It’s that wonderful time of year when Alison guides Rebecca and Liz through the upcoming legislative sessions in states across the country. We discuss upsetting trends in state legislation and bills we’re monitoring that affect the separation of church and state and threaten true religious liberty for everyone.
Background and Resources
What you can do
Bills Discussed
Religion in schools
School chaplain bills
Oklahoma HB 2962: Would require the display of the Ten Commandments in classrooms
Utah HB 269: Would allow teachers to display the Ten Commandments in classrooms
Arizona SB 1151: Would allow teachers to display the Ten Commandments in classrooms
West Virginia SB 280: Would allow teachers to each intelligent design as a theory of how the universe came to exist
Trans bills
The Guardian – “Missouri is ground zero for the firehose of anti-trans legislation”
Missouri HB1674: Would make it discrimination for a business to allow trans employees to access appropriate bathrooms
Utah HB 257: Would make using a bathroom that does not align with one’s sex assigned at birth a criminal trespass offense
Healthcare
Missouri HB 1519: Prohibits discrimination against health care professionals who refuse to assist in trans healthcare
Oklahoma SB 1729: Would recognize abortion as homicide
Idaho HJR001: Would remove the no aid clause from the Idaho constitution
Cases Discussed
Rebecca Markert:
Welcome to We Dissent, the podcast with secular women attorneys discussing religious liberty issues in our federal and state courts and our work to keep religion and government separate. I’m Rebecca Markert with the Freedom From Religion Foundation.
Liz Cavell:
And I’m Liz Cavell, also with the Freedom From Religion Foundation.
Alison Gill:
And I’m Alison Gill with American Atheists. And it’s that time again, the most wonderful time of the year. The state legislative sessions have begun and state lawmakers across the country are working frantically to introduce and move forward bills before they hit the relevant legislative deadlines.
Liz Cavell:
Yay!
Alison Gill:
And today in some states I agree, yay. In other states, boo. But today we’re going to be speaking about what trends we’re seeing in state legislatures this session, and some specific bills that have already been introduced and are moving forward.
Rebecca Markert:
I’m really excited about today’s episode because I always feel like I learned so much from you Alison. And also just in prepping for the show, I was appalled. I always just think this is a really interesting show where people learn a lot and it’s a little bit different than our normal shows because we’re dipping into the legislative side of things, but it’s so linked to our legal work that it’s a really good show. I think people are going to enjoy it.
Alison Gill:
Fantastic.
Liz Cavell:
And just a little reminder, if you remember, we did our big primer on state legislatures episode. You know it, you loved it. And the title of that episode was, “It Varies by State,” because that was literally the tagline. We kept saying that a thousand times because there’s so much variation. And I was just trying to keep that in mind as I was getting ready to get educated by Alison today, which is that legislative sessions are starting in some states, they’ve already started in some states they’re starting soon. In many states, bills have been pre-filed out the wazoo. And so there’s really a lot to unpack as we start off the year here.
Alison Gill:
And along that line, this is actually the second year of a two year legislative session in many states. So a lot of states were carrying over the bills from last session. So let’s say last year the bill got all the way through one chamber and didn’t progress in the other chamber. Well, now there’s a second chance for them to pass it through the second chamber. So we have to pay attention to which states carry over bills and some states don’t. Other states like New Jersey and I think Virginia, they’re on an odd year calendar compared to other states. So there’s a lot happening. And again, it varies by state.
Liz Cavell:
Okay, well here we go. 2024.
Alison Gill:
Well, before we get started, I actually want to start by mentioning our new report, which is the 2024 State of the Secular States report, which is available at atheists.org/states. And it’s an annual report we put out that looks at state laws regarding religious equality, church state separation and civil rights in all 50 states plus DC and Puerto Rico. And we just launched it about a week and a half ago for the new year, and it’s really meant to be a strong resource for advocates and really anyone interested in this area of law because one of the most important things is to understand what the law actually is if we want to make changes to it. And this really looks at every single state and sort of groups them into three broad classifications depending on how well they protect religious equality and church state separation and things they could do to improve and things that they have on the books that are good and bad. So I think it’s a really helpful resource.
Liz Cavell:
Yeah, it’s a gold mine. I think many of us in the movement love and look forward to the American Atheist State of the Secular States report. So check it out. If you’re interested in learning more about what we’re talking about today.
Rebecca Markert:
We are going to put the website that Alison mentioned in the show notes so you can find the report there.
Alison Gill:
Perfect. I want to mention another resource, which is our state legislative tracker. So we track hundreds of bills across state legislative sessions and it’s a lot to keep up with, but we make it all available on our website. If you go to atheists.org/billtracker, all one word atheists.org/billtracker, and we’ll put that in the notes too, obviously. But where we track hundreds of bills and if we’re not tracking a bill that you think is important, there’s actually a form you can tell us. There’s so many bills that many fall through the cracks. It’s really helpful for people to let us know, oh, this is a bill in my state that I know about that you don’t have on here because that means we can add it to our list and make sure that we’re watching it as well. So again, that’s a great resource for folks.
And with that, let’s talk about some legislative trends and some background. First, let me say that last year was a really terrible one for state legislative sessions and civil rights. There were more bills attacking civil rights and religious equality introduced and passed in a single year than I’ve ever seen. It was pretty dramatic. Just to give you an example, we tracked more than 1600 bills last year and the highest year on record before that was 2022, and that was about 800 bills. So it was about twice as many. And a lot of these bills were positive, but many, many, many of them were negative and just a huge percentage, much more than we’ve ever seen. And they were focused on a few specific areas, which coincidentally are the same areas of this year. So when I talk about trends, a lot of them extended to last year as well.
Rebecca Markert:
Why do you think there was such an uptick last year?
Alison Gill:
Well, a few reasons. One, I think that there are certain, I dunno, let’s say political parties have really focused on some of the moral panic issues around trans stuff and I’ll be talking about that. And usually we see more stuff from opposition parties when the presidency is held by the other party. And also there’s sometimes a reaction to the Supreme Court, and I think we’re going to talk about some of the things that impact state legislation in a moment. But I think that all of those factors can contribute to a higher than normal level of state legislation. And we’ve just seen an increase year over year for many years. It was just a huge jump that was pretty unexpected I would say. We are expecting this year to be equally as bad, if not worse than 2023. Unfortunately, in large part because of the upcoming general election.
