Trump administration’s religious freedom announcements square with Constitution, Supreme Court precedent
Government is not permitted to treat people of faith as second-class citizens. But for far too long public schools and many other government institutions have willfully curtailed religious actions by private individuals in government buildings and grounds.
President Trump’s package of religious freedom announcements on Thursday is extremely encouraging, not just to people of faith but to any American who believes that all branches of government should always follow the law.
The Trump administration’s actions are based squarely on U.S. Supreme Court precedent and do not represent an effort to make new law. Rather, the president is using the lawful power of his office to ensure that public schools, state governments, and federal agencies all obey the clearly established standards of the Free Exercise and Free Speech clauses of the First Amendment.
Many school officials and other government operatives appear to believe that the only relevant provision in the First Amendment is the Establishment Clause, which has been reduced to the misleading slogan of “separation of church and state.”
The Establishment Clause does not prohibit students or other private individuals from living out their faith or engaging in personal religious expression — even when they are on government property. Rather, this clause places substantial limits on what the government itself can do in either promoting or disparaging religion. Yes, it’s supposed to work both ways.
But many students are faced with blatant discrimination when they try to exercise their faith.
Chase Windebank, who was present in the White House for the president’s announcement, faced open hostility from the Academy School District in Colorado Springs. His high school had a free period, during which students could hang out in the cafeteria and other open areas with friends, play on their phones or meet together for clubs and other unofficial groups.
But when Chase and a group of friends regularly met during this open period to pray, they were confronted by school administrators, who repeated the myth that the “separation of church and state” did not permit them to pray on school grounds.
Alliance Defending Freedom filed a federal civil rights challenge on Chase’s behalf, and the school backed down, because the law on this had been clearly established by the Supreme Court for decades.
The Trump administration’s update on the guidance for religious expression in schools does not sanction official prayer in schools, as some will surely claim. Rather, it merely prevents school officials from violating the clearly established rights of individuals to engage in religious expression (including prayer) at the same times that others can discuss secular topics.
The other two components of the Trump directives are aimed at implementing a Supreme Court decision that Alliance Defending Freedom won in 2017.
ADF represented Trinity Lutheran Church, which had been denied the opportunity to participate in a Missouri program that provided partial funding for playground safety improvements for preschools. A church preschool applied and met every criteria but was denied participation solely because the school was run by a church.
This decision should not have been a surprise to anyone. Many prior cases endorsed the same principle, including one that I argued in 1985.
Larry Witters was a blind student who wanted to use his vocational rehabilitation funds to attend Bible college to become a pastor or missionary. The state of Washington said that he could not use state funds for such purposes because to do so would violate the federal Establishment Clause.
After losing every step on the way, the Supreme Court unanimously ruled in favor of my client in an opinion written by Thurgood Marshall. Religious people are not second-class citizens.
But when the case was sent back on remand, Larry lost — not on federal grounds but because of Washington state’s “Blaine Amendment” that has been interpreted to be far stricter than the federal Establishment Clause.
The Blaine Amendment, which is present in more than 30 state constitutions, arose out of a period of anti-Catholic hysteria that cannot be explained by anything other than rank bigotry.
President Trump’s order tells states that they cannot use their Blaine amendments to exclude people like Larry Witters if there are federal funds in the program in question. In Larry’s case, federal funds were a component of the program.
This aspect of President Trump’s order is absolutely consistent with the Trinity Lutheran decision. But its enforcement in this manner breaks new ground. It leaves the states free to follow their discredited Blaine amendments — but only if they eschew the use of federal dollars in such programs. The Blaine amendments face the possibility of being effectively invalidated in a Montana case pending in the Supreme Court.
But President Trump has taken us a long way toward equality. Larry Witters washed dishes instead of going to college. Because of today’s order, people like Larry can rise to their full potential without facing discrimination because of their faith.