TESTIMONY OF Attorney Mathew D. Staver President and General Counsel of Liberty Counsel Be

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TESTIMONY OF Attorney Mathew D. Staver President and General Counsel of Liberty Counsel Before House Judiciary Subcommittee on the Constitution Field Hearing in Tampa, Florida June 23, 1995 Mr. Chairman, members of the committee, I want to thank you for inviting me. My name is Mat hew Staver. I am President and General Counsel of Liberty Counsel, a religious civil liberties education and legal defense organization. Liberty Counsel is based in Orlando, Florida, but operates nationwide in the area of religious civil liberties. Liberty Counsel provides education and legal defense in free speech and religious civil liberty matters. As an attorney who has concentrated in defending religious civil liberties nationwide, having written on this topic, and having monitored religious civil liberty trends throughout the nation, I am concerned with the direction our country is heading. The first chapter of my book, Faith and Freedom, summarizes my perception that religion in the public square is an endangered species. Religion in the public square is indeed becoming an endangered species. At Liberty Counsel, we receive numerous phone calls everyday from around the nation. We investigate these phone calls, and some of the incidents occurring throughout the country are unbelievable, almost fairy tale in proportion. I am not an alarmist, nor an extremist, but I am alarmed by attempts to cleanse religion from the public square. Something needs to be done to protect people of faith from insidious discrimination. We are appalled by the racial discrimination in South Africa and the human rights violations in China. Indeed we should be. Yet, in this country, public school students are reprimanded every day for expressing their faith. Public school students are often made to feel that their faith is something to be ignored like the plague, something that must be left home, something that is inherently evil. The public needs to be better informed regarding religious liberty. The courts need to be a more hospitable place to people of religious belief, and if the courts will not protect religious liberty guaranteed by the First Amendment, then the Constitution needs to be amended to settle this debate once and for all. Whenever we consider amending the United States Constitution, we must pause and consider whether it is necessary. I, for one, take very seriously the concept of amending our Constitution. However, I strongly believe a religious equality amendment is necessary. Before going into detail as to why such an amendment is necessary, let me quickly point out that I am simply asking that religious expression be granted an equal playing field to other forms of secular expression. Currently, the playing field is not level, and religious expression and practices are treated as second class forms of speech and singled out for discrimination. In the book, The Powers in a Secular State, published in 1951, Professor Edward S. Corwin accurately pointed out that the original understanding of the First Amendment was that Congress should not prescribe a national faith. Justice Joseph Story, who served on the United States Supreme Court from 1811 to 1845, and who was an adherent to the Unitarian faith, stated: "Probably at the time of the of the adoption of the Constitution and of the [First] Amendment to it . . . the general, if not the universal, sentiment in America was that Christianity ought to receive encouragement from the state, so far as such encouragement was not incompatible with the private rights of conscience, and the freedom of religious worship."(1) I am not asking for a Christianized America, but I do believe that people of faith should have 1. Joseph Story, Commentaries on the Constitution of the United States (3d ed., Boston: Hilliard, Gray, 1858), 2 Secs. 1874, 1877. 2 an equal opportunity to express their convictions as someone who expresses their non theistic views. I am not asking that religious faith and practice be given an advantage, but I am asking for accommodation. HISTORICAL OVERVIEW To understand our present situation, we must consider the past. Oliver Wendell Holmes' statement is apropos: "A page of history is worth a volume of logic." (2) As the first act of the Continental Congress in 1774, the Rev. Mister Duche opened with prayer and read from Psalm 31. (3) From its inception Congress and state legislatures have begun their sessions with an invocation by a paid Chaplain. (4) Courts have historically opened their daily proceedings with the invocation "God save the United States and this Honorable Court." (5) Even the United States Supreme Court has Moses and the Ten Commandments inscribed above the bench 2. New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921). 3. Mr. Duche's prayer was as follows: Be Thou present O God of Wisdom and direct the council of this honorable assembly; enable them to settle all things on the best and surest foundations; that the scene of blood may be speedily closed; that order, harmony, and peace may be effectually restored, and truth and justice, religion and piety, prevail and flourish among the people. Preserve the health of their bodies, and the vigor of their minds, shower down on them, and the millions they represent, such temporal blessings as Thou geese expedient for them in this world, and crown them with everlasting glory in the world to come. All this we ask in the name and through the merits of Jesus Christ Thy Son and our Saviour. Amen. 4. Marsh v. Chambers, 463 U.S. 783, 787-89 (1983). See Lynch v. Donnelly, 465 U.S. 668, 673-74 (1984). 5. Marsh, 463 U.S. at 786. recognizing the Biblical foundations of our legal heritage. (6) George Washington began the tradition of taking the Presidential oath of office upon the Bible. When he assumed office in 1789, he stated, "it would be peculiarly improper to omit in this first official act my fervent supplications to that Almighty Being who rules over the Universe ...." (7) An impressive list of presidents subsequent to Washington have invoked the protection and help of Almighty God. (8) James Madison, the father of the Bill of Rights, was a member of the Congressional committee that recommended the Chaplaincy system. (9) Madison voted for the bill authorizing payment of chaplains. (10) Rev. William Linn was elected Chaplain of the House of Representatives and paid $500 from the federal treasury. On September 25, 1789, the day the final agreement was made on the Bill of Rights, the House requested President Washington to proclaim a day of Thanksgiving to acknowledge "the many signal favors of Almighty God." (11) He proclaimed November 26, 1789, a day of Thanksgiving to offer "our prayers and supplications to the great Lord and ruler 6. See Lynch, 465 U.S. at 677. 7. Engel v. Vitale, 370 U.S. 421, 466 (1962) (Stewart, J., dissenting). 8. Engel, 370 U.S. at 44649. 9. H.R. Rp. No. 124, 33rd Cong., 1st Sess. (1789), Reprinted in 2 No. 2 Reports of Committees of the House of Representatives 4 (1854). 10. Annals of Cong. 891 (J. Gales ed. 1834). 11. H.R. Jour., 1st Cong., 1st Sess., 123 (1826 ed.); S. Jour., 1st Cong., 1st Sess., 88 (1820 ed.); Lynch, 465 U.S. at 675 n.2. 