So much of the coverage of the Religious Right focuses on what it is doing in national political circles. Its yearly conferences and straw polls emphasize its proximity to power and its ties to those in office seeking higher office and its work to get Congress to pass the kind of legislation it wants.
It is a mistake, though, to think that this movement was ever, or is now, just about Washington. Indeed, the Christian Coalition's Ralph Reed said in the seventies, “I would rather have a thousand school-board members than one president and no school-board members.”1
Sometimes state and local politicians are more malleable than Congress and more open to considering and then actually adopting bizarre proposals. This is one of the reasons it is so important to observe city councils, school boards, and other similar entities. Sometimes mere publicity vitiates local chicanery.
Religious Right advocates often use the potentially dangerous “state initiative” process to confuse voters and pass legislation that even relatively conservative state legislatures are reluctant to adopt. In 2012, three states, for example, considered amending their state constitutions through initiatives: two failed (North Dakota and Florida), one succeeded but has not generated much activity (Missouri). All are described in a column I did a few months before those 2012 elections.
PROPHET PAT?: BUCHANAN PREDICTED THE CURRENT WAVE OF ODIOUS INITIATIVES2
It has been nearly twenty years since I did a nearly daily three-hour radio show for NBC with conservative pundit Pat Buchanan. It was done in the format of Crossfire but without quite the intensity, since yelling for three hours is, well, six times more difficult than doing it for thirty minutes.
As you may correctly assume, our worldviews were worlds, if not universes, apart. I remember only one or two issues that we agreed on.
One day, after the 1993 election, I came into the studio aglow with the final results of a referendum to permit use of California taxpayer funds for an ill-conceived (aren't they all?) school voucher program. This is a subject we had discussed with some frequency on the show.
Ironically, Buchanan had been an arch opponent of vouchers and then had a sudden and supportive change of heart. I did love to find old anti-voucher quotes of his to throw back at him, of course.
That afternoon, though, he congratulated me—and all opponents—on our anti-voucher victory, but then added, somewhat ominously, “someday conservatives will learn to fight on lots of fronts at the same time, and then we'll ‘initiatize’ you guys to death.” (I don't think he thought that was a real verb.)
Buchanan explained that if people had to spend money in the same year fighting school vouchers, school prayer, and reproductive rights limitations, in addition to other “liberal” nonreligious controversies, we'd have to raise a vastly greater amount of money and use up far more energy.
Pat eventually went off to run for president (like the California voucher initiative, without success). In this election cycle, though, it seems like his initiative campaign idea may be taking off.
Who knows, it could have been a few listeners from nineteen years ago who are now in a position to do something about Buchanan's strategy. People still come up to me occasionally who first heard of me from that radio show. You just never know.
Whatever the genesis, some pretty terrible ideas are floating around the initiative world these days. One has been resolved already in North Dakota. It was called “Measure 3” (which sounds like the title of a bad science fiction movie) and was claimed to protect “religious liberty”—something, of course, already protected by both the North Dakota and US constitutions. It stated without nuance or equivocation that the state could not burden in any way any conscientiously held religious belief of an individual or an organization absent a compelling government interest, such as public safety or the civil rights of others.
This vaguely worded mess—opposed by all five major newspapers in the state—would lead to endless litigation about religiously motivated child neglect, violence against domestic partners, or even marriage with minors.
Next up is an ominous proposal in Missouri to amend the state constitution to protect prayer in public places and make other changes to educational practice. Obviously, school children can pray in a nondisruptive manner right now if school officials don't set the time, place, manner, or content of that prayer. So this is more about creating a so-called “right” to pray in public government meetings in an orchestrated fashion.
And let's not forget that another provision actually provides students with a right to not participate in assignments that violate their religious beliefs. I can already hear: “Mr. Geometry Teacher, I refuse to take any tests because according to 1 Kings 7:23, pi is equal to 3, but you claim in an unbiblical fashion that is it an infinite number starting with 3.1415….”
With this on the plate, an eight-hundred-pound gorilla is on the threshold of the initiative movement also, a behemoth in Florida. Proposed Amendment 8 would completely eliminate the current (most recently affirmed in 1968) existing constitutional proviso prohibiting use of state tax dollars “directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution.”
The language it would add is clearly designed to support any and all Florida voucher plans and lead to widespread funding of religious social services, even those that allow the open display of religious icons and scripture, discriminate in hiring employees, and refuse service to beneficiaries who don't see eye-to-eye with the service provider on religious rules or rituals.
I know that some of you might like the theory of “initiatives” where the voters speak. In all of these cases, however, the very title of the proposals is misleading and the prose of the actual amendments turgid and lawyerly (but I repeat myself).
If initiatives remain the trend, maybe we'll have to start putting up some of our own: “Only sound science will be taught in the state of ‘fill in the blank.’” Or “No state funds may be given to any pervasively sectarian institution or to any church where the pastor has more than one mansion and one Rolls Royce.”
You get the picture. Maybe a few of those Pat Buchanan-era radio listeners I still run into who liked my side of the argument should get started drafting now.
ACTS OF GOD—REACTION: GIVE US YOUR MONEY
I get more horrified negative reactions from “progressive” people over the question of the funding for rebuilding “historic” church property than anything else I've worked on. Perhaps it is that progressives are often, in the very best sense, “conservatives”—wanting to protect and preserve the valuable cultural contributions made by our ancestors.
My involvement in this concern began during the George W. Bush years when the Secretary of the Interior started giving out historic preservation grants to churches—notably one that is in a wealthy city with (I thought) a strong charitable spirit.
HISTORIC MISTAKE: OLD NORTH CHURCH AND OUR TAX DOLLARS3
Years ago when I was younger and had fewer gray hairs, I taught school in Boston. One of my courses examined Boston's history. On Wednesday afternoons I'd take the students on a tour of interesting sites. I was always surprised that many of the young people who had lived in Boston their entire lives had never visited some of these places.
One stop was, of course, Old North Church, site of the famous lanterns hung for Paul Revere—an event so eloquently dramatized in the poem by Henry Wadsworth Longfellow. I don't remember that the windows of the structure had any problems at that time, thirty years ago, but they apparently do now.
Indeed, the Bush administration has just given the church a grant of $317,000 to fix them.
One day last month, Secretary of the Interior Gale Norton left her post in Washington long enough to go to Boston with “Faith Czar” James Towey to announce the grant with great fanfare. Who could possibly oppose this restoration of American heritage? The next day she got the answer in almost every newspaper in the country: Americans United for Separation of Church and State.
It bothers me that the administration now wants to fund, not only religious ministries, but also houses of worship that retain active congregations. Old North Church has a worshiping congregation of Episcopalians that meets twice every Sunday, with Bible studies and choir practices several nights during the week. It is impossible for me to figure out how fixing the windows (and doing whatever other repairs it might need in the future) cannot be viewed as giving tax dollars to the promotion of religion.
The more I learned about the church, the more I dug in my heels. This site gets five hundred thousand visitors each year. Has anyone thought of asking them for a donation to fix the leaks? Massachusetts has thousands of businesses, large and small, which presumably want to protect the history of the commonwealth. Did anyone ask them for financial help? Apparently not, which is why the congregation turned to Uncle Sam.
The Rev. Stephen Ayres, the vicar of the church, said at a news conference that he is aware of the potential problem of having churches accept money from the government.
“Many are concerned,” he said, “that religious institutions may lose their moral and prophetic voice if we become too dependent on government support. We must always ask ourselves whether receiving government grants will compromise our vocation to remind our representatives of God's concern for peace and for the care of the poor and marginalized.”4
Yes, that's what will happen. Nevertheless, he took the money anyway.
I understand that some folks would like to make an exception in the case of “historic” religious buildings, but the slope is very slippery from Old North Church down. Every church has a history of some kind, and if some church official wants to preserve the pew where William Howard Taft sat or the site of the baptism of Supreme Court Justice Antonin Scalia, I'm sure he or she would get an open ear (and possibly, a hand) in Washington.
I'm a strong believer that churches and other religious entities should have the right to resist forced “landmarking” that ends up restricting their power to control their internal building decisions. However, when you accept that status, it should not come with a guarantee of financial support so long as you have parishioners who can contribute to repairs themselves. The US Treasury is simply not a church building fund.
The Atlanta Journal Constitution's well-respected columnist Tom Teepen wrote that if this historic rebuilding was the only “faith-based initiative” of the Bush administration, even he might overlook the constitutional issue. But he noted this is just part of a bigger agenda to fund religion with tax dollars.
I made exactly that point to Barbara Bradley Hagerty of National Public Radio: “This is part and parcel of an overall plan by the Bush administration that apparently believes that every social problem, and now every architectural problem, should be solved by giving money to religious institutions.”5
Indeed, the Department of Housing and Urban Development has announced plans to fund places of worship that provide social services in their communities. If your church basement is used for a meals program for the hungry 20 percent of the time, you would be entitled to 20 percent funding of the ceiling tiles. This would create ridiculous entanglement problems between church and state. How would we know what percentage of time the facility was actually being used for each purpose? Should we move those spy cameras that are in many big cities to photograph people going through red lights into the vestibules of the sanctuaries of churches with government grants?
