Post The First — Why Is This Stuff So Darn Hard To Begin With May 21, 2010

Post The First — Why Is This Stuff So Darn Hard To Begin With

Hemant’s note: Brittany Meyer is a guest-blogger who will be writing exclusively about law-related issues. You can read her bio here.

Church and State cases are often very difficult, legally and constitutionally, and the “right” answer is always elusive. It’s almost impossible to completely comply with the establishment clause, “congress shall make no law respecting an establishment of religion” without infringing on the free exercise clause, “ or prohibiting the free exercise thereof.”

Church and State law isn’t the only area where protecting the freedom of one group will infringe on those of another. Take criminal procedure, for example. A maddeningly frustrating course in law school, this body of law pits the rights of the individual against the rights of the greater society. Is forcing a person to remove their jacket to search for weapons too invasive? What about a general pat down of outside clothing? What if the former would provide vital evidence and the latter will leave a murderer free? In other words, what personal freedoms should the Supreme Court make us give up for the safety of the whole?

Similarly, church and state law juggles the protection of one’s right to practice religion against unlawful government entanglement and the appearance or actuality of government endorsement of religion.

Sometimes this is an easy equation — most people will agree that the 10 Commandments shouldn’t be at our Courthouse steps and that students shouldn’t be forced to pray in public schools. But often cases are not so simple. A good example of this is the recent Supreme Court Case, Christian Legal Society v. Martinez.  This case’s facts questioned whether a rule forbidding discrimination is itself discriminatory against a group’s honestly held religious belief that they should discriminate against atheists and gays.

On the other side, we wonder whether a government body granting the group a special exemption and allowing discrimination then results in government endorsement of that discrimination, or the faith-based beliefs motivating them. As a strong advocate for the separation of Church and State I had, at first glance, a hard time choosing a side. It’s an extremely difficult line to draw, and cases with nearly identical facts sometimes result in random and seemingly irreconcilable decisions. See, for example, Lynch v. Donnelly (nativity scene on public property ok) and County of Allegheny v ACLU (nativity scene on public property not ok).

And so my mission in contributing to this blog is not only to provide links and descriptions of the cases relevant to church and state separation law, but also to help readers appreciate the nuances inherent in them. If I miss a hot case, please let me know and I’ll try my best to look into it. I may also occasionally go back in time to describe and explain how and why old cases came out the way they did and why that’s important in the bigger picture.

I look forward to sharing my thoughts on this fascinating, confusing and passionately-contested constitutional issue. Thanks for reading, and please check in and comment frequently.

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  • Trace

    Hi there. Welcome. What kind of plant is Barnabas? We have a clover plant called Trebby.

  • Bob

    I’m still a relative newcomer to these parts myself, but welcome, Brittany!

  • — most people will agree that the 10 Commandments shouldn’t be at our Courthouse steps

    You have more faith in your fellow Americans than I do, lol. 🙂
    Welcome aboard! I look forward to reading your contributions.

  • Eddie

    Welcome to the site.

    Many times in just the history of United States have laws been made that are discriminatory against a group of individuals that were based on religious beliefs.

    I can’t fathom that just because a law is created that infringes on “the right to be discriminatory” means that it is a just law or that it is also justifiable just because of that religion’s doctrine.

    To me is clear cut that laws have to be enacted to enforce a greater good before the any of the so called morality laws were taken off the books.

    Civil rights come to mind for this in itself. It was a law that had to be enacted, enforced, even though it was felt that discriminatory laws could be justified by the church.

    Any nuance in the law that could provide a justifiable means for outright condoning any prejudice is, in my opinion, fallible in that the eventual outcome of a law protecting the few over the opinion of the many.

  • Claudia

    Hi Brittany, welcome! Just to start things off fun, don’t laws discriminate by their very nature? Doesn’t a rule prohibiting the practice of any human behavior always have the potential on stepping on the “honestly held religious beliefs” or someone else? The penalty for Apostasy is death in Islam, work is forbidden on the Sabbath in Judaism, Mormonism was in fact forced to change it’s mind on bigamy due to pressure from the government, there are laws in many (though not enough) states saying that you cannot deny medical care to your child, which is a law tailored specifically against a core belief of Christian “Science”.

    Why aren’t these considered challenges to the “prohibiting the free exercise thereof.” part?

  • Reginald Selkirk

    Church and State cases are often very difficult, legally and constitutionally, and the “right” answer is always elusive.

    The courts make it appear much more difficult than it need to be because they obviously start with their answers and work backwards to construct a chain of “logic” to support it.

  • Reginald Selkirk

    A good example of this is the recent Supreme Court Case, Christian Law Society v. Martinez. This case’s facts questioned whether a rule forbidding discrimination is itself discriminatory against a group’s honestly held religious belief that they should discriminate against atheists and gays.

