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«Fordham Urban Law Journal Volume 24, Issue 3 1996 Article 5 Linking Genes with Behavior: The Social and Legal Implications of Using Genetic Evidence ...»

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I don't think a little prayer is a small thing. It excludes. They forced me to pray to someone else's God. That is a big deal....

When I am forced to participate in a ritual.., it's an attempt to make me different from what I am-to change my identity, to make me conform."' The desanctification of religion that results from the erosion of the wall separating it from government was deplored by Justice Harry Blackmun in a 1984 opinion. He was dissenting from the majority's rejection of an Establishment Clause challenge to a nativity scene that was sponsored by the City of Pawtucket, Rhode Island, in Lynch v. Donnelly."1 As an aside, harking back to my initial comments about how important it is to maintain one's sense of humor about these issues, I would like to quote a humorous barb that the Mayor of Pawtucket aimed at the ACLU, which brought the constitutional challenge to

110. Lynch, 465 U.S. at 688 (O'Connor, J., concurring).

111. William H. Freivogel, They Forced Me to Pray To Someone Else's God, ST.

Louis PosT. DISPATCH, Oct. 29, 1991, at lB.

112. 465 U.S. at 726-27 (Blackmun, J., dissenting).


1997] his city's creche. He quipped that the ACLU was opposing this government-mounted nativity scene due to jealousy, since "in the 113 whole organization there aren't three wise men or a virgin!"' In a far more serious vein, that same Mayor explained that his government supported the creche display for the quintessentially religious purpose of "putting Christ back in Christmas.""' 4 Far from honoring that religious impulse, though, the Supreme Court's majority did exactly the opposite. In order to bolster their conclusion that this government-sponsored display was consistent with the Establishment Clause, the majority de-emphasized both the religious aspect of the creche display and the religious nature of Christmas, treating it as part of a broader "winter-holiday sea- 6 son" 15 and emphasizing its secular and commercial aspects."

From Justice Blackmun's perspective, this approach was demeaning to his Christian beliefs, as he explained:

While certain persons, including the Mayor of Pawtucket, undertook a crusade to "keep Christ in Christmas," the Court toThe day has declared that presence virtually irrelevant....

creche has been relegated to the role of a neutral harbinger of the holiday season, useful for commercial purposes, but devoid of any inherent meaning and incapable of enhancing the religious tenor of the display.... The city has its victory-but it is a Pyrrhic one indeed.... I cannot join the Court in denying either the force of our precedents or the sacred message that is at the core of the creche.

Ironically, though, five years later, it was Justice Blackmun who held that-at least when displayed next to a municipally sponsored Christmas tree outside a government building-the menorah was a primarily secular symbol." 8 He wrote that the combined display of the tree and the menorah "simply recognizes that both Christmas and Chanukah are part of the same winter-holiday season, which has attained a secular status in our society." 1 9 Justice O'Connor


113. Laura M. Litvan, Vienna Protests Ban of Religious Songs, WASHINGTON TIMES, Dec. 7, 1992, at Al.

114. Donnelly v. Lynch, 525 F. Supp. 1150, 1161 (1981) (noting that "[tihe Mayor's insistence on preserving the creche was lauded by many as a determination to 'keep Christ in Christmas' and, more broadly, to keep God in American life").

115. Lynch, 465 U.S. at 680 (the generic phrase "winter-holiday season" later appeared in Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 575 (1989)).

116. Id.

117. Lynch, 465 U.S. at 726-27 (Blackmun, J., dissenting) (citations omitted).

118. Allegheny, 492 U.S. at 613-615.

119. Id. at 575.

FORDHAM URBAN LAW JOURNAL [Vol. XXIV Chanukah is a religious holiday with strong historical components particularly important to the Jewish people. Moreover, the menorah is the central religious symbol and ritual object of that religious holiday. Under Justice Blackmun's view, however, the menorah "has been relegated to the role of a neutral harbinger of the holiday season," almost devoid of any religious significance.' 20

Justice Brennan agreed with her when he wrote:

Indeed, at the very outset of his discussion of the menorah display, Justice Blackmun recognizes that the menorah is a religious symbol.... That should have been the end of the case.