The Supreme Court got it right in a 1973 case, PEARL v. Nyquist, when it said bluntly: “If the State may not erect buildings in which religious activities are to take place, it may not maintain such buildings or renovate them when they fall into disrepair.”
I love Old North Church, just like I enjoy the wilderness places still left in America. I give voluntarily to help preserve these places. However, I also revere the Constitution. Let's preserve it.
So, when George W. Bush wanted to give money to fix Old North Church, there was no outcry from Congress, then controlled by a Republican majority. However, just a year later, “repairs” to religious facilities ginned up a fever where Republican conservatives got so intoxicated with “church/state separation” fervor that they invited me to be their star witness at a hearing to explore how to stop rebuilding California missions—a major “mission” of Senator Barbara Boxer, whom they wanted to embarrass.
Senator Boxer was not happy to see me there. She sat in the back of the hearing room, passing notes to Democratic staffers and glaring at me. But the law is the law and this is part of what I told the Subcommittee on National Parks in 2004.
There is no doubt that California's twenty-one missions, which run along a six-hundred-mile stretch of highway from San Diego to Sonoma are historically significant and contribute greatly to the rich historical, cultural and architectural heritage of California and the American West.6 Although we recognize that preservation of these historic buildings is important, we strongly believe that the preservation of America's constitutional rights is vital. In short, the California Missions Preservation Act would violate the First Amendment by forcing taxpayers nationwide to pay for church repairs, even repairs and restoration of facilities with active congregations. I urge you today, for the sake of preserving religious liberty, to ensure that federal funds are not used to build or repair houses of worship. Instead, it is up to religious organizations and individuals to voluntarily support preservation of the California missions.
Background
The twenty-one missions comprising California's historic mission trail were founded between 1769 and 1823. Largely reconstructed after the tests of time, weather, and earthquakes, nineteen of the twenty-one missions are owned by the Roman Catholic Church, operate as active parishes, and have regularly scheduled religious services.
Under S. 1306, federal funds would be provided to pay for “efforts to restore and repair the California missions, and to preserve associated artworks and artifacts.” The bill would authorize the Secretary of the Interior, under section 101(e)(4) of the National Historic Preservation Act, 16 USC § 470a(e)(4), to grant $10,000,000 in federal funds over a five-year period to support the California Missions Foundation, a charitable corporation dedicated to funding the restoration and repair of the California missions and the preservation of the Spanish colonial and mission-era artworks and artifacts of the California missions. It also would require the California Missions Foundation to match federal grant funds and to provide annual reports to the Secretary regarding the preservation efforts taken with funds provided under the bill. Americans United recognizes that the bill includes some language purportedly protective of religious liberty. Specifically, the bill states that the Secretary of the Interior “shall ensure that the purpose of a grant under this section is secular, does not promote religion, and seeks to protect those qualities that are historically significant.”
Similarly, the National Historic Preservation Act, to which the bill refers, provides that “[g]rants may be made…for the preservation, stabilization, restoration or rehabilitation of religious properties…provided that the purpose of the grant is secular, does not promote religion, and seeks to protect those qualities that are historically significant.” 16 USC § 470a(e)(4).
These protections are steps in the right direction, but they are insufficient as a practical matter to meet the requirements of the Constitution. Time after time, the Supreme Court has required that no government funds be used to maintain, restore, or make capital improvements to physical structures that are used as houses of worship, even if religious services are infrequent. Because most, if not all, of the missions remain active houses of worship, in addition to serving as cultural and historic institutions, it is impossible for the government to fund the California missions without violating the Constitution.
The illegality of the proposal to fund the California missions is exacerbated when one considers the issue of government directly funding religious icons. Because one of the objectives of the California Missions Foundation is to preserve the “Spanish colonial and mission-era artworks and artifacts of the California missions,” and because the bill specifically authorizes federal funds to be used to “preserve the artworks and artifacts associated with the California missions,” the Secretary would be empowered to provide government money specifically to maintain or restore religious artifacts and icons associated with devotional and worship activities at the missions, a result that would be clearly unconstitutional.
Providing Federal Funds to the California Missions Would Be Unconstitutional
Three Supreme Court decisions make clear that it is unconstitutional to allow federal grants for the repair of preservation of structures devoted to worship or religious instruction, and all three of these decisions remain binding law on the federal government. In Tilton v. Richardson, 403 US 672 (1971), the Court laid the framework for the current constitutional requirements regarding construction, upkeep, and maintenance of religious institutions’ physical facilities. Tilton involved a challenge to the constitutionality of a federal law under which federal funds were used by secular and religious institutions of higher education for the construction of libraries and other campus buildings. Although the law allowed money to go to religious institutions, it also contained a proviso that expressly forbade funds from being spent on buildings that would be used for worship or sectarian instruction. The Court upheld the program, but it unanimously held that the proviso was constitutionally necessary and unanimously invalidated part of the statute that would have allowed religious schools to convert the federally-funded facilities for worship or sectarian instruction after twenty years had passed. No building that was built with federal funds can ever be used for worship or sectarian instruction—that is Tilton's clear holding. (403 US at 692.)
In two subsequent cases decided two years later, the Supreme Court clearly reaffirmed the principle that the First Amendment prohibits the government from subsidizing the construction or repair of buildings used as houses of worship. In Hunt v. McNair, 413 US 734 (1973), the Supreme Court upheld the South Carolina Educational Facilities Authority Act, which established an “Educational Facilities Authority,” through which educational facilities could borrow money for use in their facilities at favorable interest rates. However, the Act required each lease agreement to contain a clause forbidding religious use in such facilities and allowing inspections to enforce that requirement. (413 US at 744.) The Court upheld the Act, including the condition that government-funded physical structures could never be used for religious worship or instruction.
Finally, in Committee for Public Education v. Nyquist, 413 US 756 (1973), the Supreme Court struck down New York's program of providing grants to nonpublic schools for use of maintenance and repair of “school facilities and equipment to ensure health, welfare, and safety of enrolled students.” (413 US at 762.) The Court summarized its previous holdings as “simply recogniz[ing] that sectarian schools perform secular, educational functions as well as religious functions, and that some forms of aid may be channeled to the secular without providing direct aid to the sectarian. But the channel is a narrow one.” (Id. at 775.) The Court then held that “[i]f the State may not erect buildings in which religious activities are to take place, it may not maintain such buildings or renovate them when they fall into disrepair.” (Id. at 777.) In other words, government funding for either the construction or maintenance and repair of physical structures is unconstitutional unless there is no possibility that the structures will be used for sectarian worship or instruction. Otherwise the government would be subsidizing religious activity.
All three of these cases firmly establish that it is constitutionally impermissible for the government to provide aid for the construction, repair, or maintenance of any buildings that are, or might be, used for religious purposes. The rule set down by the Supreme Court in these three cases—which requires that publicly financed buildings be used only for purely secular purposes—remains controlling law and has never been undermined or seriously questioned in any subsequent Supreme Court decision regarding direct governmental aid to religious institutions. Thus, under Tilton, McNair, and Nyquist, it would be unconstitutional for the federal government to provide funds to any of the California missions in which religious services take place.
These decisions are in keeping with a lengthy and valuable tradition in America: the idea that maintenance of houses of worship belongs to congregants, not to taxpayers. The idea of compelled support for religion was repellent to our Founding Fathers. Time and again one sees in their writings and public pronouncements a concern that support for religion come through voluntary channels.
Founders like Thomas Jefferson and James Madison did not hold this view because they were hostile to religion. Rather, they believed that it was morally wrong to force anyone to support religious worship, religious education, or houses of worship against his or her will. As Madison observed in his famous “Memorial and Remonstrance Against Religious Assessments,” “The same authority which can force a citizen to contribute three pence only of his property for the support of any one [religious] establishment may force him to conform to any other establishment in all cases whatsoever.”7
Madison, widely considered the Father of the Constitution, believed the federal government should stay out of the business of funding religion. As president, he vetoed a bill giving a Baptist church a small amount of federal land in Mississippi, asserting in his veto message to Congress that the measure “comprises a principle and precedent for the appropriation of funds of the United States for the use and support of religious societies, contrary to the article of the Constitution which declares that ‘Congress shall make no law respecting a religious establishment.’”8
Denying taxpayer aid for the rebuilding, refurbishing, and maintenance of the California missions is neither a radical step nor is it an example of animus toward religion. Instead, it is wholly in line with our nation's past practices and our wise tradition of requiring religious groups to rely on voluntary support given by willing donors, not tax funds coerced by the state.