    I think it would be helpful to elaborate on the details of that case. In Christian Legal Society v. Martinez (a point off for you for getting their name wrong), CLS has discriminatory policies in which officers and voting members must be a certain kind of Christian. Butler University does not challenge the CLS’ right to exist, or to use Butler facilities for their meeting, they only dispute CLS’ status as an officially recognized student organization which receives funding from the university. I.e. the CLS demands that the university pay for their discriminatory existence.

  • JulietEcho

    It’s great to have a lawyer contributor – we talk about church/state cases a lot, and it’s brilliant that we now have someone who can shed more light on the decisions that are made.

    I’m an IVCF brat (my dad has worked for them for over 25 years now), and I remember they’ve had cases to deal with (which I think they’ve always settled privately and dealt with by accepting status as a non-official campus group) over their discrimination in granting student leadership positions to only Christians who fit their definition. Of course, IV saw themselves as being persecuted victims who were being penalized for their faith. It does seem like a complex issue though, when the discrimination is an integral part of their belief system.

  • I’m probably in a minority but I always think these are very simple. First, abstract away all the religion – that leaves you with the simple bald question, in this case “Is it OK to discriminate”. Here the answer is pretty clear: “No”. Then you have to ask, “Does this interfere with the normal practice of religion?”; again the answer is “No”. This indicates that the initial concept proposed by the religious folk was something that was inherently wrong, like human sacrifice or, in this case, discrimination.

    Not particularly difficult, but it does require that initial abstraction.

  • Mr Z

    Brittany M.
    On the topic of discrimination being a religious right, some would say that the government already subsidizes religion in the form of tax relief(s). Should they continue to receive such relief while they are in fact discriminating? I don’t think they should get it in the first place, but if they want to keep it, discrimination paid for (in part or whole) by public funds is not allowed. Private clubs may well have a right to be picky or discriminate, but publicly funded organizations do not.

    BTW, public funding in the form of tax relief for religious groups is discriminatory toward those of no religion or faith IMO.

    The decision should not be whether religions can be, but can anyone using public funds be discriminatory? Religions, by definition, ARE discriminatory, no matter how open they claim to be, you are really only welcome if you wish to convert. Imagine the trouble it would cause if all a church’s pews were taken by atheists, GLBT, and right to lifer’s every Sunday who did not convert, contribute funds, or participate in any other way?

    The decision can most often be handled strictly on the funding issue. Private clubs with only private funding are little more than a big house party – house rules, not federal rules apply. A franchise of private clubs should be no issue as long as their tax/income is reported and can be audited, and their membership roster published.

    Until agnosticism and atheism are treated equal to religion under the law, funding via tax relief is truly government deference toward religion and against those of no faith. It is arguably a misuse of public funds, and an act of discrimination in and of itself.

  • Andrew Morgan

    “In other words, what personal freedoms should the Supreme Court make us give up for the safety of the whole?”

    Boo to this idea. Not that I’m blaming you for it, but, call me retro, 9 political appointees (for life!) of any political persuasion shouldn’t be the final say on such matters.

  • Frank

    Welcome Brittany. I look forward to seeing what you come up with. Here’s an interesting question: Is free exercise merely a subset of free speech, or does it mean something extra? Has the supreme court ever rightly (in your view) decided a case in favor of free exercise that it could not have decided in the same way on free speech grounds?

  • d’Armond

    Welcome! Sounds like a fascinating series, and I’m looking forward to it.

    As a kid who, in the 1970s was forced to participate in school prayer against my wishes, and then ostracized by my peers when I refused to participate (the teacher wouldn’t let me sit there quietly, she insisted that I bow my head like a good little sheep, or leave the room), I am often amazed at how hard people make this issue. The goal doesn’t seem to be to defend the constitution against obvious breaches, but rather to defend obvious breaches against the constitution by feats of legal legerdemain. IANAL so when I hear about some ridiculous decision that allows a cross on public land, or religious discrimination in hiring practices, or federal funding for religious schools, etc etc I assume that it’s some crackpot judge who is bending the law to his/her predetermined position. I am looking forward to hearing about the honest conflict between establishment clause law and other rights such as free speech.

    It will be difficult to convince me that any law supporting religion is right, even when balanced against other constitutional protections, though. Sounds more like tortured law & logic than tortured conscience.

  • *nosetouch*


  • withheld

    Welcome! I keep trying to think that the legal process should be logical (the outcome should follow the evidence/law/Constitution) but there always seem to be cases that just make no logical sense. I’m glad we have a lawyer on board to help explain these cases to us.

  • Aaron

    From reading about the Christian Legal Society case it seems that the CLS was trying to argue that other groups get to put restrictions on their memberships, so why can’t they?

    If you had a Ginger club, could you keep blonds out because they have the wrong color hair?
    If you had an Irish club, could you keep out people of English heritage?
    Could you have a shorty club? or a lefty club?

    I wonder if the CLS bans membership from adulterers and fornicators.

  • Aaron

    Boo to this idea. Not that I’m blaming you for it, but, call me retro, 9 political appointees (for life!) of any political persuasion shouldn’t be the final say on such matters.

