Move over, ACLU

A host of new public-interest law firms are helping American Christians fight for their religious liberties

Late in 1992, 14-year-old christine Fisher was given a writing assignment—“What Christmas Means to Me and Why”—for her computer class at Hill Country Middle School in Austin, Texas. Her teacher, Tom Roudebush, promised the class he would select the best essays for the school’s newspaper.

Christine was excited when she learned that her essay had been chosen. Principal Joe Bartlett, however, sent word that he could only publish the essay if Christine agreed to some changes. He wanted “It is also the day that Christians celebrate Christ’s birth” altered to “It is also a day that people celebrate love.” When Christine’s father talked to Bartlett, he was unbending, citing “legal reasons.” He said he was not censoring Christine, but using “editorial license.”

Ten years ago, the Fishers would probably have dropped the issue. Evangelicals did not sue or fight the system. But times have changed. Like thousands of other Americans, Christine’s parents contacted the Rutherford Institute, a nonprofit organization dedicated to defending religious rights. Rutherford attorneys called school authorities, politely but firmly clarifying the law: A child’s right to free speech includes the right to discuss religious beliefs, and that right is not surrendered at the school door. They also suggested that if school officials were unyielding, they would be sued.

Christine’s essay was published in the next issue of the school newspaper.

In former times, the students, teachers, and administrators at Country Middle School would all have learned the same lesson: Do not mention Christ at school, even if the topic is the meaning of Christmas. Now they learn a different lesson: You get what you fight for. The culture has turned 180 degrees, pointing evangelicals right toward the courtroom door. Once known for quarreling over doctrine, conservative Christians are ready to fight for their legal rights.

The most obvious symptom of evangelicals’ willingness to fight in court is the rapid multiplication of organizations like the Rutherford Institute. An alphabet soup of new public-interest law firms offers free, expert legal help, not only with public-school disputes, but in conflicts over tax exemptions, zoning for churches, abortion protests, the freedom to evangelize in public places, and regulations that penalize Christians for their resistance to what they consider immoral lifestyles.

The newest and already one of the largest organizations is Pat Robertson’s American Center for Law and Justice (ACLJ), founded with a splash just three years ago on the new and impressive campus of Regent University in Virginia. Actually, the ACLJ is Robertson’s second try. In 1985 he founded the National Legal Foundation, then dropped it during his run for the presidency. (The NLF has struggled on.) The ACLJ is modeled on the ACLU, both in name and method. Jay Sekulow, a brash adult convert to Christianity who oversees ACLJ’s legal work, hopes ultimately to exceed the ACLU’s size. “The ACLU has something going for them that we don’t,” he says. “They are not only big, they are in power. Their philosophy is in power.”

With a budget of $6 million compared to the ACLU’s $30 million, and with little help from the kind of high-priced law firms that donate time to the ACLU, the ACLJ is far behind. They are not kidding, however, about their desire to grow. Robertson’s first hire was not a lawyer, but fundraiser Norm Berman. “This is an exciting product to market,” Berman notes drily. Like virtually all the evangelical groups, the ACLJ depends on direct-mail donors, who often learn about the organization from a Christian radio or TV program. Robertson’s Christian Broadcasting Network is a big asset. Berman says the ACLJ’s budget is growing at 10 percent a month; he has never seen a like response to direct mail and does not have any idea where the top is.

The ACLJ’s specialty is the Big Case. They choose clients with the hope of taking them to the Supreme Court and won’t touch a case if the facts are not ideal for setting precedent. Thirty-seven-year-old Sekulow has already argued half a dozen cases before the Supreme Court and aims to appear there many more times. He is not shy about flying in a “SWAT” team of expensive lawyers to argue for a child’s right to sing “The First Noel” in a Christmas pageant.

The Rutherford Institute is older—it was founded in 1982—and sets its sights more on the grassroots. Fittingly, it operates from a nondescript office on the rural outskirts of Charlottesville, Virginia. Founder John Whitehead is a craggy individual who started the organization in his basement, possessed of a vision but few backers. He got the idea while in seminary, having left his law practice after reading The Late Great Planet Earth and being converted to Christianity. A teacher asked him for help when school officials told her to take off a cross she wore; Whitehead studied the issue, grew interested, and never looked back.

For years he and his family barely survived on minimal support, but his vision has finally taken hold. The organization’s mailing list has grown from 15,000 to 150,000 in the last three years, and he expects this year’s budget to reach $11 million, with 55 employees and nine staff attorneys across the country. Whitehead himself seldom enters a courtroom; he puts his energies into writing and leading the organization. “He has an unerring sense for the underdog,” says Alexis Crow, Rutherford’s legal director. The Rutherford Institute tries to help each and every individual who contacts them—2,000 per month.

