To start the new year, we wanted to share some positive decisions that show the hubris of religious nationalists…
Let’s look at three cases with positive outcomes, starting with a decision that says “no” to religious batterers’ intervention programs.
Since 2002, Florida has required those convicted of domestic violence to complete a batterers’ intervention program (BIP) that has specific provisions following research and accountability guidelines. In Nussbaumer v. Secretary, Florida Dept of Children and Families a minister who was never a qualified provider sued because they did not renew his contract.
The state did not renew his contract because the state law requires that the batterer shall be held accountable for acts of domestic violence, that the program be a model based on tactics of power and control, the providers be certified, and that the program not include couples therapy, anger management, poor impulse control, psychopathy as the problem, fair fighting techniques, or faith-based ideology. Florida is well ahead of AZ on this.
This minister had been providing the service for thirty years without proper certification. In 2022, he asked to be certified and was denied because his curriculum incorporates the “Biblical view of domestic violence” and provides a patient-specific approach addressing substance abuse, anger management, and impulse control as causal factors for domestic violence. The “Biblical View of domestic violence” of course is that the woman should turn her cheek and ask what she did to provoke it. Churches were the last institution to come along on this fight against violence.
Not wanting to lose that income or adhere to any law but his own, the minister said the state regulation violated his rights under the Free Speech and Free Exercise Clauses of the First Amendment. He lost and on appeal the 11th circuit confirmed.
Nussbaumer has his degree from “Freedom University,” a free institution in GA to help undocumented people prepare for college and focuses on social movements. It has been successful in helping many get into college. While that is certainly admirable, it is not an accredited academic institution. It continues to meet with under 100 students in undisclosed locations. His only counseling license is from the Federal Association of Christian Counselors and Therapists, and he serves on that board.
The minister claimed the regulations were facially invalid under the First Amendment. The District Court granted the motion for summary judgment because it determined that court-mandated BIPs constitute government speech that is not subject to First Amendment scrutiny. The minister appealed as they do.
The law is clear that a “government entity has the right to speak for itself.” And “The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech.” This was not a “government” speaking directly but a government mandate to private organizations that it contracted with to deliver a government service i.e. court-ordered instructional programing. It is not therapy or treatment. A person is free to attend any BIP or therapy at his own desire. But this court-ordered mandate is a government one and the government is free to set its own regulations and that is the message that Florida has chosen to send.
The second factor asks whether the public would likely associate the speech with the government or “reasonably believe the government has endorsed the message.” Since the BIP sessions were court-ordered, any participant knows whose talking.
Ever the entitled, Nussbaumer claimed that since he had gotten away with violating the law for 30 years, he should continue to get away with it. The court said no. Of course he whined that his own speech was being curtailed but the court said, “the government’s own speech cannot support a claim that the government has interfered with a private individual’s free exercise rights,” because “The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens.”
Therein lies the problem. Christian nationalists think that the government must meet their requirements rather than them meeting the government’s requirements. But the court said, “For the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.”
The First Amendment is written in the negative, i.e. what the government must not do, rather than what they must do. They must not get into your business; and you must not get into theirs.
I hope the final paragraph of the decision was an attempt to send a message: “This case asks whether a service provider, who seeks the privilege to work with court-ordered participants, can use the First Amendment as a sword to morph the government’s message into his own. He cannot.” I hope they get the message but am doubtful.
Now on to a case that says “enough with the whining please.”
A Ninth Circuit case also decided in September, Detwiler v. Mid-Columbia Medical Center et al, finally put some brakes on the excessive claims of “religious accommodation” in the workplace. Detwiler, the privacy officer of all things, had asked for a religious accommodation to not take the COVID vaccine though she worked in a medical facility. They allowed it, but required she wear a mask and do a COVID nasal swab test every other week for the protection of patients.
Detwiler then asked for another religious accommodation not to do the nasal swab because she looked on the internet and found that a component in the swab was cancerous, and as her body was the temple of god, she could not defile it with this chemical – at which point one wants to scream into the wilderness. Courts are not allowed to question the persons religious sincerity, but I would suggest that if you do not care about the life and health of thousands of people that frequent a medical facility in a pandemic, you are not a Christian.
The employer denied this request and would not do the saliva test because results took too long, nor would they allow Detwiler to work from home because the last time she did that, the result was negative. She was offered reassignment but did not respond, so was fired.
