Introduction
THE BATTLE IS JOINED
(Historical note: This essay originally appeared in Vol 33, no. 3 of the American Atheist Magazine. The author, Madalyn Murray O'Hair, was a plaintiff in the famous U.S. Supreme Court case Murray v. Curlett which, in 1963, declared as unconstitutional the practice of mandatory prayer and bible recitation in public schools. "The Battle Is Joined" presents the struggle for First Amendment rights from a unique, that is, Atheist perspective. It speaks to the millions of Americans who invoke the First Amendment not so much on behalf of "religious liberty", but for their inherent right to freedom from religious coercion.)
On a practical basis, what does the First Amendment mean? Case by case U.S. courts have forged an interpretation of the Constitution to guide state practices in situations from textbook purchases to school prayer.
Born on April 13,1919, Dr. O'Hair initiated the United States Supreme Court case Murray v. Curlett, which removed reverential Bible reading and prayer recitation from the public schools of our nation in June 1963. She founded American Atheists in the same year. Together with GORA she founded the United World Atheists, sponsor of the triennial World Atheist Meet. A champion of freedom of speech, freedom of assemblage, freedom of conscience, and the right to be free from religion, she is known nationally and internationally as an Atheist spokesperson.![[top]](../pix/arrow.gif)
The Battle Is Joined
by Madalyn O'Hair
During the last quarter century there have been more Supreme Court and federal legal cases, more state lawsuits, and more legislation passed on both the federal and the state level -- all regarding religion and state/church separation -- than there had been in the first 175 years of the nation. The litigation beginning in the early 1960s has picked up in both volume and viciousness until during the last five years the major decisions issued by the Supreme Court have involved primarily religious or state/church separation issues. There is a certain anomaly here, for consistently government has stood side by side with religion against an array of individuals, who have been bravely storming the courts, attempting to coerce the government to come into compliance with or to enforce the provisions of the First Amendment to the Constitution of the United States.
Think of that: citizens suing the government to force it into conformity with the Constitution.
The battle has been inherently uneven. Government, in defense of religion, has necessarily had unlimited money, the best legal services which could be bought, the media, and its subservient courts. As many personnel as needed, in whatever layer of government, could be brought to the task. Telephone service has been free. All printing has been free. Filing fees and court costs have been waived. Politicians and government officials have endorsed the religious positions, attempting to sway the populace to an acceptance of the constitutional breach. Tax money has paid for it all. The most sophisticated theoretics have been brought to bear to rationalize fallacious arguments.
Actually, in these twenty-five years a finely tuned war has proceeded, with government doing whatever was necessary and more to delay, obfuscate, and pile up as many costs for the challenging litigants as possible. Every stumbling block has been laid in their paths. A first line of defense, apparently, has been to weary the citizen challengers with delays and money costs so that they abandon their efforts. Indeed, that has often happened: a lawsuit has stopped in a state court of appeals or at the federal appellate level for lack of funds, after spending years in court. Or it has failed from frustration in the attempt to have the issue joined.
Additionally, the courts -- particularly the federal courts -- have promulgated rules which immediately knock out the would-be litigants: One cannot sue the sovereign. Mere taxpayer status does not give the right to sue. One must show personal injury. One must first exhaust all administrative and other remedies before coming to court.
In order to pursue the cases, lawyers with a particular specialty (constitutional law, particularly with emphasis on the religious clauses of the First Amendment) must be found, and there are few if any such attorneys. If in 175 years there were one hundred cases, and in the last twenty-five years even 250 such cases, that is a minuscule percentage of the legal (albeit significantly important) cases of the nation. There simply are really no "specialists" in this area of law.
For several generations Leo Pfeffer, a lawyer for the American Jewish Congress, was held out to be an expert on this genre of litigation. He took an old state/church separation study, Church and State in the United States, three volumes, by Anson Phelps Stokes,[1] put out by Harper & Brothers Publishing, and edited it to one volume issued by Harper in 1950 and later by Greenwood Press, Inc. in 1964 under the authorship of Anson Stokes and Leo Pfeffer. Later editions carried only Pfeffer's name. He reedited, updated, reissued, and rewrote the book again, using only his own name, this time under the title God, Caesar and the Constitution: The Court as Referee of Church-State Confrontation, published by Beacon Press. But he was a religious man of a particular minority sect (Judaism), attempting to gain respectability and acceptance for Judaism in the United States. The American Jewish Congress is a powerful arm of Judaism in our nation, and Pfeffer came to be accepted as the authority on state/church separation. He was, in fact, often one of the lawyers making an appearance on certain of the Supreme Court cases. The Supreme Court for decades depended on the work originally written by Stokes and cited the book in its cases. In later years, the Court also quoted Pfeffer's revisions. All of this makes for difficulties in such litigation. Imagine if there was only one book ever written on criminal law or on real estate law. Additionally no law schools have any courses on state/ church separation alone -- it is usually handled in a cursory way in a three-hour course on "Constitutional Law." Any lawyer approaching the subject is really on his own. Additionally, these cases are time-consuming as well as time intensive during certain periods of litigation, and victory has not historically brought a money award either to the challenger or the attorney who litigates for him. On the other hand, who among the legal profession really wants to fight for a principle instead of monetary damages? Who indeed? Every attorney must minimally pay rent, utilities, telephone, and secretarial help for his office. Often he may still be paying for his college/university tuition. He cannot devote hours of time free when he needs rather to sell his services to paying clients in order to maintain himself and his family.
