News and Notes: Congressional Wish List

By George Kane

On the Sunday before the national election, Ryan Jayne, a Freedom from Religion Foundation staff attorney, spoke at the monthly meeting of their Duluth Chapter, Lake Superior Freethinkers. The event was open to the world on the internet. One of his conclusions is that for 20 years, the Supreme Court has been issuing decisions that have steadily battered Jefferson’s wall of separation between state and church. With Trump’s appointment of three new justices, the threat from Christian Nationalism is greater than it has been in many decades.

After Ryan’s presentation, he held a Question-and-Answer session. I pointed out that the legal foundations of the separation of state and church are the Establishment and Free Exercise clauses of the First Amendment, which in this century has failed to much influence the Court. What new constitutional amendment, I asked, would be needed to reestablish separation as it had been understood previously?

He responded that that would be to require the tests for an Establishment Clause violation that were established in the Twentieth Century. That would be the Neutrality Test, that government may not favor one religion over another, or religion over non-religion; the Endorsement Test that a government action may not convey either endorsement or disapproval of religion; and three-pronged Lemon Test.

Jayne cautioned, though, that a constitution- al amendment is so difficult to pass as to render an effort a practical impossibility. He thought that we could rescue the Establishment Clause by simple legislation. Now, since the election has established Democratic Party control over the Executive and Legislative branches, that might be feasible. He said that he is working with the lawyers of the other national secularist organizations to come up with a legislative “wish list,” and could support legislation of this sort. The products of that cooperation can be seen in the similarity of goals on the websites of the Freedom from Religion Foundation, American Atheists and the Secular Coalition for America. Here are some of the most important goals they have in common.

Executive Actions

Reverse Trump Executive Orders and agency regulations that undermined the separation of State and Church, such as the Muslim Ban (Executive Order 13769.) Sign an Executive Order
to guide agencies as they adopt policies that will restore and protect religious liberty and revoke policies that justify discrimination. Terminate Trump’s commissions such as the Religious Liberty Task Force at the Department of Justice, the Conscience and Religious Freedom Division at the Department of Health and Human Services, and the Commission on Unalienable Rights at the Department of State.

Legislative Bills to Enact into Law

• The Do No Harm Act, which prohibits the application of the Religious Freedom Restoration Act (RFRA) to federal laws that protect against discrimination.
• The Equality Act, which includes sex, sexual orientation, and gender identity among the prohibited categories of discrimination or segregation.
• The No Ban Act, which imposes limitations on the President’s authority to suspend or restrict aliens from entering the United States.
• The Scientific Integrity Act, which prohibits government oversight of scientific research to engage in scientific or research misconduct or to manipulate technical findings.
• The Stop Female Genital Mutilation Act, strengthening U.S. opposition to Female Genital Mutilation worldwide.
• The Coronavirus Oversight and Recovery Ethics Act, which establishes oversight in the disbursement and supervision of COVID-19 relief funds.

The Congressional wish list also includes items not in legislative bills already introduced.

• Have a secular Congressional invocation.
• End mandatory swearing to God in all congressional oaths.

Advocate for the inclusion of protections for atheists and other religious minorities seeking asylum in any new legislation regarding asylum policy.

The Courts

All secularist organizations are calling for the nomination of judges who will support the principle of separation of government and religion. It will take many years to reverse the harm to secular government that President Trump and Senate Majority Leader Mitch McConnell have achieved by packing the federal judiciary with judges hostile to this principle, however. Nevertheless, at last there is hope.