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FirstLiberty.org
UNDENIABLE 2 0 1 6 E D I T I O N
UNDENIABLE
The Survey of Hostility
to Religion in America
KELLY SHACKELFORD
GENERAL EDITOR
UNDENIABLE
The Survey of Hostility
to Religion in America
2016 Edition
Editorial Team
Kelly Shackelford
Chairman
Jeffrey Mateer
Executive Editor
Justin Butterfield
Editor-in-chief
Candice Lundquist
Julie Hennighausen
Stephanie Phillips
Assistant Editors
Past Contributors
Michael Andrews
Bryan Clegg
UNDENIABLE
The Survey of Hostility
to Religion in America
2016 Edition
This publication is not to be used for legal advice. Because the law is constantly
changing and each factual situation is unique, First Liberty Institute and its
attorneys do not warrant, either expressly or impliedly, that the law, cases,
statutes, and rules discussed or cited in this publication have not been subject
to change, amendment, reversal, or revision. If you have a legal question
or need legal advice, please contact an attorney. First Liberty Institutes
attorneys may be contacted by going to www.firstliberty.org, selecting the
Contact menu option at the top of the page, and then selecting Request
Legal Help.
TABLE OF CONTENTS
5 Hostility to Religion Harms Every American
9 Executive Summary
21 Section I: Attacks in the Public Arena
145 Section II: Attacks in the Schoolhouse
285 Section III: Attacks Against Churches and Ministries
351 Section IV: Attacks in the Military
371 Managing Editorial Team
373 About First Liberty Institute
HOSTILITY TO RELIGION
HARMS EVERY AMERICAN
Driven from every other corner of the earth, freedom of thought
and the right of private judgment in matters of conscience
direct their course to this happy country as their last asylum.
Samuel Adams, August 1, 1776
Hostility to religion in America is rising like floodwaters, as proven by the
increased numbers of cases and attacks documented in this report. This flood
is engulfing ordinary citizens who simply try to live normal lives according
to their faith and conscience. It is eroding the bedrock on which stand vital
American institutions such as government, education, the military, business,
houses of worship, and charity. It has the potential to wash away the ground
that supports our other rights, including freedom of speech, press, assembly,
and government by consent of the people.
Since 2012, First Liberty Institute (formerly Liberty Institute) has documented
and publicized this rising tide of hostility to religion in America. First Liberty
Institute is the largest legal organization in America with the exclusive
mission of protecting religious freedom for all our citizens. So it is important
for us to know the scope of the problem, and we are glad to share what we
learn with our fellow Americans, including our nations leaders in Congress
and beyond.
In this 2016 edition of our annual study Undeniable: The Survey of Hostility
to Religion in America, First Liberty Institutes team of researchers, led by a
Harvard-trained constitutional attorney, documents a continuing increase
in the number of incidents hostile toward religion.
The flood is a national problem. Every American should share in the concern
for at least three reasons:
First, individuals and families are being hurt. The attacks you will read
about in these pages are sweeping away small businesses, careers, and
ministries. Behind the legalities are tears, anguish, and the denial of basic
human tolerance, compassion, and common decency. Its time for a national
rejection of politically correct cruelty based on discrimination against
traditional American forms of faith.
1Stark, Rodney, Americas Blessings (West Conshohocken, PA, Templeton Press, 2012, Kindle ed. 85%)
EXECUTIVE SUMMARY
An age is called Dark not because the light fails to shine, but
because people refuse to see it.
James A. Michener, Space
Abstract
Hostility to religious expression in America continues to grow at an alarming
rate. The hostility is growing in the areas of:
The Public Arena of public places, government, and the workplace.
The Schoolhouse of education, from K12 through higher academia.
Churches and Ministries, in which one might expect hostility to be
the least.
The Military, which includes our service members, veterans, and
their memorials.
More than 1,200 cases are documented in this 2016 edition of Undeniable,
yet this is not an exhaustive accounting. These cases include past years
cases but show a clear expansion during this past year. Quantitatively and
qualitatively, the hostility is undeniable. And it is dangerous.
Attacks in Four Key Social Sectors
The title of this survey, Undeniable: The Survey of Hostility to Religion in America,
exemplifies its purpose: to bring to light the increasing acts of hostility to
religion in such a way that even the most uninformed and skeptical person
cannot deny that we in America are facing an unprecedented assault on
our First Freedom. With each edition, Undeniable unfortunately continues
to grow rapidly.
Here is a summary of the more detailed documentation of hostility that
you will find in this volume, categorized by the four key sectors of society:
I. Attacks in the Public Arena
This category covers all attacks on exercising religious liberty in public
locations, government, the marketplace, and the workplace.
