TORTURE ENSLAVEMENT L INTIMIDATION
3ULSION EXPULSION DENIAL OF TRAY L RIGHTS
ICTION IMPRISONMENT NT MURDER
TORTURE
MURDER PHYSI STARVAT ION
BAN IMPRISONMENT EATINGS STARVATION
I PR SO NT
RAN ON CONVERSION
HYSICAL INTIMIDATION EXPULSION TORTURE ENSLAVEMENT
VICTION
'IMPRIS NMENT
MURDER
N ON CONVERSION STARVATION
FORCED CONVERSION EXPULSION PHYSICAL INTIMIDATION
very morning the president starts his day dangers posed to the nation into an understand- in the Oval Office, surrounded by attor- able format. A freedom matrix is particularly E ney general John Ashcroft, FBI director easy to build because threats to religious free- Robert Mueller, and CIA director George Tenet, doms fit into predictable, repeated patterns. reviewing the threat matrix. The threat matrix provides details on who is trying to attack Understanding and America, how they are trying to attack, their Using the Freedom Matrix chances of success, and what is being done to A sample freedom matrix is reproduced in stop them. It must be a startling way to begin this article. The purpose of the freedom matrix each day—particularly knowing that there is no is to put acts against religious freedom into con- one else the terrorists would rather kill or cap- text and provide perspective on their relative ture than the commander in chief himself. It is severity. As a general rule, the closer the act serious business, and the stakes are the highest comes to the upper left-hand corner of the
By iT4 JAMES STANDISH
since the Civil War: in many ways, the very sur- matrix the more severe the act in question. The vival of American civilization. matrix makes three distinctions: private versus An equally serious business is the brutality public actions, the frequency of the action, and meted out to millions of people every day by the the type of action in question. tyrannical regimes that rule over them. Our press The first natural division between forms of sporadically reports on this brutality: a gulag suppression of freedom is between private and story from Pyongyang here, a piece on genocide public action, that is to say, the division between in Sudan there, thrown together with concerns acts by the state and acts by private entities. over religious freedom violations in such unlikely Private action is not necessarily less detrimental places as France and Belgium, along with the odd to fundamental rights than state action. Neither piece on religious freedom at home. can it be said that the state necessarily has less One of the problems in reading these articles responsibility for private action than it does for is that they appear so infrequently that it can be state action. In fact, in some cases the state difficult to evaluate the trajectory of the attitudes actively encouraged private atrocities, as in the of the nations mentioned or the relative threat to case of the former Yugoslavia. In addition, the freedom posed by their actions. This problem is principal function of the state is to protect the only exacerbated by those who are quick to dub rights of its populace. Therefore, even when the any act that impinges on freedom "persecution," with little attention to the relative severity of the James Standish earned his law degree at George problem in question. A "freedom matrix" can Washington University, Washington, D.C., and put these stories into perspective in the same works as a church religious liberty liaison to the way the threat matrix. aims to put the myriad of U.S. Senate and House of Representatives.
LIBERTY MAY/JUNE 2004 3 FREEDOM ON ON ON
MATRIX SI SI w C. CI >- o w 2 CCI- - Co CONVER .3 0 Q CC U [[ AL INTIMIDATI
N CONVER K 0 = SIC CC - LAVEMENT = RCED zQ J O LU BAN O PHY 5 ENS STARVATION IMPRISONMENT FO C..) CC I=1 CC
STATE ACTION NK SA, SA, NK NK NK, Su NK, Su NK NK, Su NK N%iv NKiS u
NK, Su Su Su Su Tu Tu Tu Tu Tu, Su
Tu, SA Tu, Su
IVATE ACTION
Fr Fr
US US US Fr
NOTE: This Freedom Matrix is provided for the purpose of example. In some instances, the nations rated may be involved in activities not noted
Fr France Problems include private attacks against Jewish sites perpetrated primarily by Muslim immigrants, discrimination against new religions and state discrimination against Muslims in state schools. MC North Korea Persecution is focused on members of unregistered religious groups, including underground churches. SA Saudi Arabia Problems focus on strict state control on religious worship.
state does not actively encourage behavior that suppresses free- The final distinction made is between common types of dom, it is responsible to act effectively to stop such behavior. actions against religious freedom, grouped roughly into five It is also worth noting that the more frequently the pri- categories of severity. The most severe actions against reli- vate actions against religious freedom occur, the more likely gion include religiously motivated murder, rape, torture, that the state is complicit in the actions, or, at the very least, beatings, enslavement, starvation, imprisonment, forced complacent in the effort to stop them. Despite the close con- conversion, and expulsion from a geographic region. These nection between private action and state inaction, the dis- actions are the most severe forms of religious persecution. tinction is useful, as states are always culpable for state action Even when these occur sporadically, the severity of the action but are not necessarily accountable for private action. involved requires the most urgent intervention. The second distinction made on the freedom matrix is The second category of actions also forms the basis of the frequency in which a particular inhibition of freedom persecution; however, it is reasonable to recognize that these occurs. There is a very large difference between one murder forms of persecution are somewhat less severe than the first in a decade prompted by religious hatred and the systematic category. These actions include religiously motivated confis- slaughter of an entire religious population. The latter does cations of personal and real property, evictions, bans on con- not make the former less deplorable, but in assessing the rel- versions, physical intimidation, desecration of houses of ative threats to freedoms, the frequency of the problem worship, graves, and other sites of religious significance. clearly impacts the severity of the situation. Thus the reli- The third category of actions that frequently form the giously motivated slaughter during the Sudanese civil war basis of persecution includes barriers imposed on religious ranks significantly higher than the isolated religiously moti- activities. These include prohibitions on the production vated murders in the U.S. after September 11. The latter indi- and/or importation of religious material, registration cates isolated pockets of violent bigotry fueled by intense requirements designed to prevent bona fide religious organi- ignorance, while the former represents a state acting with zations from registering with the state, barriers to individu- genocidal intent. als or organizations owning real and personal property based
4 LIBERTY MAY/JUNE 2004
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TO C C CC a o a c a C] LL LLI L.L., LLI co F TRAVEL z cc z ,- z >< O 2 ;c , Q 0- = — •cc (7 '._ m - -=1: : •CeCL" CC cE CC u..i O — a — .c Z _1 2 a 7:,.c, 2 _, C-3 RS 5 .... 2 2 )— C/3 1— E D--- a .:x _ a >- a >- cc — z — a C7 w C/3 Z 03 5 SLc —I J .cr . Q ?— cc z m 0 E LI-I O ya m Z C.3 LIZ CZ — C.3 C1 CD = U = 0 CI = 0 cc = 2 LL cc U- C-3 111 0 = CI 0 C/3 co V3E CC V) 'I' cr) '— LL, U- C-3 c, CZ CC ARRIE 1...1W ▪ C-1 C. 2 0 2 L.LJ
DENIAL B 0 0 E = 2= O c.J CC /2 LI- CC .2 2 xa3 = r, = S
NK, SA, SA, NK NK, SA NK NK, SA, NK Tu, Su NK NK, Su, NKER NK SA, FR SA
Tu Tu Tu Tu SA US
Fr
US
US
US
:. The frequency noted provides a rough approximation.
Su Sudan A prolonged civil war that included genocidal acts against the religious/racial minority in the south. Tu Turkmenistan A dictatorship that heavily restricts nonreg istered religions, and makes it virtually impossible for any but a handful of faiths to register. US United States Occasional private acts of religious bigotry — particularly post September 11, periodic refusal to accommodate reli- gious practices in the public and private workforce.
on religious criteria, and prohibitions on travel. A good requires a particular hat as part of its uniform, it is not example of a nation that engages in all of these activities is unreasonable to expect that an alternative will be made for Saudi Arabia. It imposes restrictions on clergy traveling to Sikhs, whose religion requires them to wear a turban. Thus the nation to provide spiritual services; it prevents the the police forces in many locations, including Great Britain importation of nonapproved religious material; and it pro- and Washington, D.C., permit Sikh police officers to wear a hibits religious groups from owning and operating houses of blue turban with a police badge on the front instead of the worship. When imposed in concert, as in Saudi Arabia, the standard helmet or cap. Refusing such simple accommoda- effect is to curtail religious practices of nonapproved faiths tions indicates underlying discrimination and disregard of almost entirely. the goal of ensuring that all members of society are free to The penultimate category on the matrix involves reli- practice their faith in dignity and without unnecessary gious discrimination. While pervasive discrimination may imposition of barriers. meld into persecution, it is worth noting that discrimination differs significantly from persecution in the severity of its Conclusion impact. That said, discrimination may make it very difficult The freedom matrix is as important to the future of our to belong to a given faith group, and may impact on the abil- civilization as the threat matrix. Indeed, the majority of ity to make a living and engage fully in society. threats come from nations and movements that present the The final category covers the responsibility of society to greatest failures as measured by the freedom matrix. Nations make appropriate exemptions for religious adherents from such as North Korea, Saudi Arabia, and the legacy of a the general rules that govern society in recognition of their Taliban-ruled Afghanistan are the sources for the threats that faith requirements. For a society to ensure that its populace the president reviews each morning. The freedom matrix, enjoys full freedom of faith, it must recognize that the blind therefore, is not just a useful tool for measuring religious imposition of law does, in some cases, impose a discrimina- freedom, but it is a useful tool in identifying the roots of the tory religious burden. For example, when a police force threats this nation and this world face.
