And Justice for All?: Accomplished Constitutional Lawyer William Ball Offers Much-Needed Counsel on Religious Freedom in Education

Attorney William Ball of Harrisburg, Pennsylvania, is widely respected for his success in defending First Amendment religious freedoms, and some of his cases have resulted in landmark court decisions. In one of them, the Amish won the right to continue educating their children in their own schools. In others, Ball showed that attempts by state education departments to impose bureaucratic standards upon small religious schools and their teachers violated the right of free exercise of religion, and that those rules did not guarantee good education.

Ball believes the state does have a proper, though limited, role in ensuring the quality of education in religious schools because the citizenry as a whole (“We the people …”) has a legitimate interest in educating the young. Although strongly against too much government interference, Ball differs from some fundamentalist lawyers whose strenuous efforts to divorce religious schools from every trace of government contact have caused ugly confrontations, unnecessarily lost lawsuits, and, in Ball’s view, damage to the cause of free religious exercise. The interview was conducted in the CHRISTIANITY TODAY offices by Gilbert Beers and Tom Minnery.

We seem to be reading more and more about courts ruling against the rights of parents to educate their children in private religious schools. Is there a trend here?

I don’t think you can spot any trend. There are cases both in federal and state courts presently. There have been cases where the courts have agreed with the religious schools. There have been cases in which the courts have disagreed with the religious schools. Other cases around the country haven’t gotten to the state supreme court level yet or have not been adjudicated by a federal court. So it’s difficult to speak of a trend. The Supreme Court has not actually addressed the critical issues involved in these cases to which you refer. In other cases it has laid down principles and expressed ideas and dicta—and lawyers draw on all these things when they try to make their own cases.

Then the jury, so to speak, is still out?

Right. The U.S. Supreme Court has not yet spoken finally on the issue of whether the state may certify the teacher before that person can teach in a religious school, or whether a religious school must get a permit to exist, a license from the state.

Seven fathers of school children from the Faith Christian School in Louisville, Nebraska, were sent to jail for refusing to testify in court. The state was trying to shut down the school because it did not have a state license. Citing freedom of religion, the church operating the school refused to seek a license, and for a time the pastor, Everett Sileven, was in jail himself. All told, it was an ugly, ugly incident. Is there any way it could have been avoided?

On the one hand, it’s the ugliness of an injunction to shut down a school at a time when we desperately need schools; at a time when the private school is saving the taxpayers money; at a time when the public is strapped for funds; and at a time when government is constantly trying to find new ways to get money.

But there’s another side to the ugliness. As you know, if I am given an order by a court that says, “You shall not picket that store,” or “You shall cease polluting,” or “You shall cease to operate that school,” and I say, “No, I won’t, I’ll continue to do these things,” then the courts will hold me in contempt. Generally, court orders must be obeyed. Our judges are sworn to uphold the law. Where do they find the law? In our society they turn to what the highest court of the state, or of the nation, has decided. Then they must apply that law, the law of the land.

In the Nebraska case, not only the supreme court of Nebraska had decided that Faith Christian School could not open, but the Supreme Court of the United States had affirmed that. So the little judge at the county level had no choice but to say, “Pastor, you are in contempt of my order, you are in contempt of court.” Punishment for disobedience is normally by fine or incarceration. At this stage the local court is not trying the basic case. The misconception that a lot of people have about the Nebraska case is their confusion of the original case with the later contempt proceedings. The original Faith Baptist case had been litigated years ago. The present bad situation in Nebraska—the jailings, demonstrations, and so forth—relates to simple contempt of court.

One other thing has to be said about these contempt proceedings, which have been extremely harsh. The jailing of those fathers is incredible. To exact a mild fine would sufficiently preserve the integrity of the law until possibly the courts would reconsider the matter. These jailings seem to me a barbarous thing—East German stuff.

What would be your advice if these were your clients? Not to go against the court’s order?

