IFI, along with the Billy Graham Evangelistic Association, Concern Women for America, and thirteen other Christian organizations, filed an amicus brief with the U.S. Supreme Court this week in favor of Coach Joe Kennedy, who was fired from a public school in Washington State because he prayed briefly at the 50-yard line after football games.

Coach Kennedy is a man of deep faith who has been saying a brief prayer following his team’s football games for years. Initially he did so alone, but then some students and other coaches freely chose to join in. When the school learned what he was doing, it demanded he stop, but he felt responsible to thank God for the games in that way. As a result, he lost his job.

First Liberty Institute sued the school district on Kennedy’s behalf, but both a U.S. District Court and a Court of Appeals sided with the school district. Kennedy appealed to the U.S. Supreme Court, and in January, SCOTUS agreed to hear the case. (For a more detailed history, read First Liberty Institute’s case summary.)

The issue before the high court is whether the speech and religious liberty rights provided by the First Amendment protect Kennedy’s brief prayer following games and whether the Establishment Clause justifies his dismissal, as the school district has argued. In recent years, SCOTUS has interpreted the Establishment Clause to foster neutrality towards religion. Our amicus brief in this case argues that,

[The Establishment Clause] states that “Congress shall make no law respecting an establishment of religion.” It obviously does not prohibit any governmental action about or allowing religion. If it did, the Constitution would be at war with itself. Indeed, the very next phrase of the First Amendment protects the “free exercise” of religion, an obvious endorsement of religious observance by affirmatively protecting it. The Establishment Clause, by forbidding the government to establish religion, has the effect of reinforcing the private exercise of religion. The restraint on “an establishment” does not trump or supersede the belief or practice of religion. “Government does not establish religion by leaving its private exercise alone.”

The First Amendment is pro-freedom of speech, pro-freedom of press, and pro-freedom of assembly. It accomplishes those purposes by providing that “Congress shall make no law … abridging” those freedoms. Similarly, the First Amendment is pro-religious observance, not hostile to it in one clause and in favor of it in another. And while the operation of the clauses may overlap, by their very nature and purpose they do not contradict each other when, as here, the state does not initiate, and acts neutrally in accommodating, the private exercise of religion.

A short prayer following a game, joined in by only those who want to be there by their own free will, hardly amounts to an establishment of religion, particularly when the school makes it clear that it has nothing to do with Coach Kennedy’s activities.

Oral arguments for this case are expected in April.

Take ACTION: Please keep this case, the Justices, and their clerks in your prayers. Pray that religious freedom and the free exercise of that liberty will be upheld by the Court.

Read more:

Catholic Bishops Support Praying Football Coach in SCOTUS Case (CNA)

Family Policy Alliance Files SCOTUS Brief on Behalf of Praying Coach (FPA)

Written by James A. Davids

Shurtleff v. Boston centers around the use of three flagpoles in front of Boston’s City Hall.  Boston made one of these flagpoles temporarily available for civic groups to fly their chosen flag while they used the adjoining plaza. Over the prior decade, the city had allowed almost 300 organizations to fly their chosen flags, even those of other nations.

But when a group that gives speeches on the Judeo-Christian heritage of our country asked to fly the Christian flag while it used the plaza, Boston said “no.”  Why?  Solely because it was “religious.”

The U.S. Supreme Court recently has reiterated that a governmental entity may not treat a religious organization worse than other organizations simply because it is religious. Boston obviously is violating that principle. The city’s excuse for this discrimination is that if it allows the Christian flag to be flown temporarily in front of city hall, people might think that the city was promoting Christianity. Any objective observer, however, would know that the Christian flag was only one of hundreds of flags that the city had allowed to be displayed temporarily by various groups. When the Portuguese flag was flown for a few hours, no reasonable person would have thought Boston was now pledging allegiance to Portugal; similarly, no reasonable person would have thought Boston was establishing Christianity as the city’s preferred religion.

