“Quis Custodiet Ipsos Custodes?” 6 Legal Quirk 11 Conundrum 14 Religion-Free School? 20 The Rosenberger Result 28 A Magazine of Religious Freedom Vol. 90, No. 6 November/December 1995 III'. < IT. E K T V Clarence E. Hodges Chairman, Editorial Board Clifford Goldstein Editor Loleta Tliomas Bailey Associate Editor James A. Cavil Copy Editor Leo Ranzolin Robert S. Folkenberg A. C. McClure B. B. Beach John Graz Consulting Editors Vemon Alger Kamik Doukmetzian Richard Fenn Samuel Green Darrel Huenergardt Ted Jones Alan Reinach Lewis Stout Adrian Westney, Jr. Consultants Wintley A. Phipps U.S. Congress Liaison Mitchell A. Tyner Legal Advisor Harry Knox Designer Meade C. Van Putten Treasurer Liberty (ISSN 0024-2055) is pub­ lished bimonthly by the North Amer­ ican Division of the Seventh-day Adventist Church, 12501 Old Colum­ bia Pike, Silver Spring, MD 20904- 6600. Printed by the Review and Herald Publishing Assn., 55 West Oak Ridge Drive, Hagerstown, MD 21741-1119. Subscription price: U.S. $6.95 per year. Single copy: U.S. $1.50. Price may vary where national currencies differ. Vol. 90, No. 6. November/December 1995. Printed in U.S.A. A Perfect Example of Why There Mustn’t Be Legislated Prayer in School I must agree with the thrust of your May/June issue. We must have school prayer in America- just as long as it is clearly stated with no reservations that ALLAH is GOD and Muhammad is his prophet! We need all American children praying to ALLAH five times a day! As you know there are many make-believe gods—Jesus, Odin, Loki, Satan, Jehovah, Shiva, Confucius, and so many more. We all know that the only true god is Allah and his prophet was Muham­ mad. Thank you for insisting that Allah be prayed to mandatorily by all American students. TIMOTHY DEVILLE Royal Oak, Michigan Clifford Goldstein’s editorial “Why Children Should Pray in School” would have been more appropriately titled with the addi­ tion of one word—“NOT!” I shouldn’t be too critical, though. At one time I held the same view, and perhaps would oppose a prayer amendment today if it were injudiciously composed. Goldstein should understand that the state’s proscription of prayer is not a neutral position. It is an anti-theistic position. Should the state abandon this position and adopt a neutral position (e.g., a moment of silence) or a pro-theis- tic position (such as a student-led prayer), the state’s position would then be congruent with (or, at least, not opposed to) Goldstein’s valid reasons why students should pray in school. Allow me to simplify this by abstracting Goldstein's reasons: Prayer helps the student to resist temptation (presumably through the help of God), sense the divine Creator, experience God’s holiness, understand God’s love, accept God’s equality in human creation, and create a consciousness of God’s presence. Well, every one of these rea­ sons is negated by the non-exis­ tence of God. And the idea of the non-existence of God is reinforced by the state's anti-theistic posture of school prayer proscription. Although the state cannot legis­ late heartfelt prayer, it can legislate a body of laws that do not militate against the schema of the Sacred. This it should do. ROBERT W. GRAVES Woodstock, Georgia Couldn't Have Said It Better Our­ selves Liberty is a consistently first- rate magazine and its editorial point of view is refreshing—and sound. More than one radio talk show host in America must be putting its nuggets of wisdom into the public conversation. JOHN WRISLEY, Host John Wrisley Program WSCQ W. Columbia, South Carolina Let Them Eat Cake I am surprised that J. Brent Walker (“Feeding the Hungry— July/August) believes that the gov­ ernment attempted to interfere with their desire to “be salt and light” to the world. First, being salt and light has to do with being an exam­ ple to the world by how you love others and reflect your love of the Lord as well as being able to exhort others to the faith of Christ and admonishing and rebuking those you love. Let us not only equate giving with love but with charity and realize that there are those who can give but have not love. AMY FLORES Los Angeles, California The Right to Be Wrong I find it of particular importance that a denomination devoted to conveying the message of love and rest found in keeping Saturday as the Sabbath, is able to print an arti­ cle exclusively devoted to preserv­ ing the rights of those who believe that Christ’s resurrection on Sun­ day somehow changed the solem­ nity from the seventh day of the week to the first. I just wonder whether an adherent to a believer in the keeping of Saturday as the Sabbath would be treated in the same fashion by Wal-Mart or the Wisconsin Labor and Industry Review Commission. Or is the problem that there are not enough devout Seventh-day Adventists 2 LIBERTY NOVEMBER/DECEMBER 1995 COVER PHOTOS BY DENNIS CREWS 111'. ( IT. seeking such positions to make it easier to accommodate the reli­ gious beliefs of devout Sunday- keeping Christians? JOHN L. ODELL, Esq. Glendora, California [Religious freedom is religious freedom, even for those who want to keep holy a day that has no bib­ lical foundation whatsoever—Ed.] Amen I feel that I must support your article “Honor the Emperor” (July/August). It was blunt but necessary! Your observation is correct: The Religious Right is not chang­ ing the world, rather it is being changed by its own worldly words and methods. The only means that can accomplish the agenda it holds therefore is force, and that means that some will suffer! I am sure that the vast majority of those supporting the movement are totally unaware of the direction in which it is taking them. Let us hope that they awaken out of their stupor before it is too late. One can appreciate more readi­ ly the significance of Proverbs 29:18: “Where there is no vision the people perish.” The counsel of God is against the union of church with the state. It can only end in disaster. GOMER EVANS Holly, Michigan I have just finished reading “Honor the Emperor,” and I must say that you sure hit the nail. Unfortunately, it was your own fin­ ger upon which you hammered so eloquently. While you appeared to be talking about one individual, you were successful in questioning the credibility of all Christians who feel a very real call to speak out in politics. Not only that, but you seemed to overlook the entire min­ istry of John the Baptist. You seem to forget that he lost his head while speaking out against the wickedness of the king, and not the poor leadership skills that he possessed, but the immoral behavior in which he was engag­ ing. I seriously doubt that John was privy to the immoral act, but he was willing to speak out on the issue of incest because he felt that he was led to do so by the leader­ ship of God. You would probably not agree with his tactics of using his pulpit, but I find no reference to Jesus telling John that he was in error by doing so. In one very telling confession, you stated that you would have no problem with the Republican Party speaking out on these matters, but you believe that Jerry Falwell is not in the proper position to make such accusations, nor is he in any position to say what others have already stated. Well you have a most curious opinion of the responsibilities of a preacher. If we as preachers are not free to call sin by its real name, and if we are not free to speak out concerning issues that are current and impor­ tant to the day, I would like to hear your ideas on what we are free to speak to. Most of the people who attend church look for knowledge, wisdom, strength, truth, leader­ ship, and direction. The main audience of Old Time Gospel is not lost people, but Christians who are looking for leadership. Also, I would like to know your opinion of the preacher’s responsi­ bility concerning church and fami­ ly. Are we to remain silent in these areas as well? Just as God ordained the church and the family, He ordained the government to preside over social interaction. I believe that it is incumbent upon us to preach the truth in all that the church, the family, and the govern­ ment does, and if any one of these institutions of God fall in some manner from the original intent of God, we must point out the wrong. I hope that you reconsider your view on these issues. If you con­ tinue to hammer on your own nails at this rate, you will soon find that you haven’t any good fingers left with which to point. Rev. KIRK JORDAN Sweetwater, Tennessee Servility DO NOT send me anymore issues of your anti-American publi­ cation you call Liberty. A better name for your magazine would be Sen////ty since it is propaganda like yours that is prefactory to the citi­ zens of this country coming under subjugation to an owner or master. LOWELL PAJARI Sandstone, Minnesota Readers can E-Mail the editor on CompuServe #74617,263. DECLARATION OF PRINCIPLES T he God-given right of religious liberty is best exercised when church and state are separate. Government is God’s agency to protect individual rights and to conduct civil affairs; in exercising these responsibilities, offi­ cials are entitled to respect and cooperation. Religious liberty entails freedom of conscience: to worship or not to worship: to profess, practice and promulgate religious beliefs or to change them. In exercising these rights, however, one must respect the equivalent rights of all others. Attempts to unite church and state are opposed to the inter­ ests of each, subversive of human rights and potentially perse­ cuting in character; to oppose union, lawfully and honorably, is not only the citizen’s duty but the essence of the Golden Rule—to treat others as one wishes to be treated. LIBERTY NOVEMBER/DECEMBER 1995 3 IAMBS f> PENTAMETERS UT 1 HERE IS NO GOD, AND MARY IS HIS MOTHERI’ The collapse of Soviet and European Communism proved that Marx’s political theories were about as viable as Ptolemy’s astronomical ones. But talk about kicking a poor theory when it’s already down ...! Last year Italian ex-Communists published a six-volume set of the New Testament. Street sales of L’ Unita, the dally newspaper of the former Italian Communist party, doubled when one of the New Tes­ tament volumes (approved, of course, by Italian bishops) accom­ panied the newspaper. The ex- Communists are promoting Chris­ tianity, they say, "to stimulate national discussion on the political and cultural level, revolving around values." If, as Karl Marx said, reli­ gion Is the opium of the people, L’Unita’s New Testament supple­ ment shows that opium sells. Broad is the “road to vic­ tory" AND MANY ARE THOSE WHO GO THEREIN: Any doubts about the New Right’s growing political gravitas should have been dispelled after the Christian Coali­ tion’s fifth annual “Road to Victory” conference. The appearance of almost all Republican presidential hopefuls at the gathering this Sep­ tember in the Capital proves that even If the 1.7 million-member Christian Coalition (CC) doesn’t control all American politics, It’s getting an iron grip on the GOP, which is exactly what it wants (at least for a short-term goal). Dur­ ing his address to the conference, Robertson cited an article In Cam­ paigns and Elections that says “the Christian Coalition, and I’m quoting them, these are not my words, Is quote ‘dominant In Republican Par­ ties in 18 states and substantial in 13 more.’ That’s 31 states.” Robertson stressed that they have more work to do because he wants control of all 50. This politicking, of course, is all done under the veneer of Christianity. Ralph Reed, CC executive director, said at the conference "we do not march beneath the name of Ronald Rea­ gan or Bob Dole, but under Him whose name is above all names.” That “Him," apparently, is Jesus Christ. Even the Washington Post, hardly a bastion of theological or spiritual sensitivity, noticed the strange mixing of the sacred with the profane. “Reed," the Post said, “who has made the Christian Coali­ tion a major player In Republican campaigns and in business-led lob­ bying drives, can say in one breath that 'our place is not in the smoke- filled room but In the mission field,’ and in the next breath explain that he is gunning for more power in the GOP than ‘the AFL-CIO or the radical feminists have over the Democratic Party.’” Didn’t the One “under whose name” they march say something about rendering to Caesar what is his and to God what is His? That’s a truth the Christian Coalition seems to have thoroughly discarded. Adherents had better take a good, prayerful look at what they’re doing or, one day, standing before the Lord they profess to be serving—some of these activists will say, “Lord, Lord, have we not won elections, and gotten electoral power, in Your name," to which He will reply, “Depart from me, ye that work iniquity, for I know you not." I hereforeweare buried WITH HIM BY BAPTISM INTO DEATH": Though Christians haven’t been too successful over the centuries in baptizing Jews, the Mormons had a better idea: baptize them after they’re dead, that way they can’t refuse (Mormon theology teaches that the dead can be “saved” if someone else is bap­ tized in their place). When Jewish leaders learned that proxy baptisms had been performed for 380,000 Holocaust victims, they expressed outrage to the Mormon Church, which said that the baptisms had been unauthorized and agreed to purge the names from its records. However insulting the procedure to the Jews, and however nonsensical and unbiblical baptism for the dead is, at least the immersions weren’t done on behalf of the thousands of Jews murdered for—refusing bap­ tism. The separation of kirche UND STADT: Germany’s highest judicial body, the constitutional court, struck down a law that man­ dated the placing of crucifixes in all