The Satanic Temple is asserting a free exercise right to abortion as a religious ritual in lawsuits against the state of Missouri and against a Louisiana advertising agency.
Doe v. Parson
[dc]O[/dc]n September 24, 2020, a member of the Satanic Temple, “Judy Doe,” asked the Supreme Court to decide whether a state can require a woman seeking an abortion to submit to a waiting period when her religious belief is that a fetus is not a separate human being.
The case involves a 2014 Missouri state law that proclaimed that “the life of each human being begins at conception” and requires women seeking abortions to wait for three days after receiving proclamation to have an abortion.
According to the petition, a core belief of the Satanic Temple is that a woman’s body “is inviolable and subject to her will alone and a “non-viable fetus is part of her body and be removed ‘in good conscience … on demand and without regard to its current or future condition.’”
The petitioner claims that the Missouri statute, widely viewed as an effort to persuade women against having abortions, is predicated on a religious issue. However, religion is not identified as the rationale.
The filing is an appeal of the 8th Circuit’s decision in Doe v. Parson, No. 19-1578 (8th Cir. 2020). The Circuit framed the issue in terms of Doe and Missouri having a different opinion on when life begins. The 8th Circuit notes that even though Doe has claimed that the idea that life begins at conception is “Catholic dogma,” “[t]he problem with this theory is that a state does not establish religion by passing a law that just ‘happens to coincide or harmonize with the tenets of some or all religions.’” Harris v. McRae, 448 U.S. 297, 319 (1980) (quoting McGowan v. Maryland, 366 U.S. 420, 442 (1961), which upheld the Hyde Amendment’s ban on publicly funded abortions.
Even if the state’s publication of its view that life begins at conception is divisive, the Circuit continued, it does not constitute an establishment of religion. The Circuit cited the Supreme Court ruling in Gonzalez v. Carhart, 550 U.S. 124, 157 (2007) that a state could use “its voice . . . to show its profound respect for life.”
While the courts have typically addressed abortion in the context of a “right to privacy,” the Supreme Court has not directly addressed the issue in a religious liberty right to obtain an abortion.
As of this writing, the state has not yet responded to the Petition, although the state solicitor general told a lower court that this is not a matter of religious freedom.
The Satanic Temple’s Religious Abortion Ritual Billboard Controversy
Along with the filing of the lawsuit at the U.S. Supreme Court, the Satanic Temple has begun a public relations campaign to promote the “religious abortion ritual,” which recommends that certain tenets of their belief be recited during an abortion procedure. The apparent goal is to expand the idea that abortion is a religious practice subject to “free exercise of religion” under the First Amendment.
According to the Satanic Temple, the ritual “includes the abortive procedure into a sacramental act that confirms the right of bodily autonomy, wards off the effects of unjust persecution, and reasserts as ideals the dual paths of reason and confidence.”
On September 27, 2020, the Satanic Temple sued a Louisiana advertising agency, Lamar Advertising, for religious discrimination when it refused to post billboards promoting the abortion ritual outside several pro-life pregnancy counseling centers in several cities throughout the Southern United States. According to pictures of the proposed billboards in the complaint, the advertising featured the Satanic Temple pentagram logo and said, “Our Religious Abortion Restriction Averts Many State Restrictions.” One had a photo of two women talking, and one said, “Susan, you’re telling me I do not have to endure a waiting period when I have an abortion? That’s true if you’re a Satanist.” Another had a picture of Hitler and said, “What if abortion had been an option.” The third poster claimed that abortion saves lives that are lost due to pregnancy complications.
Lamar has previously posted billboards on pro-life themes.
While these cases are attracting widespread attention, as of this writing, the Satanic Temple’s unambiguous strategy has not been endorsed by major abortion-rights advocacy organizations.
[dc]L[/dc]ast Friday the U.S. Supreme Court agreed to hear a case involving a church that sued the state of Missouri when the state refused to fund a “non-sectarian” playground surface as part of a larger grant program.
Trinity Lutheran Church in Columbia, Missouri applied for a state grant program that would allow it to replace its pea gravel day-care playground with a bouncy surface made of recycled tires. Of 44 applicants for the program, the state had money to pay for 14 of them.