Rebecca Markert:
Election years are always really interesting because all these politicians are up for reelection and they really are striving to distinguish themselves for their primaries and their general elections. So many lawmakers are going to introduce bills, first of all, just to say that they’re working on a particular issue. Some, as Alison mentioned, they’re trying to make these issues into election issues by introducing legislation. It’s especially true for issues that they think they have strong public support on issues like the trans issues, divisive issues in schools, and to a lesser extent in some areas on abortion. I always like to say that in election years we see an uptick in legislative proposals, particularly in the religious liberty field, because all of these incumbents are trying to quote “out-God” each other just to show how religious and devout and pious they are and persuade voters to vote for them because of the God-fearing individual that they are.
One of the other things that we see a lot of the intersection between the legal work and the legislative work is what the Supreme Court has done. It is very obvious that the Supreme Court is also going to influence legislation. One of the reasons many of our organizations have gotten more involved in legislative work is because of what’s happening at the federal bench. When the Supreme Court is handing down decisions that are not helpful for civil rights, our recourse might be in the legislative field. That also is true for the other side of things, if they’re not seeing something from the courts or if they see an opening that the court has given, our adversaries are also going to be introducing bills in response to these rulings. So we’re seeing that states are introducing and hoping to pass legislation that they know will be challenged and potentially go up to the Supreme Court so that they can have the law changed in a particular way.
They really want to provoke a ruling that does change the law. And we’re going to talk a little bit about some of those bills that we’re seeing this legislative year in a little bit. Some of the rulings from last year that we’ve talked about, the 303 Creative case and the Groff case that you might remember from previous episodes. They’re probably not as likely to result in legislative fixes or other types of legislation as decisions like the Kennedy v. Bremerton decision from previous Supreme Court terms. All of this we’re going to be talking about a little bit later, but these are some of the things that are relevant when we’re looking at what’s happening in state legislatures across the country this year.
Alison Gill:
Yes, thank you, Rebecca. That’s terrific. Two last points I want to make before we get started on actual trends are one, we’re going to be focusing on negative bills today. Now we track a lot of positive bills as well, but because most of the bills I’m going to be talking about have not yet moved forward, I think it’ll be more helpful for us to discuss negative bills and really focus on them today and we can talk more about some of the positive measures in the future. Second, any yahoo lawmaker can file a bill. So there tends to be a lot of fringe state bills out there in different places. So even though we’re going to be talking about some of these bills, they might just be things that don’t move forward in some states. It really does vary by state. I was going to do it again.
It really does differ and I think the reputation of the lawmaker matters quite a lot. So when we’re tracking state legislation, it’s important for us to understand how many sponsors things have or who’s introducing it, what are the likelihood they’ve been able to pass bills previously because those all impact how seriously we have to take some of these measures. Also keep in mind that the vast majority of bills never become law. So although we’re going to be talking a lot about a lot of negative bills, the vast majority of bills never become law. And with that, let’s actually dive into trends, finally.
So first I want to talk about bills pushing religion into schools. Now, one thing we saw last year in Texas, we spent quite a bit of time talking about this school chaplain bill and how terrible it is in Texas. I am displeased to say that other states have really taken up the banner here, and I just checked this morning. Seven other states introduced, I think 13 of these bills across the country. Seven. And some of them already have momentum. Like for example, I don’t know when folks will be listening to this, but as of recording, Indiana and Iowa are holding hearings on this tomorrow. So these bills unfortunately seem to have a lot of concerted movement behind them. It is not organic for things to happen that quickly. It’s not organic for a state to say, okay, I’m going to pass this and for seven other states to just pick it up immediately a few months later, there’s organizations pushing on this. I think there was an organization called the School Evangelism Group or some such, and those groups are probably talking about their victory in Texas to lawmakers and trying to get them to do something similar, unfortunately.
Rebecca Markert:
So can you remind listeners, we did do an episode on Texas specifically, but can you just remind our listeners what this bill is?
Alison Gill:
Sure. The bill in Texas, it basically requires every single school board to have a vote whether to allow school chaplains to be volunteers, which is one thing, or to replace school counselors with school chaplains. Now there’s no sort of restrictions on the chaplains to make sure they’re actually qualified or that they actually serve all the students or that they don’t engage in any activities that violate the first amendments, like for example, proselytize to students. There’s no sort of limitations or restrictions in the bill. It’s wide open. So it’s really just inviting abuse and putting school districts at risk of liability and children at risk as well. So that passed in Texas, unfortunately, according to the law, every school district in the state has to vote by I think March 1st about whether to allow these school chaplains either on a volunteer or employee basis. Most places we’ve watched, including the larger school districts have voted against it. Now I think that they’re requiring this vote publicly on the record so that they can use it against them in elections. So that’s the next step. Are we going to see a wave of primary and other challengers saying, well, they voted against God in our schools, and will that even avail them? Will that even be helpful? Maybe in some communities it’s really hard to say, and there’s some places that they are moving forward with these school chaplain policies, but we’re glad to say most places have not chosen to go that way.
Rebecca Markert:
It’s an area that we’re continuing to monitor as that legislation is implemented and the school boards are taking votes through the spring of this year, but it’s incredibly concerning that it caught on like wildfire in some of these other states.
Liz Cavell:
And if you want to hear more of a dive into why those bills are terrible and at what cost, you can hear us rant and rave about this bill as it was envisioned and is being implemented in Texas, in our Texas episode from a few months back. But what’s really kind of concerning about it is what Alison mentioned is the rapidity with which these bills are being repeatedly introduced in state legislatures. That tells you right as Alison’s saying that these are not like organic great minds thinking alike and coming up with the same awesome ideas. These are shadowy groups, kind of like the Moms for Liberty type of groups that are backed by big conservative interests or religious right interests and they’re pushing model legislation that’s really damaging in a rapid fashion across multiple states.