public schools in the Roman Catholic enclave of Bavaria. Though Bavarian officials claimed ILLUSTRATION BY RAY DRIVER 4 LIBERTY NOVEMBER/DECEMBER 1995 IAMBS t PENTAMETERS that the crucifixes were symbolic of piety and Western values, the court said that public schools throughout all Germany must reflect the state’s neutrality toward religion, and that crucifixes—clearly a Roman Catholic symbol—don’t meet that legal standard. Sounding like some eminent American jurists, Bavarian Governor Edmund Stroiber echoed the insensitive argument that “the mere presence of a cross doesn’t force anyone to accept Christian beliefs." Of course, the tens of thousands of non-Christian school children in Bavaria (the only German state that places crucifixes on the walls of classrooms) might not be forced by the “mere presence” of the cru­ cifixes to accept Christian beliefs, but these children, primarily Mus­ lims, are nevertheless made to feel like religious outsiders in a system that supposedly doesn’t discrimi­ nate on the basis of religion. State education guidelines in Bavaria stress that children should be taught to “respect the Lord.” Fine. But didn’t the Lord they want chil­ dren to respect say, “Do unto oth­ ers as you would have others do unto you”? Lower court overturns HIGHER (AND WE MEAN HIGH­ ER) LAW: Ignoring 3,000 years of history, the Colorado Supreme Court stripped the Ten Command­ ments (the law of God written on stone at Mount Sinai amid thunder and lightning) of their religious sig­ nificance. Reversing a lower court—which concluded that the Ten Commandments were religious in nature and thus their placement in a Denver state park violated the Establishment Clause—the high court said that the monument was, basically, secular. The original suit, filed by the Freedom from Religion Foundation, claimed that the model of the Ten Commandments, erected by the Fraternal Order of Eagles Aerie 2036 in 1956 (see Liberty, July/August 1994) violated the sep­ aration of church and state. The trial court found for the state, but the court of appeals, applying the three-part Lemon test, reversed. The state supreme court, however, said that the Ten Commandments served as a “historical, jurispruden­ tial cornerstone of American legal significance” and should remain. This ruling proves what separa- tionlsts have been saying all along, that using the state to promote reli­ gion ultimately denigrates religion. At least the court didn’t order a plastic reindeer to be erected next to the monument. (lOOD-BYE GOOD FRIDAY Since 1941, Good Friday has been an Illinois state holiday, a day “charged with special meaning to multitudes throughout the Christian world.” Though rescinded as a state holiday in 1989, it remained a paid one for elementary and sec­ ondary schools. That Is until a schoolteacher sued the state, argu­ ing that as a taxpayer she shouldn't be required to fund a religious holi­ day. After legal wrangllngs, the Seventh Circuit Court of Appeals ruled that the holiday violated the Establishment Clause. The court argued that, unlike Christmas, Thanksgiving, and even Easter, Good Friday has no secular rituals associated with it (no bunnies or elves), but remained a day of “solemn religious observance” for Christians. It ruled, too, that clos­ ing the schools on that day accord­ ed special recognition to Christiani­ ty, another violation of the Consti­ tution. The court noted that they could circumvent the decision sim­ ply by adopting a “spring weekend” rationale for Good Friday instead of keeping the religious one. In other words, rather than just doing it yourselves out of sincere religious convictions, the state will gladly help you along, but only after you do to Good Friday what Colorado did to the Ten Commandments. Sadly enough, some so-called Christians would find that exchange agreeable. The education ofwal- MART: Theology student Scott Hamby recently preached one pow­ erful sermon to Wal-Mart regarding religious liberty. The 23- year-old reached an out-of-court settlement with the nation’s largest retailer, whom he had sued for $5 million in November 1993 because of religious discrimination. Hamby had worked in the electronics department of a Wal-Mart store In Bolivar, Missouri, and was forced to work on Sundays, despite asserting that Sunday work violated his religious principles. Wal-Mart denied any wrong-doing in the case, and said that it was an hon­ est mistake by a local store manag­ er. Though the amount of money he received was undisclosed, the settlement also calls for Wal-Mart to educate its 2,000 store man­ agers and regional trainers about religious discrimination and the accommodation of employees’ reli­ gious rights. This wasn’t the first time that Wal-Mart had been taken to court—and lost (see Liberty, July/August 1995) over the issue of Sunday work for employees who won’t work on Sunday. Maybe now the chain will catch on: employees have religious rights. Moving? Please notify us 4 weeks in advance Name Address (new, if change of address) City State Zip To subscribe to Liberty check rate below and fill in your name and address above. Payment must accompany order. □ 1 year $6.95 Mail to: Liberty subscriptions, 55 West Oak Ridge Drive, Hagerstown, Maryland 21740 ATTACH LABEL HERE for address change or inquiry. If moving, list new address above. Note: your subscription expiration date (issue, year) is given at upper right of label. Example: 0395L1 would end with third (May-June) issue of 1995. LIBERTY NOVEMBER/DECEMBER 1994 5 6 LIBERTY NOV ;u c D c ■ c l-J? ff An Alabama Judge’s Tangle With the First Amendment Rekindles the Old Roman Question “Who Guards the Guardians Themselves?” BY LAURIE L. LATTIMORE udge Roy S. Moore—under fire in Alabama for displaying the Ten Commandments in his courtroom and offering a prayer before jury selection—could not contain his adrenaline as he talked of the reli­ gious influences on America’s Founding Fathers. Fie flipped through a thick, black three-ring binder full of documents that contributed to the framing of American democracy. With ease and authority, the judge rapidly recalled quotes from Thomas Jefferson, James Madison, and George Washington. Fie recited numerous references to the Almighty from important court cases, proclamations, and speeches. And, of course, he quoted the Bible. Laurie L. Lattimore is a graduate student in journalism at the University of Alabama in Tuscaloosa. MBER/DECEMBER 1995 “Washington actually issued a national day of prayer and thanksgiving to ... God for His guidance in forming a government,” the Etowah County circuit judge said, striking his fist across the page as though he had historical, if not divine, support for his position. Quoting the first U.S. president, Moore read, ‘“Whereas it is the duty of all nations to acknowledge the providence of... God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favor’.... For me to acknowledge God in my courtroom is not a violation of my duty—it is my duty.” Moore’s insistence on doing his “duty” has made him the target of a lawsuit by the Ameri­ can Civil Liberties Union of Alabama, which claims that Moore’s acknowledgment of God in the courtroom violates the First Amendment protection against the establishment of reli­ gion. The ACLU, in conjunction with the Alabama Free-Thought Association and three Etowah County citizens, filed suit against Judge Moore in federal district court March 31. The plaintiffs claimed their First Amendment rights are violated because the courtroom prayers and Ten Commandments displayed on the court­ room wall represent an establishment of reli­ gion. Their suit didn’t go far. A federal judge in Birmingham ruled in July that the plaintiffs supported by the ACLU who brought suit were not in legal standing, meaning they had not shown imminent injury to justify a legal com­ plaint. Judge Robert Propst had dismissed the case without prejudice, ruling against the plain­ tiffs but not against the merits of the case. Moore held a press conference July 7 to cel­ ebrate this small victory in his legal battle to continue courtroom prayers and allow Moore’s hand-carved Ten Commandments to remain above his bench. The simple wood plaque occupies an empty wall next to the Alabama state seal. Following the ruling, Judge Moore’s court­ room—adorned with copies of the Declaration of Independence and the Mayflower Compact of 1620, plus portraits of Washington and Abraham Lincoln—was packed with support­ ers. Sporting a Ten Commandments button and waving an American flag, one gentleman yelled from the back of the room, “It’s Good Friday!” “We sent the ACLU a strong message today. They have bitten off more than they can chew,” Dean Young, media coordinator for Moore’s defense, told the crowd. “Judge Moore is a man Judge Moore at a press conference: “It Is never wrong to acknowledge God In public, In private, or anywhere, and those who think it is are clearly wrong.” who stands on principles. The ACLU has made a big mistake.” Moore was more direct in his condemnation of the ACLU’s position. “It is never wrong to acknowledge God in public, in private, or any­ where, and those who think it is are clearly wrong,” he said. “People have been deceived.” The ACLU is deciding whether to appeal Propst’s decision or to find new plaintiffs who will satisfy the judge. “Moore won the first round, but there are eight more innings to go,” said Martin McCaf- fery, vice president of the ACLU of Alabama. No matter what the ACLU does, Moore and his team are ready for the fight. In fact, he invites the challenge. “The ACLU can find all the plaintiffs they want. We will fight this all the way to the Supreme Court, and I think we will be success- ful,” Moore said. “People everywhere should be standing up and saying, ‘This is not establish­ ment of religion.’ We are one nation under God.... In God we trust. These are not things we just say.” Anyone close to Moore knows better than to second-guess his resolve to fight. He shrugs his shoulders at the thought of this court battle being a magnificent testimony to his religious convictions. “When you do what you believe, you are going to run into problems,” the judge said. Problems don’t deter the three-year judge, who has made a career out of overcoming dis­ appointments. It’s the setbacks in his life that give Moore the will to stand up for God—in his home, in his church, and most definitely in his courtroom. As a West Point Academy graduate, a Vietnam veteran, and a trained professional in full-contact karate, Moore is no stranger to conflict. But this court battle is not just about prevailing in another conflict. To Moore, it is about standing up for the God who has stood by the judge even at his lowest moments. Growing up in a poor Christian home in Gallant, Alabama, Moore became accustomed to working hard. Wearing mostly hand-me- downs and cleaning tables to earn money for his high school lunches, Moore took his work MBER/DECEMBER 1995 The Ten Commandments on the wall of Judge Moore’s courtroom: An establishment of religion? ethic to West Point Military Academy. Upon graduation in 1969, he shipped off to Vietnam. Not a particular fan of war, Moore noted that fighting was his sworn duty, and there was no room for argument. When he returned from Vietnam, Moore attended the University of Alabama Law School, where he graduated in 1977. Moore became the first full-time deputy district attorney for Etowah County, a post he held for five years. In 1982 Moore lost the bid for Etowah County circuit judge, a campaign race that went beyond the usual political mudslinging. Moore publicly attacked the incumbent judges with ads promising an end to favoritism and corruption in the Etowah County court system. Four circuit judges filed a complaint with the disciplinary commission of the Alabama State Bar Association, charging Moore with slander. Although Moore eventually won his case and retained his license to practice law, he was despondent—out of a job and deplete of sav­ ings. He moved to Galveston, Texas, for nine months to study full-contact karate under Ish- mael Robles, the Professional Karate Associa­ tion U.S. welterweight champion at the time. After a 1984 victory in his first “kick boxing” match in Gadsden, Alabama, Moore tried a new adventure. He trekked through the outback of Australia for five months. When Moore returned to the United States, he began a private law practice. He also started writing religious and inspirational poetry, an extracurricular activity that introduced him to his wife, Kayla, during a poetry reading at her church. The two have four children: Heather, 11; Roy, 7; Caleb, 4; and Micah, 21 months. In 1986 Moore lost another election for dis­ trict attorney but got a political career boost in 1992 when then-governor Guy Hunt appointed Moore successor to the late county circuit judge Julius S. Swann, Jr. In November 1994 Moore was reelected to the judgeship. It was his 1994 campaign in which Moore made an issue of displaying the Ten Commandments in his courtroom. “I was out, and God brought me back to the top of the system. I didn’t do it,” Moore said, recalling the recent past. “God simply put me here, and I’m not afraid to acknowledge Him.” Reflecting on the case in his chambers fol­ lowing the press conference, Moore was agitat­ ed by what he considers to be the moral degra­ dation of America. “The real problem we face in society is groups like the ACLU who have led people to believe the acknowledgment of God is improp­ er, is a violation of the First Amendment or of the doctrine of the separation of church and state,” Moore said. “They don’t even know what that is, and they have led others to believe it is something it is not. We have to stand up and say we know that