4 of nations, and beseech Him to pardon our national and other transgressions. (12) Later President Madison issued four Thanksgiving Day proclamations on July 9, 1812, July 23, 1813, November 16, 1814 and March 4, 1815. (13) Successive presidents have continued this tradition. "The line we must draw between the permissible and impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers." (14) "Government policies of accommodation, acknowledgment, and support for religion are an accepted part of our political and cultural heritage." (15) In 1892 the United States Supreme Court considered the case of The Church of the Holy Trinity v. United States. (16) In that case, the Supreme Court unanimously held that a congressional statute forbidding the immigration of persons under contract to perform labor did not apply to an English minister who entered this country under a contract to preach at a New York church. After reviewing extensive legislative history, the Court concluded: But beyond all these matters no purpose of action against religion can be imputed against any legislation, state or national, because this is a religious people. This is historically true. From the discovery of this continent to the present hour, there is a single voice making this affirmation.... If we pass beyond these matters to a view of American life as expressed by its laws, its business, its customs and its society, we find everywhere a clear recognition of the same truth.... These, and many other matters ----------------- 12. Id. 13 R. Cord, Separation of Church & State 31 (1982). 14.School District of Abington Township of Pennsylvania v. Schempp, 374 U.S. 203, 294 (1963) (Brennan, J., concurring). 15. County of Allegheny v. American Civil Liberties Union, 109 S. Ct. 3086, 3135 (1989) (Kennedy. J., concurring in part and dissenting in part). 16. 143 U.S. 457 (1892). 5 which might be noticed add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation. (17) Tossing aside the original understanding of the First Amendment, and the volumes of history which document the religious liberty concerns of our founders, in 1989 the Supreme Court in the case of County of Allegheny v. American Civil Liberties Union, (18) stated that the purpose of the First Amendment was to mandate that the government remain secular. Justice Joseph Story, as noted above, indicated that the purpose of the First Amendment was to encourage Christianity. In 1892 the Supreme Court recognized the religious heritage of this country, but in 1989 the same Supreme Court found that the purpose of the First Amendment was to mandate that government remain secular. The Supreme Court's understanding of the Constitution has moved from encouragement, to neutrality, to mandating secularism. In the 1960s the United States Supreme Court focused its attention on public schools. Paul Blanshard, a secular humanist, wrote in The Humanist magazine, that his "primary hero" in moving this nation toward a secular society was the United States Supreme Court. Reviewing the impact of the Supreme Court during the first seventy-five years of the twentieth century, Mr. Blanshard concluded that the Supreme Court cases have mandated secularistic teaching and that the most important factor moving America toward a secular society is the educational factor. He noted, "Our schools may not teach Johnny to read properly, but the fact that Johnny is in school until he is sixteen tends to lead towards the elimination of religious superstition. The average American child now acquires a high school education, and ----------------- 17. ld. at 470-71. 18. 492 U.S. 573 (1989). 6 this militates against Adam and Eve and all other myths of alleged history." (19) Since it struck down prayer (20) and Bible reading, (21) the Supreme Court removed the display of the Ten Commandments from a classroom bulletin board in the state of Kentucky, (22) and then ruled it was impermissible for a rabbi to pray at a public school graduation. (23) THE ESTABLISHMENT CLAUSE AND THE LEMON TEST On its path to mandating a secular society, the Supreme Court developed the so called "Lemon test" as annunciated in its decision known as Lemon v. Kurtzman. (24) Under this three-part test, any government interaction with religion is constitutional only if it: (1) has a secular purpose; (2) does not promote or inhibit religion, or more fully defined, does not endorse religion; and (3) does not foster excessive governmental entanglement with religion. Despite repeated criticism of this unworkable test, it is still applied to all church-state matters. Justices Scalia and Thomas soundly criticized the Lemon test in their stinging critique of the Court as follows: Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again by frightening little children and school attorneys . . . Its most recent burial, only last Term [in Lee v. Weisman] was, ---------------- 19. Paul Blanshard, "Three Cheers for our Secular State," The Humanist, March/April 1976, p. 17. 20. Engel v. Vitale, 370 U.S. 421 (1962). 21. School District of Abington Township v. Schempp, 372 U.S. 203 (1963). 22. Stone v. Graham, 449 U.S. 39 (1980). 23. Lee v. Weisman, 112 S. Ct. 2649 (1992). 24. 403 U.S- 602 (1971). 7 to be sure, not fully six-feet under .... Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinion, personally driven pencils through the creature's heart The secret of the Lemon test's survival, I think, is that is so easy to kill. It is there to scare us (and our audience) when we wish to do so, but we can demand it to return to the tomb at will.... When we wish to strike down a practice it forbids, we evoke it . . . . Sometimes we take a middle ground of course, calling its three prongs "no more than helpful sign posts." Such a docile and useful monster is worth keeping around, at least in a somnolent state: one never knows when one might need him. (25) Using the convoluted Lemon test, the Supreme Court has mandated that in order to pass Constitutional muster, religion must be diluted with secular influences. Thus, a nativity scene standing by itself is unconstitutional, but it magically becomes constitutional when secular symbols of the holiday are placed within its context. Christmas carols at public schools wherein children sing "Silent Night, Holy Night" are unconstitutional, but magically become constitutional, if the same children, during the same presentation, add to their repertoire the song, "Rudolph, The Red-Nosed Reindeer." Using the same test, one court ruled that student initiated graduation prayers were unconstitutional, (26) while other courts have ruled that the same prayers were indeed constitutional. (27) Yet, the Supreme Court refuses to abandon its convoluted Lemon test. The Lemon test has created havoc, misunderstanding, and hostility toward religion. ---------------- 25. Lamb's Chapel v. Center Moriches Union Free School Dist., 113 S. Ct. 2141, 2150 (1993). See also Mathew Staver, Faith and Freedom (Wheaton, IL: Crossway Books, 1995) p. 117 n.28. 26. Harris v. Joint School Dist., 41 F.3d. 447 (9th Cir. 1994). 27. Jones v. Clear Creek lndependent School Dist., 977 F. 2d. 963 (5th Cir. 1992), cert. denied, 113 S. Ct. 2950 (1993). See also Adler v. Duval County School Bd., 851 F. Supp. 446 (M.D. Fla 1994). 