LIBERTY MAY/JUNE 2004 5 THE By M. THORNE MIND of THES V P RE IV, E S
How will How havet.11 e current justices decided estab- the Supreme Court lishment clause cases in the past? That should view upcoming give us a good idea as to how the Court will establishment rule in upcoming cases such as Newdow. v. clause cases? U.S. Congress. In a previous article (November/ December 2003) we reviewed the factors that the Supreme Court is likely to consider in deciding the case of Newdow. We looked at these factors in determining what the establishment clause allows and what it prohibits: ► The intent of the Founders ► The Lemon test ► The special nature of public schools ► Longstanding traditions, our national heritage, ceremonial deism, and stare decisis.—Continued on page 22
M. Thorne, a freelance writer and religious liberty researcher, writes from Daly City, California.
6 LIBERTY MAY/JUNE 2004 ILLUSTRATION BY SARA TYSON
Nearly three s our jet descended rather noisily through (IRLA), and Hiskia Missah, a religious liberty years after thin cloud cover toward Ambon airport in specialist based in Manila, Philippines. Missah, violence began, Ahe Maluku province of Indonesia, what an Indonesian, had visited the area once since the many homes remain empty we saw suggested a tropical paradise. Turquoise violence began and was eager to see the progress ruins in Ambon. waters revealed fascinating reef patterns from the toward peace. While the government had air. The jungle-covered peaks behind Ambon city revoked its three-year state of emergency in matched the great curve of a bay that, in the September of 2003, at the time of our visit in late process of defining the shoreline from the airport November 2003 the province still remained to town, seemed to divide the island into two. closed to tourists and journalists. What we saw in those moments before touch- While the situation in Ambon may not have down was a very natural illusion of tranquility. attracted the notice of the general public, over- But since June 2000 the area has seen mostly vio- whelmed as it was in the United States by lence. A violence that has pitted police forces September 11 and the ensuing invasions of against military units, village against village, and Afghanistan and Iraq, the religious liberty com- Christian against Muslim. A violence that has left munity has followed it very closely. Two years ago thousands of homes, mosques, churches, and at an IRLA world conference in Manila we public buildings burned and gutted, caused hun- received an in-depth report from the area, dreds of thousands to flee the province, and including video footage of religious violence that killed at least 5,000 people. went well into the bestial. Three of us had taken a more than four-hour Then about the same time Graz and I attended flight from Jakarta eastward across the a U.S. government hearing on the Ambon situa- Indonesian archipelago to Ambon. With me were tion. Chaired by Elliot Abrahams, the committee John Graz, Ph.D., secretary general of both the brought in testimony from various experts and Christian World Communions and the regional officials. It was confirmed that some of International Religious Liberty Association the spark for the violence had been provided by
8 LIBERTY MAY/JUNE 2004 puty Mayor of Ambon, Syarif A church elder points to large caliber bul- dler, Idrus Toekan, Dr. Graz let hole in the wall of a Seventh-day d Dr. Missah. It was an impor- Adventist church, Ambon city. nt first meeting with outside Below: The church, in center of city, ligious liberty officials. continues as a place of worship in spite of violence and killings on street out front.
A Report on Religious Violence in Ambon, Indonesia outside agents with Al-Qaeda connections, and islands in the world's largest archipelago, stretch- that the local Muslim jihad group Laskar Jihad ing from the island of Sumatra, southwest of was receiving help from them. Malaysia, eastward to West Papua (formerly Irian One of the more troubling moments came Jaya), which shares a land border with Papua during the testimony of an elderly community New Guinea. Ambon is to the west of New leader from the province. He attributed some of Guinea and to the north of Timor. Even with so the violence to jealousy of the fine churches and many small islands over a huge area of ocean, the overseas aid coming to the Christian community. landmass of Indonesia is almost three times the Then, with his palms uplifted in supplication, he size of the state of Texas. The population is 235 said, "Please understand we are a peaceful people. million and is approximately 90 percent Muslim In fact, we never had such troubles till the and only 8 percent Christian (5 percent Christians came." There was a collective sucking Protestant, 3 percent Catholic). in of breath at this self-revelation. But things are The religious demographic explains much rarely so one-dimensional, and we were eager to about Indonesia. While the nation is not an travel to Ambon and see for ourselves. Islamic state, laws are heavily weighted toward Indonesia is a large country in more than one Islamic norms and designed to protect Islamic sense. The nation is composed of thousands of control. For example, it is unlawful for Muslims
PHOTOGRAPHS BY LINCOLN STEED LIBERTY MAY/JUNE 2004 9 k and Christians to intermarry. And if a Muslim structures. Even the 30-hectare campus of the attends a Christian school, the school must pro- Pattimura University, the most prestigious uni- vide Muslim teachers for him or her. When the versity in Maluku, is burned out and deserted. focus turns to Ambon, there is a very signifi- As we traveled our guides pointed out the reli- cant demographic that surely explains why the gious affiliation of each area: "This is a religious violence could reach such a pitch: Christian village; this is a Muslim area; now we Ambon is nearly half Muslim and half are in a Christian area . . ." To an unknowing Christian. With Ambon now the provincial observer the distinction is hard to see; other capital for Maluku, and separatist movements than the dome of a mosque or a church steeple
What is hopeful fo and RELIGIOUS
in the neighborhood, the people look the same, the lines between areas invisible. We interviewed many Ambonese to get some sense of what had happened. Yes, they knew about the outside jihadis coming in to provoke violence, although it was an altercation ini- tiated by a Christian taxi driver that seems to have sparked the killing. We were told of gangs of Christians and Muslims facing off in the very center of town: the Muslims shouting "Allah Akbar" and the Christians singing "Everybody ought to know who Jesus is" before both took to slashing the other side with machetes and shooting their opponents with high-powered firearms. As the violence spread, groups of fighters from both factions fanned out into opposing neighborhoods to torch houses and kill anyone that lin- gered at the scene. Some Christians told us a little too gleefully of how they had sent groups of small children to harass and Top: Adventist members meet to welcome burn Muslim areas: they called them agats, or Editor Steed and IRLA President John Graz. small insects. But atrocities kept to no religious Above: Downtown Ambon City. New boundary: when some Christians took to cut- assembly building visible behind white building to the left. ting across the bay in fast boats, Muslim fighters intercepted them and cut them to pieces. asserting themselves there, it seems self-evi- At first the local police, mostly Christian, dent that the religious component would enter tried to maintain order—perhaps with some the violence and indeed become the defining partiality. Then the Indonesian military parameter. entered the conflict, on occasion leading mobs Once on the ground on Ambon Island, we in attacks on police stations, then handing out made our way around the bay toward the city of the weapons to Muslim fighters. Ambon, nominally a center of 300,000 persons. We visited a number of churches while in The trail of violence is marked by thousands of Ambon. The downtown Seventh-day Adventist burned-out homes, churches, and other public church still stands, although there are large-cal-
NE 2 0 0 4 iber bullet holes in the wall and bullet-shattered Kebun Cengkeh—we met with H. Marasabessy, woodwork behind the lectern. Members told us head of the department of religion for the of many people shot down in the street outside, Maluku province. Marasabessy was open and opti- of snipers using the balcony to fire out of mistic. "We must have the love for one another that upstairs windows at a Muslim base in the hills Jesus Christ called for:' he told us, borrowing from above. There were many tales of deliverance and Christian teaching. "We must have dialogue. We must a recognition that without divine intervention not allow outside agitation to interrupt the determina- many more would have been consumed by the tion of our community to hear violence. They told us of a young man who came It is hard to predict where Ambon is headed.
Ambon is the readiness of local Po LITICAL leadership to work toward peaceful coexistence.
and confessed to killing eight Muslims in Is there a blossoming of dialogue and healing revenge for the deaths of his parents and two sib- based on a shared commitment to community? lings—he had then cut open his victims' chests Or are the wounds too deep, the differences too and eaten their hearts. Can there be any more wide, the outside influences too much to resist? telling evidence of the bestial nature of religious In Jakarta the headlines in all the major violence! papers warned of a "bloody Christmas" as a It was the Muslim new year during our visit to result of religious violence in Indonesia. That Ambon. Because city offices were closed, the did not happen. In Ambon, reports were of sev- deputy mayor of Ambon, Sayarif Hadler, met us eral hundred jihadis in town for Christmas vio- in his home in the Galunggung suburb, a Muslim lence. It did not occur. Yes, there are groups who stronghold during the violence. He welcomed us would continue to stoke the fires of religious graciously, then introduced a special guest, Idrus intolerance for aims that are probably more Toekan, a Muslim community leader for the political than religious. I note with some dismay Maluku region. that a Laskar Jihad commander, in a message "This is a very significant visit, " said Deputy reported by the BBC on May 16, 2002, con- Mayor Hadler after the introductions. "You are demned the peace efforts by both Muslim and the first outside Christian leaders to visit us here. Christian leaders in Ambon, and declared ongo- Do you realize that during the violence no ing war; saying that "the second Afghanistan war Christian would dare come here? They would be will take place in Maluku." killed on sight:' What is hopeful for Ambon is the readiness He then repeated what we heard many times of local political and religious leadership to in Ambon: that outside agitators had stirred ani- work toward peaceful coexistence. What is mosity, but that within Ambon both Muslim and needed is for Indonesia itself to become more Christian leaders wanted peace, that they were protective of all religions, not just the majority committed to healing. He gestured toward a large faith. What is needed is for a world increas- floral display in his living room. "This is a gift ingly harassed by terrorism to avoid the trap from the Protestant Synod Headquarters down- of religious conflict that the terrorists are lay- town," he said. "They are wishing us a blessed ing for all of us. What is needed is a "retreat" new year. They show us Christian love:' We had to faith solutions. While in Ambon I heard a earlier visited the Synod leaders and had been church music group singing a plaintive chorus impressed by their commitment to dialogue. that translated into "Lord forgive us for what General Secretary, Reverend S.J. Mailoa told us we have done, and for what we have done to that they had kept to their post downtown even others." And I must agree with Marasabessy as buildings burned around them, including that the solution to a community divided by those of the nearby provincial legislature. religious intolerance lies in the advice to "love That same day in another Muslim district— one another." El
LIBERTY MAY/JUNE 2004 11 fter a rather short debate in the lower chamber of the French Parliament, the law banning symbols of religious affiliation in the public schools was adopted on February 10, 2004, with a majority of 494 votes to 36. Actually, the prob- lem has a long history in France, reflecting certain characteris- tics of the political culture and national mentality that are worth contemplating because of the virtual impact on other aspects of the national life in a major Western democracy. Through the Concordat of 1801 the Catholic Church lost some of its power in France; First Consul Napoleon Bonaparte rancE
Vive la Difference
- — imposed draconian controls on the activity of its clergy. Successive political regimes throughout the nineteenth century were constantly at odds with religiously minded people. The continuing spirit of the French Revolution was hostile to any remnant of religious thinking in affairs of state, and eventually pushed religion out of the public place. As the great French ostik scholar Ernest Renan concluded: "Religion has become irrevo- cably a matter of personal taste:' The culmination of this process was the 1905 law on secu- larism, which to date is considered the fundamental text of sep- to aration of church and state in France. As always, there was a political process in France that led to this radical legislation. The ideas of the French Revolution evolved into a doctrine of national ideology. The very word "ideology" came out of French thinking in the book Elements of Ideology by Destutt de Tracy, with an aim at creating a corpus of ideas replacing religion as a foundation for political beliefs. Later on, the French republic tacitly embraced the nationalism of the revolution as its social cement, uniting its citizenry under a homogenous culture, with the government as the "organizing principle of the social life:' A contemporary French scholar, By Pierre Rosanvallon, calls it the permanent Jacobinism of the OSEPH K. GRIEBOSKI French society, referring to the radical wing of the revolution that instituted the Reign of Terror as a means to deal with the enemies of the state. In the milder form subsistent today
12 LIBERTY MAY/JUNE 2004 Professor Rosanvallon distinguishes three of its features: a denying to multiculturalism a right to life in the republic. tendency to see the country as homogenous and indivisible by Less obvious was the shifting of the accent from the anti- ignoring the diversity of the civil society; the belief that soci- clericalism and neutrality of the state contained in the 1905 law ety is able to express itself as a bloc by neglecting individual to a blatant antireligiosity in the life of the individual in the 2004 interests; and the inclination to trust the law to regulate soci- law. The ban on wearing obvious religious symbols does not ety by absorbing all individual cases. To summarize such promote impartiality of the government in dealing with its beliefs, we will see a perfectly coherent and totalitarian soci- citizens; it only alienates their fundamental ety, which would be an exaggeration right of "observance," clearly stated as a model for contemporary France. in Article 18 of the Universal Nevertheless, the danger is always re- Declaration of Human Rights.