That obviously poses a frightfully difficult question. No, I couldn’t advise my client that. I think that the lawyer ought never take over the conscience of his client. Here the client has said, “I must offer religious education and it’s my duty to do it. I must do that even though I may face jail in a contempt proceeding.” I don’t think it’s the lawyer’s position to say, “Put your conscience aside and don’t get into trouble.” What the lawyer can say is, “They can jail you, they can fine you.” If the client understands that, that’s the end of the matter. I don’t think the lawyer could advise the client not to resist. But should he advise him to resist? Again, I think that’s purely a matter of conscience for the client.

Is it constitutional for a state to license a religious school?

No.

Why?

A license is a permit to exist—a governmental permit to undertake an activity. We have lots of licensing in the country. We have had licensing of tradesmen, some of whom felt they would like to create their own little elite and diminish competition. But the courts have drawn the line on licensing of First Amendment activities. CHRISTIANITY TODAY, when it was founded, didn’t feel it had to go to the state to get permission to start a magazine.

There is not an area in which licensing is more obnoxious than the licensing of religious expression. You may say that it’s one thing to license a church, but what about a church’s school? Is that the same thing? Yes, it comes to the same thing. In fact, the Supreme Court of the United States has held that a school operated by a church is an integral part of the religious mission of the church. It is the church, and the fact that it’s a school doesn’t divorce it from the church. So, when you speak of licensing the school, you are speaking of licensing a ministry.

Would you feel the same way about fire codes and things like that? Are there matters in which we should be subservient to the state?

Yes, that distinction keeps cropping up in many of these cases. In fact, it’s usually the ploy of the government attorney to get the pastor on the stand and then say, “Now let me ask you, do you have a sanitation license? Yes? Then you agree to accept licensing.” But most people I’ve represented in various cases believe that there is a supreme societal interest in the limited thing of, say, safety or a fire protection or a sanitation license. It involves no day-to-day control of the religious ministry. It involves a rather minimal inspection. And it’s true that if you don’t get the license, you don’t exist, so in that sense it’s a permit to exist. But that doesn’t bring with it the control of the ministry. The ministry of a religious school is teaching children and providing them with a nurturing, pervasively religious, atmosphere. That is a very different thing from a fire inspector showing up and saying, now we’re going to check these doors, the roof, and this and that. He’s in and he’s out, and that’s pretty much the affair.

Would the division be that in the licensing for sanitation, fire safety, and that kind of thing we are dealing with facilities?

Yes, I think that’s a good way to put it.

Suppose I came to you as the the principal of a religious school and said, “It is my sincerely held belief and that of my teachers that two plus two equals three. And we teach math based on that basis. And the state is trying to shut us down.” Would you take my case?

I wouldn’t represent you because you would, at least in my judgment, be trying to defend an absurdity. Now I realize that you will probably proceed from that question to say: Let’s suppose now a school is using a McGuffey Reader and a nineteenth-century approach. Would I then take the case? Well, that’s where I’d begin to say yes.

Some would consider the religious belief on separation of races at Bob Jones University to be in the same category as two plus two equals three. You took that case and defended it. What is the difference?

The Bob Jones case in my view didn’t involve any question of the intellectual verity of their teaching. There was a theological question as to whether God made three races at the outset and wanted them kept that way. If a client has a religious belief that I believe to be sincere and central to the person’s religion, then I must make an ethical judgment in taking a case. If I believe that the practice and belief are not something inimical to the common good (as, say, a belief in human sacrifice), I would feel perfectly right in representing the person.

In the Jones case, my first inquiry was whether this was a racist institution. I had to know that before I would listen to any importunings to take the case. I had not taken the case at the trial stage and took it only at the Supreme Court stage. I went into the trial records very carefully and found in my judgment a very credible case. Bob Jones University had a clear theological view. I found documentation going back before the whole stir over desegregation showed that they were teaching the three-race concept throughout their whole history. They simply believe, religiously, that the races should not intermarry. Their original restriction on intermarriage had taken the form of keeping all blacks out. Again I explored history and realized that they were initially a white religious group. The people who formed Bob Jones were white people, and they therefore did not come into being as a body of blacks and whites. They came into being white, and therefore they conceived that to preserve their intermarriage doctrine they should not admit people of any other color, whether oriental or black or whatever.