Help For Separation Advocates
Individual challengers never have the monetary wherewithal to carry the burden of such suits and most frequently attempt to rally support or supporters, or seek help from organizations such as the American Civil Liberties Union. The ACLU is not a wealthy organization. It, too, must seek to raise funding for the lawsuits which it does undertake, the highest percentage of which have to do with criminal cases. If the would-be litigants are themselves religious and see a state/church violation in respect to a religion other than their own, they have sought aid from Americans United. This basically Baptist and Seventh-day Adventist organization is not heavily funded either, although it apparently has more money than ACLU, being, as it is, supported by religious institutions. It does, however, take on cases challenging governmental favoritism to the Roman Catholic church. When a case arises which would challenge religions generally, Americans United quickly joins ranks with other religious entities, including the Roman Catholic church, or that of the Rev. Sun Myung Moon. Additionally it has appeared in opposition to American Atheists in cases filed by that organization, in such instances therefore supporting government and religion.
Currently, if the would-be litigants are Atheists, they now most often seek aid from American Atheists. In the last year alone scores of such persons have contacted the American Atheist General Headquarters seeking legal aid. This organization is not sufficiently subsidized to be able to handle the litigation of all comers. Most of the proposed lawsuits have much merit, and remedies for the reported governmental violations of the nation's Constitution should have been sought. Over the years, in about ten instances, American Atheists has tried to assist such litigants. Such efforts have come to grief since American Atheists' attorney tried to work long arm out of the National Office in Texas. One cannot have a client in Miami, Florida, and have the close rapport necessary if one's office is in Austin, Texas.
It follows from all of this that to embark upon such challenges ordinary citizens must be seized with folly as well as righteous indignation. Basically, it is a formidable, if not a "no-win," task to undertake to fight government. And yet we persist. Those citizens who see that individual and civil rights, won over the course of history with so much adversity, are either eroded or ignored, out of a sense of injustice cannot tolerate the situation and turn to fight it.
The particular litigants are usually never heard from again. They become lost in history. Although the name of the case in which they were involved may ring down the corridors of time for a while (such as the now famous case name of Roe v. Wade),[2] the person (Norma McCorvey) or the attorney who finally handled the case (Sarah Weddington) becomes basically unknown. The type of legal fight which culminates in a change in the laws of the land is usually not an exercise that can be repeated again by the individual when another state/church separation violation appears.
In all these cases monetary cases are great. In a case which will be discussed later in this article, that of Lee v. Weisman,[3] the cost of taking the case from the Third U.S. Circuit Court of Appeals to the Supreme Court is estimated at $50,000. This is after the case has already been in litigation for over three years.
The concerned individuals are usually not assisted in any way by any of the heroes, authors, spokesmen, columnists, politicians, or "personalities" of the culture of the day. The "respectable" persons of all classes are anxious to stay more than an arm's length away. Although there is abroad in the land that certain persons in the public eye are indeed Atheists, they (im)politely disassociate themselves from the state/church separation issue being confronted.
State Use of Religion
Since the time of ancient Egypt, the rulers of all nations have recognized the importance of religion as a bulwark for social order. The prevailing religion in any state, in fact, became a test of political orthodoxy. The leaders of those nations were to all intents and purposes practical if not theoretical Atheists. But they supported the religion of their nation and day. Informed interest in religion itself has always been remote from the thinking of the educated and upper classes, which watched the religious fervor on the part of the masses with detached amusement. That situation appertains today. Unfortunately they watch the individual attempting to correct a wrong with some apprehension, since the activity of that individual could well force a change in the culture.
Who in the hell really cared for Rosie Parks or "Jane Roe"? Even when the cultural heroes are finally uncovered in a shocking way, they refuse to assist their fellows bound up in the fight. What did Rock Hudson or Liberace, for example, ever do for the gays?
There is probably not one dean of one law school in the nation who does not know that the state/church separation cases recently before the Supreme Court should have been quickly settled in favor of the separation. None -- not a one -- has made a public statement to that effect. Most of the judges in the federal courts also know that decisions now given cater to the idiocy of religion in return for religion's aid in keeping the culture stagnant and themselves in a position of power and prestige. Governors know this, mayors, legislators, university professors --and the silence coming from them is deafening.
Meanwhile, every one case which gets to a legal review is accompanied by one thousand which fail to get that far. "Exhausting administrative remedies" can also exhaust the person attempting to correct the unconstitutional situation.
The Supreme Court's Seventy-Two-Year Oversight
In true fact, the Supreme Court of the United States did not know how to deal with state/church separation cases until after 1940. Prior to that time, the Court had held that the First Amendment to the Constitution of the United States was not applicable to the states. Each state was, therefore, the supreme authority on religious matters within its boundaries, to be acted upon according to the state constitutions. The case that changed it all was Cantwell v. Connecticut.[4] But during that period of time from 1789 to 1940, when the state courts had sole power over the subject of religion, which was left exclusively to state governments, the number of such cases was relatively small. The Supreme Court heard and decided only eighteen in the 150-year period. In the next twenty-four years it handled thirty cases -- and then the explosion of cases began. There was simply never any hope that a number of attorneys could become proficient in this area of law which touched 99.9 percent of them not at all.
Cantwell was the third Jehovah's Witnesses case to reach the Supreme Court as that church fought for the right to proselytize on the streets of the nation. The first two were brought to the Court under the freedom of speech and freedom of press guarantees of the First Amendment. Cantwell was pursued under the Free Exercise Clause of the First Amendment to the Constitution. Jesse Cantwell, the subject of the case, had stopped two pedestrians on the streets of New Haven, Connecticut, and with their permission played a record on a portable phonograph which he carried. The message was an attack on the Roman Catholic church; he was arrested and convicted of a breach of the peace. The Supreme Court reversed his conviction as an unconstitutional violation of his right to the free exercise of his religion. But in the decision the Court held:
The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws.
