he Pattawhominy Board Formulated aceptable Prayer lor Pupils livorce Court e Fraternity of riginal Intent ne Enemy Offends i, Rub Him Out!” re Case of the Missing Fish

i Magazine of igious Freedom >ol. 91, No. 2 irch/April 1996 IIP, ( I T .

E II T V Sunday Conundrum freedom, but about theology. truth a bit. You state, “Religious Please cancel my subscription LARRY DOTSON freedom is religious freedom, even to Liberty. I am concerned about Centerville, Tennessee for those who want to keep holy a the preoccupation the magazine day that has no biblical foundation Clarence E. Hodges Chairman. Editorial Board seems to have with the Christian [Larry, those texts don’t give whatsoever.” No biblical founda­ Right and the spirit with which credence to Sunday as a day of tion? That is not true. Christ arose Clifford Goldstein those associated with it are treated. worship above or equal to Satur­ on the first day of the week. In Editor I, too, disagree with many of the day.— Ed.] addition, Acts 20:7 says, “On the Loleta Thomas Bailey strategies employed by those in first day of the week we came Associate Editor leadership positions of groups Thank you for including a por­ together to break bread. Paul spoke

James A. Cavil lumped under the Religious Right tion of my letter in your Novem­ to the people and, because he Copy Editor umbrella, but I still consider them ber/December issue under the intended to leave the next day, kept to be my brothers and sisters in heading “The Right to Be Wrong.” on talking until midnight.” Paul Leo flanzolln Robert S. Folkenberg Christ. I don’t get that same Although your editorial comment also talks about Christians setting A. C. McClure impression from Liberty. In fact, I can be construed as attempting to aside money for a Christian collec­ B. B. Beach believe that Liberty would rather reinforce my praise for Liberty hav­ tion on the first day of the week in John Graz Consulting Editors align itself with the religious uni- ing devoted an entire article to 1 Corinthians 16:2. In addition, versalists who believe that Jesus is efforts taken to preserve the rights Revelation makes mention of Vernon Alger one way, but not the only way, than of strict Sundaykeepers, that is not something noteworthy: “On the Karnik Doukmetzlan Richard Fenn to acknowledge any sense of broth­ the impression it left with me. A Lord’s day I was in the Spirit” Samuel Green erhood with the Evangelical conser­ careless reader of Liberty might (1:10). Darrel Huenergardt vatives. also be left with the impression Just because these passages Charles Eusey Alan Heinach However, what caused me to that devout Seventh-day Adventists are unconvincing for you does not Lewis Stout finally decide that I no longer wish keep holy a day that has no biblical make them unbiblical. Mitchell A Tyner to receive Liberty was your editorial foundation. The “believer” Seventh- Keep to the purpose of Liberty Adrian Westney, Jr. Consultants comment in response to a reader’s day Adventists adhere to is Jesus because you’ve got a fine maga­ letter in the November/December Christ himself who asked His disci­ zine! Wintley A Phipps issue: “Religious freedom is reli­ ples to pray that their flight be not JAY MARTIN U.S. Congress Liaison gious freedom, even for those who on the Sabbath day (Matthew Manistique, Michigan Harry Knox want to keep a holy day that has no 24:20— primarily referring to the Designer biblical foundation whatsoever.” destruction of Jerusalem). Christ [Jay, none of these texts have

Juan R. Prestol I find that statement offensive rested from His work of redemp­ anything to do with Sunday being Treasurer and unbiblical. I respect your right tion on the Sabbath (Mark sanctified as a replacement for the to keep Saturday or any other day 15:42;16:2) and was the same per­ Sabbath.— Ed.] as holy and I also believe the word son God used to create the world of God supports my right to do so: in six days, resting on the seventh First of all let me say what a L/AertyiiSSN 0024-2055) is pub­ lished bimonthly by the North “One man regards one day above (John 1:3; Genesis 2:2). great publication Liberty is! It’s American Division ot the Sev­ enth-day Adventist Church, another, another regards every day JOHN L. ODELL, Esq. always extremely refreshing to see 12501 Old Columbia Pike, Silver Spring. MD 20904-6600. Sec­ alike. Let each man be fully con­ Glendora, California a publication that deals with all ond-class postage paid at Hager­ vinced in his own mind” (Romans views on a subject. stown, MD POSTMASTER send changes ol 14:5). “Therefore, let no one act as I thoroughly enjoy Liberty and After reading your article “Hate address to Liberty. P.O. Box 1119, Hagerstown, MD 21741- your judge in regard to a festival or the principles of religious freedom Government” in the November/ 1119. a new moon or a Sabbath day... ” for which it stands. In your December 1995 Liberty, I couldn’t Printed by the Review and Herald (Colossians 2:16). Your statement response to John Odell regarding help but feel that so many people Publishing Assn.. 55 West Oak Ridge Drive, Hagerstown, MD further convinced me that your real Saturday- or Sunday-keeping wasted their time and energy in 21741-1119. Subscription price: U.S. $6 95 per year. Single copy: problem with the so-called Reli­ Christians, you made a comment that community. I totally under­ U.S. $1.50. Price may vary where gious Right Is not about religious that I find to be a bit out of charac­ stand and respect religious free- national currencies differ. Vol. 91. No. 2. March/April 1996 ter with Liberty and stretches the

COVER ILLUSTRATION BY KEVIN CHADWICK

2 LIBERTY MARCH/APRIL 1996 IIP. ( I T .

dom, but lets get back to the accept or reject Him is the basis on the local Southern Baptist Church realize that the moral principals beginning of the article and just which God accepts or rejects them. held a revival the school held an contained in the Bible promote some common sense. Even after I make allowance for assembly so that all the students ethics apart from religion, but I see I quote: “Because the Orthodox Liberty’s editorial sarcasm and could be exhorted by their evange­ nothing about how these school are forbidden by their religion from your Seventh-day Adventist theolo­ lists to attend the revivals of the prayers are to be limited, if at all. driving cars on the Sabbath ...” gy, I am amazed that you would First Baptist Church. W ithout legal boundaries of Is this not the root of the whole exclude people from Heaven on the As a child reared in another prayers in school, I am extremely conflict— a man-made religious basis of their politics. Protestant denomination I won­ suspicious of launching or re­ law that caused so many complica­ R. B. OUELLETTE, Pastor dered why the Baptists were the launching these practices. I believe tions and ramifications when car­ First Baptist Church only ones who rated school that if this is allowed to happen the ried to an extreme. What goal did Bridgeport, Michigan assemblies at least twice a year, limits of school prayer will be liti­ this rule have In mind? If it was to and why my church never rated gated ad infinitum. guide people to worship in small [We weren't excluding them even one. REID K. MAYFIELD, Attorney groups, fine, but there are other because of their political involve­ When my children were grow­ Atoka, Oklahoma ways to accomplish that. If it was ment but merely questioning ing up in the same town they had to make them get some exercise, whether or not their political one very capable teacher, a reli­ Error Etched in Stone fine. If it was to allow some time involvement was really doing gious fundamentalist, who kept I can’t understand why you for reflections on the way to wor­ work that the Lord has asked attempting to influence them keep writing that there is a Ten ship, great! Couldn’t this have them to do.— Ed.] toward his religion while in school, Commandment monument in a been dealt with on a much simpler even to the point of his taking Denver park. I wrote you before basis than in the courts? Amen! them to a revival meeting under and I write you again, there is no DOUG CAMPBELL As a Southeastern Oklahoma the guise of “school activity,” Ten Commandment monument Atlanta, Georgia grade school student during the something neither their mother nor there. It is the nine command­ 1940’s, I attended a school in I desired. ments reflecting the tenets of a [You’d better ask a rabbi.— which the administration was obvi­ From this background I am particular religious denomination. Ed.] ously greatly influenced by a suspicious of constitutional sanc­ The second is missing, and the Southern Baptist school board tion of prayer or any other reli­ tenth is divided in two to give the Baptist Tongue Lashing majority. As a result, every time gious activities in public schools. I illusion of ten commandments. It I was appalled by your sugges­ is an insult to true Protestants and tion that members of the Christian the Jewish community. Most of us DECLARATION OF PRINCIPLES Coalition “had better take a good would prefer zero commandments prayerful look at what they’re than error in stone. doing" or risk hearing the Lord say he God-given right of religious liberty is best exercised To add to this affront, recently (because they dare to continue Twhen church and state are separate. the atheist community asked per­ their involvement in politics while Government is God’s agency to protect individual rights and mission to place a granite marker maintaining that they are doing so to conduct civil affairs; in exercising these responsibilities, offi­ near this so-called Ten Command­ for spiritual reasons), “depart from cials are entitled to respect and cooperation. ment monument saying, “There are me, ye that work iniquity for I Religious liberty entails freedom of conscience: to worship or no gods.” They were given the know you not.” I am absolutely not to worship; to profess, practice and promulgate religious proverbial run-around. I would like dumbfounded that anyone would beliefs or to change them. In exercising these rights, however, to see the reaction if a Protestant suggest people will suffer eternal one must respect the equivalent rights of all others. denomination ask to put up the separation from God because they Attempts to unite church and state are opposed to the inter­ real Ten Commandments. worked for the Christian Coalition, ests of each, subversive of human rights and potentially perse­ MARY JANE EAKLOR or for that matter, the Democratic cuting in character; to oppose union, lawfully and honorably, is Penrose, Colorado Party, Ross Perot, or the Libertari­ not only the citizen’s duty but the essence of the Golden Rule— to ans. People’s eternal destiny is treat others as one wishes to be treated. determined by their faith in the Readers can E-Mail the editor on Lord Jesus Christ. Whether they CompuServe i7 4617,263.