When some of this money was appropriated, Americans United looked for a way to take our argument into the Federal courts. We found Erik and Sonia Doe, non-Catholics who wanted to get married at a Catholic parish that was supposed to be granted federal funds for restoration. They were denied this opportunity and AU filed suit. Ultimately AU dismissed the suit because the money was authorized but not appropriated. That means that Congress “authorized” the provision of the funds, but Congress never passed an appropriations bill that actually doled out the money.
Then, early in the Obama administration, it became clear that the President was not about to shift the government's view on shelling out tax dollars to reconstruct, renovate, and shellac religious structures, including one right in downtown Washington.
DON'T PASS ME THE PLATE FOR YOUR CHURCH'S UPKEEP9
I'm a minister, so it's no surprise that I'm fond of church architecture. From gothic brownstones and simple wooden country churches to gleaming marble temples and modernistic structures of glass and steel, I continue to be amazed at the variety of edifices people have constructed to serve as houses of worship.
I'm also amazed that in this country we have paid for these structures, perhaps numbering in the tens of thousands all over the land, with the private donations of the faithful. It's a testament to how seriously Americans take religion.
At least that used to be the case. Lately, I've noticed a disturbing trend: Churches deemed “historic” are seeking taxpayer funds for repair and upkeep.
Earlier this month, the US Department of the Interior announced dozens of grants to historic structures under its “Save America's Treasures” program. Scanning the list, I was surprised to see three churches on the list.
Among them is the Washington National Cathedral in Washington, DC. I drive by this structure often. It is an amazing building that soars above the din and distractions of daily political life in the nation's capital. Over the years, I have attended many events there.
Despite its name, the cathedral obviously isn't owned by the government. Public events often take place there, and political leaders are a fixture. But the cathedral is an Episcopal church and belongs to the local diocese. It's not a museum; it is a living, active church where people regularly attend worship services.
Despite this, the church is receiving $700,000 in tax money to pay for foundation repairs and to fix stained-glass windows, doors, and metalwork. I'm disappointed. Many people who have learned of the structural problems have contributed for repairs in recent years. I'm actually going to send them a few dollars myself, voluntarily, but I shouldn't be forced to support any house of worship against my will, and neither should anyone else.
The fact that the cathedral is historic or that it plays an important role in public life is irrelevant. In this country, churches are expected to pay their own way. The men and women occupying the pews pay for building construction and upkeep. Anything else is a religion tax.
The fact is, many American churches are historic. Are we going to put them all on the taxpayers’ bill?
We seem to be moving in that direction. Also on the Interior Department list for a $700,000 public grant is St. Mark's Church in Philadelphia. Built in 1847, it's a fine example of gothic architecture. But there are churches just as old and just as interesting looking all over the East, Midwest, and South. If they are in need of repairs—and I'm sure some of them are—members of the congregation ought to pay for that.
The third church, Trinity Church in Buffalo, is receiving nearly $200,000 in tax money for various repairs. The Interior Department points out that the church was designed by “noted American architect Bertram Goodhue.” Yes, the church has interesting features. Is that all it takes to trump the First Amendment principle that no one can be compelled to support religion?
Two hundred years ago this month, a bill landed on the desk of President James Madison that would have officially incorporated an Episcopal church in the District of Columbia. Although the bill didn't offer any tax funds, it did outline how the church was to be organized and what steps were to be taken if the minister resigned. It also authorized the congregation to help the disadvantaged and to offer schooling to poor children.
Madison vetoed the bill. He wrote to Congress, “[T]he bill exceeds the rightful authority to which governments are limited, by the essential distinction between civil and religious functions and violates, in particular, the article of the Constitution of the United States, which declares, that ‘Congress shall make no law respecting a religious establishment.’”10
Madison knew that government exceeds it authority when it acts to support religion. The offense is all the worse when that support takes the form of your tax dollars. The tab for building, repairing, and maintaining an active church should always be paid by its members. The fact that the church is old, looks interesting, or was designed by a noted architect does not relieve the congregants of this fundamental responsibility.
Old North Church is of great interest to residents of Boston and Northeast Coast tenants; the missions of California are revered by Californians who often did an art project on them when they were in junior high school, and DC's residents all know of the Washington Cathedral and were very unhappy when it suffered falling bricks and mortar during DC's only modern earthquake. Nevertheless, these are all at their root somewhat provincial concerns.
Not so with the nationally calamitous Hurricane Sandy! News coverage of this cataclysmic 2012 storm became a very compelling concern for people throughout the nation. So after Bruce Springsteen and dozens of other musicians held a nationally broadcast telethon for relief, Congress dipped its toes once again into the muddy waters of “Acts of God” and came up with feet covered with tax dollars. Once again, though, we had to express our constitutional concerns.
Americans United (along with a handful of other groups, including the ACLU and the Religious Action Center for Reform Judaism) is still embroiled in a lobbying effort to prevent the use of funds from the Federal Emergency Management Agency (FEMA) to rebuild churches, synagogues, mosques, and other religious real estate damaged during last October's Hurricane Sandy.11
The House of Representatives passed a bill in mid-February 2013 to explicitly allow direct reconstruction grants on a lopsided 354–72 vote (66 Democrats and 6 Republicans in the minority), but the Senate has yet to consider the matter. It was a “feel good” vote for most members; the persistent images of ruined homes, businesses, and lives on the Atlantic Coast shore do cry out for doing something.
There were no House hearings on this matter, a fact noted by the New York Times in its editorial opposing this funding. Frankly, a record on this would probably have given far more members reasons to object.
On the one hand, religious institutions in the affected areas can still receive federal disaster loans (which have to be repaid) and are eligible for other grants if they utilize 50 percent or more of their facilities for the provision of “essential services of a governmental nature”—such as feeding the hungry or sheltering the homeless. Therefore, these entities are not being left out in the cold.
On the other hand, neither is it accurate to suggest that, on a practical level, they are being treated in a discriminatory fashion. Churches are already tax exempt, unlike private homes and businesses, and therefore will find it easier to attract charitable gifts than the local surf shop will. Under the Religious Land Use and Institutionalized Persons Act, they are also given more leverage than other agencies to gain zoning exceptions for relocating their facilities. Religious and nonreligious buildings and their owners start off in slightly different legal positions.
And, then, of course, there is the Constitution. It has always been assumed that one thing government at any level cannot do is build your church, your temple, or your mosque. There would be no greater example of the forbidden practice of picking favorites in America's religious debates than to pay to dig out basements, buy bricks and mortar, put up walls, and raise a roof for any such buildings.
Back in the 1970s, a series of never-repudiated Supreme Court cases made that emphatically clear, even holding in one case that a religious college needed to guarantee that if it got public funds to construct a new campus building, it would never convert it to any spiritual use. Although the Supreme Court has allowed some kinds of funds to flow to religious schools (that it should not have), there is no hint that it wants to change the rock-solid construction rules.
Logically, if you can't build the First Baptist Church, you can't rebuild it either after a fire, flood, earthquake, or Hurricane Sandy.
But, hold on, say some, this is an emergency. One of the coauthors of the first book I wrote back in 1995 (The Right to Religious Liberty) sent a letter to the editor of the Times, disputing its position.
“Disaster relief is an expression of social solidarity with victims,” he said, commenting further that restoring houses of worship is a recognition that they are, like other structures, “essential to functioning communities.” This sentiment is well stated; its implications are quite different.
Sacred spaces are deemed “sacred” by believers in specific ideas. Some religious groups see community outreach to all as essential to their mission; others see it as secondary or even a nuisance in the general soul-saving mission they are on. I'd prefer that governments not be invited into the debate over what houses of worship are best for a community or which help a city “function”—an entanglement that curdles the blood of many theistic and nontheistic civil libertarians.
Indeed, in America's other most recent hurricane catastrophe, 2005's Hurricane Katrina, even George W. Bush did not approve reconstruction grants for places of worship.
I used to spend summers on some of the New Jersey beaches that barely exist anymore. I even went to churches there. I have never vacationed in Kansas. There are many churches there, including the notorious Westboro Baptist Church of the Rev. Fred Phelps, the group that pickets the funerals of Iraq War veterans and applauds when gay activists die.
Even if I could get over my money flowing to a little Jersey church's rebuilding fund, I'm never going to foot the bill for Phelps's edifice if it gets blown away by a tornado.
The federal government, though, can't draw such distinctions. It needs to be all in or all out; I'm voting for keeping it far away.
This funding was not appropriated, in spite of passing out of the House with that vote of 354–72. The Senate never took up this bill nor moved on their own and the initiative quietly passed away.
“RELIGION IN THE MILITARY”
My friend “Mikey” Weinstein and I are both First Amendment enthusiasts and have both been the subject of imprecatory prayers by former Navy chaplain—and recently elected Colorado state representative Gorden Klingenschmidt. Mikey runs the Military Religious Freedom Foundation (MRFF). Occasionally, however, I am asked to wade into the military arena with letters, columns, or presentations to armed service. Here is what I said during a debate with American Center for Law and Justice chief counsel Jay Sekulow before a gathering at Maxwell Air Force base in Montgomery, Alabama, back in 2010.