without God we are going to lose this country.” Moore contends that God has been pushed out of His rightful place in American society. But while Moore considers it his duty to pro­ claim God’s influence in American democracy, his opponents argue for religious liberty that neither prohibits nor promotes religion. They don’t deny Moore’s right to his religious beliefs, but they protest his endorsement of religion while serving in an official government role. McCaffery of the Alabama ACLU said the case against Moore is simply to stop the gov­ ernment from telling people when, where, and how to pray. When the judge invites a member of the clergy into the courtroom to pray, he rep­ resents government endorsement of religion to a captive audience—a clear violation of the First Amendment protection against govern­ ment establishment of religion. Likewise, the ACLU contends that the jurors have no choice in their exposure to the Ten Commandments plaque on the courtroom wall. Joel Sogol, a private attorney in Tuscaloosa, Alabama, who is a cooperating attorney with the ACLU in the case against Moore, said the ACLU became aware of courtroom prayers in Alabama through citizen complaints. In 1994 Alabama Supreme Court chief justice Sonny Hornsby sent a letter to all circuit judges warn­ ing them of potential lawsuits for prayers in the courtroom. The ACLU filed suit in March against Judge Moore when he made a campaign issue out of acknowledging God from the bench. Governor Fob James, Attorney General Jeff Sessions, and the Alabama legislature have publicly stated their support for Judge Moore’s stand. The governor also approved the state paying $85 an hour to offset the legal fees of Albert L. Jordan, Moore’s attorney. After the ACLU filed suit in federal district court, the state of Alabama filed for a declara­ tory judgment in state court. Such judgment is requested by the state to seek the court’s posi­ tion on the issue of prayers in the courtroom. That case is still pending in the Montgomery circuit. McCaffery noted that the ACLU is less confident of the outcome there because state court justices are more susceptible to public opinion than to previous case law, Sogol said. But while both sides await the Montgomery circuit judgment and the next move in the fed­ eral case against Judge Moore, each party main­ tains it can win on the merits of its position. McCaffery and Sogol point to recent federal cases that have ruled on similar religious liber­ ty cases. Moore and Jordan maintain that two 1995 Alabama cases are more controlling. They also consider cases supporting the tradition of prayers in U.S. Congress and state legislatures to have bearing on this case. J. Brent Walker, general counsel for the Bap­ tist Joint Committee on Public Affairs in Wash­ ington, D.C., stated that the initial debate exists in deciding which standard the court uses to determine whether the First Amendment Establishment Clause has been violated. In the 1971 Supreme Court case Lemon v. Kurtzman, the Court established a three-part test to deter­ mine if a government establishment of religion existed. Walker said while the Supreme Court has based a recent religious liberty cases on the Lemon test principles without officially invok­ ing the test, most lower federal courts and state courts follow the three-pronged test. “According to the Lemon test,” said Walker, “the action is unconstitutional if it serves a reli­ gious purpose; if it advances or inhibits reli­ gion; and if there is excessive government entanglement with religion. If an action fails any part of the test, it is considered to be unconstitutional.” Two federal circuit courts have recently applied the Lemon test to similar religious lib­ erty cases, both of which the ACLU argues are controlling in the case against Judge Moore. In 1991 the Eleventh Circuit—of which Alabama is included—ruled a North Carolina judge vio­ lated the Establishment Clause when he opened each court session with a prayer. More recent­ ly, the Fourth Circuit found in 1993 that the Cobb County (Georgia) courthouse failed the second prong of the Lemon test and violated the First Amendment by hanging a framed panel of the Ten Commandments in the building. Albert Jordan cited two pending state cases that separately consider the same issues as the suit against Moore. The outcome of those would have more control on the judgment of Moore’s state court case, Jordan hypothesized. But even if the federal case eventually goes to court, Jordan said they will argue for the court to apply the historical test. In the 1983 Marsh v. Chambers case, the Supreme Court upheld the Nebraska legislature’s practice of opening each day’s session with a voluntary prayer. The LIBERTY NOVEMBER/H eCEMBER 1995 9 ft. • Lemon test is applied to their case, they should prevail. “I don’t think the Lemon test is valid,”Moore said. “If I tell someone there can be no refer­ ences to God, I have just established a reli­ gion—atheism. If we exclude God, we are establishing religion, and the Lemon test excludes God.” Walker maintains that a zone of neutrality toward religion can be accomplished. “I disagree 100 percent with the idea that the Lemon test excludes God. It ensures neutrality,” he said. Walker added that in spite of the refer­ ences to God in the Declaration of Indepen­ dence, the Constitution and Bill of Rights, which govern the United States, are decidedly secular. The only mention of religion in the Constitution falls under Article VI, where it prohibits any religious requirement for public office. In the Bill of Rights, prohibition of state- imposed religion in the First Amendment is the only reference to religion. McCaffery of the ACLU chides Moore for referring to the preamble of the Alabama con­ stitution, which mentions the favor and guid­ ance of God invoked in the process of drawing up a state constitution. “But he doesn’t say any­ thing about Section III. There it says no one is compelled by law to be in a place of worship. When Moore invites clergy to pray, he has made the courtroom a place of worship,” McCaffery said. Despite the strong convictions from those who disagree with Moore’s crusade, the judge can’t deny his equally strong convictions that the acknowledgment of God has been wrong­ fully shut out from society and illegally banned from places such as his courtroom for too long. As he rattles off Proverbs 3:5, 6: “Trust in the Lord with all your heart and lean not on your own understanding; in all your ways acknowl­ edge him, and he will make your paths straight” (NIV)A the judge notes in the same breath that people should memorize the Declaration of Independence. “The Framers turned to God in a time of crisis in America,” Moore said. “God created us. He gave us life, liberty, and the pursuit of hap­ piness. How can we say that to acknowledge God is establishment of religion?” IS Court determined that sessions of Congress had been opened with prayer for more than 200 years and the Nebraska Legislature had done so for more than 100 years. This tradition of prayer, the Court said, represented a “tolerable acknowledgment of beliefs widely held among the people of this country.” However, the state legislature is different from a court, rendering the Marsh standard less appropriate. At the statehouse, everyone pres­ ent is an adult and has voluntarily chosen to lis­ ten to the prayer. People in court are there under compulsion. In Stone v. Graham, the Supreme Court ruled against a Kentucky statute requiring schools to post the Ten Com- Judge Moore supporters celebrating an early victory: “We have sent the ACLU today a strong message.” mandments. Similar to a courtroom, school attendance is required. Although the issue is not clear-cut for prayers or the display of the Ten Command­ ments, prayers in the courtroom are more problematic when it comes to religious liberty. The Ten Commandments have many secular attributes because they represent one of several influential documents on law and order in the world. People must often physically go read them and there is no obvious state endorse­ ment of those laws. Prayers in the courtroom, however, are a major concern. “Part of me says the prayers are part of who these public officials are, but a judge—a person with life and death powers, sitting at the bench wearing a robe and acting on the authority of the state—who gives a prayer or delegates one to be given is a problem,” Walker said. Jordan and Moore feel that even if the *Texts credited to NIV are from the Holy Bible, New International Version. Copyright 1973, 1978, 1984, International Bible Society. Used by permission of Zondervan Bible Publishers. The ACLU Versus Judge Thomas Quirk Over Sentencing Defendants to Church BY JOE COOK Joe Cook is executive director of the American CMI Liberties Union of Louisiana. n a Friday night in Lake Charles, Louisiana, Gregory Thompson was pulled over in his pickup for doing 07 in a 45 mph zone. His slurred speech and bloodshot eyes made the officer suspect • that Gregory was drunk, and when he failed a field sobriety test, Gregory spent I the night in jail on his first DWI charge. He never dreamed, however, that escapade would, 10 months later, prompt a judge to mete out a “sentence to church” for additional punishment. Jail was one thing. But church? That was another. “The sentence Judge Quirk imposed upon me to attend church was unreasonable consid­ ering that I’m not a member of any denomina­ tion,” said Gregory. “I think this violates my constitutional rights for freedom of religion.” So does the American Civil Liberties Union, which went to court to fight against church attendance as a form of court-imposed punish­ ment. “The issue is the oath that lawyers and judges take to uphold the Constitution,” said Walter Sanchet, one of the ACLU lawyers that handled the case. “Though church attendance is a benefit of a free society, one of the reasons we’ve been successful in maintaining that free­ dom is we don’t give government the power to control it.” At first, church attendance wasn’t an issue in the case of the State of Louisiana v. Gregory Thompson. In his first encounter with Judge Thomas P. Quirk, Gregory—facing the DWI charges—stood before the bench as the judge looked down and explained the options. Based on what he heard, Gregory pleaded no contest and hoped for mercy and leniency, though he didn’t get much of either: a year’s probation with conditions that included a $400 fine plus costs, defensive driving class, substance abuse counseling, community service, and loss of dri­ ving privileges for 12 months. As a recently divorced 23-year-old bricklayer, temporarily living with his parents in Sulphur, Gregory needed a driver’s license, but hitching rides would have to suffice. He didn’t think doing this much “time” fit the crime, because, “I didn’t, after all, hurt anybody.” Nevertheless, free world restrictions would beat life behind bars. Gregory resolved to do his best and get off probation by October of 1994. The Safety Council of southwest Louisiana, across the street from the courthouse, acted as an officer of the court in administration of the sentence. Gregory reported to the Safety Council, which LIBERTY NOVEMBER/DECEMBER 1995 11 sent him to the sewage treatment plant to do cleanup work as part of his community service sentence. Though he was getting his money for the fine in on time, the Safety Council advised the court in June of 1994 that Gregory hadn’t com­ pleted his defensive driving or substance abuse courses. Gregory was a construction worker and sporadic winter work left him short on cash; therefore, he didn’t have the money to pay for the courses. Thus, in June of 1994, Gregory found himself again before Judge Quirk for probation violation. Gregory told Judge Quirk about his financial problems, then the transcript tape picks up with Judge Quirk’s remarks: THE COURT: If you can’t pay the fine, you do the time. It’s that simple. This is your first time back also. You’ve heard my com ments about the rest. I don’t think I need to add anything to it other than I give everybody the alt— the choice. Y’all make the choice. Not me. I know a lot of people blame me because you’ve got the choice to do or not to do. All that I do is send people to jail if they don’t do it. I’m going to let you resign today, and I’m going to add the requirement of church once a week. Where do you go? DEFENDANT (inaudible): church. THE COURT: Fine. Don’t come back to court and if you do come back to court bring your toothbrush and your comb. According to Gregory, the inaudible part should state “I don’t attend any ‘church,’” but that Judge Quirk ignored the statement and ordered him to attend anyway. “There were a number of others in the same court session receiving the same type of church sentence,” said Gregory, “even one for violating the leash law. Several of those people expressed to me the same disbelief that I had— I felt vio­ lated because a judge should have been follow­ ing the law, defending my rights and not taking them away.” Frustrated, Gregory Thompson returned to the Safety Council office with his revised marching orders, where he registered for the remaining classes and was given six months of church cards. Each card read “Verification of Attendance at Church. Present this card to the minister or other church official before the church begins and ask them to date, sign, and return to you afterward. You should plan to attend as ordered by the court. Reports of attendance are to be sent monthly to the Safety Council.” This was just too much. Ever since his teenage days Gregory had had a sense of civil justice. He once complained in high school about the unfairness of allowing girls to wear earrings and not