I recently spoke to a women's group in Montgomery County, Maryland. The last question related to politicians who want to appear pious. When I answered the question and then said, “You almost get the sense that every word processing program in Washington automatically adds to speeches on any topic—from pipelines to defense—the phrase…” And before I could finish the sentence, there were numerous vocalizations of “God Bless America.” Yes, they got it right.

But of course, the Religious Right loves when government officials pray.

WHO NEEDS A NATIONAL DAY OF PRAYER?1

A federal judge on April 15 ruled that the National Day of Prayer (NDP) is unconstitutional—and the Religious Right is up in arms.

“This is a concerted effort by a small but determined number of people who have tried to prohibit all references to the Creator in the public square, whether it be the Ten Commandments, the Pledge of Allegiance, or the simple act of corporate prayer—this is unconscionable for a free society,” Shirley Dobson, wife of radio counselor James Dobson and chair of the National Day of Prayer Task Force, asserted.²

Jay Sekulow, chief counsel of TV preacher Pat Robertson's American Center for Law and Justice, which represented thirty-one members of Congress in a friend-of-the-court brief defending the National Day of Prayer, also chimed in.

“It is unfortunate that this court failed to understand that a day set aside for prayer for the country represents a time-honored tradition that embraces the First Amendment, not violates it,” he moaned.3

Give it a rest. The court made the right call. Here's why.

Government is supposed to be neutral on religion. It has no business telling people how, when, or where to pray—or even if they ought to pray. Government does lots of things well, but meddling in our private religious lives is not among them.

As a Christian minister, I can't understand why some clergy ever thought the National Day of Prayer was a good idea. Furthermore, the National Day of Prayer has always been soaked in the kind of offensive “God and country” rhetoric that many of us find nauseating. It was first proposed in the 1950s to show those “godless Commies” a thing or two. In 1988, Congress codified it as the first Thursday in May. Congressionally mandated prayer in a country that separates church and state? I don't think so.

The NDP is not just an acknowledgment that Americans pray. It actively promotes religious practice. The government is, in fact, urging you to pray. That's simply not government's job.

In recent years, the NDP events have been taken over by aggressive Religious Right groups—like Focus on the Family, founded by Shirley Dobson's husband—which have used it in a highly offensive way and drenched it in fallacious, right-wing “Christian nation” pseudohistory. Worse, they've sponsored “Christians only” prayer events that exclude millions of Americans. (And by “Christians” they mean fundamentalists. Progressive Christians like me got nowhere near the microphone.)

In some communities, people got so fed up with the exclusive nature of NDP events that they started sponsoring rival get-togethers that were more inclusive. So we had dueling prayer showdowns! Nice way to bring everybody together, right?

Let's keep this simple: We separate religion and government in this country. That means the state has no business setting aside special days for prayer or other religious observances.

Thomas Jefferson knew that. He refused to issue prayer proclamations during his presidency. James Madison issued a few under pressure from Congress but later in his life wrote an essay saying he wished he hadn't. Andrew Jackson followed Jefferson's lead and refused to issue such proclamations entirely.

I know enough about the subject to realize that for prayer to be meaningful it has to come from the heart, be freely chosen, and not be an engine of state policy. Prayers pushed by the government aren't worth saying.

You want to pray on May 6? More power to you. I'll let you in on a little secret: You don't, and never did, need the government to give you a nudge.

In 2010, I did join a few influential religious leaders to call on organizers of the National Prayer Breakfast, members of Congress attending, and the president to use the opportunity to send a clear, unified message against the horrendous Ugandan “Anti-Homosexuality Bill.” (The National Prayer Breakfast is not organized by any government officials, but plenty of them attend.) This “unofficial” event merely adds insult to the injury of the National Day of Prayer, particularly given who organizes this annual event.

In addition to Rev. Harry Knox, then with the Human Rights Campaign, the Rev. Elder Darlene Garne from Metropolitan Community Church, and Bishop Gene Robinson, the first openly gay bishop in the Episcopal Church, we were joined by “Moses,” a gay Ugandan man seeking asylum in the United States. At the press event, he said, “It breaks my heart that I have to leave my family and loved ones to seek asylum in this country simply because I am gay. Even as I speak, gay people are being persecuted as a result of this proposed law against gay people. I can only imagine how bad it will be if the bill is actually passed.”

My statements called on President Obama to take the lead on human rights for everyone, everywhere, regardless of sexual orientation or gender identity.