In my view, Defense Department policy regarding religion should start with two premises. One, it should permit the full and free expression of religious and, yes, antireligious, views by individual service members to the maximum extent possible consistent with real, not imagined, concerns for order and discipline. Second, policy should avoid giving even the appearance of official favoritism to any one religion or any religion at all.
Sounds simple. And, if this was a hippie commune in the sixties (not that I was ever in one) where there was no chain of command and no governing structures at all, we'd have very few problems adopting such a policy. However, I have noticed not a single love bead since I arrived last night, and I know that the United States military is a different creature.
It presents several thorny problems in guaranteeing what the First Amendment is about: both the free exercise of religion and the promise that governments and their official representatives will be strictly neutral on matters of religion: not hostile, not promotional, simply neutral. In the military, command influence is essential, usually appropriate, and rarely raising constitutional issues. Also in the military are a distinct noncommand slot for chaplains, persons who hold a truly unique “military occupational specialty.” Chaplains are not self-appointed gurus who speak to God while consuming amounts of mushrooms (again, a reference to the sixties, which many of you know only by looking at your parents’ old records in the garage); no, chaplains are certified by their denominations as trained in certain worldviews, but are then funded by American taxpayers.
I don't believe that having chaplains in the military violates the separation of church and state; indeed, I think you can make a strong case that when sending men and women to foreign lands to support asserted American interests we have an obligation to accommodate the spiritual needs of those far from their religious homes. The chaplaincy does that.
Here is where Jay and I differ a lot. I think chaplains are here to serve the needs of servicemembers who ask for assistance—persons struggling with personal, professional, or philosophical problems they want addressed from a religious viewpoint. They are not hired to be roving missionaries to all persons with whom they come in contact. This is difficult because it seems a human trait to want to tell others about any good news you have, whether that is the Gospel of Jesus Christ or the announcement of your engagement (opposite sex only, of course, in this institution). Bluntly, chaplains need to recognize and appreciate the need to refrain from religious evangelism as a part of their assignment.
Chaplains do serve one other major function: a public one, which is often called “solemnization” of ceremonies. There are two thousand different religions practiced in this country—and about twenty million Americans are nonbelievers, freethinkers, atheists. They are all represented in the military—yes, even in foxholes. We can't afford to hire one chaplain from each (and a few secular counselors to boot) in every command. Therefore, it is neither irrational, nor unconstitutional, to tell a chaplain speaking or offering an invocation at a family event on base or at any official public event that he or she should attempt to respect the diversity of those in attendance by not suggesting that there is only way to God (his or hers) or by speaking in a “nonsectarian manner”—a concept many courts have embraced. Even as a minister myself, I should note that religious thanksgiving and requests in prayer are not the only way an occasion can be made “solemn”—even silence can do that sometimes.
The other place where Jay and I have some significant differences is with the issue of what commanders may do or say about religion without exercising undue command influence; that is, inappropriate efforts to impose their ideas on those in their command. No one is suggesting that commanders have their mouths shut with duct tape if the subject of religion comes up. However, it is foolish, even dangerous, to fail to recognize that the men and women who serve under you are not going to be influenced by what you say and how you say it. If you had no capacity to lead, you wouldn't be here this morning.
So, under most circumstances, if you start to tell those in your command, for example, “I was born again after hearing the Reverend Billy Graham at a big revival in Atlanta,” you are probably going to be heard as suggesting next time Graham's son is in town, you'd be real happy to see them there. In addition, that might well be read as a comment that “getting right with God” is getting right with your commander and that couldn't hurt your chances at advancement. This happens with high school football coaches whose religious comments suggest that playing time is going to be correlated with participation in team prayer or other activities and every player knows the more time you are on the field the more time college scouts have to watch you excel. Think of how much more important it is when the stakes are your whole career in the service of your country.
I notice that former chaplain Gordon Klingenschmidt contributed a chapter to your textbook. Mr. Klingenschmidt and I don't exactly have a rosy relationship: In fact, he launched an “imprecatory” prayer campaign against me about a year ago, urging people to pray for my death. I'm not losing any sleep over that, but I am deeply troubled by his crusade to try to convince Congress and the American people generally that there is widespread anti-Christian animus developing in the military. I see no evidence of that whatsoever. And, although Jay is right to be clear that Christians do need to have their legitimate rights protected, Christianity is still the religion of choice for a vast majority of armed services personnel. Majorities tend to do pretty well—even without lawyers. I am much more troubled by the claims we get in our office about what can only be described as a “Christian nationalism,” an effort by some in military circles to denigrate the service of those who are not Christian, or who are not even religious. There is a real difference in my view between God and country—Christianity has not cornered the market on faith. When we lapse into a sense that what we do is a holy enterprise and that our military policy represents God's will as well as that of the Pentagon, we may find ourselves in a heap of trouble. When we act like the nonbeliever or the Muslim is less trustworthy or less committed than the Christian soldier, sailor, or airman, we risk abandoning our very American commitment to equality under the law and the strength that comes from our original national motto: “Out of many, one.”
We were also engaged in efforts to stifle the advance of General William Boykin—now a mouthpiece for the Family Research Council. He was not a fan of our efforts.
Another person we have been following for some time, Lt. Gen. William Boykin of the US Army, hit the news in a big way. Earlier this year, we had successfully gotten the Army to scale back a special event Boykin was planning to hold for Baptist preachers at Fort Bragg in North Carolina.
Boykin had quite a treat lined up for the pastors. They were going to stay overnight on the base, see things there that the public is generally not permitted to visit, and enjoy “informal time” with the general. AU's complaint put the kibosh on much of that.
We had no reason to believe we would cross paths with the general again. But unbeknownst to us, Boykin was quietly approved by the Senate this summer as undersecretary of defense for intelligence, a key role in the US effort against terrorism. While looking into Boykin's background, a journalist working for the Los Angeles Times and NBC News discovered videotapes of the general addressing various church groups, while in uniform, on the topic of religion and warfare.
His comments were incredibly inappropriate. Boykin told the First Baptist Church in Broken Arrow, Oklahoma, that Osama bin Laden is not the real enemy and “the enemy that has come against our nation is a spiritual enemy. His name is Satan.” Later, in Sandy, Oregon, Boykin announced that Muslim terrorists hate us so much “because we're a Christian nation…” He also told a Daytona, Florida, audience that he was able to capture a notorious terrorist in Somalia because the man was a Muslim and “I knew that my God was a real God, and his was an idol.”
Gen. Boykin has all the right in the world to believe whatever he wants about the validity of his faith and that of others. Technically, he may not have violated the Uniform Code of Military Justice even when his in-uniform comments directly conflicted with Bush's persistent efforts not to characterize Middle East conflict as pitting Christians against Muslims. However, the actions were unconscionable, divisive, and downright dangerous. His words appeared in newspapers around the Arab world within days as living embodiments of the claims of bin Laden and other extremists that the United States is indeed fighting a literal “holy war” against Islam.
We urged Secretary of Defense Donald Rumsfeld to immediately transfer Boykin. Rumsfeld declined to take my advice, as Religious Right leaders circled the wagons around Boykin's “free speech” rights as if they were suddenly the world's greatest civil libertarians.
Our military leaders are supposed to preserve the peace and, failing that, to win wars. It is not their job to evangelize the American people nor to orchestrate a crusade against people of different religious traditions. Yes, the general has attempted to “clarify” his comments, but it is too late. His disdain for faiths other than his own has been recorded for posterity, including in the terrorist training camps of those who are trying to convince a new generation that the United States is on a campaign to “Christianize” the entire world with the military there to back up the effort.
After repeated incidents to which the military turned a blind eye, including the times when Boykin asserted that military leaders are so disgusted with President Barack Obama that many want to “take out” the president, when he said that Muslims shouldn't be allowed to build any more mosques in America, and when he once called America's efforts to combat international terrorism a “holy war,” the Army finally took notice in 2013.
According to the Washington Post, military officials “quietly” issued a “scathing reprimand following a criminal investigation that concluded [Boykin] had wrongfully released classified information….”12
Reported the paper, “According to the Jan. 23, 2013, memorandum, the Army determined that Boykin's 2008 book, Never Surrender: A Soldier's Journey to the Crossroads of Faith and Freedom, disclosed ‘classified information concerning cover methods, counterterrorism/counter-proliferation operations, operational deployments, infiltration methods, pictures, and tactics, techniques and procedures that may compromise ongoing operations.’”13
A memo signed by Gen. Lloyd J. Austin III, who at the time was the Army's vice chief of staff, accused Boykin of “unprofessional behavior” that reflected “poorly on your character.” Austin's memo further stated that Boykin's actions are “prejudicial to good order and discipline in the armed forces.” Boykin was finally relieved of his position.
But General Boykin may have lost the ferocity of his anti-AU animosity.