Alison Gill:
It’s interesting, we see this trend over and over again that the most extreme bills one year become the standard that is promulgated across the states by some of these different organizations in the next year. And I think the Chaplain Bill is a really good example of that. This has never passed anywhere else. The bill in Texas was the first one we’ve ever seen and it passed and now it’s being replicated all over the place. And this happens in terms of any of the issues we’re following. It happens certainly when it comes to trans issues, which I’ll point out in a moment, and it happens with regard to abortion access and a lot of other issues. So it’s really concerning that the most extreme bills are just sort of propped up and replicated.
In addition to school chaplain bills, we are seeing a number of other bills about pushing religion into schools. One bill we’re seeing is Ten Commandments bills, and these were similar to what was introduced last year in states like Texas. So you can see the same episode where we talked about a similar bill, but one has been introduced in Utah, for example, and these build on previous, In God We Trust bills mandating that school classrooms have In God We Trust posters on them. And now these bills would require Ten Commandments displays in direct contravention of Supreme Court precedent, to Rebecca’s point earlier.
Rebecca Markert:
Yeah, this is the exact issue I was talking about when we’re looking at a Supreme Court ruling and how legislators are responding to that. In the Kennedy v. Bremerton decision, which involved a coach praying as part of an athletic event in that decision, the Supreme Court also threw out the Lemon Test, which we’ve talked about on this podcast many, many times before. It was the test from 1971 that we’ve used for decades in evaluating Establishment Clause concerns. The Supreme Court threw that out in the Kennedy v. Bremerton decision. And because of that ruling, there are a lot of legislators and Christian right organizations that see this really as an opening. Back in 1980, the Supreme Court ruled specifically on this issue in Stone v. Graham saying that a Ten Commandments being posted in a public school was unconstitutional. They based that on the Lemon Test. They said that the purpose of posting the Ten Commandments up in schools was plainly religious.
And because of that, because it violated the first prong of the Lemon Test, which says that a government action needs to have a secular purpose in order to be constitutional, those postings in Stone v. Graham were unconstitutional. That ruling was not overturned by Kennedy v. Bremerton, but because of Kennedy v. Bremerton throwing out the Lemon Test and introducing the History and Traditions Test cases like Stone v. Graham that are clearly settled precedent are now vulnerable to challenge. And these bills are sort of an avenue in getting those challenges into courts. And of course if you see Ten Commandments being posted in schools, eventually that opens the door to other really religious displays in schools and potentially things like crosses and nativities and things like that.
Alison Gill:
It’s interesting because if you delve into the history of these Ten Commandments displays, the language they use, there’s several different versions of the Ten Commandments in the Bible and also between Bibles, they have different versions favored by different religions. So there’s some controversy about what Ten Commandments actually are or which versions are appropriate. But a lot of these bills use the language from a previous Supreme Court decision called Van Orden v. Perry, which had to do with displays. There were two cases at the same time. One came out with allowing the display and the other did not. And that was sort of a change by, I believe it was Justice–
Rebecca Markert:
Breyer.
Alison Gill:
Breyer. That’s right. Yeah. Breyer sort of was a deciding factor on those cases. But regardless, they’re using this version of the Ten Commandments, which is, it was created by something called the Fraternal Order of Eagles, and it’s found in monoliths across the different places across the country, and it was supposed to be this sort of uniting version that’s supposedly made both Protestants and Catholics acceptable to both of them. And it’s been sort of this controversial version, but it’s being used because the Supreme Court gave it at least some recognition in Van Orden v. Perry. So they’re trying to stick with the language that they think they have the strongest legal argument. So it’s kind of fascinating how they’re sort of framing this to try to reduce the issues they know this is intended to go to the courts.
Rebecca Markert:
Right. Along those same lines, they bring up sort of the role that the Ten Commandments allegedly played in formulating American law. So I think they’re drawing on history and tradition here. The sponsor of the bill in Utah, representative Mike Peterson, he’s sponsoring this legislation to restore what Utahans and all Americans lost in 1971 when the Supreme Court created the Lemon Test. He also said, now that it is legally feasible, lawmakers can now once again display these documents so students can know the significant role it played in the creation of American heritage and law.
Liz Cavell:
So this Utah representative Mike Peterson, noted con law scholar that he is, is saying basically in his quote, in support of the bill that we’re restoring what Americans lost in 1971 when the Lemon Test happened, is just a total lie because of course it suggests or basically says that these principles were codified somehow by the Supreme Court in 1971 and before 1971, therefore, religion was allowed in public schools and everyone agreed and so did the Supreme Court. And that’s just not true, right? Like Lemon, yes has been discarded by the current Supreme Court, and this type of confusion and disruption in the case law is exactly what I think was the goal of the majority in the Kennedy v. Bremerton decision. But Lemon was an analytical framework that pulled together many different prior Supreme Court rulings on the Establishment Clause and how it applied to government actions including in public schools.
There was already a very robust body of Establishment Clause cases from public schools that existed in 1971 when the Lemon Test was created by the court to aid in the analysis of an Establishment Clause claim. It didn’t create out of whole cloth some rule that all of a sudden now religion is expunged from the public schools, henceforth. And now the Supreme Court of today has come in on the white horse and restored what we all lost in 1971. That’s just total bull. And so like Rebecca said, this confusion, which was exactly the point of the Kennedy case, does give new vulnerabilities to some of these cases that came later, like the Stone v. Graham case. There’s still an Establishment Clause and there are still really strong principles, especially in the context of public schools that existed before and after the Lemon case that these state legislators are just completely ignoring and not grappling with.
And once one of these bills goes into law in one of these states and public schools are required to post these Ten Commandments in every room of a school or every classroom, there’s going to be major challenges to these individual school districts that are doing this and major complications in terms of what Alison was just describing, which is these are states that are choosing and adopting which Ten Commandments, which set of holy rules, is going to be displayed in every classroom, which violates every core principle of the Establishment Clause, whether or not the Lemon Test is still the law of the land.
Alison Gill:
And one last thing to add, which is that this idea that the Ten Commandments is foundational to American law and history is stupid and wrong. I just want to say that it’s untrue and ridiculous. Which of them applies? Let’s see. They thou shall not have any God before me. Is that the basis of American law? Thou shalt not murder. I mean, sure, but that’s the basis of every law through every culture in the world.
Liz Cavell:
Yeah, that American, original thou shalt not kill.