guys. Knowing that church attendance or nonat­ tendance should be a right, not subject to a judge’s discretion, Gregory fought back. He remembered reading about the American Civil Liber­ ties Union in his World Book Encyclopedia as a high school freshman in 1984. He called the ACLU office in New Orleans a few days after the court hearing. The ACLU took the case, at no cost to Gregory, arguing that Judge Quirk’s actions, taken under the color of law, consti­ tuted an establishment of religion and a deprivation of Mr. Thompson’s free exercise rights. The legal strategy, worked out by pro bono ACLU lead counsel Marjorie Esman, began on November 21,1994, when the ACLU sponsored a state writ in the Third Circuit Court of Appeals to overturn a “sentence to church” of Gregory Thompson by Judge Quirk. This would help protect Gregory from a probation revocation and possible jail time by Judge Quirk when Gregory refused to go to church. On the same day, the ACLU commenced a fed­ eral lawsuit against Judge Quirk and the Safety Council of southwest Louisiana. The federal suit cited United States and Louisiana constitu­ tional prohibitions on an establishment of reli­ gion and the citizen’s right to free exercise of religion. For relief, the suit asked “for a prelim­ inary and permanent injunction prohibiting defendant Thomas Quirk from ordering any other defendants to attend church or any other religious organization or ceremony, or in any 12 LIBERTY NOVEMBER/DECEMBER 1995 By the time of the writ, as many as 400 other defendants had been sentenced to church by Judge Quirk. way imposing religion on anyone who appears in his courtroom.” By the time of the writ, as many as 400 other defendants had been sen­ tenced to church by Judge Quirk. The ACLU suit also requested injunctive relief “prohibiting Defendant Safety Council from enforcing any sentences or orders which require individuals to attend church or any other religious organization or ceremony, or in any way enforcing the imposition of religion on anyone whose sentence it enforces.” Further­ more, the complaint revealed that when Grego­ ry had asked an employee of the Safety Council what kinds of churches would be acceptable to the terms of the sentence, the employee responded, “It had better be a Christian church.” Eight days after the legal action against Judge Quirk, he called Gregory back into court and advised him that he had successfully com­ pleted his probation a month earlier on Octo­ ber 26, 1994. That effectively ended his “sen­ tence to church,” even though the Safety Coun­ cil had sent him an additional supply of church attendance cards to last through April 1995. Curiously, the cards showed a postmark of October 21,1994—five days before the date set by Judge Quirk as the end of his probation. Essentially, Judge Quirk had wriggled out of the state writ and the federal suit by using an obscure article of the Code of Criminal Proce­ dure that allows the court of jurisdiction to “correct an error or deficiency” in the record. The so-called error came to light only after the ACLU filed suit. Then, six days after he ended Gregory’s sen­ tence to church, Judge Quirk sent a letter to hundreds of defendants who had received an “alternative of attending church in lieu of other penalties.” In the letter he said that “in view of the recent controversy, the court is affording anyone who has an objection to church atten­ dance the opportunity to be resentenced” (it’s not likely that anyone responded, because resentencing could entail jail time or an addi­ tional fine). The letter from Judge Quirk tacitly acknowl­ edges that he had no legal authority to mandate church attendance in the first place. State and federal law showed clearly that he had erred. A 1984 First Circuit Court of Appeals decision (State v. Morgan) said, .. probationary term, requiring defendant to regularly attend an organized church of his choice, violated the establishment clauses of the United States and Louisiana constitutions.” Despite the legal precedence prohibiting a “sentence to church,” the threat of further legal action should another plaintiff come forward, and a pending complaint before the Judiciary Commission of the Louisiana Supreme Court, Judge Quirk proceeds to coerce defendants to church by “offering” an alternative of a sentence to church. The “quirky” judge—who once owned a bar called The Reef, and who has a sign on his door that reads “God’s law has no loopholes”—has apparently found a few loop­ holes in man’s instead. “I’m not going to stop,” he said about the unusual offer of church as punishment, “until the courts tell me I’ve got to.” The ACLU of Louisiana wants a judge to do just that, to tell Judge Quirk that he has “got to” stop using the power of the state to coerce peo­ ple into going to church. But that doesn’t appear likely to happen any time soon. In a set­ back for the ACLU, the federal court granted immunity to the Safety Council as an officer of the court and dismissed all claims in the ACLU suit except the mandate for a “Christian church” and the mailing of additional cards for use after the revised expiration of probation. That case is pending. For now Judge Quirk can continue to use church as an option for sentencing. He’s con­ vinced that he’s doing right, even if the defen­ dants don’t really want to attend church. According to Judge Quirk, described by the New York Times as a “friendly, sad-featured plug of a man,” the idea of church came to him as he was trying to decide what to do with some repeat drunk-driving defendants who faced his bench. Churches, he said, “are always there, they meet regularly, and they teach moral values.” Whatever his motives, the Louisiana ACLU finds Judge Quirk’s actions repugnant to the rule of law and religious freedom—a matter of conscience and a fundamental right not subject to majority vote. Not willing to let the matter die, the Louisiana ACLU persists in seeking another plaintiff with standing (Gregory Thompson’s case was moot because his proba­ tion had ended)—one under a “sentence to church” by Judge Thomas Quirk, through whom the ACLU can continue to challenge this violation of both the Free Exercise and Estab­ lishment Clauses of the First Amendment. Attendance at church should be a free and voluntary choice of the faithful, not coerced or required by a judge as punishment for a crime. 0 LIBERTY NOVEMBER/DECEMBER 1995 13 A Church-State Expert Warns About the Danger of Trying to Relieve the Underlying Tension Between the Religion Clauses BY DEREK few years ago, when the New York state legislature created a special school district for a sect of Hasidic Jews in order to allow them to receive aid for children with special education needs, two New York School Board mem­ bers filed suit, claiming that the creation of the dis­ trict violated the Establish­ ment Clause. The village contended, however, that the school district merely accommodated the secular needs of its children with disabilities, was essential to pre­ serving the village’s cultural and religious dis­ tinctives, and was therefore protected by the Free Exercise Clause.1 This case illustrates the basic tension, or conflict, between the competing claims of the First Amendment’s two religion provisions: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Establishment Clause prohibits government from advancing or endorsing religion; the Free Exercise Clause prohibits government from placing restraints on the free exercise of religion. One clause expresses a tradition of freedom from religion, the other one of freedom of reli- H . DAVIS gion. Though the underlying tension has always existed, rulings over the past few decades—in which the Court has broadly inter­ preted both clauses—have exacerbated the clash between the two. How can government successfully achieve both requirements? The conundrum of the clauses surfaced more than three decades ago. In 1963^ in Abington School District v. Schempp,2 the Supreme Court announced two guidelines for evaluating whether a state action violates the Establishment Clause: if the state action either (1) has no secular purpose, or (2) has the pri­ mary effect of advancing or inhibiting religion. In Schempp, the Court used these guidelines to invalidate teacher-led Bible reading and recit­ ing of the Lord’s Prayer in public schools. These guidelines sealed for the Court its broad interpretation of the Establishment Clause, because the Court said that the state acting as a purveyor of religion in general, not just a par­ ticular form of religion, violates the Establish­ ment Clause. Seven years later, in Walz v. New York Tax Commission,3 the Court added a third guide­ line: if a state action creates “excessive entan­ glement” between religion and government, the Establishment Clause is violated. In 1971, in Lemon v. Kurtzman,4 the Court affirmed its commit­ ment to these guidelines by for­ mally combining them into the Derek H. Davis is editor of the Journal of Church and State, Baylor University, Waco, Texas. 14 LIBERTY NOVEMBER/DECEMBER 1995 THESE BROAD REMIS OF Nil CLAUSES MYEMNESMHf COimilBITED TV TH£ COHFLICT BEIWEEH THE RELIGION clauses m y pm TOMY IN MIRY CHURCK STHTE “Lemon three-part test.” Though not always consistently applied, the Lemon formula unde­ niably rests on a broad interpretation of the Establishment Clause and has been repeatedly used to proscribe governmental advancements of religion. Ironically, it was also in 1963 that the Supreme Court settled on a broad interpreta­ tion of the Free Exercise Clause. The Court held in Sherbert v. Verner5 that government can restrict religious freedom only when it has a compelling interest and when there is no less intrusive alternative available to achieve the state’s goals. In Sherbert the Court found that the state of South Carolina failed to show a compelling state interest in denying unemploy­ ment compensation to a Seventh-day Adventist whose employment re­ quired her to work on Saturdays. Since 1963 the Su­ preme Court has fol­ lowed the Schempp and Sherbert precedents (al­ beit with several excep­ tions) by giving broad interpretations to both clauses. Yet these broad readings of both clauses have unquestionably contributed to the con­ flict between the religion clauses that is apparent today in many church- state controversies.6 By most accounts, the Establishment Clause’s purpose is to prevent government from advancing or endors­ ing religion, the Free Exercise’s to protect the practice of religion from government interfer­ ence. These are the core values of the religion clauses. The Supreme Court’s aim to fully implement these purposes led to the broad interpretation of the two clauses, which culmi­ nated in Lemon and Sherbert. This develop­ ment has created a paradox that several of the justices and a host of legal scholars have since sought to resolve by giving narrow construc­ tions to one or both of the religion clauses. Chief Justice William Rehnquist, for exam­ ple, has proposed a solution by giving narrow constructions to both clauses. In Thomas v. Review Board of Indiana Employment Security Division,7 the Court required the state of Indi­ ana to pay unemployment compensation to a Jehovah’s Witness who quit his job for religious reasons after being transferred to a department that made turrets for military tanks. The Court upheld the worker’s free exercise claim, held that there was no establishment of religion in doing so, and justified its holding on the basis of “neutrality in the face of religious differ­ ences.”8 Rehnquist dissented, complaining that the decision “adds mud to the already murky waters of First Amendment jurisprudence.”9 For Rehnquist, the Court’s ruling was wrong for fundamental reasons: “The decision today illustrates how far astray the Court has gone in interpreting the Free Exercise and Establish­ ment Clauses of the First Amendment. Although the Court holds that a State is consti­ tutionally required to provide direct financial assistance to persons solely on the basis of their religious beliefs and recognizes the ‘tension’ between the two clauses, it does little to help resolve that tension. . . . Instead it simply asserts that there is no Establishment Clause violation here and leaves tension between the two Religion Clauses to be resolved on a case-by-case basis. ... I believe that the ‘ten­ sion’ is largely of this Court’s own making, and would diminish almost to the vanishing point if the clauses were properly interpreted.”10 Regarding the Free Exercise Clause, Rehn­ quist found no violation because the state of Indiana—in the interest of legitimate secular goals—had enacted an unemployment statute that provided no exemptions for religious rea­ sons. Thomas was not singled out in the statute, and there was no reason for the Court now to single him out for special exemption. The state had the right to make its own judg­ ments, according to Rehnquist, about any exemptions it would or would not grant. As far as the Establishment Clause goes, Rehnquist wondered why the Court had not applied Lemon to the case. “If Indiana were to legislate what the Court today requires—an unemployment law which permits benefits to be granted to those persons who quit their jobs for religious reasons—the statute would plain­ ly violate the Establishment Clause.”11 It is apparent that Rehnquist is simply call­ ing for a narrower interpretation of both reli­ gion clauses. It is an approach in which gov­ ernmental authority may legislate aid to reli­ gion without violating the Establishment Clause, provided the aid is granted nonprefer- entially or there is a valid secular purpose behind the legislation. Any resulting conflict 16 LIBERTY NOVEMBER/DECEMBER 1995 Ill I JfUNBERVBLUIIG FREE