8 The crisis we face today in protecting religious liberty is two-fold. First, over the past thirty years, the Supreme Court has ignored the original understanding of the First Amendment. Having cut the First Amendment free from its foundational base, the Supreme Court has pliably bent its protections to come in conformance with the majority of the Justices at any one time. Since the First Amendment was wrenched from its foundation, the Court has been forced to develop rules for its application, and therefore developed the Lemon test. The problem with the Lemon test is that it injects a great deal of subjectivity into its application, and from the very onset requires that the religious practice be secularized in order to pass constitutional scrutiny. Thus, religion is placed on the defensive, having to secularize its meaning and expression. Though the Court has been asked repeatedly to clarify this test, it has refused to do so. Second, the lower federal courts have been forced to apply the Lemon test. Mass confusion has resulted in its application. For almost every federal district court opinion stating one proposition, one can find another federal district court holding exactly the opposite. Many of these cases have not been appealed through the appellate level, and most have not made their way to the United States Supreme Court. Consequently, many of the federal district court cases still remain and have never been clarified. For practical purposes, many religious liberties have been lost for lack of funds to carry on the battle. Because the Supreme Court has developed such an unworkable test, it has opened the floodgates to religious liberty litigation. Courts have gone in all directions applying the Lemon test, and religious adherents have often been frustrated when they first enter the federal district court and are unable to take the case any higher to have it clarified or possibly overturned. To illustrate this point, I have listed below a number of conflicting decisions considering the same issue. In most cases I have cited the 9 federal district court cases simply to illustrate the confusion among those courts. While the propositions stated below may not be the final ruling of the court, as the case may have been appealed to a higher judicial body, the cases are cited to illustrate the religious liberty quagmire. (28) In the area of release time, courts have allowed students to go off school premises for religious instruction (29) so long as the instruction did not take place near the school building. (30) Some courts have ruled it unconstitutional for students to hand carry attendance slips from the parochial instruction back to the public school. (31) Other courts have ruled that elective credit cannot be given for the parochial course. (32) Some courts have ruled that public school intercoms were permitted in seminary classrooms and public schools could maintain mailboxes for seminary instructors. (33) Schools have been forced to defend the recognition of ------------------- 28. The cases cited between footnotes 29 and 91 are mostly citations to the federal district courts. These cases are not shepardized and may have been overruled by either a circuit court of appeals or the United States Supreme Court. The cases are listed only as examples of the confusion caused by the Lemon test and therefore may not represent the final holding or established law. 29 Lanner v. Wimmer, 662 F.2d 1349 (lOth Cir. 1981); Smith v. Smith, 523 F.2d 121 (4th Cir. 1975); State v. Thompson, 225 N.W.2d 678 (1975). 30 Doe v. Shenandoah County School Board, 737 F. Supp. 913 (W.D. Va. 1990). 31. Lanner, 662 F.2d 1349; Thompson, 225 N.W.2d 678. 32. Lanner, 662 F.2d 1349; See Minnesota Federation of Teachers v. Nelson, 740 F. Supp. 694 (D. Minn. 1990). 33 Id. 10 religious observances (34) and prohibition of school dances. (35) A parochial school child can participate in a public school band course, (36) but cannot participate in an all-county band. (37) If a parochial school child needs remedial services, the district may be allowed to fund services at the student's school, (38) but such provision may be void on its face, (39) or funds may be allowed only if services are performed at "neutral sites." (40) Public funds may be used to lease classroom space from a church related school, but only if public school children are shielded from religious influence. (41) Public schools may (42) or may not (43) lease classroom space in parochial schools. Private school students or ---------------- 34. See Florey v. Sioux Falls School District 49-5, 619 F.2d 1311 (8th Cir. 1980). See also Student Members of Playcrafters v. Board of Education, 424 A.2d 1192 (N.J. 1981) (School board forced to defend policy of prohibiting extracurricular activities on Friday, Saturday, and Sunday). 35. See Clayton v. Place, 884 F.2d 376 (8th Cir. 1989). 36 Snyder v. Charlotte Public School District, 421 Mich. 517, 365 N.W.2d 151 (1985). 37 Thomas v. Allegheny County Board of Education, 51 Md. App. 312, 443 A.2d 622 (1982). 38. See Walker v. San Francisco Unified School District, 741 F. Supp. 1386 (N.D. Cal. 1990); Thomas v. Schmidt, 397 F. Supp. 203 (D.R.I. 1975). 39. Wamble v. Bell, 598 F. Supp. 1356 (W.D. Mo. 1984); Viss v. Pittenger, 345 F. Supp. 1349 (E.D. Pa. 1972). 40. Felt on v. Secretary, 739 F.2d 48 (2d Cir. 1984); Pulido v. Cavasos, 728 F. Supp. 574 (W.D. Mo. 1989); Filler v. Port Washington University Free School District, 436 F. Supp. 1231 (E.D.N.Y. 1977); Wolman v. Essex, 417 F. Supp. 1113 (S.D. Ohio 1976). 41. Thomas v. Schmidt, 397 F. Supp. 203 (D.R.I. 1975). 42 Spacco v. Bridgewater School Department, 722 F. Supp. 834 (D. Mass. 1989); Americans United for Separation of Church & State v. Paire, 359 F. Supp. 505 (D.N.H. 1973); Americans 11 religious organizations may (44) or may not (45) be permitted to utilize public school facilities. Financial assistance programs for needy students attending private schools have failed the Lemon test.(46) Some courts have disqualified private college students from receiving government tuition grants, (47) while other courts have allowed such grants.48 Some plans have been upheld only ----------------- United for Separation of Church & State v. Pa ire, 348 F. Supp. 506 (D.N.H. 1972); Citizens to Advance Public Education v. Porter, 237 N.W.2d 232 (Mich. 1976) (shared time secular education program). 43. See Americans United for Separation of Church & State v. School District of Grand Rapids, 546 F. Supp. 1071 (W.D. Mich 1982); Americans United for Separation of Church & State v. Porter, 485 F. Supp. 432 (W.D. Mich. 1980); Americans United for Separation of Church & State v. Board of Education, 369 F. Supp. 1059 (E.D. Ky. 1974). 44. Gregoire v. Centennial School District, 907 F.2d 1366 (3d Cir. 1990); Parents Association of P.S. 16 v. Quinones, 803 F.2d 1235 (2d Cir. 1986); Country Hills Christian Church v. Unified School District, 560 F. Supp. 1207 (D. Karl. 1983); Resnick v. East Brunswick Township Board of Education, 389 A.2d 944 (N.J. 1978); cf. Chess v. Widmar, 635 F.2d 1310 (8th Cir. 1980) (University must allow recognized student organizations to use school facilities for religious purposes). 45 Lubbock Civil Liberties Union v. Lubbock Independent School District, 669 F.2d 1038 (Sth Cir. 1982); Lamb's Chapel vs. Center Moriches School District, 736 F. Supp. 1247 (E.D.N.Y. 1990); Resnick v. East Brunswick Township Board of Education, 135 N.J. Super. 257, 343 A.2d 127 (1975); cf. Wallace v. Was hoe County School Board, 701 F. Supp. 187 (D. Nev. 1988); Ford v. Manuel, 629 F. Supp. 771 (N.D. Ohio 1985). 46. Wolman v. Essex, 342 F. Supp. 399 (S.D. Ohio 1972); People v. Howlett, 305 N.E.2d 129 (Ill. 1973); Weiss v. Bruno, 82 Wash. 2d 199, 509 P.2d 973 (1973), contra Barr era v. Wheeler, 475 F.2d 1338 (8th Cir. 1973). 47. See d'Errico v. Lesmeister, 570 F. Supp. 158 (D.N.D. 1983); Smith v. Board of Governors, 429 F. Supp. 871 (D.N.C. 1977); Americans United for Separation of Church & State v. Dunn, 384 F. Supp. 714 (M.D. Tenn. 1974); Americans United for Separation of Church & State v. Bubb, 379 F. Supp. 872 (D. Karl. 1974); Opinion of the Justices, 280 So.2d 547 (Ala. 1973); State v. Swanson, 102 Neb. 125, 219 N.W.2d 727 (1974). But cf. Durham v. McLeod, 192 S.E.2d 202 (S.C. 1972) (loans constitutional). 