Posted: 06/13/07

Good News from a Surprising Source: The Federal Judiciary
Part Two

Student Expressions

New York Elementary student Michaela Bloodgood wanted to share with her friends at school a flyer she had written containing her personal testimony. It began: "Hi! My name is Michaela and I would like to tell you about my life and how Jesus Christ gave me a new one. I asked Him to come into my heart and save me from my sins." She then listed several specific prayers God had answered and closed by saying: "Now that I am saved, God gave me peace in my heart and the truth that I am going to heaven instead of the other place. Praise the Lord."

School officials forbade Michaela from giving this flyer to her friends, even during free time. They inanely reasoned that Michaela's friends receiving the flyer would mistakenly believe that it was the school's message instead of Michaela's.

(This is a position taken by far too many school attorneys and judges – that when a student speaks or writes, observers will mistakenly believe that the student is actually giving the school's official viewpoint rather than his own personal belief. This is the reason students are frequently barred from saying "God" in their personal graduation speeches. Silly, huh? When a Congressman speaks at a news conference, does any citizen believe that he is speaking on behalf of all 535 Representatives and Senators? Certainly not! All recognize that he is expressing his own personal viewpoint. Similarly, when an athlete is interviewed after a game, do viewers believe that he is speaking for all athletes in America or just for himself? Or when President Bush speaks, is he talking for all Republicans – or President Clinton for all Democrats? The answer is obvious – except to many judges and school attorneys.)

In their effort to keep students from thinking that Michaela was speaking on behalf of the entire school administration, school officials banned all distribution of literature at school. Fortunately, Michaela's parents were willing to challenge this policy in court, and federal judge Norman Mordue emphatically rejected the school's actions. [24] The attorney defending Michaela summarized the decision: "Religious speech is constitutionally protected, even in the public schools. School officials had no right to silence Michaela's personal Christian testimony. . . . She has every right to express her religious views at school, and that right has been vindicated."

(This case was argued by Liberty Counsel. Judge Norman Mordue was appointed to the federal bench in 1998 by President Bill Clinton. Interestingly, in a religious liberty case prior to this one – a case involving the religious expression of kindergarten student Antonio Peck, who included a picture of Jesus on his artwork [25] – Judge Mordue was twice unanimously overruled by the Second Circuit Court of Appeals. Evidently, he got the message; he ruled favorably in this case.)

Prayers at Public Gatherings

In recent years, federal judges have decreed which words may be used when individuals pray in public, specifically ruling that using explicitly Christian language is unconstitutional. For example, in a 1995 case involving graduation prayers, a federal judge ruled:

The court will allow that prayer to be a typical nondenominational prayer, which can refer to God or the Almighty or that sort of thing. The prayer must not refer to . . . Jesus. . . . And make no mistake, the Court is going to have a United States marshal in attendance at the graduation. If any student offends this court, that student will be summarily arrested and will face up to six months incarceration in the Galveston County Jail. . . . Anybody who violates these orders, no kidding, is going to wish that he or she had died as a child when this court gets through with it. [26]

Similarly, in 1999, a high school senior was chosen by her peers to offer a prayer at their graduation, but school officials required that she submit her prayer in advance so that they could edit it. They struck out innocuous "offending" phrases such as "Heavenly Father," "Thank You for having a plan to prosper us," "Help us to lean on Your direction and follow in Your footsteps," and "We love You"; disappointingly, the federal courts upheld the edits. [27]

In 2006, a federal court prohibited the Indiana legislature from opening in prayer (a 189 year-old tradition) unless the prayers avoided explicitly Christian words. Significantly, even though the legislature regularly included Christian, Jewish, and Muslim prayers, the judge ruled that the Christian prayers must be screened. He listed permissible phrases to be used in the prayers (including "Lord God, our creator," "the God of Abraham, Isaac and Jacob," "the God of Abraham, of Moses, Jesus, and Mohammad," "Heavenly Father," and "creator of planet Earth, and the universe, and our own creator") and decreed that prayers "using Christ's name or title" were unconstitutional. [28]

There are numerous others examples in which prayers are forbidden because Christian words were used, including for school boards [29] and city councils. [30]

With such rulings, many secularist groups have been aggressive in challenging public prayers – including against the County Commissioners in Cobb County, Georgia (near the metro Atlanta area). Commissioners there opened their meetings with prayer but refused to tell any individual what to say in his prayer. The ACLU therefore filed suit, claiming that by not prohibiting individuals from using the word "Jesus," the Commissioners were thus engaging in an unconstitutional government action. However, federal judge Richard Story disagreed, and ruled that ministers who prayed to open the meetings could "identify the deity to whom they direct their prayer" [31] – including to Jesus. This is a major victory, and a clear reversal from recent trends.