SCALING THE SUMMIT: WHAT I LEARNED AT THIS YEAR'S FAR-RIGHT SHINDIG14
The day was not a total waste. Just before lunch, Oliver North made a somewhat engaging presentation about people who serve in the military. We used to do a radio show together, but I had not seen him in several years so I decided to stop by and say hello at the book-signing table. This turned out to be a little awkward because the Family Research Council's William G. “Jerry” Boykin was signing his book at the same table.
Anyway, North was happy to see me, and we chatted about cable television, the death penalty, and how we're aging. I told him that I thought one of the perks of being on radio with him years ago was that I would get a free copy of all of his future books. He noted that he had actually sold out at the Summit.
Boykin observed us speaking and jumped in, joking with North that I'm great for his fundraising. People observing this began pulling out their smartphones to snap pictures of us all together—me sandwiched between the colonel and the general. Many of them told me they'd send me a snapshot; not one did—but I feel confident that the NSA could find it.
THE JUDICIARY
The federal judiciary consists of ninety-four trial-level courts; thirteen appeals courts, and (of course) the Supreme Court. It is a prime target for Religious Right activists; for “our side,” with the exception of the Alliance for Justice, not so much. When George W. Bush nominated John G. Roberts for Chief Justice in 2005, most groups from our team were silent for weeks, examining his record ad nauseam.
However, a few of us, including indefatigable feminists like Ellie Smeal (Feminist Majority Foundation), Sammie Moshenberg (National Council of Jewish Women) and Kim Gandy (then president of the National Organization for Women) held weekly planning sessions in an effort to light a fire under our brother and sister organizations to oppose his nomination.
Roberts was approved by the Senate in a 78 to 22 vote. Just one year later, Samuel Alito was nominated as an associate justice. Although somewhat-more controversial, he too was elevated to the highest court by a vote of 58 to 42.
Honestly, I don't believe that President Obama really understood the importance of getting into judicial battles quickly. Here is an excerpt from a speech made to Van Jones's Rebuild the Dream conference in the summer of 2012.
I'm a minister and a lawyer. So, indeed, I can forgive you this afternoon, go sleep on it tonight, and still sue you in the morning. Today, though, all I want to do is share one nightmarish trajectory and one of my own modest American dreams.
Let's just look at the area of my greatest professional interest: separation of church and state. We have had some very bad decisions lately. There was a 5–4 decision challenging an Arizona tax credit scheme where a resident could pay some of what he or she would otherwise owe in state taxes to a “charity,” which would then dole out scholarships to mainly religious schools and claim it as a “tax credit.” A five-member majority found that Arizona taxpayers did not have “standing” to even enter the courthouse door to challenge the program. See, the bare majority claimed this was not really an expenditure of tax money because the money that would have been paid in taxes hadn't physically reached the treasury. What? In the majority's view, it had reached the bank account of the charity instead: thus not technically “government” spending. In a stinging dissent, Justice Kagan noted quite accurately that “form is prevailing over substance, and differences that make no difference determine access to the Judiciary.” Pretty dull stuff, right? Let's look at what is really going on. We all should know what the Right's agenda is here: privatize education, kill public schools, and transfer the teaching of the young to private entities. As the late Jerry Falwell once said, “I hope to live to see the day when there are no public schools because Christians will have taken them over.”
And then, in the most recent church/state case, the Court unanimously held that any person designated as a “minister” by a religious employer would not be able to go to the EEOC (and thus never get into federal court either) to claim an adverse employment decision was based on possible racial, gender, or other discriminatory bias. Unanimous. I halfway “joked” to a reporter that this meant that the custodian of any religious body could now be designated as “minister of dirt” to avoid legal liability. But in fact the corporate entity was given the right to determine which employees would be placed in a category that prevents them from having access to federal remediation.
And then, in the most recent church/state case, the Court unanimously held that any person designated as a “minister” by a religious employer would not be able to go to the EEOC (and thus never get into federal court either) to claim an adverse employment decision was based on possible racial, gender, or other discriminatory bias. Unanimous. I halfway “joked” to a reporter that this meant that the custodian of any religious body could now be designated as “minister of dirt” to avoid legal liability. But in fact the corporate entity was given the right to determine which employees would be placed in a category that prevents them from having access to federal remediation.
But the eight-hundred-pound gorilla case is coming down the road. Just three weeks ago, a number of Catholic entities and employers simultaneously filed twenty-three lawsuits challenging the yet-unwritten rules for insurance coverage of contraceptive services mandated under the Affordable Care Act These lawsuits were premature and read more like press releases than legal documents, but this issue will eventually ripen. Here is the claim: Religious corporations have a kind of “collective conscience” that trumps the conscientious medical and moral decisions of employees and students. So, for example, Catholic University asserts it doesn't want to cover birth control for students because it is a core belief of the Catholic Church that birth control is bad. If an individual student feels differently from an ethical standard, tough luck: That conscience is not worth protecting. The Conference of Catholic Bishops apparently thinks that the intrauterine device is at least as significant as the Resurrection in its theology, even though, by the way, the first papal letter condemning contraception wasn't written until 1931.
But, it is not just Catholic corporate interests that are to be protected. Some of the folks named as plaintiffs in these lawsuits are just employers in secular companies who don't want to cover contraception. As the general counsel for the Bishops asserted in an interview with USA Today: “If I quit my job tomorrow and opened a Taco Bell, I want the right to decide what will be covered in my health insurance plan.” See where this goes? I am a Jehovah's Witness; I run a company selling widgets; I'm not covering surgery in my healthcare plan because so many of them require blood transfusions that I think are immoral. The Supreme Court, whatever its makeup, is very likely going to see just these claims made in the not terribly distant future. Under the claim of “religious freedom”—the cover for a gigantic new fictional creature called “corporate conscience”—the rights of workers could be given short shrift once again. [More on this in chapter 8.]
This is my take on one area of constitutional law and corporate decision making. But let me spend a few minutes on a broader issue.
We progressives repeatedly claim there is not just an already-too-frequent substantive constitutional philosophy crisis, but a structural crisis as well, an emergency of unfilled benches at the appellate court level: twelve vacancies, a considerably higher number than at this point in 2004 or 2008. So, last week, Senator Mitch McConnell announced invocation of the so-called “Thurmond Rule,” a largely fictional claim that in presidential-election years the party whose President is in office is supposed to sit on its hands and await the outcome in November. This is named for Senator Strom Thurmond, arch-segregationist to the end; Strom Thurmond, who never saw a wasteful weapons system he didn't want to fund; Strom Thurmond, who attempted to get John Lennon deported; Senator Strom Thurmond, who has no moral standing to be invoked for one blessed thing. If we truly believe that this is a real emergency because these vacancies are denying the opportunity for Americans to be heard when their fundamental rights and liberties are in jeopardy, then we should insist that the Senate not allow the Thurmond rule to be the last word. You deal with a real crisis immediately and aggressively; you know, you don't just fly over a dying and drowning city in Air Force One.
I was happy last March when a deal was cut to confirm fourteen judges in a seven-week period. I was glad that the obviously qualified Judge Andrew Hurwitz was confirmed for the Ninth Circuit last week. But progressives should insist that this process not stop! For example, there are already four appeals court judges who have had affirmative votes by the Judiciary Committee; last week two obviously qualified nominations were made for vacancies on the DC Circuit. Well, let's suggest that the Senate start moving them to the floor right away. Let the obstructionist Republicans protest; let cloture petitions be filed to end debate; let the obstructionist Republicans protest again; then—here's the good part—keep filing cloture petitions and don't move on to other business; then, we can let the obstructionist Republicans protest live, and in person from cots if necessary, in marathon sessions for hours and days on end—Mr. Smith Goes To Washington style—and when a quorum is not physically present, find the Senators and get them to the floor. That's my kind of affirmative response to a filibuster threat. In poker, it's called “calling a bluff.” And let America see right on C-SPAN what happens when bizarre ideological complaints about the President prevent good and decent men and women from filling the jobs that need to be filled to make the courts actually work! Those viewers won't see and hear substantive arguments about judicial philosophy because obstructionists are incapable of making them, they will notice one minority party wasting the time and money of the taxpayers, and, I predict, they will be royally ticked off.
Some may say, but this will mean the Senate won't get other important work done. Like what? We know from the Equal Pay Act debacle from two weeks ago that obstructionists won't let important legislation move anyway. Should the Senate take up some of the cockamamie legislation the House has sent over? Maybe that bill to “reaffirm ‘In God We Trust’” as our national motto, one of John Boehner's pet projects from a few months ago?
