The First Amendment to the Constitution of the United States is an icon of religious freedom, and rightly so. It contains a double prohibition: no establishment of religion and no hindrance to the free exercise of religion. The two clauses often grind against each other. Adopted by Congress in 1791, the Amendment still comes up again and again on the calendars of federal judges. On the whole, they have done a decent job, and religious freedom is more single-mindedly protected by the law in this country than about anywhere else.
I say this despite the fact that I have little respect for law as an institution: The “rule of law”, often evoked with breathless awe, is nothing sacred. Rather, it is the regrettable consequence of the profane proclivities of our species, which would quickly lead to murderous chaos unless reined in by coercive regulations. I also don’t much admire judges, an occupation that must greatly reinforce any inclination by its members toward delusions of grandeur. I am told that first-year law students are told by their professors that the law has little to do with justice—it is a system of impersonal abstractions imposed on the concrete realities of living persons. Most of the time the law is a lesser evil than chaos.
This being said, in a liberal democracy there is a reasonable chance that the law will have some resemblance with what one might call justice. There are few causes more just than religious freedom, which is finally the right of every person to make sense of the mysteries of the human condition. So, albeit grudgingly, I do respect those federal judges who put on their quasi-priestly robes and try to defend the battlements of the First Amendment. What follows here are some of the curiosities they come up against.
The Center for Law and Religion of Emory University has a useful aggregator. In one day, on December 1, 2012, it contained two items that would merit the label “curious”. First item: Since 1953 the city of Santa Monica, California, has displayed nativity scenes in a public park, which earned it the nickname of the City of the Christmas Story. The First Amendment would never have come up if these displays had been located on private property, say on land owned by a church or on somebody’s front lawn. Since the location has been in a public park, and since Americans are a litigation-prone people, sooner or later the charge would be made that Santa Monica was making Christianity the established religion of the city, in violation of the Constitution. Well, it was later rather than sooner, when an atheist by the name of Damon Vix, to make sure that Christianity was not the official faith of the city, was granted his own booth alongside the traditional nativity display. Apparently the Christians did not make a fuss at the time, although the atheist booth must have upset them: It sported a sign that quoted Thomas Jefferson “Religions are all alike—founded on fables and mythologies”, and another sign reading “Happy Solstice”. Apparently the understanding was that the city could legally permit such religious or anti-religious displays around Solstice-time, provided that the permit included equally all religions (or presumably anti-religions).
But Vix was not ready to be satisfied with one measly booth. He got ten other sympathizers to inundate the city with applications to erect booths similar to his in the same park, displaying signs similar to his, including one that pictured Poseidon, Jesus, Santa Claus and Satan. The atheists managed to get eighteen out of twenty-eight slots made available at auction. The Christian reaction was predictable. It was furious. Most of the atheist booths were vandalized. Thereupon the city banned all such booths, Christian or atheist, in the park.
The story does not say whether the atheists were willing to accept the ban. The Christians were not. Something called the Santa Monica Nativity Scenes Committee sought an injunction to force the city to reopen spaces for the cherished displays. The injunction was denied by a federal judge, in a 25-page ruling (which I have not read), saying that the city had the constitutional right to issue the ban, because the change affected all possible applicants (not just the two involved in this case) and because there were other venues available for public religious speech. The attorney for the plaintiff said than an appeal was intended.
Of course a non-lawyer such as myself cannot fully grasp all the legal esoterica involved in this case. But I was wondering: What would happen in federal court if a group of militant Protestants (maybe from Northern Ireland?) decided to invade Manhattan’s Little Italy during the annual Feast of San Gennaro, an event steeped in Catholic religiosity—say, one street over from the Feast—with signs casting aspersions on Our Lady? I assume that they would claim a First Amendment right for their anti-Catholic speech, and I assume further that a federal judge would agree. Under the law as it now stands, what remedies would the Little Italians have? Perhaps they could purchase Mulberry Street from the City of New York, which then would change from a public to a private piece of real estate, allowing them to keep out the anti-Catholic demonstration? How much would Mulberry Street cost? Would Mayor Bloomberg be willing to sell? What if a Hindu resident sued to block the sale? Under any imaginable scenario, constitutional lawyers would have a field day!