Speaking at the breakfast in 2010, Hillary Clinton condemned Uganda's notorious Anti-Homosexuality Bill, saying that the United States was “standing up for gays and lesbians who deserve to be treated as full human beings” and noted that she had personally informed Uganda's president, Yoweri Museveni, of “our strongest concerns about a law being considered in the Parliament of Uganda.”4

Obama would later echo those sentiments at the same Prayer Breakfast: “We may disagree about gay marriage, but surely we can agree that it is unconscionable to target gays and lesbians for who they are—whether it's here in the United States or, as Hillary mentioned, more extremely in odious laws that are being proposed most recently in Uganda.”⁵

National Prayer Breakfasts are, of course, organized by the Fellowship Foundation (which is maybe better known by its other name “The Family”), a shadowy far-right group whose members campaigned for the passage of Uganda's bill.

Museveni passed the bill despite Clinton's urging, only for it to be struck down in 2014 by the country's high court on a technicality. Parliamentarians swiftly reintroduced the bill; as of printing, it had not yet passed.

WHY I'M NOT GOING TO THE NATIONAL PRAYER BREAKFAST6

Let's see, where will I be eating breakfast Thursday? I've seen some really mouth-watering ads for a new dish at Denny's (or maybe it was the International House of Pancakes) that involves hash browns covered with lots of cheese and meat and maybe some pancakes, too. But I can't eat that. I've been sticking to my postholiday diet for four weeks, dropping pounds and lowering my blood sugar. I can't go back to cholesterol, fats, and carbs.

There is another possibility: I could hightail over to the National Prayer Breakfast and eat with a bevy of Washington luminaries, including many members of Congress of both parties and the president. One drawback is that I'd have to be invited, and it looks like my invite got lost in the mail. The other is that the tickets are pricey, which would severely cut into my monthly budget for renting DVDs.

But the most important reason I don't plan to go is the company I'd be keeping. I don't mean the politicians who attend to pray and be seen (or is it be seen praying)? I'm talking about the sponsors.

This sixtieth-anniversary eggs-and-muffin extravaganza is sponsored by an Arlington-based organization called the Fellowship, but more commonly known as the Family. One adjective used to describe the group is “shadowy,” but that doesn't begin to tell the story.

Journalist Jeff Sharlet has doggedly researched the Family and written two books on the topic.⁷ The Family was founded in 1935 by Abraham Vereide, a Norwegian clergyman living in Seattle. Vereide formed the organization with a small group of businessmen who seemed untroubled by some of the extreme movements then sweeping Europe.

According to Sharlet's books, the group believes that God's covenant with the Jews has been broken and that Family acolytes are the new chosen, destined to remake the world in Jesus's honor.

Sharlet says the Family uses the National Prayer Breakfast to advance its goals in part by guiding the powerful attendees (and potentially future power brokers) to smaller, more frequent prayer meetings. At these events, the rich and powerful are told they can “meet Jesus man to man,” Sharlet writes.

But the Family isn't just peddling theology. There's a political angle, too. The Family has big dreams that transcend winning an election or passing some bill about a hot-button social issue. It wants to reshape the entire world's “worldview” in accordance with its understanding of the Bible, according to Sharlet.

Group leaders aren't big on going on CNN or even Fox News to discuss their agenda or methods, but annoying facts keep slipping out. As recently as 2009, the New York Times reported that an obscure Ugandan legislator, who had participated in a set of homophobic workshops put on by American evangelicals, introduced a bill that initially called for the death penalty for gay people in the country, later modified to offer extensive imprisonment and a chance while there to perhaps be “cured” of your gayness. Several researchers uncovered links between Family members and the legislator, although the Family claimed they hadn't intended the legislation to be so draconian.

And, then, there were the sex scandals. In 2009, then-senator John Ensign admitted to having an affair with the wife of a top aide while living at the C Street house, a structure on Capitol Hill that is owned by the Family. He later resigned. Ex-South Carolina governor Mark Sanford seems to have gotten advice from other politicians living on C Street after his much-publicized flight to Argentina with the love of his life who just didn't happen to be his wife. But the Family doesn't comment on such matters.

The National Prayer Breakfast is a privately sponsored event, so it's not a constitutional issue when members of the government attend. It is a common-sense issue. What possible message does it send?

A 2010 Gallup Poll found that 83 percent of Americans believe that God answers at least some of their prayers. Since there is only one professed nontheist in Congress, I'd expect to find the same percentage there. The thing is, there is already a taxpayer-funded chaplain in each chamber who prays every morning. Members of Congress have plenty of opportunities to pray.