Even though the church would otherwise qualify for the program, the state’s constitution prohibits such funding and the state refused. The state’s constitution states specifically that, “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion.”
[pullquote align=”right” cite=”” link=”” color=”” class=”” size=””]”[N]o money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion.” Missouri State Constitution[/pullquote]
The church sued the state and argued that the playground upgrade had nothing to do with religion and would provide a primarily secular benefit for children who attended the church’s daycare and neighborhood children who use the facility after hours.
The Eighth Circuit Court of Appeals affirmed the denial. The attorneys for the church appealed to the Supreme Court, arguing (http://www.supremecourt.gov/qp/15-00577qp.pdf) that the denial was contrary to the Supreme Court’s decision in Locke v. Davey, 540 U.S. 712 (2004) which they interpret as justifying the exclusion of religion from a neutral aid program where, according to the church’s attorneys, “no valid Establishment Clause concern exists.” (In Locke, the Court ruled 7-2 found that the state of Washington could use its discretion to refuse to provide funding for theology majors. The Locke Court also found that states have a ‘historic and substantial interest’ in excluding religious activity from public funding.)
The question before the Court raised by Trinity’s attorneys is:
“Whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.”
Not surprisingly, the question is loaded since whether there is a “valid Establishment Clause” concern is up for debate. If anything, Missouri’s constitution takes the Establishment Clause a step further by clarifying that the “public treasury” will not be used to fund religion. The fact that this language is not present in the Federal constitution should not be seen as proof that such funding is constitutional. Rather, even in states without such constitutional provisions, any governmental funding of religion is prohibited and the institutions that receive such funding need to demonstrate that it is being used in secular ways.
A Short History of the Blaine Amendment
Following the Civil War, the American Protestant majority was becoming increasingly nervous about Catholic immigrants who sent their children to Catholic schools. Since public schools already integrated Protestant teachings into their curriculum, a situation that would not change until the 1950s, there was a fear that tax money would be used to fund Catholic education.
With this issue in mind, in 1875, President Ulysses S. Grant gave a speech for a veterans group that called for a Constitutional amendment that would mandate free public schools and prohibit the use of tax money for sectarian schools, a common practice at the time. Grant said that this free public education should be “unmixed with sectarian, pagan, or atheistical dogmas.”
In response to the suggestion, Senator James Blaine proposed the following amendment to the U.S. Constitution which would strengthen the Establishment Clause by prohibiting government money from being used to fund sectarian institutions.
“No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.”
Although the Blaine Amendment passed the House of Representatives by a vote of 180 to 7, it failed to reach the necessary two-thirds vote in the Senate by four votes and it was not added to the U.S. Constitution.
With the failure of the Amendment in the U.S. Senate, proponents turned their attention to implementing state-level “Blaine Amendments.” As the nation was still growing, Congress made state-level passage of Blaine Amendments an explicit condition of entering the Union for several states and a number of other states willingly adopted the amendment as part of their constitutions. Today Blaine Amendments, or “No-Aid provisions” remain in force in 35 states.
[pullquote align=”left” cite=”” link=”” color=”” class=”” size=””]”No-Aid provisions” remain in force in 35 states.[/pullquote]
The Supreme Court and Direct Funding of Sectarian Institutions
As Justice Sandra Day O’Connor, since retired, noted in her concurring opinion in Mitchell v. Helms (2000), the Court recognizes that there “are special dangers associated with direct money grants to [such sectarian] institutions.”
The Court in Mitchell also noted that it was necessary to ban direct financial aid to religious institutions because “there is a risk that direct government funding, even if it is designated for specific secular purposes, may nonetheless advance the pervasively sectarian institution’s ‘religious mission,” and “knowingly or unknowingly, result in religious indoctrination.”
Although the Blaine Amendments have been on the books for more than 140 years, they were dismissed as anachronistic by a plurality in Mitchell, including Rehnquist, Scalia, Thomas, and Kennedy, who found that “nothing in the Establishment Clause requires the exclusion of pervasively sectarian schools from otherwise permissible aid programs, and other doctrines of this Court bar it. This [Blaine Amendment] doctrine, born of bigotry, should be buried now.”