By necessity, a lot of weasel words were used in this opinion. While the court cannot question the sincerity or reasonableness of Detwiler’s belief, they can require that she plead enough facts to show that her belief is religious rather than something she cooked up in her fevered brain. They found she did “not sufficiently articulate a bona fide religious belief in conflict with her former employer’s testing requirement because her belief that the antigen testing swab was carcinogenic was personal and secular, premised on her interpretation of medical research.” and based on her claim that she prayed and talked to god about it and he said so.
She was represented by Pacific Justice Institute, a 501(c )(3) legal defense firm providing pro bono representation in the “defense of religious freedom, parental rights, and other civil liberties.” What they mean by “religious freedom” is not what we mean by religious freedom.
The court opined that while they do protect the rights of religious believers, even if the belief is out of the mainstream and internally inconsistent, they still must balance the reality of the workplace. They admit there is no standard for evaluating the nature of a belief. But “references to generic religious principles cannot transform a specific secular preference into a basis for a religious discrimination claim. Broad invocations of religion cannot shield employees from any unwanted job obligation.”
The court allowed the accommodation for vaccines because they are developed from fetal cell lines and Detwiler’s specific church opposes abortion, so there was a religious tie-in to her belief. But just using the word religion, prayer, or god is not enough to make it a valid religious claim. It must come from a bona fide religious belief. This of course is where the hot water starts, because the court is not allowed to question the belief.
The court recognizes this and calls it a “delicate inquiry.” While the law defines religion to include observance and practice as well as belief, it is not limitless. The court looks to the first amendment for the limit.
“Conclusory assertions” are not enough. But as a lawyer, I can say that sometimes it is quite difficult to know what a court will consider a fact or what they will consider a conclusory assertion. No doubt to the horror of some, the court said, “Indeed, some inquiry into the religious or secular nature of a belief is necessary to prevent religious labels from becoming carte blanche to ignore any obligation. See, e.g., Yoder, 406 U.S. at 215–16. Yet courts have struggled to draw a line between the religious and the secular. See Callahan v. Woods, 658 F.2d 679, 687 (9th Cir. 1981) (noting for First Amendment purposes that “[a] secular experience can stimulate a spiritual response; lives are not so compartmentalized that one can readily keep the two separate.”). Courts have struggled and that struggle is not over.
But as the court says, “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” Basically anything goes that you want to call a religion. That is why so many cults have sprung up and those on the left have used it too, to create new religions adhering to entirely different ideals.
The EEOC guidelines say that when a belief overlaps between religious and political or secular it still may be protected if it’s a comprehensive religious belief system and not just an outlier principle made up for the occasion. But to know that one must interrogate the religious belief… but “a plaintiff need not establish her belief is consistent, widely held, or even rational.”
So what to do? This court says Detwiler must connect her exemption with a truly religious principle. The use of “truly” takes us right back to where we were – interrogating the religion. How do you know if thetons living on some other planet is truly a religious principle? (Spoiler – it is not.)
The solution in this case was to say that broad, religious tenets (like “my body is the temple of god”) is not enough to make a secular preference (“I don’t want to take this test”) into a religious conviction (“so sayeth the lord”). The court said to rule otherwise would be “allowing complainants to invoke magic words and survive a dismissal without stating a prima facie case.” No magic words allowed.
The court ruled that this is not telling lower courts to examine the sincerity or reasonableness of a belief, only to determine if a plaintiff has pled enough facts to show her belief is religious, rather than purely secular. Yet claims of religious discrimination must “meet the same level of plausibility as any other prayer for relief.” If that sounds rather hard to do when you can’t question the sincerity or reasonableness of the belief, you would be right.
The attorneys argued that other circuits have adopted much less stringent rules, and that is true. Thank goodness our circuit said no, that would be elevating religious claims over others and that is not what the law allows.
The court found that Detwiler’s belief about her body as a temple was a religious belief and even that not ingesting harmful substances was too. But her belief that the components in the nasal swab were harmful was based on internet research not tied closely to any religious belief. Her praying about it and talking to god doesn’t make it a general religious belief either.
The court gave as an example that because Detwiler believes her body a temple, she believes she must exercise daily and learns that doing it first thing in the morning is the best. She does not get a religious exemption to skip morning meetings. It’s just her personal preference. The court pointed out that employers have costs from this nonsense too and without any limits, the court would be deluged with meritless claims, i.e. slippery slope.
Naturally, the religious lawyers objected to looking at her belief at all as to whether it was religious or secular, but the court said nope. The court must make a determination about the source of a belief to know if a prima facie case has been made in the pleading. “Deference to assertions of religious belief does not mean that courts must take plaintiffs’ conclusory assertions of violations of their religious beliefs at face value.”); Tiano, 139 F.3d at 682
(“[A] threshold inquiry into the ‘religious’ aspect of particular beliefs and practices cannot be avoided if we are to determine what is in fact based on religious belief, and what is based on secular or scientific principles.” (citations and quotations omitted)). “Courts have expressed concerns with a professed religious belief so broad as “to cover anything [plaintiffs] train[] it on.” That is precisely the problem.