The Christian Legal Society, though much smaller in size and budget, is a third influential player. Its Center for Law and Religious Freedom, located at the organization’s headquarters near Washington, D.C., has only two staff attorneys, but it draws on the volunteer help of lawyers and law professors across the country. CLS is best known for working with Capitol Hill in drawing up legislation (such as the “equal access” law guaranteeing student religious groups the right to meet on campus) and for gathering an eclectic group to present friends-of-the-court briefs on significant cases. Their reputation for fairness can draw together groups as diverse as the National Council of Churches and the Family Research Council.

Half a dozen smaller or more specialized organizations have also sprung up. The Home School Legal Defense Association, for example, provides free legal help for members who are home schooling their children. The Christian Law Association specializes in the needs of fundamentalist churches, helping them to write their constitutions so that they will be able to defend their distinctive operations in court. Donald Wildmon’s American Family Association has five attorneys working mostly in religious rights (with a subspecialty in fighting pornography). Some groups are small and struggling; others can barely keep up with growth. The overall picture is clear: Evangelical Christians (often in league with conservative Catholics) are rapidly building legal organizations to help them shape America.

A HOSTILE ENVIRONMENT

One might think this explosion of organizations explains the rise in religious lawsuits: more lawyers, more suits. But the organizations don’t set the trend; they are a symptom of it. Ask why Christians are heading for the courtroom, and religious-liberty attorneys give a ready answer: because so many institutions have turned hostile.

Sekulow says he used to encounter Christian concern over using legal machinery, but “not anymore. It’s hard to be concerned about legal machinery when a fourth grader is told she’s allowed to do a book report on any book she wants, or any story she wants [so] she picks a Bible story and the student is humilated in front of her class. It’s not hard to be irate about that.”

The literature of Christian religious-rights organizations is full of stories like Christine Fisher’s: tales of children told they could not read their Bibles on the school bus; of employees who were disciplined or dismissed for talking about their faith; of families that fell under the suspicion of child-protection agencies because of their views on Christian parenting. “We’re out of step with society,” comments Michael Farris of the Home School Legal Defense Association. “People who are out of step with society get persecuted.” These feelings have intensified with a Democratic administration. The Rutherford Institute says their calls and letters tripled within a month of last November’s election.

It is hard to make a case that evangelical Christians are being systematically victimized. They look too robustly middle class for that. Unquestionably, however, attitudes toward religion have changed. Once public faith was viewed as a bulwark of society; now it is suspect.

“See You at the Pole” is one example. An informal, nationwide day for high-school students to gather for prayer before school would once have been viewed with pride by school authorities. Now it is often seen as a source of divisiveness and a threat to “community.” In a number of locations, school officials simply refused to let students gather to pray. In Corpus Christi, Texas, for example, students at three schools were ordered to disperse and threatened with suspension. School officials have not backed down, despite the Rutherford Institute’s threat of a suit.

The shift in culture was observed by Justice Scalia in a recent Supreme Court case Sekulow argued, Lamb’s Chapel. Noting that the state of New York claimed a religious meeting (a showing of James Dobson’s film Turn Your Hearts Toward Home) was of value “only to those who already believe,” Scalia said that when he was growing up “it was thought that … what was called a God-fearing person might be less likely to mug me and rape my sister. That apparently is not the view of New York any more.” The acid-tongued Scalia asked the lawyer representing the government, “Has this new regime worked very well?”

Religious-liberty attorneys are sure the religiously hostile regime is not working well. David Llewellyn, president of the small, activist Western Center for Law and Religious Freedom headquartered in Spokane, Washington, complains that “our legal system now is presupposing that there is no God, that there is relativism at the core of the universe.” Relativists tend to see moral standards as prejudice, he says, a stance that undermines the foundations of society. Nevertheless, Llewellyn and others expect hostility toward religion to continue, indeed, to increase—and, they note, conservative judges appointed during the Reagan and Bush years are not necessarily helping. In fact, some of Reagan’s appointees have delivered disastrous Supreme Court decisions. “Most conservatives are economic conservatives, not moral conservatives,” says Llewellyn. That is why many religious-rights attorneys lacked enthusiasm for Robert Bork’s run for the high court.

There is a second reason why evangelicals are fighting in the courts: government’s increased reach. Hardly any religious institution is untouched by government funds or regulation. Colleges, schools, radio stations, hospices, charities, and churches all receive indirect subsidies, tax incentives, or are required to measure up to some government standard, from collecting payroll taxes to providing handicapped access. The more the government controls, the more likely its power will conflict with religious rights.