48. See Americans United for Separation of Church & State v. Blanton, 433 F. Supp. 97 (M.D. Tenn. 1977); Lend all v. Cook, 432 F. Supp. 971 (D. Ark. 1977); Americans United for Separation of Church & State v. Rogers, 538 S.W.2d 711 (Mo. 1976); Cecrle v. Illinois 12 when the use of the funds is restricted. (49) Students may receive grants to study philosophy or religion in public schools, but not theology in pervasively sectarian schools failing a 36-prong test. (50) However, Veteran's Administration, and some handicap tuition assistance programs, have generally been held valid for recipients attending sectarian schools. (51) Some courts have ruled that the state may provide bus transportation to private school children, (52) but in Rhode Island, the enabling statute was stricken three times. (53) Public funds cannot be used to provide textbooks to private school students in some states, (54) but in ------------------- Educational Facilities Authority, 288 N.E.2d 402 (Ill. 1972). 49. See Walker v. San Francisco Unified School District, 741 F. Supp. 1386 (N.D. Cal. 1990); Lend all, 432 F. Supp 971; Smith v. Board of Governors, 429 F. Supp. 871 (D.N.C. 1977); Americans United for Separation of Church & State Fund, Inc. v. State, 648 P.2d 1072 (Colo. 1982). 50 See Minnesota Federation of Teachers v. Nelson, 740 F. Supp 694 (D. Minn. 1990); But cf. In Re Dickerson, 474 A.2d 30 (N.J. 1983) (testamentary scholarships for ministry students at public institute constitutional). 51. Witters v. Washington Department of Service of the Blind, 474 U.S. 481 (1986); Bob Jones University v. Johnson, 396 F. Supp. 597 (D.S.C. 1974). 52. Rhode Island Federation of Teachers v. Norberg, 630 F.2d 855 (tat Cir. 1980) (provision valid but not severable); Cromwell Property Owners Association v. Toffolon, 495 F. Supp. 915 (D. Conn. 1979); Board of Education v. Bakalis, 54 Il1.2d 448, 299 N.E.2d 737 (1973); State v. School District, 320 N.W.2d 472 (Neb. 1982); Springfield School District v. Department of Education, 397 A.2d 1154 (Pa. 1979); cf. Americans United for Separation of Church & State v. Benton, 413 F. Supp 955 (S.D. Iowa 1975) (no cross-district transport). 53. Members of Jamestown School Committee v. Schmidt, 699 F.2d 1 (1st Cir. 1983); Members of Jamestown School Committee v. Schmidt, 525 F. Supp. 1045 (D.R.I. 1981); Members of Jamestown School Committee v. Schmidt, 427 F. Supp. 1338 (D.R.I. 1977). 54. California Teachers Association v. Riles, 632 P.2d 953 (Cal. 1981); Mallory v. Barr era, 544 S.W.2d 556 (Mo. 1976); Paster v. Tussey, 512 S.W.2d 97 (Mo. 1974); contra Elbe v. Yank ton Independent School District No. 1, 714 F.2d 848 (8th Cir. 1983); Wolman v. Essex, 417 F. Supp. 1113 (S.D. Ohio 1976); Cunningham v. Lutjeharms, 231 Neb. 756, 437 N.W.2d 806 (Neb. 1989). 13 others, it is acceptable for the state to reimburse parochial schools for textbook expenditures. (55) Decisions have limited the provision of educational materials to sectarian schools. (56) In some cases states may not reimburse a sectarian school for costs incurred performing state-mandated tasks, such as testing and record-keeping, (57) but in other cases it is permissible. (58) State regulation of private schools regarding compulsory attendance, (59) teacher certification, (60) and curriculum (6l) have been upheld. State employees may not teach or provide -------------------------- 55. Americans United for Separation of Church & State v. Pa ire, 359 F. Supp. 505 (D.N.H. 1973); Pennsylvania Department of Education v. The First School, 348 A.2d 458 (Pa. 1975). 56. Americans United for Separation of Church & State v. Oakey, 339 F. Supp. 545 (D. Vt. 1972); but see Wolman v. Essex, 417 F. Supp. 1113 (S.D. Ohio 1976). 57. Committee for Public Education & Religious Liberty v. Levitt, 342 F. Supp. 439 (S.D.N.Y. 1972). 58. Committee for Public Education & Religious Liberty v. Levitt, 461 F. Supp. 1123 (S.D.N.Y. 1978); Thomas v. Schmidt, 397 F. Supp. 203 (D.R.I. 1975). 59. Fellowship Baptist Church v. Benton, 815 F.2d 485 (8th Cir. 1987); Attorney General v. Bailey, 436 N.E.2d 139 (Mass. 1982); State v. Shaver, 294 N.W.2d 883 (N.D. 1980). 60. Fellowship Baptist Church, 815 F.2d 486; but cf. Bangor Baptist Church v. State, 549 F. Supp. 1208 (D. Me. 1982); Johnson v. Charles City Community Schools Board of Education, 368 N.W.2d 74 (1985); Sheridan Road Baptist Church v. Department of Education, 348 N.W.2d 263 (Mich. 1984); State v. Faith Baptist Church, 207 Neb. 802, 301 N.W.2d 571 (1981). cf. State v. Anderson, 427 N.W.2d 316 (N.D. 1988) (home schooling parents violated teacher certification requirements). 61. New Life Baptist Church Academy v. East Long meadow, 885 F.2d 952 (tat Cir. 1989); Sheridan Road Baptist Church v. Department of Education, 348 N.W. 2d 263 (Mich. 1984); State v. Faith Baptist Church, 301 N.W.2d 571 (1981); cf. New Jersey State Board of Higher Education v. Board of Directors, 448 A.2d 988 (N.J. 1982) (prohibiting conferring of degree by unlicensed institution applied to a sectarian college whose religious doctrine precluded state licensure). 14 remedial services in private schools, (62) but may visit classrooms to observe both secular and religious teaching, suggest teacher replacements, and review accreditation. (63) However, student teachers may not receive credit for teaching at parochial schools. (64) State inquiry into a religious organization' s operating costs violates the Establishment Clause, (65) unless requested by the Internal Revenue Service. (66) The state may enforce compliance with minimum wage laws, (67) the Fair Labor Standards Act, (68) and force participation in FICA and FUTA, (69) despite an organization's religious beliefs to the contrary. --------------------------- 62. Pulido v. Cavazos, 728 F. Supp. 574 (W.D. Mo. 1989); Wamble, 598 F. Supp 1356; Americans United for Separation of Church & State v. Porter, 485 F. Supp. 432 (W.D. Mich. 1980); Americans United for Separation of Church & State v. Board of Education, 369 F. Supp 1059 (E.D. Ky. 1974); but see Walker v. San Francisco United School District, 741 F. Supp. 1386 (N.D. Cal. 1990). 63. New Life Baptist Church Academy v. East Long meadow, 885 F.2d 952 (tat Cir. 1989). 64. Stark v. St. Cloud State University, 802 F.2d 1046 (8th Cir. 1986). 65. Surinach v. Pesquera de Busquets, 604 F.2d 73 (tat Cir. 1979); Fernandez v. Lima, 465 F. Supp. 493 (N.D. Tex. 1979). See also Heritage Village Church & Missionary Fellowship v. State, 263 A.2d 726 (N.C. 1980) (act requiring only certain religious groups to file information is unconstitutional). 66. United States v. Freedom Church, 613 F.2d 1316 (tat Cir. 1979); Lutheran Social Service v. United States, 583 F. Supp. 1298 (D. Minn. 1984); cf. Hernandez v. Commissioner, 819 F.2d 1212 (tat Cir. 1987); St. Bartholomew's Church v. City of New York, 728 F. Supp. 958 (S.D.N.Y. 1989) (state inquiry into church records does not violate entanglement prong). 67. Archbishop of Roman Catholic Apostolic Archdiocese v. Guardiola, 628 F. Supp. 1173 (D.P.R. 1985); Donovan v. Shenandoah Baptist Church, 573 F. Supp. 320 (W.D. Va. 1983). 68. Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990); E.E.O.C. v. Freemont Christian School, 781 F.2d 1362 (9th Cir. 1986); Ninth & O St. Baptist Church v. E.E.O.C., 616 F. Supp. 1231 (W.D. Ky. 1985); Russell v. Belmont College, 554 F. Supp. 667 (M.D. Tenn. 1982). 