The second item reported by the busy researchers at Emory University is broadly related to the first. Dearborn, Michigan, probably has the highest proportion of people of Arab ancestry than any other American city. It stages an annual Arab festival. I don’t know the distribution of Muslims and Christians among the participants, but it seems that the event as such is not identified in religious terms. At the 2010 event four individuals, described only as “Christian missionaries” were arrested by Dearborn police for preaching to Muslims and were charged with “breach of the peace”. Some details are missing from this story (and my readers will understand that, having decided not to apply for admission to law school, I did not do the research to find out). I don’t know what branch of Christianity the missionaries belong to (three of the four have Arabic names, but of course they might be Evangelical Protestants—the usual suspects when it comes to aggressive proselytism). In any case, enough of the festival attendees were sufficiently annoyed to call the police.
Three months after the alleged offense the case came to trial and the missionaries were acquitted by a unanimous jury verdict. Thereupon an organization called the American Freedom Law Center (AFLC) filed a civil rights lawsuit against the City of Dearborn, its mayor and chief of police, and seventeen police officers. Subsequently an amended complaint included as defendants two executives of the American Arab Chamber of Commerce (AACC), the organization in charge of the festival. A jury trial is scheduled for the summer of 2013 (the mill of federal justice grinds slowly).
Of course the First Amendment rights of the defendants are at issue, not those of the city or the AACC (who are not religious actors). The senior counsel of the AFLC stated that “The detailed allegations of our 100-page civil rights complaint set out a pattern of misconduct that had the purpose and effect of depriving our clients of their fundamental constitutional rights”. The federal judge who agreed to the addition of the AACC to the complaint stated that “The Court finds that Plaintiffs do properly allege a civil conspiracy among Defendants, including the AACC, to deprive Plaintiffs of their constitutional rights sufficient to survive a motion to dismiss”. I take it that the constitutional rights at issue include not only the religious freedom clauses of the First Amendment, but also the latter’s protection of free speech in general. What I wonder about is this: Let it be stipulated (look how easily one falls into legal terminology!) that in the United States I have the right to preach with intent to convert. But do I have the right to do so anywhere at all? On a public street, or also in a building in which putative convertees are worshiping? Using any kind of language? Threatening eternal damnation to those who refuse conversion? We are back with my San Gennaro fantasy.
The daily online bulletin of the Religion News Service also contained two related items on the same day, December 3, 2012. First item: A federal district court in Indiana rejected a First Amendment complaint by an individual certified as a “secular celebrant” by an organization called the Center for Inquiry, which the story described as “non-religious”. The “certification” was supposed to authorize the individual to perform legally valid marriage ceremonies. If the court had agreed with the complaint, this would in effect have challenged the constitutionality of the Indiana “marriage solemnization statute”. But the court did not agree. Instead it stated that “The Solemnization Statute is rationally related to the legitimate purpose of alleviating significant governmental interference with pre-existing religious beliefs about marriage”. I suppose the court had doubts about the “pre-existing religious beliefs” of the Center for Inquiry.
Two things interest me here. First, there seems to be an assumption that a federal court can decide what is and what is not “religious”. The term “pre-existing” indicates the direction of judicial logic here, previously relevant in cases of conscientious objection to military service and in cases involving tax-exemption claims. Let me stay with my San Gennaro fantasy: Suppose that, in the midst of a war, my three brothers and I, in good Italian tradition, proclaimed that our mother is the Madonna. On the basis of this proclamation, with the support of friends and relatives, we incorporated as a religious community, and on that basis claimed tax-exempt status for the family residence and refused to report for induction into the military as priests of Our Lady of Mulberry Street. I don’t think that a federal judge would grant us First Amendment protection. But second, what I find even more interesting is how, in this case, the court listed “several readily available avenues by which a Secular Celebrant may facilitate a marriage ceremony in Indiana”. These are: To preside over a wedding and then refer the couple to an individual entitled under the statute to solemnize the marriage. To become a member of the “clergy” by obtaining immediate Internet ordination from the Universal Life Church (I am seriously considering making use of this service). Or, finally, seeking certification to solemnize marriages from the Humanist Society (evidently a “pre-existing” quasi-religious institution). Would it not be simpler to have the state get out of the marriage business altogether? (I take the liberty of referring to an earlier post of mine on civil unions.)
