By Charles C. Haynes, Director of the Religious Freedom Education Project
at the Newseum
Religious freedom is hugely popular in America — until, of course, it’s applied to unpopular groups.
Consider North Windy Ridge Intermediate School in Buncombe County, N.C. In December, school officials arranged for students to come by the office during break to pick up Bibles donated by the Gideons.
In the view of many people in the community (especially those of the majority faith), outside groups like the Gideons should have a religious liberty right to distribute Bibles in public schools.
But then Ginger Strivelli, a parent with a child in the school, brought pagan spell books for the school to make available in the same way — and, poof, the distribution policy disappeared.
Strivelli didn’t actually want the school to give out religious material of any kind. But after her complaints about Bible distribution were rebuffed, she decided to test the school district’s commitment to equal treatment.
According to a story in the Asheville Citizen-Times, the school’s principal was all for fair play in December: “If another group wishes to do the same,” she said at the time, “I plan on handling that the same way as I have handled this.”
By January, however, the school district had decided that maybe the whole distribution thing wasn’t such a good idea after all.
It may be legal for school administrators at North Windy Ridge to arrange for “passive” distribution of religious materials (at least one lower court has upheld such a policy), but if, and only if, they are willing to give the same access to a wide variety of religious and community groups. That’s unlikely to happen in Buncombe County.
Strivelli’s strategy of demanding “equal treatment” has been successfully used by other minority groups to push back against what they see as the privileged place of the majority faith in the public square.
In recent years, for example, atheists have moved from demanding removal of crèches from government spaces in December to demanding equal treatment for their own message. Now many government buildings and public parks during the holiday season feature messages like “There are no gods, no devils, no angels, no heaven, and no hell” alongside Nativity scenes and menorahs.
Not surprisingly, the “equal treatment” tactic angers many people of the majority faith (atheist “holiday signs” in Santa Monica, Calif., were vandalized last year). But in other First Amendment arenas, equal treatment is exactly what many Christians demand for themselves when they believe government is unfairly excluding their organizations from programs or services.
In recent decades, for example, conservative Christian groups have argued that the First Amendment’s Establishment Clause doesn’t bar faith-based institutions from receiving taxpayer money in the form of school vouchers or funds for social service programs on the same basis as secular organizations. And on the school voucher question, at least, the U.S. Supreme Court has agreed.
“Equal treatment” is a siren song few faith communities can resist. But applying it is often messy for government at best — and dangerous for religion at worst. In a country with thousands of religious groups, how can schools or city halls open the door to all? And if and when state money flows to religious institutions, what happens to the independent and prophetic voice of faith?
Wherever the courts ultimately draw the Establishment Clause line on these difficult questions (and there are many line-drawing battles to come), the days of an unlevel playing field are numbered. The legal trend is clear: If government provides access or benefits to some, it had better be prepared to provide the same for all.
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Last month, this column explored the legal process by which litigants can seek review of a case by the U.S. Supreme Court, which begins when one party files a petition for a writ of certiorari. Shortly after the column appeared, the Court declined to review lower court decisions in two additional religious liberty cases, both of which involved prayer practices of government bodies and tested the boundaries of legislative prayers allowed under Marsh v. Chambers (1983). In Marsh, the Supreme Court recognized a narrow Establishment Clause exception for nonsectarian legislative prayers that serve as a “tolerable acknowledgment of beliefs widely held among the [American] people,” with “no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.”
While denial of certiorari should not be interpreted as signifying the High Court’s approval of or agreement with the lower court holdings, the denials were nonetheless welcome. The decisions below reflect a proper application of religious liberty case law, recognizing that sectarian prayers by public officials undermine religious liberty and degrade religion by entangling it with government. The Supreme Court was right to deny the public officials’ request for review — in one case, a school board, and in another, a county board of commissioners.
In Indian River School District v. Doe, a public school board had a longstanding practice of praying during its public meetings, which were often attended by district students. The school board’s official written prayer policy appeared to permit all types of prayer, and formally prohibited prayers advancing or disparaging any particular faith or belief. But the record showed that in practice, the prayers recited were almost always — and exclusively — Christian. When the prayers were challenged in court, the school board claimed it was a legislative body entitled to the narrow Marsh exception allowing neutral prayers at legislative sessions. The 6th U.S. Circuit Court of Appeals rejected that contention, finding instead that the proper legal framework for determining whether the prayers violated the Establishment Clause was the analysis used in public school cases. The appellate court emphasized “the need to protect students from government coercion in the form of endorsed or sponsored religion.” According to the court, the Indian River School Board meetings resembled other school events like graduations or extracurricular activities, where the Supreme Court has said there are special concerns about indirect coercion and the appearance of official sponsorship of religion. School board meetings are different than meetings of other legislative bodies because their business is uniquely related to school matters, and they represent a different type of “constituency”: students. The court concluded that the board’s prayer practice violated the Establishment Clause because it had the primary effect of advancing religion, and it resulted in excessive government entanglement with religion.
In Joyner v. Forsyth County, a county board of commissioners maintained a formal prayer policy that appeared neutral on its face but, in practice, had the effect of advancing Christianity. The 4th U.S. Circuit Court of Appeals held that the prayers violated the Establishment Clause because they were overwhelmingly sectarian and “repeatedly suggest[ed] the government has put its weight behind a particular faith.” Marsh notwithstanding, a public body’s prayer practice may never be used to advance, disparage or prefer one specific faith or belief. The Forsyth County Board’s prayers exceeded those limits and, as a result, could not withstand constitutional scrutiny.
As Christians, we know that we can pray to God at any time and in any place, so there is no real threat to prayer when the Establishment Clause is interpreted to prohibit prayers in certain government-sponsored contexts like school board or county commissioner board meetings. Students, too, are free to pray voluntarily at various times of the school day, absent school involvement or disruption to others. There is simply nothing constructive to be gained from official prayer that advances or harms a particular religion. On the contrary, such prayers threaten individual freedom of conscience and violate the First Amendment’s promise of religious liberty for all.