This past year has seen high-profile attacks on religious liberty in the public
arena as people of faith have been fired, refused employment, or fined for
10
Executive Summary
capitol. The U.S. Supreme Court heard both the Texas and the
Kentucky cases at the same time and held that the Texas display is
permissible because there were other, secular monuments around
it, while the Kentucky display is impermissible because there were
insufficient secular displays nearby. First Liberty Institute successfully
defended the Oklahoma Ten Commandments display at the federal
court level, but the Oklahoma Supreme Court held that the Ten
Commandments display violated the Oklahoma Constitution in a
state court proceeding.
Attacks on Public Invocations
Town of Greece, New York v. Galloway
Atheists of Florida, Inc. v. City of Lakeland, Florida
These cases involve challenges to legislative assemblies opening
with prayer. In Marsh v. Chambers, a 1983 U.S. Supreme Court case
on legislative prayer, the Court noted that Congress has opened
with prayer since the founding of the United States and Congress
hired a chaplain to give these opening prayers the same week that
it passed the First Amendment. Despite the historical evidence
and the U.S. Supreme Courts holding that legislative prayer is
constitutional, threats and lawsuits challenging these prayers are
growing more frequent. In Atheists of Florida, Inc. v. City of Lakeland,
Florida, the Eleventh Circuit Court of Appeals followed the Supreme
Courts decision in Marsh v. Chambers and upheld a city commissions
opening each meeting with a prayer. In Town of Greece, New York
v. Galloway, however, the Second Circuit Court of Appeals rejected
the Supreme Courts decision in Marsh v. Chambers and struck
down legislative prayer. The Supreme Court reversed the Second
Circuit in a landmark decision upholding the historical practice of
legislative prayer and ensuring that government cannot censor the
content of a prayer.
Attacks on Public Speech and Expression
Eric Walsh v. Georgia Department of Public Health
In 2014, the State of Georgia enthusiastically hired Dr. Walsh as a senior
official in the States Department of Public Health. After conducting
a review of sermons Dr. Walsh had preached at his local church, the
State terminated him. Dr. Walsh filed a charge of discrimination with
the Equal Employment Opportunity Commission against the State
for unlawfully terminating him based solely on his religious beliefs.
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Executive Summary
to the fifty-yard line, took a knee, and thanked God for his players.
Coach Kennedy continued to do this for seven years. In 2015, however,
Bremerton High School suspended Coach Kennedy for giving a prayer
after a football game. First Liberty Institute stepped in to defend
Coach Kennedys right to give a prayer under the First Amendment,
federal law, and extensive legal precedent.
Substitute Teacher Fired for Handing a Bible to a Student
Walt Tutka, a substitute teacher for the Phillipsburg School District
in New Jersey, said, The first shall be last, but the last shall be first,
to a student coming last through a door. The student asked Tutka
several times about the source of the quote. Tutka eventually used
his personal Bible to show the quote to the student. At the students
request, Tutka gave the student the Bible. Upon learning that Tutka
had given a student a Bible, the school district terminated Tutka
for distributing religious literature on school grounds. First Liberty
Institute stepped in to assist Tutka and filed a complaint with the
Equal Employment Opportunity Commission (EEOC), asserting that
the school districts firing on Tutka was religious discrimination.
The EEOC agreed, determining that there was reasonable cause to
believe that the Phillipsburg School District discriminated against
Tutka on the basis of religion and retaliation.
Matthews v. Kountze I.S.D.
The Kountze High School cheerleaders wanted to display encouraging messages to the football players of both KHSs team and the
opposing teams. The cheerleaders decided that the best way to
encourage the players was to write Bible verses on the run-through
banners that the football players run through at the beginning of each
game. The Freedom From Religion Foundation discovered that the
cheerleaders were writing Bible verses and sent a letter to Kountze
I.S.D. demanding that the school district stop the cheerleaders. The
superintendent of Kountze I.S.D. then banned any student group,
including the cheerleaders, from bringing signs with religious messages to sporting events. The cheerleaders sued the school district to
protect their free speech and religious liberty rights. A state district
court judge held that the cheerleaders speech is protected and
may not be censored by the school district. The case is on appeal.
13
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Executive Summary
& School v. EEOC. Not only did the government, for the first time, argue that
it may regulate churches and determine qualifications for pastors, but the
past ten years have seen an explosion in cases involving local governments
discriminating against churches, particularly in the local governments use
of zoning laws and granting of permits.