EXERCISE VUES, IMPORTBIiï OMBISIOHS Of REUGIOUS LIBERTY ORE DROMHUCRLLY FORFEITED. with free exercise would likely be resolved in favor of governmental authority. Rehnquist’s narrow interpretation of the Free Exercise Clause was actually implemented in Employment Division of Oregon v. Smith, when the Supreme Court ruled that the state of Oregon is not required to exempt the sacra­ mental use of peyote from criminal sanction. In the process, the Court overruled the Sherbert “compelling state interest test” in favor of one that subordinates religious liberty claims to neutral laws of general applicability. Thus Sherbert’s broad interpretation of the Free Exercise Clause was replaced with Smith's nar­ row interpretation. Fortunately, Congress rec­ ognized that Smith placed religious practices, especially those of religious minorities, at the mercy of legislative authority, and it reinstated the Sherbert standard by passing RFRA in 1993. Smith was also a victory for those who sought to relieve the tension between the reli­ gion clauses by a second means, that is, by giv­ ing a narrow construction to the Free Exercise Clause. A number of constitutional scholars12 contend that the Establishment Clause pro­ hibits legislatures from granting exemptions from generally applicable laws, but also that courts should not grant religious exemptions. Their interpretation of the Establishment Clause strongly protects against legislative advancements of religion, but their interpreta­ tion of the Free Exercise Clause is unsympa­ thetic to religious groups seeking relief from neutral laws. By undervaluing free exercise val­ ues, important dimensions of religious liberty are dramatically forfeited. Interestingly enough, no Supreme Court justice has ever officially said that the Free Exercise Clause should be subordinated to the Establishment Clause, although it may occasionally appear that way.13 With the passage of RFRA, which essentially requires courts to interpret the Free Exercise Clause broadly, the option of reconciling the conflicts between the religion clauses by devaluing the Free Exercise Clause is realistical­ ly unavailable. But the reverse, the devaluation of the Establishment Clause, remains another option. The strategy of reconciling the conflict between the religion clauses by narrowly con­ struing the Establishment Clause is best illus­ trated by the “coercion test.” This approach, adopted in recent years by several Supreme Court justices, claims to reconcile the two clauses; in fact, however, it all but nullifies the Establishment Clause, leaving the Free Exercise Clause alone to achieve religious liberty. The “coercion test” was introduced by Jus­ tice Anthony Kennedy in his dissenting opinion in a 1989 case, County of Allegheny v. ACLU.14 The majority in the case ruled that a life-sized crechè prominently displayed inside the county courthouse in Pittsburgh violated the Estab­ lishment Clause because it endorsed Christian­ ity. Kennedy was joined by Justices Rehnquist, Scalia, and White in the view that, since no passersby were “coerced” to adhere to the reli­ gious message of the crechè, there was no con­ stitutional violation. In a subsequent case, Lee v. Weisman, in which clergy-led commence­ ment prayers in public secondary schools were struck down, Justice Clarence Thomas seemed also to adopt the coercion test. The coercion standard is offered by these justices (Justice White has since resigned) as a replacement for the Lemon test, which they feel is too harsh in its results. Although the coercion test has not been officially adopted by the Court, its endorsement by four of the Court’s justices suggests that it could become the new standard for measuring Establishment Clause violations. However reasonable it might sound, the coercion test is flawed for at least two reasons. First, the coercion approach makes the Estab­ lishment Clause redundant because any gov­ LIBERTY NOVEMBER/DECEMBER 1995 17 ernment coercion should be already protected by the Free Exercise Clause. As one commenta­ tor observed: “Coercion to observe someone else’s religion is as much a free exercise viola­ tion as is coercion to abandon my own.”15 If the Free Exercise Clause adequately protects coercive government action, then the Establish­ ment Clause is effectively stripped of its inde­ pendent meaning. If the Establishment Clause was not intended by the Founding Fathers to protect against government actions not covered by the Free Exercise Clause, then why did they bother even to write an Establishment Clause? A second problem is that a coercion test almost everyone agrees the establishment of a is no one was “coerced” into joining. These attempts to rec­ tify the tension between the two clauses nullify, in some way, the core values of the Free Exer­ cise Clause, which is to protect the free exercise of religion, and of the Establishment Clause, which is to preserve the integrity and autonomy of religion by prohibit­ ing institutional links between religion and government. The maxi­ mization of free exercise protection ends up assisting religion; the refusal to assist religion according to the man­ date of the Establishment Clause sometimes restricts its free exercise. Thus, there is no way to harmonize the tension between the clauses without doing disservice to one clause or the other. Broad readings of both clauses, irrespec­ tive of the merits of such an approach, have unquestionably contributed to the conflict between the religion clauses that is apparent today in many church-state controversies.16 What, then, is the answer, especially if the courts should not attempt to forfeit the core values of either the Free Exercise Clause or the Establishment Clause? Quite simply, both clauses should be interpreted broadly, leaving the “tension” in place. Each case must be resolved on its own merits and decided with the goal of preserving the core values of the clause most in view. Courts would be called upon to decide whether a case most reflects free exercise concerns or establishment concerns, and adju­ dicate the case accordingly. For example, in the case of the Hasidic Jews, while the free exercise rights of the Satmar Jews were at issue, the more dominant issue was the nonestablishment one. The extraordinary lengths to which the state of New York went to accommodate the views of the Satmar commu­ nity can be perceived only as state support for the tenets of the Satmar faith. By using tax dol­ lars to form a school district with boundaries coterminous with a political entity that is, in fact, a homogeneous, sectarian religious com­ munity, the state had essentially created a gov­ ernmental unit with an official religion. Such territorial divisions along religious lines have a long history of evil. They produced only reli­ gious wars in Europe for about 300 years (1500-1800), and are at the heart of what the Establishment Clause is designed to prevent. Nothing is revolutionary in this approach. In fact, this is how the Supreme Court has tra­ ditionally handled church-state controversies. It has not always produced tidy, predictable results, but that is the inevitable consequence of attempting to be faithful to two clauses whose conflicting values are both enshrined in the First Amendment. The Supreme Court has centered its efforts to balance free exercise and nonestablishment around the theme of “neutrality,” or more specifically, of a “benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.”17 Yet in the past decade a full-scale assault against the Supreme Court’s church-state jurisprudence and “neutrality” has emerged. While this assault is sometimes justified in the name of harmonizing the tension between the religion clauses, it is actually born of a more basic philo­ sophical disagreement with the way the rela­ tionship between government and religion has evolved in this country. Many, including sever­ al of the Supreme Court’s membership, simply want to move away from a policy of separation between religion and government to one of government accommodation of religion. On the Supreme Court, this new arrangement would be achieved by narrow constructions of the religion clauses. Chief Justice Rehnquist and justices Scalia, Thomas, and to a lesser degree, Kennedy, interpret the Establishment Clause to proscribe only a national church and nondiscriminatory aid to religion. If such a narrow interpretation of the Estab­ 18 LIBERTY NOVEMBER/DECEMBER 1995 lishment Clause were to become the High Court’s standard, governments at all levels would be free to dispense financial aid to churches, religious organizations, and church-related schools, and to “accommodate” generic religious practices in public schools and other public forums. However popular with some, such a program would represent a major step toward making religion dependent upon government, a sacrilege to those who look to the Divine rather than to government for direc­ tion and sustenance. Requiring religion to be independent of government has not only pro­ tected religion from the intrusions of govern­ ment, it has allowed the practice of religion to remain genuine and authentic. Likewise, a narrow construction of the Free Exercise Clause is an important dimension of accommodationism. The Smith decision was premised on decidedly accommodationist principles. That case granted state govern­ ments broad new powers over religious prac­ tices, entitling them to offer religiously based exemptions from generally applicable laws if they choose, without being constitutionally required to do so. Under Smith, legislatures would be free to proscribe unpopular religious practices, and even mandate religious unifor­ mity if they were so inclined. The Smith case is frightening in its implications for religious lib­ erty, especially in a day when so many, threat­ ened by an expanding religious pluralism, are calling upon government to help restore a “Christian America.” Fortunately, Congress recognized the potential for harm embodied in Smith and responded with RFRA. Freeing religion from dependence upon government was one of the novel contributions of the American Founders to civilization. The Founding Fathers sought to achieve this end through two separate mandates embodied in the First Amendment. The Founders were not content to let religious liberty rest on the strength of either clause alone. In 11 separate drafts of the religion clauses considered at the First Congress in 1789, not one of them con­ tained language in which either a clause pro­ tecting free exercise or a clause prohibiting establishment did not appear, or in which the two mandates were fused in one clause. It was understood by the Framers that their provi­ sions on religion were broad in scope, leaving to future generations the task of implementing the clauses according to specific problems that might arise. The Framers recognized, too, that there was some degree of tension between the religion clauses. James Madison understood the diffi­ culty of harmonizing the clauses in all situa­ tions: “It may not be easy, in every possible case, to trace the line of separation between the rights of religions and the civil authority with such distinctness as to avoid collisions.”18 In short, any narrow reading of the religion claus­ es does not do justice to their purposefully broad language. The controversies surrounding church-state jurisprudence today are highly complex. The complexities are not to be resolved, however, by attempting to perfectly reconcile the inherent (and intended) conflict between the Establish­ ment and Free Exercise Clauses. To reconcile the conflict would be to defeat the basic pur­ pose of the clauses, which, according to the Supreme Court, is to ensure that no religion be “sponsored or favored, none commanded, and 19 none inhibited.” In short, religious liberty rests on two reli­ gion clauses whose resolved tension would only frustrate the religious liberty they were careful­ ly crafted to protect. E3 FOOTNOTES ■114 S.Ct (1994). 2374 U.S. 203 (1963). 3397 U.S. 644 (1970). "403 U.S. 602 (1971). 5374 U.S. 398 (1963). fiFor an excellent discussion on this point, see Suzanna Sherry,“lee v. Weisman: Paradox Redux,”in Supreme Court Review, 1992 (Chicago: University of Chicago Press, 1993): p. 123. 7450 U.S. 707 (1981). 8Ibid., p. 720. '‘Ibid. 10Ibid., p. 722. "Ibid., p. 723. l2See, for example, Philip B. Kurland, “The Irrelevance of the Constitution: The Religion Clauses of the First Amend­ ment and the Supreme Court,” Villauova Law Review 24; No. 3 (1978-1979). '-’Consider, for example, Texas Monthly v. Bullock, 489 U.S. 1 (1989), p. 27, where Justice Harry Blackmun criticized Justice William Brennan’s majority opinion because it “would resolve the tension between the free exercise and establishment clause values simply by subordinating the free exercise value.” I4492 U.S. 573 (1989). 15Douglas Laycock, “‘Nonpreferential’ Aid to Religion: A False Claim About Original Intent,” 27 William & Mary Law Review 875 (1986): 922. 