Heather L. Weaver, Senior Staff Attorney, ACLU Program on Freedom of Religion and Belief

Daniel Mach, Director, ACLU Program on Freedom of Religion and Belief

In two cases this term, the conservative majority on the Supreme Court made it abundantly clear that there’s little room for the separation of church and state in its regressive constitutional framework. For nearly 75 years, the court has recognized that both of the First Amendment’s religion clauses are vital to protecting religious freedom: The Establishment Clause protects against governmental endorsement and imposition of religion, and the Free Exercise Clause ensures the right to practice your faith without harming others. No more. The court has increasingly treated the Establishment Clause as a historical footnote, threatening both the independence of religion and the religious neutrality of the state.

In Carson v. Makin, the court held for the first time that a state must fund religious activity as part of an educational aid program. Maine’s tuition assistance program pays for students in rural areas with no public high school to attend another public or private school. Concerned with maintaining a strong separation between religion and government, Maine has long prohibited the use of public funds to finance religious instruction and indoctrination. Many other states have adopted similar provisions, in some instances dating back two centuries. And with good reason: Avoiding compulsory taxpayer support for religion lies at the heart of the Constitution’s religious liberty protections. In fact, James Madison, the principal author of the First Amendment, explicitly warned against taxpayer funding of religion, including religious education, because it would be the first step in allowing the government to force citizens to conform to the preferred faith of those in power.

The Supreme Court’s rulings in Carson and Kennedy lead “us to a place where separation of church and state becomes a constitutional violation.”

For these reasons, the Supreme Court has previously respected states’ ability to restrict taxpayer support for religious educational activities. Indeed, for decades, the court rejected efforts to direct government funds to religious uses. In Carson, however, six justices disregarded these longstanding, historical church-state concerns. According to the court, state funding of religious indoctrination is not only permissible, but now required in some circumstances. The Carson majority thus firmly placed the free-exercise rights of the Christian plaintiffs over the Establishment Clause rights of the broader populace.

One week later, it did the same in Kennedy v. Bremerton School District, in which the court ruled in favor of a Christian public-school football coach who prayed with his players while on duty. Ignoring well-established precedent that prohibits school officials from participating in prayer with students, the majority embraced what one lower court judge called a “deceitful narrative” spun by Kennedy and his lawyers. The court characterized the coach’s prayers as “quiet” and “personal,” but they were nothing of the sort; Coach Kennedy delivered his prayers audibly, at the 50-yard line, immediately after games, often surrounded by students.

The court said that Kennedy had abandoned any intent to pray with students, but in fact he repeatedly demanded that he be able to continue praying with his students, declaring that he was “helping these kids be better people.” The court also claimed that no students were coerced into prayer, but the record shows that at least some players joined Kennedy in prayer solely to avoid separating themselves from their team. And in any event, that misses the broader point: As the court had recognized for over a half-century, merely forcing students to choose between participating in teacher-led prayer, protesting, or avoiding certain school activities where official prayer occurs is inherently coercive and therefore unconstitutional.

Taken together, the court’s rulings in Carson and Kennedy lead “us to a place where separation of church and state becomes a constitutional violation,” as Justice Sonia Sotomayor recognized in her Carson dissent. These rulings suggest that enforcement of the Establishment Clause is somehow hostile to religion. But the opposite is true: Many people of faith, including Christians and adherents of minority faiths, strongly support the separation of church and state as a core component of religious liberty. They recognize, as did James Madison, Thomas Jefferson, and other of our nation’s founders, that religious freedom thrives best when government officials don’t tip the scales toward their favored religious beliefs.

Nevertheless, in recent years, the court has adopted an approach that would see the lines between church and state hopelessly blurred, if not eliminated altogether. The court has permitted official, nearly exclusively Christian prayer at government meetings and has allowed the government to display giant religious symbols, like a 40-foot Latin cross. The Supreme Court has also sided with those who, in the name of religion, discriminate against customers, employees, and recipients of government-funded social services. With this month’s decisions, the court has now required that government funds be diverted from a secular education program to support religious education and indoctrination and has allowed school officials to impose religion on public-school students. The ruling in Kennedy is particularly disturbing because, until now, the court has repeatedly recognized that students are impressionable, much more vulnerable to religious coercion, and, thus, deserving of the highest levels of constitutional protection. Instead, the court subverted students’ religious liberty to the religious demands of school staff.

The Carson decision could also open the door to broader government funding of religious activities more generally, and Kennedy will likely embolden government employees in other contexts to claim a similar right to promote religion while on duty, even if it infringes on the religious freedom of others. This attack on the Establishment Clause is as unwise as it is infuriating. As Justice O’Connor shrewdly observed 17 years ago, “[a]t a time when we see around the world the violent consequences of the assumption of religious authority by government … [o]ur regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish.”

She warned that “[t]hose who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?” It’s a question this Supreme Court majority has not deigned to answer, perhaps because there’s no good reason to abandon the separation of church and state, and every reason to ensure that it remains strong.

Date

Wednesday, July 6, 2022 - 2:15pm

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A protestor holds a sign reading "Keep Your Religion Out of My Government" during a rally at Memorial Park in Danville, Pennsylvania.

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Mariceli Alegria, Clinic Escort and Pro-Choice Missouri Clinic Support Manager

Last week, the Supreme Court overturned Roe v. Wade, upending 50 years of legal precedent and sparking protests across the country. It’s easy to think Roe fell with the stroke of Justice Samuel Alito’s pen, a legal battle lost in a courtroom. But as a clinic escort for the last decade, I’ve watched the fight for abortion access play out in real time on the sidewalks in front of abortion clinics in Missouri and Illinois.