For example, an Episcopal church in Manhattan wanted to tear down their seven-story office building and build a new one, expanding their programs. But because the city considered both the historic church and the adjacent office building “landmarks,” the church was denied permission. Or take Murrah, Utah, where zoning ordinances banned “religious activities” in private homes. Or Toledo, Ohio, where the director of a childcare center was told she might obtain a Small Business Administration loan if she “promised not to mention God” in her program. Or Southern California, where John MacArthur’s Grace Community Church was sued after a man the church had counseled committed suicide; the case turned partly on whether the church met state licensing requirements for counselors. (The church ultimately won in a case that was appealed to the Supreme Court.)

“When the government becomes such a huge part of our cultural life,” observes University of Chicago law professor Michael McConnell, “so that it controls the schools, it controls the practice of medicine, it controls much of higher education, it controls television channels, it controls funding for the arts, and has so many employees, and has so much property, at that point if we say that the government is going to be scrupulously secular, it ceases to be so neutral.… It’s much more imperative now than at the founding [of the United States] to ensure that the understanding of neutrality is not secular, but pluralistic.”

The Aclu As Friend, Enemy

For many evangelical Christians, the American Civil Liberties Union (ACLU) has a well-earned reputation as the unfailing bad guy. They turn up wherever nativity scenes are forced off courthouse squares, wherever cities are sued for having a cross in their official seal, wherever parents are assailed as censors for objecting to school reading lists. No wonder, then, that conservative fundraising letters often portray their organizations as David going toe-to-toe with the ACLU Goliath.

Religious-rights attorneys see a more complicated picture, however. “The ACLU is not always the enemy,” lawyer Jay Sekulow carefully points out. It is, in fact, sometimes an ally. It usually depends on which of the Constitution’s religion clauses is at stake.

The First Amendment to the Constitution declares that “Congress shall make no law [1] respecting an establishment of religion, or [2] prohibiting the free exercise thereof.” The first of these two clauses is called the “establishment” clause; the second, the “free exercise” clause.

In free-exercise cases, the ACLU will usually side with religious-liberty organizations—as they did, for example, in the Smith case, supporting the religious rights of Native Americans. The ACLU and evangelical groups share the belief that religious freedom for small, marginal groups is crucial. Arguing the other side on such cases are the “majoritarians”—people who do not want rights expanded, who believe that a democratic government should have the power to do what it pleases in most circumstances, even if inadvertently constricting religion. That is how Smith was decided against religious rights by a conservative court.

The Christian Legal Society has been working with the ACLU and other groups, both liberal and conservative, to overturn Smith through legislation. It appears that the Religious Freedom Restoration Act has a good chance to be passed by Congress this year and signed into law by President Clinton. It restores “free exercise” to the pre-Smith standard, putting the burden of proof on the government to show that it cannot live without a law restricting certain religious practices.

When an “establishment” case is involved, however, the ACLU usually clashes with evangelical religious-liberty organizations. That was the issue in Zobrest—the claim that paying for a sign-language interpreter in a religious school (a subsidy required by law in any other school, public or private) meant that the state was “establishing” a religion. This strict-separationist view was upheld at every level of the judiciary until the Supreme Court overturned it by a narrow 5-to-4 decision.

Religion must never depend inadvertently on government support, strict separationists say, or even—in any organized form—take place on government property. For example, strict separationists, like the ACLU, would admit that before-school student prayer meetings are a “free exercise” of religion, but they believe such prayer meetings should be illegal lest the government “establish” or support a religious cause by letting its buildings be used for it. Religious-liberty lawyers see this as a thinly veiled attempt to to squeeze religion into the small (and getting smaller) space untouched by the government’s money.

By Tim Stafford.

In a society where religion is viewed with hostility, and an expanding government threatens to overrun independent organizations, Christians are bound to find themselves in a fight. The courts, after all, are designed as a refuge for unpopular minorities, and evangelicals are not the first to use them as such. Critics, though, complain that these Christian groups are looking for more than protection. They claim evangelicals are fighting to impose their views on others—to make America less free, not more.

Christian religious-rights attorneys disagree strongly; they insist they are fighting for everybody’s rights. “It comes to fairness,” Rutherford’s Whitehead says. “If you don’t want others ramming their views down your throat, you can’t ram your views down theirs.” He points to cases in which the Rutherford Institute has represented Hare Krishnas who wanted a vegetarian alternative at the school cafeteria, and Jews whose home synagogues were outlawed by zoning restrictions. “Our agenda is not to have a Christian nation, but to enable religious people to survive.”

