Category Archives: Religious Liberty

Constitution 101

A few years ago, the American Constitution Center conducted a poll to assess the country’s constitutional literacy, and drew a depressing conclusion: Americans revere the Constitution, but have virtually no idea what it says or means.

 If that conclusion seems a bit “over the top,” consider some of the more indignant reactions to two recent court opinions applying the religion clauses of the First Amendment. In a case close to home, Judge Sarah Evans Barker ruled that a public high school’s graduating class could not vote to have prayer at its official ceremony.  A decision with more national scope held that a Presidential designation of a Day of Prayer is improper. I found the homegrown case particularly ironic, since I invented a virtually identical fact situation a few years ago, and have been using it as part of my midterm exam. Unlike the school officials involved, my students almost always recognize that the issue is not whether students may pray, but whether the government can sponsor prayer.

In a recent column, Russ Pulliam declared that the founders did not want to eject religion from the public square. True. There is an important difference, however, between the public square and the public sector—a difference that evidently eludes many Americans.

There are two religion clauses in the First Amendment. One—the Establishment Clause—prohibits government from sponsoring, endorsing, favoring or otherwise getting involved with religion. The second—the Free Exercise Clause—forbids government from interfering with individuals’ voluntary expression of religion. Together, those clauses send a message to government: hands off.

If you want to take religion into the public square, you are absolutely free to do so. You can post religious verses on your house, wear tee shirts with religious messages, hand out religious handbills on the public streets, place religious messages in newspapers or magazines, or hold revivals in public parks. If you have the means, you can buy a television network and broadcast religious messages 24/7. You can engage in these and innumerable other religious activities in the public square and agencies of government will be constitutionally prohibited from interfering.

If, however, you want the public sector (government) to weigh in—if you want a publicly-owned building to post your bible verse, a government official to endorse or lead your prayer, or a legislative body to ensure that your neighbors are behaving in accordance with your religious beliefs, you have a constitutional problem, because the Establishment Clause prevents any group of citizens, no matter how numerous, from using the power of the state to impose their religious beliefs on other citizens.  Your neighbors cannot take a vote to make you an Episcopalian or a Baptist or a Muslim, and the senior class cannot vote to have an agency of government—the public schools—impose a religious observance on those attending the graduation ceremony.

We should all have learned the difference between the public sector and the public square in Government 101. Unfortunately, too many of us skipped class.

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Whose America? Whose Values?

What with the charges and counter-charges about the war in Iraq, the use—actually, abuse—of Executive Privilege, and locally, the uproar over property taxes, this little tidbit hasn’t gotten much ink. But it is a telling indicator of the wildly different definition of the term “American values” held by today’s citizens.

 

Sessions of Congress begin with a prayer. (A religious exercise that is itself a dubious one in a nation committed to freedom of religion and conscience). The prayer is often offered by guest clergy invited for that purpose, and a couple of weeks ago, that guest was a Hindu cleric.

 

You know what’s coming, don’t you?

 

The “usual suspects” screamed bloody murder; Family Research Council President Tony Perkins opined that “In God We Trust” refers only to the God worshipped by Christians and Jews (as a Jew, I can attest to the fact that our inclusion in this formulation was long in coming and is even now quite begrudging). Worse, three members of the rabid anti-abortion group Operation Rescue stood up in the congressional gallery and interrupted the invocation by bellowing out “Jesus is America’s true and only God” and similar sentiments.

 

When the hecklers were ejected, Religious Right leaders immediately played the “victim” card, insisting that this was yet another example of government’s “anti-Christian” bias.

(Why do I doubt they’d have complained about bias if the cleric had been Christian and those who were disrupting the prayer Hindu—but consistency has rarely been the defining characteristic, let alone the purpose, of these rants.)

 

I probably paid more attention to this episode than many people, because my most recent book, God and Country: America in Red and Blue, was an exploration of the larger phenomenon of which this is evidence: the fact that Americans occupy different realities.

