Fighting for the Separation of Church and State

An interview with Monica Miller.

Posted Nov 28, 2017

The creators of our country were united in their understanding that 1) religion is a very important and meaningful aspect of many people’s lives, and 2) religion is also a potent and toxic source of conflict in society. So, they came up with a brilliant law: the First Amendment to the Constitution, which states in its opening sentence that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” It strikes just the right balance: allow religion to exist without fear of persecution or oppression, but don't promote religion. That is, our government should not be in the business of religion. There shall be no Church of America. There shall be no House Committee of God. The U.S. government should not subsidize or “establish” religion. No one should ever pay taxes to support religious beliefs that they do not share or religious activities that they oppose. However, the government should definitely not take away people’s right to be religious. It shall not suppress, destroy, denigrate, or subvert religion. That is, government should not impinge on the “free exercise” of religion. What an enlightened, fair position to take—and one that is originally, quintessentially American.

Unfortunately, many Americans just don’t get it. They wrongly believe that everyone’s tax dollars should go to support Christian symbols or beliefs. They wrongly believe that their religion should be able to dictate what laws their members can or cannot abide by. Indeed, the First Amendment is currently under attack by many religious people—most notably, Evangelical Christians—who want religion to be promoted by the government and, in many instances, for Christians to have special rights.

Fortunately, secular humanists are fighting to keep the wall of separation between church and state strong. One person at the forefront of this battle is Monica Miller, Senior Counsel at the American Humanist Association’s Appignani Humanist Legal Center. Monica graduated from Pitzer College in 2008 and from Columbia University in 2009 with a Masters in Public Administration for Environmental Science and Policy. She graduated cum laude from Vermont Law School in 2012.

Full disclosure: Monica is a former student of mine and a friend. I recently asked her about her work. 

How did you get interested in church-state issues? Why has this become a focus of your legal work?

In college, I took a Sociology of Secularism course my senior year. I was already planning to go to law school to pursue my interest in animal rights law, but because of this class, I also became increasingly interested in issues surrounding separation of church and state and the importance of secular governance. In law school, I started a Secular Law Students Association club and then did a summer legal internship at the American Humanist Association. It was there I really found my niche in this work. In addition to being Senior Counsel for the American Humanist Association, I also work as a part-time attorney for the Nonhuman Rights Project.   

Let’s talk about the first amendment, specifically the wording regarding religion. What does it mean to you? How do you interpret it?

There are two religion clauses in the First Amendment. The first (the Establishment Clause) guarantees freedom from religion, and the second (the Free Exercise Clause) guarantees freedom of religion. Our founding fathers were acutely aware of the dangers of mixing government and religion and drafted the First Amendment in a way to ensure absolute freedom to believe and freedom not to believe. In a nutshell, the Establishment Clause prohibits the government from taking sides with one religion over another or favoring religion over non-religion, and the Free Exercise Clause prohibits the government from impinging upon an individual’s religious freedom. Some governmental actions violate both clauses. For instance, if the government forced an atheist to sign an oath proclaiming “so help me God,” it would contravene both the Free Exercise Clause and the Establishment Clause. A law requiring everyone to go to church would also clearly violate both clauses.  

Many people would argue that violations of the separation of church and state aren’t such a big deal. Who cares if a little religion is supported by taxes or government officials or public schools? What’s the worry? So, what’s your response to that?

When I hear this argument, it is usually from folks who live in progressive areas or folks who are adherents of the promoted religion, mostly the latter. And that’s understandable. I grew up in California in an area where even dedicated Catholics were progressive and fairly secular. I was taught evolution in Catholic school, and we never had to recite the Pledge of Allegiance in public school. Religion was very much take it or leave it. My childhood friends were Jewish, Catholic, Presbyterian, Muslim, Hindu, Buddhist, and secular.The clients I represent are typically from the deep south or rural homogenous Christian conservative pockets where Christianity overwhelmingly dominates. In those areas, when the government promotes Christianity, it sends a strong stigmatizing message to the non-Christians that they are second-class citizens and unwelcome in the community. This dynamic is especially troublesome in the public schools, where students are subject to peer pressure and bullying. Many atheist families choose to “stay in the closet” to protect their children. I’ve personally received death threats and vitriol from Christian conservatives for bringing these cases. I can’t imagine what it would be like to live in an area where those Christian conservative viewpoints are the norm.The Supreme Court summarized it best in School Dist. of Abington Tp., Pa. v. Schempp, 374 U.S. 203, 225 (1963), where it held: “it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment.  The breach of neutrality that is today a trickling stream may all too soon become a raging torrent and, in the words of Madison, ‘it is proper to take alarm at the first experiment on our liberties.’”