As a volunteer clinic escort, it’s my job to help patients get from their car door to the clinic door safely; to provide a shoulder to lean on and a gentle, welcome distraction. It might seem strange that a person would need accompaniment when walking such a short distance across a parking lot, but patients seeking health care from these clinics endure a lot of hostility in just a few yards. Anti-abortion protesters do everything they can to discourage patients from getting the care they need: yelling, pleading, praying, and even posing as clinic employees at the front gate of the clinic, next to a sandwich board that says “Check in here.”

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Clinic escort Mariceli Alegria explaining the various tactics abortion protesters use to prevent people from entering abortion clinics.

The first time I encountered the roar of anti-abortion protesters outside a clinic, I wasn’t an escort. I was going to a Planned Parenthood in the Rio Grande Valley of Texas, where I’m from, for STI testing and birth control. The clinic I went to didn’t even provide abortions; those were few and far between, even 11 years ago. Still, there they were on the sidewalk — little old ladies, holding signs and angrily yelling. I didn’t understand why they were screaming at me just for being there, just for getting birth control. It’s worth noting that those women were white, while the Rio Grande Valley is almost 94 percent Hispanic/Latino.

A few years later, when I saw an ad seeking clinic escorts after moving to Missouri, I remembered how it felt to get yelled at just for seeking basic health care. Now, as a proud member of the pro-abortion community in Missouri and Southern Illinios, I count my fellow clinic escorts among my best friends. As troubling as last week’s ruling is, I’m thankful to have this family to lean on. We support each other in every way possible, and we need that support more than ever now.

While escorting is so important, it’s just one of many ways people can get involved.

Last Friday, Missouri became the first state with a “trigger ban” to outlaw nearly all abortions in the state. This is devastating, but we have been preparing to meet this moment. Clinic escorts previously assigned to a clinic in Missouri will have to direct their energy to the two clinics across the river in Illinois — Hope Clinic in Granite City and Planned Parenthood in Fairview Heights — which have also been preparing for an influx of thousands of patients. As we bolster our volunteer numbers in Illinois, we’re also going to get our escorts plugged into other volunteer opportunities. While escorting is so important, it’s just one of many ways people can get involved.

Abortion clinic escort Mariceli Alegria under the shade of an umbrella and wearing a rainbow facemask with the printed words "Clinic Escort".

Emily Geraghty

I understand that many people may feel hopeless, but I’m asking you not to ignore this moment. We need all hands on deck. All of our love, hope, and even anger will be channeled into helping patients however we can, and you can help, too. You can donate to a local abortion fund, or become a clinic escort if you can. Find your local community of abortion supporters and ask them what they need. There are so many of us, even in red states and rural communities.

I understand that many people may feel hopeless, but I’m asking you not to ignore this moment.

There’s also something very simple that we should all be doing in this moment: When talking about abortion, say the word “abortion.” Shying away from the word only perpetuates stigma. No one should feel shame for seeking abortion care, but that’s exactly what those protesters outside the clinics are trying to do. They’re not just trying to prevent patients from getting to their appointments — they’re trying to perpetuate abortion stigma that enables bad policies, harmful rhetoric, and misinformation. Exacerbating abortion stigma was a key tactic anti-abortion actors used that has led to this terrifying ruling from the Supreme Court. But we don’t have to stand for it. Abortion is health care, and we should talk about it like we would any other kind of health care we seek.

In the almost decade that I’ve been escorting patients, I’ve occasionally encountered folks coming from other states. But in more recent years, and especially in the last six months after Texas passed SB 8, it’s become much more common. Now, those numbers are going to climb even higher, as people get pushed out of states that ban abortion and are forced to travel long distances for care. Regardless of how far people have to travel, Pro-Choice Missouri clinic escorts will continue to support patients in Illinois, now and always. I don’t get the chance to say this to patients while I’m escorting them into the clinic but I want them, and all abortion supporters, to know this: We love you, and we aren’t going anywhere.

Date

Friday, July 1, 2022 - 11:45am

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Everyone deserves the right to decide when and whether to start a family, no matter where they live. But since the Supreme Court’s shameful decision to overturn Roe v. Wade, 13 states have banned abortion from the earliest stages of pregnancy.

To demonstrate what’s at stake, we called for stories from people who have had abortions — people of all genders, ages, faiths, and socioeconomic backgrounds — to tell us why abortion should be a fundamental right.

Abortion is Essential

Forcing women and other people to carry a pregnancy against their will has life-altering consequences, including enduring serious health risks from continued pregnancy and childbirth, making it harder to escape poverty, and derailing their education and career plans. These are just some of the factors that may impact a person’s decision to seek an abortion, and why abortion access is essential.

Abortion is Liberating

Abortion access allows us to make decisions about our own health, decide if and when to have a child, and pursue the education and career of our dreams. For many, abortion is liberation, allowing for bodily autonomy and the ability to determine our own futures.

Abortion is Health Care

Pregnancy and childbirth can pose serious health risks that can last a lifetime. For many, abortion access is a matter of life or death. Abortion is essential health care.

Abortion is Our Right

The ability to decide when and whether to have a child is a fundamental right. No matter where we live, how much money we make, or who we are, we should all be able to control our own bodies, and make the best medical decisions for our lives and families.

The battle for reproductive freedom continues in courts and legislatures across the country. Help us keep up the fight by donating now.

Date

Thursday, July 7, 2022 - 2:30pm

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A collage of images of abortion activists who contributed their quotes.

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People who have had abortions share how abortion access changed their lives for the better.

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