The Fourteenth Amendment had, of course, been ratified on July 9,18i8, but this was the first ruling of the Supreme Court which made the amendments to the Constitution (as well as the Constitution itself) binding upon the several states under the Fourteenth Amendment -- an oversight of a mere seventytwo years.
The Right Not To Speak
Jehovah's Witnesses continued its legal campaign through the 1950s. One of the most famous cases was West Virginia State Board of Education v. Barnette.[5] This held that the guarantee of freedom of speech forbade state or public school authorities from compelling children to salute the flag or pledge allegiance to it under penalty of expulsion from the public school. The guarantee of freedom of speech, the Court held, encompassed freedom not to speak and not to make any other symbolic expression, such as saluting. When confronted with the argument that law should be overturned by legislative action rather than by the Court the justices responded with the now famous:
One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
As the Supreme Court accepted state/church separation cases for review, it slowly began to make rules for the game. The legal system of the United States has developed around adversarial case law. In such a system prior (precedent) decisions are heavily relied upon and the doctrine of "leading case" law is accepted: that is, what the highest court of the state, circuit, or land says, stands until altered by a higher or the highest court. On federal issues, the Supreme Court of the United States has the last word and sets the ultimate precedents and case law rules. On state issues, the court of last resort in the state (the superior court, supreme court, or court of appeals) has the last word.
Benefiting The Child, Not The Church
After the Jehovah's Witnesses cases there began a series of lawsuits having to do with the public and the private parochial (read "religious" -- usually Roman Catholic) schools.
Justice Rutledge[6] wrote in a 1947 case:[7]
Two great drives are constantly in motion to abridge, in the name of education, the complete division of religion and civil authority which our forefathers made. One is to introduce religious education and observances into the public schools. The other, to obtain public funds for the aid and support of various private religious schools.... In my opinion both avenues were closed by the Constitution.
And among the first which finally came to the Supreme Court of the United States were cases of these kinds. Our culture and government being sympathetic to religion, accommodations for religion were fostered. The issue of local authorities providing free public transportation for children attending religious schools was handled in such a way as to be supportive of religion. The Court held that state legislation passed to aid religious schools fell into the category of "public welfare legislation" which was simply being extended by the state "to all its citizens without regard to their religious belief."
Out of the Everson case came, then, the "child benefit" theory. Transportation benefited the child, just as did police protection at crossings, fire protection, connections for sewage disposal, public highways, and sidewalks.
Next up, state "loans" of textbooks to parochial (read Roman Catholic) schools were sustained on the "child benefit" theory.[8] The Court held:
Books are furnished at the request of the pupil and ownership remains, at least technically, in the State. Thus no funds or books are furnished to parochial schools, and the financial benefit is to parents and children, not to schools.
Only the fools of the nation accepted such logic, but nonetheless it became the law of the land and religious schools were provided with bus transportation, school lunches, public health services, and textbooks, since they were supplied in common to all students
The Fashioning of The "Lemon Test"
Because of the criticism engendered by such decisions, the Supreme Court was forced to fashion some more sophisticated guidelines to more adequately fool critics of the school cases. A working set of standards was finally articulated in the "Lemon" test[9] in 1971. Certain elements of the test were developed in other cases, to be reviewed below, but they were brought together specifically in Lemon. Involved in that case were two state statutes. One authorized the "purchase" of secular educational services by the government from "nonpublic" (read Roman Catholic) elementary and secondary schools. Actually this was a form of reimbursement for the cost to these religious schools of teaching mathematics, modern foreign languages, and physical sciences in the religious schools. The second authorized salary supplements to religious-school teachers who taught courses similar to those taught in public schools, used textbooks approved for use in public schools, and agreed not to teach any classes in religion. The schools which benefited from these two state statutes were religious, under the control of the Roman Catholic church hierarchy, and the primary purpose of the Roman Catholic schools was propagation of the church's faith.
The Supreme Court held that the state supervision necessary to ensure that the secular purpose and the secular effect of the statutes would be fulfilled would occasion too much of an involvement between state religious authorities and the religious affairs of the institutions aided.
The Lemon test was then given:
Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute [at issue] must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster "an excessive government entanglement with religion."
In the third prong, there were two aspects. First a state statute (or program) might involve the state impermissibly in monitoring and overseeing religious affairs, or second, there might be "divisive political potential" in the state statute (or program) which could lead to a threat to the normal political process.[10]
However, on the same day the same Court sustained a federal program which provided construction grants to "church-related" colleges and universities, holding that the buildings on such campuses were "nonideological in character."[11]
At the same time, Roman Catholic authorities were attempting to find theoretics under which its schools could be funded by the state. Three avenues were tested in diverse states of the Union -- tuition grants, a voucher system, and tax credits -- and one or the other was adopted in certain states.
From School Doors To Church Doors
But more than money has been involved. Religion has always desired to intrude itself into the public school system. The more modern version first tried was "released time." These programs established a period during which pupils in public schools were to be allowed, "upon parental request," to receive religious instruction. The first case dealt with religious classes conducted during regular school hours in the public school building by outside teachers furnished by a religious group (usually a council representing various faiths).[12] But here, in the dissent, was reared the ugly head of "religious accommodation." Justice Reed [13] the lone dissenter held that the released-time program was merely one of the close state-church associations which are "traditional" in United States history and culture.