The same justices also wrote that “opposition to aid to “sectarian” schools acquired prominence in the 1870’s with Congress’s consideration (and near passage) of the Blaine Amendment, which would have amended the Constitution to bar any aid to sectarian institutions. Consideration of the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that “sectarian” was code for “Catholic.”
When the Supreme Court convenes to review the Trinity Lutheran case, Catholic Justices Scalia, Thomas, and Kennedy will still be on the bench. While religion is certainly not determinative of a decision, the composition of the Court is significant in that Republican appointees Justices Alito and Roberts are also Catholic along with Democrat appointee Justice Sotomayor.
While the briefing in this case suggests that the Court will be asked to focus on the legitimacy of the state-level Blaine Amendment rather than whether such funding runs contrary to the Establishment Clause, the result could lead to a scenario where the Courts could compel states to directly fund “non-sectarian portions” churches and churches, thus undermining the Establishment Clause.
Houses of Worship Could Engage in a Feeding Frenzy for State Funds
According to Gregory Hamilton, president of the Northwest Religious Liberty Association, there is reason for concern that a decision in favor of Trinity Lutheran Church could “represent the first time in U.S. Constitutional History, that I am aware of, that state monies would flow directly to a church, even if the playground resurfacing and construction was for non-sectarian purposes,” says Hamilton. “Second, it would invariably create a competition frenzy among churches and denominations for similar project funds. This would go against the original intent of the Establishment Clause of the First Amendment whose foundation is based on the debates between James Madison and Thomas Jefferson on one side for disestablishment of religion as part of a religious freedom statute in Virginia and Patrick Henry on the other side who favored direct church funding.”
[pullquote align=”right” cite=”” link=”” color=”” class=”” size=””]”[I]t would invariably create a competition frenzy among churches and denominations for similar project funds.”[/pullquote]
If the Court were to rule in favor of Trinity Lutheran Church, Hamilton warns, “it would be redefining ‘government neutrality’ in ways that change the balance between church and state as we have known it, and empower churches to make greater demands on the state to build up their so-called ‘non-sectarian’ activities.”
Indirect Benefit for Religious Ministry
Even though states have not been able to fund churches directly up until now, this could change, and bring with it an entirely new understanding of what the Establishment Clause means, and it may not be long before churches, synagogues, mosques and other houses of worship compete with secular organization to demand that state taxpayers fund the “secular” portions of their infrastructure. The religious organizations could then use the money they would have spent for the secular infrastructure to advance their religious objectives.
Churches Would Have to Distinguish Between Secular and Religious Use
In the event that churches were able to receive direct funding for “non-sectarian” infrastructure, they would need to ensure that the use was not religious. This creates a number of problems for religious institutions that pride themselves on representing their faith in all that they do. Even if state regulators do not step in and police each activity to ensure that children are not led in Sunday School songs on their new bouncy playground, churches that wish to instill ethical values of truthfulness and fair dealing would face significant challenges when they decide whether to tell children that certain areas are off limits for directed religious activity so long as the infrastructure is in place.
[pullquote align=”right” cite=”” link=”” color=”” class=”” size=””]Churches that wish to be above-board will have to cordon off those secular areas from religious areas, an untenable situation at worst, and a Faustian bargain at best.[/pullquote]
Churches that wish to be above-board will have to cordon off those secular areas from religious areas, an untenable situation at worst, and a Faustian bargain at best. In the case of Trinity, children will know instinctively that something is wrong if churches fail to abide by the non-sectarian purposes, and the church may soon find that they sold off an important part of their property for the price of a bouncy play surface. Better to get the neighbors together and ask for them to pitch in to buy a few containers of recycled rubber playground mulch. Amazon.com will sell you 75 cubic feet for $749.00 with free shipping to Missouri. That’s enough to cover 300 square feet at 3 inches deep, or 150 square feet at 1.5 inches deep.
A Larger Problem
The fact that religious institutions are now clamoring for state funds under a secular pretext is perhaps indicative of a larger problem that churches themselves must seek to address as they are unable to fund their own activities.
