The American Interest
Religion & Other Curiosities
Published on December 12, 2012
The First Amendment: An Icon Sometimes Erected in Curious Places

The First Amendment to the Constitution of the United States is an icon of religious freedom, and rightly so. It contains a double prohibition: no establishment of religion and no hindrance to the free exercise of religion. The two clauses often grind against each other. Adopted by Congress in 1791, the Amendment still comes up again and again on the calendars of federal judges. On the whole, they have done a decent job, and religious freedom is more single-mindedly protected by the law in this country than about anywhere else.
I say this despite the fact that I have little respect for law as an institution: The “rule of law”, often evoked with breathless awe, is nothing sacred. Rather, it is the regrettable consequence of the profane proclivities of our species, which would quickly lead to murderous chaos unless reined in by coercive regulations. I also don’t much admire judges, an occupation that must greatly reinforce any inclination by its members toward delusions of grandeur. I am told that first-year law students are told by their professors that the law has little to do with justice—it is a system of impersonal abstractions imposed on the concrete realities of living persons. Most of the time the law is a lesser evil than chaos.
This being said, in a liberal democracy there is a reasonable chance that the law will have some resemblance with what one might call justice. There are few causes more just than religious freedom, which is finally the right of every person to make sense of the mysteries of the human condition. So, albeit grudgingly, I do respect those federal judges who put on their quasi-priestly robes and try to defend the battlements of the First Amendment. What follows here are some of the curiosities they come up against.
The Center for Law and Religion of Emory University has a useful aggregator. In one day, on December 1, 2012, it contained two items that would merit the label “curious”. First item: Since 1953 the city of Santa Monica, California, has displayed nativity scenes in a public park, which earned it the nickname of the City of the Christmas Story. The First Amendment would never have come up if these displays had been located on private property, say on land owned by a church or on somebody’s front lawn. Since the location has been in a public park, and since Americans are a litigation-prone people, sooner or later the charge would be made that Santa Monica was making Christianity the established religion of the city, in violation of the Constitution. Well, it was later rather than sooner, when an atheist by the name of Damon Vix, to make sure that Christianity was not the official faith of the city, was granted his own booth alongside the traditional nativity display. Apparently the Christians did not make a fuss at the time, although the atheist booth must have upset them: It sported a sign that quoted Thomas Jefferson “Religions are all alike—founded on fables and mythologies”, and another sign reading “Happy Solstice”. Apparently the understanding was that the city could legally permit such religious or anti-religious displays around Solstice-time, provided that the permit included equally all religions (or presumably anti-religions).
But Vix was not ready to be satisfied with one measly booth. He got ten other sympathizers to inundate the city with applications to erect booths similar to his in the same park, displaying signs similar to his, including one that pictured Poseidon, Jesus, Santa Claus and Satan. The atheists managed to get eighteen out of twenty-eight slots made available at auction. The Christian reaction was predictable. It was furious. Most of the atheist booths were vandalized. Thereupon the city banned all such booths, Christian or atheist, in the park.