Four years later, another released-time case came before the Supreme Court. Here the school released the pupils during school hours so that they might leave the school building and go to religious centers for instruction or devotional exercises.[14] The Court sustained the program. It was unfortunately in this case that Justice Douglas wrote the decision which has come to haunt all Atheist attmpts to right the wrong of government support of religion:
We are a religious people whose institutions presuppose a Supreme Being.... When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian [i.e., religious] needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe.
School Prayer
Next up was governmental encouragement of religion in public schools -- specifically prayers and Bible reading. In New York, the governing state school board had written a twenty-two-word prayer and caused it to be read aloud by students in the presence of a teacher at the beginning of each school day. This was the so-called "Regents' Prayer":
Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.
This the Supreme Court found to be unconstitutional,[15] noting that
Neither the fact that the prayer may be nondenominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause [of the First Amendment of the Constitution of the United States]. The Establishment Clause ... does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not.
The following year two cases came before the Supreme Court, one from Pennsylvania (Abington School District v. Schempp), one from Maryland (Murray v. Curlett).[16] Pennsylvania required the selection and reading at the opening of the school day of verses from the Holy Bible. Maryland required the same plus the unison recitation of the Lord's Prayer. Both exercises were held to be unconstitutional by the Supreme Court.
Next, of course, was curriculum restriction by the states in favor of religion. In Arkansas a statute was passed which made it unlawful for any teacher in any state-supported educational institution "to teach the theory or doctrine that mankind ascended or descended from a lower order of animals," or "to adopt or use in any such institution a textbook that teaches" this theory, i.e., evolution.
The Supreme Court found that the motivation of the statute was to foster a fundamentalist belief in the literal reading of the Book of Genesis.[17] From this case developed one of the so-called prongs of the Lemon test: that the government may not encourage religion.
Excluding Atheists From Public Office
Other issues than those of the school also arose.
In Maryland, an applicant for the office of notary public refused to swear that he believed in the existence of a god. In Torcaso v. Watkins,[18] the Supreme Court held that such a requirement violated not alone the Establishment Clause but also the Free Exercise Clause, noting, the majority said, "We follow the McCol1um case." Religious test oaths were thought then to be barred.
American Atheists, as it formed Chapters throughout the United States, soon discovered that seven states had state constitutional provisions which excluded any Atheist from either an elected or appointed office or position of public trust. The provisions were actively enforced. In an entire series of cases, American Atheists was able to strike down these provisions in over eight years of litigation.
Tax Exemption For Religion
Every state and the District of Columbia afforded provision for tax exemptions for religious institutions, and the history of such exemptions goes back to the time of the establishment of the nation as a polity. Already Justice Brennan had made a side remark in Murray which was to be picked up and utilized as a rationale for religious benefits from government:
If religious institutions benefit, it is in spite of rather than because of their religious character. For religious institutions simply share benefits which government makes generally available to educational, charitable, and eleemosynary groups.
The state of New York was challenged for exempting from real or personal property taxation any property "used exclusively for religious, educational, or charitable purposes."[19] Justice William Brennan fashioned in this case the next two prongs of what came to be the Lemon test. The first of these was that the law had a secular purpose and effect. It did not "single out" churches for special favor, but rather designated a broad category of associations dedicated to social betterment as deserving and worthy of special treatment because they function to serve "a public need." The primary effect of the exemption was not to aid religion; the primary effect was secular and any assistance to religion was "merely incidental." This "merely incidental" assistance amounts to enough money to pay off the national debt each year, so much land do the churches and religious institutions own, an estimated 25 percent of all privately held land. The second prong was a test to establish entanglement. Incredibly, the argument was put forth that the state would need to evaluate the properties for tax purposes, collect taxes, develop tax liens and foreclosures which might require litigation. This, the Supreme Court avowed, would entangle government with the internal affairs of religious bodies! The Court at least was disingenuous, at most, openly dishonest in order to accommodate religion.
Honoring The Sabbath
While all of this was going on, religion's impact on the culture was being challenged in another area: Sundayclosing laws. The basis of such laws is rooted in the theory of Christian Sabbath as a day of rest. Although a number of cases tested this concept, particularly Jewish firms desiring to stay open on Sunday because Saturday was the Jewish day of rest, the case to come before the Supreme Court was McGowan v. Maryland.[20] The Supreme Court acknowledged that the laws historically had a religious motivation and were designed to effectuate concepts of Christian theology. To save them, it therefore decreed that the laws spoke to the secular state interest in the promotion of the health, safety, recreation, and general well-being of citizens when they required "a day of rest." That the state had chosen Sunday, a dominant Christian Sabbath day, to force everyone in business to a required "day of rest" only fulfilled the state's concern for the general welfare of its people. The "traditional day" could be chosen. The decision was transparent. Religion was to be accommodated at the expense of warped logic and state coercion. Justice Douglas, the only dissenter to the opinion, held that the designation of Sunday, the traditional religious day of Christians, as an enforced day of rest for everyone undoubtedly established religion.