sent, and we need to be aware of it. Whereas for certain individuals it is not mandatory to display The fiery debate that preceded the February vote in the any religious symbols, for others the absence of a turban or veil National Assembly animated the entire French society. The would mean a separation from their respective allegiance. In political parties, the entire press, the leading intellectuals, all such cases the homogenization totally ignores the basic rights of wanted to add their voices in support of the ban on wearing reli- the individual to assert his or her identity. gious symbols in public schools. Very few were the dissident The trend that led to this controversial law has been obvious voices calling for moderation. Any sign of strong adherence to a since the mid-1980s and the very visible input of a hard-core display of religious beliefs is perceived as a danger to the very radical group of antireligious bureaucrats led by the infamous foundation of the repub- Alain Vivien, who issued a first report on sects in 1995. lic. It seemed rather In 1996 an investigative commission of the National strange to see all the Assembly created a list of religious groups perceived as danger- luminaries of France— ous for the French republic, and later on led to the adoption of the intellectuals that the About-Picard law in June 2001. The law was designed to pre- enjoy so much authority vent and regress sectarian movements that attempted to under- in the society—calling mine the human rights and fundamental liberties of individu- for the intervention of als; however, the tendency was to hinder the activity of minor- the government in order ity religious groups and new religions and to offer a legal basis to promote their cause, for the constraints implied in the workings of the commission and for the use of the repressive power of the state. They all of 1996 and its list. responded, in fact, to the instructions of the president of the The major flaw of the law was that it didn't offer a legal def- republic on December 17, 2003, asking the government to inition of what a dangerous sect really is, and didn't qualify the introduce a law in the Parliament. As we have seen for almost infraction. A supervisory body, MILS (Mission ministerielle de two centuries now in France, the liberals are those who reinforce the powers of the government, creating the monopoly of state Joseph K. Grieboski is president of the Institute on Religion and authority, and alienating the attributes of civil society groups by Public Policy, Washington, D.C.
ILLUSTRATION BY DAVID KLEIN LIBERTY MAY/JUNE 2004 13 lutte contre les sectes), under the presidency of Vivien, proved to settled in previous years. In the 1980s Lionel Jospin—then a be so militant and abrasive that even the ministries participat- minister of education—sought the advice of the Conseil d'Etat, ing in its activities asked for its demise in 2002. When Vivien left the top constitutional body of the country, on a case of Muslim the stage, a somewhat more moderate body than MILS was cre- girls wearing the veil in school. The answer of the Council of ated—MIVILUDES (Mission interministerielle de vigilance et State was that in the name of "freedom of the others" and "plu- de Lute contre les derives sectaires—which aims at defining the ralism," the girls should not be excluded from the classroom, on matter in proper terms. the condition that they didn't proselytize. In 2003 the Stasi The speech of President Jarcues Chirac on Commission, created to study the situation of religious sym- December 17, 2003, asked for a new law, but bols in schools, had a different opinion, and President addressed a problem that seemed to have been Chirac acted on its conclusions.
Keep Your The majority of the population supported his clear message: "No head scarves in public school!" In fact, any kind of clothes or symbols that "conspicuously show religious affili- ton ation" will not be accepted in public schools. This policy is Relig directed at "plainly excessive" crosses, skullcaps, turbans, and, of course, head scarves. Neither will "religious beards" at Home be accepted, although secular beards will. There are about 6 million Muslims living in France, and By JOHN GRAZ with the Islamic revival, more and more young girls are France clearly has a problem with its religious minorities. But wearing head scarves. Some for traditional purposes, some is it a cultural, political, or social problem? A few years ago because of family or peer pressure, but others are simply France took an aggressive stance against cults and sects as proud to show their convictions and to affirm their identity. part of a strategy for dealing with religious minorities. While Many people, including the authorities, tend to believe this raised opposition around the world, there was indiffer- that the young girls who wear head scarves are being forced ence within the "hexagon" of France itself. The new govern- to do so. Their freedom should be protected. But if the state ment eventually changed its approach under pressure from allows them to impose their religious symbols in public the international community. Religious minorities began to schools, it will be the beginning of a new religious war. What feel that they could be accepted. is the alternative? What would happen if 1,000, 2,000,10,000, Now we have another controversial religious issue in young Muslim girls were rejected by the public schools? How France. A commission of well-respected scholars gave a neg- could a country that supports human rights explain that ative report about the display of religious symbols in the kind of discrimination? "Your new law will miss its goal," public sphere and, of course, in the schools. Consequently, stated Iranian Nobel Prize recipient Shirin Ebadi in a French President Jacques Chirac, usually a moderate and an ardent magazine. In Iran, she commented, where the head scarf is defender of human rights, embraced a more rigid position. compulsory, the young girls wish to take it off.
14 LIBERTY MAY/JUNE 2004 The new law in France clearly reinforces the authority of the government to control the basic rights of the individual, to limit the freedom of faith and the public manifestation of religious beliefs. The nuances and prudence of its implementation should not make us forget that in essence it is a legal means of control- ling the basic aspirations of the individ- ual, an attempt to undermine funda- mental human rights. El
, - —
In January national French TV interviewed a young teenager who had been expelled from her school because of her head scarf. She was also denied permission to take cor- respondence courses that are provided free of charge by the state. Her father disagreed with her, but he respected her choice. This young girl said: "I want to be faithful to God, and I don't attack anyone with my head scarf. I am sorry, but I cannot leave my religion at the door of the public school. It makes my life more difficult, but I will give up neither my studies nor my faith." What will be the benefit for France if it closes the door on national education, knowledge, and progress for those who have religious convictions? Who will educate the thousands of young Muslim girls who might be expelled from public schools? Muslim extremists and the far right will be the win- ners of that struggle. Muslims will claim there is no place for the Muslims in France. The far right will try to show that the Muslims have already taken over the country. Should the French government build special schools, paid for by the tax- payers, to educate the rejected Muslim girls? I cannot imagine that such a rigid position will be held for long. The government will have to find a compromise.
John Graz, secretary general, International Religious Liberty Association, Washington, D.C.
LIBERTY MAY/JUNE 2004 15
he United Methodist Children's Home state professional committees, his resume (UMCH) in Georgia learned an important sparked interest at UMCH. In October 2001 he T lesson the hard way; you never can tell when was called to come interview for a vacant posi- government money will come back to haunt you, tion. Yorker's interview was terminated abruptly in the most unexpected and debilitating ways. as soon as the interviewer realized Yorker was UMCH, an admittedly church-related agency, Jewish, a fact he was required to disclose on the accepts children referred to their care from the application form he filled out just prior to the State of Georgia's Department of Family and interview. Bellmore later revealed that a supervi- Children's Services (DFCS) or the Department of sor told her UMCH's practice was to throw away Juvenile Justice (DJJ). For each child UMCH all résumés from candidates whose last names receives a per diem that provides about 50 per- sounded Jewish. Ironically, the fact that Yorker cent of the cost of supporting the state child on made it as far as he did in the interview process at campus. The North Georgia United Methodist UMCH was because of discrimination his grand- Conference estimates that the total state pay- father had faced. In order to prevent similar dis- ments for the children amount to about 57 per- crimination from subsequently affecting him or cent of their total operating expense. The result his family, Yorker's father changed the family's of this arrangement between the State of Georgia surname from the decidedly Jewish "Monjesky" and UMCH is that the children have a safe, if reli- to the not particularly ethnic "Yorker?' gious, environment in which to live. The state has As a privately funded entity UMCH would be a place to safely house children who would oth- entirely within its rights to hire and fire erwise be forced to remain in dangerous or dam- whomever it chose under the religious exemp- aging environments or end up on the streets. tion to Title VII of the federal Civil Rights Act. Everyone is happy. Being forced to do otherwise would undermine Everyone except Aimee Bellmore and Alan the mission of UMCH as a religious institution. Yorker. Bellmore was employed by UMCH as a However, UMCH is not privately funded. The per he chapel and these counselor. In July 2001 she was notified that she diem they receive from the State of Georgia gives o residences for would soon be promoted to the position of the state and its taxpayers a say in how UMCH, or hildren are among the family therapist. Instead of the expected pro- any other agency receiving its funds, is run. 3 buildings on the motion, however, Bellmore was terminated in In the nineteenth century James G. Blaine ome's campus. November 2001 because UMCH discovered she proposed an amendment to the Constitution was a lesbian. "She was informed that to pro- that was never enacted, but various versions of it mote its religious beliefs, the Home would were adopted by Georgia and 36 other states.
employ only Christian heterosexuals who are These co-called Blaine amendments originally married or celibate."' functioned as essentially anti-Catholic laws Alan Yorker didn't make it as far as Bellmore designed to prevent state funds from funding did in his search for employment at UMCH. A Catholic parochial schools. Applied more psychotherapist in adolescent and family therapy broadly, the amendments also apply to any for more than 20 years, with more than a decade's experience teaching in Emory University profes- Claire Frazier is a freelance journalist and book sional schools and a number of appointments to author from Freeport, Maine.