But I understand that sometime people want to pray in a group. Fine. But why should members of Congress let those prayers be organized by people who have been accused of thinking gays are sinners, any woman who has an abortion is a murderer, and Muslims are members of a “false” religion?

Anyone who takes prayer seriously should avoid, not embrace, these folks. Why not have the courage to stand up for your faith by witnessing with those who share it, not blithely participate in an act of worship that offends your own deepest understandings of divine purpose?

Here's my offer: If politicians must go to a prayer breakfast, come with me to a Denny's or IHOP in Maryland. I'm a minister. I can lead a prayer; more importantly I can listen to you pray and not presume it is always the same as what is on my mind.

Maybe we could have a respectful chat about any differences over the meal. Just as I'm giving up those carbs, fats, and cholesterol, you can give up the secrecy of the Family and embrace transparency. Drop the divisiveness of the Family's theology and embrace some commonalities of all decent people. Skip the high-ticket prices and by-invitation-only nature of the Family's feast and break bread in a place with a menu that your constituents can afford.

It's just a thought.

In 2013, Maryland pediatric neurosurgeon (and potential 2016 Republican presidential candidate) Ben Carson gave the “keynote address” at this event, where he pontificated at great length about how bad Obamacare was and how pro-life he was. It was particularly obnoxious because President Obama had to listen to this twenty minute screed sitting on the dais. Carson claims in his 2014 autobiography that the White House demanded that he apologize.8 He did not.

CHAPLAINS IN CONGRESS

The chaplains in Congress are expensive and wholly unnecessary—although courts have been unwilling to engage in any serious analytical tests of their constitutionality. Briefly, in 1995, new congressional leadership considered abolition.

CONGRESSIONAL CHAPLAINS: A WASTE OF TAXPAYER MONEY9

Over the years I've spent in Washington, I've met many pastors whose churches are within blocks of the US Capitol. Many of these places of worship are home to members of Congress when business or bad weather keeps them here over a weekend and away from their families and constituents.

Many of these ministers have expressed an interest in a more active ministry to elected officials, wondering how they could be more available for counseling and other spiritual duties. Denominational officials with offices near Capitol Hill, who spend most of their time advocating their faith group's positions on issues, also wrestle with how to serve as occasional ministers and counselors to Congress. No one I've talked to about this ever expressed any desire to charge for their spiritual services.

On the other hand, two ministers work right in the Capitol, and they are richly rewarded. They are the House and Senate chaplains. The Senate chaplain, Richard C. Halverson, who plans to retire soon after fourteen years, makes $115,700 annually. His House counterpart, James Ford, pulls in even more—$123,000.

The Supreme Court in the case of Marsh v. Chambers overlooked the fact that even some of those who crafted the Constitution had serious doubts about tax-supported clergy. James Madison, for example, wrote that such employment was a “palpable violation of equal rights as well as Constitutional principles” and a “national establishment” of religion.¹⁰ He suggested that if Congress wanted chaplains to discharge religious duties, members should pay for them from their own pockets. “How just would it be in its principle!” he proclaimed.

Indeed, one of Madison's concerns—inequality of faith representation by the chaplains—has been a problem for more than two hundred years. All of the Senate chaplains but one have been Protestant males. (A Catholic priest served briefly in the mid-nineteenth century.) [The current chaplain, in 2015, is Barry Black, a Seventh Day Adventist.] There have been numerous unsuccessful calls for the appointment of a woman to replace the Senate's Halverson, with active lobbying for specific candidates. [The House appointed its only Catholic chaplains in 2000 and 2011.] All of this appears a little unseemly to me. No single pastor can be expected to seriously understand the nuances (or sometimes even the central tenants) of the diverse collection of politicians in today's multicultural nation.

The prayers uttered each morning are rarely memorable (except for a prayer for O. J. Simpson, which barely mentioned the victims of the horrendous crimes he was charged with committing, that drew fire from dozens of C-SPAN viewers). This may be one of the reasons virtually no members are in attendance at morning prayer.

The new and self-proclaimed fiscally responsible leadership of Congress has a wonderful opportunity to apply Madisonian principles to the present day. Halverson's position could be left unfilled. Ford could go back to the pastorate or some other line of work.

This is not a pipe dream. Rep. Jim Nussle, an Iowa Republican who heads the transition team to Republican rule back in 1995, indicated in a recent press interview that he would explore using volunteer chaplains of rotating denominations to fill Ford's slot. This practice has historical precedent. The House had no chaplain from 1855 to 1861, and members of the District of Columbia clergy officiated at the prayer that opened each day's legislative session.