LIBERTY MARCH/APRIL 1 9 9 6 3 IAMBS f PENTAMETERS

asking permission to give the Invo­ \\ HEN THE “LORO’S DAY” cation. In the request, he proposed MEETS NEW YEAR’S EVE: Because the following petition: “Our Mother New Year’s Eve 1996 fell on Sun­ who art In heaven (If indeed there day, revelers in Britain found them­ Is a heaven and if there is a God selves faced with a 216-year-old who takes a woman’s form) hal­ law that put a damper on their fes­ lowed be thy name, we ask for thy tivities. The Sunday Observance blessing for and guidance of those Act of 1780, still on the books (this who will participate in this meeting. was years before the U.S. Constitu­ We fervently ask that you guide tion was written, much less rati­ the leaders of this city, Salt Lake fied), threatened fines for “any County, and the state of Utah so house, room, or other place” that that they may see the wisdom of provides “public entertainment or separating the church and state amusement” for pay on Sunday. and so that they will never again The Act doesn’t forbid the selling of chological or physical well-being of perform demeaning religious cere­ alcohol on Sunday, but it does ban M a r r y in g s t r a n g e w iv e s : the child, but rather on the moth­ monies as part of the official gov­ “payment for public dancing.” In Perhaps Alan Briskin should have er’s oral agreement prior to the ernment functions.” The prayer order to get around it, some night heeded the warnings of Nehemiah marriage— not enough to infringe also rebuked “misguided, weak, club owners waived any kind of the prophet, who was so adamant upon her free exercise rights. Not and stupid politicians, who abuse entrance fee; others became mem- that the Jews not marry out of the only had the lower court restricted power In their self-righteousness.” bers-only clubs for the night. faith he “contended with them, and Abbo from influencing the child When Snyder was told that he Because of the law, the village of smote them, and plucked out their against Judaism, she had also been could say the prayer only during Embasy had to cancel a New Years hair, and made them swear by God enjoined to promote a religion the “citizen comment” time, which Eve dance in the village hall that that they would not marry strange against which she was “conscience immediately followed the heavenly had been planned by the “fun com­ wives.” Briskin, a Jew, married stricken,” a violation of both the Invocation, he filed suit, saying that mittee” of the Church of the Gigl Abbo, a Catholic, only after Establishment and Free Exercise the city violated the Free Exercise Blessed Virgin Mary almost a year she agreed to raise their children Clauses of the First Amendment. and Establishment Clauses of the earlier. Though British Prime Minis­ Jewish as well as convert to “The freedom to choose any reli­ First Amendment as well as the ter John Major had Introduced an Judaism. After their child was gion,” said the district court, “nec­ Religious Freedom Restoration Act. Initiative that would get rid of what born, Abbo reconverted to Catholi­ essarily comprehends the freedom The district court filed a summary the government called “an outmod­ cism, and a few years later to change religions. Great changes judgment In favor of the city, argu­ ed piece of legislation,” nothing divorced Briskin. Though Abbo in religious beliefs are a feature of ing that the plaintiff failed to prove happened by New Year’s Eve 1996 retained custody, a local court Western history We would a crucial factor in any free exercise because the initiative was blocked ordered that she “should not inter­ reduce the right to the free exercise claim: sincere religious belief. by Parliament’s Deregulation Com­ fere in the development of the of religion by half if we did not rec­ Instead, he was using the prayer, mittee, which worried about rowdi­ child’s Jewish religious training and ognize the right to change one’s the court said, merely to express ness around clubs and bars. upbringing, nor should she actively religious mind.” Though no one his political views. Also, he was Those who want to see this ridicu­ influence the religious training of plucked out their hair before the not prevented from airing those lous law repealed will have plenty the child In any other direction, marriage, Briskin has probably views at the council meeting, but of time to try: New Year’s Eve other than the Jewish faith." Abbo plucked out a few since. simply was restricted in the time doesn’t fall on a Sunday again until appealed, and the fourth district when he could do so. It also 2002. court of Florida ruled in her favor, PRAYER REQUEST DENIED: rejected his Establishment Clause saying that the trial judge could not Since 1992, the Murray, Utah, city claim, arguing that prayers offered force the custodial parent to raise council began with prayer. In at the council were generally non- the child in a specific faith. The 1994, Tom Snyder wrote a letter sectarian and nonproselytizing In lower court, the judges contended, character, whereas his prayer dis­ didn’t base Its decision on the psy­

ILLUSTRATION BY RAY DRIVER

4 LIBERTY MARCH/APRIL 1996 I A M B S I- PENTAMETERS

paraged the faith and beliefs of oth­ physician charged with the “mercy” guards— clawed, bit, and chewed in “overt or covert sectarian prose­ ers and advanced his views of killing of a severely deformed new­ each other for the few agonizing lytizing religious teaching” (a little church and state. Good point, Mr. born girl, Rianna Kunst, who was minutes it took the cyanide-based light there). But it also allowed Snyder— just find a better way to born with spina bifida and only a Zyklon B gas to choke them to local minsters to sponsor the grad­ make it. partially formed brain. Though for­ death. uation service as long as it was not mally illegal in the Netherlands, held during school hours, school i OUNTERING THE REFORMA­ euthanasia is permitted if the doc­ ( HURCH AND (LONE STAR) officials were not allowed to partici­ TION: For centuries after Luther tors respond to a specific request STATE: In Doe v. Santa Fe Indepen­ pate in the ceremony, and atten­ nailed his 95 Theses on the door of from a terminally ill patient in intol­ dent School District, anonymous dance had to be strictly voluntary a Wittenberg church, whenever erable pain. Rianna, of course, plaintiffs charged that local school (that still doesn't solve the problem Protestants wrote about the never had a say, though doctors authorities allowed the Gideons to of the kid who wants to attend his antichrist, they focused almost were convinced that she was in pass out Bibles in junior high and own graduation but doesn’t want to exclusively on papal Rome and the great pain, had only a few weeks to high schools, allowed students to be subjected to even a nondenomi­ pope. Thus, nothing was really live, and couldn’t be saved by offer pre-approved prayers at offi­ national and nonproselytizing “sec­ unique about Michigan minister surgery. After Dr. Hans Prins cial ceremonies, and allowed a ular” prayer). Though the rulings Jack Van impe’s new video, which ended her life via lethal injection teacher to pass out flyers advertis­ could have been worse, consider­ warns about “Satan’s end-time (one of the more preferred means ing a revival meeting. The suit also ing that even the district court global ruler, the antichrist, and his of capital punishment in the United claimed that one teacher made two didn’t seem too sensitive to associate, the false prophet," who States), the government charged students who didn’t want to learn a nuances of church-state separa­ will “arise out of a revived Roman him in her death, mostly to clear religious song in sign language tion, one could hardly expect more empire.” The twist came, however, up the murky area of law involving stand outside the class while it was from the school district. No won­ because unlike his Protestant pre­ a patient unable to express a desire taught, and that the teacher also der the plaintiffs remained anony­ decessors— who always named the to live or die. mocked the religious beliefs of a mous. pope as the antichrist— Van Impe Mormon student in front of the used the pope instead to “expose” W HEN THE QUALITY OF MERCY whole class. The suit claimed too the antichrist! The 98-minute tape, IS flf/IZ lY STRAINED: A Canadian that the 1994 baccalaureate service Moving? called Startling Revelations: Pope judge recently added a new twist to was conducted by a local minister Please notify us 4 weeks in advance John Paul II, says that the liberal Holocaust revisionism: he said that who had been chosen by the element in the Roman Catholic the Nazis murdered their victims in administration without input from Church, staunch opponents of a humane and painless manner. In the schools. The district court, Name John Paul’s “conservatism on doc­ sentencing a woman for the sec­ hearing the case, ruled that the trine and morals," could be the ond-degree murder of her hus­ prayers were constitutional, as long Address (new, if change of address) antichrist power itself, and accord­ band, superior court justice Jean as they were nondenominational ing to Van Impe’s promotion, the Bienvenue compared her deed to and nonproselytizing in nature, City pope exposes them in such a light. Nazi atrocities at a concentration because they had a secular pur­ “Protestants,” wrote Van Impe, camp in Poland (presumably pose. (Prayers with a secular pur­ State Zip “have literally been flabbergasted to Auschwitz), except that her actions pose, that's a new one). The court

know that the pope is right on tar­ were worse, asserted Bienvenue, said that the school district could To subscribe to Liberty check rate below and fill get concerning this final end-time because the Germans did their allow nonstudents to hand out in your name and address above. Payment must accompany order. event.” A Protestant using the killing mercifully. “The Nazis did Bibles only in an “officially passive pope to expose other Catholics as not eliminate millions of Jews in a context” (whatever that means). □ 1 year $6.95

the antichrist. Who said times painful and bloody manner," he The court did order that the school Mail to: haven’t changed? told her. “They died in gas cham­ clarify its policies regarding school Liberty subscriptions, 55 West Oak Ridge Drive, Hagerstown, Maryland 21740 bers without suffering.” Apparent­ personnel who ridicule the religious W HEN THE QUALITY OF MERCY ly, the judge never read accounts of beliefs of students or who engage ATTACH LABEL HERE for address change or inquiry. If moving, list new address above. IS STRAINED: Late last year, a the petrified men, women, and chil­ Note: your subscription expiration date (issue, Dutch appeals court exonerated a dren who— shoved into sealed year) is given at upper right of label. Example: 0396L1 would end with third (May-June) issue chambers by truncheon wielding of 1996.

LIBERTY MARCH/APRIL 1996 5 While Those Pushing for a “Religious Equality” Amendment Tell “Horror Stories” About Persecution, Those Against the Amendment Have a Few Stories to Tell as Well. Let’s Hope Congress Is Listening to Both Sides.

B Y CHARD T. FOLTIN

A fter the 1994 congressional elections, States Constitution. However nice the titles Newt Gingrich, soon-to-be speaker sound, both are misnomers, and either amend­ ■ H of the House of Representatives, ment, if enacted, could undo the protections announced that a “school prayer” that the First Amendment has afforded us for B H amendment would he brought to a more than two centuries. ■ vote in Congress by July 4, 1995. Why the impetus to tamper with one of the ^P ^B The date has come and gone, and Constitution’s most fundamental provisions, ;f ■ the “school prayer” amendment its proscription on government establishment never materialized. Since then, of religion and on government prohibition of 7 T though, there has been another the free exercise thereof—otherwise known as movement toward what could be a radical the principle of separation of church and state? alteration in the protection that the First The problem with current law on church- Amendment affords to our reli­ state separation is demonstrated, gious liberties. Just prior to Richard T. Foltin is leg­ Mr. Gingrich and others assert, by Thanksgiving 1995, Congressmen islative director and coun­ the story of 11-year-old Raymond Henry Hyde and Ernest Istook sel in the Office of Gov­ Raines of St. Louis, Missouri. Ray­ announced the introduction of ernment and International mond was allegedly sent to the their respective versions of a “reli­ Affairs (Washington, D.C.) principal’s office for praying in the gious equality” or “religious liber­ of the American Jewish cafeteria before lunch. The princi­ ties” amendment to the United Committee. pal reportedly told him that he must discontinue this prac­ from praying was on duty tice. Raymond’s mother elsewhere in the school at the complained, and the princi­ time of the alleged incident. pal, it is said, explained that And according to the school the law did not permit her board president, there is no son to pray in public school. record of the claimed disci­ According to proponents of a plinary action. constitutional amendment, But, more crucially, the this case demonstrates that law does not forbid a student current law does not permit to say grace at lunch. Ever students to say grace at lunch since the U.S. Supreme Court and, more broadly, allows— or ruled in 1962 that public even requires—private reli­ schools could not prescribe gious expression to be sup­ the saying of prayers, the pressed. Therefore it is neces­ myth has grown that the sary to amend the Constitution. courts have pushed the schools to become reli­ Are they right? Is not allowing a child to say gion-free zones in which the religious con­ grace over lunch in a public school what sepa­ sciences of students are suppressed. This myth ration of church and state is about? Of course ignored the important distinction the courts not. drew between truly private expressions of reli­ To begin, there is substantial question as to gious belief, which are protected whether in or whether this particular story even happened as out of the public school, and school-sponsored the speaker described. An attorney for the religious activities, which are violations of core school district claims that no evidence has been non-establishment principles. uncovered by the board to support Raymond In May 1995, 34 religious and civil liberties Raines’ story. All school administrators are organizations of diverse political and religious informed about the students’ right to pray. backgrounds issued a joint statement of their The woman who supposedly stopped the boy understanding as to the law applicable to reli­