The Christian nationalists want the religious label to cover everything they do, so they can justify violating the law and implement their own version of society. The court referred to this as “limitless expansion,” showed concern for the “ballooning religious discrimination claims,” and said, “In Wisconsin v. Yoder, the Supreme Court observed “the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.”
Our attorneys have repeated this in nearly every case. A neutral and generally applicable law (from the Smith case) applies to religious institutions and people just like everyone else. But in case after case from baking cakes to writing wedding invitations to praying on a football field the Christian nationalists want to say the law does not apply to them but rather, they get to impose their beliefs on the rest of us. This case helps us say no.
Now let’s analyze a case out of Colorado.
The Tenth Circuit issued an important decision on September 30 in St. Mary Catholic Parish in Littleton et al v. Executive Director of Colorado Department of Early Childhood. An impressive list of organizations filed amicus briefs from the Jewish Coalition for Religious Liberty to Americans United for Separation of Church and State, ACLU, Lambda Legal, and several more. The Becket Fund for Religious Liberty (their religion only) represented St. Mary’s.
The basis of the fight was that in 2020, Colorado voters approved a proposition that created a dedicated source of public funding for voluntary, universal preschool. Following this vote, Colorado passed legislation and established a Universal Preschool Program (UPK).
The Archdiocese of Denver (thrown out for lack of standing because they did not have a preschool), two Catholic parishes, and two parents of pre-school age children sued because all preschools receiving state funds were required to sign a nondiscrimination agreement. They argued that this requirement violates their rights under the First Amendment to the United States Constitution and sought an injunction preventing the nondiscrimination requirement from being applied to them. They wanted to be able to consider the sexual orientation and gender identity of parents and pre-school children before enrolling them.
After trial, the district court said no. The nondiscrimination requirement does not violate the First Amendment. The district court also said they used a rational relation basis to determine whether the provisions violated the constitution.
But in a footnote, the court said that while they used rational relation, if they had used strict scrutiny, the plaintiffs still would have lost. I found that interesting because women did not get “strict scrutiny” but only “intermediate scrutiny” until the ERA became the 28th Amendment.
Under the nondiscrimination requirement, each preschool must “provide eligible children an equal opportunity to enroll and receive preschool services regardless of race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level, or disability, as such characteristics and circumstances apply to the child or the child’s family.” § 205(2)(b). Note that the provision does not include “sex” so schools can continue to discriminate against girls. This is the intended result of erasing “sex” from our language. “Gender identity” is not sex; “gender identity” is acceptance of the role that patriarchy has set out for females and males in society i.e. the sexual stereotyping that feminists have fought against for centuries.
The Becket Fund made some outlandish arguments that were justifiably tossed out by the court. First, they argued that the nondiscrimination requirement meant they were denied from getting some state benefit because of their religious character. The appeals court said no, you — and everyone else — is denied state benefits if you do not abide by a neutral and generally applicable law of nondiscrimination. It is not because of your religious character; it is because of discrimination.
Next, Becket claimed that the law had created exemptions that were not neutral and generally applicable, therefore that legal principle does not apply.
In a funny “be careful what you wish for,” the district court found that the law had created an unlawful exception to its requirement for nondiscrimination on the basis of religion by creating the congregation preference, i.e. a preschool could have preference for those in its congregation. But otherwise, the court said no, the law does not create that.
Finally, they claimed that the nondiscrimination requirement violates the Free Speech Clause by “forcing a group formed for expressive purposes to accept members who oppose those purposes.” The court said yes, acts of expressive association are protected, as is the right not to associate. But the inclusion of a person who has no influence on the group’s ability to advocate publicly or privately is not infringing on that right.
Does having a child with same-sex parents in a preschool class prevent the churches from railing against same-sex marriage? Of course not. “This is a case about preschoolers. No one would reasonably mistake the views of preschool students for those of their school.”
Even further afield is that somehow their parents being gay would impact school policy. This is the kind of excess to which the Becket Fund goes. The court also quoted Runyon v. McCrary that expressive association does not protect a school’s right to discriminate in admissions. 427 U.S. at 175–76.
The usual overreach of the Becket Fund was clear in comments like this: “Plaintiffs’ free-speech claim is entirely without merit as Plaintiffs ignore applicable doctrines and attempt to stretch precedent beyond recognizability.”