16For an excellent discussion on this point, see Suzanna Sherry, “Lee v. Weisman: Paradox Redux,” in Supreme Court Review, 1992 (Chicago: University of Chicago Press, 1993): 123. "Walz, p. 669. l8Madison to Rev. Adams (1832), in Gaillard Hunt, ed., The Writings of lames Madison (New York: n.p., 1904), vol. 9, p. 487. t9Walz, p. 669. LIBERTY NOVEMBER/DECEMBER 1995 19 R E L I G I 0 n ® F R E E SCHOOL? BY WILLIAM JEFFERSON CLINTON eligious freedom is perhaps the a Draft of the came together to support the most precious of all American T . fullest protection for religious ... / it j u July 12,1995, Memo- .. , liberties—called by many our J ' practice and expression. “first freedom.” Many of the first randum From the European settlers in North Amer- President of the Religious Expression in Public ica sought refuge from religious TT , ,, Schools . ■ 1 ■ United States to the T u a r persecution in their native coun- I share the concern and frus- tries. Since that time people of Secretary of tration that many Americans feel faith and religious institutions Education and the about situations in which the have played a central role in the . _ . protections accorded by the First history of this nation. In the First ttorney enera on Amendment are not recognized Amendment, our Bill of Rights Religious Expression or understood. This problem has recognizes the twin pillars of reli- Public School manifested itself in our nation’s gious liberty: the constitutional public schools. It appears that protection for the free exercise of religion, and some school officials, teachers, and parents have the constitutional prohibition on the establish- assumed that religious expression of any type is ment of religion by the state. Our nation’s either inappropriate, or forbidden altogether, in Founders knew that religion helps to give our public schools. people the character without which a democracy As our courts have reaffirmed, however, noth- cannot survive. Our Founders also recognized the ing in the First Amendment converts our public need for a space of freedom between government schools into religion-free zones, or requires all and the people—that the government must not religious expression to be left behind at the be permitted to coerce the conscience of any indi- schoolhouse door. While the government may vidual or group. not use schools to coerce the consciences of our In the more than 200 years since the First students, or to convey official endorsement of Amendment was included in our Constitution, religion, the government’s schools also may not religion and religious institutions have thrived discriminate against private religious expression throughout the United States. In 1993 I was during the school day. proud to reaffirm the historic place of religion I have been advised by the Department of Jus- when I signed the Religious Freedom Restoration tice and the Department of Education that the Act, which restores a high legal standard to pro- First Amendment permits—and protects—a tect the exercise of religion from being inappro- greater degree of religious expression in public William Jefferson Clinton is priately burdened by government action. In the schools than many Americans may now under- president of the United greatest traditions of American citizenship, a stand. The Departments of Justice and Education States- broad coalition of individuals and organizations have advised me that, while application may 20 LIBERTY NOVEMBER/DECEMBER 1995 depend upon particular cases, the following prin­ ciples are among those that apply to religious expression in our schools. Student Prayer and Religious Discussion The Establishment Clause of the First Amend­ ment does not prohibit purely private religious speech by students. Students therefore have the same right to engage in individual or group prayer and religious discussion during the school day as they do to engage in other comparable activity. For example, students may read their Bibles or other scriptures, say grace before meals, and pray before tests to the same extent they may engage in comparable nondisruptive activities. Local school authorities possess substantial dis­ cretion to impose rules of order and other peda­ gogical restrictions on student activities, but they may not structure or administer such rules to dis­ criminate against religious activity or speech. Generally, students may pray in a nondisrup­ tive manner when not engaged in school activi­ ties or instruction, and subject to the rules that normally pertain in the applicable setting. Specifically, students in informal settings, such as cafeterias and hallways, may pray and discuss their religious views with each other, subject to the same rules of order as apply to other student activities and speech. Students may also speak to, and attempt to persuade, their peers about reli­ gious topics just as they do with regard to politi­ cal topics. School officials, however, should inter­ cede to stop student speech that constitutes harass­ ment aimed at a student or a group of students. Students may also participate in before- or after-school events with religious content, such as “see you at the flagpole” gatherings, on the same terms as they may participate in other noncur­ riculum activities on school premises. School officials may neither discourage nor encourage participation in such an event. The right to engage in voluntary prayer or religious discussion free from discrimination does not include the right to have a captive audi­ ence listen, or to compel other students to partic­ ipate. Teachers and school administrators should ensure that no student is in any way coerced to participate in religious activity. Graduation Prayer and Baccalaureates Under current Supreme Court decisions, school officials may not mandate or organize prayer at graduation, nor organize religious bac­ calaureate ceremonies. If a school generally opens its facilities to private groups, it must make its facilities available on the same terms to organiz­ ers of privately sponsored religious baccalaureate services. A school may not extend preferential treatment to baccalaureate ceremonies and may not in some instances be obliged to disclaim offi­ cial endorsement of such ceremonies. Official Neutrality Regarding Religious Activity Teachers and school administrators, when act­ ing in those capacities, are representatives of the state and are prohibited by the establishment clause from soliciting or encouraging religious activity, and from participating in such activity with students. Teachers and administrators also are prohibited from discouraging activity because of its religious content, and from soliciting or encouraging antireligious activity. Teaching About Religion Public schools may not provide religious instruction, but they may teach about religion, including the Bible or other scriptures: the histo­ ry of religion, comparative religion, the Bible (or other scriptures) as literature, and the role of reli­ gion in the history of the United States and other countries all are permissible public school sub­ jects. Similarly, it is permissible to consider reli­ gious influence on art, music, literature, and social studies. Although public schools may teach about religious holidays, including their religious aspects, and may celebrate the secular aspects of holidays, schools may not observe holidays as religious events or promote such observance by students. Student Assignments Students may express their beliefs about reli­ gion in the form of homework, artwork, and other written and oral assignments free of dis­ crimination based on the religious content of their submission. Such home and classroom work should be judged by ordinary academic standards of substance and relevance, and against other legitimate pedagogical concerns identified by the school. Religious Literature Students have a right to distribute religious lit­ erature to their schoolmates on the same terms as they are permitted to distribute other literature that is unrelated to school curriculum or activi­ ties. Schools may impose the same reasonable time, place, and manner or other constitution restrictions on distribution of religious literature as they do on nonschool literature generally, but they may not single out religious literature for special regulation. As our courts have reaffirmed, however, nothing in the First Amendment con­ verts our public schools into reli­ gion-free zones, or requires all religious expres­ sion to be left behind at the schoolhouse door. LIBERTY NOVEMBER/DECEMBER 1995 21 Religious messages may not be singled out for suppres­ sion, but rather are subject to the same rules as generally apply to comparable messages. Religious Excusals Subject to applicable state laws, schools enjoy substantial discretion to excuse individual students from lessons that are objectionable to the student or the student’s parents on religious or other conscientious grounds. School officials may neither encourage nor discourage students from availing themselves of an excusal option. Under the Religious Freedom Restoration Act, if it is proved that particular lessons substan­ tially burden a student’s free exercise of religion and if the school cannot prove a compelling interest in requiring attendance, the school would be legally required to excuse the student. Released Time Subject to applicable state laws, schools have the discretion to dismiss students to off-premis- es religious instruction, provided that schools do not encourage or discourage participation or penalize those who do not attend. Schools may not allow religious instruction by outsiders on school premises during the school day. Teaching Values Though schools must be neutral with respect to religion, they may play an active role with respect to teaching civic values and virtue, and the moral code that holds us together as a community. The fact that some of these values are held also by religions does not make it unlawful to teach them in school. Student Garb Students may display religious messages on items of clothing to the same extent that they are permitted to display other comparable mes­ sages. Religious messages may not be singled out for suppression, but rather are subject to the same rules as generally apply to comparable messages. When wearing particular attire, such as yarmulkes and head scarfs, during the school day is part of a student’s religious practice, under the Religious Freedom Restoration Act schools generally may not prohibit the wearing of such items. I hereby direct the secretary of education, in consultation with the attorney general, to use appropriate means to ensure that public school districts and school officials in the United States are informed, by the start of the coming school year, of the principles set forth above. The Equal Access Act The Equal Access Act is designed to ensure that, consistent with the First Amendment, stu­ dent religious activities are accorded the same access to public school facilities as are student secular activities. Based on decisions of the fed­ eral courts, as well as its interpretations of the act, the Department of Justice has advised me of its position that the act should be interpret­ ed as providing, among other things, the fol­ lowing: General Provisions Student religious groups at public secondary schools have the same right of access to school facilities as that enjoyed by other comparable student groups. Under the Equal Access Act, a school receiving federal funds that allows one or more student noncurriculum-related clubs to meet on its premises during noninstruction- al time may not refuse access to student reli­ gious groups. Prayer Services and Worship Exercises Covered A meeting, as defined and protected by the Equal Access Act, may include a prayer service, Bible reading, or other worship exercise. Equal Access to Means of Publicizing Meetings A school receiving federal funds must allow student groups meeting under the act to use the school media—including the public address system, the school newspaper, and the school bulletin board—to announce their meetings on the same terms as other noncur­ riculum-related student groups are allowed to use the school media. Any policy concerning the use of school media must be applied to all noncurriculum-related student groups in a nondiscriminatory matter. Schools, however, may inform students that certain groups are not school-sponsored. Lunchtime and Recess Covered A school creates a limited open forum under the Equal Access Act, triggering equal access rights for religious groups, when it allows stu­ dents to meet during their lunch periods or other noninstructional time during the school day, as well as when it allows students to meet before and after the school day. I hereby direct the secretary of education, in consultation with the attorney general, to use appropriate means to ensure that public school districts and school officials in the United States are informed, by the start of the coming school year, of these interpretations of the Equal Access Act. El 22 LIBERTY NOVEMBER/DECEMBER 1995 o 0 v fE a Building a City on Bigotry? BY CRAIG L. PARSHALL Craig L Parshall Is an attorney In Fredericksburg, Virginia. t Gettysburg, Abraham Lincoln reminded America that a democratic form of government is one “of the people, by the people, and for the people.” But what happens when a segment “of the people” forms a “government” for the express purpose of bludgeoning a disfavored religious community? That is what happened in the village of Air- mont, New York, which—according to a feder­ al lawsuit brought by Orthodox rabbi Yitschok Leblanc-Sternberg—was birthed out of anti-Orthodox bigotry and hate toward the 2,500-year-old traditions of his religion. Charging Airmont with violating the Free Exercise of Religion Clause of the First Amend­ ment and the federal Fair Housing Act, Rabbi Sternberg’s lawyers presented the case before a federal jury in an eight-week trial that generat­ ed nearly 6,000 pages of transcript testimony, and produced a result that appears, at least for now, to be a serious victory for religious free­ dom. The story goes back to 1991, when Airmont was founded, carved out of a section of the larger town of Ramapo, an area with a high population of Orthodox and Hasidic Jews. Because the Orthodox are forbidden by their religion from driving cars on the Sabbath, they had to live within walking distance of a worship