LIBERTY MAY/JUNE 2004 17 church-related agency or program. For many follow policies prohibiting discrimination in hir- years, while Georgia applied the amendment nar- ing and services."' rowly to Catholic institutions or services, it con- National Public Radio's Barbara Bradley tinued to contract with faith-based organizations Hagerty, reporting for Morning Edition, added such as UMCH. The lawsuit brought by Bellmore further, "The Methodist children's home agreed and Yorker against the State of Georgia and that it would not discriminate against gay job UMCH brought the issue into the spotlight and applicants and that it would not discourage forced the State of Georgia to revise its contracts homosexuality or even teach the children its with faith-based service providers. views on the issue."' Like many other religious This case, while legally settled and morally institutions UMCH relied on unsettling, generates deep concerns about gov- government money to support its ernment money and religiously run social ser- s UMCH's experience programs, causing a dependence vices, which, up to this point, have generally been A that Marc Stern, general counsel mutually indulgent. As UMCH's experience of the American Jewish Congress, clearly demonstrates, it is not always possible for clearly demonstrates, is afraid religious institutions will a religious institution to accept government not be able to overcome. "There's funds and maintain their religious integrity. Not it is not always no guarantee at all that this sort only has UMCH been forced to hire people who of attitude won't become preva- do not represent its religious values, but it is pre- lent and having taken the vented from sharing the very values that it repre- possible for a religious money—become addicted to the sents with the people it set out to help. money—it's not clear that reli- Government money, in this case, has effectively institution to accept gious institutions are going to be tied UMCH's hands behind its back. able to walk away."' While the case against UMCH might well have What is clear is that UMCH set a benchmark that will be used in other such government funds and has a deep concern for Georgia's cases, its roots are entwined in President Bush's at-risk children who, without its faith-based initiatives, which many civil rights, help, may have to remain in dan- religious, social service, and labor communities maintain their gerous home situations or end up oppose on the grounds that funding religious on the streets. What is not clear is institutions violates the establishment clause of religious integrity. what, exactly, will change in the the First Amendment. The outcome of the lawsuit future. A position statement on the with UMCH clearly validates their concerns. North Georgia United Methodist "If we choose to be in ministry to state chil- Conference's Web site discusses the dren we cannot require the children to go to church's take on the settlement between UMCH church or participate in religious activities as a and the plaintiffs, claiming, "In relation to staff and condition of residing in the Home," reads the volunteers, the agreement reaffirms our policies of statement regarding the lawsuit on the church non-discrimination and our commitment to train- Web site. "While we will be permitted to take ing our staff using professional standards and prac- children to church if they want to go, we cannot tices relating to all children."' As UMCH "reaf- require it and will be obligated to offer a non-reli- firms" its "non-discrimination" policies, it is gious alternative to worship."6 Which proves that implied that they are the same nondiscrimination when government money comes back to haunt policies that cost Aimee Bellmore her job and Alan you, all that's left are secular services masquerad- Yorker his shot at one. According to the North ing as sanitized religion. Georgia United Methodist Conference, nothing much seems to have changed. ' "New Lawsuit Charges Methodist Children's Home Uses Tax Reporting outside of the church gives a differ- Dollars to Discriminate in Employment and to Indoctrinate ent picture. "This settlement is a significant Foster Youth in Religion," Lambda Legal News Release, Aug. 1, 2002. breakthrough in the national debate over Barbara Bradley Hagerty, "Faith-based Lawsuit Settled," whether more taxpayer money should be given to National Public Radio's Morning Edition, Nov. 6, 2003. religious organizations," said Susan Sommer, ' www.ngumc.org/adobe/umchletter.pdf. supervising attorney for Lambda Legal, and the ' "In a First-of-Its-Kind Example, Lambda Legal Announces lead attorney on this case. "Under the agreement, Settlement Agreement that Lays Groundwork for Civil Rights Safeguards in Public Funding of Faith Based Organizations," the State of Georgia will not fund religious Lambda Legal News Release, Nov. 5, 2003.
groups that use public money to discriminate, 5 Hagerty.
and the United Methodist Children's Home will 6 www.ngumc.org/adobe/umchletter.pdf.
18 LIBERTY MAY/JUNE 2004 h Davey v. Locke revisited ... • rotecting pte Wall of Separation unishingOR • • a Religious Viewpoint?
By JOHN E. FERGUSON, JR., and DAVID L. HUDSON, JR. $1,125 scholarship hardly seems worth the atten- tion of constitutional scholars, high-priced appel- late attorneys, and the Court of last resort. But that is exactly what happened when Washington Sate student Joshua Davey applied for the Washington Promise Scholarship program and then declared his double major in pastoral ministries and business management. On May 19, 2003, the U.S. Supreme Court granted certifi- cate in the case of Davy v. Locke. The issues raised in this case require the Court to wade through a muddled morass of con- stitutional doctrines. May the state of Washington erect a higher barrier between church and state than the federal gov- ernment? May such a barrier allow the state to deny benefits to theology majors that similarly situated nontheology majors can acquire? Is it a case of protecting separation or of discriminat- ing against religion? Is it a free-speech case or a freedom of religion case— or both? The controversy began in 1999 when state officials pulled Joshua Davey's scholarship from Northwest College after he declared a major in pastoral ministries because of a state statute and a state constitutional provision prohibiting public funding for religious studies. A Washington
John E. Ferguson, Jr., is the education coordinator and David L. Hudson, Jr., is research attorney for the First Amendment Center on the Vanderbilt University campus, Nashville, Tennessee.
ILLUSTRATION BY MICK WIGGINS LIBERTY MAY/JUNE 2004 19 law provides that "no aid shall be awarded to any student Rothstein emphasized that the Washington constitution pro- who is pursuing a degree in theology."' Likewise, the vides "a more stringent barrier to state funding of religious Washington constitution provides in pertinent part: "No education" than the U.S. Constitution. She cited the public money or property shall be appropriated for or Washington Supreme Court's decision in Witters v. State applied to any religious worship, exercise or instruction, or Commission for the Blind for the proposition that the state can the support of any religious establishment."' (These consti- deny funding for religious higher education based on its state tutional provisions are often referred to as Blaine amend- constitution.' While the U.S. Supreme Court had ruled that ments, after the failed federal amendment that restricted aid to a blind student who sought funds under a state voca- public funds from religious institutions and schools. These tional rehabilitation program did not violate the establish- provisions are found in the constitutions of most Western ment clause, the state supreme court reached a different states and are at the heart of the current debate on use of decision on remand. Davey's lawyers urged Judge Rothstein government vouchers at private religious schools and the to view the case as a free-speech case under the doctrine of president's faith-based initiatives campaign.) viewpoint discrimination. They argued that the state of Davey sued state officials, alleging that they violated his Washington discriminated against religion by denying aid to free-exercise, free-speech, and freedom-of-association Joshua Davey solely because he declared a religious, rather rights. A federal district court rejected his claims in October than secular, field of study. Judge Rothstein rejected the 2000, writing that "while a citizen may not be unduly pro- argument, writing that Davey "simply cannot identify any hibited from practicing his religion, he may not demand restriction on his freedom to speak and has no basis for that the government pay for those religious pursuits."' requiring the state to fund the exercise of his First However, a divided panel of the Ninth U.S. Circuit Court of Amendment rights."' Appeals reversed and sided with Davey in July 2002. The With respect to the analogy to the Rosenberger case, majority wrote that the Washington statute and constitution which involved the denial of funding to a student religious "on their face discriminate based on religious pursuit."4 magazine, the judge would not budge: "Davey's viewpoint is Now the dispute has come before the United States not singled out for disfavored treatment."' Supreme Court. An examination of the two lower court deci- sions shows the intricate interplay Appeals Court Panel Decision between competing strands of First The Ninth Circuit majority saw things much differently. Amendment law. They viewed the prohibition against scholarships for reli- District court judge Barbara Jacobs gious purposes as violating the general precept of neutrality. Decisive7-2 Opinion in Locke v. Davey On February 25, 2004, the Establishment Clause, but it is not required by the Free U.S. Supreme Court issued Exercise Clause, even when all other academic majors are a 7 — 2 decision in favor of funded. Concluding the opinion, he states: "If any room the State of Washington's exists between the two Religion Clauses, it must be here." decision not to fund theological training. The case pre- In coming to a decision, Justice Rehnquist notes that sented the Supreme Court with a thorny question: Does although the "Washington Constitution draws a more the constitution's guarantee of the free exercise of religion stringent line [on state funding of religion] than that require the state to fund religious activities in some cir- drawn by the United States Constitution, the interest it cumstances? Or, to put it another way, does the state seeks to further is scarcely novel. In fact, we can think of unlawfully discriminate against religion when it funds a few areas in which a State' s antiestablishment interests whole host of activities, but excludes religious activities? come more into play. Since the founding of our country, Writing for the seven justice majority, Chief Justice there have been popular uprisings against procuring tax- Rehnquist notes that "there are some state actions permit- payer funds to support church leaders, which was one of ted by the Establishment Clause but not required by the the hallmarks of an 'established' religion." Free Exercise Clause." He further states that funding theol- Justices Scalia and Thomas dissented from the ogy training through indirect means is permitted by the majority.—Editors
20 LIBERTY MAY/JUNE 2004 They compared the situation to the relatively little-cited state constitutions than on the U.S. Constitution. The 25-year-old McDaniel v. Paty.' In McDaniel the U.S. Court's decision will color religious liberty and possibly Supreme Court invalidated a Tennessee law prohibiting a free-speech jurisprudence, with the end result likely member of the clergy from serving in a state constitu- based more on how they frame the issues than on the tional convention. The Court determined that such a law eventual analysis. violated the free-exercise rights of Paul McDaniel, a The conundrum is how state funding for religious insti- Baptist minister. tutions should be viewed. Some believe the Court should The Ninth Circuit majority found a clear parallel treat religious interests of people and institutions differ- between the plight of Paul McDaniel and that of Joshua ently than other interests. This position has support from Davey. "A minister could not be both a minister and a del- historical figures such as Thomas Jefferson and James egate in Tennessee any more than Davey can be both a stu- Madison. The idea is that religious liberty is protected by dent pursuing a degree in theology and a Promise Scholar preventing any taxpayer's money from going to a religious in Washington," the majority wrote.' pursuit that would be contrary to the conscience of the The panel majority determined that the state's pro- taxpayer. It also avoids governmental involvement in reli- gram discriminated against religion under Rosenberger gious matters, something several members of the Court are and violated the free exercise clause. adamant in doing." Judge Margaret McKeown dissented in an opinion that Others argue that times have changed and the federal realized the judges were "struggling with where to place government's minor role in Jefferson and Madison's Davey's case on the spectrum of Supreme Court jurispru- time has been overshadowed by modern government dence."'° She viewed the case as one of funding, rather institutions that greatly impact all areas of people's than free exercise or freedom of speech. She distinguished lives. For this group, treating religion interests differ- free-exercise cases such as McDaniel and the seminal 1963 ently than other interests seems discriminatory, espe- Sherbert v. Verner decision, finding that Davey, unlike cially in light of the depleted protections provided by Adele Sherbert and Paul McDaniel, did not face a substan- modern free exercise jurisprudence. If the Court opts tial burden on his free exercise of religion rights. for the former position, they will likely have little prob- She also rejected Davey's reliance on what she termed lem with a state that wishes to protect religious freedom "the seemingly safe harbors" of Rosenberger." "As attractive more stringently by erecting a high wall of separation. as Rosenberger may be in an educational setting, Davey's is If they frame the situation in light of the latter, the not a free-speech case, or at least has not been treated . . . Court will likely find such state schemes discriminatory as such by the majority," she wrote. "More explicitly, the against religion and religious points of view. decision not to fund Davey's pursuit of a pastoral ministry The effects of either position are obvious for the does not implicate the free speech viewpoint concerns that voucher debate. If the Court treats religious interests drove the Court's decision in Rosenberger.' as different, then the state can use its constitution and Possibly the most interesting element of Judge laws to deny vouchers for religious schools, which McKeown's dissent comes in her analogy to abortion- would result in a state-by-state battle over interpreta- funding cases. She argues that if funding is provided for tions of state constitutions. If the second view is taken, Davey in this case, then the federal government cannot the battle over state constitutions would be fought prohibit family planning services that receive federal once in the Supreme Court, and the voucher battle funds from also providing information about abortions. would move from the judicial to the legislative sphere in most states. What Will the Supreme Court Do? While constitutional scholars will seek indicators to ' Washington Revised Code, 8 28B-10-814. the Court's direction on federalism, equal protection, Washington Constitution, Article I, g 11. Davey v. Locke, 2000 U.S. Dist. LEXIS 22273, *13 (W.D. Wash.) (Oct. 5, and association rights, the most immediate effect will be 2000). felt in the debate over the constitutionality of using ' Davey v. Locke, 299 F.3d 748, 757 (9th Cir. 2002). vouchers as a means of education reform. After the Davey v. Locke, 2000 U.S. Dist. LEXIS 22273, *8, 9, citing Miters v. State Court's 2002 decision in Zelman v. Simmons-Harris," Commission for the Blind, 771 P.2d 1119 (Wash. 1989). which found that appropriately structured voucher Ibid., *18. plans do not necessarily violate the establishment 7 Ibid., *20, 21. 435 U.S. 618 (1978). clause, the culture war over vouchers moved to the Davey v. Locke, 299 F.3d at 754. states. Since 37 states have either Blainelike constitu- ") Ibid., p. 761 (J. McKeown dissenting). tional amendments or state jurisprudence interpreting " Ibid., p. 766 (J. McKeown dissenting). their state constitutions as more strictly separationist 11 Ibid. than the First Amendment's establishment clause, the Zelman v. Simmons-Harris, 536 U.S. 639 (2002). question of vouchers in many states depends more on " See, generally, dissents in Zelman.