Alison Gill:
Seriously. So it really makes no sense at all. It’s a dumb argument. Let’s keep going. In terms of school issues. One, we’re seeing a lot of divisive issue bills, and these are a large nebulous category of bills that include things like, now, anti-DEI is a major issue, DEI, diversity, equity and inclusion laws, we’re seeing a lot. So we sort of have evolved from anti-CRT, critical race theory, and now there’s some discussion around divisive issues. And now of course DEI itself, diversity, equity and inclusion is now evil. They’re attacking it directly through legislation. Also “don’t say gay bills,” which basically prohibit any sort of classroom discussion of sexual orientation and gender identity. There’s also parental rights bills. I think I’ve talked about this a little bit before, but these are a really broad category of bills that sort of give strict scrutiny to parental rights issues and that’s very nebulously defined. So all of these together are sort of a class of bills. They often contain different components of these sometimes religious opt-outs from classes or against vaccination are built in as well. So we’re just seeing a mass of these types of things across the country unfortunately.
Liz Cavell:
These are coming in a lot of different forms and it’s really scary to see how, and a lot of them can sort of be filed under anti-trans, anti-LBGT, or just racist anti-DEI and CRT and all that stuff all filed under the umbrella of I guess anti-woke. These are coming in so many different forms where teachers shouldn’t have to use correct pronouns and forced outings, not just teachers and school officials can’t talk about their own sexual orientation, but all of these different forms, every form you could possibly think of to make the school environment hostile to LGBTQ kids.
Alison Gill:
Yeah, it’s pretty concerning these bills, and we’ve been seeing them year after year for the last several, and it’s interesting, they go further in some states every year to make it really harsh discipline for teachers or even the ability in some states for parents to sue if for example, a student is exposed to some of these ideas or there’s required discipline against teachers, those sorts of things. So it’s pretty concerning and just curious every year what the next thing is going to be. This year it’s DEI, diversity, equity, and inclusion is now the new evil thing that they dare teach in schools that we shouldn’t hate each other based on race or religion and we can’t have that unfortunately. Can’t have nice things. Anyway, we’re also seeing some creationism bills. There’s one in West Virginia, which is SB 280. It was a little bit more explicit. They changed it recently. So they amended it specifically to allow teachers to discuss or answer questions from students about scientific theories of how the universe and or life came to exist. So it’s written in sort of a backhanded way “to give teachers flexibility to answer questions about,” I have some quotes there if you didn’t see it, “answer questions about how life and the universe came to be,” I guess outside their normal teaching framework. In other words, so they can sneak in some creationism.
Liz Cavell:
And these bills popping up in 2024, can I just say is a total kick in the gut. Talk about the settled Establishment Clause law and now everything is up for grabs. These are bills that are completely unconstitutional. It has been settled law that teaching creationism in public schools violates the Establishment Clause because it’s literally teaching religion and religious beliefs about the beginning of life and the beginning of the universe. And there are really strong cases, a string of cases that supports that, but yet states like West Virginia feel totally free to pass these bills saying, no, no, public school teachers are absolutely free to inject these religious concepts into their scientific teaching. And this is the kind of thing that I can imagine will be on a glide path in places like West Virginia to passing. And it’s really, really sad to see.
Alison Gill:
It’s hard to say because this bill, I mean, we see these every year and this bill didn’t pass last year, so it’s the sort of thing we’re flagging, but I’m not sure, it’s hard to say at this stage how much momentum some of these bills have, especially some of the more fringe bills.
Rebecca Markert:
I mean, I feel like there’s still concerning though because of this trend of school officials like Coach Kennedy and other teachers who are suddenly asserting they have their own free exercise rights to talk about these types of things, even in front of students or engage in religious activities. And so I feel like yes, we’ve always seen some sort of creationism bill over the years, but I feel like there might be more momentum, and maybe not this year, but maybe in future years where there is this opening now and there is this idea that religious belief is doubly protected, and just because you are a public and employee doesn’t mean that you’re not allowed to talk about these types of things. I don’t know. You are the expert Alison and you probably know better than I, but I feel like this is one that we might see come about a little bit more, especially if they get any traction in chipping away some of these other cases like Ten Commandments and chaplains. I feel like this is just opening the floodgates and this is just the next thing to fall is creationism.
Alison Gill:
You know, I agree. But I think we would tend to see bills that are a little bit more general, saying bills about protecting teachers speech and religious freedom or whatever. That’s how it would be framed instead of focused more on creationism. And that would open up a possibility for them to do sort of creationism discussions, but a little bit more informally. You know what I mean? I think that’s more likely, and we’ve already seen some bills like that as well to sort of give teachers more protection, sort of framed in terms of the Kennedy decision, if that makes sense.
Rebecca Markert:
Yeah, yeah, you’re right.
Alison Gill:
But the last one I wanted to mention in terms of education, it’s not really pushing religion into schools, but I’m going to throw it in here, is voucher bills. So we’ve seen a massive upsurge in voucher bills last year. There were seven states last year that passed bills relating to unlimited eligibility.
And so these are, I guess the next step in terms of vouchers, maybe the last step in terms of vouchers where it’s not limited to people of a particular economic threshold or families in poverty. Over the years, they’ve tried to identify different sorts of segments they can carve out to offer vouchers to, whether it be young people with disabilities, a certain poverty threshold, all sorts of things like that in order to expand the number of families that qualify for vouchers now. And some of these states just did away with that said, anybody can get vouchers. So there’s no rule. They’re unlimited eligibility. Last year that passed in Arkansas, Florida, Indiana, Iowa, Ohio, Oklahoma, and Utah and Arizona already had it. I think that brings us to eight, which is just a massive shift and wherever these pass in Florida and Arizona, it was just a huge spike in funding going to these vouchers for private schools, mostly private religious schools. You can’t contain the cost if everybody is eligible. We’ve also seen this massive increase in fraud, of course, because there’s no sort of bounds on what they spend the money on, both fraudulent schools and some of these also give money to people to, like the Florida one basically encourages people to withdraw their children from the public education system. It’s almost like a bribe. They get seven k if they do, which is just no way to run a society frankly.