The story does not say whether the atheists were willing to accept the ban. The Christians were not. Something called the Santa Monica Nativity Scenes Committee sought an injunction to force the city to reopen spaces for the cherished displays. The injunction was denied by a federal judge, in a 25-page ruling (which I have not read), saying that the city had the constitutional right to issue the ban, because the change affected all possible applicants (not just the two involved in this case) and because there were other venues available for public religious speech. The attorney for the plaintiff said than an appeal was intended.
Of course a non-lawyer such as myself cannot fully grasp all the legal esoterica involved in this case. But I was wondering: What would happen in federal court if a group of militant Protestants (maybe from Northern Ireland?) decided to invade Manhattan’s Little Italy during the annual Feast of San Gennaro, an event steeped in Catholic religiosity—say, one street over from the Feast—with signs casting aspersions on Our Lady? I assume that they would claim a First Amendment right for their anti-Catholic speech, and I assume further that a federal judge would agree. Under the law as it now stands, what remedies would the Little Italians have? Perhaps they could purchase Mulberry Street from the City of New York, which then would change from a public to a private piece of real estate, allowing them to keep out the anti-Catholic demonstration? How much would Mulberry Street cost? Would Mayor Bloomberg be willing to sell? What if a Hindu resident sued to block the sale? Under any imaginable scenario, constitutional lawyers would have a field day!
The second item reported by the busy researchers at Emory University is broadly related to the first. Dearborn, Michigan, probably has the highest proportion of people of Arab ancestry than any other American city. It stages an annual Arab festival. I don’t know the distribution of Muslims and Christians among the participants, but it seems that the event as such is not identified in religious terms. At the 2010 event four individuals, described only as “Christian missionaries” were arrested by Dearborn police for preaching to Muslims and were charged with “breach of the peace”. Some details are missing from this story (and my readers will understand that, having decided not to apply for admission to law school, I did not do the research to find out). I don’t know what branch of Christianity the missionaries belong to (three of the four have Arabic names, but of course they might be Evangelical Protestants—the usual suspects when it comes to aggressive proselytism). In any case, enough of the festival attendees were sufficiently annoyed to call the police.
Three months after the alleged offense the case came to trial and the missionaries were acquitted by a unanimous jury verdict. Thereupon an organization called the American Freedom Law Center (AFLC) filed a civil rights lawsuit against the City of Dearborn, its mayor and chief of police, and seventeen police officers. Subsequently an amended complaint included as defendants two executives of the American Arab Chamber of Commerce (AACC), the organization in charge of the festival. A jury trial is scheduled for the summer of 2013 (the mill of federal justice grinds slowly).
Of course the First Amendment rights of the defendants are at issue, not those of the city or the AACC (who are not religious actors). The senior counsel of the AFLC stated that “The detailed allegations of our 100-page civil rights complaint set out a pattern of misconduct that had the purpose and effect of depriving our clients of their fundamental constitutional rights”. The federal judge who agreed to the addition of the AACC to the complaint stated that “The Court finds that Plaintiffs do properly allege a civil conspiracy among Defendants, including the AACC, to deprive Plaintiffs of their constitutional rights sufficient to survive a motion to dismiss”. I take it that the constitutional rights at issue include not only the religious freedom clauses of the First Amendment, but also the latter’s protection of free speech in general. What I wonder about is this: Let it be stipulated (look how easily one falls into legal terminology!) that in the United States I have the right to preach with intent to convert. But do I have the right to do so anywhere at all? On a public street, or also in a building in which putative convertees are worshiping? Using any kind of language? Threatening eternal damnation to those who refuse conversion? We are back with my San Gennaro fantasy.
The daily online bulletin of the Religion News Service also contained two related items on the same day, December 3, 2012. First item: A federal district court in Indiana rejected a First Amendment complaint by an individual certified as a “secular celebrant” by an organization called the Center for Inquiry, which the story described as “non-religious”. The “certification” was supposed to authorize the individual to perform legally valid marriage ceremonies. If the court had agreed with the complaint, this would in effect have challenged the constitutionality of the Indiana “marriage solemnization statute”. But the court did not agree. Instead it stated that “The Solemnization Statute is rationally related to the legitimate purpose of alleviating significant governmental interference with pre-existing religious beliefs about marriage”. I suppose the court had doubts about the “pre-existing religious beliefs” of the Center for Inquiry.