The first question for the appeals court was whether to use rational relation or strict scrutiny, which is a very important question because it basically decides the winner and loser. If it’s rational relation, the government wins. If it’s strict scrutiny, usually the person wins.
Becket tried to claim this was like the other cases Carson v. Makin, Espinoza v. Montana Dep’t of Revenue, Trinity Lutheran Church where state governments were forced to give taxpayer money to religious organizations. The Tenth circuit disagreed because the law allows faith-based schools to participate, allows them to spend the money on teaching their religion, and the nondiscrimination applies to all schools whether they are religious or secular. Personally I don’t think they should spend taxpayer money on teaching their religion.
The court revived the Smith Doctrine that a valid and neutral law of general applicability that incidentally conflicts with a religion is acceptable. This formulation has been under attack by the religious fanatics. Under this rule, the test to use is rational relation.
So what is “neutral?” “A law is neutral so long as its object is something other than the infringement or restriction of religious practices.” Grace United Methodist Church, 451 F.3d at 649–50. If the Supreme Court adhered to that, the three cases above would have been decided differently. The Colorado law specifically prohibits religious discrimination, and the court found no hostility toward religion in the record. That is another constraint on secular groups i.e. when we disagree with religious fanatics, we must be careful not to be hostile to religion when in fact we have every right to be.
The state had tried over and over to work with and accommodate the religious component, but the religious fanatics are so empowered they said trying to work with them was itself discrimination (not sure I understand why) but if the state had refused to work with them, they would have called that discrimination too. It’s clear that the religious nationalists don’t want fairness, they want complete capitulation to their agenda.
When you are used to getting it all, having to share seems like discrimination to them.
Then the court turned to “general applicability.” Becket Fund claimed that because there were exemptions for disabled and poor (go to schools that have disabled programs and go to Head Start), the law is not “generally applicable.”
The court rightly said this is a ridiculous argument. Because the disabled need a school that can meet their needs, that is not an exception to the nondiscrimination requirement – just the opposite it is enforcing the nondiscrimination requirement, so such children receive the same benefits. Likewise with poor kids who may need to go to Head Start that funds the education; that is not discrimination but a way for those kids to receive the same benefit.
Because the religious nationalists have turned discrimination on its head, ensuring equality such as affirmative action or DEI or helping poor people like in SNAP, has become discrimination to them. Nondisabled kids and rich kids are not losing a thing to enable disabled kids and poor kids to get this benefit. But the religious nationalists think it’s a zero-sum game – if they get it, that must mean I’m missing out because I’m supposed to have everything.
The court had sense enough to know and say, “But not all barriers are the same” and “all discrimination is not the same.” Does the nondiscrimination clause help or harm the disabled and poor to ensure equal access? If it helps, then it is fulfilling the law.
Would the Parish request to discriminate against sexual orientation and gender identity help or harm those children to ensure equal access? Since it would harm them, it would not be fulfilling the law. It would also not be the “Christian” thing to do but we know it’s not about that.
“Ultimately, we do not see any First Amendment concerns raised by the preference system. It was designed, and later implemented, as an algorithmic means of making sure that UPK’s website matched families with the right preschools for their children. There are almost 2,000 different preschools participating in UPK, and if the system matched children with preschools at random, it would be an ineffective system.”
The court assured the churches they are protecting the Parish Preschools – and cited Obergefell v. Hodges (i.e. the gay marriage case) to prove it. I’m sure they did that on purpose to rub in the salt. They pointed out that in that case, those who adhere to religious doctrine or any sincerely held belief, with utmost sincere convictions are free to advocate that view. “See Norwood v. Harrison, 413 U.S. 455, 463 (1973) (“That the Constitution may compel toleration of private discrimination in some circumstances does not mean that it requires state support for such discrimination.”).
The court ended with, “Colorado’s UPK program went to great effort to be welcoming and inclusive of faith-based preschools’ participation. The nondiscrimination requirement exists in harmony with the First Amendment and does not violate the Parish Preschools’ First Amendment rights.” This ruling gives us hope that similar arguments and structures can be used to ensure benefits are distributed equally without facing discrimination charges based on entrenched racist and sexist structures.
But this is the legal challenge we face. The empowered religious nationalists have the money and try to make a mountain from a molehill in every case to achieve religious dominion over the rest of us. That is one reason our organizations must be very careful about what cases we take to court. We do not want to give them ammunition to run to the Supreme Court and make bad law.
But we do need you to give us ammunition and contribute to our legal fund to hire a paid legal director when I leave the board in August 2026.
I’ll still volunteer but we need a paid director. Thanks for your donation.
