone, they’re going to focus on the kind of ignore the Establishment Clause. And anything that that imposes on the free exercise of religion, they’re going to, they’re going to strike down or modify, okay. And so that leaves a lot of us, non religious people out, you know, because a lot of these religious symbols and religious rituals that we are exposed to, on a daily basis, coming from our government, have a history have been there for many, many decades. And so we can’t use the argument anymore, that that favorite disfavors non religion, because that’s not how they’re going to interpret the First Amendment. They’re not going to include the secular people. So what I would recommend that people do is get involved with some of these groups that, that take on these cases, the American Humanist Association has the appetite, I can’t pronounce it, they have a law department. Now that takes on these cases FFRF, the Freedom From Religion Foundation takes on separation cases, and American Atheists will do so they’ll write briefs in support or against something. You know, Americans United, they take on cases. So, you know, if you believe that you’ve been imposed on by a government action, you know, check out these groups and contact them with a violation. You know, if you believe that there’s a violation. I know, I’ve used the FFRF a group before. Many years ago, when there was a violation, I saw a violation here locally to me, there’s a form you fill out, they contact you, they ask you the details. So that’s the main thing, make sure you have all the details. You know, it’s not about how you feel about the case, okay, or the violation, you know, hey, this makes me feel bad. You know, you have to write down all of the all of the details of the violation. Make sure you have that and let these groups know and hopefully we can get back on track and try to protect the religious freedom of everybody in this country.

Voice Over 38:03
Thank you for listening. For information about the topics in this episode, please visit the episode page at Quest city humanist got show. Quest city humanist is an outreach of the secular humanists of Western Lake Erie, and is supported in part by a grant by the American Humanist Association. The AHA can be reached at SHoWLE can be reached at Glass City Humanist is hosted, written and produced by Douglas Berger, and he is solely responsible for the content. Our theme music is Glass City Jam composed using the Ampify Studio See you next time.

[Transcript is machine generated and lightly edited]


Written, produced, and edited by Douglas Berger and he is entirely responsible for the content. Incidental voice overs by Shawn Meagley

The GCH theme is “Glass City Jam” composed using Ampify Studio

This episode by Glass City Humanist is licensed under CC BY-NC-ND 4.0.