There has been a recent flurry of lawsuits alleging violations of the First Amendment’s Establishment Clause, which calls for the separation of church and state.
Among the more high-profile cases was a challenge to traditional prayers uttered at the presidential inauguration ceremony.
An unsuccessful lawsuit was filed in U.S. District Court in the District of Columbia by California atheist Michael Newdow to ban prayer at President Bush’s inauguration to a second term in office last month.
Judge John Bates, in his 50-page decision, noted, “There is a strong argument that the public interest would be served by allowing the 2005 inauguration ceremony to proceed on January 20 as planned. That would be consistent with the inclusion of religious prayer or reference in every inauguration commencing with the first inauguration of President Washington in 1789. To do otherwise, moreover, would at this eleventh hour cause considerable disruption in a significant, carefully planned, national event, requiring program and other adjustments.”
Bates also noted that clergy prayers have been given at every presidential inauguration since the 1937 inauguration of Franklin D. Roosevelt, and concluded that Newdow could not prove that he would suffer any legal injury from prayers offered at the ceremony.
Newdow lost a similar lawsuit that sought to bar prayers during the 2001 inauguration.
Newdow called inaugural prayer “constitutionally offensive oratory” and said that prayers offered at the 2001 inauguration made him feel like “a second class citizen.”
The inaugural prayer issue was the latest in a series of legal actions taken by Newdow to remove religious references from public, government sponsored ceremonies and institutions.
Last year, a federal judge dismissed Newdow’s lawsuit challenging the use by Congress of chaplains to offer prayers when the House and Senate begin their session each day.
In addition, the U.S. Supreme Court rejected Newdow’s move to have the phrase “under God” removed from the Pledge of Allegiance. The justices ruled that Newdow lacked the legal standing to bring the challenge because he did not have custody of his daughter, an elementary student at a public school. That prompted Newdow to file a similar pledge lawsuit last month, this time with several custodial parents.
The inaugural lawsuit struck a chord with a number of religious leaders and conservative organizations.
Jay Sekulow, chief counsel of the American Center for Law and Justice, who filed a friend-of-the-court brief on behalf of the President and the inaugural committee, said Newdow is “on a national crusade to remove every vestige of religious heritage from America’s public life.”
Sekulow added, “He is attempting to completely eliminate a time-honored tradition that is really part of the American experience. It would be ironic that a nation founded on religion would sever its religious ties.”
Rev. Louis Sheldon, chairman of the Traditional Values Coalition, said, “It is appalling that Christians are being singled out by Mr. Newdow for this sort of harassment. Mr. Newdow should be ashamed for seeking this injunction against his fellow citizens. We, as Americans, need to awaken and deal with these threats to religious liberty, cynically disguised as ‘civil liberties’ defense.”
National Clergy Council President, Rev. Rob Schenck, noted, if Newdow did not wish to bow his head or recognize the prayer, he could have talked or read during it, or just walked away.
“Sadly, over the last 25 years, we have seen a systematic erosion of religious freedom in the public square. We have been quiet, but those days are now over. We will not be silent. Our voices will be heard,” Schenck said.
Jim Backlin, vice president of Legislative Affairs of Christian Coalition of America, summed it up this way: “Michael Newdow temporarily caused school children in western states to stop reciting the Pledge of Allegiance because he was offended by the words ‘under God’ in the pledge. Thank God there are still federal judges–including the Supreme Court justices who threw out Mr. Newdow’s Pledge of Allegiance lawsuit last year–who reject the goals of a tiny vocal minority trying to impress their anti-God prejudices on more than 80 percent of Americans who hold traditional values and want God to remain in the public square.”
In another case of note, a federal judge in Atlanta last month ruled that evolution disclaimer stickers placed in the science books of students in the Cobb County, Georgia, public school district, violate the Establishment Clause.
The sticker states: “This textbook contains material on evolution. Evolution is a theory, not a fact, regarding the origin of living things. This material should be approached with an open mind, studied carefully, and critically considered.”
The school system defended the stickers, which were placed in the textbooks in 2002, as a show of tolerance, not religious activism.
School district attorney Linwood Gunn said, “Science and religion are related, and they’re not mutually exclusive. This sticker was an effort to get past that conflict and to teach good science.”
However, U.S. District Judge Clarence Cooper disagreed: “While evolution is subject to criticism, particularly with respect to the mechanism by which it occurred, the sticker misleads students regarding the significance and value of evolution in the scientific community.”
The ruling was hailed by Rev. Barry Lynn, executive director of Americans United for Separation of Church and State.
“This is a great decision with national significance. These textbook disclaimers are part of a national campaign to undercut the teaching of evolution in public schools in accordance with fundamentalist Christian beliefs. Public schools may not be used to advance religious dogma, and the court has rightly upheld that principle,” Lynn said.
Brian Fahling, senior policy advisor for the American Family Association’s Center for Law and Justice, sharply criticized the decision.
“It is troubling enough when the scientific community itself forecloses critical examination of its pet theory; it is positively frightening when the federal judiciary steps in to enforce that intolerance toward critical thinking and open inquiry in our public schools.
The theory of evolution has far too long been shielded from critical examination. The tired old tactic of shrieking ‘fundamentalist’ or ‘creationist’ every time a question about evolution arises is wearing thin. Dissenting voices in the scientific and academic communities are increasing in number despite tremendous institutional pressures to conform to the orthodoxy of philosophic naturalism,” Fahling said.
Another ruling last month dealt with a faith-based organization. A U.S. district court judge ordered the federal government to stop funding a faith-based group in Phoenix that mentors children of prisoners. The Wisconsin judge found that the Department of Health and Human Services grant to MentorKids USA, violated the Establishment Clause. The judge ruled in favor of a lawsuit filed by the Madison-based Freedom From Religion Foundation.
The judge noted, the program hires only Christians as mentors, and encourages them to share the Gospel with the youth they counsel, a point underscored by Foundation Co-President, Annie Gaylor.
“What is being legitimized by this decision is public funding of religiously-exclusionary groups which say ‘anyone may apply,’ but which admit giving preference to applicants of their own faith!”
MentorKids USA Executive Director Daryl Reese said the program had received $60,000 of a three-year grant that would have totaled $225,000.
“MentorKids USA has acted with integrity in the use of federal funds. These funds were always used to help adult mentors be positive influences for at-risk children, and never to preach,” Reese said.
Also last month, a federal appeals court upheld the city of La Crosse, Wisconsin’s move to sell a Ten Commandments monument situated in a public park and the land around it to the Fraternal Order of Eagles. The same chapter of the Eagles had donated the monument to the city in 1965.
The city took such action after the Freedom From Religion Foundation and two residents filed suit in 2002, on grounds that the display violated the separation of church and state.
Francis Manion, senior counsel of the ACLJ, presented oral arguments before the 7th U.S. Circuit Court of Appeals court on behalf of the Eagles.
“The appeals court is correct in determining that the arrangement by which the city sold the monument and the land it sits on to the Eagles– a private organization–is constitutional, and a reasonable solution to keeping the monument in place,” Manion said.
The Seventh Circuit opinion also recognized, the U.S. Supreme Court will soon consider the constitutionality of Ten Commandments displays.
The high court agreed to hear two such cases. The case in Texas involves a Ten Commandments display erected on the grounds of the state capitol in Austin in 1961. The other case pertains to framed copies of the Ten Commandments that were placed in courthouses in two Kentucky counties. Both cases are set for oral argument in March.
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