Roll Call, a Capitol Hill newspaper, recently ran an article that quoted from a pre-Civil War era report of the House Judiciary Committee, which had been asked to study the constitutional appropriateness of Congress's chaplains. The committee decided chaplains passed muster since “there never was a deliberative body that so eminently needed the fervent prayers of righteousness as the Congress of the United States.” That's a pretty clever line. However, accepting the undisputed premise—Congress needs help—doesn't lead necessarily to a paid chaplain.

We have ministers who are eager to give more of their time gratis to the spiritual aid of members of Congress. Moreover, much talk circulates these days about cutting the fat on Capitol Hill, making it less like a country club and more like the average American work place. We stand at a moment when all the stars could be heading toward a constitutional convergence. The result: elimination of an expensive throwback to another era. Who knows, maybe the $288,000 saved—and did I neglect to mention that the Senate chaplain has a $50,000-per-year assistant?—could be directed to save some of the school lunches that may be cut.

Speaker Newt Gingrich eventually told the New York Times that the chaplains would stay because it would send the wrong message to eliminate them. Of course, for Mr. Gingrich, it is all about the appearance.

RELIGIOUS DISPLAYS

So, once politicians succeed or fail at having prayers before their legislative gatherings—or create Christian prayer days—what is next? It is, of course, insistence about the public display of religious icons, sayings, Scriptures, or other such items.

A NEW COMMANDMENT FOR POLITICIANS: THOU SHALT NOT BE A HYPOCRITE11

US Rep. Robert Aderholt of Alabama has been preparing to introduce “The Ten Commandments Defense Act” to “allow the states…to display the Ten Commandments” in public buildings.¹²

Aderholt alleges the action is permitted under his peculiar interpretation of the Tenth Amendment. Apparently he has not noticed that this kind of legal argument has never prevailed about any constitutional prohibition—against an establishment of religion or censoring a free press or any other portion of the Bill of Rights.

He asserts that on the issue of state versus federal jurisdiction “you could go both ways on that issue.” No, not really. Maybe on the “Planet of the Apes” (I don't know what their Constitution looks like), but not here in the United States.

The ever-inventive Judge Roy Moore, also of Alabama and now its elected chief justice of the Supreme Court, is also itching for a new fight over the Ten Commandments. You may recall that he fought a long legal battle over a hand-carved Decalogue displayed behind his judicial bench a few years ago. Moore has now unilaterally decided to place a two-and-a-half ton monument in the rotunda of the Alabama Judicial Building, which contains a version of the Commandments along with other symbols of what he views as our suppressed Christian heritage.

In his speech announcing this placement, Moore insisted, “It is axiomatic that to restore morality we must first recognize the source from which all morality springs.”¹³

Far from axiomatic, his assertion that nonbelievers cannot possibly be moral actors is an affront to millions of Americans. Moreover, the notion that without government approval, specific religious texts will have less persuasive power is the height of insult to adherents to the Commandments who have managed to learn about them without being informed by Moore and other second-rate politicians.

It is my “prophetic” view that he will soon face a legal action that will challenge this sneer at the foundations of our Constitution, and unfortunately give Moore martyr status for another run for public office.

And, of course, Chief Justice Moore was sued by Americans United, the Southern Poverty Law Center, and the Alabama affiliate of the ACLU. Here is a summary of what happened: (More details appear in my earlier book, Piety and Politics.)

JUDGING ROY: WHY THE COURT RULED AGAINST MOORE'S MONUMENT14

I arrived at the Americans United office on November 18 knowing it was going to be a busy day.

A federal judge in Montgomery, Alabama, had announced that he would issue a ruling in AU's lawsuit against Alabama Supreme Court Chief Justice Roy Moore, who last year erected a 2,350-pound granite monument engraved with the Ten Commandments in the lobby of the Alabama Judicial Building.

US District Judge Myron Thompson didn't waste any time. At ten a.m. on the dot (nine a.m. in Alabama), the decision began sliding through our fax machine.

Americans United Legal Director Ayesha Khan had worked on the case with Morris Dees of the Southern Poverty Law Center and attorneys with the American Civil Liberties Union of Alabama. We all agreed that the trial had gone well and believed Judge Thompson would rule our way. Sure enough, the decision was a clear victory for our side and a strong affirmation of the importance of church-state separation.