69. South Ridge Baptist Church v. Industrial Commission, 911 F.2d 1203 (6th Cir. 1990) (church included within workers' compensation system); Bethel Baptist Church v. United States, 15 The National Labor Relations Board may not be applicable to parochial schools, (70) but a state labor board may have jurisdiction. (71) Sectarian schools are prohibited from utilizing CETA workers. (72) Civil rights statutes have not been enforced against religious organizations, (73) but courts have split as to whether the "reasonable accommodation" requirement may be enforced against secular employees. (74) As a result, religious institutions have been forced to --------------------- 822 F.2d 1334 (3d Cir. 1987); Young Life v. Division of Employment & Training, 650 P.2d 515 (Colo. 1982) (religious organization subject to unemployment tax); Baltimore Lutheran High School Association v. Employment Security Administration, 490 A.2d 701 (Md. 1985) (school subject to unemployment tax); Contra Grace Lutheran Church v. North Dakota Employment Security Bureau, 294 N.W. 767 (N.D. 1980) (church not subject to unemployment tax); The Christian Jew Foundation v. State, 353 S.W.2d 607 (Tex. 1983) (organization exempt from unemployment tax); Community Lutheran School v. Iowa Department of Job Service, 326 N.W.2d 286 (Iowa 1982) (school exempt from unemployment tax). 70. Universidad v. N.L.R.B., 793 F.2d 383 (tat Cir. 1985); see also N.L.R.B. v. Salvation Army, 763 F.2d 1 (tat Cir. 1985); N.L.R.B. v. Bishop Ford Central Catholic High School, 623 F.2d 818 (2d Cir. 1980); Catholic Bishop v. N.L.R.B., 559 F.2d 1112 (2d Cir. 1977); McCormick v. Hirsh, 460 F. Supp. 1337 (M.D. Pa. 1978); contra N.L.R.B. v. St. Louis Christian Home, 663 F.2d 60 (8th Cir. 1981); Grutka v. Barb our, 549 F.2d 5 (7th Cir. 1977). 71. Goldsborough Christian Schools, Inc. v. United States, 436 F. Supp 1314 (E.D.N.C. 1977); cf. Catholic High School Association v. Culvert, 753 F.2d 1161 (2d Cir. 1985). 72. Decker v. O'Donnell, 663 F.2d 598 (7th Cir. 1980) (CETA created entanglement); see also, Decker v. Department of Labor, 473 F. Supp. 770 (E.D. Wis. 1979). 73. Dayton Christian Schools v. Ohio Civil Rights Commission., 766 F.2d 932 (6th Cir. 1985); Cochran v. St. Louis Preparatory Seminary, 717 F. Supp. 1413 (E.D. Mo. 1989); Maguire v. Marquette University, 627 F. Supp 1499 (E.D. Wis. 1986); E.E. O. C. v. Southwestern Baptist Theological Seminary, 485 F. Supp. 255 (N.D. Tex. 1980); E.E.O.C. v. Mississippi College, 451 F. Supp. 564 (S.D. Miss. 1978); contra Dolter v. Wahlert High School, 483 F. Supp. 266 (N.D. Iowa 1980); McLeod v. Providence Christian School, 408 N.W.2d 146 (Mich. 1987); but see E.E.O.C. v. Pacific Press Publishing Association, 676 F.2d 1272 (9th Cir. 1982). 74. Protos v. Volkswagon of America, Inc., 797 F.2d 129 (3d Cir. 1986); Nottleson v. Smith Steel Workers, 643 F.2d 445 (7th Cir. 1981); E.E. O. C. v. Jefferson Smurfit Corp. ,724 F. Supp. 881 (M.D. Fla. 1989); Gavin v. Peoples Natural Gas Co., 464 F. Supp. 622 (W.D. Pa. 1979); 16 departmentalize between those employees who carry on the ministry and mission of the institution from other employees who perform routine tasks. Thus, while a religious institution may discriminate on the basis of religion in hiring and firing a school professor, it may not do the same to a secretary. Two entanglement triangles arise in the provision of child care. First, the state may purchase child care services from religiously affiliated organizations (75) and may consider the religious preference of the parents for placement, (76) but the agency cannot impose its religious doctrine upon a child. (77) Second, religious child care facilities exempted from licensure may or may not be deemed to fail the Lemon test.78 Church-run day care centers are ------------------- Michigan Department of Civil Rights v. General Motors, 317 N.W. 16 (Mich. 1982); American Motors Corp. v. Department of Industry, Labor, & Human Relations, 286 N.W.2d 847 (Wis. 1978). 75. Wilder v. Bernstein, 848 F.2d 1338 (2d Cir. 1988). 76. Id., cf. Dickens v. Ernesto, 281 N.E.2d 153 (N.Y. 1982) (religious affiliation requirements in adoption proceeding constitutional); Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979) (statute specifying religious needs of child upheld); Zucco v. Garrett, 501 N.E.2d 875 (Ill. 1986) (awarding custody based on religious practices is abuse of discretion). 77. Arneth v. Gross, 699 F. Supp. 450 (S.D.N.Y. 1988). 78. Forest Hills Early Learning Center v. Lukhard, 728 F.2d 230 (4th Cir. 1984); Forte v. Colder, 725 F. Supp. 488 (M.D. Fla. 1989); see The Corpus Christi Baptist Church, Inc. v. Texas Department of Human Resources 481 F. Supp. 1101 (S.D. Tex. 1979); Forest Hills Early Learning Center, Inc. v. Grace Baptist Church, 846 F.2d 260 (4th Cir. 1988); North Valley Baptist Church v. McMahon, 696 F. Supp 578 (E.D. Cal. 1988); Cohen v. City of Des Plaines, 742 F. Supp. 458 (N.D. Ill. 1990); State v. Corpus Christi People's Baptist Church, Inc., 683 S.W.2d 692 (Tex. 1984); State Department of Social Services v. Emmanuel Baptist Pre-School, 455 N.W.2d 1 (Mich. 1990); Pre-School Owner's Association v. Department of Children & Family Services, 518 N.E.2d 1018 (Ill. 1988); Arkansas Day Care Association, v. Clinton, 577 F. Supp 388 (E.D. Ark. 1983). cf. State v. McDonald, 787 P.2d 466 (Okla. 1989) (religious affiliated "boy's ranch" subject to state licensing requirements). 17 subject to zoning restrictions, (79) but a city may not exempt them from requirements imposed upon commercial operators. (80) Courts are divided over whether the state may (81) or may not (82) erect a cross as a war memorial. Where a state exercised eminent domain over a cemetery, a court prohibited the state from erecting crosses and a statue of Jesus, but allowed the state to provide and erect religious markers chosen by the descendants. (83) Crosses placed on government property have generally been prohibited, (84) but crosses and religious symbols on official seals may or may not be permissible. (85) The Ten Commandments have been removed from schools, (86) but permitted to remain on other public property. (87) A legislature may designate a room for prayer and -------------------- 79. First Assembly of God v. City of Alexandria, 739 F.2d 942 (4th Cir. 1984). 80. Cohen v. City of Des Plaines, 742 F. Supp. 458 (N.D. Ill. 1990); cf. Arkansas Day Care Association, 577 F. Supp. 388 (statute disparately treated religious facilities). 81. Eugene Sand & Gravel, Inc. v. Eugene, 276 Or. 1007, 558 P.2d 338 (1976). 82. Jewish War Veterans v. United States, 695 F. Supp. 3 (D.D.C. 1988). 83. Birdine v. Moreland, 579 F. Supp. 412 (N.D. Ga. 1983). 84. Mendelsohn v. City of St. Cloud, 719 F. Supp. 1065 (M.D. Fla. 1989); Hewitt v. Joyner, 705 F. Supp. 1443 (C.D. Cal. 1989); ACLU v. Rabun County Chamber of Commerce, Inc., 510 F. Supp. 886 (N.D. Ga. 1981); Fox v. City of Los Angeles, 587 P.2d 663 (Cal. 1978). 85. Salad in v. City of Milledgeville, 812 F.2d 687 (llth Cir. 1987); Friedman v. Board of City Commissioners, 781 F.2d 777 (lOth Cir. 1985); Fore master v. City of St. George, 882 F.2d 1485 (lOth Cir. 1989); Harris v. City of Zion, 927 F.2d 1401 (7th Cir. 1991); Johnson v. Board of County Commissioners, 528 F. Supp. 919 (D.N.M. 1981); Murray v. City of Austin, 744 F. Supp. 771 (W.D. Tex. 1990). 86. Ring v. Grand Forks Public School District, 483 F. Supp. 272 (D.N.D. 1980). 87. Anderson v. Salt Lake City Corp., 475 F.2d 29 (lOth Cir. 1972). 