LIBERTY MAY/JUNE 2004 21 Rehnquist wrote that the Court's decision "bristles wi to all things RELIGIOU SVPR_EME S—Continuedfrompage7 Justice the Court has relied on it since 1879. He concluded that the William H. Rehnquist Lemon test should be abandoned, since it "has no more We look first at the case of Stone v. grounding in the history of the First Amendment than does Graham, decided in 1980. In this case the wall theory upon which it rests?' In his dissent he showed the Court found unconstitutional a his willingness to abandon longstanding precedent. Kentucky law that required the post- In Wallace Rehnquist offered an essay on the real meaning ing of the Ten Commandments in of the establishment clause. He concluded that the clause was every public school classroom. The "designed to stop the federal government from asserting a Court based its decision on the preference for one religious denomination or sect over oth- Lemon test, which requires a law to ers." Given that, would Rehnquist find that the Pledge of have a "secular legislative purpose?' The Court found that the Allegiance asserts a preference for Jews over Hindus, for those law had no such purpose, that the real purpose for posting the who believe that there's only one God as compared with those Ten Commandments in classrooms was to promote religion. who believe there are many gods? Justice Rehnquist dissented. He wrote that "the Ten Let's look at one more case, Santa Fe Independent School Commandments have had a significant impact on the devel- District v. Doe, decided in 2000. In this case the Court found opment of secular legal codes of the Western world?' What a it a violation of the establishment clause for prayers to be curious thing to say. While the idea that our law is somehow given before sporting events at a public school. Justice based on the Ten Commandments is popular, it is more myth Rehnquist dissented. He wrote that the Court's decision "bris- than reality. tles with hostility to all things religious in public life?' Since The Western world doesn't have laws that require people the prayer was given by the student body member who com- to put one god above all others; we don't have laws against posed it, he concluded that it was private speech. He referred using any god's name in vain; we don't prohibit people from to a previous Supreme Court decision that said there was a working on Saturday. Our laws against murder and theft and "crucial difference between government speech endorsing adultery aren't derived from the Ten Commandments. They religion, which the establishment clause forbids, and private come to us from the founders of Western civilization: the speech endorsing religion, which the free speech and free Greeks and the Romans. In this case Rehnquist places a myth exercise clauses protect?' before the law. This raises the question: Will Justice Rehnquist agree that Justifying his dissent in Stone, Rehnquist wrote, "The the current version of the pledge is government speech establishment clause does not require that the public sector be endorsing religion, and is therefore unconstitutional? Of insulated from all things which may have a religious signifi- course not. In Santa Fe he wrote that the Court's opinion, cance or origin?' As we noted in the previous article, the with which he strongly disagreed, meant that adding "under Supreme Court has long held that the establishment clause God" to the pledge was unconstitutional. He'll certainly vote requires government to be neutral toward religion, to not to overrule the appeals court's ruling in Newdow. favor some religious beliefs over others. Does posting the Ten Commandments in public school classrooms exhibit Justice such neutrality, or does it favor, say, Judaism over Sandra Day O'Connor Hinduism? While Justice Rehnquist says the Lemon test The next case of interest is Wallace v. Jaffree, should be abandoned, Justice O'Connor decided in 1985. The case was about an Alabama law has tried to refine it. Showing much greater that authorized a one-minute period of silence in respect for precedent, she's tried to come up public schools. It authorized public school teachers with a successor to the Lemon test, "a grand to lead "willing students" in prayer to "Almighty God unified theory" that would resolve all estab- ...the Creator and Supreme Judge of the world?' The lishment clause cases. In Wallace v. Jaffree Court relied on the purpose prong of the Lemon test she proposed the endorsement test. The to find the Alabama law unconstitutional. endorsement test asks whether a "reason- Again Justice Rehnquist dissented. He attacked as a "mis- able observer" would find that a law or government action leading metaphor" the notion of a wall of separation between either endorses or disapproves of religion. If so, then it vio- church and state. He dismissed the metaphor, even though lates the establishment clause. Why? Because, as she puts it,
22 LIBERTY MAY/JUNE 2004 ALL JUSTICE PHOTOS COURTESY OF AP/WIDE WORLD PHOTOS [OSTILITY public life."
"the religious liberty so precious to the citizens who make up it solemnizes the occasion of a class of first graders practicing our diverse country is protected, not impeded, when govern- their finger painting. Does solemnizing public occasions ment avoids endorsing religion or favoring particular beliefs trump the prohibition against the government's taking a over others?' stand on religious beliefs, a prohibition the Court has long Consider what O'Connor has had to say about what the honored? establishment clause prohibits: O'Connor also acknowledges the special nature of pub- • "What is crucial is that a government practice not have the lic schools. In Wallace she addressed the issue of "state- effect of communicating a message of government endorse- sponsored indoctrination" of religious beliefs in public ment or disapproval of religion?' schools and the perceptions of "children in their formative • "Just as government may not favor particular religious years." She agreed with the Court's opinion that the estab- beliefs over others, 'government may not favor religious belief lishment clause prohibits "government-financed or gov- over disbelief:" ernment-sponsored indoctrination into the beliefs of a • "We have time and again held that the government gener- particular religious faith," and that "government inculca- ally may not treat people differently based on the God or gods tion of religious beliefs has the impermissible effect of they worship, or don't worship?' advancing religion?' She wrote, "This Court's decisions • "The establishment clause 'prohibits government from have recognized a distinction when government-spon- appearing to take a position on questions of religious belief:" sored religious exercises are directed at impressionable • "It [the endorsement test] does preclude government from children who are required to attend school, for then gov- conveying or attempting to convey a message that religion or ernment endorsement is much more likely to result in a particular religious belief is favored or preferred?' coerced religious beliefs." That last quote is revealing. In its controversial ruling in In Newdow what might she say about a pledge to Newdow v. U.S. Congress, the appeals court found that "under monotheism that children recite day after day, year after year? God" in the pledge "is a profession of a religious belief, namely, Would she find that state laws requiring daily recital of the a belief in monotheism?' So we should expect O'Connor to pledge amount to government-sponsored indoctrination in a uphold the appeals court's ruling, right? Maybe. religious belief? Maybe. In Wallace v. Jaffree she wrote, "In my view, the words 'under God' in the pledge and opening Justice court sessions with 'God save the United States John Paul Stevens and this honorable court' . . . serve as an acknowl- While Justice Rehnquist believes Jefferson's edgment of religion with 'the legitimate secular "wall of separation between church and purposes of solemnizing public occasions, [and] state" is a "misleading metaphor" that should expressing confidence in the future." What a curi- be abandoned, Stevens seems to accept it, ous thing to say! just as the Court has since 1879. just last year, In an earlier case she wrote that such practices as in the case of Zelman v. Simmons-Harris, he "the printing of 'In God We Trust' on our coins . . . wrote, "Whenever we remove a brick from serve, in the only ways reasonably possible in our culture, the wall that was designed to separate religion and govern- the legitimate secular purposes of solemnizing public occa- ment, we increase the risk of religious strife and weaken the sions, expressing confidence in the future, and encouraging foundation of our democracy?' the recognition of what is worthy of appreciation in society. Stevens seems to think the establishment clause was For that reason, and because of their history and ubiquity, meant to keep government and religion separate. His think- those practices are not understood as conveying government ing is revealed by the quotes he uses from previous Court rul- approval of particular religious beliefs?' What happened to ings to support his opinions. Here's a sampling: the prohibition against government's even appearing to take • "The 'establishment of religion' clause of the First a position on questions of religious belief, such as how many Amendment means at least this: Neither a state nor the federal gods there are? government can set up a church. Neither can pass laws which It's far from certain that imprinting our coins with a aid one religion, aid all religions, or prefer one religion over motto that reveals an official belief in any number of gods another" (from Everson v. Board of Education, decided in 1947). tends to solemnize public occasions. Let's say it does. Let's say • "The place of religion in our society is an exalted one,
LIBERTY MAY/JUNE 2004 23 Scalia says he would replace the LEMOt measure that maintains 'fidelity to the longstanding traditioJ
achieved through a long tradition of reliance on the home, the employ the machinery of the state to enforce a religious church, and the inviolable citadel of the individual heart and orthodoxy:" mind. We have come to recognize through bitter experience Based upon such comments as these, should we assume that it is not within the power of the government to invade that Stevens will uphold the appeals court's decision in that citadel, whether its purpose or effect be to aid or oppose, Newdow? Maybe. to advance or retard. In the relationship between man and religion, the state is firmly committed to a posi- Justice tion of neutrality" (from Abington School District v. Antonin Scalia Schempp, decided in 1963). While Justices O'Connor and Stevens ■"Neither [a state nor the federal government] can accept the Lemon test's purpose prong, constitutionally pass laws or impose requirements Justice Scalia dismisses it: which aid all religions as against non-believers, and ■ "I doubt whether that 'purpose' require- neither can aid those religions based on a belief in ment of Lemon is a proper interpretation of the existence of God as against those religions the Constitution" (from Edwards v. founded on different beliefs" (from Torcaso v. Aguillard, decided in 1987). Watkins, decided in 1961). ■ "Our religion clause jurisprudence has ■ "The law knows no heresy and is committed to the sup- become bedeviled (so to speak) by reliance on formulaic port of no dogma, the establishment of no sect" (from abstractions [e.g., the Lemon test] that are not derived from, Watson v. Jones, decided in 1872). but positively conflict with, our long-accepted constitutional Do these quotes argue that it is appropriate for the traditions" (from Lee v. Weisman, decided in 1992). Congress to enact laws based on a controversial religious ■"For my part, I agree with the long list of constitutional schol- belief? Or do they suggest that it is not the business of gov- ars who have criticized Lemon and bemoaned the strange estab- ernment to promote religious beliefs, that government lishment clause geometry of crooked lines and wavering shapes lacks the authority to judge the truth of religious beliefs? its intermittent use has produced" (from Lamb's Chapel v. Regarding the special nature of public schools, consider Center Moriches School District, decided in 1993). these excerpts from the Court's opinion, written by The crooked lines he refers to are those the Court has drawn Stevens, in Santa Fe v. Doe: to satisfy the purpose prong. While Justice O'Connor writes, ■"School sponsorship of a religious message is impermis- "We cannot avoid the obligation to draw lines, often close and sible because it sends the ancillary message to members of difficult lines, in deciding establishment clause cases," and the audience who are nonadherents 'that they are out- Justice Anthony Kennedy writes, "Our jurisprudence in this siders, not full members of the political community, and area is of necessity one of line-drawing," Justice Scalia rejects all an accompanying message to adherents that they are insid- that and says that drawing these lines leads to such unreason- ers, favored members of the political community:" able results as Nativity scenes on public property sometimes ■ "We explained in Lee [referring to Lee v. Weisman] that being considered constitutional, sometimes not. the 'preservation and transmission of religious beliefs and While Justice O'Connor has searched for a test that can be worship is a responsibility and a choice committed to the applied consistently, Justice Scalia says the Lemon test has left private sphere:" it unclear what the establishment clause prohibits and what it ■"Even if we regard every high school student's decision to allows. In one of his opinions Scalia put it this way: attend a home football game as purely voluntary, we are ■"Our cases interpreting and applying the purpose test have nevertheless persuaded that the delivery of a pregame made such a maze of the Establishment Clause that even the prayer has the improper effect of coercing those present to most conscientious governmental officials can only guess participate in an act of religious worship. For 'the govern- what motives will be held unconstitutional" (from Edwards v. ment may no more use social pressure to enforce ortho- Aguillard). doxy than it may use more direct means:" In another opinion Scalia mocked the test: ■ "As in Lee, 'what to most believers may seem nothing ■ "As to the Court's invocation of the Lemon test: like some more than a reasonable request that the nonbeliever ghoul in a late-night horror movie that repeatedly sits up in respect their religious practices, in a school context may its grave and shuffles abroad after being repeatedly killed and appear to the nonbeliever or dissenter to be an attempt to buried, Lemon stalks our establishment clause jurisprudence
