Tag Archives: First Amendment

Stop the Presses! ACLU Supports Christian Athletes

One of the great myths promulgated by the Christian Right is that the ACLU is “anti-religion” and “anti-Christian.” Those bent on demonizing the organization conveniently overlook the many cases in which the ACLU represents the rights of religious folks. When I was Executive Director of Indiana’s ACLU, it used to irritate me that we got no credit for being principled.

That is mostly because so few people understand what the principles are.

A friend just alerted me to a Virginia news item about that state’s ACLU, which has defended the right of student athletes to tape copies of the Ten Commandments to their lockers.

For people who are constitutionally literate, this position hardly comes as a surprise. If a school allows students to post items on their lockers, it cannot dictate the content of those items (other than forbidding obscenity). The school could constitutionally forbid the posting of anything at all, but if it does allow students to express themselves in that fashion, the  First Amendment’s Free Speech doctrine prohibits the school from picking and choosing among the messages.

If, on the other hand, a public school posts the Ten Commandments, the school is violating the Establishment Clause of the First Amendment, because the school is an agency of government, and government cannot endorse or sponsor religion.

There’s nothing inconsistent here. The point in both cases is to limit the authority of government.

In our legal system, individuals get to decide what they say and believe, free of government interference. That’s the principle the ACLU is protecting, and it isn’t anti-religious. It’s pro-individual 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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