Liz Cavell:
No, this is such bad governance. Everything we know about voucher programs and how they affect outcomes for kids and education is they’re terrible. They don’t work. They’re bad for kids, and they’re a giant waste of money and a nightmare for public accountability. This is not a new idea that hasn’t been tested. It’s a long time program that’s just been expanding and expanding and expanding as religious rights are becoming more expansive in the courts, and so much public education funding is going towards these types of schemes. And as always, kids that are entitled to public education are the losers. I mean, these programs do not work. They don’t better outcomes. They don’t help with poverty or access or any of those things, any arguments you might have seen in the early days of vouchers. Now they just put public dollars into religious schools’ pockets and give kids worse outcomes.
Alison Gill:
Actually, the money, if we did studies on this already, especially for these unlimited eligibility programs, the money goes to people that already attend these schools. So families that are already wealthy enough to afford it, you’re basically just subsidizing them. So it’s even worse than in other states. You’re just subsidizing people that are already paying out of pocket for private education. So you’re taking that out of the public school system, people that need that. It’s brutally inefficient and subsidizing rich families. It’s amazing.
Liz Cavell:
Well, I didn’t realize so many unlimited eligibility bills were passing.
Alison Gill:
Oh yeah. That was a major change last year, and unfortunately it’s a big push. For example, I think Texas Governor Abbott held what five special sessions to try to cram it through. There was enough resistance to stop him, and I really congratulate the advocates in Texas for fighting back and the teachers and the unions and the lawmakers who stood against it. I mean, he threatened to primary any Republican lawmaker that stood against him, and yet many did because these are terrible, terrible for rural areas which often have Republican representation. And so they, recognizing that, a lot of them stood against it, even withstanding the threats that Abbott made.
Liz Cavell:
Wow. That’s something,
Alison Gill:
Yeah. Well, we’ll see what happens this year in different states, but there’s certainly, again, a concerted effort to get these passed because seven states don’t pass bills like this, almost eight without a strong lobbying effort from the other side. All right. So let’s move on to bills targeting trans people.
Gosh, there were a lot of these last year, and I have no reason to believe it’s going to slow down this year. In fact, many of them are still, like I said, there’s carryover in a lot of states. There’s already hundreds of these bills still in consideration in state legislatures. So we’re seeing a massive increase of bills targeting trans people. And although I’m discussing this as a separate category, many of these also involve schools or healthcare, a lot of overlap in those issues. So the right has really moved increasingly fast to coordinate attacks on trans civil rights. And a lot of these attacks are based on religious stigma, and I’ve mentioned this before, but there’s some really good examples. These bills are often called, for example, millstone acts, which references a biblical story about drowning people that corrupt children, which is just disgusting. Some lawmakers and considering these bills have referred to trans people as demons or possessed or that sort of thing, and now in one state, I’ll mention a second, we’ve even seen a denial of care bill, which is explicitly about not providing care based on religious beliefs.
So there’s definitely an increased linking of these issues towards religion, and we’ve also seen the shift, I mentioned before, that we see the most extreme bills sort of become normalized and propagated year after year. In 2022, we saw mostly bills banning trans youth from school athletics, and those passed in about 18 states immediately last year. They all shifted and passed bills about denying access to medical care for trans youth, which passed in 19 states. So now there’s 22 of those across the country. 19 states all in one year. That’s ridiculous. It’s incredible. That is not a common phenomenon by any stretch, right? It’s a massive, well-funded campaign to align lawmakers on these issues.
Liz Cavell:
And it’s like they’re getting all the states they can in one year and then moving on to a new bill.
Alison Gill:
That is exactly right.
Liz Cavell:
It’s like, oh, 18 states, that’s the most we’re ever going to get on this issue right now, given demographics and representation, moving on for 2023, we’re doing this thing. Oh, we got 19 states, 22 total now, and that’s probably as much support as exists in state legislatures. So 2024 is now, what, a new thing.
Alison Gill:
We’re seeing this year bills rolling back or blocking access to appropriate identity documents, which is incredibly important because you need identity documents to get around and survive in normal life. It’s to open a bank account, to get a driver’s license. That’s really critical stuff for daily functioning for trans people, trans adults making accessing appropriate restrooms illegal for trans people. There was a bill hearing, I think it’s today in Utah, that it would become criminal trespass to use a bathroom that did not correspond to one sex assigned at birth. And I think that passed committee yesterday and has been sort of fast tracked in Utah, which would subject someone who doesn’t comply with it to six months in jail and a $1,000 fine. And when you’re talking about bathroom issues like that, you have to wonder how they’re enforced and whether it involves – people don’t carry around their birth certificates, so is it by visual? Do they do physical checks? It’s really concerning, and we know that these are misenforced against mostly cis women that people think are gender nonconforming, so that’s often what we see happen. There’s also a lot of bills defining sex and state law so as to completely erase trans people, defining sex purely to mean sex assigned at birth, basically. They don’t use those words obviously, but you get the idea. A lot of discussions around gametes. I’ve never seen the word gamete so often in the law than in these bills, which is utterly, it’s like the new hotness, I guess, to define things in terms of gametes. They’re always trying to figure out a way to exclude trans people in new and fascinating ways, and that’s the new one.
Liz Cavell:
You got to go back as far as you possibly can, and that is when sex is determined. If they think of a sooner time, they’ll start using that language.
Alison Gill:
And we’re worried about bills attacking healthcare for trans adults, blocking coverage, increasing liability, providing that no state funds can pay for it, and those are most of what we’re seeing so far this year.
Liz Cavell:
And again, we’re, right Alison, in the hundreds already of just either pre-filed or rolled over bills in this category.
Alison Gill:
Yeah, that’s right. It’s funny, not funny, sad. Missouri already proposed more than 50 bills targeting trans people, and they’ve been having, last week they had a marathon of sessions on those, so it’s just amazing. That’s sort of ground central right now, though I’m sure Florida will be competing for that great title soon.
Liz Cavell:
I’m sure all the other social problems in Missouri have been solved, so it’s a good thing that your legislature is spending all their time on this.
Alison Gill:
That was one of the arguments made in Utah at the hearing yesterday, one of the lawmakers was like, well, listen, we’ve been discussing these issues and passing laws for this is the third straight year that we’re considering this bill and the governor, I don’t know if you know this, the governor in Utah vetoed one of the early sports bans bills because he figured out that this actually applied to no young people in the state and maybe one someday, but it has no utility, doesn’t improve anyone’s lives. It’s just completely a waste of time and it does not actually affect anybody, and it’s still stigmatizing this population, but that just goes to show we’re not really about protecting people. This is just a political issue.