24 LIBERTY MAY/JUNE 2004 st with some other 'our people."
once again" (from Lamb's Chapel v. Center Moriches School the Court found that a Nativity scene in a county courthouse District). violated the establishment clause. Kennedy took the opportu- Scalia says he would replace the Lemon test with some nity to discuss the application of such tests to the current ver- other measure that maintains "fidelity to the longstanding tra- sion of the pledge. He wrote that "it borders on sophistry to ditions of our people?' Like Rehnquist, Scalia makes many ref- suggest that the 'reasonable' atheist would not feel less than a erences to tradition in establishment clause cases. Consider the `full member of the political community' every time his fellow case of Lee v. Weisman, in which the Court ruled that it vio- Americans recited, as part of their expression of patriotism lated the establishment clause for public schools to have cler- and love for country, a phrase he believed to be false?' Given ics lead prayers at graduation ceremonies. In his dissent Scalia the "bizarre results" that come from these tests, he said he'd said the Court's decision "lays waste a tradition that is as old as rather take the strict separationist view: Let's just eliminate all public school graduation ceremonies themselves?' He noted religious displays on public property and be done with it. the "longstanding American tradition of nonsectarian prayer In Allegheny Kennedy said the local community should to God at public celebrations?' and he said, "The longstanding decide what are appropriate displays for a religious holiday: American tradition of prayer at official ceremonies displays "In my view the principles of the establishment clause and with unmistakable clarity that the establishment clause does our nation's historic traditions of diversity and pluralism not forbid the government to accommodate it." allow communities to make reasonable judgments respecting In short, if something has been allowed long enough, it the accommodation or acknowledgment of holidays with must be constitutional; else it would not have been allowed both cultural and religious aspects. No constitutional viola- for so long. (We should be thankful that Scalia was not on the tion occurs when they do so by displaying a symbol of the Court when Brown v. Board of Education was decided.) This holiday's religious origins?' raises an interesting question: How long is long enough? Fifty This raises some interesting questions. What if the local years? Another interesting question arises from Scalia's com- community happens to be New York City, a community with ments: If longstanding traditions are inherently constitu- many different cultural and religious groups? Kennedy's pre- tional, how is it that longstanding Court precedents—such as scription may work if the entire community belongs to one the Lemon test—are to be mocked? (Perhaps Scalia is living religion, but what about real communities? What about reli- testimony against O'Connor's belief that opening the Court gious minorities in real communities? Consider the situation with a plea to a god solemnizes the occasion.) of a Catholic family living in a predominantly Muslim com- One final observation about Scalia's dissent in Lee v. munity. The children attend public school in the community. Weisman. Scalia noted that the Court's decision meant that What are they to do when the teacher leads the class in a the current version of the Pledge of Allegiance is unconstitu- pledge to "one nation under Allah"? What are they to do when tional. Sarcastically he said that finding the pledge unconsti- the class breaks for afternoon prayers? tutional "ought to be the next project for the Court's bull- Like Scalia, Kennedy feels that establishment clause rul- dozer?' Might that turn out to be a prophetic comment? ings lack consistency. He says the Court's rulings should be consistent with "historical practices that, by tradition, have Justice informed our First Amendment jurisprudence?' In Kennedy's Anthony M. Kennedy opinion, no matter what test the Court uses in establishment Justice Kennedy agrees with Justice clause cases, "the reference to God in the Pledge of Allegiance Scalia that tests such as the Lemon test . .. the Court will not proscribe?' But he gives no reason at all or the new and improved endorsement for such a refusal. Is there something in the Constitution that test yield "bizarre results?' such as mak- says any practice that's been accepted for X number of years is ing the existing national motto a viola- exempt from constitutional scrutiny? If so, what is the value tion of the establishment clause (as of X? If it is 50 years, then the appeals court's decision can be President Theodore Roosevelt warned upheld only if the Court decides Newdow before Flag Day, when the idea was proposed), and 2004. After that, it becomes exempt. invalidating such traditional practices as opening sessions of Consider another quote from Kennedy: the Supreme Court with a request that "God save the United ■ "The First Amendment's religion clauses mean that reli- States and this honorable Court." gious beliefs and religious expression are too precious to be Consider the case of Allegheny County v. ACLU, in which either proscribed or prescribed by the state. The design of the
LIBERTY MAY/JUNE 2004 25 In Lee v. Weisman Justice Souter gra indirectly C 0 E RC J
Constitution is that preservation and transmission of religious a law that prefers some faiths over others, right? Wrong. beliefs and worship is a responsibility and a choice committed Speculating as to what James Madison intended by the to the private sphere, which itself is promised freedom to pur- establishment clause, Thomas wrote, "Madison saw the prin- sue that mission." ciple of nonestablishment as barring governmental prefer- How does that jibe with a refusal to proscribe the "refer- ences for particular religious faiths?' From that, might we sup- ence to God in the Pledge of Allegiance"? If the state cannot pose that Thomas would vote to uphold the appeals court's prescribe religious beliefs, shouldn't the appeals court's deci- decision, as the pledge's wording prefers particular religious sion be upheld? Shouldn't Congress be barred from passing faiths, i.e., those that hold there is but one god? Not likely. laws that endorse controversial religious beliefs? Like O'Connor and Stevens, Kennedy considers Justice the special nature of public education. Consider Stephen G. Breyer these excerpts from his opinions: The newest member of the Court offers ■"No holding by this Court suggests that a school some revealing comments in his dissenting can persuade or compel a student to participate in opinion in Zelman v. Simmons-Harris, an a religious exercise. That is being done here, and it opinion that was joined by Justices Souter is forbidden by the establishment clause of the First and Stevens. Consider these comments from Amendment" (from Lee v. Weisman). that opinion: ■ "The injury caused by the government's action, ■"The First Amendment begins with a pro- and the reason why Daniel and Deborah Weisman hibition, that 'Congress shall make no law object to it, is that the state, in a school setting, in effect respecting an establishment of religion,' and a guarantee, required participation in a religious exercise?' that the government shall not prohibit 'the free exercise ■ "We think the state may not, consistent with the establish- thereof.' These clauses embody an understanding, reached ment clause, place primary and secondary school children in in the seventeenth century after decades of religious war, this position [of participating in a religious exercise unwill- that liberty and social stability demand a religious tolerance ingly, or of protesting]:' that respects the religious views of all citizens, permits ■"What to most believers may seem nothing more than a rea- those citizens to 'worship God in their own way,' and allows sonable request that the nonbeliever respect their religious all families to 'teach their children and to form their char- practices, in a school context may appear to the nonbeliever or acters as they wish." dissenter to be an attempt to employ the machinery of the ■ "The upshot [of twentieth-century establishment state to enforce a religious orthodoxy." clause cases] is the development of constitutional doc- How will Kennedy vote in Newdow? Hard to tell. Judging trine that reads the establishment clause as avoiding reli- from his opinions, he could go either way. His decision might gious strife, not by providing every religion with an equal depend on the arguments presented by Newdow and by those opportunity (say, to secure state funding or to pray in the arrayed against him: the United States, the attorneys general of public schools), but by drawing fairly clear lines of sepa- 50 states, a number of religious rights organizations, a school ration between church and state—at least where the district, and public opinion. heartland of religious belief, such as primary religious education, is at issue." Justice ■ "In a society as religiously diverse as ours, the Court has Clarence Thomas recognized that we must rely on the religion clauses of the What does the establishment clause mean First Amendment to protect against religious strife, partic- to Justice Thomas? Consider his opinion ularly when what is at issue is an area as central to religious in Rosenberger v. University of Virginia, in belief as the shaping, through primary education, of the which he commends the view "that the next generation's minds and spirits." Framers saw the establishment clause sim- Newdow says the existing pledge deprives him of his ply as a prohibition on governmental pref- right to raise his daughter as he wishes, that the state is erences for some religious faiths over oth- competing with him when it comes to his daughter's reli- ers!' This is pretty much the same view advanced by Rehnquist gious upbringing. If he makes that argument before the in Wallace v. Jaffree. We should expect Thomas to rule against Court, look for Breyer to vote in Newdow's favor.
