Author archives: Family Research Council

An Originalist Approach Protects Religion in the Public Square (Part 3 of 5)

by Family Research Council

March 26, 2019

Read Parts 1 and 2

The answer to confusion over the Establishment Clause is an originalist understanding of the Constitution. This approach includes analyzing historical practices at the time of the founding and the ratification of the First Amendment. The Court has increasingly incorporated this reasoning in its decisions.

The benefit of an originalist understanding is, as one scholar notes, that “the judge tries to discover not what the text ought to mean but what it did mean to those who wrote the words and, more importantly, to those who voted for those words to become law.”

When we apply this reasoning, we find that government actions involving religious displays or practices are often constitutional. As one court of appeals judge observed, “There is, put simply, lots of history underlying the practice of placing and maintaining crosses on public land . . .” Though the judge spoke of crosses, a court applying a historical interpretation of the Establishment Clause would likely uphold displays inspired by minority religions, too.

Some argue that this would introduce a “narrower standard.” This is a problem because focusing “only on coercion would open the door to sectarian endorsements that will aggravate religious tensions and needlessly divide Americans.”

But an originalist approach sets clearer boundaries for which religious displays or practices are acceptable. This is fairer and more predictable than current law. It is difficult to say exactly how many more religious displays would be considered acceptable under an originalist interpretation, if applied consistently. But recent cases indicate that principled boundaries would be no less helpful to religious minorities than to members of majority faiths.

In Town of Greece v. Galloway (2014), in which the Court adopted an original understanding of the Establishment Clause with respect to legislative prayer, the Court said it was “virtually inconceivable that the First Congress, having appointed chaplains whose responsibilities prominently included the delivery of prayers at the beginning of each daily session, thought that this practice was inconsistent with the Establishment Clause.” As American society has grown more religiously diverse, figures including the Dalai Lama, Rabbi Joshua Gruenberg, Satguru Bodhinatha Veylanswami, and Imam Nayyar Imam have opened legislative sessions with statements expressly declaring their deeply held religious beliefs. As the Court said, Congress “acknowledges our growing diversity not by proscribing sectarian content but by welcoming ministers of many creeds.”

Under Lemon and succeeding tests, courts often proscribe government support of an action or display simply because it is sectarian. But the purpose of the First Amendment was never to eviscerate religion from the public square. An originalist interpretation is the right approach to Establishment Clause challenges.

Applying an originalist approach likely means that the courts will have less say over whether a religious display can appear on public property. But this is an appropriate allocation of power, and our next post explains why.

This blog series is based on an article in the Federalist Society Review by Alexandra M. McPhee, “Can a New Establishment Clause Jurisprudence Succeed in Protecting Religious Minorities Where Lemon Has Failed?”

The Separation Between Church and State Does Not Protect Minority Religions (Part 2 of 5)

by Family Research Council

March 25, 2019

Read Part 1

Many years before courts began interpreting the Establishment Clause, Alexander Hamilton expressed his thoughts on the interpretation of the Constitution in a letter to George Washington:

[W]hatever may have been the intention of the framers of a constitution or of a law, that intention is to be sought for in the instrument itself, according to the usual and established rules of construction.

Unfortunately, when it comes to interpreting the Establishment Clause today, Hamilton’s centuries-old guidance is too often left by the wayside. Beginning in the mid-20th century, the Supreme Court turned to sources besides the framers’ intent in rendering its decisions about the Establishment Clause. This is the era that generated the doctrine of the so-called “separation between church and state.”

This doctrine underlies the decision of Lemon v. Kurtzman (1971). In that case, the Court said that a government action is unconstitutional if (1) there is no secular purpose for the action (2) it has the primary effect of advancing or inhibiting religion, or (3) it fosters an excessive government entanglement with religion.

Unfortunately, neither this test nor later cases modifying it effectively protects religious minorities. The reason is that these tests are malleable; courts are forced to make decisions without clear guidance from the law, which has so far failed to clearly articulate whether the prongs are met. There is no better example of this than cases involving the display of religious minority symbols or practices on public property. Consider the following cases that involve the Lemon test or some variation of it:

  • Allegheny County, Pa.: The Supreme Court fails to come to a consensus about whether a menorah situated next to a Christmas tree was too religious to appear on public property.
  • Westchester County, N.Y.: A trial court reasons that a menorah situated next to an unlit Christmas Tree is, indeed, too religious to appear on public property.
  • Queens, N.Y.: The state department of education reasons that for the purposes of classroom holiday displays, a nativity is a “religious symbol” and cannot appear in a classroom display, but a menorah and crescent moon and star can because they are “secular symbols.”
  • Southampton, N.Y.: A court reasons that a traditional Jewish religious practice involving affixing wires on telephone poles (an eruv) is more secular and is less likely to advance religion or foster church-state entanglement than (1) permitting a private Christian organization for children to have meetings at a public school after hours or (2) displaying a Christmas nativity scene display on public property because eruvs do not “contain any overtly religious features.”

Nativities are too religious to appear on public property. Menorahs are sometimes too religious. Crescent moons and stars are secular. Traditional Jewish religious practices are okay because they don’t look religious. Interpreting and applying the Establishment Clause should not be this disjointed. The Lemon standard perpetrates confusion and inconsistency. There is, however, a better way, which we cover in the next post.