The main significance of the case is that it provides the Court another opportunity to dispense with the suggestion—one much in favor among some—that the Establishment Clause somehow justifies limiting the free exercise of religion.  In our view, which is shared by the nine other organizations that joined this brief, both Religion Clauses are pro-religion, not hostile to it. Boston’s animosity to the Christian flag will hopefully be taken as an opportunity by the Court to shut the book on this improper reading of the U.S. Constitution.

The U.S. Supreme Court will hear arguments on this case on January 18.

Many Christians and non-Christians misunderstand the relationship between morality and religion. Many mistakenly believe that morality is the same thing as religion and, therefore, mistakenly believe that they should not advocate for policies that reflect their moral beliefs. But morals and religion are not the same, and basing our decisions on public policies, laws, or elections on beliefs that derive from religious convictions does not constitute an unconstitutional establishment of a state religion.

All laws reflect or embody someone’s morality. The moral beliefs of people who hold theistic worldviews are no less valid in the public square than the moral beliefs of those who hold atheistic worldviews—which, of course, are faith-based also. The Establishment Clause of the First Amendment was intended to prevent the establishment of a state religion, not to prevent religious beliefs from informing political decisions.

People from diverse faith traditions or no faith could all arrive at the same position on a particular public policy. For example, although Orthodox Jews, Muslims, Catholics, Baptists, and atheists may all oppose abortion because they value human life, the reasons for that valuation of life differ. If there is a secular purpose for the law (e.g., to protect incipient human life), then voting for it does not violate the Establishment Clause of the First Amendment.

The sources of the various parties’ desires to protect incipient life are not the concern of the government. It would be not only absurd but also unethical for the government to try to ascertain the motives and beliefs behind anyone’s opposition to abortion and even more unethical for the government to assert that only those who have no religious faith may vote on abortion laws. Such an assertion would most assuredly violate the Free Exercise Clause of the First Amendment.

The religion clauses of the First Amendment were intended to protect religion from the intrusive power of the state, not the reverse. The Establishment Clause states that “Congress shall make no law respecting the establishment of religion.” That does not mean religious convictions are prohibited from informing political values and decisions. To expect or demand that political decisions be divorced from personal religious beliefs is an untenable, unconscionable breach of the intent of the First Amendment which also includes the oft-neglected Free Exercise Clause which states that Congress shall make no law prohibiting the free exercise of religion.

Legal theorist Michael Perry explains:

“[F]orcing religious arguments to be restated in other terms asks a citizen to ‘bracket’ religious convictions from the rest of her personality, essentially demanding that she split off a part of her self … to bracket [religious convictions] would be to bracket—indeed, to annihilate—herself. And doing that would preclude her—the particular person she is—from engaging in moral discourse with other members of society.”

To paraphrase Richard Neuhaus, that which is political is moral and that which is moral, for religious people, is religious. It is no less legitimate to have political decisions shaped by religion than by psychology, philosophy, scientism, or self-serving personal desire.

If allowing religious beliefs to shape political decisions represents a violation of the Establishment Clause and an inappropriate commingling of religion and government, then American history is rife with egregiously unconstitutional actions, for religious convictions have impelled some of our most significant social, political, and legal changes including the abolition of slavery, antiwar movements, opposition to capital punishment, and the passage of civil rights legislation.

Martin Luther King Jr.’s “Letter from Birmingham Jail” is replete with references to his Christian faith which informed his belief about the inherent dignity, value, and rights of African Americans, a belief which he lost his life to see enshrined in law. He wrote what would now certainly generate howls of opposition:

How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law.  To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law.

“Progressives” have no objection to people of faith participating in the democratic process so long as their views comport with “progressive” positions. Liberals never cried foul when Quakers or Catholics opposed the Vietnam war because of their religious convictions, and liberals do not object that Catholic opposition to the death penalty represents a violation of the “separation of church and state”–a phrase not found in the Constitution.

