Church-state clashes in 2003: hard-won lessons in fairness

Sunday, December 28, 2003

Before starting a new year (and a new round of church-state battles), what are the lessons from 2003 about the state of religious freedom in America?

Headlines this past year were all about the Ten Commandments monument in Alabama and the court battle to remove “under God” from the Pledge of Allegiance.

But for a more accurate snapshot of how well the First Amendment is working (or not working), look at the small stories – church-state conflicts around the nation that often polarize communities.

It’s not a pretty picture. Many Americans – including many public officials – still promote two unconstitutional models for dealing with church-state issues. The “removers” want to erase religion (especially religion they don’t like) from public life. And the “imposers” want to use the state to push religion (their religion) on everyone else.

Two recent stories say it all.

For now, Nashala Hearn may wear her religious head scarf to school in Muskogee, Okla. School officials initially told her she couldn’t, then backed down (after re-reading the First Amendment?) and promised to revisit their policy banning all head coverings without a religious exemption. But bad feelings and an unsettled lawsuit remain.

Meanwhile in Presque Isle, Maine, a 7th-grade teacher filed suit against his school district for allegedly violating the establishment clause of the First Amendment. According to the lawsuit, the only religion mentioned in the school curriculum is Christianity – other religions and world civilizations may not be taught. The teacher alleges that the school system created this censored curriculum after pressure from a local church group.

Now consider two conflicts discussed in this space in 2003 – bad stories with good First Amendment endings.

Remember Elizabeth Hansen? She’s the Ann Arbor, Mich., student who filed suit when school officials wouldn’t allow her to express her Catholic views during a panel discussion about homosexuality and religion. On Dec. 5, a federal judge ruled that school officials had violated Hanson’s right to free speech. Moreover, the school violated the establishment clause by having a panel that presented only one religious viewpoint (positive) on homosexuality.

Then there was Cyndi Simpson, the Wiccan in Chesterfield County, Va., who wasn’t allowed to lead a prayer at the board of supervisors meeting. The board refused to put her on its list of “approved clergy” authorized to give invocations. On Nov. 13, a federal judge ruled that Chesterfield County officials violated the establishment clause by permitting some religious believers, but not others, to pray at the meetings.

Fortunately, not all of the church-state conflicts in 2003 required the intervention of a federal judge.

A few weeks ago, librarians in Meriden, Conn., barred any image of Jesus from an art exhibit arranged by a local artist. All kinds of other portraits were allowed – from Moses to John F. Kennedy – but not Jesus. What were they thinking? Jesus is too controversial? Offensive? The library director wouldn’t say. It took a vote by the library board to allow Mary Morley to display her paintings.

And a school district in New Jersey reversed course and included sacred music in its holiday programs – after years of banning it. Now they offer balanced programs of secular and sacred music representing a variety of traditions.

There’s a lesson in all of these 2003 conflicts: Upholding religious liberty under the First Amendment is often a matter of simple fairness. Constitutional attorney Oliver Thomas is fond of quoting a favorite law professor as saying: “If you want to know how most cases will turn out, go home and ask your mother. Mothers have a pretty good idea about fairness.”

What is fairness under the First Amendment? It starts with government officials who are careful to be neutral toward religion – neutral among religions and neutral between religion and nonreligion.

But “neutrality” can be a tricky concept. Librarians in Meriden apparently thought it was “neutral” to keep portraits of Jesus out of an art show. And school officials in Presque Isle may think it’s “neutral” to teach about Christianity and leave out study of any other faith.

First Amendment neutrality, however, isn’t hostility toward religion. It doesn’t mean ignoring religion. And it certainly isn’t about the government preferring one religion over others.

Government neutrality is, in a word, fairness. Now if we can just get public officials to listen to their mothers, we might not have so many church-state fights in 2004.