LIBERTY MARCH/APRIL 1996 7 gious expression in school. In Religion in the off the stage. Public Schools: A Joint Statement of Current Law, A suit was filed in Florida in which plaintiffs they affirmed that under existing law a student charged that a child was repeatedly reprimand­ may engage in private, truly voluntary religious ed for reading his Bible silently in a public expression at school, including the saying of school classroom, even to the point where his grace at lunch. Interference with that practice Bible was confiscated and he was forced to sit in constitutes a breach of the constitutionally pro­ the corner. tected right of free exercise of religion. However unfortunate these breaches of reli­ The invocation of Raymond Raines’ story gious freedom are, if they occurred as alleged, has not been an isolated incident. legal remedies exist. An amendment would not There is the case of Andrew Mannas of change the rights of students; in fact, they Chesapeake, Virginia—frequently cited by the already have these rights, and they can sue if Reverend Louis Sheldon of the Traditional Val­ those rights are violated. And in most cases in ues Coalition—who supposedly which school officials improperly stifled reli­ was prohibited from reading a gious expression no lawsuit has even had to be poem at the PTA’s Winter Fanta­ brought. sy program because the poem he A memorandum from the Rutherford Insti­ chose contained religious themes. tute, an organization that engages in legal p But an officer of the Chesapeake advocacy in religious liberty issues, demon­ ^ roponents public schools explained that strates this point. According to Rutherford, Mannas was not allowed to read “many cases can be solved with a strong and of a “prayer” amend­ his poem because it was submit­ professional letter from an attorney, a legal ted too late to be placed on the memorandum from our office, or a phone call ment have repeatedly program. The school system has from a [Rutherford Institute] staff member.” no policy prohibiting the reading While amending the Constitution would do invoked religious of religious poems. nothing to deal with so-called religious liberty No one denies that some school abuses, it would—based on every version of expression “horror officials who, misreading the such an amendment seen to date—turn the gov­ Supreme Court’s proscription on ernment into a proponent of particular reli­ stories” as a official promotion of religion in gious perspectives. This is what at least some of the public schools, have improp­ the advocates of an amendment-—who view any­ justification for their erly prohibited students, acting thing less than government endorsement of on their own initiative, from religion as demonstrative of overweening insti­ cause. Many of engaging in religious expression. tutional “hostility”—want. Their complaint, in In an overreaction to the courts’ the end, is not that government officials, or these stories turn out decisions, they have occasionally even the courts, have misapprehended what stopped students from distribut­ separation of church and state requires. Their to be apocryphal. ing religious literature on the complaint is with church-state separation itself, same terms as other student a principle that, if it means anything, means 1^— handouts are allowed, have that government shall not prefer religion and penalized students for referring that religion must remain a private matter. to religious themes in a school essay, have for­ Ironically, many of those who have invoked bidden students to wear religious messages on horror stories as a basis for tampering with the their clothing, and have in other ways infringed First Amendment have been oblivious to the upon the religious rights of students. real abuses of religious liberty that take place In Maryland, for example, the Washington when schools, either explicitly or implicitly, Post reported that a child was forbidden to allow their official weight to be placed behind make a cross for his grandmother’s grave. His religious observance. shop teacher allowed him to cut, sand, and var­ The most recent and best known horror nish the two pieces of wood, but said that he story involves the case of the Herdahl family. had to assemble the cross at home. An observant Lutheran and mother of six, Ms. In California, school officials allegedly Herdahl testified before the Senate Judiciary ordered a sixth grader to stop singing at a talent Committee in September 1995 about the show because he mentioned the name “Jesus.” harassment that she and her family faced when Right in the middle of his song, school officials they protested religious practices in the local turned off his music and asked the child to get public school. Upon moving to the small town

8 LIBERTY MARCH/APRIL 1996 t▼ o this day, there are public schools where organized, school-approved prayer and Bible teaching are

standard practice, in clear violation o f Supreme Court rulings.

of Ecru, Mississippi, Ms. Herdahl enrolled her weight behind a particular set of religious prac­ five older children in the North Pontotoc tices is not an aberration, either. Attendance Center, the only public school in In Virginia an elementary school allowed the community. She soon became aware that missionaries to enter the premises in order to prayers were being broadcast over the school recruit children, and pressured the children to intercom and recited in the classroom during attend the classes. the day, and that religious Bible instruction was In Texas a 12-year-old girl was called “a lit­ part of the curriculum. tle atheist” by her teacher, and had fellow stu­ Ms. Herdahl protested these practices dents ask “Isn’t she a Christian?” when she did because they were contrary to her belief that it not participate in prayers at school events. was her and her church’s role, not the school’s, In South Carolina a Jewish high school to teach her children about religion and prayer. senior complained that he was harassed by fel­ In addition, she had a specific theological low students, who called him a “Satan wor­ objection. “The intercom prayers were in the shiper” after he challenged the inclusion of name of Jesus,” she testified to the Senate com­ prayer in graduation ceremonies. mittee. “That is directly contrary to my family’s And these are only a few of the reported religious beliefs, because I teach my children to cases. No one knows how many other examples pray directly to God. My ability as a parent to of officially sanctioned sectarian prayer and teach my children to pray and our religious proselytization take place across the country, freedom were being undermined.” yet no one openly complains because few are The price of this objection of conscience was willing (and who can blame them?) to undergo ridicule and harassment of her children by the kind of harassment and ostracization that schoolmates—and, incredibly, by teachers as Lisa Herdahl and her children have faced. well. The children were called “atheists” and School officials may sometimes violate the “devil worshipers.” When her son left the rights of students to engage in religious expres­ classroom before a Bible class, the teacher com­ sion while in school. But the rights of religious mented to another child words to the effect that minorities have been—and continue to be— “people who believe in God go to Bible class— violated as well. And, as a clear guide to the those who don’t believe don’t go to Bible class.” perils that accompany such official religious When, despite her protests, school officials practice, woe betide the community member failed to take action, Ms. Herdahl filed a federal who protests. lawsuit to halt the school’s practices. The court Thus, Americans who cherish their religious has ordered that the school cease and desist freedoms should hope, even pray, that enough pending the trial, which is currently scheduled leaders in Congress will see the potential danger to take place this March. Meanwhile, Ms. Her­ of this latest movement to tamper with the First dahl has received a death threat in the mail and Amendment. If either the “religious equality” her family has received bomb threats. She has or “religious liberties” amendment becomes been personally accosted to the point that, for a part of the U.S. Constitution—and the govern­ time, her husband did the shopping “so that I ment is then constitutionally allowed to throw wouldn’t have to go into the stores.” its weight behind a religious practice—then we This horror story of what can happen when better be prepared, for the “horror stories” will a school is allowed to place its institutional have only just begun. El

LIBERTY MARCH/APRIL 1996 9 ILLUSTRATION BY JOHN BERRY

10 LIBERTY MARCH/APRIL 1996 BY EUGENE LINCOLN or years parents had been pressuring big day that members moved to the auditorium members of the Pattawhominy of East High School, just across the street. Even school board to write up a short then some people were standing in the back. A prayer to be recited at the beginning few had tried to sit in the aisles, but the fire of each day’s recitations that would marshal made them move. be acceptable to everyone and A gavel was rapped sharply on the table so it Fwould withstand any legal test likely to be trot­ could be heard over the cacophony of voices. ted out against it. “This meeting will come to or-” “After all,” Mrs. Hoosis, mother of three “Let our kids pray!” a voice from the back of children in the school system, had stated in the the room shouted. letters column of the Pattawhominy Register, “-der!” The chair ignored the interruption “our country will go to the doggies if our kids and finished the sentence. can’t even pray in school.” After the necessary preliminaries were over, One of the school board members, Sam Effie Gee, one of the members, began: “I pro­ Gwinn, an attorney in the Gwinn and Barrett pose the Lord’s Prayer.” Father O’Maley, in the audience, held up his hand and was recognized. “I assume that you’re recommending the Catholic version,” he said. “Whaddaya mean—is there more than one l o v THE way to say it?” Effie queried. “Oh, yes. Our version ends with ‘deliver us from evil’; the Protestant version goes on from Patiawhominy School there—something about ‘power and glory.’” “Just a minute!” Abe Ehrenberg, one of the board members, interrupted. “I can’t approve a .Bo a rd Formulated Christian prayer. Jewish children shouldn’t have to say it.” “OK. Let’s make up our own,” board mem­ ber A1 A. Gation interjected. “We might begin AN it with ‘Our almighty God.’” A voice rang from the audience. “No, no! God is a pagan term. We must call the Creator P rayer dor P u p ik by His proper name, Yahweh!” “No, His name is Allah,” another voice cried. “Elohim is the only correct one,” a third law firm, had replied in another letter to the voice answered. editor: “Any pupil in our school system—or any “I don’t care what you call Him.” A goateed public school system— can pray privately in man stood up. “I don’t believe in God. A school. What we must avoid is a prescribed pray­ moment of meditation, perhaps. But no er that a pupil would feel pressured into saying.” prayers. Repeat: no prayers!” But the pros had held public gatherings to “What about this?” A1 continued. “‘God promote school prayers, even amassing a (a.k.a. Yahweh, Elohim, Jehovah, Allah, Bud­ crowd in front of the school board’s meeting dha, et al.), if there be a God ... ’” place and holding a two-hour-long prayer vigil “Where do we go from there?” the chair while the board was in session. asked. That was it. Clearly the school board mem­ ‘“Help us not to step on anyone’s toes as we bers had to act. Election was coming soon, and pray—no, excuse me, as we meditate. Amen.’” half of them could lose their office. The chair “Sounds acceptable,” Mr. Gwinn replied. called for a special session that “But perhaps we should omit the would have only this item on its Eugene Lincoln ‘Amen.’” agenda. The meeting would be open is a freelance writer “Why?” some from the crowd to the public. living in Hagerstown shouted. The room was so crowded on the Maryland. “Sounds too religious.” I£3

LIBERTY MARCH/APRIL 1 9 9 6 1 1 Does a Court Order That Sends Divorcing Parents to a Catholic Seminar Violate the Constitutor

1 2 LIBERTY MARCH/APRIL 1996 BY JOHN W. FOWLER

dwin F. Kagin isn’t against divorce coun­ ly accountable to and under the authority of seling. He isn’t against Catholic Church- the bishop of Covington. sponsored divorce counseling. He isn’t The law allows no options to attend a semi­ against courts ordering parents to get nar other than the Catholic one, though any­ divorce counseling. He isn’t even against one who has a “compelling” religious or consti­ the court ordering people to get divorce tutional objection to attending the Catholic counseling from the Catholic Church. seminar could be excused. Some, though, will What Edwin Kagin is against is a court not seek an exemption, Kagin says, because of ordering parents to attend exclusively a the additional legal fees required. Another Catholic Church sponsored divorce counseling problem is that the judge to whom litigants program, so much that he has taken his battle must appeal will preside over the contested to court. divorce issues. Because the judge has enor­ “I consider it,” he says, “state coercion to mous discretion in deciding custody of chil­ force people to attend seminars conducted by dren, visitation rights, and support issues, some the Roman Catholic Church and to give sup­ divorce litigants will forgo seeking an exemp­ port— including financial, through fees for the tion, even though they oppose the requirement seminar—to the church. It’s a violation of the on grounds of conscience, religious freedom, establishment of religion clause of the First or constitutional principle, rather than offend Amendment.” their divorce judge. On the other hand, The judges being sued by Kagin argue that exemptions have been granted to every divorce he is way off base, because it’s not a religious litigant who has sought one on constitutional issue. grounds. “We’re trying to help the children,” they Meanwhile, attorneys for the parties desiring argue. “We are not trying to violate anybody’s divorce are ordered to inform clients of their rights.” duty to attend the seminar, and to attach to the But Kagin says that any law requiring atten­ summons a copy of a pamphlet giving infor­ dance at any function conducted directly by a mation about the seminar. This is something church on church property with fees going into that Kagin, a lawyer, refuses to do, because he the church’s bank account is a religious issue. doesn’t want to participate in compelling his He also points out that the judge’s order carries clients to attend a seminar run exclusively by a the force of the state and, if disobeyed, threat­ religious organization, nor does he want to par­ ens the possibility of punishment for contempt ticipate in directing funds there as well. of court. “I cannot obey this order,” he says. “I am “This is only a little leak in the wall of sepa­ forced to choose between violating the consti­ ration between church and state,” says Kagin. tution I am sworn to defend or being held in “But beyond this trickle awaits a great irra­ contempt of court.” tional flood of inquisitions, tribal holy wars, The result of Kagin’s disagreement: first a and theocrats who want their doctrines to con­ petition for relief, and then the lawsuit, Kagin v. trol our minds and bodies. The leak must be Leonard L. Kopowski, William /. Wehr, Gregory plugged.” M. Bartlett, Raymond E. Lape, Douglas M. The order that turned Kagin’s crank was Stephens, and Patricia M. Summe, Circuit Court issued by the Kenton and Campbell circuit Judges o f Campbell County and Kenton County. courts in Kentucky on June 1, 1995. The law Kagin does not challenge on its face the requires divorce litigants with children, who requirement that divorcing parents with unre­ have not worked out a separation settlement, to solved custody questions attend a counseling attend (within 45 days of filing for divorce) a seminar. But a government practice that asso­ seminar on parenting sponsored by Catholic ciates itself with any religious doctrine or orga­ Social Services. Under pain of contempt of John W. Fowler nization, says Kagin, has the effect of advancing court, the parents must pay a $15 fee for each is ministerial or promoting that religion. In this case, the participant attending the Catholic Social Ser­ secretary o f the judges have affiliated the commonwealth’s judi­ vices seminar called “Parents Are for Good.” Kentucky-Tennessee cial branch with a “religious organization” The seminar is a subdivision of Catholic Char­ Conference of the namely Catholic Social Services and its pro­ ities, a subdivision of the Covington Diocese of Seventh-day Adventist gram— and that, Kagin says, is a violation of the the Roman Catholic Church, which is ultimate­ Church. Establishment Clause.