Liz Cavell:
So infuriating on so many levels.
Rebecca Markert:
It makes me sick to my stomach to think that this is what they’re spending their time on, like, who is using what bathroom?
Liz Cavell:
This also, I’m not sitting here looking at survey data in front of me, but just as a consumer of too much political news and information, this is not an issue that is top of mind for most American, even voters, even if you’re just being a total political crass actor, this is not important to that many people. It’s just a way to be cruel and dehumanize a minority population and just signal all of these social and religious things about yourself as a political actor. It’s both not making anyone’s lives better and not solving any social problems, but it’s also not that politically valuable. It’s just so much madness.
Alison Gill:
I think the election has shown that too. The elections have shown that it’s not really getting anywhere. I mean, look at DeSantis, no longer running for president, and he was one of the major proponents for these types of things. It’s a fringe issue and outside the conservative base, people don’t really care.
Liz Cavell:
But it’s doing a tremendous amount of harm to a small group of people with not a lot of power. It’s just, it’s the perfect storm of cruel, just awfulness.
Alison Gill:
I mean fascist scapegoating, right? I mean that’s exactly what that is. It’s meant to distract and redirect so that they can pass unpopular economic policies. And we’ve seen it in waves throughout American history, unfortunately, whether it be immigrants or LGB people earlier in the nineties, all sorts of one group after another.
Liz Cavell:
Guys, this episode is a hoot. Yeah, we are just having fun.
Rebecca Markert:
I know after this discussion, I was like at the top of the show, I said, I’m super excited about this episode, and now I feel like I kind of want to crawl back into bed and come out later. Although that’s not the answer here.
Alison Gill:
Right? No, you’re right. And I mean, I tried to convey this. We will defeat most of these bills and I just implore people, get involved, sign up for action alerts from our groups and others on these issues that you care about, and we’ll help direct where action needs to be targeted, but get to know your state lawmakers. These are all really important, but these can be defeated. I think when there’s a lot of momentum behind the bill in a certain state, they can’t always be defeated, but they can sometimes be blunted even then. So I think it’s important that we stay involved and don’t give up hope.
Rebecca Markert:
Yeah, absolutely.
Alison Gill:
Okay, let’s talk about healthcare.
So next, there are denial of care bills, and we’ve talked about these before, but basically they allow providers to deny various types of care based on their beliefs and not just providers. Some of the more recent ones are even more broad. In the early days, they used to just apply to certain types of care like abortion or sterilization or contraception. The newer ones we’re seeing across the states apply to any type of care, and they also apply to payers. And a healthcare payer is like an insurer or an employer that’s self insured. So giving them power to decide what will not be sort of paid for and covered, which I don’t think many people want their employer to decide what sort of healthcare they should get on an individual basis, which is pretty concerning. Frankly, we’re seeing denial of care bills so far in Indiana, Virginia, and Kentucky, although there might be others by now. I’m confident Virginia is not going to pass it, but the other two are pretty concerning.
Liz Cavell:
And again, this is for all the actors in the whole healthcare system. Providers, oftentimes pharmacists, individual healthcare workers, but also hospital systems, payers, Catholic-owned hospitals, whatever your little religious heart tells you is against your religious directives, not just abortion, not just even contraceptive care, but anything can be refused.
Alison Gill:
What if you want to deny services to a smoker because it’s their own fault they got cancer or single women because they shouldn’t be having children or whatever the heck you believe. You know what I mean? It’s never ending, people’s ability to criticize others’ medical choices, and this just makes it all actionable. One thing we see that’s new or that I haven’t seen before is there’s a Missouri bill, HB 1519, which is the first denial of care bill that applies only to target trans healthcare. So you can basically deny trans health. It’s not like a broad one like I talked about earlier. It’s just targeted at trans healthcare, and I think that’s meaningful or important to note because there’s been an effort by the US Catholic Bishops to add gender identity and care for being trans to what’s called the ethical directives that govern Catholic hospitals.
Those are basically rules that Catholic hospitals have to follow, and those are the reasons that Catholic hospitals don’t provide things like contraception or sterilization, and they limit abortion, for example, for emergencies. All of those things are based on the ethical directives, and they’re trying to add trans care. However, although some of those things have denial of care provisions at the federal level, which gives them some cover because basically the states have to follow federal law. And so even though there’s non-discrimination protections at state law, if the federal government said, you have to allow these denial of care carve-outs for abortion, then the states are stuck. But right now, there’s no carve-outs for trans-related care. Now, there might be in the future, but let’s consider a state like California. It has a very strong civil rights act, the Unruh Civil Rights Act that says you can’t discriminate in healthcare along with other categories on gender identity and expression, which means that if a hospital were to do so, they’d be in violation of state law and potentially liable, right? Well, this is the first bill I’ve seen that sort of creates that carve-out for transcare, and if they’re going to be adding these materials to the ethical directives, it really sets up a situation where there’s going to be legal conflict between Catholic hospitals and the states in which they live. So I don’t know how it’s going to get resolved. I think it’s going to be a major issue in the courts, and I’m very concerned because the Catholic Bishops wouldn’t be doing it if they didn’t think they could win.
Liz Cavell:
So do you know how close that is to happening in terms of the Conference of Bishops?
Alison Gill:
I don’t. I mean, I don’t really know their whole process. I know it’s definitely in process. They adopted it as sort of a stance. And then I don’t know the process by which after it’s adopted as, I don’t know, an official position, how long it takes for it to get into the ethical directives or the process for that. It’s not something I’m really aware of, but I know it’s in process. I mean, I’d be surprised if we didn’t see it within the next six months to a year.
Liz Cavell:
That’s huge because all the clashes you see at Catholic owned hospitals, which make up an alarming number of hospital systems across the country, all the clashes you see with reproductive care at these hospitals are now just going to expand into other areas.
Alison Gill:
People don’t sue Catholic hospitals around repro issues all that much anymore because they lose unfortunately.