Evangelical religious-rights organizations do, however, have specifically Christian purposes in mind. One is to defend Christians who have no other defense. “I don’t think we’ve ever gotten a call from a rich religious person who was in trouble,” says Alexis Crow of the Rutherford Institute. Many of their clients, she says, are poor or poorly educated.

Religious-rights organizations also tie their goals to Christian evangelism. They want to insure that the gospel stays in public life, instead of being relegated strictly to home and church. “The gospel can take care of itself,” insists Keith Fournier of the ACLJ, SO long as it gets a chance in the marketplace of ideas. He says they are only asking for a “level playing field.”

Strict separationists don’t buy it. “This level playing field is really at some level preposterous,” says Barry Lynn of Americans United for the Separation of Church and State. “There are so many methods by which people can communicate their ideas. The Religious Right has vast access to radio and TV on a 24-hour-a-day basis. Their words are not being silenced.” He believes the real agenda is different. “I have no doubt that the goal of Pat Robertson’s organization is to create what amounts to a theocracy in America.”

CHRISTIAN AMERICA?

There is indeed interest in recreating “Christian America,” but it is subtler than Lynn suggests. One way to probe it is to ask what attorneys think of bringing back pre-1962 school prayer. Nearly all would agree with Sekulow: “I don’t want it. Mandatory school prayer does not fall within the protection of the First Amendment.” But because they don’t want school-dictated prayers does not mean they don’t favor prayer in school. They want schools where no one is forced to pray or told what to pray, but where people who want to pray are accommodated—not simply told to pray in the privacy of their homes and churches.

It was commonly reported that, in the Weisman case, the Supreme Court outlawed graduation prayers. “Not so fast,” said both the Rutherford Institute and ACLJ, and launched information campaigns to disseminate their understanding of the decision. The ACLJ sent packets to thousands of schools and went begging for a case to test in court. In their view, graduation prayers remain legal so long as students, not school officials, take the initiative. If a student is chosen by his or her peers to lead in prayer at their graduation, that would be merely free religious speech, they say. Those who did not want to participate would not have to—they could just politely sit through it.

“We’re not naïve … that one year one of those students who gives that prayer could be a Muslim,” notes Sekulow. “I could tolerate a 30-second [Muslim] prayer. In America we learn that the price of freedom is sometimes you hear things you don’t like.”

Strict separationists disagree vehemently, believing that the essence of Weisman is that no one should be obliged to sit through a prayer of any kind at a government-sponsored event. The issue is more than symbolic—it has to do with the kind of religious landscape our public institutions allow. Will the public square be stripped of all religion? Or will it offer opportunity to all believers of any faith, or no faith, to promote their beliefs publicly?

In the short run, a “level playing field” is all that religious-rights organizations seek. In the long run, however, they expect to make a larger difference. Sekulow says, “If we put our message out on the marketplace …, if we really believe what the gospel says, our light will outshine the others’ darkness. Truth will prevail.” Keith Fournier, ACLJ’s executive director, referring to early Christian centuries, says, “We’re in the business of converting empires.”

Historically, evangelical Christians shied away from courtrooms. Legal action was considered worldly: it is hard to build the kingdom of God by suing people.

But then, evangelicals sometimes held an almost privatized version of faith—ironically, much like the view of religion the ACLU holds. The old view was that politics is a dirty business—one Christians should stay out of. Today it is the opposite: If you are not fighting political battles, you could be accused of insufficient commitment.

The turn to law contains more than a hint of belief in the political illusion: that through influencing the government we can create a comfortable environment for the gospel. Yet, in its long history, the church has experienced many disasters using political power.

Ours was once a de facto Protestant nation, with schools and civil religion endorsing a vague Christianity. Now, in a far more religiously varied nation, the government has proclaimed itself religiously neutral. The definition of neutral is critical. If neutral means rigorously secular, then Christians are going to feel increasingly marginalized as the government grows. But if neutral means treating all beliefs equally, then evangelicals will feel at home—they have generally thrived in a free market.

Evangelicals eager to fight in court are, in a way, registering their faith in our democracy. They are acting as citizens, asserting their right to participate fully in civic life. That is good, so long as they do not confuse American citizenship with God’s kingdom, or forget that victories won in court do not necessarily win people’s hearts. William Bentley Ball, the Roman Catholic viewed by many as the dean of religious-liberty attorneys, says that courtroom fights are necessary. But, he insists, “the ultimate answer is persuasion by good example, by attempting to explain.… And a great deal is going to depend on prayer.”

Loren Wilkinson is the writer/editor of Earthkeeping in the ’90s (Eerdmans) and the coauthor, with his wife, Mary Ruth Wilkinson, of Caring for Creation in Your Own Backyard (Servant). He teaches at Regent College in Vancouver, British Columbia, Canada.

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