LIBERTY MARCH/APRIL 1996 13 The judges and the news media have depict­ inar requirement almost from its inception, ed Kagin as concerned about something that even though people in Campbell and Kenton amounts to nothing, and unconcerned about counties have access to many groups and indi­ such matters as the well-being of divorced par­ viduals offering relevant mental health or fam­ ents and their children. The judges argue that ily counseling services. The court-ordered the program is completely secular, and “does divorce seminar routinely takes place on not advocate religious beliefs of any kind.” church-owned property. Also, the $15 fee pays only for the cost of the Another problem is that the Roman seminar itself and doesn’t revert to any sectari­ Catholic Church holds strong religious views an aspects of the Catholic Church. “In fact,” about many issues that might arise in the sem­ the judges said, “Catholic Social Services is ‘los­ inar, such as nonmarital sex, artificial birth ing money’ on the program because the cost of control, abortion and divorce itself. Conse­ presenting the program consistently exceeds quently, Catholic Social Services cannot freely the revenues gained through payment of par­ advocate positions or encourage behavior ticipant fees.” They also claim that though the Kagin sees inconsistent with church teachings. Thus, sem­ general order requires Kagin to provide notice inar leaders must avoid discussing those issues of the requirements for counseling, nothing a problem and are likely to alter or delete important prohibits him from “informing the parties of aspects of the seminar in order to avoid con­ his vehement objection to the general order.” with a legal flicts with Catholic dogma. But Kagin sees a problem with a legal m an­ mandate For Kagin, the court order could be one step date ordering people to attend counseling ser­ on the “slippery slope.” If the law can force vices conducted and operated by a religious ordering people to attend a divorce seminar conducted organization, and so he filed for a relief from by a religious organization and require fees for the general order in January 1995. His request people to it that go directly into the treasury of a tax-ex­ was denied on February 15. attend empt religious organization, why couldn’t the “The petitioner, Kagin,” the circuit court law force a person to attend an elementary said, “does not have standing to contest the counseling school run by a religious organization, or to validity of the general order as applied to his attend worship services conducted by a specific clients”; “a writ of prohibition is an extraordi­ services con­ denomination, or even to attend worship on a nary remedy which is not proper in this ducted and given day? instance”; “the petition must be denied because The ACLU then filed for a writ of prohibi­ the divorce education program does not violate operated tion in the Kentucky Court of Appeals, but it any of the constitutional provisions asserted by was dismissed on Kagin’s failure to demon­ the petitioner.” by a reli­ strate “an irreparable injury.” The American Civil Liberties Union of Ken­ gious organi­ But Kagin is undaunted. He appealed the tucky then offered to help. David A. Friedman, decision to the state supreme court. general counsel for the Kentucky ACLU, zation ___ Kagin’s concern for civil rights goes back argued that the fact the “court has ordered liti­ decades. While teaching English at the Kansas gants to participate in a seminar offered only by State College of Pittsburg in the mid-1960s, he a religious organization” constitutes a fatal flaw spoke out against the Vietnam War. This led to in the legislation requiring attendance at the a high-profile radio debate in which Kagin Catholic-sponsored divorce seminar. Fried­ effectively attacked the validity of the war. His man urged the court to rescind the order, “at debating skills won the debate but cost him his least until such time as nonreligious organiza­ job. That hurt, but increased his interest in tions are included as seminar sponsors.” If not, civil rights. the ACLU was prepared to represent Kagin in a About the same time, while serving as an First Amendment challenge to the ruling in the editor for the National Institute of Mental Kentucky Supreme Court. Health, he organized, and was the first presi­ The circuit court summarily rejected the dent of, the first community action program in request, and the judges continued to award the state of Kansas. He proudly acknowledges exclusive sponsorship to Catholic Social Ser­ that his work in the area of civil rights earned vices. Nor would they even consider applica­ him the reputation as a controversial but effec­ tions from other individuals or organizations tive spokesperson for those whose civil rights offering mental health or family counseling ser­ were threatened. That reputation stuck. vices. Catholic Social Services’ exclusive spon­ While working at the National Institute of sorship was, in fact, an integral part of the sem­ Mental Health, Kagin gave endless hours help­

14 LIBERTY MARCH/APRIL 1996 ing people experiencing “The primary witness to abuse and discrimination the resurrection of Christ via segregation. Seeking the was,” Kagin claims, “a assistance of lawyers, he deranged hooker named quickly discovered that Mary Magdalene, who was most lawyers either were nuts.” He considers the not interested, were incom­ Bible to be a collection of petent, or demanded huge myths and dubious history. fees that people couldn’t He also believes that Chris­ afford. tianity has done a great deal His growing concern for of harm in the world. civil rights radically “There are more people changed the course of his professing Christianity per career and propelled him capita in America today into law school at 29. He than any other nation on applied at three different earth,” he says. “However, law schools, was accepted at we are also the most violent all, but earned his degree nation on earth, and we also from the University of have more people in jail per Louisville. While there he capita. This may be because received the Book Award in of public prayers.” constitutional and criminal Ironically enough, this law, which means that civil libertarian is a Nation­ Kagin received the highest al Rifle Association certified grade in his classes. firearms instructor and an Even while establishing Eagle Scout. his law practice in Louisville “The next step past Eagle he moved quickly to help organize the first Scout,” he says, “is the God and Country Legal Aid Society in that city. After moving his Award. I didn’t think I could in good con­ practice to the Covington area, Kagin received science continue, because I didn’t believe it.” by mail the notice requiring his clients to attend Today... Then, a few days before Chritsmas last year, the Catholic divorce seminar. His deepening Kagin is a the Kentucky Supreme court affirmed the commitment to civil rights led him to take on appellate court decision not to grant a writ of the six judges who wrote into law the seminar committed prohibition in Kagan’s case, because, it said, “at requirement. this time there is no existing case or controver­ Kagin sees this restriction as only a small and active sy for which this court can provide a remedy.” part of a major threat to our freedoms. He is secular According to the decision, Kagan himself isn’t convinced that a religious civil war to break under a contempt citation, nor was he repre­ down the wall of separation of church and state humanist senting anyone “who is effected by the general is being waged all across North America. order.” Thus, the justices never dealt with the Speaking at a meeting of Libertarians in who believes free exercise issue, but only with a procedural Cincinnati, Ohio, July 20, Kagin began: “There that Chris­ matter. is at this moment a civil war over religion rag­ “We’re not going to give up,” said Kagan. ing in the U.S.” tianity is a “We will attempt to find a divorce client affect­ Admittedly, Kagin is no Christian. The son ed by the order who will join with me as a of a Presbyterian minister, he grew up in a reli­ demonstra­ plaintiff, and then go back to court.” gious home and spent his first few years in col­ tively absurd Why push so far? Why spend the time, lege at Presbyterian schools. Despite his reli­ money, and effort for a simple court order by a gious background, he started asking questions mythical few circuit court judges? For Kagin, the answer about the Bible and Christianity when he was a is easy. teenager. His parents thought it was just a religious “Those who don’t understand why I am phase. If so, it has been a long one. Today, at system. making all this fuss,” he says, “would suddenly 55, the father of four children, Kagin is a com­ understand if, instead of a Catholic seminar, mitted and active secular humanist who they were ordered by the court to attend one believes that Christianity is a demonstratively sponsored by the Branch Davidian Social Ser- absurd mythical religious system.

LIBERTY MARCH/APRIL 1 9 9 6 1 5 ILLUSTRATION BY JOHN KACHICK

16 LIBERTY MARCH/APRIL 1996 Jraterniti/ o f Q riainaf S J n ie n i

Clarence Thomas, the Newest Inductee

BY DEREK H DAVIS Æ J ast year, in Rosenberger v. tion on governmental preferences for some M ___ University o f Virginia, the religious faiths over others, and not as a bar to Æ f 'N U.S. Supreme Court ordered aiding religion in general. W ' I the University of Virginia to Only one problem: this view is wrong, and its subsidize a student-run falsity reveals not only just how unreliable the Christian newspaper. It was concept of original intent is, but how much the first time in the Court’s history that it had damage it could do to religious freedom were it approved a direct subsidy for religious activi­ to become the prevailing means of interpreting ties. What’s important about Rosenberger isn’t Establishment Clause cases. so much the decision itself, however, but the Though it’s been used for years, original rationale behind it. intent was first popularized by William Rehn- For Justice Clarence Thomas, who voted quist in a dissenting opinion in Wallace v. faf- with the 5-4 majority, the Court’s ruling was free (1985). That case involved an Alabama mandated by the “original intent” of the statute that mandated a moment of silence in framers of the Constitution, which means the public schools for “meditation or prayer.” The Constitution should be interpreted only in Court found that the unmistakable legislative ways that the framers contemplated or would purpose of the statute was to introduce regular have approved of. Thus Justice Thomas joined prayer observances in Alabama public schools, several of his conservative col­ a violation of the Establishment leagues on the Court in the belief Derek H. Davis is editor Clause. that the framers saw the Establish­ o/The Journal of Church Rehnquist, still a year away from ment Clause simply as a prohibi­ and State. becoming chief justice, applied his