26 LIBERTY MAY/JUNE 2004 at "prayers at public school graduation ceremonies (igious observance"
Justice this a nation "under God" for 50 years, but that hasn't resulted in David Hackett Souter a national religion. The reference to God in the pledge doesn't In Lee v. Weisman Justice Souter agreed that advance a religion or a religious belief. Ifs just an acknowledg- "prayers at public school graduation cere- ment of our nation's religious heritage. It merely acknowledges monies indirectly coerce religious obser- the fact that the people who wrote our Constitution believed this vance," and that violates the Constitution. If to be a nation under God. Besides, it's a cultural fact—as Ted hearing a prayer at a high school graduation Olson, U.S. solicitor general, claims—that we're a "religious peo- ceremony is coercion, what is it to be ple whose institutions presuppose a Supreme Being." required by state law to recite a pledge to one But an analysis of how the current Supreme Court justices nation under one god, day after day, for 12 years? have ruled, and a review of the opinions they've expressed in cases Consider these excerpts from Souter's opinions about the involving the establishment dause and public education, leave it rights of nonbelievers, such as the plaintiff in Newdow: far from certain that they'll overrule the appeals court. In fact, it • "The First Amendment mandates governmental neutrality between provides strong evidence that they'll uphold the appeals court. religion and religion, and between religion and nonreligion." In Lee v. Weisman Justices O'Connor, Kennedy, Stevens, and • "Neither a state nor the federal government . . . can constitution- Souter agreed that having a deric say a prayer at a graduation cere- ally pass laws or impose requirements which aid all religions as mony coerced students to participate in a religious exercise. From against nonbelievers." that, ifs not hard to see those four agreeing with the appeals court rul- • "The state may not favor or endorse either religion generally over ing. Ifs not hard to see Justices Breyer and Ginsburg agreeing with the nonreligion or one religion over others?' ruling as welL It's easy to see Justices Rehnquist, Scalia, and Thomas • "The political interest in forestalling intolerance extends beyond voting to overrule the appeals court, based on their diccent in Lee as intolerance among Christian sects—or even intolerance among well as their opinions in other cases. That leaves us with a likely 6 - 3 `religions'—to encompass intolerance of the disbeliever and the decision in favor of upholding the appeals court ruling. That is, until uncertain?' we consider that Justice Scalia is going to sit this one out. •"The establishment dause applies `to each of us, be he Jew or agnos- Since Justice Scalia made references to this case in a speech he tic, Christian or atheist, Buddhist or freethinker?" made earlier this year, and since Michael Newdow did what expe- Slam dunk! Anyone who thinks that listening to a prayer at a high rienced lawyers never do, he asked a Supreme Court justice to school graduation ceremony is an unconstitutional form of coercion recuse himself or herself from a case—Scalia is out. That means is sure to find that having to recite a pledge acknowledging there's eight justices will decide this matter. That leaves us with a poten- only one god, and doing it more than 2,000 times before graduation, tial 4 - 4 tie, and a likely 6 - 2 ruling if the Court decides to rule on is a much more serious form of coercion, right? the central issue in this case. There's no guarantee that the Court will rule on the central issue: Justice the wording of the Pledge of Allegiance. It could skip that issue alto- Ruth Bader Ginsburg gether. It might consider only Newdow's standing in the matter. Justice Ginsburg hasn't had much to say The appeals court decided that Newdow had standing about what the establishment clause allows because his daughter attended public school, and daily recitation and prohibits, exactly what the Founders of the pledge was interfering with his right to raise his daughter as meant by it, how our national heritage fits he wished. According to the appeals court, "parents have a right to into all of this, or whether ceremonial direct the religious upbringing of their children and, on that basis, deism is a valid legal concept, but in these have standing to protect their right." cases she always votes the opposite of But there's a twist. Newdow never married the girl's mother. The Rehnquist, Scalia, and Thomas. If they vote to uphold the existing girl's mother is a Sunday school teacher, and she claims the girl is pledge, look for her to vote against it. happy to say the pledge just as it is. When the appeals court issued its ruling, the mother had sole custody of the child. And she's petitioned Conclusion the Court to rule that Newdow had no standing in this matter. When the Newdow ruling was first announced, the public was It's quite possible that the Supreme Court could look no fur- anxious about it, but then lots of constitutional scholars appeared ther than the standing issue. It could rule that the question of on TV. "The Supreme Court will surely overrule this decision?' standing is something for the California courts to decide. It could they said. And they gave all sorts of reasons. The pledge has called leave the central issue just where it is right now: up in the air. E
LIBERTY MAY/JUNE 2004 27 LETTERS
Beware Shallow Reasoning The Seventh-day Adventist While Reinach presents himself to force a church to compromise I am not sure when I started Church has always deeply as "seeking to protect the auton- principle. In fact it is the open receiving Liberty, however, it was respected the First Amendment of omy of [church] hospitals and claim of the present federal sometime after I took the bench in the Constitution and the separa- colleges," he demands that the administration that the faith-based 1986. Working in a civil trial court tion between church and state that churches be allowed to receive initiative can proceed safely pre- all these years and doing the daily it mandates. Churches should not state money. If he wants the cisely because the state will not grind has at times allowed my be partisan political players. churches to be autonomous, why force churches to change their once-sharpened social, religious, However, the church does make does he demand a state suste- views. I do not believe that author and moral sense to become dulled. its positions known to legisla- nance? Reinach "demands" that churches Reading Liberty restores some of tors—to do otherwise would be He even admits that "such be allowed to receive state money. those intangible qualities in me. irresponsible. Individual members dependency [on state funding] has I believe he is uncomfortable with The material in the January/ are encouraged to be responsible now made these institutions vul- the present funding situation. February issue prompted this citizens and vote according to nerable to attack." If so, then why —Editor. communication. It screams of the their conscience. Never has the demand state funding? Reinach risks of shallow reasoning and the church sought to influence mem- champions free exercise, but gov- Metaphor and Reality convenient mixing of the secular bers' voting on partisan "political" ernment involvement in churches The letter by Edd Doerr in the and the religious for political pur- issues. The church rallied mem- only reduces the free exercise of January/February 2004 edition of pose. I fear that judges such as bers to support the temperance religion. Liberty got my attention. He is crit- Moore and legislators such as issues of a century ago and con- Churches, or any other institu- ical of books by Hamburger and Kehoe, who obviously come from tinues to participate in nonparti- tion, that receive taxpayer funding Dreisbach, who have an issue with different perspectives, are like the san and religious coalition issues cannot use that money in an the church and state separation many who have mastered the abil- such as the current proposal for a inequitable manner. The fact that metaphor. I have not read these ity to blend toward their own ends. Workplace Religious Freedom Act. they are a church does not negate books but am familiar with their Is Liberty the voice of reason? —Editor. the fact that it is tax money from a issue. They are reported to regard Because I agree with your posi- public source. Gays pay taxes too! the separation principle as a tions more often than not, from Paying the Piper Reinach, in effect, argues that it is worthless slogan. I am a strong my perspective it is. Please keep Alan J. Reinach ("Churches the right of churches to do what- believer in the separation of speaking out. Attacked," Jan./Feb. 2004) claims ever they please with government church and state and always will JUDGE DAVID SAUER that a new law in California will money. be as long as it means that church E-mail. force churches to "violate their Reinach's alarm is a false and state each stay within their faith" by forcing religious institu- alarm. More than that, it is a call own domains and do not interfere How Political? tions to pay marital employment to unite church and state. with each other. As a subscriber to Liberty mag- benefits to the church's gay In arguing that government It is true that the separation azine, which I enjoy very much, I employees. must fund churches, Reinach principle is a metaphor coined by have become convinced by you that Yes, that law does require reli- actually prohibits the separation of Jefferson and is not actually writ- separation of church and state is in gious institutions to pay the same church and state. The culminating ten in the Constitution. The sepa- danger. As a Seventh-day Adventist benefits to "domestic partners" as statement of the article actually ration principle is not a useless and one who does not get involved it does to heterosexual partners. plants the suggestion that the sep- metaphor, but is often a metaphor in politics, I wonder if it is time that But what Reinach conveniently aration of church and state may misused. Many liberal judges see we as church members do get fails to drive home is that the become a thing of the past. the separation principle as an involved. Should Liberty magazine requirement applies only to reli- DEAN MILLER adversarial relation between or the church leadership or who- gious institutions that receive state E-mail. church and state—whereby you ever get word out to all church money. It needs to be said separate the church from the state members to write letters to their again—onlyfor religious institu- Your point is well taken. Liberty by pushing the church off the elected officials about the "faith- tions that receive state money. has long maintained that churches map, so to speak. This is done by based initiative" bill? Or should our While he writes as if that is an and church institutions should not ruling against any public expres- church stay out of these issues? It insignificant technicality, Reinach take state funds, as it will compro- sions of religious faith. This kind seems to me that we should take a sounds the alarm that churches mise their autonomy and make of ruling by judges suggests that stand for right. are under attack! Batten down the them party to a weakening of the religious freedom is something to DAN BALLEW hatches; the gays are invading the establishment clause. That so, it is be confined to one's place of wor- Shattuck, Oklahoma churches! still wrong for the state to attempt ship or one's home, but not
28 LIBERTY MAY/JUNE 2004 LETTERS