18 meditation, but religious decorations or use of the room may be prohibited. (88) An order of then-Governor Ronald Reagan giving state employees a three hour paid holiday on Good Friday violated the Establishment Clause, (89) but a school district was permitted to designate Good Friday a paid holiday in conjunction with a Union Contract. (90) As a result of our abandonment of the original understanding of First Amendment and the development of the Lemon test, religion has been put on the defensive by forcing it to assume a cloak of secularism. When there is some form of religious expression that we wish to keep, as Justice Scalia said, we either bury the Lemon test, or we interpret it to our own pleasing. For example, Justice William Brennen stated that the phrase "under God" in our Pledge of Allegiance is constitutional because it no longer has a religious purpose or meaning. (91) Under the Supreme Court's rationale, certain religious phrases, such as "In God We Trust, " would be constitutional because it is a secular form of religion. In other words, we have used the phrase so many times that it has lost its religious meaning. Under this bizarre analysis, at one time the phrase would probably have been unconstitutional, but because we have used it so much, it has become constitutional under the Lemon test. ------------------ 81. Van Zandt v. Thompson, 839 F.2d 1215 (7th Cir. 1988). 89. Mandel v. Hodges, 54 Cal. App. 3d 596 (1976). 90. California School Employees Association v. Sequoia Union High School District, 67 Cal.App.3d 157 (1977); cf. Cammack v. Waihee, 673 F. Supp. 1524 (D. Haw. 1987) (state may declare Good Friday a legal holiday). 91. Schempp, 374 U.S. at 304. 19 THE DEMISE OF THE FREE EXERCISE CLAUSE While our Establishment Clause jurisprudence has become schizophrenic, the Free Exercise Clause of the First Amendment has taken a back seat to other constitutional protections. For example, in 1990 the Supreme Court in Employment Division v. Smith, (92) ruled that we no longer have the "luxury" in this country to tolerate religious liberty. The Supreme Court ruled that any neutral and generally applicable law which impacts religion will nevertheless be upheld as constitutional. (93) That ruling overturned decades of Supreme Court interpretations that granted special protection to the free exercise of religion. As a result of the Smith case, religious liberty has been relegated to second class protection. Now the religious liberty of private citizens is no greater than the religious liberty granted to prisoners.94 According to Chief Judge Posner of the Seventh Circuit Court of Appeals, "the principle derived from the free-exercise clause of the First Amendment [is] that government must accommodate its laws of ----------------------- 92. 494 U.S. 872 (1990). 93 Prior to the Supreme Court's decision in Employment Division v. Smith, 494 U.S. 872 (1990), thirty years of Supreme Court jurisprudence had established that a government may not substantially burden the free exercise of religion absent a demonstration that such burden was the least restrictive means of furthering a compelling government interest. See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972) (state's interest in universal education was not sufficiently compelling to outweigh religious tradition of Amish forbidding formal education past the eighth grade); Sherbert v. Verner, 374 U.S. 398 (1963) (compelling state interest did not justify denial of unemployment benefits to Seventh-day Adventist who established working on Saturday would require her to break her Sabbath). Noting that Smith "dramatically weakened the Constitutional protection for freedom of religion," S.Rep. No. 111, 103rd Cong., 1st Sess. 3 (1993), Congress passed RFRA "to restore the compelling state interest test as set forth in Sherbert v. Verner . . . and Wisconsin v. Yoder . . . and to guarantee its application in all cases where free exercise of religion is substantially burdened." 42 U.S.C. 2000bb(b). 94. In a prisoner rights case, the Eighth Circuit Court of Appeals stated that "Smith does not alter the rights of prisoners; it simply brings the free exercise rights of private citizens closer to those of prisoners." Salaam v. Lockhart, 905 F.2d 1168, 1171 (8th Cir. 1990). 20 general applicability to the special needs of the religious minorities. [T]hat principle is moribund after Employment Division v. Smith. (95) In another case the Seventh Circuit again recognized that "Smith cut back, possibly to minute dimensions, the doctrine that requires government to accommodate, at some cost, minority religious preferences." (96) Indeed, the Smith decision represents "a considerable shift in the Court's direction in free exercise jurisprudence." (97) Prior to the Smith decision, there was a presumption that religious organizations were not intended to be regulated by Congress unless they were specifically included in the statutory language, (98) but after Smith, there is a presumption that religious groups are not to receive any special treatment unless specifically stated by the legislature. (99) Since Smith, Native American Indians have been prohibited by some courts from using peyote during their worship services. (100) Landmark laws which prohibit a church from expanding its ministry have nevertheless been upheld as constitutional because they are neutral and generally applicable regulations. (101) As a result of the Smith decision, neutral zoning laws of general ------------------- 95. Miller v. Civil City of South Bend, 904 F.2d 1081, 1102-03 (7th Cir. 1990) (en bane) (citations omitted). 96. Hunafa v. Murphy, 907 F.2d 46, 48 (7th Cir. 1990). 97. United States v. Board of Education for the School District of Philadelphia, 911 F.2d 882, 888 n.3 (3rd Cir. 1990). 98. N.L.R.B. v. Catholic Bishop of Chicago, 440 U.S. 490 (1979). 99. Inter community Center for Justice and Peace v. INS, 910 F.2d 42 (2d Cir. 1990). 100. Peyote Way Church of God v. Thornburgh, 922 F.2d 1210 (5th Cir. 1991). 101. St. Bartholomew's Church v. City of New York, 914 F.2d 348 (2d Cir. 1990). It is obvious that the Landmarks Law has drastically restricted the Church's ability to raise revenues to carry out its various charitable and ministerial programs. In this particular case, the 21 applicability have restricted the ability of churches to either locate their ministry, (102) or to carry on their Biblical mandate and mission to comfort the homeless or feed the hungry. (103) To counteract the Supreme Court's abandonment of religious liberty, Congress passed the Religious Freedom Restoration Act in 1993. (104) Unfortunately, a federal court in Texas has recently ruled the act unconstitutional, ruling that Congress did not have the authority to overrule the decision of the United States Supreme Court. (105) If the Smith decision were in existence at the time of Prohibition, the Roman Catholic Church would have been prohibited from practicing communion. In other words, the church would be prohibited from taking wine during the communion service because the church would have faced a neutral law of general applicability that forbade the sale and consumption of alcoholic beverages. After Smith, Roman Catholic teaching hospitals have been forced to choose between performing abortions contrary to their sincerely held religious beliefs, or forfeiting their teaching hospital status. During the three year reign of terror from 1990 to 1993, religious freedom was significantly damaged. The only way to maintain a religious ------------------------- revenues are very large because the Community House is on land that would be extremely valuable if put to commercial uses. Nevertheless, we understand Supreme Court decisions to understand that neutral regulations that diminish the income of a religious organization do not implicate the Free Exercise Clause. Id. at 355. 102. Cornerstone Bible Church v. City of Hastings, 948 F.2d 464 (8th Cir. 1990). 103. First Assembly of God v. Collier County, 20 F.3d 419 (llth Cir. 1993), opinion modified on denial of reh'g, 27 F.3d 526 (llth Cir. 1994), cert. denied, 115 S. Ct. 730 (1995). 104. 