(Judge Story was appointed as a federal district judge in 1998 by President Bill Clinton.)

Equal Access to Public Gatherings

In Westside v. Mergens [32] in 1990, the Supreme Court unanimously held that religious groups may have the same access to government facilities as all other groups. Nevertheless, many officials, citing the so-called "constitutional separation of church and state," persist in denying the use of public facilities to religious groups.

(The fact that officials place the word "constitutional" in the same phrase with "separation of church and state" is unequivocal proof that they are unfamiliar with the Constitution. The separation phrase appears nowhere in the Constitution or in any of the official discussions surrounding the framing our founding documents; there is therefore no "constitutional" separation of church and state.)

One example of public officials refusing equal access recently occurred in Watertown, New York. Pastor Robert Mikowski of Relevant Church sought permission to use the Dulles Office Building for Easter services, but was refused on the basis of "separation of church and state." When the church took the city into federal court, [33] the city relented and permitted the services. As the attorney who represented the church explained: "Government officials do not have the right to discriminate against Christian groups by singling them out for exclusion. Once the state opens up a building for community groups to rent, state officials must be fair and allow equal access to all groups, including churches."

(The church was represented by Joe Infranco of Alliance Defense Fund.)

Faith-Based Programs

The government has specific responsibilities toward its citizens, including in areas such as criminal justice, domestic programs, veteran's care, etc. Years of experience have unequivocally proven that the government itself is often the least effective means of delivering its own services. Therefore, for the past several decades the government has aggressively pursued the free-market principle of outsourcing – of contracting with private sector entities that compete with each other to provide specific public services with the greatest efficiency and lowest cost. Statistics indicate that faith-based groups are some of the most effective service providers.

For example, the average cure rate in government-run drug rehab programs is under 20 percent, [34] but the cure rate for faith-based drug rehab programs such as those offered by Teen Challenge is over 70 percent. [35] Similarly, 67 percent of those released from government prisons (either state or federal) will return to prison within 2 years after their release, [36] while only 8 percent of those incarcerated in a faith-based prison will return [37] – a recidivism (relapse) rate almost ten time lower than the government rate.

The impact of these faith-based programs is substantial both in economic and human terms. That is, when there is a 90 percent reduction in inmates returning to prison, then there is a commensurate reduction in the economic amounts expended to fund law enforcement, courts, and prisons, thereby saving billions of dollars, reducing government spending, and substantially decreasing the burden on taxpayers. However, beyond the economic considerations is the human factor. Nearly two million children have one parent incarcerated, [38] and seven million have a parent under state or federal correctional supervision; [39] statistics show that these children are seven times more likely to have trouble with the law, and that seventy percent of them will end up in prison. [40] But with faith-based prisons dramatically reducing the number of parents in prison, the family cycle of crime is more quickly broken, thereby reducing future crimes, crime victims, and criminal justice expenditures.

Faith-based programs work; but it must be clearly stated that the government does not seek out faith-based groups. When it seeks to provide a service, it simply releases the criterion for that particular program and then permits every provider, including faith-based ones, to compete together in the open marketplace to meet the requirements and provide that service. The proper concern of government is that its services be delivered, not whether the provider delivering the service is religious, secular, or anti-religious.

Two centuries ago Thomas Jefferson made this point in his 1781 work, Notes on the State of Virginia. He described the early British policy in America and how it began to change after the Revolution:

By our own act of [the Virginia] Assembly of 1705, if a person brought up in the Christian religion denies the being of a God, or the Trinity, or asserts there are more Gods than one, or denies the Christian religion to be true or the Scriptures to be of Divine authority, he is punishable on the first offence by incapacity to hold any office or employment ecclesiastical, civil, or military; on the second by disability to sue, to take any gift or legacy, to be guardian, executor, or administrator, and by three years imprisonment without bail. . . . But our rulers can have no authority over such natural rights only as we have submitted to them. The rights of [religious] conscience we never submitted – we could not submit. We are answerable for them to our God. The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg. [41] (emphasis added)

According to Jefferson, it is not appropriate for government to examine whether someone believes in God, or in twenty gods, for it is not the business of government to establish any religious orthodoxy – not even the anti-religious orthodoxy that secularists so fervently desire should become government policy. Yet, in the time of transition following the American Revolution, some early measures did wrongly focus on who an individual was rather than what he did.