LIBERTY MARCH/APRIL 1996 17 jurisprudence of original intent. “The true the controlling factor. It was deemed only one meaning of the Establishment Clause,” he said, of many important factors for probing consti­ “can only be seen in its history.... As drafters tutional questions. The Court, according to of our Bill of Rights, the framers inscribed the Benjamin Cardozo, was obligated to give equal principles that control today. Any deviation weight to logic, modern circumstances, com­ from their intentions frustrates the perma­ munity traditions, moral concerns, and prece­ nence of that charter.” For Rehnquist, the dent. The main weakness of the new jurispru­ framers intended the Establishment Clause to dence of original intent is that it allows histori­ prohibit only a national church and the prefer­ cal inquiry to override the other equally impor­ ence of some religious denominations over tant concerns. others. Also, the efficacy of elevating history over “There is simply no historical foundation,” other relevant concerns assumes that history is he added, “for the proposition that the framers being accurately interpreted. This is where the intended to build the ‘wall of separation’ jurisprudence of original intent of Rehnquist, [between church and state].” Thomas, and other Court conservatives—at The “wall of separation” ter­ least in interpreting the goals of the framers minology, he suggested, “is a concerning the interplay between religion and metaphor based on bad histo­ government—is particularly suspect. Supreme ry, a metaphor which has Court justices, liberal, conservative, and mod­ e main proved useless as a guide to erate, have sometimes come to radically differ­ judging. It should be frankly ent conclusions about the framers’ intent than weakness o f the new and explicitly abandoned.” have the current set of Court conservatives Thus, in unprecedented advancing the jurisprudence of original intent. jurisprudence of fashion, Rehnquist criticized Though the amount of information that one the Court for reading history must investigate to determine the framers’ original intent is that inaccurately, and called upon intent is massive, all agree that James Madison his fellow justices to revamp and Thomas Jefferson led the development of it allows historical the Court’s interpretation of religious liberty in the founding era, and that the Establishment Clause in a their views are crucial in deciphering the reli­ inquiry to override way that, reflecting the gion clauses. framers’ supposed intentions, Yet here is precisely one of the biggest weak­ the other equally would permit nondiscrimina- nesses of the jusriprudence of original intent: tory religious activities in pub­ different justices have different views of the important concerns. lic schools and other govern­ framers’ motives. ment forums, and allow gov- For example, Justice Hugo Black, who in ------ernment at all levels to appro­1947 authored the Court’s opinion in Everson priate tax dollars to churches v. Board o f Education, took a different view of and religious schools provided the money is the framers’ intent than did Justice Clarence distributed fairly to all religious groups. Thomas, who wrote a dissenting opinion in the Rehnquist is joined by Antonin Scalia, recent Rosenberger case. Everson dealt with the arguably Anthony Kennedy, and now apparent­ constitutionality of a New Jersey statute that ly Clarence Thomas. Together they form a for­ authorized reimbursement to parents for the midable block on most Establishment Clause cost of transporting their children by bus to cases and—when occasionally joined by the parochial schools. Five members of the more moderate Sandra Day O’Connor—are Supreme Court held that reimbursement of thus able to shape law around their jurispru­ these fares from public funds did not violate dence of original intent. the Establishment Clause. The remaining four It is peculiar that the jurisprudence of origi­ justices dissented, arguing that it amounted to nal intent has become exclusively monopolized an unconstitutional aid to religion. The rele­ by conservatives and presented as their own vance of the case rests not, however, on the distinctive judicial philosophy. This is a perver­ outcome, but on the fact that all nine justices sion of the historical record. For more than 200 agreed with Justice Black’s historical analysis of years conservative, centrist, and liberal the framers’ original intent concerning the Supreme Court justices alike have often used meaning of the Establishment Clause: original intent as a means of constitutional “No tax in any amount, large or small,” he analysis. Seldom, however, was original intent said, “can be levied to support any religious

18 LIBERTY MARCH/APRIL 1996 f et here is precisely one

of the biggest weaknesses o f the jusriprudence o f original intent:

different justices have different views of the framers’ motives.

activities or institutions, whatever they may be Patrick Henry sought to end the stalemate in called, or whatever form they may adopt to 1784 by vigorously lobbying for the “general” teach or practice religion.” All nine members of assessment bill. Madison took up Jefferson’s the Court agreed with this interpretation; they struggle, writing and circulating his celebrated differed only on its application, the majority “Memorial and Remonstrance Against Reli­ believing that religion was not being advanced gious Assessments,” in which he argued that through the reimbursement program. the general assessment bill would dishonor The Everson Court, believing that Jefferson Christianity because it, along with all religion, and Madison’s views were representative of the was outside the purview of civil authority. founding fathers, relied heavily upon the pro­ Madison’s efforts against the assessment bill nouncements of the two Virginia gentlemen in proved successful. When the assembly failed to offering its unanimous interpretation of the act on Henry’s assessment bill, Madison rein­ meaning of the Establishment Clause. The troduced Jefferson’s “Bill for Religious Free­ Court examined carefully the dramatic struggle dom,” which prohibited altogether support for for liberty and church-state separation led by religion. Jefferson’s bill passed by an over­ Jefferson and Madison in Virginia over a 10- whelming vote of 67 to 20 in 1786. year period, 1776-1786. In writing for the majority in the Everson Because the Church of England had recent­ case, Justice Black indicated that the views ly been “disestablished” in Virginia, several advanced by Jefferson and Madison in the Vir­ Virginia assemblymen, including Patrick ginia experience were of considerable weight in Henry, sought to pass a “general” assessment determining that the framers were opposed to bill whereby Virginia would collect taxes to be the financial support of all religion, rather than distributed to all Christian denominations. Jef­ seeking to deny only the preferential funding of ferson, believing that religion was a personal some faiths over others. In addition, Black matter and that government should exercise no noted that the letter written by Jefferson to the jurisdiction over religion, including the finan­ Danbury Baptist Association in 1802, which cial support of religion, introduced his “Bill for stated that the purpose of the First Amendment Establishing Religious Freedom,” which was was to create “a wall of separation between premised on the view that it was “sinful and church and state,” was a strong indicator of the tyrannical” to compel someone to contribute intentions of the framers. By giving approval to the propagation “of opinions which he dis­ to the “wall of separation” metaphor, the believes and abhors.” The bill also strikingly Supreme Court was giving full credence to the declared that “God had created the mind free” indefatigable efforts for religious liberty of not and that all attempts to control it by the impo­ only Thomas Jefferson, but Jefferson’s separa- sition of civil disabilities were “a departure tionist equal and close friend, James Madison. from the plan of the Holy Author of our reli­ This interpretation of the Establishment gion, who being Lord of both body and mind, Clause went largely unchallenged for almost 50 yet chose not to propagate it by coercions on years—until Rehnquist’s revolutionary reinter­ either.” pretation in Jaffree. Occasionally a justice The Virginia assembly, faced with two dia­ would disagree with the application of the metrically opposed approaches, deadlocked on Everson standard, without challenging the the issue for several years. Seeking to take standard itself. Justice Potter Stewart, for advantage of Jefferson’s absence (he was over­ example, as the lone dissenter in the 1962 Engel seas serving as an ambassador to France), v. Vitale case, which banned teacher-led prayer

LIBERTY MARCH/APRIL 1996 19 in the nation’s public schools, felt that class­ ment with Rehnquist’s jurisprudence of origi­ room prayers would allow students to share in nal intent. Thomas’ dissenting opinion the “spiritual heritage of our nation.” For Stew­ includes an extensive analysis of his perspective art, classroom prayers were to be accommodat­ on the extent to which the Jeffersonian-Madis- ed within a separationist framework, but he onian separation imperative was adopted by was unwilling to criticize the basic separationist the framers in drafting the religion clauses. His framework of Everson. basic position is that modern-day separa- Rehnquist’s dissent in Jaffree was premised tionists make too much of Jefferson’s “Bill for on the view that the Supreme Court, beginning Religious Freedom” and Madison’s “Remon­ with the Everson case, had badly misread histo­ strance.” Even if these twin documents influ­ ry. He thought that the Everson Court, while enced the framers of the First Amendment, he correct in bracketing Jefferson and Madison says, their influence was limited to the context together in their exertions for church-state sep­ in which the documents arose: “the support of aration in their home state of Virginia, incor­ clergy in the performance of their function of rectly suggested that Madison carried these teaching religion.” In other words, the Virginia same views to the First Congress in 1789, when debates were all about the improprieties of gov­ the religion clauses were fash­ ernment paying clergy; they were not con­ ioned. For Rehnquist, it was cerned with broader principles of religious lib­ “truly remarkable” that “the erty. views of Madison and Jefferson This is a curious position. Though Virginia . . . came to be incorporated ... was concerned about paying its Christian cler­ in the federal Constitution.” His gy from the public purse, Jefferson and Madi­ Rehnquist, it was “truly view is that the framers were not son used the occasion to argue that any gov­ seeking to duplicate that which ernmental support of religion violated sound remarkable ” that was done in Virginia, or in any spiritual and political principles. On spiritual of the other states, for the grounds, for Jefferson, “to compel a man to “the views o f Madison advancement of religious liberty; furnish contributions of money for the propa­ the scope of the congressional gation of opinions which he disbelieves and and Jefferson... came proceedings was more limited in abhors is sinful and tyrannical”; for Madison, that it was concerned only that “it is the duty of every man to render to the to be incorporated... the new central government not Creator such homage and such only as he be permitted to create a national believes to be acceptable to him” rather than in the federal church or discriminate among what government would require of him. On sects in the support of religion. political grounds, for Jefferson, government Constitution. ” Yet among the 10 separate should not attempt to support religion, in spite drafts of the religion clauses of its best intentions, since “truth is great and debated by the First Congress, at will prevail if left to herself’; for Madison, “reli­ least three and arguably four gion is wholly exempt” from civil society and favored Rehnquist’s “no preference” view­ should never be employed “as an engine of civil point, and all were rejected. One rejected draff, policy.” These statements go beyond Jefferson for example, read: “Congress shall make no law and Madison’s obvious objections to having establishing one religious sect or society in the state pay Christian ministers; instead, they preference to others, nor shall the rights of con­ are profound declarations that the best govern­ science be infringed.” This proposal would mental policy is one that doesn’t attempt to have clearly permitted governmental advance­ advance religion by any means other than pro­ ments of religion, provided they were nondis- tecting people’s right to freely exercise religious criminatory. belief. No one suggests that the final language Justice Thomas attempts to solidify his posi­ (“Congress shall make no law respecting an tion by arguing that “Madison’s objection to establishment of religion, or prohibiting the the assessment bill did not rest on the premise free exercise thereof’) is free of ambiguities, that religious entities may never participate on but it does reflect a broad commitment to pro­ equal terms in neutral government programs.” hibiting a wide range of religious advancements He suggests that because the University of Vir­ (“establishments”). ginia permitted the use of student fees for the Among the significant features of the Rosen- publication of student-run secular newspapers, berger case is Justice Clarence Thomas’ align­ it could not discriminate against student-run