I don’t recall any “progressives” objecting when Senator Rob Portman and former president Barack Obama cited their religious beliefs in defense of their radical shifts in position on homosexual faux-marriage. Portman said,

The overriding message of love and compassion that I take from the Bible, and certainly the Golden Rule, and the fact that I believe we are all created by our maker, that has all influenced me in terms of my change on this issue.

After his flip-flop—er, “evolution” on faux-marriage, Obama, like Portman, cited the Bible as his justification:

When we think about our faith, the thing at root that we think about is not only Christ sacrificing himself on our behalf, but it’s also the Golden Rule, you know? Treat others the way you’d want to be treated.

In contrast, when conservative people of faith participate in the political process, citing their religion as the source of their judgments, suddenly the Establishment Clause has been violated.

Apparently neither Portman nor Obama think much about what the Bible says about sex, marriage, or repentance. And apparently, neither Portman nor Obama understand the Golden Rule. The Golden Rule does not require Christians to affirm all the desires, beliefs, and actions of all humans. It requires Christians to treat others as they—disciples of Christ—want to be treated as disciples of Christ.

And what should disciples of Christ desire? They should desire to follow God’s teaching more closely every day. They should desire to be willing to die to self and to take up their crosses daily. They should want their brothers and sisters in Christ to hold them accountable for their embrace of sin.

What the government must not do is impose laws exclusively religious in nature like Sharia laws. There should be no laws requiring the observance of any particular religion. No laws governing baptismal practices or Communion. No laws requiring prayer or circumcision. But, for example, people whose faith points to the worth of all people may legitimately work toward enacting laws that oppose capital punishment, euthanasia, or abortion. People whose religious beliefs include pacifism may legitimately work toward preventing or stopping military engagements.

No one is legally, constitutionally, ethically, or morally obligated to divorce their faith from their political decisions.

Richard Neuhaus argues persuasively in his book The Naked Public Square that a polity denuded of religion will be clothed soon enough in some other system that functions as religion by providing “normative ethics.” A democratic republic cannot exist without objective normative ethics that render legitimate the delimitation or circumscription of individual rights.

Historically, the sources of the absolute, transcendent, objective, universal truths that render legitimate our legal system have been “the institutions of religion that make claims of ultimate or transcendent meaning.”

Neuhaus argues that when religion is utterly privatized and eliminated as a “source of transcendence that gives legitimate and juridical direction and form, something else will necessarily fill the void, and that force will be the state.”

If the body politic claims there are no absolutes or delegitimizes religion as an arbiter of right and wrong, or good and evil, then the state will fill the vacuum, relativizing all values, and rendering this relativization absolute.

Lawmaking absent an understanding that there exist moral truths that are objective and universal would represent an illegitimate and hubristic arrogation of power.

What sense does outrage at human rights violations make if we assert there are no universal, transcendent, eternal, objective truths? And if we agree that these truths exist, that they transcend the subjective opinions of any particular individual, then what is their source other than a supernatural, eternal, transcendent being?

There are numerous factors that have resulted in a diminished valuation or recognition of the essential place of a belief in God as the source of transcendent truth in American society and politics, one of which is our remarkable cultural diversity. A healthy respect for the pluralism in America, however, need not and should not degenerate into what retired Campbell University law professor Lynn R. Buzzard describes as a “religion of secularism, excluding religion from participation in the pluralism.”

Princeton University law professor Robert George explains that our cultural degradation has, at least in part, resulted from an “orthodox secularism [that] stands for the strict absolute separation of not only church and state, but also faith and public life.”

Allowing religious institutions and ideas to inform our understanding of right and wrong, which is a necessary precursor to making legislative and juridical decisions, does not represent a violation of the Establishment Clause. Indeed, as Samuel Silver explains, “The government, as defined by the First Amendment and explained by its author James Madison, must remain neutral between various sects of religion, but it is not required to remain neutral between religion and irreligion.”