 

When I think of America’s foundational values, I think of individual liberty, tolerance—even celebration—of all kinds of diversity, equal treatment under the law. When people like Tony Perkins or James Dobson think of American values, they think of Christianity, and not even all Christianity. Just their version.

 

These wildly different realities begin with wildly different definitions of liberty. To AVA members and others like us, liberty is the right to decide for ourselves what we believe and how we should live. To Christian Right true believers, liberty means “freedom to do the right thing,” as they define “the right thing.”

 

In my book, I wrestled with the central challenge posed to our Republic by the existence of these dueling worldviews: how do we talk to each other? How do we come together to engage in the grand experiment of self-government?

 

I make some suggestions, but the jury is out.

 

Not So Goode

When James Madison, Thomas Jefferson, Benjamin Franklin and the rest of the Founders devised our system of representative democracy, they envisioned a system where persons—okay, men—of temperance, substance and education would hold public office.  

 

They clearly did not envision Representative Virgil Goode.

 

There has been quite a reaction to Representative Goode’s letter decrying the election of Keith Ellison. Ellison, who now represents Minnesota’s Fifth Congressional District, is a Muslim. Goode’s letter criticises Ellison for taking his oath of office on the Koran, and warns darkly that his election is a harbinger of the dreadful things that will happen unless Congress restricts immigration. 

 

Critics of Representative Goode have made two related charges: that he is ignorant, and that he is a bigot.

 

I don’t know whether Representative Goode is a genuine bigot or simply sounds like one. The accusation of ignorance (as opposed, one assumes, to stupidity, which may or may not be equally implicated) rests on several facts that the Congressman is either unaware of, or conveniently overlooking. First, Congressional oaths are not taken on holy texts—neither bibles nor Korans nor any other. Secondly, Congressman Ellison is not an immigrant, nor is he the son, grandson or great-grandson of immigrants. His forebears have been in the United States for 250 years. And thirdly, the United States Constitution explicitly forbids religious tests for office, and protects religious liberty. To put this in language even Representative Goode can understand, liberty means that people are free to hold beliefs other than those held by Virgil Goode.

 

Goode has refused to retract his remarks. Ironically, in a response to the widespread criticism, he reportedly said, “I wish more people would take a stand and stand up for the principles on which this country was founded.” Given the Congressman’s tenuous hold on American history, it’s a remark calculated to make high school government teachers across the nation sob uncontrollably.

 

What seems to have eluded Congressman Goode is the nature of “the principles on which this country was founded.” Even when America hasn’t lived up to those principles—and we frequently haven’t—the  official American vision has been one of a society in which group identity is legally irrelevant, a society where an individual’s conduct is the only proper concern of government. In America, individuals are supposed to be rewarded or punished based upon their behavior. Race, religion, gender and similar markers of group affiliation are simply irrelevant to our legal status. No matter how meaningful those affiliations may be to us personally, the government may not award or restrict our rights based upon them.

The human animal seems to have been hard-wired to see the world as “Us versus Them.”  That’s okay—whether we like to admit it or not, most of us do categorize the world through that lens. The genius of America is that we define “them” by their behavior, not their identity.

 

I hate to tell you this, Congressman Goode, but in my lexicon, you are definitely a “them.”

 

 

 

 

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Suing City Hall

John Hostettler, the always entertaining Congressman from Indiana’s Eighth District, is again promoting legislation to repeal what he calls a “loophole” in the law. That “loophole” allows recovery of reasonable legal fees by people who successfully sue government for violating their religious liberties. Hostettler calls his bill “anti-ACLU” legislation—as though the First Amendment and the ACLU would both disappear if fees weren’t available.

 Using the language of victimization that Christians on the far right are increasingly employing, the bill’s supporters describe the measure as necessary to “protect religious liberty.”

 Hostettler and his cohorts conveniently ignore a few not-so-minor points. The omissions strongly suggest that what they really want is a country where the government gets to decide whose religion is acceptable. (They seem to take for granted that government will choose theirs.)  After all, the fees they want to eliminate are only awarded to “prevailing parties,” that is, to people who have won their lawsuits by proving in court that the government broke its own rules, overstepped its bounds and violated their rights.