And finally, as the Senate “yap fest” that I imagine drones on, the real supporters of a judiciary by and for the people can make some righteous and ringing speeches proclaiming what the courts and the Constitution are all about. The Constitution—the Bill of Rights in particular—was filled with “majestic generalities” precisely so that federal courts could breathe life into them as the reality of America changed. As my friend Professor Erwin Chemerinsky puts it so clearly, “There always has been a living Constitution and hopefully always will be. The opposite of a living Constitution is a dead Constitution and no society can be governed under that.” 15 How true. The promise of anyone seeking to be on the federal bench, the Supreme Court in particular, must again be—not to serve as Chief Justice Roberts's “referee” but to do what is necessary to serve that one great overarching value of American democracy: to serve as a constraint on the otherwise overarching tyranny of the majority (and their political allies) for us and future generations. Thank you.
Things have gotten a bit better since 2013. A few more appellate judges have been confirmed. However, as Congress adjourned in December 2014, thirty-four district court judicial nominations were languishing in either the Judiciary Committee or the Senate floor. (Another fifty-six district and seven circuit-court vacancies had not been the subject of any Administration nomination.)
According to a recent study by the New York Times,16 for the first time in more than a decade judges appointed by Democratic presidents considerably outnumber judges appointed by Republican presidents. Democratic appointees who hear cases full time now hold a majority of seats on nine of the thirteen United States Courts of Appeals. When Mr. Obama took office, only one of those courts had more full-time judges nominated by a Democrat.
The Democrats’ advantage has grown since late last year, when the majority stripped Republicans of their ability to filibuster the president's district and appellate nominees. I had mixed feelings about this, concerned about the precedent it set when next a Republican gets to the White House (or even when Republicans control the Senate). With this change, it is a national embarrassment that the Senate adjourned with any nominees pending at all.
TAKIN’ IT TO THE SUPREME COURT
Sometimes we get to go to the Supreme Court. We may file an amicus (friend of the court) brief or be heard directly. That can be fun. Sometimes.
It is true, but unfortunate, that major media tends to ignore judicial decisions—unless they happen to be announced by the US Supreme Court. Some years ago, the three “original networks”—ABC, NBC, and CBS—even got rid of their Supreme Court correspondents—Tim O'Brien, Carl Stern, and Fred Graham, respectively. One network official was quoted as noting, “What is the point? Everything will be a 5–4 decision.”
He was not correct and the public suffered for the absence of these three well-trained reporters. The coverage of the Arizona “standing” case and Hossana-Tabor (the afore-mentioned “ministerial exception” case), discussed in my summer 2013 speech above, was spotty and one of the last major decisions of the Rehnquist court went relatively unnoticed. (NBC's Pete Williams, CNN's Bill Mears, and NPR's Nina Totenberg have, however, fought to retain solid electronic coverage.)
THE HIGH COURT AND DAVEY: HANDING A BIG VICTORY TO THE OPTIMISTS’ CLUB17
Sometimes, “guarded” optimists like me get more than they hoped for. I was planning to take Feb. 25 off from work, but shortly after ten that morning I got a call at home from AU communications director Joe Conn, who said the Supreme Court had just ruled in Locke v. Davey, a case questioning whether Washington State had to fund scholarships for ministerial students. Our side had won.
The news got better. It was a 7–2 decision, and Chief Justice William H. Rehnquist authored the opinion. This had now become staggering news. The chief justice is rarely a defender of separation of church and state.
So much for my day off! I did a few interviews for newspapers with early deadlines, like the Christian Science Monitor, and radio networks looking for sound bites to put on the air at eleven and then got suited up for the ABC and NBC evening news broadcasts, as well as NPR's All Things Considered. (I realize that you couldn't see that suit on NPR, but I can assure you the purple-and-grey tie was very nice.)
It was interesting to listen to those on the losing side trying to “spin” their argument. Religious Right and pro-voucher groups had a lot riding on this case. Last year, Jay Sekulow, Pat Robertson's top legal strategist who argued the case at the high court, issued a fund-raising appeal labeling Davey one of the “MOST IMPORTANT RELIGION CASES OF OUR TIME.” Sekulow claimed that if the taxpayers were required to pay for Davey's religious training, “religious freedom will be protected like never before.”
But having lost, the right wing suddenly tried to argue that the case was merely an insignificant footnote that really had no implications beyond one state not paying for one student's theological education. TV preacher Jerry Falwell appeared with me that night on CNBC and attempted to pose as a legal scholar, insisting that “there is no separation of church and state.” He noted that aside from leaving a “bad impression,” this “cloudy” decision had no real significance and “changes nothing.”
The Religious Right and its pro-voucher allies had to play it this way, because the truth is almost too much for them to bear. If the high court had bought the Sekulow-Falwell-Bush administration position in this case, every state would have been forced to pay for any religious service or program that had a secular counterpart. In other words, if a state pays for public education, it would have to pay for religious schooling as well.
This would have taken the bad decision of two years ago permitting vouchers for religious institutions under some circumstances and greatly expanded it, forcing states to include religious schools in any subsidy program. That would have been a constitutional catastrophe of biblical proportions. It did not happen. The right wing lost, and it lost badly.
There is a bizarre footnote to this day. During the CNBC show, before I had even opened my mouth, Falwell referred to me as a “Christ hater.” I'm used to him saying ugly things about me, but even I was shocked a few minutes later by an astonishingly bizarre statement Falwell made about a total stranger. The host suddenly turned the topic to Mel Gibson's movie The Passion of the Christ and told both of us that a news report had just come in that a woman in Wichita, KS, had died of a heart attack while viewing the film. Falwell instantly retorted, “That lady would have died if she was at a water fountain in the park.” I literally heard broadcast staffers in the room next to the studio gasp in shock over the remark.
Although Falwell and I clearly have different theological views, one would think that a purely pastoral concern would lead any minister to express sympathy instead of making some rude and dismissive comment about any person's death. For the record, the dead woman, Peggy Lee Scott, was in fact a daughter, a wife, a mother, and a grandmother who worked for several local radio stations. Whatever point Falwell was trying to make was aptly characterized by one viewer as “a cheap shot” from a man who seems to be “commenting from the gutter.”
It was also designed, as this was the emphasis found in briefs like those of the Becket Fund for Religious Liberty, to have the Supreme Court invalidate often inaptly-named “Blaine amendments” to state constitutions. These are provisions in thirty-seven state constitutions that explicitly deny the use of tax dollars to religious ministries, missions, schools, and clergy. The hope of the antiseparationists, who are only federalists when it suits them, was to have the Court declare that all state constitutions that afford greater protection of the public treasury from the hands of religious supplicants than the First Amendment as interpreted does, would effectively be nullified.
My friend Michael Newdow successfully challenged the use of the words “under God” in a Ninth Circuit case in 2004. Regrettably, although he was an eloquent oral advocate at the Supreme Court—with an unassailable bottom line argument—he was held to have lacked standing, since he lacked custody of his daughter, who attended public school. He filed again in 2005 in the United States District Court for the Eastern District of California on behalf of three unnamed parents and their children. Based on the previous ruling by the Ninth Circuit, the trial judge ruled that the pledge is unconstitutional when recited in public schools.
On March 11, 2010, a different panel of the United States Court of Appeals for the Ninth Circuit upheld the words “under God” in the Pledge of Allegiance in the case of Newdow v. Rio Linda Union School District, stating that “the School District's Policy of having teachers lead students in the daily recitation of the Pledge, and allowing those who do not wish to participate to refuse to do so with impunity, do not violate the Establishment Clause.”18
It is somewhat rare that a direct Americans United case gets to the Supreme Court, but in 2014, a challenge to legislative prayer in Greece, New York, made its way there.
Here is a little presentation I gave to the students at Rutgers's Law School just weeks before the ultimate Supreme Court decision in 2014.
Marsh v. Chambers, upholding the constitutionality of the regular prayers of a chaplain hired by the Nebraska legislature, may well be the most poorly reasoned decision regarding religion in modern Supreme Court jurisprudence. Applying no traditionally recognizable “test” of constitutionality, it ultimately upholds a religious ritual using public funds, affirming the continuance of the practice solely on its history.
In my view, flawed as Marsh may be, its reasoning is readily distinguishable from the issues raised in the controversy in Galloway v. Town of Greece. Our two plaintiffs, Susan Galloway and Linda Stephens, challenged monthly town council prayers—which were almost always given by Christian ministers. Ms. Galloway is Jewish; Ms. Stephens, an avowed atheist.
Here is what I consider the relevant background of this case: Prior to 1999, the Greece Town Council started its business meetings with a moment of silence, a nod to dignifying the occasion of action by a legislative body. Upon the election of a new board chair, John Auberger, however, the “opening” policy changed to one in which a prayer was offered by a local member of the clergy, invited from persons representing institutions listed on a vaguely and erratically constructed “clergy list” garnered by city employees from publicly available sources.
Actual attendance at town council meetings is sparse. Residents who do attend largely fall into one of several categories: certain city employees whose jobs require attendance, newly appointed police officers sworn in on these occasions, citizens being awarded various city awards, high school students who are visiting the body to fulfill part of a civics graduation requirement, and residents who are seeking a change in public policy or a “benefit” that the council has the authority to provide. Our plaintiffs fell into that last category.