Prohibiting religiously derived understandings of right and wrong to shape political decisions, would, however, represent a violation of the Free Exercise Clause of the First Amendment. Buzzard writes that “Free Exercise will not be construed as merely creating a zone of non-governmental interference or the creation of an exemption from conscience-opposed activity, but the opportunity to be full partners in the pluralism of our day.”

To leftists, the idea of a separation of church and state no longer points to the importance of protecting religious freedom from the intrusive power of the state but instead refers to coercively eradicating theologically orthodox religious expression from the public square. Only secular or theologically heterodox worldviews, which are as shaped by myopic, dogmatic, unproved assumptions as secularists claim theologically orthodox religious worldviews are, will be tolerated in our pretend-tolerant society.

Listen to this article read by Laurie:

https://staging.illinoisfamily.org/wp-content/uploads/2021/09/Do-Christians-Regularly-Violate-the-Separation-of-Church-and-State.mp3

I’d like to offer a few words about the separation of church and state—a concept long abused by “progressives.”

The religion clauses of the First Amendment were intended to protect religion from the intrusive power of the state, not the reverse. The Establishment Clause states that “Congress shall make no law respecting the establishment of religion.” That does not mean religious convictions are prohibited from informing political values and decisions. To expect or demand that political decisions be divorced from personal religious beliefs is an untenable, unconscionable breach of the intent of the First Amendment which also includes the oft-neglected Free Exercise Clause which states that “Congress shall make no law prohibiting the free exercise of religion.”

People from diverse faith traditions and no faith could all arrive at the same position on a particular public policy. For example, although Orthodox Jews, Muslims, Catholics, Baptists, and atheists may all oppose abortion because they value human life, the reasons (or motives) for that valuation of life differ.

If there is a secular purpose for a law (i.e., to protect incipient human life), then voting for it—even for religious reasons—does not violate the Establishment Clause of the First Amendment. The source or motives of the various parties’ desires to protect incipient life are not the concern of the government. It would be not only absurd but also unethical for the government to try to ascertain the motives or beliefs behind anyone’s opposition to abortion and equally unethical for the government to assert that only those who have no religious faith may vote on abortion laws. Such an assertion would most assuredly violate the Free Exercise Clause of the First Amendment.

Legal theorist Michael Perry explains that,

forcing religious arguments to be restated in other terms asks a citizen to ‘bracket’ religious convictions from the rest of her personality, essentially demanding that she split off a part of her self . . . [T]o bracket [religious convictions] would be to bracket—indeed, to annihilate—herself. And doing that would preclude her—the particular person she is—from engaging in moral discourse with other members of society.

To paraphrase First Things founder, Richard John Neuhaus, that which is political is moral and that which is moral, for religious people, is religious. It is no less legitimate to have political decisions shaped by religion than by psychology, philosophy, or self-serving personal desire.

If allowing religious beliefs to shape political decisions did represent a violation of the Establishment Clause and an inappropriate commingling of religion and government, then American history is rife with egregiously unconstitutional actions, for religious convictions have impelled some of our most significant social, political, and legal changes including the abolition of slavery, antiwar movements, opposition to capital punishment, and the passage of civil rights legislation.

“Progressives” seem to have no objection to people of faith participating in the democratic process so long as their views comport with “progressive” positions. “Progressives” never cry foul when Quakers or Catholics oppose war because of their religious convictions, and “progressives” do not object that Catholic opposition to the death penalty represents a violation of the separation of church and state. When conservative people of faith participate in the political process, however, suddenly the Establishment Clause has been violated.

Dr. Martin Luther King Jr.’s “Letter from Birmingham Jail” is replete with references to his Christian faith which informed his belief about the inherent dignity, value, and rights of African Americans, a belief which he lost his life to see enshrined in law. He wrote what would now certainly generate howls of opposition if expressed by a conservative:

How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law.