site, and because (by both tradition and finan­ cial necessity) their rabbi’s home would often also double as a small synagogue—Ramapo zoning officials allowed Orthodox believers to have collective worship in groups of up to 40 persons in residential homes. Under Orthodox religious rules, collective prayer groups (“minyans”) require the presence of at least 10 adult males to form the nucleus of worship, in addition to the wives and children of their fam­ ilies who might also attend. The 40-person limit was easy to reach in most minyans. Although an attempt to balance local reli­ gious needs with the zoning characteristics of residential areas, the accommodation ignited a firestorm among non-Jews. Simmering anger had been building over the increasingly visible presence of the Orthodox and Hasidim. Orthodox worshipers—the men in their formal black Sabbath garb and full beards—could be easily identified as they walked to prayer ser­ vices, and they quickly became targets for a growing anfi-Orthodox sentiment. Dissident community members activated the Airmont Civic Association (ACA) in an effort to oppose what they saw as the town’s dangerous undercutting of the zoning prohibi­ tion against “houses of worship” in residential homes. At meetings of the ACA word spread of a grim “Hasidic belt” developing throughout the Ramapo area. The ACA began publishing its own newspaper and, in the maiden issue LIBERTY N 0 V F M R F R / n F r F M R F R 1 o o F 93 Home synagogue: Some were so determined to close it down that they started a new town. Rabbi Sternberg at study: He was determined to fight for their rights. Orthodox adherents supporting home worship were referred to as “fanatics.” According to trial testimony, at a Ramapo meeting where Rabbi Chaim Friedman sought zoning permission to build a synagogue, atten­ dees interrupted with hissing, booing, and statements like, “How did Hitler let these peo­ ple out? He should have gassed them out.” Orthodox followers were described as “foreign­ ers,” “ignorant,” and “uneducated.” One ACA leader described their presence as an “insult” to the community. The hostility increased. Rabbi Sternberg, in his testimony, recounted episodes of hatred on the streets when he and other worshipers would gather for Sabbath services. “A car would slow down,” he said, “the win­ dow would open, and somebody would spit at us, call out, ‘dirty Jew,’ and some other profani­ ty that I’m not familiar with. Sometimes soda cans were thrown at us.” Anti-Orthodox and anti-Semitic graffiti 24 LIBERTY NOVEMBER/DECEMBER 1995 Orthodox Jews worshiping in Airmont: Hoping that the promise of religious freedom would extend to them too. appeared on public recreational buildings, declaring “Hitler lives,” “------------ Jews, you’ll pay,” and “I hope your houses burn.” Liba Zucker, an Orthodox resident, had a swastika painted on her mailbox. She replaced it with a new mailbox, and then told the court what happened next: “Around 9:00 p.m., a matter of two or three days later, I heard an explosion. I thought somebody had an accident. I looked out the window. Then I thought a tire had exploded. The next morning, when 1 took out the chil­ dren, the entire mailbox was blown to shreds. Somebody had put in it one of those little fire bombs—you know, just blew it up into little pieces all over the yard.” Mrs. Zucker sold her house and moved out. The ACA began calling for a petition drive to begin the formal process of forming a sepa­ rate village. Under New York law a village, once formed, possesses the right to self-determina­ tion in matters of local zoning. The ACA urged the formation of the village of Airmont, within a section of what had been the town of Ramapo, in order to pass “strict zoning” against group worship in residential homes. The likely result was that the Orthodox Jews, or “Black Hats,” as one ACA founder described them, could be screened out of the area. The petition drive was successful, and in April 1991 Airmont, about 8,000 strong, became an official municipality. Elections placed an entire ACA slate of candidates into the offices of mayor and the board of trustees. Once formed, the village passed a zoning code that conspicuously targeted the home worship practices of the Orthodox, according to the Sternberg lawsuit. The code was virtually identical to that of the town of Ramapo, except for one section: the “Home Professional Office” provision that Ramapo had used as the vehicle for accommo­ dating the home worshipers. In that section, Airmont officials prohibited any activity that would interfere with the “residential character” of a neighborhood (a euphemism that Rabbi LIBERTY NOVEMBER/DECEMBER 1995 25 Worshipers walking to the synagogue: Did this ruin the neighborhood? Sternberg’s attorneys argued was a code phrase for “no home-worship” of Orthodox Jews). Further, the Airmont code gave village residents the automatic legal standing to trigger official zoning inquiries into activities of residential homes suspected of violating the code. According to Judge Gerald L. Goettel, who presided over the trial, the changes in the Air­ mont zoning code “Suggest the likelihood that, if the issue comes before them, the Airmont Planning Board and Zoning Board would not adopt the Ramapo solution with regard to Home Synagogues....” After the two-month trial, and a week of deliberations, the jury ruled in favor of Rabbi Sternberg and his followers, finding that the village of Airmont had violated both the plain­ tiffs’ constitutional rights and their rights under the nondiscrimination provisions of fed­ eral housing laws. However, the jury declined to award any monetary damages against the vil­ lage. Undaunted, Sternberg’s attorneys sought a permanent injunction from Judge Goettel, preventing the village from enforcing its zoning code, in light of the jury’s clear ruling that the civil rights of religious worshipers had been violated. Then, in a surprise decision, Judge Goettel overturned the jury’s verdict, finding that the village—whatever the motives of its founders—had never really taken any “signifi­ cant action” against Rabbi Sternberg’s home synagogue. And in fact, the village had refrained from commencing any legal proceed­ ings to close down the Sternberg home worship meetings. Sternberg’s lawyers argued that it was only the spotlight of a pending lawsuit against the village that stayed its hand in enforcing its new, drastic zoning code. Evidence at trial did show that the village board considered bringing a lawsuit against the Sternberg prayer meetings under its new code, but refrained. According to some board mem­ bers, they wanted to “recast” themselves into the role of moderates, rather than religious big­ ots. One board member was more blunt, indi­ cating that bringing a lawsuit to enforce the Airmont zoning law was not necessary, because “there are other ways we can harass them.” Rabbi Sternberg has appealed Judge Goet- tel’s ruling to the federal Court of Appeals for the Second Circuit, in New York City. Oral arguments were presented to a three-judge panel on January 12,1995. The emotional charges of hate-motivated government and claims of zoning laws as the weapon of choice for antireligious bigotry have somewhat eclipsed the complicated legal issue: exactly where does the general zoning power of 26 LIBERTY NOVEMBER/DECEMBER 1995 ne of the village's attorneys described the village founders as “a group of average citizens" who simply "wanted to make their community better,” according to the New York Times. a municipality stop and the rights of religious worshipers begin? And when the two irrecon­ cilably conflict, which one wins? Attorneys for the village of Airmont, in their written arguments, describe the case as a “his­ toric clash between the right of a municipality to zone and the individual right to free exercise of religion” that nevertheless “need not be decided” because the village took no actual steps against Rabbi Sternberg’s group that infringed their right to worship in the first place. Besides, they argue, the jury’s finding of an intent by the village, as an official arm of the government, to commit antireligious discrimi­ nation is simply not supported by the evidence, regardless of how hostile the intent of some of the village founders, or even the community at large, may have been. Attorneys for the rabbi argue that Airmont’s zoning regulation smacks of the same kind of illegal discrimination against a specific disfa­ vored religious group that was condemned by the Supreme Court in 1993. In the case of Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the city council passed a regulation forbidding animal sacrifice, supposedly out of concerns for cruelty to animals and public health. Yet the evidence clearly showed that city officials were motivated by their disgust for the increasingly prevalent activities of the Santeria religion in their area. The High Court ruled that government officials cannot target an unpopular religion for discrimination and then successfully hide their bigotry under the guise of concern for public welfare. There are, however, some differences between the actions of the village of Airmont and those of the city of Hialeah. The regula­ tions condemned by the Supreme Court clearly targeted animal sacrifice by name. In contrast, Airmont’s zoning code—while it was preceded by the bigoted intent of the village founders and reveals a discriminatory effect on Ortho­ dox worshipers—does not target the act of Orthodox home worship, by name, for discrim­ inatory treatment. Sternberg’s lawyers, howev­ er, argued that such overt antireligious wording isn’t necessary to prove a case in which the dis­ crimination is so clearly evident, as in this one. The Supreme Court has yet to define the limits of local zoning power when it clashes with religious worship, at least where the code does not expressly target the disfavored reli­ gious practice by name. Lower courts have used a myriad of sometimes conflicting rules to resolve the conflicting interests in such cases. Not all of the issues in the Airmont case are unique. Other local officials around the coun­ try are grappling with the more typical kinds of difficulties that arise when they try to balance the needs of worshipers who meet in homes with the complaints of neighborhood residents. In Maryland, a few months before the begin­ ning of the trial in the Airmont case, Prince Georges County passed a new zoning rule to respond to public criticism of home churches. Under the new regulation, future home-based churches will have to undergo a time-consum­ ing review by county planners and the county council, a process that could cost up to $10,000 per application. That resulted in a cry of reli­ gious persecution from some of the local cler­ gy- Village of Airmont officials deny any dis­ criminatory motives, and cast their actions as being in the American mainstream. One of the village’s attorneys described the village founders as “a group of average citizens” who simply “wanted to make their community bet­ ter,” according to the New York Times. Rabbi Sternberg and the Orthodox Jews of Airmont remain unconvinced. They view the village of Airmont and its zoning law as a kind of sword of Damocles. If they lose their case, they fear that the sword of increased persecu­ tion will inevitably fall. Fortunately, the sword fell, but not on them. In September, the Court of Appeals in the Sec­ ond Circuit of New York reversed the District Court, finding that religious descrimination did occur against the Jews in the Airmont dis­ pute, and thus remanded the case back to the jury verdict, which first found in favor of the plaintiffs. The original verdict is now the one that stands. What remains to be resolved is what remedy will be applied. Lawyers for Rabbi Sternberg have asked for a dissolution of the village itself. If they can’t get that, they at least want federal court supervision that will require approval before prosecuting under any zoning code. They are also asking for attorney’s fees. The Village has threatened to fight all the way to the U.S. Supreme Court. So, for now, the Jews quietly walk the side­ walks of Airmont on their way to the local rninyan to join in the collective voices of Sab­ bath prayer. And, no doubt, among their peti­ tions is a word of thanks to the Almighty that Lincoln’s promise of a government “of the peo­ ple, by the people, and for the people” still includes them as well. E LIBERTY NOVEMBER/DECEMBER 1995 27 Z iberty recently asked, “Does the United States Constitution contradict itself? When free speech rights collide with the Establishment Clause, which takes prece­ dence?” (see May/June 1995). On June 29 the United States Supreme Court in Rosenberger v. University of Virginia answered—sort of but not really. In fact, it left more questions unanswered than answered. The controversy began in 1990, when Ronald Rosenberger and other Christian students at the University of Virginia formed Wide Awake Pub­ lications (WAP) in order to publish Wide Awake: A Christian Perspective at the University of Vir­ ginia. But when WAP applied for funding of Wide Awake from the Student Association Fund (which distributes money from student fees to various student groups and activities) on the same basis as funding for other stu­ dent group publications, the appli­ cation was denied. The Establish­ ment Clause prevented UVA from funding a religious publication, WAP was told, even though Mus­ lim and Jewish student groups were allocated money from the fund. WAP filed suit, alleging violations of freedom of speech, free exercise of religion, and equal protection of the law. Lawyers for WAP argued that the Free Speech Clause requires that once government