Many people don’t understand why a giant cross on public property violates the constitution. Can you explain it to them?

The Supreme Court has interpreted the Establishment Clause to mean that the government cannot endorse religion over non-religion, or a specific religion over all other religions. A Latin cross is the quintessential Christian symbol. It is an exclusively religious symbol and it only represents Christians. When the government funds, maintains, and displays a massive Christian cross on government property, it is clearly endorsing Christianity to the exclusion of all other religions. As a result, almost every single case involving a government cross display has been found unconstitutional. Last time I counted, there were 27 federal cases holding cross displays unconstitutional, and only three cases upholding crosses in highly unusual fact situations (i.e. the rubble cross situated in the September 11 museum in New York among hundreds of other artifacts). Another aspect of these cross cases is government funding. For example, the government has invested over $217,000 of taxpayer dollars on renovations and repairs of the enormous 40-foot Christian monolith in Bladensburg, Maryland. That means Jewish and Atheist citizens are forced to financially support a monument that exalts Christians to the exclusion of their own people.

I have noticed that many times, people defending religious icons, such as giant crosses, that are on public land claim that the religious symbol isn’t actually religious, but that it merely symbolizes something else, like a war memorial. What do you say in response to this line of reasoning?

After I’m finished laughing, I usually point out that the federal courts have uniformly rejected this line of “reasoning” as bogus. In one case in Florida, the City of Starke argued that its cross on a water tower was the letter “t.” The court was not amused. As far as war memorials go, using a Christian cross as a war memorial does not make the cross secular. It makes the war memorial religious. Every war memorial cross challenged has been found unconstitutional, on the obvious grounds that it only honors Christian soldiers to the exclusion of all others. In fact, war memorial status only makes a government cross more problematic, because the people it excludes are not just any citizens but citizens who deserve veneration. Selecting a Christian cross as a World War I memorial is a slap in the face to the families of the 2,500 Jewish soldiers who died in that war. In overseas cemeteries, their graves are marked by the Star of David and not the cross. During oral arguments over the Bladensburg Cross in the Fourth Circuit, Judge Wynn took offense to the government’s assertion that the cross is not a religious symbol but a symbol of war. He admonished that the crosses he puts up around Christmas time do not symbolize war and it is offensive to suggest otherwise. In the opinion, Judge Thacker agreed that the argument that the cross is not religious could be deemed offensive to many devout Christians.  

Can you tell me about some of the more high-profile church-state cases you have worked on? What were they about, specifically? And did you win?

We usually win! One of our most recent high-profile victories was over the Bladensburg Cross in Maryland, mentioned above. The Fourth Circuit Court of Appeals held that the cross violates the First Amendment, irrespective of its status as a war memorial. We also recently won another cross case in Pensacola, Florida, involving a 30-foot cross in a popular city park that is used for Easter Sunrise Services. The case is currently on appeal in the Eleventh Circuit, and I’m confident we’ll succeed there as we did in the district court.Over a year ago, we prevailed in our federal lawsuit against the U.S. Bureau of Prisons, requiring all federal prisons to recognize Humanism and to allow Humanist groups to meet on the same terms as theistic prison groups. Around that same time, we also won a federal case in Mississippi over prayers and Bible distribution in public schools. The judge was so outraged over the school district’s conduct that it ordered it to pay our student client $7,000 in damages, which is pretty unprecedented in Establishment Clause jurisprudence. 

If an entire town, or county, is Christian, isn’t it OK if they start off city council meetings or a high school game with a prayer? What’s wrong with that? By making it illegal, isn’t that being anti-Christian? 

It’s difficult to imagine an entire populace that believes in the same religion without exception, but even if there were such a hypothetical town, it would still be unconstitutional for the government to promote that religion. There is no exception to the Establishment Clause wall carved out for homogenous communities. Also, many Christians believe it is sacrilegious for the government to be involved in religious affairs. I represent several residents in Carroll County, Maryland, in a lawsuit challenging that county’s practice of opening county meetings with prayers. Two of our plaintiffs are Catholic and feel that such prayers are against their religion. They believe that the Sermon on the Mount requires prayer to be a private endeavor and that government prayers make a mockery of their faith. It is not anti-Christian to say that government and religion must remain separate.   

Our current government is packed with Evangelical Christians. This doesn’t bode well for the separation of church and state. What can those of us who want to keep the wall between church and state strong do? 

Tell me about it! We’ve seen a huge uptick in report-a-violation intake complaints since Trump was elected. Stay vigilant. Report Establishment Clause violations to us at the American Humanist Association. For other civil rights violations, contact your local ACLU. We also need to concentrate our efforts on electing better leaders into office, even at the local level.   

Thanks for all your hard work, Monica! Thomas Jefferson would be proud.