In late December, you start seeing “Top Ten” lists for the year that was. So without further ado, here are the Top Ten Church-State Stories from 2016 (in my humble opinion, at least):
Donald Trump elected president with strong support from the Religious Right. Trump, a real estate mogul and reality TV host, hardly leads a life of Christian virtue, but that didn’t stop him from rallying conservative evangelicals and winning the presidency in November. During the campaign, Trump highlighted several themes of interest to the Religious Right. He vowed to repeal the federal law that bans houses of worship (and many other non-profits) from endorsing or opposing candidates for public office, and he promised to create a $20 billion private school voucher plan. Trump even said he’d pressure store employees to say “Merry Christmas” in December. Americans United has vowed to fight back against any ill-advised Trump schemes that will mix church and state.
Anti-separation Supreme Court Justice Antonin Scalia dies. Scalia, who died in his sleep in February while visiting a hunting ranch in Texas, was an acerbic opponent of church-state separation. Known for his sarcasm, Scalia saw little use for the church-state wall and consistently ruled in favor of religious majoritarianism. President Barack Obama nominated Merrick Garland, a federal appeals court judge, to fill the seat, but Senate Republicans refused to hold confirmation hearings. The slot remains open and will now be filled by Trump.
Supreme Court case could open the door to more taxpayer-funded religion. The Supreme Court agreed to hear a case from Missouri concerning a church in Columbia that is demanding the right to take part in a state government program that gives community groups cash grants to buy recycled tires. The church, Trinity Lutheran, wants to resurface its playground with the material. State officials argued that the Missouri Constitution forbids all forms of taxpayer aid to houses of worship. If the Supreme Court rules in favor of the church, it could weaken similar “no-aid” clauses in more than 35 other state constitutions. (As of this writing, the high court had not scheduled the case, Trinity Lutheran Church v. Pauley, for argument.)
Fallout from the Supreme Court’s marriage equality ruling continues. Far-right fundamentalist Christians who own businesses such as flower shops, bakeries, photography studios and others or who work in government are continuing to argue that they have a “religious freedom” right to refuse services to same-sex couples. Several legal cases continued moving through state and federal courts in 2016, and Americans United's Legislative Department tracked and opposed dozens of bills in Congress and in state legislatures that would undermine the high court's 2015 marriage equality ruling under the guise of a twisted definition of "religious freedom." Through its Protect Thy Neighbor project, AU continues to oppose the use of religion as a vehicle to discriminate against or harm others.
Discriminatory provision removed from Defense bill. U.S. Rep. Steve Russell (R-Okla.), added a provision to the National Defense Authorization Act (NDAA) in April that would have authorized taxpayer-funded discrimination in every single federal contract and grant issued by the federal government, whether defense related or not. The Russell Amendment would have jeopardized critical workplace protections for anyone who works for a religiously affiliated contractor or grantee – falling hardest on workers of minority faiths or no faith, women and LGBTQ individuals. Americans United and its allies sounded the alarm, and after a lot of hard work convinced more than 40 U.S. senators to oppose the measure. The final version of the NDAA didn’t include the Russell Amendment.
New litigation tests the boundaries of the Greece decision. The Supreme Court in 2014 (in a case brought by Americans United) ruled 5-4 that local governments may, under certain conditions, open their meetings with Christian and other types of prayers. The ruling in Greece v. Galloway stated that government bodies should work to be inclusive when it comes to invocations, a policy that is not being followed in some parts of the country. In August, Americans United filed a new lawsuit in Pennsylvania to ensure that secularists have the right to offer non-religious invocations before meetings of the Pennsylvania House of Representatives and moved forward with a similar case from Brevard County, Fla., that was filed in 2015.
Roy Moore removed from Alabama Supreme Court – again. Controversial jurist Roy Moore lost his job as chief justice of the Alabama Supreme Court in late September. A state judicial oversight body determined that Moore had defied a federal court when he told Alabama probate judges not to issue marriage licenses to same-sex couples – even though a federal court and the U.S. Supreme Court had said otherwise. Americans United applauded Moore’s removal from the court – for the second time. The first time occurred after Americans United successfully sued in 2000 over a Ten Commandments monolith that Moore put on display in the Alabama State Judicial Building. Moore defied the federal court’s order that he remove the display, leading to his removal from the bench in 2003. (Remarkably, Alabama Gov. Robert Bentley is considering appointing Moore to the U.S. Senate.)
Arizona charter school sued for using religious materials in class. Americans United in September filed a groundbreaking lawsuit against Heritage Academy, a string of charter schools in Arizona that AU says are basing lessons on religious teachings. The schools rely on books written by W. Cleon Skousen, a conservative Mormon whose views on the relationship between religion and government are rejected by the mainstream Church of Jesus Christ of Latter-day Saints. The lawsuit, Doe v. Heritage Academy, Inc., is ongoing.
Kentucky ‘Ark Park’ wins tax rebate subsidy. In one of the more disappointing stories from 2016, Australian creationist Ken Ham was successful in a lawsuit he filed to compel Kentucky officials to give generous tax rebates to Ark Encounter, a theme park based on a replica of Noah’s Ark. State officials had been reluctant to extend the aid because Ham’s park is clearly evangelistic in nature, but a federal court ruled that excluding the park would be form of discrimination. AU argued that the ruling was poorly reasoned and might not stand up on appeal, but Matt Bevin – Kentucky’s new Tea Party-friendly Republican governor – ended the suit and allowed the aid to go through.
School voucher plan invalidated in Nevada. The Nevada Supreme Court in September struck down what would have been the nation’s largest private school voucher program, ruling that it ran afoul of provisions of the Nevada Constitution mandating that money appropriated for public schools be spent on only those schools. The lawsuit, Duncan v. Nevada Office of the State Treasurer, was brought by Americans United, the American Civil Liberties Union of Nevada, the American Civil Liberties Union and the law firm Covington & Burling, LLP on behalf of five Nevada residents.
P.S. Law professor Howard Friedman of the extremely informative “Religion Clause” blog has created his own Top Ten list of church-state developments. You can read it here.