For example, provisions in the constitutions of Georgia, New York, Virginia, and other states contained a provision to the effect that "No clergyman of any denomination shall be allowed a seat in the legislature." [42] While those policy-makers believed that the work of ministers was too important to be sidetracked by serving in the legislature, [43] it was nevertheless a policy that treated a person differently simply because he was a minister. Several Founding Fathers vehemently denounced such policies – including Thomas Jefferson, who declared:

I observe . . . [in the Virginia] Constitution an abridgment of [a] right . . . I do not approve. It is the incapacitation of a clergyman from being elected. [44] (emphasis added)

Ironically, secularists today have adopted the very policy already rejected by the Founding Fathers – they believe that if someone is involved in ministry, then he should be disqualified from delivering government services. And although atheists and secularists should praise the work of faith-based groups because of the success they achieve both in economic and human terms, they instead attempt to disqualify faith-based groups from providing even purely secular services such as feeding the homeless or manning hospices and AIDS shelters. Because of their unmitigated religious bigotry, secularists groups regularly file suit against the government and its faith-based providers.

For example, the U. S. Department of Health and Human Services (HHS) offers programs to strengthen marriages – for obvious reasons, including the fact that nearly 90 percent of the increase in violent crime between 1973 and 1995 was committed by those raised in a broken home, or a home where a mother and a father was not present. [45] Similarly, the murder rate is highest among children raised in those homes, [46] gang involvement is almost twice as high, [47] and 75 percent of juvenile criminals come from such homes. [48] Furthermore, those children are more likely:

· To be abused (abuse is up to 40 times more likely if children are in a home without a mother and a father) [49]

· To end up in jail as adults [50]

· To suffer depression, suffer mental illness, and need psychiatric treatment [51]

· To be expelled from school, repeat a grade, have behavior problems [52]

· To use drugs and be sexually active [53]

Additionally, the average annual income of an intact traditional family is $48,000, while the average annual income of a single-parent (usually a mother) is only $15,000, [54] thus producing what is termed the feminization of poverty.

Clearly, strong marriages reduce the need for federal spending in HHS programs by billions of dollars, not to the mention the positive impact of strong marriages on children. For this reason, HHS offers grants for programs to strengthen marriage.

One group that received a federal grant for marriage-strengthening seminars was Northwest Marriage Institute (NMI) in the state of Washington. NMI offers both biblically-based and secular marriage education seminars, but with federal grant money, it offers only secular marriage workshops for low-income couples. In fact, the ads publicizing those workshops openly announce that "because [the seminars] are funded by the U.S. Department of Health and Human Services, they will contain no religious indoctrination or scriptural references." Yet, even though the seminars were completely secular, the radical group Americans United for Separation of Church and State (AU) filed suit against NMI simply because they were a faith-based group delivering secular services. AU's suit demanded a payback of the federal grants that NMI had received as well as a prohibition against receiving any future grants, but federal judge Franklin Burgess threw the suit out of court. [55] As confirmed by the attorney handling the case for NMI, the judge "quickly dismissed this latest attempt to prevent Christians from participating in publicly funded programs."

(The case was handled by attorneys from the Alliance Defense Fund; Judge Franklin Burgess was appointed to the federal bench in 1993 by President Bill Clinton.)

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A similar law suit was filed against the faith-based activities and programs associated with the Veterans' Administration. In assessing the needs of its patients (some 5.3 million veterans were treated at VA facilities last year), the VA asks a battery of questions, including some about whether faith has any role in its patient's lives so that they can better identify the services needed. The VA (like the rest of the military) provides chaplains for their hospitals and those in out-patient care, and also offers the option of faith-based drug and alcohol treatment programs. In every case, the services are completely voluntary and used only by those who request them.

Yet, simply because these services were available on request, the Freedom From Religion Foundation (FFRF) filed suit to halt all the faith-based programs and services, including the use of chaplains. After initial hearings to consider the objections of FFRF, federal judge John Shabaz, like the judge in the faith-based marriage suit in Washington, dismissed the case, explaining: "The choice to receive spiritual or pastoral care, the choice to complete a spiritual assessment, and the choice to participate in a religious or spiritually based treatment program always remain the private choice of the veteran. Accordingly, there is no evidence of governmental indoctrination of religion." [56] As the Associated Press noted, Judge Shabaz took the position that "religion can help patients heal, and is legal when done on a voluntary basis." [57]

(Judge John Shabaz was appointed to the federal bench in 1981 by President Ronald Reagan.)

By David Barton Click here for bio and archived articles