From our viewpoint, it was bad theology, the seed for racial enmity. Would there not be a case of compelling state interest in restricting a religion that says that certain people—blacks—can’t get into a school, that only whites can?

At this stage of the case when I became involved, blacks were admitted and were there. Barring of interracial dating continued.

But didn’t the case stem from a time much earlier?

When they were completely segregated? Yes, that’s correct.

Isn’t that an area in which the state has a compelling interest? That seems to be so clearly inimical to the public good.

Yes, I think that’s so. But it poses a problem. Let’s put this into a different context. Suppose that a number of non-Amish children want to join an Amish school. It seems to me that it doesn’t reject the humanity of those non-Amish people to say that they shall not come into the school.

Does the Bob Jones decision open the door for, let’s say, a white Anglo-Saxon woman to ask for enrollment in a Jewish seminary?

The rationale of the Bob Jones case is that to have tax-exempt status (an extremely valuable thing) you have to conform to “federal public policy.” “Federal public policy”: who knows what it means? What do those words mean? That’s the 64-dollar question the Bob Jones case leaves us with. We have “federal public policy” recited in congressional act after congressional act. The EPA, for example, says it shall be the policy of the United States that pollution shall be abated. But Hillary College’s septic tanks are polluting. Should Hillary lose its tax-exempt status? Is it offending “federal public policy” by polluting the environment? A very practical question arises with respect to sex differentiation. If a Jewish seminary admits only males according to its religious requirements and there is a federal public policy of sexual nondiscrimination, the seminary must be deemed to be discriminatory and lose its tax-exempt status.

Are we likely to find rulings like that—based on results of Bob Jones?

Nobody knows how likely we are to find cases succeeding Bob Jones that take the blank check of “federal public policy” and then write different things into it, but I think the stage is certainly set for the movement of “federal public policy” doctrine in the area of sex discrimination. The great question will be whether the U.S. Supreme Court, as it has upon occasion in the past, sidesteps the issue or simply never pursues it.

Let’s talk about public schools. Is prayer in public school proper or is the pluralistic nature of our country such that to introduce God in public school would be completely wrong?

Provision must be made for the enjoyment of religious liberty in the public schools. It’s true that for many the enjoyment of religious liberty takes place in a religious school. But there are parents who haven’t the financial resources to afford a tuition in a private school and there are parents for whom no such school is available. You might be a person of any religion—Catholic, fundamentalist, Orthodox Jewish—and be in a place where your child is going to have to go to public school. And in that event, shall the child be denied religious exercise within that school? The present state of the law is: yes.

How can a child’s religion be accommodated in the public school? I’ve always felt that the best way would be for an overruling of the McCollum decision of the 1940s. McCollum was the first in a series of cases that effectively dereligionized the public school. It held that you cannot have a minister, priest or rabbi come upon the school premises, assemble children of that faith, and instruct them in their religion. The Champaign, Illinois, plan considered in McCollum had been a carefully worked out interfaith agreement for providing that kind of accommodation.

The most important reason for it was that a child spends a very substantial part of his life in schooling—within the school walls. He is told that that is where he’s getting his education. If religion is not present, if it is barred from that whole process, the child inevitably comes to consider it irrelevant. It isn’t any part of his moral and intellectual learning environment. That teaches a very strong lesson. At the very least, the omission of religion teaches him that religion is nonessential.

The people in Champaign provided a way for religion to have a place in the educational setting. And it seems to me that one thing that is needed is an overruling in McCollum in order to reestablish some such plan.

What about prayer? Admittedly the sponsoring of prayer by the school, even though it’s a nondenominational prayer, may create offense to people who either disagree with the prayer or who have a violent religious objection to state sponsorship of the prayer. That presents a human difficulty.

Another matter that I think has been neglected in the prayer controversy is the question of what value the mere offering of vocal prayer has. It’s a symbol that affirms to the kid that God is still there and that we don’t dishonor him by barring him from the educational process. But we have a totally secularized curriculum in which religious values—as real values, as things inculcated—have to be absolutely excluded. Therefore, the first priority is the religious school. The second priority is a form of accommodation through equal access or some McCollum-type arrangement.