And then developed the fight of the Seventh-day Adventists, who also accept Saturday as their Sabbath. Their cases generally were against employers who desired them to work on Saturday, or with state unemployment boards who refused compensation when employees were discharged for refusing to work on their Saturday Sabbaths. A new theory was introduced in these cases. If the state enacted a general law, the purpose and effect of which was to advance the state's secular goals, the statute would be valid despite its indirect burden on religious observance. This purpose and effect was generally designated as a "compelling state interest" which a religious group could not overcome. The lead case was Sherbert v. Verner.[21]
Religious Conscientious Objectors
In another area, the struggle of individuals against the state's support of religion also proceeded: conscientious objection to war. First, U.S. federal statutes provided that no clergyman or student of theology could be drafted. Secondly, no ordinary person could refuse to be drafted except those who had "religious scruples" against either combat activities or general military activities. The Supreme Court simply avoided the issue by a disingenuous interpretation of the statute,[22] construing the exemption limited to those with "religious training and belief" -- that is, those who believed in a "Supreme Being" -- to mean that a person must have some belief which occupies in his life the place or role which the traditional concept of god occupies in the orthodox believer. This left the Atheist out in the cold. But in the first conscientious objection case involving a nonbeliever, the Court divined that since Daniel Seeger, the litigant, had been reared in a religion, he still had the (religious) values which that rearing had instilled in him. In Welsh,[23] the religious requirement was construed as including moral, ethical, and religious grounds so long as there was a traditional religious foundation for the beliefs.
The Abortion Battle
The abortion cases, of course, are in a class of their own. They all are predicated on a religious issue, which the litigants and the courts both refuse to face. The issue is really dissemination of sex education and birth control information, medication, and devices. The Roman Catholic, the Mormon, and the fundamentalist churches are opposed to all. Consequently women unwittingly become pregnant and seek the last resort: abortion. The religious are astute enough to play the end game of "stop abortions," and those who support abortion are too dumb to realize that they should be focusing on the prevention of pregnancy through sex education and birth control. It is easy to predict which side is going to win this war in legislatures and in the courts. The intervening RU486 and the Norplant treatments are the only hope of the pro-abortionists -- something which, apparently, they don't really realize. The convoluted abortion issue will be addressed in another issue of the American Atheist at a later date.
Challenging The Government's Endorsement of Religion
Once established, American Atheists began in 1963 a course of action which challenged every endorsement of religion by government: the exemption of religion's income from income tax; the Pledge of Allegiance to the flag recited by schoolchildren, particularly the addition of the words "under God" to the pledge; the statement "In God We Trust" printed on coins and currency of the nation; the issuance of the Susan B. Anthony dollar with the words "In God We Trust" under her nose; the reading of the Bible by astronauts on Apollo Vll's loop around the moon; the pope's holding a full mass on the Washington Mall; the U.S. Postal Service's fancy cancellation of stamps with the papal insignia; Christmas caroling in Texas' capitol rotunda; prayers at city councils, state legislatures, and in the United States Senate; the nativity scene in Texas' capitol rotunda; teaching religious courses at the University of Texas and in Texas public schools; forcing attendance of deaf students at religious services; discharge of teachers from employment when their Atheism was discovered; requirement that adoptive parents rear children in a religion; radio stations' refusals to broadcast Atheism; teachers in public schools wearing religious garb (nun's habits); blasphemy laws; the "Pray for Peace" cancellation used by most of the U.S. post offices during the war in Vietnam; the "So help me God" oaths to take public office, to become a juror, to authenticate applications for state or federal employment; the exclusion of Atheist publications from public libraries.
In order to force government acknowledgment of Atheism as a part of American culture, American Atheists fought for and won recognition as corporations and then tax exemptions for those corporations as educational institutions. Over a period of fifteen years, it fought, in and out of state and federal courts, to gain income tax exemption for Atheist organizations; to gain sales tax exemption for Atheist organizations; to obtain ad valorem (real property) tax exemption for Atheist organizations.
Atheist Concerns As "Frivolous"
Courts have been severe in their opinions on the Atheist state/church separation cases and have undertaken two courses of action: the cases are marked "Do not print" by the judges involved, which means that they are never put into the reporter systems of published cases and history will never know that the cases were even brought. More recently, the federal courts have been defining the cases as "frivolous" and attempting to sanction American Atheists with litigation costs and attorneys' fees to be awarded to the government entities against which the cases were brought. This action continues, although in most instances of current cases, Atheists were in the legal battle for decades on the subject matter of the very cases now being brought and won by the ACLU and other civil rights organizations.
The fights have been sons-of-bitches; but the government knew that Atheists were in the trenches battling it out.
Types And Kinds
Now, if you have been following all of this, you see a clear pattern developing. There are Establishment Clause cases where the passing of the law itself is offensive, unconstitutional, and coercive against the litigant. There are Free Exercise Clause cases in which the litigant must show that there was a compulsion upon them to act (or not to act). There is a group of cases which holds that incidental harm to religions is trivial and not to be recognized if the legislation works to the benefit of society in general. And there is a group of cases which hold goes to great lengths to throw the litigants' case out of court on any pretext. The last group of cases consists of those wherein the court fabricates an irrational theory under which it can support religion's claims upon the culture. These include the "child benefit" theory.
Going up the appellate ladder, after one is past a onejudge court, there can be more than one decision in a lawsuit. In a threejudge panel, there is the official majority decision, and possibly a minority decision. There is the court's opinion which rules, and there can be concurring opinions in which one or the other judge may wish to emphasize certain points. There can be one or more dissenting opinions, or concurrences in the dissenting opinion. At the federal level cases can be heard "en banc" by a number of judges in various appellate districts across the nation. There are nine justices on the Supreme Court of the United States, and it is not infrequent that four or five of them write independent decisions in addition to the Court's opinion. All of these are fodder to add to the fuels of controversy. What is a dissenting opinion today can be a majority opinion tomorrow as our judicial system staggers unevenly down the Yellow Brick Road to Oz. In legal decisions there is also something called dictum -- the plural is dicta -- and it comes from the Latin obiter dictum. It is simply an opinion expressed by the court, but which, not necessarily being involved in the case, lacks the force of an adjudication. These statements are treated with respect. The Supreme Court has the general rule, broadly stated,[24] that to make an opinion a decision,
there must have been an application of the judicial mind to the precise question necessary to be determined to fix the rights of the parties, . . . and, therefore, this court has never held itself bound by any part of an opinion which was not needful to the ascertainment of the questions between the parties.