But, as did the Court in Lynch, Justice Blackmun, "by focusing on the holiday 'context' in which the [menorah] appeared, seeks to explain away the clear religious import of the [menorah].... By the end of the opinion, the menorah has become but a " coequal symbol, with the Christmas tree, of "the winter-holiday season."... Pittsburgh's secularization of an inherently religious symbol, aided and abetted here by Justice Blackmun's opinion, recalls the effort in Lynch to render the creche a secular symbol. As I said then: "To suggest, as the Court does, that such a symbol is merely 'traditional' and therefore no different from Santa's house or reindeer is not only offensive to those for whom the creche has profound significance, but insulting to those who insist for religious or personal reasons that the story of Christ is in no sense a part of 'history' nor an unavoidable element of our national 'heritage."'... As Justice O'Connor rightly observes, Justice Blackmun "obscures the religious nature of the menorah and the holiday of Chanukah...."12 As the preceding discussion has made clear, far from being hostile to religion, a strong defense of the Establishment Clause to the contrary is supportive of religion. Conversely, as I have already explained, 22 those who have only a weak, limited view of the Establishment Clause are insensitive to the religious beliefs and practices of members of minority faiths.

The Myth That Christians in the U.S. Today Suffer C.

Systematic Discrimination The current drive to limit the Establishment Clause and to permit some government-sponsored religious exercises is driven by yet another pervasive myth: that Christians in the United States today

120. Id. at 633.

121. Id. at 643-44 (O'Connor, J., concurring) (citations omitted).

122. See supra text accompanying notes 108-110.


1997] suffer systematic discrimination. This was a rallying cry in Pat Buchanan's campaign for the Republican Presidential nomination. 123 It was also a theme echoed in a widely-publicized talk that Justice Scalia gave at a prayer breakfast at a Baptist law school in Mississippi this spring. 24 Again, though, the exaggerated claims do not match the reality. In the United States, Christians in general, and evangelical Christians in particular, hardly face the systematic persecution that members of other religious denominations have suffered at various periods in U.S. history and in particular parts of the country.

There are undeniably instances in which particular Christian ministers, worshipers, and congregations have suffered attacks on their religious freedom. In such instances, the ACLU has defended the rights of victims of such violations, as we have defended the

123. See Patrick J. Buchanan, Bellicose Barrage of Christian-Bashing, WASH.

June 15, 1995 (asking "'Are you now or have you ever been a Christian?' The TIMES, way things are going, congressional committees are likely to be asking that question in a few years."); Amy Bayer, Fighting Words Cost Buchanan While Critics Assail His In-Your-Face Rhetoric, He Remains Unapologetic,SAN Mar. 12, DIEGO UNION-TRIB., 1996, at B12 (quoting Buchanan: "We live in an age where the ridicule of blacks is forbidden, where anti-Semitism is punishable by political death, but where Christianbashing is a popular indoor sport."); cf. Stephen Bates, The Christ CoalitionNobody Knows, THE WEEKLY STANDARD, Sept. 25, 1995, at 36 (discussing a comment by Ralph Reed that the Christian Right seeks a constitutional amendment guaranteeing freedom of religious speech in schools to keep schoolchildren from being discriminated against for expressing religious beliefs in public places).

124. Suzanne Fields, Public Discussions Must Find a Placefor Religious Faith, THE DALLAS MORNING NEWS, May 19, 1996, at 5J (noting that "Supreme Court Justice Antonin Scalia, a Catholic, speaking to a prayer breakfast at the Mississippi College School of Law, a private Baptist institution, received a standing ovation when he said, 'We must pray for the courage to endure the scorn of the sophisticated world"').

125. In contrast, Christians do constitute a persecuted religious minority in other countries. See In the Lion's Den, Puebla Program on Religious Freedom at Freedom House (profiling eight countries where the persecution of Christians has been most treacherous in recent years. The study details the abuse, incarceration and killing of Christians in China, Egypt, Nigeria, North Korea, Pakistan, Saudi Arabia, Sudan, and Vietnam); Tom Carter, Christians Face Eternal Struggle; Persecution Worsens as West Watches, WASH. TIMES, Sept. 30, 1996, at A16 (noting that both Houses of Congress, in recognition of the world-wide onslaught, have approved resolutions supporting national day called "Persecution Sunday"). A.M. Rosenthal has written a series of columns that highlight the plight of Christians worldwide. See, e.g., A.M. Rosenthal, On My Mind: Questions From West 47th Street, N.Y. TIMES, June 10, 1997, at A27 (noting "persecution of Christians must be written about with consistency because it is taking place with consistency-more, not less."); A.M. Rosenthal, On My Mind&Facing the Deniers, N.Y. TIMES, May 20, 1997, at A23 (noting that "China prohibits Christians from worshiping in any churches except those 'patriotic' ones that submit to the Communist Party's religious-domination apparatus-registration, regulation, control of clerical appointments and censorship reaching into altar and pulpit, like forbidding preaching the Second Coming.").