It does not go unnoticed that many who demand this funding at the point of litigation simultaneously argue for “small government” and decreased regulation, an oxymoronic situation whenever government money is involved. Also, many of these advocates have also argued for “states’ rights” when it comes to same-sex marriage laws, yet are at this stage asking the Supreme Court to overturn a state constitutional provision. It is cause for concern whenever arguments become a matter of convenience rather than principle. Litigating along such inconsistent lines of logic is fundamentally destructive.
Given the fact that until now the Court has not permitted government to directly fund any church for any reason, if the church wins the funding from the state at the point of litigation, this will represent a seismic shift in the balance of power between church and state and directly undermine the Establishment Clause.
This year a number of state bills are being introduced that involve religious liberty. Here are a few highlights with more to come in following weeks.
Alabama
On February 19, by a margin of 67 to 28, the Alabama House of Representatives passed the Religious Liberty Act, HB 108, sponsored by Lynn Greer (R – Lauderdale County) which would “protect the freedom of conscience rights” of small Alabama employers who do not want to pay for federally mandated contraception coverage if it violates the religious conscience of the employer.
If held to be constitutional, HB 108 would allow employers to opt out of some provisions of Obamacare. The bill includes language that prevents employers from obtaining the protected health information of employees or to violate HIPAA.
There is some question as to what “religiously motivated” means, and others felt that religion should not have been part of the legislation. Another concern was what would happen if an employee required contraceptive medications for reasons other than birth control such as endometriosis.
California
This week, Sen. Ricardo Lara (D- Long Beach) introduced SB 323 which would threaten to revoke tax exempt status for a wide range of “youth groups” unless they agree to abandon any criteria related to gender identity, sexual orientation, religion, and other categories. The bill is intended to pressure the Boy Scouts to accept homosexual leaders but, according to the Pacific Justice Institute which is actively involved in tracking the bill (http://www.pacificjustice.org/1/post/2013/02/-new-bill-pushes-scouts-little-league-religious-groups-to-accept-lgbt-gender-identity.html ) it could affect many different types of organizations ranging from the Boy Scouts to Special Olympics, Little League, youth sports organizations and “youth groups.”
The tax exemptions primarily involve state sales and use taxes. Because it would represent a tax increase on non-profits, it would require a 2/3 approval in both the Senate and the Assembly.
The current version and progress of the bill can be tracked at LegiScan (http://legiscan.com/CA/text/SB323 ) . Pacific Justice Institute will be organizing opposition to the bill and indicates that it plans to legally oppose this legislation if it passes. As presently written, the bill cold affect religious organizations.
The Mississippi House and Senate have passed dual versions of a bill that would affirm the religious freedom of students in public schools.
The “Schoolchildren’s Religious Liberties Act”, introduced by Mark Formby (R-Picayune) is designed to prevent students from being “punished” for expressing personal religious viewpoints to classmates or from being told that they cannot invite classmates to after-school Bible clubs. The purpose of the bill is to clarify and affirm the constitutional free speech rights that presently exist and have been protected by federal courts.
The bill is an attempt to circumvent the effects of a previous Mississippi court ruling that struck down a previous Mississippi law allowing student-led prayer by allowing schools to declare that events such as graduations and football games are “limited public forums” and students would be allowed free speech on such occasions, including prayer or other religious speech.
The ACLU has expressed concerns that this could lead to student-led prayers, and could force children in captive audiences to listen to the religious expression of others. Advocates for the bill say that since the school would not dictate the message and would be required to publish a disclaimer that it was not sponsoring the prayer, it would pass constitutional muster.
The bill is presently in a joint committee to resolve some minor differences between the House and Senate versions before it is submitted to the governor for signature.
Missouri
Missouri State Representative Rick Brattin (R – 55th District), has introduced House Bill 291 which defines biological evolution as a “philosophy” that “denies the operation of any intelligence, supernatural event, God or theistic figure in the initial or subsequent development of life.” It further states, “The origin of life on earth is inferred to be the result of intelligence directed design and construction. There are no plausible mechanisms or present-day experiments to prove the naturalistic origin of the first independent living organism.”
The bill would mandate that evolution and intelligent design receive “equal treatment” in the classroom.