Cable talk shows wanted to discuss the case that evening. On CNN's Crossfire, conservative host Tucker Carlson asked me to look at a large photo. He said, “Not only are the Ten Commandments in a courtroom in Alabama, this picture right here of Moses, with the actual tablet, do you know where that is from?”

Of course I knew where it was from—the US Supreme Court building. I've seen it a thousand times there.

I told Carlson that. He replied, “Why aren't you picking on it?” My comeback was simple, “Well, could you read the third [commandment] there, please?”

Carlson's reply was rather lame: “I don't have my contacts in.”

The most powerful contacts in the world wouldn't have made it possible for Carlson to read the third commandment, because none of the wording is included in the artistic rendering. Moses is depicted cradling two tablets on a frieze that also includes historical lawgivers like Hammurabi, Solomon, Confucius, Muhammad, Napoleon, and the Roman emperor Augustus. The display represents the evolution of the law over the centuries. It's not intended to promote religion.

I tried to explain the difference to Carlson. “Judge Moore's monument is a monument to intolerance,” I said. “It's the promotion of his own version of what the Ten Commandments ought to read…. But it is nothing like that phrase which you can't even read.”

Carlson still didn't get it. “I want to get the Lynn standard here,” he said. “So it is OK to have the Ten Commandments…so long as you can't read the lettering.”

I tried again. The frieze, I pointed out, “also has Confucius…because that's a piece of a series of pictures of famous law-givers. It's nothing like the promotion by a right-wing judge of his particular religious viewpoint.” The “Lynn test,” as Carlson put it, contains many other factors, but frankly, the audience seemed convinced that at least for starters there was some kind of difference between a part of a sculpted frieze with literally no words on it and a multiton monolith placed as the centerpiece of a state's major judicial center.

Despite rumors that Moore has his eye on a US Senate seat, I don't think his actions are about political posturing. I believe Moore is a “true believer” in his faith. In fact, I'm so convinced of this that I told Sam Donaldson the next day that I thought Moore should resign from the court and find a new job. Moore's zeal and doctrinal certainty make him a poor fit for the bench, but they'd serve him well in another position—say, a pulpit.

Days after the decision to have the monument removed, Moore announced his intention to disobey the court's order. Adding insult to injury, large rallies in support of Moore and the Ten Commandments monument began forming in front of the judicial building, featuring speakers such as Alan Keyes, the Reverend Jerry Falwell, and Moore himself. Several hundred to over a thousand protesters remained in Alabama through the end of August as a show of support for Moore's monument.

The Eleventh Circuit agreed with the trial court; the Supreme Court refused to hear the case; and Judge Moore was thrown off the court by a unanimous decision of his all-Republican colleagues. Bizarrely, since we neglected to seek to have him permanently disbarred, he was reelected to the court in 2012 where he continues to promote weird ideas about courts and the Constitution (as discussed later in the book).

The United States Supreme Court waited three years to take on two cases with variations on the theme.

Church-state cases before the Supreme Court always precipitate a whirlwind of activity at Americans United.15 This was particularly true in early March when two back-to-back arguments about placement of the Ten Commandments on government property were argued, one from Texas and the other from Kentucky.

I was up early to tape a debate for MSNBC with Jay Sekulow, chief counsel of the American Center for Law and Justice. It was then just a two-floor elevator ride down to the studios of C-SPAN. There I did a forty-five-minute discussion on Washington Journal with Kelly Shackleford, an attorney with a Texas-based group called the Liberty Legal Institute.

Shackleford's main argument was that if the court rules that the six-foot-high granite display on the grounds of the Texas state capitol is unconstitutional, then thousands of these monoliths will have to be “bulldozed” off public land. I explained that, given the number of churches in America, these structures could simply and reverentially be relocated to appropriate private spaces.¹⁶

Apparently my comments were not reassuring, because Shackleford used the bulldozer image another five times during the show. Several callers to the program made particularly offensive references to minority religious groups.

The oral arguments were up next. Arriving at the court, I spotted demonstrators on both sides and was pleased to see a healthy number of Americans United members were among them, some being interviewed by the media.

The arguments were simultaneously enlightening and scary. Duke University Law School professor Erwin Chemerinsky began to set out the argument in the Texas case (representing the plaintiff, who is a homeless former attorney), but after just a few sentences, as is so often the case, Justice Antonin Scalia interrupted with a harangue disguised as a question.