In dissenting opinions and in dicta in more recent cases, the idea that government protection of our cultural history includes the right of government to approve of religion, sponsor religion, or aid religion appears more and more often and more and more emphatically.
History As A Reason
When this is coupled with the reasoning in Marsh v. Chambers [25] the result is somewhat frightening. Briefly, in that case, a Black Atheist state legislator in the Nebraska unicameral legislature challenged the opening of each session with a prayer by a Presbyterian chaplain who was paid with public funds. The District Court for the District of Nebraska enjoined the payment of funds. The Court of Appeals for the Eighth Circuit enjoined the whole chaplaincy practice. It was obviously unconstitutional. The Supreme Court delivered a 6-3 decision, with Justice Brennan filing a dissenting opinion in which Justice Marshall joined. Justice Stevens filed a separate dissenting opinion. Chief Justice Burger delivered the opinion of the Court.
The Presbyterian minister had been at the job for sixteen years and was paid $319.75 a month for each month the legislature was in session.
The Supreme Court held that the practice was constitutional since the United States Congress has opened with prayer for two hundred years, the legislature of Nebraska has done so for one hundred years, the Supreme Court opens with the cry, "Oyez, Oyez. God save the United States and this honorable court," and prayer of legislative bodies has become part of the fabric of our society. To invoke divine guidance on a public body entrusted with making the laws is simply a tolerable acknowledgment of beliefs widely held among the people of this country. The Court made no attempt to apply the Lemon test in Marsh at all, relying solely on a lengthy claim that the practice was historical.
Now, if you will please flip back a few pages, you will see that the same kind of nonsensical argument was used in the Walz case, which gave tax exemption to all the land owned by churches and religious organizations in the United States.
Graduation Prayers
During the last ten years the issue of prayers at junior and senior high school convocations has been brought to the attention of state and federal courts all over the United States. Once again, a member of American Atheists was I among the first in such a lawsuit.[26] But again this issue is afresh in California, Utah, and Rhode Island. All three are on appeal to the Supreme Court, but something ominous has come up in the Rhode Island case. The facts are short and sweet and were reported in the February issue of the American Atheist Newsletter.
Daniel Weisman's two daughters attended the Nathan Bishop Middle School in Providence, with about six hundred other students in grades five through eight. When his first daughter, Merith, graduated in 1986, the Weismans complained that they did not appreciate prayers in which Jesus was praised for watching over the students. They felt such a prayer had no place in the public schools. Daniel Weisman is a Jew. When another daughter, Deborah, was scheduled to graduate in 1989, the Weismans repeated their concerns and the school officials told them "not to worry," since the school was calling in a rabbi for her graduation.
The parents became angry: that was not the point. If prayers to J.C. were wrong for them, prayers to Yahweh would now be wrong for other parents. The Weismans were insistent: "That's no solution. The public sector ought not to be sponsoring religion."
They sought a restraining order but it was denied.
They went to graduation and sure nough a rabbi was there, praying:
O God, we are grateful to You for having endowed us with the capacity for learning which we have celebrated on this joyous commencement. We give thanks to You, Lord, for keeping us alive, sustaining us and allowing us to reach this special, happy occasion.
The parents sued. On January 9 1990, the U.S. District Court ruled for the Weismans:
...[O]n every other school day, at every other school function, if the students cannot be led in prayer on all of those other days, prayer on graduation day is also inappropriate under the doctrine currently embraced by the Supreme Court.
The school board appealed, but on July 23,1990, the First Circuit Court of Appeals in Boston upheld the lower court ruling. But it was not until October 1990 that the counsel for the school board advised school officials to stop prayers at graduation ceremonies. At that time, the school board voted to set aside $20,000 to take the case to the Supreme Court of the United States. The school board chairman then announced that the board would find it necessary to "look around the state and the rest of the country" for an estimated $30,000 extra which would be needed for the appeal.
Enter American Atheists
The state of Utah meantime has two school districts embroiled in a similar fight. The state itself asked the two brawling factions to suspend their legal action until the Rhode Island case is determined, but that would be past the cc date of June graduation this year and they refused. In the midst of it, the legislature of Utah voted $10,000 toward filing an amicus curiae brief on behalf of the Rhode Island school district.
It was at this point that the Utah Chapter of American Atheists filed suit to stop that $10,000 check. Art. 1, Sec. 4 of the Utah Constitution provides:
. . . No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or for the support of any ecclesiastical establishment.
Back in Rhode Island the school board has come up with a new wrinkle. They claim to want to offer a "generic form" of prayer, excluding all mention of the deity to whom the prayer is addressed. But when the school invites a minister, priest, or rabbi, it claims it cannot take the role of censor and tell that religious representative, "You can say this, this, and not that."
And about that time -- enter Uncle Sam.
In February the Department of Justice of the United States entered a brief for "the United States" as amicus curiae, asking the Supreme Court to grant certiorari (review). The solicitor general couched his request for review as: "Whether government accommodation of religion in civic life violates the Establishment Clause, absent some form of government coercion."
Unhappily for the solicitor general, the Supreme Court has held, in many ses since Engel v. Vitale (1962), that:
The Establishment Clause does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not.