20 LIBERTY MARCH/APRIL 1996 M en years ago the jurisprudence

o f original intent was only an ideology, a novel approach to constitutional interpretation advanced by Justice William Rehnquist. Today it has become a

threat to time-tested constitutional principles and ideals. religious newspapers by refusing it the same next, which could conceivably be followed by privilege. But the university could have opted government efforts at all levels—local, county, to permit the publication of the Christian state, and federal—to provide more funding newspaper while not paying for it. This would for religious charities and social service organi­ have preserved the antidiscrimination principle zations. And despite Justice Kennedy’s assur­ without violating the Jeffersonian-Madisonian ance to the contrary, churches might soon be in separationist mandate enshrined in the Estab­ line to receive public financial support. lishment Clause. Because funding to churches, religious orga­ Justice David Souter, in dissent, saw things nizations, and sectarian schools would be per­ clearly: “The court is ordering an instrumental­ mitted only on a nondiscriminatory, even- ity of the State to support religious evangelism handed basis, the competition for public dol­ with direct funding. This is a flat violation of lars would be unprecedented. Inevitably, those the Establishment Clause.” applicants among the 1,500 or so identifiable No one knows the long-term effects of religious groups in America who received sup­ Rosenberger. Justice Kennedy noted in the port would be those with the most money and majority opinion that allowing student fees to political clout, resulting in the denial of the support a student journal was not a step on the rights of religious minorities. Unfortunately, slippery slope toward using general tax dollars the jurisprudence of original intent is mistaken to support churches. Justice Souter wasn’t so in its belief that religion should be nurtured, sure: “Since I cannot see the future, I cannot patronized, or promoted by government. This tell whether today’s decision portends much has been the policy of most human societies more than making a shambles out of student throughout history, always to the detriment of activity fees in public colleges.” Nevertheless, religion. he stated, quoting from Chief Justice Warren The real issue is whether religion needs the Burger in a 1971 case, “A certain momentum state to prop it up, or whether religion thrives develops in constitutional law theory and it can best when left alone. The Jeffersonian and be a downhill thrust easily set in motion but Madisonian views—that only voluntary religion difficult to retard or stop.” is authentic and that government nurture dese­ Ten years ago the jurisprudence of original crates true religion—are protective of the sancti­ intent was only an ideology, a novel approach ty of religion. to constitutional interpretation advanced by Though the jurisprudence of original intent Justice William Rehnquist. Today it has stakes a claim to historical accuracy, the grow­ become a threat to time-tested constitutional ing Supreme Court fraternity of original intent principles and ideals. Rosenberger may only be is less committed to historical accuracy than to a case involving mandatory student activity finding a theoretical justification for overturn­ fees, but the principles upon which the case was ing controversial decisions its adherents dis­ decided rest firmly on jurisprudence of original agree with. No one would dispute the need for intent. Rosenberger affirms that government historical accuracy, but when historical inquiry may subsidize religion, provided it does so becomes the preeminent basis for constitution­ nondiscriminatorily. Other previously al decision-making, it becomes, in the words of unthinkable acts, all of which ultimately rest constitutional scholar Milton Konvitz, “a tool upon this affirmation, could follow. The cur­ with which to subvert well-established princi­ rent movement for publicly funded vouchers to ples and ideals, and to overrule leading cases be used for attending religious schools seems that were the fruit of agonizing labors by highly the most likely candidate to receive approval regarded justices of our court of last resort.” 2

LIBERTY MARCH/APRIL 1996 21 [ V i t l M I I l

RUB HIM OUT! “What mean and cruel things men do for the love of God.” — W. Somerset Maugham

B Y JAMES A. HAUGHT ow ironic that millions of religious adherents— dos thwarted them. At home in Algeria, fellow those who preach love, unity, and peace—con­ fanatics shot two high schoolgirls in the face for the tinue to perpetrate murder, mayhem, and vio­ sin of going unveiled, and executed teachers for the lence on a grand scale. All over the world, faiths sin of allowing boys and girls to sit in the same that teach (in one form or another) “Love thy classrooms. neighbour as thyself’ kill their neighbors with December 1994: A Christian zealot killed two sickening regularity. women at abortion clinics in Massachusetts, the third fatal clinic attack in America in two years. November 1995: A militant Jew who said that October 1994: An Islamic suicide bomber blew he was acting on “instructions from God” assassi­ up a bus full of Jews in Israel, killing at least 22 and nated Israeli prime minister Yitzhak Rabin. wounding 50. November 1995: Muslim terrorists dispatched a September 1994: In Switzerland 48 members suicide zealot to ram a truck of explosives into the of the Order of the Solar Temple died in a mass Egyptian embassy in Pakistan, killing 17 and murder-suicide. Many bodies were found in cere­ wounding 60 people. monial robes in a secret underground chapel lined March 1995: Nerve gas released in the Tokyo with mirrors. Clusters of dead children were also subway killed 10 people and sickened more than found in three ski chalets. In Quebec five more vic­ 5,000. Afterward, 2,500 police raided compounds of tims were found at a Solar Temple branch. The the secretive AUM Supreme Truth Sect, seizing hun­ Canadian group had been stockpiling guns to pre­ dreds of barrels of toxic chemicals, freeing 50 semi­ pare for the end of the world. conscious cultists, and finding hoards of cash and September 1994: Two Louisiana sisters were gold. convicted of gouging out a third sis­ December 1994: Muslim fanat­ James A. Haught is ter’s eyes to drive Satan from her. ics, who want to turn Algeria into a editor ot the Charleston theocracy, hijacked a French airliner, Gazette in West Virginia Religious horrors, no doubt, murdered three passengers, and and author of Holy Hatred: occur in many varieties, from child planned to kill the remaining 170 Religious Conflicts molesting by Catholic priests to passengers and crew in a firebomb of the ‘90s, Prometheus million-dollar swindles by TV explosion over Paris, but comman­ Books, 1995. evangelists. But the most lethal

2 2 LIBERTY MARCH/APRIL 1 996 type is terrorism by fundamentalist fanatics Bosnians and Catholic Croats continued to shock and ethnic warfare fueled by “religious tribal­ the world. Earlier at one village Orthodox gun­ ism,” which stems from religion’s power to men herded Muslim families into a basement and divide people into rival groups, often turning tossed in grenades, then joked that the screams them against one another. sounded “just like a mosque.” Sociologist Nathan Glazer said ethnicity is February 1994: In Hebron, Israel, a devout the most powerful force in human events. Eth­ Jewish doctor took a machine gun into a historic nic conflicts grow from differences in race, lan­ mosque and murdered 30 Muslims as they knelt guage, economics, locale, politics, culture—and in prayer. The massacre, in retaliation for Mus­ religion. Anything that separates people can lim murders o f Jews, triggered another wave of spawn hostility, and religion is one of the killing. strongest dividers. October 1993: A t Halloween terrorists in With Soviet Communism now gone and the Northern Ireland burst into a pub, shouted “trick cold war no longer spurring conflicts, the spot­ or treat,” and killed seven people. light has shifted to local ethnic strife, most of it May 1993: A Hindu suicide bomber killed the involving fractious faiths: Christian Armenians and Muslim Azerbaijanis continue to slaughter each other in the Caucasus; fundamentalists who murdered a former Egyptian president now threaten his successor; Catholic islanders of East Timor are languishing under occupa­ tion by Muslim Indonesia; Sudan’s never-end­ ing war between northern Muslims and south­ ern Christians has caused famine; fundamen­ talists who were winning an election in Algeria turned to terrorism after the election was halt­ ed; black Muslims briefly shot their way to con­ trol of Trinidad; Christian Greeks and Muslim Turks on Cyprus still need U.N. peacekeepers to hold them apart, 30 years after plunging into combat; the Buddhist minority in Nepal is in ferment over a new constitution that declares the mountain kingdom a Hindu state. The smoldering wreckage of a bus moments after a bomb Frequently, members of a majority religion explosion October 19 ,19 94 in Tel Aviv. brutalize minority believers— as in Iran, where m m the Shiite “government of God on earth” exe­ cutes and persecutes outnumbered Baha’is. “Man is the religious anim al. . . ” wrote Mark Buddhist president of Sri Lanka and several Twain. “He is the only animal who has the true bystanders— another gory event in the civil war religion— several of them. He is the only animal between Buddhist Sinhalese and Hindu Tamils who loves his neighbor as himself and cuts his that has claimed 20,000 lives on the lovely island throat, if his theology isn’t straight. He has south of India. made a graveyard of the globe in trying his honest best to smooth his brother’s path to Of course, many religious people of all faiths happiness and heaven.” are horrified by what has been done in the name of God. Senator John Danforth (R-Mo.), 1994-1995: Ambushes between Sunni and an Episcopal priest, called in 1990 for establish­ Shiite Muslims at mosques in Pakistan killed ment of an international religious security dozens of worshipers. Under Pakistan’s law man­ council to intercede in such conflicts. Writing dating death for “blasphemy,” three Christians in the Washington Post, he complained that were charged with writing graffiti on a mosque, most church leaders “remain mute in the face of and as they emerged from a court hearing, mili­ religiously inspired calamity.” tant believers shot them down, killing one, and “In most if not all of the world’s trouble wounding the others. spots,” Danforth said, “religious extremism is at All of 1994: In former Yugoslavia slaughter the heart of the problem. In Israel Muslims between Orthodox Christian Serbs, Muslim throw rocks at Jews, and Jews shoot back at Muslims. In the chaos of Lebanon religious The dilemma of religious murder and mad­ factions are so numerous it is difficult to keep ness has plagued humanity for centuries (see track of them. In Northern Ireland Catholic box). It won’t disappear soon. Perhaps the and Protestant Christians bomb each other as clearest symbol of the depth of the problem they have for decades. Hindu India and Mus­ occurred at the Parliament of World Religions lim Pakistan face off against each other, offer­ in 1993, attended by more than 6,000 adherents ing the prospect of nuclear weapons if neces­ representing more than 125 religions. At one sary to prove their points.... All of this killing point, more than 200 delegates from all maU' is done with the absolute certainty that God faiths adopted a declaration titled “T' wants it so. If thine enemy offends thee, rub Global Ethic,” written by a ^ him out. Indeed, it is believed that to lose one’s Swiss Catholic theologian i . It life in God’s cause is to die a martyr’s death and decried: “Time and again we ..uers and win a reward in heaven. members of religions incite aggression, fanati­ cism, hate, and xenophobia—even inspire and legitimize violent and bloody conflicts. . . . We are filled with disgust.... We condemn aggres­ sion and hatred in the name of religion.” Sounds good, except for one problem: the session constantly was interrupted by—reli­ gious bickering!

October 1993: Massacres occurred in the Kashmir province of India because Muslim fanatics barricaded themselves in a mosque to protect its sacred relic, a hair from Muhammad’s beard. April 1993: Zealot David Koresh led 85 adherents to a fiery death in his Bible prophecy compound at Waco, Texas. January 1993: Religious leaders in Somalia sentenced five women to be stoned to death for adultery. Worshipers killed the women after evening prayers. Cheering onlookers videotaped the execution. United Nations observers who tried to save the women were driven off. How can the peril be reduced? The best December 1992: Swarms of Hindus destroyed solution would seem to be the one that has a Muslim mosque that they said desecrated an worked so well in the United States: separation Indian hilltop on which Hindu god Rama was of church and state. Let every faith function supposedly born 900,000 years ago. The incident independently, without molesting the others. touched off Muslim-Hindu rioting that killed Don’t allow majority believers to use the power 3,000. of government to impose their values on small­ September 1992: An outspoken Saudi Arabian er groups. Enough religious trouble exists, man was beheaded in public with a ceremonial without the government adding to it. In 1890, sword after a religious court ruled that he had for example, when Wisconsin believers “insulted God, the holy Koran, and Muhammad demanded worship in public schools, the state the prophet.” Supreme Court refused, declaring: “There is no May 1992: Seven members of the black Tem­ such source and cause of strife, quarrel, fights, ple of Love in Florida were convicted of 14 mur­ malignant opposition, persecution and war, ders. Prosecutors said leader Yahweh ben Yahweh and all evil in the state, as religion. Let it once ordered his aides to kill “white devils” and back­ enter into our civil affairs, and our government sliders. The victims’ ears were brought to him. would soon be destroyed.” This is the great All of 1992: Sikh militants, hoping to establish principle behind the separation of church and “The Land of the Pure” in the Punjab region of state, and though this solution wouldn’t end all India, ambushed Hindu wedding parties, festi­ religious strife, it would be a giant step forward vals, and the like. The death toll in religious in that direction. fighting in that district was 3,800for the year. 0 A SHORT HISTORY OF HOLY HATRE a