Scalia has an extremely narrow view of religious freedom, but he seemed particularly antagonistic that morning—perhaps hitting a new low. According to Scalia, government-sponsored Commandments displays are only intended to reinforce the idea that our government flows from God. He has a simple remedy for those who might be offended: “Turn your eyes away if it's such a big deal to you.”17

Thankfully, many of the other justices asked more thoughtful questions that indicated they were taking the issue more seriously. Justice Ruth Bader Ginsberg challenged an assertion by Mat Staver of the conservative Liberty Counsel that the Ten Commandments aren't really that religious, firing back, “Have you read the first four commandments and could you say that?”¹⁸

From the court, I headed over to the offices of the Fox News Channel to discuss the arguments. To my surprise, I encountered former Alabama Chief Justice Roy Moore in the greenroom. Despite AU's long legal tangle with him over his display of his two-and-a-half-ton granite Ten Commandments in the state judicial building, I had never met the man face to face. We had a civil, albeit chilly, conversation. I commented that I had “followed your career”; he responded, “I've noticed.”

The result of these cases was a “split decision.”

I know it wasn't a circus because there were no elephants or acrobats.¹⁹ The scene outside the Supreme Court on June 27, however, was as colorful and chaotic as any I have ever seen there.

I was at the court to respond to the expected decisions on the posting of the Ten Commandments on public property. For the same reason, the Rev. Rob Schenck of the National Clergy Council had set up a podium for prayer and distribution of Commandments pamphlets and, a few feet away, American Atheists president Ellen Johnson had a speaking platform from which to question the validity of the Decalogue.

Under Chief Justice William H. Rehnquist, the court always convenes promptly at ten. We “waiters” were standing in the sun on a hot, humid day that would cloud over and threaten torrential downpours every ten minutes or so. In front of us was a bank of a dozen television cameras and even more microphones. Rev. Schenck was at the mikes, a cell phone at each ear to get updates about the decisions.

I was accompanied by several AU staff members. At about 10:15, Communications Director Joe Conn got a call reporting that the decision involving the Commandments case from McCreary County, Kentucky, had been announced inside; a 5–4 majority had ruled the courthouse poster display unconstitutional.

Another fifteen minutes or so went by. We learned that Justice Antonin Scalia was inside reading parts of his “withering dissent.” Scalia has never seen a Christian religious display he didn't think the government should erect, so his outrage was predictable. He may have been auditioning for chief justice in the event of Rehnquist's retirement.

As dark clouds rolled in, secularists and religious people alike joked about the omen-like significance were the heavens to open. I remarked that I understood that it rains on the just and the unjust, so nobody should read anything into any deluge.

A few more minutes passed, and another call came through: The court had approved the display of a 1960s-era Commandments monument outside the Texas statehouse, calling it historical and uncontroversial and declaring that it did not primarily promote religion. We had a split decision.

Rev. Schenck and a few other Religious Right figures made statements to the news media, followed by the AA's Johnson. I held back for a bit, trying to skim the decisions brought out to me by one of our staff members who had been inside the court.

It was soon clear that this “split” had broken in our favor. We would have to live with many of the Commandments monuments that had been put up as props for the Cecil B. DeMille's 1956 biblical movie epic. But these rulings would in no way permit the display of the Decalogue in public schools and would not allow the kind of display attempted by former Alabama Chief Justice Roy Moore with his multiton monolith in the state judicial building.

I was pleasantly surprised that evening to see that Jon Stewart's The Daily Show had an item on these cases, including a brief clip of me saying “Unfortunately, the Court has not set forth a clean rule: You shall not festoon government property with religious symbols.” Stewart deadpanned: “If Mr. Lynn got his way, a major Washington renovation would have to be scrapped.” Then an altered image of the Washington Monument with a crossbeam attached, turning it into a megacross, appeared on the screen.20

And then there is the “war on Christmas”…

“Why bother?”²¹

That was the reaction of a few of my friends, including a number of Americans United supporters, after seeing me on television or quoted in their local papers rebutting the idea that there is a “war on Christmas.”

I can understand the sentiment, but this issue is far from trivial. Religious Right efforts to make 2005 the year of the “war on Christmas” got under way long before Halloween. The Rev. Jerry Falwell announced that he was mobilizing more than seven hundred lawyers in a battle to “save Christmas” in mid-October. About the same time, Fox News Channel host John Gibson published a book titled The War on Christmas.

I knew it was going to be a long holiday period. My first thought was to ignore the whole thing. Fox News was calling us to do three different shows on the same day, and I did not want to feed their conspiracy theories.