Ah! but the United States is adamant; it would have the criterion changed. First the brief relates that the United States operates primary and secondary schools for military and foreign service dependents and for Native Americans and therefore has an interest in the case. In addition, the United States conducts numerous public ceremonies such as presidential inaugurations which "date back to the founding of the Republic," and religion is acknowledged in these in some manner.
The United States does not want the Lemon test used; it prefers the precedent of Marsh v. Chambers and Lynch v. Donnelly.[27] Lynch was a frightening case, for it was in it that Chief Justice Burger held that:
The Constitution does not require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility to any....
Our history is pervaded by official acknowledgment of the role of religion in American life, and equally pervasive is evidence of accommodation of all faiths and all forms of religious expression and hostility toward none.
". . . total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable." . . .
Our history is replete with official references to the value and invocation of Divine guidance in deliberations and pronouncement of the Founding Fathers and contemporary leaders.
A long analysis of the Lynch decision appeared in the December 1988 issue of the American Atheist magazine because of its importance and consequential considerable erosion of the constitutional principle of state/church separation.
Now, in the case of Lee, the United States government wants to look at the history of included invocations and benedictions in public school graduation ceremonies as simply another accommodation to religion, based on history. The tradition at the school in question is first, in fact, alleged to be 160 years old. Jon Murray, in the "Director's Briefcase" in this issue of the American Atheist, explores Lee in some depth.
The United States attorneys argue that there has been a "traditional acknowledgement of religion" in the Court's decisions and that the historical tradition of religious references at civic ceremonies -- a tradition that reaches back to the time of the founding -- permits the continuation of such recognition in contemporary settings. Calling on a prior decision from the Sixth Circuit, Stein v. Plainwell Community Schools,[28] the government cites from that decision that "annual graduation exercises . . . are analogous to the legislative and judicial sessions" referred to in Marsh. The United States urges that:
The case would afford the Court an appropriate opportunity to reconsider the application of the Lemon test to the attempts to accommodate the Nation's religious heritage in our public life.
Such public acknowledgments, the attorneys for the United States say, neither establish any religion nor coerce nonadherents to participate in any religion or religious exercise against their will,...the practice under assault [being] a non-coercive, ceremonial acknowledgement of the heritage of a deeply religious people.
They point out that "a majority of the Members of the Court has written to express dissatisfaction with different aspects of the Lemon test" and want to go back to the "original intent" of the framers of the Constitution. Interpretation of the Establishment Clause must "comport with what history reveals was the contemporaneous understanding of its guarantees." It appears to the solicitor general that in Lynch the Court cited many examples which were "ceremonial invocations of the deity by public figures, both historic and contemporary." The United States would relegate the Lemon test to divine the intended meaning and scope of the Establishment Clause in the setting of government financial aid to plainly religious institutions, since the Lemon case itself was concerned with such financing. For other aspects of state/church separation cases, the courts should rely on history.
The government must face the truth of former decisions, particularly of the lower courts:
in order to assert that such practices do not advance religion, the lower courts are tempted to deny the obvious religious significance of traditional religious reference.... [I]t places judges in the unfortunate position of denigrating religious meanings in order to stave off a Lemon-inspired assault on traditional practices.
In the case at bar, the solicitor general notes, the same invocation and benediction at issue could have been delivered at the opening of Congress or during a presidential inauguration ceremony. Even the Supreme Court has been forced into the anomalous position that it has held that a creche in Pittsburgh violated the Establishment Clause while a display of a menorah in the same city in the same place did not.
The government wants, at least, accommodation of the nation's religious heritage in civic life. It feels that it can prove, if the Supreme Court gives the Lee case plenary consideration, that the Founding Fathers and framers of the Constitution
fully assented to the appearance of non-coercive religious practices in civic life.... [P]ublic ceremonial acknowledgements of religion were welcomed by the Framers and are deeply rooted in the Nation's heritage.
The amicus curiae brief ends with the conclusion:
[T]he practice here clearly does not violate the Establishment Clause, because it does not coerce religious exercise or bring to bear other forms of compulsion to conform. Indeed, Rabbi Gutterman's invocation and benediction, with their reference to God, do not directly or indirectly compel nonadherents to change their beliefs, but merely respect the religious heritage of the community. [Emphasis added].
In the Lee case is the full potential for the end of Atheism and the recognition of Christianity as the civic religion of the United States.
So Help Me God
This brings full circle the question of why the Founding Fathers built into the First Amendment to the Constitution the single most important part of the Bill of Rights, the mechanics for separation of state and church. If civic religion should be promoted, if religion is good for mankind, why bother to separate it from government? Why not saturate government with religion? And, indeed, this is what has been going on in the United States since the beginning of this century. Clauses against Atheists' holding either elected or appointed offices in state government were easily put into the constitutions of seven of the United States. The Pledge of Allegiance to the flag was polluted with the phrase "under God" to make it read, "one nation, under God, indivisible." The national motto has been changed from E pluribus unum to "In God We Trust," and all currency and coins sport the motto "In God We Trust."
Every civil servant in government, every person in the armed forces of the nation, is required to enter into his duties with an oath to uphold and defend the Constitution "So help me God." The same religious oath is required of jurors, witnesses in courtrooms, even to attain the lowly office of notary public, and attorney applicants must accede to it for admission to practice in the court system. All persons requesting citizenship must ask for the help of god; until recently applicants for passports had to do the same. Oh, there have been legal cases which have permitted an escape from the god oath -- one was handed down from the Supreme Court, Torcaso v. Watkins, and one from the Fifth U.S. Circuit Court of Appeals, O'Hair v. Hill.[29] The former held that a notary need not take such an oath; the latter held that the Texas state constitutional provision of the requirement of a "belief in a Supreme Being" to attain public office was unconstitutional vis-a-vis the First Amendment to the Constitution of the United States. The same stated constitutional restrictions were declared to be unconstitutional in Mississippi, North Carolina, and Tennessee, all in cases filed by American Atheists. But, alas, the victories were brought to naught in usage. The state of Texas still continues to print and distribute its constitution without notation that the requirement of "a belief in a Supreme Being" for those who aspire to public office or trust has been eliminated. The attorney general is so recalcitrant that not even a footnote gives the information.