The First Amendment to the Constitutionsays that Congress shall make no law respecting an establishment of religion. That means the U.S. government is not to be in the business of supporting a state church, such as in England. How did we ever get to the situation we have today, in which every little religious observance, trinket, or tradition that is part of public life constitutes establishment of religion? What happened?

What happened was that in the 1940s there were skillful briefs written on one side of the issue. The Supreme Court in the Everson case, through Justice Black, announced its famous definition of establishment. He recited a long litany of situations that he said were barred by the Establishment clause. His thinking was aided by some very major briefs of advocates who appeared to have great influence on the Court. There was no basis for that view of the Establishment clause to be found in previous decisions of the Court. The Everson premises were then used as the basis for McCollum. The next stage was the Engel case, voiding the nonsectarian “Regents Prayer.” Then you came to the complete secularization of the public school: the Schempp (Bible-reading and Lord’s Prayer) case.

How can the Establishment clause mean one thing for 150 years and suddenly, when Hugo Black writes a decision, mean substantially something else?

To whom did it mean whatever it meant for 150 years?

To the Court, I gather.

The Court didn’t make decisions saying the Establishment clause means no established church. You don’t find such a decision over that period of time. The reason you don’t is because no one claimed that having religion in the public school—the offering of prayer or having the Reverend Smith in to talk to the Lutheran kids—constitutes an establishment of religion. No one dreamt that that was an establishment of religion. Thus these practices had not been contested in the courts.

How do we go from where we are now back to where we were before Justice Black issued his decision in that case? What do we do?

The Supreme Court has two ways of changing past decisions. One is by overruling and the other is by nuances and indirect changing of what seemed to be the established principle. Let me give you an example of the first. In 1942 the Supreme Court ruled that a child of the Jehovah’s Witnesses faith had to salute the flag in a public school ceremony. The Court held there was no constitutional right to avoid the flag saluting. Two years later the Court overruled that decision in the Barnette case. The Court simply said that because it had been mistaken once didn’t mean it should be mistaken twice. The Court has overruled itself more than 100 times in its history. We see the most famous example in Brown v. The Board of Education. There they said that the doctrine of “separate but equal,” in the 1891 decision of Plessy v. Ferguson was not right—or at least that today to continue the Plessy rule does not square with reality.

The other method of getting away from past decisions occurs through nuance. Look at the “créche” case—Lynch v. Donnelly. If you were a betting man and had read the McCollum, Everson, and Schempp cases, you’d have bet the Court would strike the Nativity scene practice down. Here was taxpayer sponsorship of a highly meaningful religious exhibition. But the Court said we have a long, long history of religious holidays and other recognition of our religious traditions. This is no departure from our previous decisions.

Will that change significantly if the Court’s composition is changed? Or does it change when circumstances and new evidence come in?

That’s a very good question. No one can absolutely state the answer. One really cannot say as a certainty how these changes come about. But some factors would appear to be these: First, the mood, or thinking, of the country as it begins to manifest itself in the Court. Second, whether a particular Court is dominated by the special pleading of pressure groups—whether a Court is under that influence, and irrespective of whether or not it mistakes it for a popular trend, or simply ideologically prefers what those people are saying in their briefs or their articles, or their representations in the media. A third reason for change can be philosophy of the newly appointed Court members. We would also like to think that simple good scholarship, high principles, and devotion to the most basic traditions of our country govern decisions.

The first you mentioned was a change in the mood of the country being manifested to the Court. Are you suggesting that justices’ opinions reflect the particular mood of the country?

I was careful to say you can’t lay that down as a statement of fact. But I think that historians of the Supreme Court have come fairly close to saying that the Court follows the election returns and that it’s conceivable that the Court may in the future become far more sensitive to what may well be the active concerns of a high majority of American citizens who feel very, very strongly about religious liberty and feel it’s being denied. That is one possible reading of the newer decisions in the Widmar and Chambers decisions, the tuition tax credit case and the Nativity scene. The Court appears impressed with the strong feeling in the country and it is responsive to it.