Representative Brattin’s heart may be in the right place, but his proposed solution may run contrary to principles of separation of church and state. His positions may need to be more nuanced, as his website indicates (at least as of this morning) that Brattin wants to “repeal health care for people.” (http://rickbrattin.org/)
The Virginia House and Senate have passed SB 1074, Sen. Mark Obenshain (R-Harrisonburg), which would protect the right of religious and political student gropus at public universities to choose members and leadership based on their beliefs and principles. The bill would allow such groups to determine that only people committed to the organization’s mission may conduct certain activities, and further prohibits public institutions of higher education from discriminating against student groups that make such a determination.
The bill is designed to reverse the enactment of “all-comers” policies which have prohibited student organizations from establishing viewpoint criteria for their membership and leaders. The result of these policies has been that groups could be required to have members or leaders who do not share the beliefs of or believe in the mission of the group.
This bill will support the foundational constitutional principle of free association. The Supreme Court has previously ruled that “all-comers” policies are constitutional, although universities are not required to have them. This bill will ensure that Virginia public universities, none of which have “all-comers” policies, will not introduce them.
[dc]M[/dc]embers of the clergy in Missouri are objecting to legislation introduced in January by Rep. Jered Taylor (R-Nixa) (HB 1936) that would remove the requirement that individual Concealed Carry Weapon permits first obtain the permission from their pastor before carrying concealed weapons in church and require signage if churches do not permit concealed carry.
Under existing law, a person with a CCW permit must obtain permission from “”the minister or person or persons representing the religious organization that exercises control over the place of religious worship.”
The new legislation would permit the legal carry of a concealed weapon unless a sign, that is at least 11-by-14 inches with writing that is at least one-inch tall, banning weapons was prominently displayed. It truly is a contentious issue. San Diego Criminal Lawyer is a top rated criminal defense law firm in San Diego that was kind enough to share some of their time and knowledge to interpret this issue and shed light on how we could be affected. Their services were very helpful in assisting and informing us on what we could do in response as well.
While supporters of the legislative changes argue that gun-free areas are attractive targets for shooters, some pastors are arguing that the violates their religious liberty.
As reported in the St. Louis Post Dispatch on April 11, 2018, a group of religious leaders representing the Jewish, Episcopalian, Methodist, Baptist, and Evangelical Lutheran faiths among others gathered to speak out against the legislation, calling it “highly offensive.” The group threatened to file lawsuits if the bill is passed to prevent it from going into effect.
The Post Dispatch article reports that Rev. Robert Carlson, Archbishop of St. Louis said, “The bill would broaden Second Amendment rights at the expense of the First Amendment right of religious liberty.”
There could also be First Amendment compelled-speech concerns as the intent of requiring the signage could constitute a political statement, potentially placing those churches at disproportionate risk, and a more narrowly-tailored solution of clergy permission is presently in place.
The proposed legislation also would require private property owners to display similar signs. However, the law does prohibit carrying concealed weapons into the state general assembly or committee meetings, schools, school buses, police stations, courthouses, controlled sections of airports, and other specified areas including sports arenas or stadiums with seating capacity of five thousand or more. It says nothing about mega-churches with seating capacities of more than 5,000, since this could produce accidents or injuries, and then the use of injury lawyers from sites as burnetti.com would be required.
In 2014, Missouri passed a wide-ranging gun rights bill that essentially made it an open-carry state, lowered the age of a CCW permit to 19, and allowed schools to arm teachers. The governor at the time vetoed the bill and the legislature overrode the veto and the bill became law.
According to statics from the Centers for Disease Control, Missouri had 1,144 firearm deaths in 2016, or 19.0 deaths per 100,000 population (ranking 6th behind Alaska, Alabama, Louisiana, Mississippi, and Oklahoma. In comparison, California had a gun death rate of 7.9, New York had a rate of 4.4, and Massachusetts had a rate of 3.4. These statistics include all forms of firearm death from accidents, suicides, and homicide and are pertinent for comparison between states with more stringent gun restrictions and as a general trend.
In 2005, Missouri had a total of 752 gun deaths, with a rate of 12.9, or 17th out of 50 states, and in 2014, the year the legislation was passed, Missouri had a firearm death rate of 15.3 or 943 total firearm deaths ranking 11th in the nation.
Photo: DepositPhotos.com
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