decides to open a public forum, it may not deny access to that forum on the basis of the speaker’s viewpoint. WAP charged that UVA wanted to allow speech (meaning printed speech as well as literal speech), but dis­ criminated against it on the basis of the religious viewpoint of its speech. The federal trial court disagreed, ruling that no discrimination had occurred, and that even if it had, UVA’s concern that it not violate the Establishment Clause by benefiting religion was a sufficient justification for the restriction. In March 1994 the U.S. Court of Appeals for the Fourth Circuit reversed as to the Free Speech violation. It agreed with WAP that although the government has no affirmative duty to subsidize the exercise of constitutional rights, once it began to it may not penalize such rights by with­ holding an otherwise discretionary benefit. The denial of funding was just such a penalty, creat­ ing an uneven playing field tilted toward wholly secular speech. But the appellate panel affirmed the lower court’s ruling that UVA’s discrimina­ tion against WAP was justified by the Establish­ ment Clause. These lower court decisions seemed to require a ranking of constitutionally guaranteed rights not found in the text itself. According to the lower courts, UVA violated the Free Speech Clause, but the violation was required by the Establishment Clause. Therefore the Establish­ ment Clause trumps the Free Speech Clause. No explanation was given for this result. When the case reached the Supreme Court, the questions presented were, in essence: (1) did UVA violate the free speech guarantee? and (2) if so, was that violation necessitated by the Estab­ lishment Clause? The decision of the Court was written by Jus­ tice Kennedy, joined by Chief Justice Rehnquist and Justices O’Connor, Scalia, and Thomas. Separate concurring opinions were filed by both O’Connor and Thomas, and a dissent by Justice Souter, joined by Justices Breyer, Ginsburg, and Stevens. Justice Kennedy’s majority opinion makes two main points. First, UVA violated the protection of speech in a public forum. The university’s action was unconstitu­ tional viewpoint discrimination: it selected for disfavored status those publications with a religious edito­ rial viewpoint. In previous cases the Court has ruled that when public school facilities are made available, after school hours, for public use, they must be available to religious groups on the same basis as others. The dissent argued that those cases are different because the access requested by WAP was to funds, not just space, a distinction that Kennedy believed was irrelevant. Second, the free speech violation was not excused by the necessity of complying with the Establishment Clause. Kennedy, by finding that no establishment problem existed, neatly avoid­ ed a discussion of what happens when two con­ stitutional protections conflict. Because there is no Establishment Clause problem with funding the WAP magazine, there can be no excuse for not honoring the requirements of the Free Speech Clause. The controlling issue for Kennedy was the fact that the program at issue is neutral toward religion. That is to say, it was not created to ben­ efit religion. The program respects the differ­ ence between government speech endorsing reli­ BY MITCHELL A. TYNER Mitchell A. Tyner, Esq., is associate general counsel for the General Conference of the Seventh-day Adventist Church. 28 LIBERTY NOVEMBER/DECEMBER 1995 gion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect. The bottom line: the constitutional guarantee of governmental neutrality toward religion is not offended where government follows neutral cri­ teria to extend benefits to a diverse group of beneficiaries. Curiously, Kennedy stated that WAP is not a religious organization. Given the strident, evan­ gelistic content of the publication, it is hard to describe WAP as anything other than an organi­ zation whose purpose is to advance Christianity. Was Kennedy trying to narrow the definition of a religious organization to include only church­ es and their counterparts? In trying to allay concern over state funds going to pay for the printing of a religious pub­ lication, Kennedy used an interesting example. Suppose, he said, that UVA had given student groups access to university-owned computers for the preparation of their publications. Giving WAP equal access with other groups would not be challenged. But here UVA has determined it cheaper to pay for an outside printer rather than provide the equipment. What difference, there­ fore, was there between the provision of equip­ ment and the provision of funds to pay for the work the equipment would have performed? For Kennedy, the denial of funding for WAP would have caused an Establishment Clause vio­ lation, not prevented one. To avoid subsidizing religious material, UVA would have been required to engage in such intrusive inspection of student publications, in a search for disal­ lowed religious material, as to in itself constitute an excessive entanglement between church and state. Understandably, Justice Souter and those who joined him in dissent saw it differently. In the most quotable line from any of the opinions, he wrote: “The Court today, for the first time, approves direct funding of core religious activi­ ties by an arm of the state.” Souter considers the grant of funds to WAP an Establishment Clause violation. But he too fails to address the core question of how to balance two conflicting con­ stitutional provisions. If the Establishment Clause and the Free Speech Clause lead to con­ flicting results, he assumes that the Establishment Clause will control, though he didn’t say why. For Souter, the nonfunding of religious activ­ ities is at the heart of the Establishment Clause. And therein lies the heart of the Court’s dis­ agreement on this issue. For Souter, it means that government and religion must be separated, even if that means placing religion in a second- class, disadvantaged position. For Kennedy, the heart of the matter is evenhandedness: religion may not be singled out for special treatment, but it must not be singled out for negative treat­ ment, either. Both Souter and Kennedy, of course, knew that much attention would be paid to how this opinion would apply to the ongoing discussion of the propriety of governmental funding of nonpublic, including religious, schools. In an effort to hold resolution of that matter for another day, Kennedy wrote, “Our decision can­ not be read as addressing an expenditure from a general tax fund.” In other words, proponents of such funding should get little encouragement from this decision. But try as he might, Kennedy’s basic idea does apply: when govern­ ment funds all the actors in a given sphere of activity, the fact that some money may thereby flow to a religious institution does not in and of itself offend the Establishment Clause. That very application no doubt occasioned Souter’s closing paragraph, which will resonate with all those who have historically opposed any governmental funding of religious activities: “Since I cannot see the future, I cannot tell whether today’s decision portends much more than making a shambles out of student activity fees in public colleges. Still, my apprehension is whetted by Chief Justice Burger’s warning in Lemon [Lemon v. Kurtzman, a 1972 decision that set out an understanding of the Establishment Clause now under attack]: ‘In constitutional adjudication some steps, which when taken were thought to approach the verge, have become the platform for yet further steps. A certain momentum develops in constitutional theory and it can be a downhill thrust easily set in motion but difficult to retard or stop.’” Did the Court deal a telling blow to the pro­ hibition of tax expenditures to benefit religion? No, but the kernel of this decision will be used in further discussion of that topic. Do we now know how to balance two conflicting con­ stitutional principles? No again. Did the Court give us its long-awaited comprehensive state­ ment as to the meaning of nonestablishment? Afraid not. What the Court did was to agree to disagree on those broad principles. We will have to wait a bit longer for those. In the words of Justice O’Connor: “We thus resolved the conflict between the neutrality principle and the funding prohibition, not by permitting one to trump the other, but by relying on the elements of choice peculiar to the facts of the case.” But try as he might, Kennedy’s basic idea does apply: when government funds all the actors in a given sphere of activity, the fact that some money may thereby flow to a religious institution does not in and of itself offend the Establish­ ment Clause. LIBERTY NOVEMBER/DECEMBER 1995 29 = olirmi = — = = C 0 N Tlì A II Y i T T II I BU T E S “For it is false to say of that which is that it is not or of that which is not that it is.”—Aristotle “Enlightened statesmen will not always be at the helm.” —James Madison /V ^ n the heavenly polis,” wrote Diet- I propose.” lishment of religion’—vests or rich Bonhoeffer, “state and Reaffirming? creates the power, previously church will be one.” Fine, but Aristotle once wrote: “It is nonexistent, of supporting reli­ some enlightened American impossible that contrary attribut­ gion.” statesmen decided that, until es should belong at the same Of course it’s fatuous, which then, the earthly polis would be time to the same thing.” Consid­ is why those seeking government better served by separating them, ering that the First Amendment support of religion want the First a view disparaged by those forbade government support of Amendment changed, and the attempting to make the so-called religion, the Religious Equality Religious Equality Amendment, if Religious Equality Amendment Amendment—which would allow passed, will do just that. the latest change to the federal that support—far from a reaffir­ Though a final draft hasn’t yet Constitution. mation, is a “contrary attribute” been presented, supposedly the Actually, it’s not the Constitu­ instead. amendment would, among other tion proper, but the Establish­ “Because Congress pos­ things, prohibit the denial of ment Clause itself, that the pro­ sessed no power under the Con­ “benefits” to religious groups. posal would amend, potentially stitution to legislate on matters Yet that’s the whole purpose of doing to it what the Twenty-first concerning religion," wrote the Establishment Clause. Cer­ Amendment did to the Eigh­ church-state scholar Leonard tain benefits, such as tax dollars, teenth. “The eighteenth article of Levy, “Congress has no such should be denied to religious amendment to the Constitution of power even in the absence of the groups. If Patrick Henry’s tax the United States,” the Twenty- First Amendment. It is therefore assessment had been proposed first reads, “is hereby repealed.” unreasonable, even fatuous, to in order to pay for an army or to Guiding the bill through the believe that an express prohibi­ build roads, Madison’s Memorial House, Congressman Ernest J. tion of power—‘Congress shall and Remonstrance would have Istook (R-Okla.) admitted that make no law respecting an estab- never been written. By denying “not everyone supports re­ certain “benefits” to religious affirming the First Amendment as groups, the Establishment Clause 30 LIBERTY NOVEMBER/DECEMBER 1995 olirmi “ I (I \ lì R E S S SHALL M ARE > Il LAW R E S P E C T I \ (■ A > h SIA IMI S II M E M (IF K E L Mi I II > Il II IMI» H I B I T I \ li T II E THEREOF...* has, for the past 200 years, pro­ tected the integrity of both church and state by keeping them separate. This proposed amendment shows that those quick to claim the Court’s Free Exercise protec­ tions hate its Establishment restraints. They want one inter­ preted broadly, the other narrow­ ly. Yet broad readings have made them both effective. “‘Religion’ appears only once in the [First] Amendment,” wrote Justice Wiley Rutledge in his Everson dissent. "But the word governs two prohibitions and governs them alike. It does not have two meanings, one narrow to forbid ‘an establishment’ and another, much broader, for securing ‘the free exercise there­ of.’” But that’s how proponents want the religion clauses to be read: Free Exercise like a four- lane highway, Establishment like a dirt path. Flow ironic that some who chafed under the Court’s narrow reading of Free Exercise in the Smith debacle seek a narrow reading of the Establishment Clause as well. However, because the judiciary won’t give it to them, they hope the legislature will. No one denies that religion clause jurisprudence can, at times, appear to be a mixture of King Solomon, Jean-Paul Sartre, and Hootie and the Blowfish. But the dilemma is with the courts, not with the Bill of Rights itself. And the occasional problem of some high school science teacher who, buffaloed by a false reading of the Establishment Clause, forbids a kid to pray silently over lunch or read the Bible at his desk can be solved by educating educators, not by letting “unenlightened states­ men” crush life out of the First Amendment. Madison once warned that the Constitution had two ene­ mies: “one that would stretch it to death and one that would squeeze it to death.” Though no clairvoyant, Madison must have had a premonition of the Reli­ gious Equality Amendment when he wrote that last clause. LIBERTY NOVEMBER/DECEMBER 1995 31 he spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spir it which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near 2,000 years ago, taught mankind that lesson it has never learned, but has never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest. —from The Spirit of Liberty, an address by Learned Hand, May 21,1944.