Does that suggest that Christian organizations that became more active politically would be able to make an impression on the Court?

I don’t think anybody can answer that. It depends upon the individual justice. A given justice may read the literature of Moral Majority and say to himself, “You know, that makes sense.” Some historians have observed that the Court seems at times to sense a tide of sentiment in the country and then to move in that direction. I would like to think that will be true concerning the abortion question. The abominable decision in Roe v. Wade [which struck down antiabortion laws] was simply homemade law; bad science, bad information, and a totally unfounded opinion creating a right of privacy in a woman to destroy her child. I’d like to think that subsequent decisions are going to see a modification of that point of view. We found in McCrae v. Harris that medical funding of abortions is not decreed by the Constitution. I am hopeful that better information and deeper pondering of issues will move the justices in new directions, even in the direction of overruling.

The second flag salute case, which I mentioned, is an excellent example of a complete change of position by the court. In Plessy v. Ferguson we see the Court absorbing a point of view over a long period of time. Not too long before the Brown decision a unanimous Supreme Court had upheld segregation policies that were challenged, with even Brandeis and Holmes agreeing.

But to say that the Court just responds to popular opinion deprives the Court of the aspect due a true judiciary body. It’s one of the characteristics of this remarkable institution that it, too, can learn and change its view. We would always hope that would be for the better.

I think what you have said is probably news to many people, and probably very gratifying to hear: that by being active and showing interest, they may have some influence on the Supreme Court.

I like to be an optimist about the country. I believe that good-willed people ought to take maximum advantage of the freedom they have to enter the public forum and try to advance opinions they believe in. I think that is a prime duty of Christians—we have an obligation to inform one another of things that are vital to the common good of the country.

I am not talking about the religious coercion of judges. We have seen cases in courts in which attorneys have implied that judges are agnostics or atheists. In a case I was involved in, a judge confided to me that he had only recently handled a somewhat similar case and had been virtually cursed by supposedly Christian people. When he was leaving the courtroom, they said he was anti-God, hated Christ, was an atheist, et cetera. He had ruled on a motion for summary judgment, a technical motion, and he thought that was the ruling he ought to make. He may not have been a religious man, but to subject him to abuse because he didn’t vote the way certain religious people thought he should was terribly bad.

You have said that some Christian lawyers are too defensive in their approach to the courts. You implied that they do not attack enough. Will you elaborate?

I was only saying that the defense of religious liberty ought to be aggressively pursued. I mentioned a case in one of the Eastern states in which parents were seeking an accommodation for their children’s religious liberty in the public schools and were met with the routine argument that to make any such accommodation is to create an establishment of religion. The parents’ position ought not to have been the negative, saying, “No, it isn’t an establishment.” They should instead have said: “Ours is a religious liberty case. We want liberty for our children within public institutions, and we want an accommodation made to them so that they can enjoy religious liberty—with harm to no one else.” That is the way the case should have been placed.

Of course they lost in their establishment-cause defense. They might not have won on their free-exercise attack, but that should have been the very point of the thing.

What advice do you have for pastors, housewives—lay people in the legal world, if you will—as they think about the concept of church-state relationships?

I think we have to create a better “legal culture” in this country. We need to get many important concepts into more popular thinking. Take the church-state separation question. The public should get an understanding of the “entanglement” idea. Surely we must realize how heavily the media influences the public, and hence the courts, and hence the law. Unhappily, the media tend to stress bizarre and ugly misdeeds of people—no matter how insignificant—who are “religious.” So secularist judges often have an already prejudiced mindset when encountering religious liberty cases. A vast push is needed to move public opinion toward appreciation of religious values.

There is another matter that needs to be spoken of. Some religionists have the idea that government is composed entirely of hobnail-booted people packed together in Washington, D.C., and state capitals. These religionists have lost all idea of government as “we the people.” They have begun to look upon government as the enemy. But from a Christian point of view, it is a very American idea that “we the people” are the words with which the Constitution begins, and that is a concept that promotes the common good.

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