When our clients went to a council meeting, they were confronted with a religious activity they found wholly inappropriate for such a venue: A prayer was given by the selected minister from behind a podium containing the town of Greece seal, who faces the audience, not the seated members of the council. In the eighteen months before the record in this case closed, 85 percent of those prayers specifically mentioned “Jesus,” the “Holy Spirit,” “Your son,” or “Christ.” Indeed many were clearly based on Christian doctrinal beliefs, including the Resurrection, Pentecost, or the Ascension of Christ into heaven. Some asked for very concrete affirmative conduct on the part of the audience, including standing, “joining,” or bowing one's head. Others assumed that all of those present were Christian (for example, referring to “us as Christian people” or proclaiming “our Christian faith”). Finally, after the lawsuit was filed, a few prayers even made veiled references to the Council being “God fearing” and implying that certain other people were not, including in the view of one prayer-giver, certain unspecified “ignorant” minorities. Some of these prayer offerers were officially referred to as the “Chaplain of the Month.”
Over the course of this protracted litigation, there were four exceptions to the overarching theological direction I've just noted. A Wiccan priestess offered one invocation, a Baha'i leader spoke once, and—although the council apparently found it impossible to find a rabbi—a Jewish person who knew some Jewish prayers twice offered one. None of these figures were accorded the title of “Chaplain.” Curiously, these four “exceptional” offerings were all done in 2008, the year in which the litigation began. After 2008, and until the record closed, the speakers were, once again, all Christians. Throughout much of this litigation, the town claimed in various media appearances and in court filings that it would be willing to have anyone from the town appear. However, this sentiment was never actually announced to the residents, much less formally adopted as policy by the board.
Our clients’ claims were rejected at trial, but on appeal to the Second Circuit, the lower court was reversed in a unanimous decision. The central and persuasive finding in that decision was an assessment of the “totality of the circumstances,” concluding that the manner of the prayer's presentation and its consistent basic content appeared “to affiliate the town with a particular creed.” The decision referred to the “steady drumbeat of often specifically sectarian Christian prayers.” The Second Circuit did not hold that “the town cannot open its public meetings with a prayer or invocation,” noting that the Marsh decision allows legislative prayers under some circumstances. The town council appealed and the Supreme Court—frankly, to my surprise—granted certiorari on May 20, 2013. The case was argued on November 6, 2013, just a few months ago.
In the judgment of the Americans United legal team, the Second Circuit reached the right decision under the facts, but did not do so with the strongest possible analysis, particularly in distinguishing the Greece circumstances from those in Marsh. Here are some of the differences we pointed out in our brief and oral argument to the Supreme Court.
First, in Nebraska, as during invocations for the United States Congress, the prayer is directed to the members of the body. The trial court in Marsh referred to this as “an internal act.” It should be noted that in Washington very few members are actually present to hear these prayers, but some of those not present claim to watch the prayer on the television feed sent to their offices. The public that is in attendance are sitting in a gallery watching events; they are not asked or expected to participate. Indeed, certain efforts to embellish or critique the invocation get you ejected and sometimes arrested. A small group of Christians found themselves in just that circumstance in July 2007, when they vocally chastised the first Hindu asked to give the Senate prayer, labeling him “wicked” and “an abomination.”
This difference is also significant as a matter of law because the people in the gallery are not there to plead a case or argue a position to the legislators. (At Congressional hearings, where advocates for positions do appear, there is never any offering of a prayer or other religious activity, and witnesses can even choose to “affirm” rather than “swear” to tell the truth, which to many suggests a religiously based promise.)
Under the state and federal seating schema, legislators are not in a position to observe the audience and, thus, notice which people are “appropriately” observing the religious event on the floor. In Greece, however, the Council is viewing the audience and failure to participate fully will be observed and indeed could be used as a strike against doing what that audience member pleads for a few minutes later, a detrimental start to achieving the very goal she or he is seeking. There is no lawyer or advocate for any person appearing before a legislative, judicial, or executive branch body who would not recommend that persons “go along” with any formalistic practice whether they like it or not. In its simplest form, this is what causes me to label the Greece practice inherently “coercive,” tending to make people operate in a manner that they would otherwise not choose to do but for the pressure to conform and the fear of reprisal for failing to do so. The Second Circuit characterized this as putting attendees in the awkward position of “either participating in prayers invoking beliefs they did not share or appearing to show disrespect for the invocation.”
There is no way to escape this pressure, other than to forfeit one's right to attend the board meeting. As the Supreme Court, in one of its rulings prohibiting prayers at high school graduation put it, no citizen should be required to “take unilateral and private action to avoid compromising religious scruples.”19 Coercion could be “subtle and indirect” it continued, a recognition that coercion of course does not occur only through the mechanisms of gunpoint or threatening imprisonment. The Court even labeled prayer over the public address system in a high school football stadium as having the effect for children and adults in the bleachers of the “improper effect of coercing those present to participate in an act of religious worship,”20 correctly identifying prayer as a participatory event. Significant social science research, analyzed in our brief to the Supreme Court, buttresses the claim of real coercion just from a sense of needing to go along with majority sentiments and practice.
We come now to the second major distinction between Greece's practice and the activity in the Nebraska legislature. The long-serving Presbyterian chaplain there thirty-four years ago had, at the request of a Jewish legislator, removed references to Jesus from his prayers, making generic references to a deity but eliminating most Christian theological references. He did not try to proselytize non-Christian members of the body. This fact is noted repeatedly by the majority in Marsh. They believed that the prayers could be accurately labeled “nonsectarian”; indeed, they wrote that the prayers there had not been “exploited to proselytize or advance any one”21 faith. As I have noted earlier, the prayers in Greece are anything but that.
The construct of a “nonsectarian” prayer is admittedly an odd one for some of us, particularly those of us who actually engage in that practice. Normally, a prayer is directed to a specific entity, envisioned in a certain way—from bearded man in flowing robes to spiritual energy field—and for the purpose of thanks for a perceived “blessing” or a request for help for the future. This is not what a majority of the Supreme Court's members seem to mean, however. A definition that seemingly does not bother most members of the current court is one I'd submit would be seen as “strange” (to be polite) by virtually any religion scholar in the world. Here is a version of that definition written by Justice Antonin Scalia: A sectarian prayer is one “specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world are known to differ (for example, the divinity of Christ).”22
For many, once you announce support for one God, as opposed to multiple ones or none at all, you are making a profound and profoundly sectarian statement. Adding to that such characteristics as being all-powerful, all good, the basis for creation, and active in ongoing human history makes any characterization of such “god” as nonsectarian patently ridiculous.
Some of the amici in Greece did make this point, but as the attorneys for our clients, we felt a need to walk on the decrepit porch that had been erected. Even by Justice Scalia's flawed definition, however, the Greece prayers are overwhelmingly sectarian, taking positions precisely on such core claims as “the divinity of Jesus.”
If Marsh stands for the proposition that legislative prayers must be nonsectarian, and a number of justices led by Justice Kennedy have found constitutional problems with “coercive” prayers, the prayer mechanism used by the Town Council in Greece fails on both counts.
The oral argument in Greece did not add much to the written record in the case. It was a time in which I understood why Justice Clarence Thomas never asks questions. There were, as I wrote in a Washington Post article, so many red herrings present that they would turn a cerulean blue sea, purple.
The biggest school of those herrings involved a ceaseless effort to figure out how to avoid the so-called “censorship” by government of the prayers of those visiting chaplains. Somehow, chaplains asked to provide a prayer in other legislative venues do not seem to be troubled by this. Thirty-seven states have guidelines for chaplains and/or guest prayer-givers about their expected conduct and expression. Written instructions for guest preachers in the United States House of Representatives clearly remind them that the body consists of “Members of many faith traditions.” Although Senate guidelines are apparently orally given, they seem to match those of the House, and one review of recent Senate prayers revealed that only 5 percent even mention Jesus.
Remember that there is no constitutional “right” for the clergy to pray at any legislative event. Legislatures are not mandated to allow spiritual sentiments to be expressed. When prayers occur it is only because of an act of delegated governmental authority by that legislature. Surely that body can therefore set parameters and expect compliance. When Chairman Auberger in his deposition was asked whether he would permit a prayer imploring “our white Lord Jesus to grant peace to the white residents of Greece but not the blacks or the Jews or homosexuals or other perverts,” he noted that he would. I'd submit this “do whatever you want” is a breathtakingly preposterous position to adopt, flying in the face of standard procedures for citizen involvement in governmental matters and commonsense sensitivities.