This blog series is based on an article in the Federalist Society Review by Alexandra M. McPhee, “Can a New Establishment Clause Jurisprudence Succeed in Protecting Religious Minorities Where Lemon Has Failed?”

The Peace Cross, the Establishment Clause, and Why the Separation of Church and State Fails to Adequately Protect Minority Religions (Part 1 of 5)

by Family Research Council

March 21, 2019

In 1925, a committee including Gold Star mothers and local veterans dedicated a memorial in Bladensburg, Maryland in honor of 49 servicemembers from Prince George’s County who gave their lives in service to World War I. They chose a Latin Cross to be the symbol of their loved ones’ sacrifice, and today, residents call it the Peace Cross.

Almost to the very day of the centennial of the first World War, the U.S. Supreme Court agreed to review whether the Peace Cross is a violation of the First Amendment’s Establishment Clause—more popularly though less accurately referred to as the separation of church and state—because it is in the shape of a cross and maintained on public property. The case of American Legion v. American Humanist Association is an important one. First Liberty Institute is involved in defending the memorial in court, and FRC filed an amicus brief in the case. Oral argument was held just about one month ago, on February 27, 2019. The case is currently under consideration, and the Supreme Court will issue its decision on or before June 2019.

As part of this case, several groups representing religious minorities argue that the current court precedents on this issue—which have put the Peace Cross in jeopardy—should stay in place, even if that means that the Peace Cross or memorials like it have to go. They say that this state of the law shields minority religions like theirs from political and cultural forces that may use their power to push minority religions out of the public square.

Family Research Council argues that this is not the case. First, the vague, subjective approach of current Establishment Clause precedents actually harms minority religions. Applying an original meaning of the Constitution instead would provide clarity for all—including religious minorities. Second, avenues outside of the courts, like the executive and the legislature at the federal, state, and local level, are better equipped to respond to the needs of minority religions.

In the coming days, we will be rolling out a special blog series highlighting these key points from the article and discussing how they help us understand true religious liberty in this age of deep confusion on the issue. Stay tuned!

This blog series is based on an article in Federalist Society Review by Alexandra M. McPhee, “Can a New Establishment Clause Jurisprudence Succeed in Protecting Religious Minorities Where Lemon Has Failed?”

Family Research Council Opposes the “Equal Rights Amendment”

by Family Research Council

January 10, 2019

On January 10, 2019, a press conference was held by The Family Foundation to oppose the “Equal Rights Amendment” (ERA). Two spokeswomen for Family Research Council made the following statements.

Alexandra McPhee – Director of Religious Freedom Advocacy:

The ERA fails procedurally—it is legally moot, and thus, off the table for ratification. In 1972, when the amendment passed, Congress itself conditioned ratification on a deadline: March 22, 1979. A later extension moved the date to June 30, 1982. Proponents of the amendment failed to rally enough states to ratify the amendment at either juncture, and in that time five states withdrew their ratification.

Now, 36 years later, proponents believe they can and should revive this stale effort. But they cannot and should not.

Congress reasonably imposed this deadline because a lot can happen in five years, and even more in a lifetime. The deadline was binding enough when the ERA thought it would win. Now that it has lost—twice—proponents argue that the rules need not apply.

If Congress represents the will of the people, why ignore that? 2019 is not the time to undermine the will of the people in 1982, when the people of at least 15 states decided that the ERA should fail. And what ratifying states wanted in 1982 and earlier should not dictate the voice of the people in 2019.

Assuming all of this, whatever ERA proponents want the General Assembly to pass will have to make its way anew through Congress by a 2/3rds vote. Based on the current makeup of Congress, the ERA will not garner the necessary votes.

As a woman, the ERA does not support my interests, so I do not support ERA—nor should it find support in those who understand the negative consequences that will result from this amendment. I urge all representatives to Vote NO.

Patrina Mosley – Director of Life, Culture and Women’s Advocacy:

Women are continually used as props to push an agenda. The ERA is not about women, it is really a smokescreen for abortion. Abortion has extinguished over 60 million children from our nation and by design, our poor and minority communities have been disproportionately affected.

The majority opinion of Roe written by Justice Blackmun is laced with eugenic ideology and has even been acknowledged by Ruth Bader Ginsburg.

The abortion industry, from day one, has used the courts to force its agenda. Now that it seems that the courts may be stacked against them, they will use any backdoor (or prop – even if it’s women) to preserve abortion.

Abortion lobbyists who fatten the wallets of legislators knows that abortion has no actual constitutional basis and are convinced they need a constitutional amendment to keep abortion “legal.” 

While trying to protect abortion, the ERA leaves women unprotected by threatening legal distinctions based on sex. This puts men in women’s shelters, prisons, bathrooms, showers, sports, and more. Instead of achieving “equality,” the ERA has undermined the already achieved protections specifically designed for women.

But today, we act like we don’t even know what sex/gender means! So, if the ERA really cared about protecting women it would have seen it as necessary to define what it means to be a woman. It does not.

This amendment has failed so many times because it is disingenuous and has no moral compass—therefore it continues to trip over itself.

The ERA is bad all the way around. I urge all representatives to Vote NO.

Archives