Liz Cavell:
Right. It’s terrible because oftentimes, this, again, is affecting rural populations more because when you’re in a hospital desert, oftentimes the only hospital system anywhere within a hundred mile radius of you is Catholic-owned and under the directives of the Catholic Conference of Bishops. And so the care you can get near you is limited by Catholic doctrine.
Alison Gill:
It has a massive impact on people’s lives, and most people don’t even know that they’ve been denied care or that denial of care is taking place. You’re exactly right.
Rebecca Markert:
That’s what I was going to say too. Most of these patients don’t even realize, because they’re just going to the hospital and they’re expecting to get the standard of care that they would get anywhere, and then they don’t know that they didn’t get that care, or they’re being denied outright that care and there’s no alternative. And that’s what’s really upsetting.
Liz Cavell:
Well, to see that expand and to affect now any trans person seeking gender affirming care is scary.
Alison Gill:
Yeah, and who knows how. I mean, prohibitions against gender affirming care have always been more broadly applied against trans people more broadly. It’s always impacted other types of healthcare people get, because I mean, sometimes people will relate anything that happens to someone back to being trans. You broke your arm because of hormones or whatever. It doesn’t make any sense. But that’s often sort of how things are framed. And so things like this are used to deny care more broadly and have been for decades.
Liz Cavell:
But guys, I thought the Pope was totally chill and a progressive hero.
Alison Gill:
Well, I mean, the problem is the US Catholic Bishops define these things, not the Pope. The Pope doesn’t have a say. I think. Well, I don’t really know how the Catholic hierarchy works.
Liz Cavell:
I mean, I think Pope Francis gets the absurd secular wash from just being caught saying something remotely inclusive or kind, and it just deludes the whole lapsed Catholic world into thinking that maybe Catholicism is changing.
Alison Gill:
I heard that he did excommunicate a priest who called him the Antichrist recently. It was an American priest. So I mean, there’s definitely some between the American bishops and the Pope.
Liz Cavell:
There’s definitely some friction there.
Rebecca Markert:
There. I do see that break happening probably in our lifetimes that the US Catholic church will break from Rome.
Alison Gill:
That’d be fascinating. Wow. That’d be a really big deal. Who knows?
Rebecca Markert:
I mean, maybe not in our lifetimes, but I do feel like it’s coming, because they are so divergent. But you’re right, Liz, maybe it is just my lapsed Catholicism that thinks, oh, the Pope is so progressive, and I don’t think that he’s so progressive, but in comparison to other ones, he seems a little more chill, like you’re saying.
Liz Cavell:
I don’t think, though, I could be wrong because I actively ignore Catholic things, but I don’t think there’s any particular division even amongst Catholic leadership on trans inclusion. I think the Pope is equally abhorrent in word and deed when talking about trans issues.
Alison Gill:
I think you’re right there. Yeah, unfortunately. Of course, there’s a lot happening in abortion. We’re still seeing abortion bills introduced in some states that don’t have bans already. There was one introduced in Kansas, for example, even though they already had some recent rulings and a recent referendum, making sure that protections are enshrined in their state constitution. So I don’t really understand the point of that, but still they’re being introduced.
Liz Cavell:
That’s dedication.
Alison Gill:
We’re likely to see other bills narrowing exemptions such as including imposing more severe penalties, limiting medication abortions and or telehealth, and potentially even interfering with travel for abortion like in Idaho last year where they banned intrastate travel for a minor. So to make it more difficult to access abortion for a minor because it can’t ban interstate travel across state lines, but they banned intrastate. So taking the minor to the border is the way that they sort of tried to get around that barrier. And in some states lawmakers are running bills to put constitutional amendments on the ballot that would erase protections for abortion. And in more states, fortunately, I’m going to give one positive example here. There’s about 10 states where there are positive referendum efforts to put abortion access on the ballot. So that’s a great thing, and about 10 states are moving forward with that. So hopefully with those campaigns being successful, we’ll see more states put into law protections like in Kansas and Ohio for that matter, that have some abortion protections, even though lawmakers are doing the best they can to undermine them.
And lastly, we’re seeing increased funding for crisis pregnancy centers. And so this has been a real effort over the past few years after Dobbs. Crisis pregnancy centers are deceptive, often religious organizations that try to stop abortion. And to many, I think Republican lawmakers, they act as an excuse to show that they are caring about pregnant women, they are trying to help pregnant women. It’s like throwing aside some amount of money, which is really just going to reinforce their own message to these organizations. And they’re not really helping people, but they’re sort of able to say that they’re doing so in name while attacking women’s rights and access and health.
Liz Cavell:
And this is a really big deal from an Establishment Clause perspective, if you think the Establishment Clause should be applied to prevent funding directly to religious operations, because CPCs are truly just basically churches. I mean, they are usually ministry organizations that take the form of a faux clinic, but they’re not doing anything other than religious work. All they’re doing is basically tricking pregnant people into coming to them instead of a bonafide clinic so that they can be proselytized and talked out of having an abortion. And they’re actively engaged in disinformation. And this is all no secret. They don’t have anything to do with actual clinical staff. They’re staffed by usually employees of a religious organization or a ministry. And what those people do is provide bad information to pregnant people and steer them away from abortion access or actual full reproductive healthcare options.
Alison Gill:
And sometimes even lie to those people and say, oh, well, you’re too many weeks along to get an abortion.
Liz Cavell:
Oh, a hundred percent.
Alison Gill:
Or abortion causes breast cancer and other lives like that. You know what I mean? Yep. All the time.
Liz Cavell:
Deceptive practices are a huge part of what they do. I mean, in no way could this reasonably be compared to healthcare or providing pregnant people with any type of care or access. I mean, it is truly just direct funding to religious operations.
Alison Gill:
Well, the way they get around it through these state laws is they don’t say, well, this CPC gets X number of dollars. They say the states shall establish a program to give out funding for the purpose of reducing abortion and making sure that women know their options or whatever we want to frame it, or providing early pregnancy support to reduce need for, you can frame it in lots of different ways. And that way it’s not explicitly money directly saying it goes to religion, and then these organizations just happen to be the only ones that apply. Sometimes they’re the only ones made eligible if you craft law carefully enough. But that’s how it usually works in practice.
Liz Cavell:
Yeah, it’s a huge slap in the face to the Establishment Clause. It is public money just down the drain just going directly to advancing a religious mission.