allowed outside of those domains. passion, scientific and medical Mosley refers to contributions of magazine very carefully, indeed. This is not exactly the free exercise exploration, and moral education each of the Gospel authors, he The letter from Sarah Asaftei is of religion. for the world masses. details John's memory as includ- quite representative of the many I don't believe Jefferson envi- As a famous "humanist," ing the act of Roman soldiers (with emphasis-many) letters sioned that his metaphor would be Thomas Jefferson, wrote in 1786 breaking Jesus' legs. He would pointing out the factual error in misused in this way. Why must we in the Virginia Statute for have been more correct to write the article. They were made even interpret metaphors? What is Religious Freedom: "Our civil that John remembered the more stinging in their rebuke by wrong with the religious freedom rights have no dependence on our Roman soldiers breaking the legs the kind words invariably clause of the First Amendment the religious opinion.... No man of the two thieves and then expressed about the article itself way it is written? "Congress shall shall be compelled to frequent or choosing NOT to break the legs and about Liberty Magazine. make no law respecting an estab- support any religious worship, of Christ, since He was already Thank you, one and all for con- lishment of religion, or prohibiting place, or ministry whatsoever ... ; dead. Instead they speared His tacting us. How this error the free exercise thereof." Now, but that all men shall be free to side, and in doing so uncon- escaped me and the other that says it right! profess, and by argument to main- sciously fulfilled an Old staffers and copy editors is one GLENN SAUNDERS tain, their opinions in matters of Testament prophecy concerning of the mysteries of life. Anyone New Orleans, Louisiana religion.... We are free to the Messiah. (See John 19:32- familiar with the gospel account declare, and do declare, that the 37.) knows the emphasis placed on Uncommon Bond rights hereby asserted are of the Thank you for the timely, infor- the fact that Jesus' legs were not May I say up front that I thor- natural rights of mankind." mative and perceptive article. broken. Very importantly, Mel oughly enjoy and look forward to DEAN RAY SARAH K. ASAFTEI Gibson's "Passion" is accurate to each issue of your magazine. If I Lake Wales, Florida Berrien Springs, Michigan the gospels in its portrayal—no were to become a"born-again broken bones. It is worth men- Christian" or convert, I would be Always good to read such As with the film itself, our tioning that our article was strongly led to your church based warm thoughts—even from Liberty article on 'The Passion of premised on the right of reli- upon your publication and its pub- those whose views on religion the Christ" has stirred an gious expression, not on a lished philosophies. are at odds with ours. Yes, in unprecedented reader response. demand that it be accurate. I As a secular humanist, atheist, defending the separation of Our readers, already presumed would hope we could as easily freethinker, and promoter of free- church and state, we increas- perceptive as supporters and defend "Passion" if it were inac- dom from religion, etc., for more ingly find ourselves shoulder to defenders of religious liberty, curate and even biased. than 50 years, and a fairly recent shoulder with nonreligionists. have shown that they read the —Editor. new subscriber to Liberty maga- That is not an embarrassment, zine, I am extremely encouraged but a rebuke to the increasing DECLARATION OF PRINCIPLES by the obvious common bond that numbers of religious leaders exists between the Seventh-day who have cast aside the con- Adventist Church and the above- cerns of the Founders in favor of The God-given right of religious liberty is best exercised referenced national, state, and co-opting the state to help when church and state are separate. local groups of "unbelievers." I advance their religious agenda. Government is God's agency to protect individual rights and refer to the premise of separation God help them if the state to conduct civil affairs; in exercising these responsibilities, offi- of church and state! chooses badly, and backs the cials are entitled to respect and cooperation. Where these groups differ in "wrong" religious faction! their beliefs is whether the ulti- —Editor. Religious liberty entails freedom of conscience: to worship mate responsibility for improve- or not to worship; to profess, practice, and promulgate religious ment of humanity rests with No Bones Broken beliefs, or to change them. In exercising these rights, however, humans or with God. Regardless I want to commend Steven one must respect the equivalent rights of all others. of whether or not one follows the Mosley on a thoughtful and well- Attempts to unite church and state are opposed to the inter- Christian Bible and believes in a written article. I appreciated his ests of each, subversive of human rights, and potentially perse- supernatural God, I see both sides depth of analysis of the contro- cuting in character; to oppose union, lawfully and honorably, is agreeing on the affirmation that versial movie "The Passion of the not only the citizen's duty but the essence of the golden rule—to we, as humans, must protect our Christ." While I agreed with his natural resources from human insights, there was one reference treat others as one wishes to be treated. predators, and promote love, corn- that I found unbiblical. When
LIBERTY MAY/JUNE 2004 29 EDITORIAL
GOD, CO UNTRY, R T Y an d the
Hal Thomsen Jv STI CES Chairman, Editorial Board In the public library with my methods of war over the arcane slavery by popular demand. Lincoln E. Steed Editor children recently I spotted a DVD old-world views of tradition and With this melange of motives Melissa Reid version of Gods and Generals. I've entrenched social norms, how- and aims, I think the invocation of Marketing Director long had an interest in history—It ever problematic some of them the Deity was almost profane and, Snehlatha Bathini Administrative Assistant was for a time my major in col- may have become. It can be seen as always, dangerous to true lib- James A. Cavil lege—and the Civil War was an as part of the mechanism that erty of conscience. Copy Editor area I particularly concentrated on. moved the U.S. from its English This brings me to the present Eugene Hsu Filmmakers have a tendency to roots to our present multicultural and the need to comment on the Jan Paulsen Don C. Schneider rewrite history, but I couldn't identity. And I think it can be pending Supreme Court review of B. B. Beach resist checking out the DVD. argued that the struggle ushered the Newdow Pledge of Allegiance John Graz Consulting Editors Gods and Generals is about in a new state-federal paradigm case. As I write this the news is Vernon Alger civil war. It shows combatants that broke with much of the peppered with reports of Michael Amireh Al-Haddad falling like scythed wheat onto the vision of the Founders—laying Newdow's surprisingly nimble Charles Eusey Samuel Green farm fields of some of the early the ground for some of today's presentation of his case before the Greg Hamilton clashes. But it is a stylized killing, religious liberty dialogue. justices. Much hinges on the out- Nathaniel Higgs Darrel Huenergardt made transcendent and ultimately The Civil War also reached into come of this case. At hand are Diana Justice bloodless by elevating it to a the religious sentiments of the issues of original intent, separa- Brad Newton Robed Patterson pseudo religious event amid the time and co-opted them. "The tion of church and state, the "cul- Alan Reinach grand chords of triumphal music. Battle Hymn of the Republic," ture wars" (the most recent skir- Mitchell A. Tyner Consultants At first touching, the film's immensely popular at the time, mish being the battle of the gay Jeffrey L. Dever insistent equating of religious faith shows how militant the religiosity married on courthouse steps), Art Director with political identification became could be in the North—and it and perhaps some sort of recapit- Christopher J. Komisar for me the real violence of this ignores the subtlety of Lincoln's ulation of the concept of ceremo- Designer/Production retelling of an epic contest observation. The issue of slavery nial deism. Kenneth W. Osborn Treasurer between two parts of what is again allowed the Northern leaders to God has indeed shone His favor
www.libertymagazine.org a whole. I was reminded of invoke the religious "jihad" of the on the United States in times past. Abraham Lincoln's famous com- abolitionists almost as a cover for That must be a truism made more Liberty (ISSN 0024-2055) is pub- lished bimonthly by the North ment that both sides prayed to the some very real and structural real depending on your eschato- American Division of the Seventh- same God, and that both could not political differences that had led to logical outlook. And, as our presi- day Adventist Church, 12501 Old Columbia Pike, Silver Spring, MD be right. True and a truism, I sup- secession. In the South there was dent said recently, God bless him, 20904-6600. Periodicals postage pose. Still, truisms are not so indeed the conflation of political the Deity couldn't have blessed a paid at Hagerstown, MD. POSTMASTER send changes of obvious to those submerged in aims and the bedrock issues of more deserving people. Self-con- address to Liberty, P.O. Box 1119, Hagerstown, MD 21741-1119. their genesis. spiritual faith. However, the film I gratulating theological certainty is Copyright © 2004 by the North The Civil War was many things saw ignored the real and often certainly a general human ten- American Division. at once. It was, of course, the cynical aim of many in the South dency, knowing no national Printed by the Review and Herald transfer of real power from an to defend a lifestyle and an econ- boundary. It becomes a little more Publishing Association, 55 West Oak Ridge Drive, Hagerstown, MD agrarian South to the rapidly omy that was not only out of sync severe in its effect when we 21741-1119. Subscription price: U.S. $6.95 per year. Single copy: industrializing North. It was in with the rest of the country but encapsulate our God as a property U.S. $1.50. Price may vary where many ways the victory of the passé in the larger world, England of the state rather than the state national currencies differ. Vol. 99, No.3, May/June, 2004. machine of modern society and itself having already outlawed being just one of the stars under
30 LIBERTY MAY/JUNE 200 4 usually it should be might also be well to remember safer to depend on that the Constitution is explicit in textual interpretation of prohibiting any religious test for documents such as the public office. With the pledge, we Constitution. He has are very much faced with a reli- recused himself from gious test—especially if the pledge this particular delibera- is required of all students. It tion because he clearly seems illogical for the framers of favors the words in the this constitutional requirement to pledge. I think this is so definitely object to a religious His wide heaven. In other words, this nation as Christian as one case in which the intent, or test for public office and yet allow if we have God, we are just, we opposed to godless Communism. expectations of the culture in eigh- it for all citizens, thereby accom- are right, we are His authorized It was the height of the cold war, teenth-century America, may be at plishing the same negative they agents. after all. No matter that the conflict odds with the text and aims of the clearly desired to prevent. This last construct was exactly was a little more nuanced than Constitution itself. We can only hope the justices the logic, worked to its feudal that—that Eastern Europe feared a The society was overwhelm- treat this with Solomonic care. To conclusion, that led to the doc- resurgent Germany; that capital- ingly Christian—more specifically, discard the wording out of hand trine of the divine right of kings. ism—freed of the inhibitions Protestant—back then. It is easy will only inflame the national reli- It was an arbitrary theology that against predatory gains that char- to show, as various politically gious sense that has been so eas- needed only a supporting prelate acterized Christian Europe of the aggressive religious spokesper- ily co-opted in the past. It might or two to have a lock on the peo- Middle Ages and that led to the sons have of late, that the confla- also empower those who have a ple. Eventually the people of marginalization of Jews for dealing tion of state and God was routine. general antipathy to faith. Perhaps Europe threw off this concept. in usury, etc.—was in a global bat- Even as Franklin, Jefferson, the best course is a narrowly France did it violently in the tle for market access and control; Washington, and others set up a defined opinion that rests on the French Revolution, for a while that Russia and the U.S. were in calculatedly secular government, recognition of the role of ceremo- rejecting the God of the ruling many ways involved in a classic borrowing from the British norms nial deism, and makes clear the class. England did it in a Puritan game of global imperialism; that and aping much of the classical limits beyond this. Protestant revolution that MAD was, after all, a mutually ideals of Rome and Greece, they replaced the king's certainty of assured destruction clearly shared the assumption that divine authority with one of divine pact. Never mind all the ambigui- this new endeavor had the bless- national destiny. In the cold ties; many needed to characterize ing of the Almighty. recesses of Russia the czars kept the battle as simply between good The question is in some ways their divine autocracy until exter- and evil—and of course God whether we perpetuate the usually minated by a militant atheistic would be on our side. In retro- quaint, but oftentimes dangerous, revolution. spect, His will most likely has been co-option of God for national And thereby hangs a tale with a served by the collapse of the god- behavior; or recommit ourselves link to the Pledge of Allegiance! less force of global communism. to a civil compact made more We all know by now what many But a certain violence was itself workable by the personal faith had forgotten following years of done by the insertion in the Pledge dynamic of an increasingly diverse Lincoln E. Steed schoolroom recitation: the words of Allegiance. community. The First Amendment Editor, "under God" were added in 1954 Justice Antonin Scalia is wont has been worked over many times Liberty Magazine at the urging of religious groups, to talk of original intent on consti- for meaning—no establishment of the Knights of Columbus most tutional matters. His point is well religion/no inhibition to its prac- prominently. The reason: to define taken when we can divine it. Most tice. But in this pledge question it
ILLUSTRATION BY DON STEWART LIBERTY MAY/JUNE 2004 31 To discriminate against a thoroughly upright citizen because he belongs to some particular church, or because, like Abraham Lincoln, he has not avowed his allegiance to any church, is an outrage against that liberty of con- science which is one of the foundations of American life.
-PRESIDENT THEODORE ROOSEVELT to J. C. Martin, November 9, 1
CORBIS BETTMANN