But the stories just kept coming and soon began appearing in the legitimate media as well. Falwell was being quoted all over the place, and reporters seemed to be accepting his wild claims that the season was being captured by the spirit of “political correctness” run amok, leaving the dark hint that soon children would not realize there was a holiday to celebrate at all!

Some of what Falwell was complaining about struck me as picayune. He seemed obsessed with greetings used by store clerks, for example, and he threw a fit after a Boston city government press release referred to the arrival of a “holiday tree.” The mayor hadn't approved such a designation and immediately informed Falwell of that fact. (We do not know the current location of the writer of the press release, but I'll bet it is colder than Boston.)

Soon hard-to-swallow stories were flying left and right. Public schools were being accused of banning the colors green and red, forbidding students from saying “Merry Christmas,” and changing the words of well-known Christmas carols to strike out religious references. To most of the readers of this column, this all sounds pretty unlikely. But, frankly, I became convinced that if these accusations went uncontested, they would become “true” just by dint of repetition. I knew Americans United had to fight back to correct the record.

I accepted an offer from www.beliefnet.com to do a back and forth e-mail dialogue with Gibson so that I could deal with some of his claims point by point. AU also issued an open letter to Falwell, reminding him (and the public) that generating a phony controversy around Christmas, heralded by Christians as a “season of peace,” makes a mockery of real faith.

Most importantly, AU investigated the Religious Right's most common examples of the “war on Christmas.” Guess what? They're bogus! Two schools accused of banning red and green did no such thing. Another school was accused of rewriting “Silent Night.” In reality, it was putting on an eighteen-year-old play that changes the words of familiar Christmas carols to fit the play's secular theme of homelessness.

How do these crazy stories get started? Some people just believe what they want to believe heedless of the facts. I was discussing this issue on The Michael Medved Show when a caller insisted that a Chicago television station had cut out Linus's reading from the New Testament when it aired A Charlie Brown Christmas.

I was skeptical. During a commercial break, Medved's staff received two calls from people who had seen the same broadcast and noted that the Linus scene hadn't been cut. Michael is a conservative, but he immediately put the myth to rest. I wish every conservative was that forthright in correcting untruths.

The stakes are really much higher than whether someone does or does not think calling an evergreen a “Christmas tree” or a “holiday tree” is a big deal. For me, it is about the need to tell the truth. If government actions violate someone's constitutional rights, we have to say so. However, as people struggle to deal with the multiplicity of religious and philosophical viewpoints in America, it is also important not to permit false and pernicious stories to circulate unfettered by analysis and criticism.

In 2012, Gretchen Carlson, Fox News commentator said, “We're not nuts, are we? There is a war on Christmas!”22 If Fox had invited me to respond, I would have responded: “You're not nuts, Gretchen, just listening to your network's own words too often.”

And there are political types who try to put out pro-Christian license plates.

Perhaps the most frustrating argument I hear against the separation of church and state boils down to this: We need the government to “recognize” the value of religion—usually this means Christianity—in our city, county, state, or nation.23 It's never adequately explained why those of us who are religious would need this. Can't we appreciate what we believe on our own?

This issue arose anew in December 2008 after Americans United won a preliminary ruling from a federal court in South Carolina stalling (and soon, we hope, permanently preventing) distribution of special “I Believe” license plates.

Lest anyone think the belief is generic, let me remind you that these tags feature a cross and a stained glass window—symbols not common in, say, the Hindu or Islamic traditions. It's clearly a “Christian” license plate.

Immediately after the grant of an order stopping the release of these plates, the blogosphere was ablaze (or, more appropriately, befogged) with comments about how this “censorship” would prevent the free expression of Christian beliefs.

Really? Since when do South Carolinians need a boost from government to express their faith?

In fact, long before South Carolina legislators decided to design this plate and then pass a bill authorizing its production and marketing, Christians there were perfectly capable of expressing their religiosity—even with their cars. Some put bumper stickers on their vehicles expressing religious views (“In the event of Rapture, this car will stop”) and attached fish symbols to their trunks. The drivers were communicating their views and if other drivers didn't like it, too bad. That's free expression.

However, when state legislators decided to appropriate a few Christian symbols for their political purpose (never too unhealthy to pander to the state majority in a turmoil-filled election year), they crossed a forbidden line. They were now promoting Christianity over all other faiths.