As one example, the House of Representatives guidelines are quite specific. Prayers are limited to 150 words, must be entirely in English, and may not make “any intimations pertaining to foreign or domestic policy.” The Obama administration, it should be noted, took the side of the Greece town council in this case, articulating the fear that to require a more stringent effort to address the lopsided nature of Greece invocations would cast doubt on the legitimacy of the congressional prayers. The government's brief suggests this is important. Honestly, though, does President Obama believe that prayers in the John Boehner-controlled House help move quality legislation forward or quell the partisan vitriol spilled on a near daily basis? I might even suggest to any nontheists in attendance that if you want one more quiver in your argument that prayer is entirely ineffectual, just ask believers how much it has produced recently in that deliberative body.
Perhaps the greatest postargument concern raised by some civil libertarians who were critiquing the performance of our chosen oral advocate, Professor Douglas Laycock of the University of Virginia Law School, was that he somehow “threw atheists under the bus” in his time before the Court. He conceded that under the definition of “nonsectarian” used by the Court, polytheists and atheists would not be happy with a result that simply allowed a Scalia-like definition to guide future prayer policies. When Justice Samuel Alito noted, “I don't think it's possible to compose anything that you could call a prayer that would be acceptable to all these groups,” Laycock responded “You can't treat everyone equally without getting rid of prayer altogether.”23 I have known Professor Laycock for decades and don't always agree with him. Nevertheless, I cannot imagine him being upset were the Court to throw up its hands in despair, apologize for past judicial error, and overturn Marsh precisely to protect the consciences and concerns Justice Alito mentioned. Indeed, in a 1986 law review article he called the Marsh decision “wholly unprincipled and indefensible.”24
I wish I believed that every politician in a legislature that supports prayer before the business session was doing so out of some deep personal conviction to which he or she subscribed on a twenty-four-hour-a-day basis. Regrettably, I have known too many politicians to give that view any credibility. Religion, along with patriotism, has sometimes come to be the last bastion of scoundrels. The truly devout need not leave their religious views out of their hearts or minds. Justice Scalia, at the oral argument, made a serious mistake in dealing with that premise, however. He said, “When local government officials attend their business meetings, they do so as citizens, take their beliefs with them, and their religious practices, and that includes their habit of ‘invoking the Deity’ just as they do at home before eating meals.”
Surely, there must be a legally cognizable difference between a council member saying grace over his barbecue in the backyard and offering a prayer in an official business capacity. If every government employee has the unfettered right to use public time to promote religion, teachers could pray in homeroom with their third graders, football coaches could insist that players get in a circle and praise Jesus before entering the field, and IRS agents could tell someone they are auditing about how only belief in Jesus makes you a moral person just before inquiring about the claimed donation to B'nai B'rith or the Church of Scientology.
No, those who share a faith with others in a legislative body can meet in one of their offices and engage in the specific spiritual activity of their choice before getting to the public's business of potholes, cable television rates, and green buildings. Those who are Christian may even turn in their Bibles to Matthew 6:6 and find out about a man named Jesus who recommended that the politicos of his day “go into a closet and pray privately” so as not to appear to be praying in public as hypocrites. Not a sermon; just a suggestion.
In May of 2014, the Supreme Court rejected the reasoning I articulated above and in a 5–4 decision upheld this prayer practice in Greece. However, the majority opinion was written by Justice Anthony Kennedy—the swing vote on virtually every controversial matter. Kennedy allowed for significant wiggle room, indicating that governments “maintain…a policy of non-discrimination,” the prayer be delivered principally at “lawmakers themselves” and not directed at participation by the public, not single out and denigrate “non-believers or religious minorities,” and divorce invocations from policy-making.25
Americans United started a project called “Operation Inclusion” two days after the decision. We urged Americans to try to get local governments to remove all invocations, but that if that maneuver failed, to insist that representatives who are members of minority faiths and atheists be allowed to get in the queue. This has led to some impressive results, including a Wiccan priest giving an invocation in Huntsville, Alabama, for a spirit of peace and community (he was initially denied the opportunity but AU volunteered to represent him) and atheist invocations in Glendale, Arizona; Sioux Falls, South Dakota; Largo, Florida; and, ironically, Greece, New York, itself.
All of this prompted the evangelical magazine Charisma to pose the question: “Did the Supreme Court win backfire on Christians?” Only time will tell.
When the Religious Right “triumphs” in a case before the United States Supreme Court—as it did most recently in the recent Hobby Lobby (discussed later) and Greece cases, it is easy to get depressed. These cases did have a direct negative effect on huge numbers of people, marginalizing them as second-class citizens undeserving of the same treatment the Christian majority receives.
There is also a kind of despondency I hear from people in, say, New York City, where the Right is weaker than most places, about the conditions under which people need to live in, say, Baton Rouge, Louisiana, even if they never plan to visit the state, much less live there. Those New Yorkers hear about schoolbooks promoting creationism or legislation to impose new strictures on the provision of abortion services and are horrified in principle.
But there is one horrific incident that went well beyond depression or despondency. It is the story of what happened to three then-young, now-approaching-middle-aged, men who ran afoul of religious conventions in the small town of West Memphis, Arkansas. I did frequent interviews on my radio show with the defense team for the “West Memphis 3.” There was finally a resolution of their case in 2013. The good news: None of them was erroneously executed. The bad news: They all spent eighteen years and seventy-eight days in prison.
WEST OF FAIRNESS AND JUSTICE: NEW DOCUMENTARY SHOWCASES DANGERS OF RELIGIOUS HYSTERIA26
I admit it: I slipped out of work early one day in late January. It wouldn't be honest to say I had a “medical” appointment; my fear of dentists knocks that reason out, and of course there was no “continuing legal education” seminar that just called out to be attended.
No, the plain truth is that I just went to the movies. If you read this column regularly, you know I am a film buff. The documentary I went to see that day hits so close to home that I didn't even feel I was missing work.
The film is very sad. It is about three young men who spent eighteen years in prison for murders they did not commit. Here's the church-state angle: The major reason they were convicted was that a jury had been tainted by a so-called “expert witness” whose fundamentalist-inspired views made a mockery of the idea of a fair trial.
The film is titled West of Memphis, and it was mainly produced by Peter Jackson of Lord of the Rings and The Hobbit fame.
Some background: On May 6, 1993, the bodies of three eight-year-old boys were found in a drainage ditch in West Memphis, Arkansas. They had been horribly mutilated and tied up with shoe laces.
Three teenagers from the community, Damien Echols, Jessie Misskelley Jr., and Jason Baldwin, were arrested, put on trial, and convicted in 1994. However, on August 19, 2011, the three—including Echols, who had been on death row—were released from prison after a deal was cut with state officials.
I have been troubled by this case for more than a decade since reading the first account of it, Devil's Knot, by Arkansas reporter and civil liberties activist Mara Leveritt. I became so engrossed by Leveritt's book during a long plane trip that I didn't even realize we had landed and people were departing until a flight attendant asked me if there was something wrong.
I watched three HBO documentaries about this matter and interviewed a woman who left her job to work on the case (and eventually married Damien Echols) on my Culture Shocks radio show on several occasions.
There were a large number of judicial errors made in this case, but I keep returning to the original trial of Echols and Baldwin. There was no DNA evidence, fiber evidence, or eyewitness evidence linking these men to the crimes. So how did they get drawn into it?
A man named Dale W. Griffis was the key. Griffis, who liked to be referred to as “Dr. Griffis,” was a consultant with a degree from an unaccredited institution in California that is widely regarded as a diploma mill specializing in “distance learning.” In the 1990s, Griffis was a familiar figure promoting his seminars to police departments on the topic of “Satanic crimes.”
At the trial, the defense tried to have him disqualified as an expert witness because of his lack of anything but “a mail-order PhD.” But the judge allowed him to present, asserting that Griffis's “experience” in life allowed him to function as an expert on “the occult.”
Griffis testified that a series of factors led him to conclude that this was an “occult” crime: It had been committed on the night of a full moon, there was sexual mutilation, blood had been extracted from the victims, and, of course, all three of the children were eight years old, supposedly a “witches’ number.”
I hope you get the point. Indeed, so much of everything Griffis said turned out to be just plain wrong.
The judge also allowed into evidence that Echols wore black clothing and had Stephen King novels in his room and had once gotten a book from the library on Wicca.
That was it. That was all it took for the convictions in the absence of any other data. But an atmosphere had been generated in the courtroom that made the motive clear to the jurors (at least one of whom still believes it today): A pact with the devil had led to the murders.
There have been times when I spoke about this case to AU chapters or other groups. There were always other issues I addressed in the same speeches or presentations. Every one of those issues was and remains important. But it is somehow particularly horrifying to think that three innocent people spent eighteen years in an Arkansas prison for a crime almost no one—including the parents of the murdered children—now believes they committed. (West of Memphis points a sharp finger at a much more likely suspect.)
This happened because a judge let a crank testify about a case he knew little about and who had a background only in creating a level of hysteria that would have been right in place in Salem, Massachusetts, in 1692.
I encourage you to see this film. It will help you understand how bad things can get when a whiff of theocracy leads people to turn against anyone who is unconventional or has no religious beliefs—and how a reckless combination of church and state can obscure the truth.