Alison Gill:
Yeah. Yeah. Well, there were a few other bills I wanted to note that don’t really fall in a category. One, I think you wanted to mention, Rebecca, from Idaho.
Rebecca Markert:
In Idaho, they have introduced a bill that would repeal their no aid clause. It is a bill that is proposing an amendment to the state constitution to remove the no aid provision. What we were talking about before, funding to religious organizations in many, many states is prohibited under state constitutions. And Idaho is looking to repeal that. So that’s very concerning. And also something that is most likely a result of the Supreme Court rulings on funding to religious organizations and what they’ve said about those state aid clauses.
Liz Cavell:
This is interesting. It requires amending the constitution to remove that no aid language, which Alison just pointed out, means this bill is proposing creating a referendum to put to Idaho voters. I mean, this is a big undertaking. This is not just passing a law. They’re undertaking a public referendum just to remove this no aid to religious organizations language from their state constitution. I mean, that says a lot.
Alison Gill:
It’s often triggered by the same groups fighting for vouchers as well. There’s a big push I mentioned before across the country on voucher issues. And this is one of those things that sort of goes along with that because no aid causes can sometimes stand in the way of broad voucher programs. So this is one of the reasons that we’re seeing these in some states. They did all they could in the Supreme Court to sort of neuter these. And now in some states, they still have some impacts, maybe, depending on state law, but removing them sort of clears the field to do as many vouchers as they can.
Liz Cavell:
And then state courts can’t stand in their way either. Although the Supreme Court has done literally everything it possibly can to neutralize any impediments to public funding of religion.
Alison Gill:
Another thing I wanted to flag, this is newer over the last couple years, at the federal level, we’re seeing it too, but some lawmakers are really starting to take to this Christian nationalist branding and sort of portraying themselves. I think it’s Marjorie Taylor Greene, who likes to say she’s a proud Christian nationalist. And we’re seeing some of that in a lot of it, frankly, in Oklahoma with their state superintendent and a lawmaker there. State Senator Dusty Evers, I believe, or Dusty Deevers, who has this whole Christian nationalist platform, including a preborn rights bill to make, I guess, fetuses citizens so they have rights to not be murdered and other types of things like that, which is ridiculous and would have an incredibly bad impact on maternal health for one thing, and also rights. To make divorce more difficult, to vastly expand the definition and criminalize criminalize pornography. And notably, there is a spousal exception there, just so you know. Yes. Pornography is criminalized unless you send it to your spouse and then it’s fine.
Liz Cavell:
Interesting.
Alison Gill:
Yeah, no, it’s fascinating. And this one, a bill to make a false report of a crime has the same penalty as the crime. So again, making a false report of a crime is the same penalty of a crime. Who decides if a report is false? I guess the police do if they can’t prove the other crime. So better not report rape in Oklahoma because that’s quite a penalty.
Liz Cavell:
Let’s make rape in even less reported crime. There’s a good way to spend your time, state legislature.
Alison Gill:
Just gross, right?
Liz Cavell:
It’s just under reported by how many degrees of magnitude, but let’s make it never reported.
Alison Gill:
Well, it’s easier to prosecute someone for reporting because you know they reported it, so it’s a lot easier to prosecute than the actual crime.
Liz Cavell:
And then what, just putting on my criminal defense attorney hat, talk me through this trial. So I guess the substance of what’s being proven at trial is whether or not a rape actually occurred.
Alison Gill:
Well, yeah, but the burden is now on the defendant to show that their crime was not a false report, I guess to some extent, or maybe they decided, have to prove it is a false report. I don’t know. It brings up a whole bunch of ridiculous issues, but–
Liz Cavell:
Awesome.
Alison Gill:
So there we go. And some of the fun stuff happening around the country. So how do we end this on a happier note?
Rebecca Markert:
One of the questions that we always receive from our listeners is what can they do to help us? And we alluded to it a little earlier about signing up for our action alerts, but what, as an average citizen of a state where these bills are being introduced and are horrible, what can that person do to prevent those bills from being introduced, prevent them from being passed, or generally get the word out that they exist?
Alison Gill:
Sure. Well, the frontline fighting against these bills are the organizations in your state. For example, Equality Florida is the primary LBGT organization in Florida fighting for LBGT equality, right? It doesn’t matter if you’re LBGT or not. They are a great organization doing terrific work fighting against these bills. So please sign up with them. They’ll let you know where you’re most needed, and when they ask you to participate in stuff, action alerts. We’re just talking about a few clicks. Do it because that makes a huge difference. So signing up in your state to these, the ACLU in your state, the LBGT Equality Organization groups, Planned Parenthood, or NARAL, all of those are really important organizations on these issues to sign up for. And of course, Freedom From Religion Foundation, American Atheists, and we will help highlight these issues for you when they’re happening. And of course, support these groups.
I mean, it takes a lot of funding and money to oppose these bills, and there’s just such a massive onslaught, and the need is very real. So making sure that if you have capacity supporting them, I think is important, both at a grassroots level to take action and also financially. And it’ll also say if these things are going on at your local level, at your school board, at your city council, there’s nowhere easier and better for you to get involved. Like stand up if you see these bills, and you just have to go speak at a council meeting or a school board. If we don’t all say something, then the other side will mobilize their forces and we’ll make it seem like it’s a one-sided issue when it’s not. These things are fringe issues, and if we really stand up and fight them together, then we can win.
Liz Cavell:
Right on.
Rebecca Markert:
Well, I think that is a great way to end today’s episode. I am Rebecca Markert.
Alison Gill:
I’m Alison Gill.
Liz Cavell:
And I’m Liz Cavell. If you haven’t already, please follow us on our socials, Facebook, Instagram, and X. Please also remember to let us know how you’re liking the show by leaving a review. You can also find us we-dissent.org. Thanks for listening.
Rebecca Markert:
We Dissent is a joint production of the Freedom From Religion Foundation and American Atheists. It is hosted by attorneys Liz Cavell, Alison Gill, and me, Rebecca Markert. Production support comes from Greta Martens and FFRF intern Aiden Culver. Audio Engineering provided by Audio for the Arts based in Madison, Wisconsin. Thanks for listening.