    Then who would decide the interpretation of the law? You can’t put every case in front of the legislature.
    I suppose I am just curious what you mean by “retro”. The Supremes have always been political appointees.

  • Autumnal Harvest

    Welcome, Brittany, I look forward to your posts!

    I agree that there’s a tension between the Establishment Clause and the Free Exercise clause, that can make these cases tricky. However, I’d suggest that a lot of the “tension” disappears if you adopt the position of the Supreme Court in Employment Division v. Smith: that the Free Exercise clause only means that the government can’t make laws targeting religious acts as religious acts, but that there’s nothing wrong with the fact that a secular law with secular justifications happens to prevent exercise of a religious practice. This is, in my opinion, the most reasonable view of the Free Exercise Clause.

    From that perspective, Butler is fine from a Free Exercise standpoint, although still problematic due to free speech and free association issues.

    R. Selkirk:

    I.e. the CLS demands that the university pay for their discriminatory existence.

    This is a technically accurate, but highly misleading formulation. The university pays for other, similarly situated groups, so I would instead say that CLS demands that the university pay for their existence in the same manner as other student groups, and not discriminate against them for their discriminatory policies.

  • Demonhype


    I remember being told in Catholic school as a little girl that “we believers” are being “persecuted” and “denied our right to freedom of religion” because “our deeply held faith requires that we convert the world by any means necessary”. So being prevented from using any and every organization, up to and including the American government, to enforce Christianity on the populace, was in itself “discrimination and a violation of First Amendment rights”.

    I remember how my jaw dropped at the absurdity and obscenity of such a suggestion, even at about six or seven years old! Ever hear the old adage that “my freedom to swing my arms ends where your nose begins”? You have freedom of faith right up to the point where you require endorsement and/or enforcement from secular authorities.

    Can you imagine what a mess we’d have on our hands if every religion that claimed as it’s “deeply held beliefs” that it had such divine authority to discriminate or persecute, and that preventing such behavior was discrimination and persecution of themselves? You’d end up with either The Hundred Years War or the Inquisition! Allowing a group to practice it’s “deeply held faith” regarding the religious discrimination against others, and you’ll end up with the latter. Open that door to all groups, and you’ll have the former…followed by the latter, eventually.

    How hard is this for people to understand? And why can’t they understand that the same limitation protects them from other people who have other “deeply held faiths” that require that they discriminate against unbelievers in their own faith? These kinds of people are the first to discriminate, first to persecute, first to flout any law or rule protecting the rights of others and then the minute anyone refuses to endorse or fund their bigotries they’re the first to cry out “discrimination! persecution!” as if they have a special right to such special endorsement.

    No one has a fundamental right to special endorsement or funding of their beliefs, and no one has the right to violate the rights of others just because they declare divine authority. No one. Is that so hard? The same limitations apply to their often equally-bigoted competition, and I’m sure they like that part just fine.

    Sorry, ever since that line from Catholic school, I’ve tended to go bonkers whenever anyone says “but it’s discrimination to make a law limiting my enactment of my discriminatory beliefs onto others!”

    So I’ve got to side with Reginald Selkirk and d’Armond here. Sounds like tortured logic, not tortured conscience, and circular, a priori reasoning to get the conclusions they were shooting for in the first place.

    I, for one, don’t want to see the Dominionists or Reconstructionists taking control, just because we don’t want to “discriminate against their deeply-held discriminatory beliefs”.

  • You would think that the idea of flesh being painfully burned off of an outsider’s bones for an eternity would be sufficient discriminatory expression for the deeply religious. But no… they want to participate in the discrimination themselves. They want to play God… Jump the gun on God’s judgment… Help God out in His favorite pastime… Be God’s henchmen…

  • Edmond

    Heh heh, I liked the typo that provided us with “faith-basted beliefs”. That’s what they are, alright!

  • Simon

    I don’t see the difficulty in these cases.

    The CLS clearly wanted an exemption to rules that said you can’t discriminate. The question was not the harder one of “should a University be able to support such religious discrimination”, but the easier one “did the University treat the CLS differently” – to which the answer appears to be “there is no evidence they did”.

    As regards the other other case the supreme court ruling is clearly in error, as there is no secular purpose evident to me – you’d have to be a Christian to see such a secular purpose I think.

  • Maury

    Fantastic idea for a series. Always fascinated by the details of church/state cases.

    Seems to me there need to be limits on what can pass as religious freedom. I mean, parents would be allowed to kill their children for misbehaving as commanded by the old testament and get away with it simply by stating they were practicing their religion.

    Along a similar vein, I remember when Native Americans wanted to use peyote as part of their religious traditions and that was a bit of a fuss.

    Neat topic, looking forward to more articles.

  • Richard Wade

    Welcome Brittany. Your knowledge and experience is very much needed here. Thank you for your generosity.

  • Canadiannalberta

    Welcome! I look forward to reading more from you.

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