The same people who argue vociferously against the presence of religiously informed political decisions that are conservative in nature are curiously silent with regard to those Catholics, Jews, United Methodists, Presbyterians, Lutherans, Unitarians, and Episcopalians who were politically active in the movement to effect speech codes or revolutionize marital laws. One could argue that those who attend houses of worship that support legalized same-sex unions are similarly attempting to enshrine in law their religious beliefs.

When politicians like presidential candidate Pete Buttigieg, former president Barack Obama, and Senator Rob Portman or celebrities like Jason Collins cite their Christian beliefs as the justification for their support for the redefinition of marriage, or fiscal policies, no one in the press or homosexual community accuses them of violating the separation of church and state.

Neuhaus argues persuasively in his book The Naked Public Square that a polity denuded of religion will be clothed soon enough in some other system that functions as religion by providing “normative ethics.” A democratic republic cannot exist without objective normative ethics that render legitimate the delimitation or circumscription of individual rights.

Historically, the sources of the absolute, transcendent, objective, universal truths that render legitimate our legal and judicial systems have been “the institutions of religion that make claims of ultimate or transcendent meaning.” Neuhaus explains that this “does not represent an imposition of the private into the public spheres, but rather an expansion or transformation or recollection of what is public.” He argues that when religion is utterly privatized and eliminated as a “source or transcendence that gives legitimate and juridical direction and form, something else will necessarily fill the void, and that force will be the state.”

If the body politic claims that there are no absolutes or delegitimizes religion as an arbiter of right and wrong, or good and evil, then the state will fill the vacuum, relativizing all values, and rendering this relativization absolute. Many would argue that there is little indication that society has heeded Neuhaus’ warning about the political implications of society’s rejection of religiously derived transcendent truths. And so, the coercive power of the state increasingly fills the space vacated by religious institutions.

Lawmaking absent an understanding that there exist moral truths that are objective and universal would represent an illegitimate and hubristic arrogation of power by the state. Acknowledging that there is objective truth regarding what is right and wrong and that it is universal and knowable is essential to democratic institutions. What sense does outrage at human rights violations make if we assert there are no universal, transcendent, eternal, objective truths? And if we agree that these truths exist and that they transcend the subjective opinions of any particular individual, then what is their source other than a supernatural, eternal, transcendent being?

Some argue that reason alone is sufficient to serve as the objective source of truth, but a recollection of Hitler’s eugenic reasoning reveals the problem with reliance solely on man’s reason. Claims of unalienable, self-evident rights, as our founding fathers understood them, both presume and require for justification, the existence of God. Robert L. Toms wrote that it was this understanding that generated “the concept that the state, the monarch, the dictator, the tribal leader, was no longer a deity to be obeyed unquestionably.” And the state neither creates ex nihilo nor confers our fundamental rights but, rather, provides legal protection for extant rights.

Charges of violating the separation of church and state are selectively hurled. Remember that next time a lefty tells you your political views must be severed from your religious views.

Listen to this article read by Laurie:

https://staging.illinoisfamily.org/wp-content/uploads/2020/01/cCHristians_church-and-state_audio.mp3

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Written by Daniel Horowitz

In case you thought that the potential to flip Justice Kennedy’s seat alone will bring us back to the constitutional promised land, think again. So long as the lower courts are not restrained, we will never return to the Constitution and the principles of the Declaration of Independence.

There is nothing more radical than a lower court granting standing to random plaintiffs to sue against non-coerced public prayer in county government meetings, prayers that have been going on since our founding. Yet a district judge in 2015 and the en banc decision of the radical Fourth Circuit in 2017 barred Rowan County, North Carolina, from opening council sessions with a prayer, similar to what our federal Congress does every day. [Last week], the U.S. Supreme Court refused to grant certiorari to the appeal from Rowan County, despite three years of being under a tyranny that the judges know is unconstitutional.