Finally, here is a case that does not, or does not yet, involve the intervention of the federal judiciary. But it might well involve fear of such intervention on the part of a famously progressive institution: the University of Wisconsin – Madison. Also on December 3, 2012, Religion News Service carried a story that an organization of Atheists, Humanists and Agnostics (AHA) was likely to receive $69,000 from the University, “the largest grant from an institute of higher learning ever awarded to a nontheistic, student-led organization”. The application for the grant is now in a final phase, when rejection rarely occurs. The money comes from a pool of $39 million, collected from annual fees of about $1,400 per full-time student. The grant is to be used to hire eight staffers for a “secular support group”, where students with AHA-approved worldviews can meet in a “safe environment” (presumably protected from theistic thugs roaming the campus), and for a “faith questioning service” where non-believing students could meet one-on-one for discussion (in what looks like an atheist imitation of the study habits in Orthodox yeshivas). It is not clear whether there is much student interest in this program. At present about forty people attend AHA meetings. But its funding by the University has increased impressively. The Secular Student Alliance, a national organization of 387 campus-based groups, reports that over half of these groups operate on $250 or less. In 2009 AHA had no budget; in 2010 it received $200 from the University; in 2011 the budget was $15,000, which helped co-sponsor a Freethought Festival that attracted over 700 people.
How is this financial bonanza to be explained? Could there be an atheist cabal in control of the application process? I doubt it. Is “free thought” increasing at the University of Wisconsin? Possibly, but not to the degree the funding has. I think it is more likely that whoever is involved in administering the pool of student fees is nervous about possible First Amendment litigation, by the spiritual cousins of the people who caused all the trouble in Santa Monica. I don’t know. But if fear of litigation is a factor here, the University of Wisconsin had better look out. There are many more theists than nontheists, even in progressive Wisconsin, and there are well-funded law centers ready to charge discrimination against believers.
The role of religion in the United States is characterized by a paradox. On the one hand, this is by any measure the most religious country among Western democracies, not only in terms of individual beliefs and behavior, but also in the public sphere. On the other hand, the US has an unusually strict separation of religion and the state, dwarfing France’s laicite (where the state pays the salaries of teachers in Catholic schools) and its imitators in Kemalist Turkey (where a government agency used to write the sermons preached in mosques). This paradox makes it difficult for foreigners to understand the vagaries of American religion. During the same bout of reading that led me to the cases discussed above I came across a curious confusion in a usually very well-informed British source, the Catholic periodical The Tablet.
In its issue of November 24, 2012, the periodical carried a story about the University of San Diego (USD) withdrawing an invitation to lecture from Tina Beattie, a British Catholic scholar, because she had written a letter to the London Times in support of same-sex marriage. USD is a Catholic institution, which by this action believed itself to be following Vatican directives about maintaining its Catholic identity. As far as I can tell, the story was accurate in all its details, notably the identification of the California university. The same issue contained an editorial (it rather mildly disagreed with Beattie’s disinvitation). But throughout the editorial the offending institution was wrongly named the University of California, San Diego (UCSD). That institution (despite its name, located not in San Diego but in La Jolla) is not Catholic at all, but part of the state system of tertiary education. UCSD would hardly have barred Beattie from its campus, and if it had (for some other reason), this might have raised an issue of academic freedom but not of a non-existing Catholic identity. Locating the incident at UCSD makes it incomprehensible.
There is an unrelated question that occurs to me: Would progressives, who are offended by Beattie’s exclusion from USD because of her favoring same-sex marriage, be equally aroused if UCSD excluded a lecturer who proposes that all homosexual acts are sinful?