Indeed, some legislators happily admitted they wouldn't promote Islamic, Wiccan, or Buddhist plates. The argument seems to be: no Muslim plates because we don't want to look like we are supporting that faith, but a Christian plate is great—although in court we'll say that isn't a sign of support. When you combine hypocrisy with bad constitutional law, little wonder you buy yourself a lawsuit!

So we were (as predicted) successful in the lawsuit against South Carolina's ill-advised and unconstitutional license plate promotion. No appeal was taken up by the state. Things have not gone so well when the issue is crosses on public lands.

As I was sitting next to Religious Right attorney Jay Sekulow in the Supreme Court bar section listening to arguments in the Salazar v. Buono24 case, I couldn't help passing him a few notes.²⁵

Salazar involved the sale of one acre—out of 1.6 million desert acres—in the Mojave Preserve to the Veterans of Foreign Wars to maintain a cross that purportedly represents all veterans.

When I am listening to an argument, I tend to jot down thoughts that I will express later to the assembled press. Some of what was happening that day struck me as so strange, I'd jot it down and nudge Jay to take a look at it.

Like what?

At one point in the argument, Solicitor General Elena Kagan suggested that the government could put up a sign indicating that there was a “private” cross a few miles up the road.²⁶

“Since when,” I wondered, “does the government put up signs for private property owners?”

I made a quick sketch of a road sign reading, “Private Cross 1 mile; Wall Drug 1,000 miles; South of the Border 2,500 miles.” For non-road travelers, Wall Drug in South Dakota and South of the Border, the tacky Mexican-themed rest stop between Virginia and North Carolina, are probably the most well-advertised destinations along the highway system, but are advertised on private billboards.

One of the other odd comments was Justice Antonin Scalia's assertion that a cross obviously honored all veterans regardless of religion. He asked ACLU attorney Peter Eliasberg whether he'd prefer “some conglomeration of a cross, a star of David and, you know, a Muslim half-moon and star”?

Perhaps Scalia had slept through a comparative religion class at Georgetown University and was thus unfamiliar with Islamic iconography. I wrote Jay: “Well, at least he got Muslims half right.” (Half of a half moon is closer to the crescent moon and star that serves as an Islamic symbol.)

I listened to the rest of the largely arcane discussion about “standing” and whether Congress can dissolve a court-ordered permanent injunction. It was then outside to the bank of media microphones.

I made a few comments, all in simple declarative sentences, because the press is not interested in hearing a lengthy historical/constitutional lecture.

I then noticed he Washington Post's Dana Milbank in the crowd. For non-Post readers, Dana is a very clever writer who takes a dim view of public figures, often quoting their pontifications and skewering their conclusions.

I decided to use a punchy little analogy that I was sure would grab his attention.

I said, “If the government gets its way in this case, what's next? Would we sell two steps of the Supreme Court to some group that wants to put up a Jesus in the manger scene year round?”

Sure enough, the next day that quote appeared in Milbank's column, along with one from a Religious Right advocate. Dana, of course, scoffed at both comments as “equally absurd.”

The Court ruled that the cross could stay, but the matter was sent back to the trial court. Eleven days after the decision, the cross was stolen. It was never recovered. Nobody I knew had anything to do with its disappearance. A “replica” was erected shortly thereafter.

The Religious Right likes to claim that sectarian war memorials on public grounds are just fine, as if a Christian cross can really represent our diverse armed forces. The forty-three-foot tall, twenty-ton Mount Soledad cross statue in California is among the most famous of these memorials, and it's also one of the most controversial. Built in 1954 on public property, then rededicated as a war memorial in the 1990s, it's been the target of lawsuits from Americans United and other civil liberties groups. Its fate is still uncertain after the Supreme Court decided the case should go back to an appeals court.

There is a provision in the December 2015 National Defense Authorization Bill that permits a land transfer to the Mount Soledad Memorial Association at the structure's appraised value. At this writing, lawyers for Vietnam Veteran Steve Trunk, the plaintiff in this case, notes that they “proved the point” of no government ownership of this cross and will see if the transfer terms will be acceptable to his client.

Officials in Boone County, Missouri recently agreed to cover an ichthus on a war memorial that stood on public ground. The memorial's supporters claimed that the ichthus represented the personal beliefs of fallen soldiers, but since it doesn't stand on private property it violates the First Amendment. Similarly, in January 2015, the city of Grand Haven, Michigan, agreed to stop displaying a cross and to permanently convert it into an anchor. Also in January 2015, the city of King, North Carolina, agreed to take down a Christian flag and replace the cross in a statue with a secular grave marker.