454 FORDHAM URBAN LAW JOURNAL [Vol. XXIV rights of individuals and organizations of other religions (or of no religion) when they have been subject to similar attacks. 126 But there is no broad pattern in the U.S. of Christians suffering discrimination or hostility. To the contrary, Christians are in the ascendancy, both throughout our political system in general and in many school systems in particular. 127 Far from being the objects of ridicule, they are celebrated and courted by every major political figure.' 28 President Clinton, Bob Dole, and other political officials and candidates routinely invoke God's blessing in public speeches. 29 As columnist Katha Pollitt recently noted in The Nation, it would be the kiss of death for a candidate, in contrast, to express an anti-Christian or anti-religious view.' 30 The actual victims of persecution, discrimination, hostility, and ridicule-and worse-are not those who practice religion and seek government support for religion, but rather, those who dare to stand up for Establishment Clause values and to oppose government-sponsored religion. Many ACLU clients in Establishment Clause cases have suffered physical attacks on themselves, their families, their pets, their homes, and their property, as the price for defending religious liberty.

The ACLU often receives complaints from parents, students, and other members of the community about incidents involving government-sponsored indoctrination and inculcation of religion, including in the public schools, as well as persecutions, attacks, and criticisms because they are members of a minority religion. Often these victims of religious liberty violations do not want to pursue their legal remedies, even when we assure them they would win, because of the hostility, eiimity, persecution, and attacks they

126. The ACLU has supported the religious freedom of, for example, Amish, Catholics, Hmong, Jehovah's Witnesses, Jews, Presbyterians. See generally SAM WALKER, IN DEFENSE OF AMERICAN LIBERTIES: A HISTORY OF THE ACLU (1990).

127. See John Nichols, American Politics Needs a Religious Left, CAPITAL TIMES, Sept. 19, 1996, at 12A (noting that "[t]he growth in political influence experienced by the Christian Coalition is testimony to the fact that Reed is a savvy political strategist.").

128. See James Robinson, Candidates Paying Less Attention to the Religious Right, AGENCY FRANCE PRESSE, Oct. 18, 1996 (stating, despite the article's title, that "Dole, and to a lesser extent Clinton, are trying... to court conservative Christians while hoping not to turn off middle-of-the-road centrist supporters.").

129. See Richard Scheinin, A Rise in PresidentialPiety, THE TAMPA TRIBUNE, Oct.

5, 1996, at 4 (stating that "Clinton emphasizes his Southern Baptist roots and Dole his traditional Christian beliefs."). See also Bates, supra note 123, at 36 (noting that "President Clinton has repeatedly tried to reach out to conservative Christians.").

130. See Peter Steinfels, Beliefs, N.Y. TIMES, Jan. 27, 1996, at 10 (discussing Ms.

Pollitt's view that American politics is "drenched in religion.").

RELIGION AND POLITICS 455 1997] would face. I fully sympathize with their reluctance to make themselves into pariahs or even martyrs.

Too many ACLU clients who have asserted their First Amendment right to be free from government-sponsored religion have suffered tangibly, as well as psychologically, for doing so. Many have suffered physical assaults upon themselves and their property.

One brave woman, Joann Bell, had her home burned to the ground because she dared to stand up for separation of church and state in a case involving the public elementary and junior high schools that her daughter and two sons attended in Little Axe, Oklahoma.1 ' The U.S. Tenth Circuit Court of Appeals agreed with Joann, her co-plaintiff Lucille McCord (who had two children in the Little Axe schools), and the ACLU that the school violated the Establishment Clause by sponsoring organized student prayer meetings at the beginning of the school day.

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