Gathering storms - Church And State - Column

Humanist, May-June, 2003 by Edd Doerr

Writing a column in a bimonthly magazine means that old news is often discussed, but even this needs to be put into perspective.

In February 2003 there were three major court rulings on church-state and religious liberty issues. In the first, almost entirely ignored by the media, the Supreme Court declined to review the 2002 Sixth Circuit ruling in Steele v. Industrial Development Board. The case involved a challenge, supported by Americans for Religious Liberty, of the use of industrial development bonds to aid the pervasively sectarian David Lipscomb University in Nashville, Tennessee. In 2000 a federal district court in Tennessee ruled that the bond plan violated the First Amendment's establishment clause. However, that ruling was overturned, two-to-one, by the Sixth Circuit in 2002, thanks to precedents set by the same five Supreme Court justices who made George W. Bush president in 2000.

Nashville attorney Joseph H. Johnston, who handled this case for twelve years, warns that the outcome of Steele v. Industrial Development Board is but another step "in the progressive demise of the Establishment Clause's protection of religious freedom in America." Johnston added, "Americans for Religious Liberty and similar groups should continue to raise Establishment clause challenges--win or lose. President Bush's faith-based charities programs are the next step toward eliminating the wall of separation between church and state in America. History needs to reflect that such changes were not accepted without a fight."

In other words, the fight is very far from over; the First Amendment isn't dead yet. Most state constitutions maintain walls of separation between religion and government. And many victories in Congress and state legislatures have been scored while public opinion continues to support separation, and voters have fairly consistently backed separation in state referenda.

In the second ruling, the Supreme Court reversed by eight to one a lower federal court ruling in National Organization for Women v. Scheidler. The lower court had held that the federal Racketeer Influenced and Corrupt Organizations (RICO) Act didn't apply to hooligans attacking or threatening clinics that provide reproductive health and abortion services. The Court held that while clinics and women were deprived of something of value, those attacking the clinics didn't obtain anything and thus weren't guilty of legal extortion. The ruling encourages the antichoice movement, though this movement is still inhibited by the federal Freedom of Access to Clinic Entrances (FACE) Act.

The third ruling was handed down by the Ninth U.S. Circuit Court of Appeals, which upheld Michael Newdow's challenge to the phrase "under God" in the Pledge of Allegiance, added by Congress in 1954. The Elk Grove Unified School District in California announced that it would appeal the ruling to the Supreme Court.

While I think the Ninth Circuit ruling is correct, the Supreme Court will probably reverse it. If not, all hell will break loose in Congress as efforts will be launched to amend the First Amendment. Senator Mary Landrieu (Democrat, Louisiana) has already proposed a bare bones amendment that would declare that "under God" in the Pledge and "In God We Trust" on money are exempt from Establishment Clause scrutiny. And Representative Ernest Istook (Republican, Oklahoma) is set to introduce his Pledge and Prayer Amendment. Istook was responsible for bringing a similar amendment to a House vote in 1998, where it fell fifteen percent short of the two-thirds vote needed for passage. The new Istook amendment would declare "the people retain the right to pray and to recognize their religious beliefs, heritage, and traditions on public property, including schools."

It will be recalled that Istook's earlier amendment didn't leave Representative Henry Hyde's (Republican, Illinois) Judiciary Committee until it had been modified to include weasely language designed to allow tax aid to sectarian schools through vouchers or other means. It is safe to predict that if the Supreme Court doesn't reverse the Ninth Circuit on "under God" in the Pledge, there will be a massive fight in Congress over proposed amendments ranging from Landrieu's rather minimal one to a Christmas tree amendment decorated with school prayer, vouchers, aid to faith-based Charities, creationism, and antiabortion language. The United States needs that fight like an outbreak of biblical plagues.

All this reminds us of the importance of coalitions of all people across the religious and demographic spectra that cherish religious freedom and the U.S. constitutional heritage of separation of church and state.

Edd Doerr is president of Americans for Religious Liberty and immediate past president of the American Humanist Association.