A fighter for religious freedom, while carrying the battle for the moral freethinking minority, should maintain in every argument that the logically and semantically placed statement, “Congress shall make no law respecting an establishment of religion” conversely means there should be no law respecting religious influence or priority passed, nor funding that allows religious establishment. The mandate “shall” in both law and statutory history is defined as a mandatory statement allowing no waiver. Unfortunately, as interpreted by the Supremes, this does not apply to the Executive branch.
What does this mean regarding the First Amendment right of religious freedom to worship according to one’s own conscience or not worship at all? As a practical matter, it means that the First Amendment applies to Congress, it does not apply to the President. Whoever is elected President can do everything within his or her power to make America a religious state and use whatever religion or whatever narrow interpretation of a religion they desire. How do they do this? Through Executive Order.
Most Americans don’t even know what an Executive Order is, although they are reported in the news frequently. Presidents Bush, Obama and Trump have used Executive Orders to reshape the government in their images disregarding the rights of citizens protected by the First Amendment, particularly in separating government from religion. An Executive Order is an order issued by the President ordering a government agency to do or not do a certain act or enforce a certain presidential policy. The only way to reverse it is through the Supreme Court and that takes years, and if the Supreme Court chooses not to hear the case, then that’s the end of it. Clearly, the next logical political strategy of a president is to stack the courts with appointments that follow his ideologue, so there will be no reversal. President Trump has succeeded in this strategy by creating a Christian religious government support of funding and no oversight.
Looking back to the high court’s 1971 “Lemon Test,” a standard test for separation of religion from government which supported the First Amendment, any law past had to set out a three-part assessment to determine when a law violated the Establishment Clause, or on the flip side, when a law was in compliance. The law must
Since the administration of George W. Bush and more recent decisions by the Supreme Court, the Lemon Test has been undermined in order to make government a more direct Christian state. High court decisions beginning in 1985 in what is known as the Ball, Aguilar, and Mitchell cases not only cracked the wall separating the federal government from choosing a particular religion abandoning the Lemon Test as a rule for Congress but allowing the President to do so without oversight.
For example, the standard laid out in Mitchell dramatically increased the government’s options for partnering with religious groups. It was a monumental change when, prompted by the Mitchell case, President George W. Bush announced his faith-based initiative (Executive Order), which sought to eliminate all federal policies that disqualified religious groups from participating in government-funded social welfare programs. The effect, of course, was government subsidy of Christian proselytizing.
In an admirable attempt to counter the President’s destruction of the Wall that separates government from religion, the Freedom From Religion Foundation brought the Hein case to the high court in 2007. Its argument focused on the question on the question of whether taxpayers have legal standing (the right to sue) to challenge the government’s funding of religion solely because the plaintiff, the one bringing the suit, the one desiring to contest the Bush program, is a taxpayer.
In the Heim case, the FFRF alleged that various federal executive agencies had violated the Establishment Clause by using tax dollars to promote faith-based (religious) initiatives. It argued that it had standing to bring the Hein suit because its members pay taxes. But the court dismissed the suit by a 5-4 vote, somehow reasoning that taxpayer standing applies only when the legislative branch specifically authorizes the use of tax-payer dollars for religious institutions or purposes, not when the executive branch uses discretionary dollars funded by Congress without legislative authority. In 2009, President Barack Obama announced his faith-based initiative (Executive Order). It is called the “White House Office of Faith-based and Neighborhood Partnerships” and purports to broaden the scope of church-state partnerships.
Today, the Trump/Pence administration has double-downed on funding Christian fundamentalist and evangelical programs with a blind eye to government backed proselytizing of that religion. Many liberal and moderate Christians see this as a threat to their interpretation of how the First Amendment protection should be applied. The point is simply this: As nonprofits exempt from federal taxes, which saves churches and religious organizations an estimated $100 billion per year, such organizations do not have the right to political purpose. Their purpose is for private welfare, education, and religious teaching of the citizenry, not political control.
However, as we have noted, the political control for religion comes through the back door making the Executive Branch (Trump/Pence) the “religious and political czars” in their own image for the United States of America. Forget the First Amendment to the Constitution. It has washed away.