Religious violence, of course, is nothing new. It has been recurring for centuries. In the eleventh century, Christian crusaders marched off to attack Muslims occupying the Holy Land, but before leaving, they massacred“the infidel among us,’’Jews living in Germany. After the Crusaders took Jerusalem, they slaughtered the whole pop­ ulation and gave thanks to God. Some Christian groups in Europe, such as the Cathari and the Waldensians, were declared heretics, and “internal crusades" were launched against them. When a Crusader army captured the French city of Beziers in 1209, commanders asked the papal legate how to separate the town's condemned Cathari from its faithful residents. The pope’s emissary replied:“Kill them all; God will know His own.” It was done. Jihads— holy wars— spread Islam as far as Spain and India. And no sooner had the conquered peoples been converted than rival Muslim sects began declaring jihads against each other. Shiites, Kharijis, Azariqis, Wahhabis, Mahdists, and others waged gory mutinies against the Sunni majority. Jews of Europe lived in peril. Christian councils forced them to wear badges of shame and reside in ghettos. Massacres hap­ pened again and again usually after rumors spread that Jews were sacrificing Christian children in blood rituals, or that Jews were stealing host wafers from Christian churches and driving nails through them to crucify Jesus again. The internal crusades against heretics evolved into the Inquisition, which tortured Christians into admitting unorthodoxy, then burned them for it. Later, the Inquisition switched to witchcraft. Hundreds of thousands of women were tortured into confessing that they flew through the sky, changed into animals, copulated with Satan, and the like. Most were executed. After the Reformation erupted in 1517, Europe was racked by dozens of Catholic-Protestant wars. In France eight wars were fought against the Protestant Huguenots, many of whom were killed in the St. Bartholomew s Day massacre during a truce in 1572. The last bloodbath of the Reformation was the Thirty Years' War in the 1600s, which killed half the population of Germ any. While Catholics and Protestants waged a century of combat against each other, both sides executed Anabaptists for the crime of double baptism. Pope Pius V typified the religious horror of that era. As Grand Inquisitor, he sent troops to kill 2,000 Waldensian Protes­ tants in southern Italy. After becoming pope, he sent troops to fight Huguenot Protestants in France, and told the commander to kill all prisoners. He also launched the final crusade against Islam, sending a Christian naval armada to slaughter Muslims in the Battle of Lepanto in 1571. And he revived the Inquisition to torture suspected heretics. After his death he was canonized a saint. During the same era, elsewhere in the world, Aztecs were staging human sacrifices by the thousands in Central America, and India’s Thugs were strangling multitudes of victims for the goddess Kali. Catholic-Protestant combat touched America briefly, in an 1844 cannon battle that killed about 20 Philadelphians. When a Catholic bishop objected to use of the King James Bible in public schools, enraged Protestants stormed Catholic neighborhoods, burning homes and churches. Troops with cannons arrived to protect the Catholics— whereupon Protestants took cannons from sailing ships at the wharfs, and an artillery duel ensued. After the Baha’i religion sprouted in Iran in the 1850s, the Shiite majority inflicted murderous persecution on the peaceable B aha’is. The worst religious calamity in history was theTaiping Rebellion in China in the 1850s, which killed perhaps 20 million peo­ ple. A holy man declared himself to be Jesus’younger brother, and said God his father had instructed him to“destroy demons” and make China a theocracy. His Association of God-Worshipers mustered an army of 1 million followers (partly by promising them shares of land and loot they seized). They cut a terrible swath. Eventually the rebellion was crushed by opposing armies, including one commanded by British general“Chinese”Gordon. (Poor Gordon was cursed by religion. After leaving China, he led an Egyptian army against Muslims waging a holy war in the Nile Valley, and was killed when the fanatics overran Khartoum.) Christian pogroms against Jews continued into the twentieth century. Europe’s 900 years of religious slander against Jews branded them as a despised people and set the stage for the Nazi Holocaust. — J.A.H.

LIBERTY MARCH/APRIL 1996 25 THE CASE

How a Christian Faced a Possible $50,000 Fine for Using a Picture o f a Fish in Her Real Estate Ad

MJL 1 arietta Bell caught the wrath of the

Arizona attorney general’s office. Her crime? Bank fraud, arson, robbery, murder?

No. It was wanting to use a picture of a fish.

The problem started when Marietta placed an advertisement in the Fountain Hills

Community Guide for 1995 in the Phoenix area, where she had been selling real estate

since the mid-1980s. She had run similar ads in other local publications over the years,

always including with them an ichthus, the fish symbol of Christians. For Marietta, the

1,900-year-old ichthus symbolized her pledge of honesty and tolerance toward all people.

26 LIBERTY MARCH/APRIL 1996 BY L. JOSEPH BROOKS Xffl>

However, when the ad appeared, her ichthus dom of religion,” she said. “It goes directly to was deleted. When Marietta asked about her the First Amendment. When the government missing fish, the magazine editor told her that steps in and decides what we can and cannot had it run, she and the magazine editor would say, that’s scary.” be subject to prosecution and a fine of $50,000! When the attorney general’s office said that Fifty thousand dollars for a first-time viola­ she couldn’t use the fish, “that’s when I called tion of A.R.S. No. 41-1491.15 and the Arizona the American Center for Law and Justice attorney general’s index of prohibited words, [ACLJ—Pat Robertson’s answer to the Ameri­ phrases, and symbols for real estate advertising, can Civil Liberties Union]. I sent them the otherwise known as the “Censored Words List”! information, and they called me back a while “I was shocked,” said Marietta, 54, “and later and said, ‘Let’s go for it. We have a case.’” couldn’t believe that if I put a fish in my ad, I The ACLJ filed in December 1994, Bell v. could be fined $50,000. In all the years I had Woods in the United States District Court of been using the ichthus in advertising, never Arizona, seeking “a preliminary and permanent once have I been sued or charged with discrim­ injunction against the defendant’s application ination.” of the ACT and the Censored Words List to her Among dozens of the phrases deemed expressive activities, and a declaration that such “unacceptable,” or with which one must use application violated constitutional rights guar­ with “caution,” are “able-bodied,” “no lesbians,” anteed by the United States Constitution.” “near temple,” “nonsmokers,” “mother-in-law According to ACLJ attorney Benjamin W. apartment,” “sophisticated,” and “desirable Bull, this case “infringes on the rights of Chris­ neighborhood.” tians to express their faith.” Upset at what she viewed as an infringement Bull said that the ACLJ had already received upon her free speech and free exercise rights, complaints from Christian real estate agents, as Marietta wrote Arizona’s attorney general, well as advertising magazines that were owned Grant Woods, asking if what she had learned by Christians in Arizona, even before they from the editor was true. She also asked for heard from Marietta, though it didn’t act on verification of the law. She received a response them. These Christians claimed that they had from Richard M. Martinez, special assistant been verbally threatened with court action by attorney general, who enclosed a copy of the the Arizona attorney general’s office if they relevant Arizona statute and the federal regula­ placed the fish symbol in advertisements for tions. their businesses. The threats were based on the “It is our interpretation of the law,” he wrote, grounds that merely using the fish symbol was “that it is unlawful to state a preference or lim­ in violation of standing federal law. The differ­ itation on the basis of religion. This includes ence in Marietta Bell’s situation, however, was the use of any religious symbol in advertise­ the written response she had received from the ments.” Arizona attorney general’s office. Martinez’s Marietta is a quiet yet articulate woman who letter was the linchpin upon which the ACLJ isn’t afraid to stand up for what she believes. hung the case. She’s also a resourceful, successful business­ The state’s contention was that the use of a woman. A smart, born-again Christian who symbol that declares one to be a Christian is a reads the Bible, as well as other religious tracts, basis of housing discrimination. Under this to unwind from a hard day and to revitalize law, according to Mr. Bull, “they can prosecute herself for the next day’s trials and tribulations, you and put you in jail in the complete absence Marietta was ready to fight. She also is an of any showing that you discriminated.” The intrepid, goal-oriented gardener willing to do suit claimed, too, that the Arizona law and the battle with the desert to grow Censored Words List “are an things in an arid clime not meant L. Joseph Brooks is a unconstitutional abridgement of for such endeavors. freelance writer in Tucson, plaintiffs affirmative rights to “This issue goes beyond free­ Arizona. freedom of speech . . . are an

LIBERTY MARCH/APRIL 1996 27 unconstitutionally overboard restriction on Marietta was allowed to use her fish, as now are expressive activity . . . are an unconstitutional­ all Christians in the state, while the attorney ly vague restriction on expressive activity . . . general retained the right to come after anyone are an impermissible prior restraint on consti­ if he believes the fish is being used as a symbol tutionally protected speech ... are not content of discrimination. neutral and viewpoint neutral...” After numerous phone calls and requests for After the ACLJ filed the suit they used interviews, the attorney general’s office didn’t another platform: The 700 Club, Pat Robert­ have anything to say about the case. One of its son’s nationally broadcast television show. lawyers, Thomas J. Dennis, refused to discuss “The producers of The 700 Club came to film it. The public relations office said even less. the show,” said Marietta. “It was not live in In a state publication “Arizona Real Estate front of an audience. It was a little frightening Bulletin,” sent to all licensed Arizona real estate wondering what would happen when it came agents on an almost quarterly basis, the state out. If I would get fired from my job? Won­ acknowledged that “in a stipulation entered in dering what people’s reactions would be. But I the U.S. district court in Phoenix, the attorney knew I had to take a stand.” general’s office agreed Marietta Bell’s use of Her husband’s support, the support of their Christian religious symbols in her real estate local church, the Eagle’s Nest Christian Center, advertising in newspapers, business cards, and and their Christian beliefs, all coupled with flyers is not a violation of the Arizona Fair _LL hese their conviction in Housing W ord List.” X the correctness of her What about the JUST Christians position, gave Mari­ SOME OF YOUR NEIGHBORS remaining 100- etta the necessary JUST GOT PAID TO PACK THEIR SOLD plus words and impetus to press on. BAGS AND LEAVE! phrases on the Ari­ claimed that they They « cm AWAy, ben ik y didn't qo A»Ay MAd. Wky? “The turning B tcaiae wt jusi did it AqAin! PurtiNq ioqi rkm a buyfR zona attorney gener­ And A ItOMf Sf lb n point,” Marietta al’s hit list? While it had been verbally My tliFNn juu punrhAVfl said, “was after we Aw you ihinkinq About stiline, youR lio*»? If you arc, did contain many qivt Mf A CaII. I CAN MAIcIf yOUR k)Mf will« ANOthfR threatened with appeared on The 700 buyfR words or phrases that Club." MARIETTA BELL. O R I Ì602J 392-8200 ihotunej could be used to dis­ The show then re­ T k na*w with a dhiinciivf Rinq to ill C6 0 2 J 9 5 1 * 1 0 1 0 criminate on the basis court action by c x f f l i t ceived calls from out­ of nationality, sex, or the Arizona raged people all over race—and thus they the country. Marietta’s case was presented on have a legitimate role in ensuring that no attorney general's The 700 Club four times, twice on the Trinity Americans seeking a place to live are discrimi­ Broadcasting Network show, the Praise the Lord nated against on the basis of these factors—the office if they program (formerly run by Jim and Tammy list also contains many that are equally as silly Bakker), and twice on Jay Sekulow’s (an attor­ as the prohibition of the fish symbol. placed the fish ney with the ACLJ) radio show Call for Action. “I hope that as a result of this, the AG’s office Immediately after the publicity, the attorney will review the whole word list and come up symbol in adver­ general’s office dispatched two assistants to with some reasonable things,” Marietta said. “If negotiate a pretrial settlement. not, they should be challenged and struck down.” tisements for “The attorney general,” said Bull, “sensed After Marietta won, Mike Phillips, city edi­ both growing public anger and the fact that he tor of the Scottsdale Progress Tribune, wrote their businesses. did not stand a chance of winning the case in that “in her small way, Marietta has struck a open court. That was because he was no longer blow for personal freedom, a tenuous thing fighting a single citizen with limited financial these days. Constitutional protections, inter­ resources, but a national organization that has pretations of the Bill of Rights, our tolerance the financial and spiritual wherewithal to take for differences, all shift with politics.” the case to the United States Supreme Court, if He ended the column with this: “Expect the need arose.” more lawsuits over those barred real estate According to Bull, the attorney general’s words. As for the ichthus, perhaps it will come office decided to keep it quiet, cut their losses, to symbolize another virtue in short supply and settle. these days: common sense. Fish, after all, is “Don’t let them have the whole enchilada,” good brain food ... and as the attorney gener­ he said, “but at least let her have her fish.” al’s office undoubtedly knows, it tastes better Through “unusually rapid” negotiations, than crow.” El