42 U.S.C. SS 2000bb. 105 Flores v. City of Boerne, 877 F. Supp. 355 (W.D. Tex. 1995). But see Belgard v. State of Hawaii, 883 F. Supp. 510 (D. Haw. 1995) (upholding the constitutionality of RFRA). 22 freedom claim was to link it up to some other form of constitutional protection such as Free Speech or Equal Protection. If that could be done, the religious adherent would have the same protections afforded to the First Amendment Free Speech or Equal Protection Clauses. Standing alone, the Free Exercise Clause is no longer powerful enough to protect the religious liberty of our citizens. Today, religious freedom hangs in a very delicate balance. If the Supreme Court agrees with the federal court in Texas that ruled unconstitutional the Religious Freedom Restoration Act, then God help this country. The Supreme Court has already indicated that we no longer have the luxury of tolerating the free exercise of religion. The combination of the Supreme Court's convoluted Lemon test mandating a secular society with the loss of our free exercise protections, is the reason we need a religious equality amendment. Below is a sampling of cases that we at Liberty Counsel have encountered in the religious morass. SAMPLE CASES The Bible A fourth-grade student had his Bible confiscated when he brought it to public school. The week prior to this incident he was awarded Student of the Week, and the week of this incident he was awarded the higher honor of Very Special Student. Before the school bell rang, signaling the beginning of another school day, Joshua was silently reading his Bible when his teacher approached him, confiscated the Bible, and stated in front of the entire class, "This is a public school, not a Bible school." The teacher explained this was due to the separation of church and state. On a subsequent day the student brought his Bible back to school. The Bible was closed sitting by his other books when the teacher again approached him, pointed to the 23 Bible, and summoned the principal, after stating, "We need to talk to the principal about that thing." The student was taken to the principal's office where he was interrogated for more than an hour. He was asked questions like "Why do you read the Bible?" and "Where do you go to church?" He was then forced to sit in the corner of a room, detained the entire day for the sole "crime" of bringing his Bible to school. When Joshua's father subsequently spoke to the principal, she stated that as soon as students step on the school bus, they are under the school's jurisdiction and they cannot bring their Bible, nor can they share their faith during non-class time because to do so might offend another student. The principal acknowledged that students can talk about politics or read secular books, but religion was a different matter. In another case a his panic student by the name of Jesus was told that he could not bring his pictorial Bible to free reading time. With only a few weeks left in the school year, the teacher in charge of the free reading class told the students to bring books from home that they wanted to read during free reading time. Jesus brought his pictorial Bible and was reading it to himself when the teacher approached him, and stated he could not bring the Bible to school because of the separation of church and state. He was forced to put the Bible under his desk, and since he did not have anything else to read, was forced to lay his head down on top of his desk for the remainder of the class. Maria, his mother, had migrated from Cuba to the United States twenty years previously. She stated that she came here for the purpose of freedom and was astounded at what she encountered. For brevity sake, I have mentioned only these two cases involving students bringing Bibles to school. For the record, we have encountered many of these instances 24 throughout the country. Posters Peggy has ten children in public schools in Wisconsin. Families were asked to participate in celebration of the twenty-fifth anniversary of the school by making posters on the theme of "Honor the past, embrace the present, prepare for the future. " The family's poster has four sections: faith, family, country, and knowledge. (See Exhibit A) In the faith section, there was a picture of a person wearing a t-shirt with the word "Jesus. " The family included this picture to highlight the importance of their faith and the faith in the community. The poster was originally displayed, but the principal removed it, while the others remained on display. The poster was removed solely because one of the images was religious. The school had the impression that it must censor out this poster because the display was religious. Show and Tell A sixth-grade class was assigned the task of doing a book report and reading their reports in front of the entire class. A sixth-grader by the name of Lisa wanted to do her book report on the book of Genesis. None of the other students were required to give disclaimers distancing the class from the book being reviewed, but Lisa was told she has to state a disclaimer to the effect that while she realized everyone in the class was not Christian, these were her own personal views. Lisa gave her book review, but did not state such a disclaimer. Consequently, she was reprimanded by the teacher. No other student was required to public ally give a disclaimer prior to their book reports. * * * * An eleventh-grader was told that he could not distribute religious literature on 25 school grounds, and was forced to turn his religious t-shirt inside out. Other students were permitted to wear t-shirts with various secular writing, but Ernesto was suspended for his action. Literature Distribution On October 30, a fifth-grade student by the name of Amber brought literature to class in a backpack. The literature consisted of an invitation to an after school program which was an alternative to a Halloween party presented by a church, and a Jews for Jesus gospel tract. She approached her teacher and asked if she could hand out this literature to her fellow classmates during non instructional time. The teacher summoned the principal, and after the principal came to the classroom and noticed that the material was religious, he took it back to his office. At the end of the school day, Amber asked her teacher if she could have her literature back because she was going to an after school program and wanted to pass out the literature to her friends. The teacher directed her to talk with the principal. When she approached the principal, he told Amber, "I will not have religious literature on my campus." The principal had actually thrown the literature in the garbage and would not return it to Amber. Amber was devastated by this action and began crying. This case eventuated in a lawsuit because students were permitted to distribute secular literature but not religious literature. The school lost this lawsuit when the federal court ruled the principal's actions and the school board policy were both unconstitutional, but recent reports indicate that despite the federal court ruling, the school has again taken action against students to prohibit them from bringing religious literature on campus. * * * * An eighth-grade student by the name of Jennifer wanted to distribute the religious 26 newspaper, Issues and Answers, to her fellow classmates during non instructional time. When she approached the assistant principal and asked for permission to do so, the assistant principal inspected the newspaper and stated the school prohibited students from bringing Bibles, religious literature, or literature that quotes the Bible because of the separation of