The Aftermath
This brings up another aspect of the judicial system. Supreme Court cases are often ignored for years. Bible reading and prayer recitation continued for at least two decades in various parts of the nation after the Murray v. Curlett decision. A 100 percent compliance still has not been attained now almost three decades later. Children are still required. by state law, to recite the Pledge of Allegiance to the flag every morning as school starts, despite the 1943 Supreme Court restrictions against the exercise in West Virginia v. Barnette. Since Bush made an issue of the pledge in his presidential campaign of 1988, every member of the United States Congress is required to recite the pledge every morning when Congress opens -- in addition to the daily opening prayer.
American Atheists has from its inception battered at these symbolic references, and it is just at those points that government has held fast, be it at city, county, state, or federal level. Now, of course, the issue is joined, and the Justice Department of the United States in the Lee case is asking the Supreme Court to recognize the civic religion of Judeo-Christianity.
Atheists, Beware
For we are back again to: why was state/church separation built into the Constitution of the United States if religion is a "good" for all people? Religion, then, should be part and parcel of the government. The First Amendment need not ever have been written. The answer which has come to be hackneyed is "so that one denomination does not come to dominate; that no national religion is proclaimed." What really happened is that the people in positions of power in that era found religion to be an advantageous way to control the common people. As always, probably being privately Atheistic, they were publicly supportive of the religion of the day, and now two hundred years after the ratification of the First Amendment we are fully confronted with the implanting of a civic religion.
And after the new Dark Ages have come and are almost gone, two hundred years from now, more Atheists hoping to be free from religion will find that in our time the leaders of the day, the people in positions of power in 1991, were also privately Atheistic, but publicly religious and that civic religion was established to stay.
Atheists, beware.
Footnotes
- Secretary of Yale University and canon of Washington Cathedral, Stokes died in 1958.
- Roe v. Wade, 410 U.S. 113; 935 S.Ct. 705; 35 L.Ed.2d 147 (1973).
- Weisman v. Lee, 728 Fedl. Supp. 68, 908 Fed. Rep. 2d 1090 (1990).
- Cantwell v. Connecticut, 310 U.S. 296; 6 S.Ct. 900; 84 L.Ed. 1213 (1940).
- West Virginia State Board of Education v. Barnette, 319 U.S. 624; 63 S.Ct. 1178; 87 L.Ed. 1628 (1943).
- Wiley Blount Rutledge, Jr. (1894-1949), associate justice, U.S. Supreme Court (1943-49).
- Everson v. Board of Education, 330 U.S. 1; 67 S.Ct. 504; 91 L.Ed. 711.
- Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923; 20 L.Ed.2d 1060 (1968).
- Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105; 29 L.Ed.2d 745 (1971).
- Incidentally, excerpts from the Stokes (and Pfeffer) books are quoted in both the majority and the minority opinions.
- Tilton v. Richardson, 403 U.S. 672; 91 S.Ct. 2091; 29 L.Ed. 790 (1971).
- Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461; 92 L.Ed. 649 (1948).
- Stanley Forman Reed (1884-1980), associate justice, U.S. Supreme Court (1938-57).
- Zorach v. Clauson, 343 U.S. 306, 72 S.Ct 679; 96 L.Ed. 954 (1952).
- Engel v. Vitale, 370 U.S. 421; 82 S.Ct. 1261; 8 L.Ed.2d 601(1962).
- Abington School Dist. v. Schempp and Murray v. Curlett, 374 U.S. 203; c3 S.Ct. 1560; 2 L.Ed.2d. 844 (1963). The two cases were joined (heard together) by the Supreme Court.
- Epperson v. Arkansas, 393 U.S. 97; 89 S.Ct. 226; 21 L.Ed.2d 228 (1968).
- Torcaso v. Watkins, 367 U.S. 488; 81 S.Ct. 1680; 6 L.Ed.2d 982 (1961).
- Walz v. Tax Commission, 397 U.S. 664; 90 S.Ct. 1409; 25 L.Ed. 697 (1970). 20 McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101; 6 L.Ed.2d 393 (1961).
- McGowan v. Maryland, 366 U.S. 420; 81 S.Ct. 1101; 6 L.Ed.2d 393 (1961).
- Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790;10 L.Ed. 2d 965 (1963).
- United States v. Seeger, 380 U.S. 163; 85 S.Ct. 850;13 L.Ed. 2d 733 (1965).
- Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792 (1970).
- Curtis, J., in Carroll v. Lessee of Carroll, 57 How 275, at p. 287 (1853). Benjamin Robbins Curtis (1809-1874), associate justice U.S. Supreme Court (1851-57).
- Marsh v. Chambers, 463 U.S. 781, 103 S.Ct. 3330; 77 L.Ed.2d 1019 (1983).
- Collins v. Chandler Unified School District, 644 F.2d 759 (9th cir. 1981).
- Lynch v. Donnelly, 456 U.S. 668;104 S.Ct. 1355; 79 L.Ed.2d 604 (1984).
- 822 F.2d 1406 (1987).
- O'Hair v. Hill, 675 F.2d 680, 5th Cir. (1982) en banc.
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