28 LIBERTY MARCH/APRIL 1996 m in t: wash mi tux A BETTER AMERICA? COD HELP US IF THEY'RE WRONG!

B y Wintley A. Phipps

he 104th Congress con­ Just as sailors near the end of Senator Dan Coats (R-lnd.) Says Segal: “Any cult could call vened believing they had a the Vietnam War jettisoned valu­ conceded that “private charity can­ Itself a religion and contract for mandate to dismantle able helicopters off the decks of not take over the role of govern­ funds or tie up the government in FDR’s New Deal and to aircraft carriers, so this Congress ment.” Government must, he said court if they think they are rejected raise from its ashes a soci­ appears ready to jettison any social “continue to address the material for their religious beliefs. Witches? ety guided by a new social services determined to be a drag needs of its citizens.” People like David Koresh? Whatev­ contract. on Its core business. The Independent Sector, an er you can imagine can happen can Passionately committed to their Marvin Olasky, author of The organization supplying information happen.” principles, Congress has shown lit­ Tragedy of American Compassion, to lawmakers about non-profit Serious questions of oversight tle Interest in the Washington art of and adviser to House speaker Newt organizations, recently completed a and accountability are still left a carefully crafted compromise. Gingrich, recently said, “ending the study that suggests, based on cur­ unanswered. Meanwhile, churches The federal government shut­ concept of entitlement Is a revolu­ rent House welfare programs, there need to ask themselves a few ques­ down and sagging public opinion tion.” will be a $775 billion decrease In tions too. polls were deemed necessary bur­ Olasky’s book has provided federal spending for social services Can religious organizations feed dens on the way to victory. many in Congress with the theoret­ in the next six years. people with government money States and individuals who ical justification that taking care of Whether this kind of legislation and not abandon their core spiritual have become dependent on the the poor is not a part of the federal materializes in the form of tax cred­ mission? Will churches which carry largesse of the federal government government’s core business. its for faith-based charities, vouch­ out social services on behalf of the are still wiping their eyes trying to Olasky suggests that in better ers to attend parochial schools, or government use government determine whether they are being times It was, and still should re­ state-run contracts for the delivery money to promote their mission awakened from a nightmare or to main the responsibility of churches, of social services, we cannot be and beliefs? Will this proposed one. synagogues, and faith-based chari­ sure. What we do know Is that change bring excessive and unac­ On January 8 I sat in the ties to take care of the poor. with the passage of this kind of ceptable entanglement between gallery of the Idaho House of Rep­ “Poverty is not the result of legislation, we are looking at a fun­ church and state? Or will govern­ resentatives and listened to Gover­ social, economic, and environmen­ damental change In the way gov­ ment and neighbors and churches nor Philip E. Batt deliver his State tal forces,” Olasky writes, “but the ernment relates to churches. band together, and look out for of the State address. In his opening result of Individual behavior and Church-state separatlonists fear each other? statement Batt said, “perhaps the sin. Man’s ultimate solutions for that these partnerships being Senator Daniel P. Moynihan (D- most far-reaching change in 1996 poverty are therefore spiritual not forged between church and state NY) has suggested that “in five will be a revolution in the relation­ legislative.” will compromise the mission and years’ time you’ll find on your ship between state and federal gov­ What will this revolution mean Integrity of churches, resulting in streets abandoned children— help­ ernments. Once Congress acts we to the church and the cause of reli­ greater controls on churches and less, hostile, angry, awful— in num­ will see a decline In the growth of gious freedom? more dependence on the State. bers.” money available for health, welfare, A wide range of welfare reform Julie Segal, legislative counsel According to the revolutionaries and other social programs." proposals are now being placed for Americans United for Separa­ the end result Is supposed to be a Those fervently committed to before Congress. Legislation is tion of Church and State, says that better America. the cause warn that the axe will being designed to shift the man­ these provisions in the welfare bill May God help us if they're soon fall on middle-class entitle­ agement of society’s safety net ser­ will turn “churches Into arms of the wrong. ments such as Medicare and col­ vices from the government to government.” lege loans. churches and faith-based charities. If passed, such legislation will have Wintley A. Phipps is U.S. Congress a profound impact on the future liaison for the Seventh-day Adven­ relationship between church and tist Church. state.

LIBERTY MARCH/APRIL 1996 29 obiter THE TRANSVESTITE TROTSKVITE SOCIETY

he logic behind last year’s Rosen- violate a cardinal principle of her cause envy: “[The] feeling— seem­ berger decision went something religious faith effectively penalizes ing to express a hunger for retalia­ like this: if public funds go to Lady the free exercise of her constitu­ tion— [is] that religious groups are Leon, the journal of the Transves­ tional liberties.” In other words, so uniquely privileged in our legal tite Trotskyite Society, then they transvestite Trotskyites who take order— that the immunity they should go the Wide Awake Publica­ Sundays off to hunt, play cards, or enjoy is so peculiar, so out of tions, a Christian journal. To do attend Trotskyite rallies may be out joint— that it is as appropriate as a otherwise, the Court ruled, would of luck— but those who do it for quid pro quo for society to clamp be viewpoint discrimination. God get a better chance to nibble down upon them.” “We’re finally beginning to out of the state trough. Take the amazing case of Unit­ move away,” said Mr. Rosenberger Then, if Mr. Rosenberger’s faith ed States v. Ballard (1944), in himself, “from government hostility mandated that he drop leaflets which a religious entity calling itself toward religion.” from helicopters onto city streets, the “I Am” movement, under the Has Christianity gotten soft, or in violation of litter laws, the leadership of one Guy W. Ballard what? Hostility to religion used to authorities would have a lot harder (also known as Saint Germain, mean torture, death, and jail; today time stopping him than a transves­ Jesus, George Washington, and it’s lack of government subsidies. tite Trotskyite who felt impelled to Godfre Ray King) faced 12 counts Maybe someone ought to do the same. Thanks to the Reli­ of mail fraud by claiming that Bal­ explain to Mr. Rosenberger that if gious Freedom Restoration Act, lard had supernatural abilities to he wanted Sundays off from work made into federal law with Bill Clin­ heal all types of ailments and dis­ to attend church, his employer is ton's signature in 1993, Rosen­ eases. The issue, said the High required— by, literally, an act of berger’s religious free exercise Court, wasn't whether the claims Congress (Title VII)— to “reason­ could be restrained only after the were true or not, but simply ably accommodate” him, unless by state proved that stopping him was whether the defendants believed so doing it would cause the “essential to further a compelling that they were. Justice William employer “undue hardship.” A government interest: and is the Douglas wrote that the views transvestite Trotskyite wanting least restrictive means of furthering “might seem incredible, if not pre­ Sundays off to attend political ral­ that compelling government inter­ posterous," but because they were lies, against an employer’s will, est.” In the case of a Trotskyite, religious views, they were accorded would have nowhere near the same the state wouldn't face such “strict special status, and thus their validi­ protection. scrutiny” of its actions against a ty couldn't be scrutinized by the Even if Mr. Rosenberger lost citizen. courts, even in a case involving his job because of church atten­ Religion has so many protec­ criminal fraud. dance, it would be difficult to deny tions it’s a wonder that atheists “Men may believe,” he wrote, him unemployment benefits, don’t feign faith in order to get “what they cannot prove. They because the U.S. Supreme Court some for themselves. Some argue may not be put to the proof of their (Sherbert v. Verner) ruled that “to that these special protections religious doctrines or beliefs___ condition the availability of benefits amount to an “establishment” of Religious experiences which are as upon this applicant’s willingness to religion. Constitutional scholar real as life to some may be incom- Laurence Tribe even warned that religion’s special treatment could

30 LIBERTY MARCH/APRIL 1996 Il II I T E II

prehensible to others. Yet the fact Henry David Thoreau do not get Daddy aren’t enough— they want to avoid in the past. that they may be beyond the ken of the same breaks as those who fol­ handouts as well, and the High Unfortunately, the real issue mortals does not mean that they low the path of their Amish elders.” Court in Rosenberger obliged. wasn’t even addressed in Rosen­ can be made suspect before the In California a child, expelled Actually, however much I dis­ berger, which was Should money law.” Too bad for Lyndon for wearing a knife to school, was agreed with much of the majority’s have gone to any of those publica­ LaRouche: if he had been a reli­ returned to class— with the knife— logic, I agreed with the decision, tions? The answer is no. The gious extremist, rather than a polit­ by a circuit court (Liberty, Janu­ but only because money was school would have been within its ical one, he might not have gone to ary/February 1996). Why? already going to Muslim and Jew­ rights to fund Lady Leon, but not prison for mail fraud. Because the child was a member of ish publications. These, however, Wide Awake, or any other sectarian Of course, free exercise rights the Sikh religion, and his faith were deemed merely “cultural” (not endeavor, because that’s what the aren't absolutely and perfectly pro­ required that he carry the knife. religious) productions (an appella­ Establishment Clause, in light of its tected in this country (as Sun Had he worn it because he was a tion, I’m sure, that devout Muslims best tradition and jurisprudence, Myung Moon, American Indians, member of the Blood or Crips, he’d and Jews would appreciate), which demands. prisoners, and military personnel probably be in Jail, not back in meant that the Court delved into And if that’s “hostility,” Mr. know too well); they are, though, class, knife and all. the muddy waters of determining Rosenberger needs to take a class accorded a deference that their That’s why Mr. Rosenberger’s what is or isn't religion, something not only in First Amendment law, secular counterparts don’t often assertion that denial of funds it has wisely and scrupulously tried but in Christian history as well. have. would have amounted to “hostility" “Secular pacifists,” wrote Har­ seems to reflect a type of “Christ­ vard Law professor Kathleen M. ian socialist” mentality so prevalent Sullivan, “don't get the same today among fundamentalists and breaks from the military draft as Evangelicals. Apparently, for Mr. pacifist Quakers, and high school Rosenberger and Company, the dropouts who march to the beat of major constitutional and legislative protections given religion by Big

ILLUSTRATION BY RALPH BUTLER

LIBERTY MARCH/APRIL 1996 31 faith is in the mouth rather than in the heart, when the solid knowledge o f Sacred

Scripture fails us, nevertheless by terrorization we drive men to believe what they do not believe, to love what they do not love, to

know what they do not know. That which is forced cannot be sin - cere, and that which is not voluntary cannot please Christ.

—Desiderius Erasmus (1465-1536), Dutch scholar