church and state. Other students were allowed to distribute secular literature. Use of Public Facilities Jim, who operates a ministry known as Victory Outreach Ministry, asked for and received permission to conduct seminars in a public housing facility. These seminars were meant to provide needed training and assistance to those in public housing. Other secular organizations were permitted to conduct seminars within the facilities. During one of the seminars, one of the directors of the facility walked by the classroom and noticed that Jim had a Bible on the front desk as he was teaching the class. This class was free and voluntary to any public resident who wanted to attend. Jim was interrupted during the presentation and asked to see the director after the class finished. He was then told that he would not be able to continue the presentation because the facility would not tolerate this "Jesus stuff" on their premises. Additionally, residents of the facility were allowed to use the common rooms for all sorts of secular meetings. However, one of the residents asked to use the same common room for a Bible study with other residents, and this request was refused. Graduation Prayer In Duval County, Florida, the school adopted a memorandum dealing with graduation messages. The memorandum stated that the graduating senior class could have the opportunity for two minutes to present an opening and/or closing message at the graduation 27 ceremony. If they chose to present a message, the senior class would select a student volunteer from the senior class. No outside person could present the message. The school indicated that it would not censor the content of the message, nor would it require a pre-review of the message. Of the seventeen schools, eleven of the graduating senior classes chose to have a student present a message which could be construed as religious. The remaining schools chose either to not have a message, or the message was secular in nature. Notwithstanding, the American Civil Liberties Union brought suit against the school asking the federal court to censor out only the religious aspects of the senior messages. * * * * In another case, a community college student was elected by her class peers to say a prayer at their nursing school graduation service. The student accepted the invitation from her fellow classmates and her name was printed in the graduation brochure. However, the nursing director told the student that she could not say a prayer, and insisted she say something secular, giving her a poem to recite. When the student refused to read the secular poem instead of saying her prayer, the director revoked the invitation, the evening before graduation. The graduation ceremony proceeded with the student's name listed in the program, but the student was prohibited from being on the platform. This graduate was an exemplary student and was well-liked by her classmates. Her classmates realized that faith played a major role in her life, and therefore honored her by asking her to say a prayer. Instead of graduation being a joyous time, the student was devastated and her classmates were disappointed. Bible Clubs Notwithstanding the Equal Access Act, student-initiated Bible clubs on public 28 school campuses are still frequent targets of discrimination. For example, schools have allowed secular clubs to meet during the day but require the religious clubs to meet only after school hours, which results in low attendance at these clubs because of the inconvenient meeting times. * * * * Other schools have allowed students to have secular clubs pictured in the annual while barring the religious clubs. * * * * Alternatively, schools have allowed secular clubs access to bulletin boards while still censoring access to board by the religious or pro-life clubs. * * * * A new twist has occurred in the state of New York where the school has adopted a nondiscrimination policy similar to what is currently found in employment discrimination. This particular school forbade a religious club from requiring that its officers be Christian. The nondiscrimination policy states that the students clubs cannot discriminate on the basis of race, national origin, sex, religion, creed, or disability. That means that for a Christian Bible Club to operate, it must agree not to require that the officers of the club be Christian. In other words, a Christian club would have to agree that its president could be an Atheist. No similar requirement is being placed upon the secular clubs. The requirement of the Christian clubs is as ludicrous as requiring a black student club to have a white supremacist for its president. Nevertheless, the federal district court ruled that such a nondiscrimination policy applied against a religious student club was permissible, notwithstanding the fact that it would require the 29 Christian club to accept an Atheist as its president. (106) Religious Symbols A public park in Columbus, Ohio, permits all forms of secular expression. The city banned the private display of the cross during the Christmas season but allowed the public display of a Jewish Menorah during the same season, reasoning that the cross was a religious symbol but the Menorah was a secular symbol. In New Port Ritchie, Florida, the city displayed both a nativity scene and a Jewish Menorah, but a Jewish Rabbi objected to the display of the nativity of scene. The nativity scene was taken down, but after some controversy, was placed back up by a 4-3 vote. A school board office had displayed a Christmas tree. Underneath it one employee placed a nativity scene, but a school official required the removal of the nativity scene, stating that it violated the separation of church and state. The same schizophrenia occurred within the postal department during Christmas of 1994. CONCLUSION I could continue to go on ad infinitum. Suffice it to say that religion is a target of frequent discrimination. We are all familiar with the religious harassment guidelines proposed by the EEOC. It appears that the intent of these guidelines, though thankfully defeated by ------------------ 100. Hsu v. Roslyn Union Free School District No. 3, 876 F. Supp. 445 (E.D.N.Y. 1995). This case is presently on appeal to the Second Circuit Court of Appeals in New York. 30 Congress, is now being implemented by the Internal Revenue Service. (l07) It is time for an amendment to the Constitution to protect religious equality. In view of the loss of free exercise rights, and the hostile attitude of the courts toward religion, when applying the Lemon test, it is time that people of faith have protection against discrimination. Such protection should not be a form of special rights, but equal rights. Nor should the protection permit teacher-led or state-mandated prayer, but it should permit student initiated expression. Religious expression should be protected during times and in places where secular expression is also permitted. It is ironic that we have come 180 degrees from the former Soviet Union. Today, the former communist government invites missionaries from America to come to their public schools to teach Bible in the classroom. Here, we have to go to federal court to maintain the right to carry a Bible to school. When discrimination against religious expression and religious people has reached such an epidemic proportion, it is time that something must be done to protect our God-given religious liberties. Thank you, Mr. Chairman. ------------------------ 107. See testimony by Ernest J. Is took, Jr. before the House Judiciary Committee on June 8, 1995. 31


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