The following cases illustrate this new front in the secularists war on religious
liberty:
Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC
A private Christian school fired Cheryl Perich, a minister and a
teacher at Hosanna-Tabor Lutheran School, for threatening to
sue the school after she was asked not to return because she had
narcolepsy. Perich sued under the Americans with Disabilities Act. In
response, the school argued its right to hire or fire Perich based on the
ministerial exception, which legally protects the rights of churches
to select its religious leaders without government interference. The
Justice Department argued that the ministerial exception does
not exist and the government may regulate churches selection of
pastors. The U.S. Supreme Court unanimously upheld the ministerial
exception and specified that government regulation of the hiring
and firing of ministry leaders would violate both the Free Exercise
Clause and the Establishment Clause.
Opulent Life Church v. City of Holly Springs, MS
Opulent Life Church in Holly Springs, Mississippi, wanted to move
into a larger facility because it had nearly outgrown its present
meeting place. Once the church found a new property, however, it
also discovered that the city would not grant a permit for the church
to move into the new property without getting permission of 60
percent of all property owners within a one-quarter mile radius of
the proposed sitea requirement that applied only to churches
and to no other type of facility or business. Opulent Life Church
sued the City of Holly Springs for violating the Constitution and
the Religious Land Use and Institutionalized Persons Act, which
prohibits zoning ordinances from discriminating against churches.
After the Fifth Circuit ruled in favor of the church, the case settled,
and Opulent Life Church is now free to move into its new property.
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Executive Summary
IV. Attacks in the Military
Attacks on the religious liberty of active and retired members of the U.S.
military has continued to grow over the past year. While religious liberty and
open religious sentiment in the armed forces goes back to the Continental
Army and was formalized in the administration of President Thomas
Jefferson, even military chaplains are now subject to attack and persecution
for following their religious beliefs. Religious freedom in the military is
protected by the U.S. Constitution, Department of Defense regulations,
service branch regulations, and case law. Nevertheless, recent attacks on
our service members religious freedom ignore this law and tradition. The
following are samples of the attacks documented in this survey:
Attacks on Religious Belief and Thought
Navy Chaplain Investigated for Providing Counseling According to
His Religious Beliefs
Air Force Master Sergeant Punished for Christian Beliefs
These cases represent attacks on religious belief and thought in the
military as virtually a thought crime. In one case, Navy Chaplain
Wes Modder, a decorated military hero with an exemplary 19-year
service record, was investigated and faced dismissal for cause and
a Naval Board of Inquiry because he provided pastoral counseling
consistent with his religious beliefs about sexual conduct outside
of marriage. First Liberty Institute stepped in to defend Chaplain
Modder, and the charges against him were dropped.
In the second case, Senior Master Sergeant Phillip Monk, a 19year Air Force veteran at Lackland Air Force Base in San Antonio,
Texas, returned from deployment and found that he had a new
commander who was an open lesbian. Sergeant Monks commander
asked Sergeant Monk what he thought about same-sex marriage.
Sergeant Monk initially refused to answer, stating that his views
on same-sex marriage were irrelevant to his job. When Sergeant
Monks commander insisted that he tell her what he thought,
Sergeant Monk affirmed that he believed in the biblical view of
marriage. Sergeant Monks commander then relieved him of his
duties and had him reassigned, despite Sergeant Monks spotless
record. When Sergeant Monk reported the retaliatory religious
discrimination, Air Force investigators charged him with the crime
of making false official statements. First Liberty Institute stepped in
17
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Executive Summary
about the video. The alleged offense of the video was the language,
On the eighth day, God looked down on His creation and said, I
need someone who will take care of the Airmen, So God created
a First Sergeant.
There Is Hope, If . . .
While the 2016 edition of Undeniable: The Survey of Hostility to Religion in
America shows that attacks on religious liberty are dramatically increasing
in the United States, both in the frequency and in the severity of the attacks,
this survey also shows that those persons and organizations who stand up for
religious liberty win when they fight. As more and more Americans become
aware of the growing attacks on religious liberty and what their rights are,
they can stand and turn back the tides of secularism and hostility that have
so eroded our religious liberty rights, our First Freedom.
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Section I
ATTACKS IN THE
PUBLIC ARENA
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Section II
ATTACKS IN THE
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Section III
ATTACKS AGAINST
CHURCHES AND MINISTRIES
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Section IV
ATTACKS IN THE
MILITARY
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2016 EDITION
FirstLiberty.org
UNDENIABLE 2 0 1 6 E D I T I O N
UNDENIABLE
The Survey of Hostility
to Religion in America
KELLY SHACKELFORD
GENERAL EDITOR