We shouldn’t even need to get into court precedent to understand our heritage and the true meaning of the Establishment Clause of the First Amendment. But just four years ago, in Town of Greece v. Galloway, Justice Kennedy wrote for the majority that as long as the prayer “comports with our tradition and does not coerce participation by nonadherents,” there is no room for judicial intervention. “To hold that invocations must be non-sectarian would force the legislatures sponsoring prayers and the courts deciding these cases to act as supervisors and censors of religious speech,” Kennedy wrote in the 2014 case.

The Fourth Circuit rejected precedent because this prayer, in the court’s estimation, was tantamount to coercion because it makes non-religious attendees feel like “outsiders” and “the overall atmosphere was coercive, requiring them to participate so they ‘would not stand out.’” (More on that case and how contrary it is to our founding here.)

For the U.S. Supreme Court not to take the appeal is egregious, especially given that the Sixth Circuit recently ruled the other way, triggering a circuit split. Justice Thomas, as has become his tradition recently, dissented from the decision to deny cert. Thomas noted, “The Fourth Circuit’s decision is both unfaithful to our precedents and ahistorical” and observed, “For as long as this country has had legislative prayer, legislators have led it.” Gorsuch joined the dissent.

There are a number of important observations to be made here in light of the U.S. Supreme Court vacancy, calling into question our ability to change the direction of the judiciary absent broader reforms:

• Aside from the contorted construction of the First Amendment inherent in this ruling, the courts are continuing to grant standing to random plaintiffs (as straw men for the ACLU) who have no justiciable injury-in-fact other than that their sensibilities are offended. The notion that you can even take such a policy to court is absurd and has grown the power of the courts to that of a legislature rather than an individualized adjudicative body. So long as the Left can lodge hundreds of frivolous lawsuits on important abstract policies every day and have the most liberal districts and circuits uphold them, the shift on the U.S. Supreme Court will not bring much relief. The ACLU and its offshoot organizations essentially have unlimited power so long as the U.S. Supreme Court doesn’t change its policies and more aggressively police the lower courts.

• The fact that Roberts knows there will be a more conservative fifth justice added to this wing of the court in the fall and still refused to take up the case is all the more disturbing and demonstrates that we cannot rely on him to overturn these insane lower court rulings expeditiously.

• There is no such thing as a conservative win at the U.S. Supreme Court. Lower court justices will always find hairs to split in any case that is not 100 percent identical and completely ignore precedent, something conservative lower court judges will never do in defiance of liberal U.S. Supreme Court opinions. This is why just hours after the high court affirmed the president’s full power to place conditions on entry, a California judge said that the president must find every single family entering illegally and unite them within 30 days. In another ludicrous ruling on immigration, a New York federal judge said yesterday that the Trump administration cannot promulgate a rule requiring the director of the Office of Refugee Resettlement to personally sign off on the release of illegal immigrant child detainees. Yes, we have no sovereignty, and the president has no powers to even establish some oversight before swamping the country with foreign nationals, who flood into our schools and communities and who often join MS-13. Chief Justice Roberts said that there are no limits to the president’s power to regulate entry into the country, but that will not stop lower courts from granting standing to illegal aliens to sue against every minute piece of policy.

This is all to say that unless the lower courts are dealt with, we will continue to suffer increasingly at the hands of the lower courts even as the membership on the U.S. Supreme Court officially gets better. The bottom line is: We don’t have five Clarence Thomases and will not get them any time soon.

It is incumbent upon conservatives in Congress to create a movement to reorient the power of the lower courts. Rather than the default being that any random court can shut down our heritage and system of governance for years until the U.S. Supreme Court grants relief – if ever – the injunction should automatically be placed on hold until and unless the U.S. Supreme Court takes up the case and affirms the ruling. Granting a congressional-created court supremacy power over the other branches of government is a case of the inmates running the asylum. If the U.S. Supreme Court refuses to act supreme to its own underlings, then why should we respect its supposed “supremacism” over the rest of us?

This article was originally published at ConservativeReview.com