 There are several reasons for the laws that allow citizens to recover their attorney fees when they successfully sue the government for civil rights violations. A civil rights action is different from an action between private parties. In a private lawsuit, if you win, you can make the other guy compensate you for whatever damage he caused. In a civil rights suit, a plaintiff who wins doesn’t necessarily even get compensated for whatever harm he has suffered. Sometimes, he doesn’t get anything but a promise by the government agency to stop doing something illegal. But his willingness to hold government responsible is an important tool of public accountability.

 If citizens have no real remedy when government misbehaves, government will misbehave. The Bill of Rights and other civil rights laws aren’t self-enforcing. They are worthless on a dusty shelf in someone’s law library—it takes legal action to make the Establishment Clause or Free Exercise Clause real. And the people who need protection from government are rarely the rich; they are often people who could never afford an attorney on their own.

 It’s hard enough to find a lawyer willing to fight city hall “on contingency” when there is the hope of being paid if they win. Ironically, if fee recovery were eliminated, the only lawyers who would ever bring these cases—other than those hired by the wealthy—would be public interest law firms like the ACLU, which gets most of its support from private donations, or groups like the American Center for Law and Justice, affiliated with Pat Robertson’s Christian Coalition.

 Fee reimbursement laws weren’t passed to benefit lawyers, or the ACLU or the ACLJ—they were passed to help their clients. Congress recognized that government is more likely to run roughshod over the rights of the “little guy,” than it is to mess around with the well-to-do and privileged. The fee statutes level the playing field by allowing us all to keep government in line.

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Rue-minations

In the mid-1990s, the National Constitution Center surveyed national attitudes and beliefs about the Constitution and Bill of Rights. They concluded that Americans “revere” the Constitution—and have virtually no idea what’s in it. 

 

I frequently find myself thinking about that study, because it goes a long way toward explaining why many of our public debates generate more heat than light.

 

Indulge me by taking a little test (no peeking at the answer!) You go to your local license branch when it opens, and wait with a roomful of others while clerks complete opening preparations. Before they begin business, the branch manager asks for silence. A prayer to Jesus comes over the speaker system. The clerks then join in a chorus of a hymn, after which the branch officially opens for business. This is (a) an exercise of free speech rights, or (b) a violation of the Establishment Clause?

 

The answer is (b). Why?

 

The Bill of Rights is essentially a list of things that government may not do. One of those things is “establish” (sponsor, endorse or favor) religious beliefs. Another thing governments may not do is interfere with the private expression—religious or otherwise—of citizens. So the first question a court must ask when a plaintiff is alleging a First Amendment violation is: was this individual expression, which is protected? Or is it government speech, which must follow constitutional rules?

 

In the case of the license branch, it is pretty clear that the manager controls the speaker system and gets to decide who uses it, and for what purposes. The manager is a government employee, the BMV is a government agency, and that makes the opening prayer government speech. If the manager was on a busy street corner praying, government could not properly interfere with his devotions; when he is acting on behalf of the state, it is obliged to do so.

 

People fulminating that the recent ruling about prayer at the statehouse was a violation of “free speech” should read Judge Hamilton’s decision (which—despite the Speaker’s assertions—was based upon unambiguous precedent). As Hamilton points out, citizens cannot just wander up and offer prayers from the Speaker’s podium; it is not a “street corner,” but a venue controlled entirely by government. Since what is said there must be considered government speech, it is subject to rules that could not be constitutionally applied to private speech. One of those rules is that if prayers are to be offered in such an environment, those prayers must be genuinely inclusive. Not just inclusive of Christians (although, according to the Christian plaintiffs, they didn’t even pass that test), but inclusive of all Indiana citizens.

 

I have sometimes used this space to be critical of Governor Daniels, but in this case, I think he got it just about right when he said it was “regrettable” that a compromise could not have been reached without litigation. I’m told the plaintiffs tried.

 

Evidently, the Speaker figured political victories aren’t won in court.

 

 

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