Two things interest me here. First, there seems to be an assumption that a federal court can decide what is and what is not “religious”. The term “pre-existing” indicates the direction of judicial logic here, previously relevant in cases of conscientious objection to military service and in cases involving tax-exemption claims. Let me stay with my San Gennaro fantasy: Suppose that, in the midst of a war, my three brothers and I, in good Italian tradition, proclaimed that our mother is the Madonna. On the basis of this proclamation, with the support of friends and relatives, we incorporated as a religious community, and on that basis claimed tax-exempt status for the family residence and refused to report for induction into the military as priests of Our Lady of Mulberry Street. I don’t think that a federal judge would grant us First Amendment protection. But second, what I find even more interesting is how, in this case, the court listed “several readily available avenues by which a Secular Celebrant may facilitate a marriage ceremony in Indiana”. These are: To preside over a wedding and then refer the couple to an individual entitled under the statute to solemnize the marriage. To become a member of the “clergy” by obtaining immediate Internet ordination from the Universal Life Church (I am seriously considering making use of this service). Or, finally, seeking certification to solemnize marriages from the Humanist Society (evidently a “pre-existing” quasi-religious institution). Would it not be simpler to have the state get out of the marriage business altogether? (I take the liberty of referring to an earlier post of mine on civil unions.)
Finally, here is a case that does not, or does not yet, involve the intervention of the federal judiciary. But it might well involve fear of such intervention on the part of a famously progressive institution: the University of Wisconsin – Madison. Also on December 3, 2012, Religion News Service carried a story that an organization of Atheists, Humanists and Agnostics (AHA) was likely to receive $69,000 from the University, “the largest grant from an institute of higher learning ever awarded to a nontheistic, student-led organization”. The application for the grant is now in a final phase, when rejection rarely occurs. The money comes from a pool of $39 million, collected from annual fees of about $1,400 per full-time student. The grant is to be used to hire eight staffers for a “secular support group”, where students with AHA-approved worldviews can meet in a “safe environment” (presumably protected from theistic thugs roaming the campus), and for a “faith questioning service” where non-believing students could meet one-on-one for discussion (in what looks like an atheist imitation of the study habits in Orthodox yeshivas). It is not clear whether there is much student interest in this program. At present about forty people attend AHA meetings. But its funding by the University has increased impressively. The Secular Student Alliance, a national organization of 387 campus-based groups, reports that over half of these groups operate on $250 or less. In 2009 AHA had no budget; in 2010 it received $200 from the University; in 2011 the budget was $15,000, which helped co-sponsor a Freethought Festival that attracted over 700 people.
How is this financial bonanza to be explained? Could there be an atheist cabal in control of the application process? I doubt it. Is “free thought” increasing at the University of Wisconsin? Possibly, but not to the degree the funding has. I think it is more likely that whoever is involved in administering the pool of student fees is nervous about possible First Amendment litigation, by the spiritual cousins of the people who caused all the trouble in Santa Monica. I don’t know. But if fear of litigation is a factor here, the University of Wisconsin had better look out. There are many more theists than nontheists, even in progressive Wisconsin, and there are well-funded law centers ready to charge discrimination against believers.
The role of religion in the United States is characterized by a paradox. On the one hand, this is by any measure the most religious country among Western democracies, not only in terms of individual beliefs and behavior, but also in the public sphere. On the other hand, the US has an unusually strict separation of religion and the state, dwarfing France’s laicite (where the state pays the salaries of teachers in Catholic schools) and its imitators in Kemalist Turkey (where a government agency used to write the sermons preached in mosques). This paradox makes it difficult for foreigners to understand the vagaries of American religion. During the same bout of reading that led me to the cases discussed above I came across a curious confusion in a usually very well-informed British source, the Catholic periodical The Tablet.
In its issue of November 24, 2012, the periodical carried a story about the University of San Diego (USD) withdrawing an invitation to lecture from Tina Beattie, a British Catholic scholar, because she had written a letter to the London Times in support of same-sex marriage. USD is a Catholic institution, which by this action believed itself to be following Vatican directives about maintaining its Catholic identity. As far as I can tell, the story was accurate in all its details, notably the identification of the California university.  The same issue contained an editorial (it rather mildly disagreed with Beattie’s disinvitation). But throughout the editorial the offending institution was wrongly named the University of California, San Diego (UCSD). That institution (despite its name, located not in San Diego but in La Jolla) is not Catholic at all, but part of the state system of tertiary education. UCSD would hardly have barred Beattie from its campus, and if it had (for some other reason), this might have raised an issue of academic freedom but not of a non-existing Catholic identity. Locating the incident at UCSD makes it incomprehensible.
There is an unrelated question that occurs to me: Would progressives, who are offended by Beattie’s exclusion from USD because of her favoring same-sex marriage, be equally aroused if UCSD excluded a lecturer who proposes that all homosexual acts are sinful?

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  • eric

    Saying UCSD is not located in San Diego but in La Jolla is like saying Central Park is not in New York but in Manhatten.

  • Gary Novak

    “The ‘rule of law’ . . . is nothing sacred. Rather, it is the regrettable consequence of the profane proclivities of our species . . ..” Even in a liberal democracy, where “there is a reasonable chance that the law will have some resemblance with one might call justice,” the provisions of the law will “grind against each other,” as in the First Amendment, which prohibits the establishment of religion but also protects its free exercise.

    As a bulwark against “murderous chaos,” the law deserves grudging respect, but Berger’s larger point is that the tensions, conundrums, antinomies, and other curiosities of the law cannot be eliminated by constitutional, legislative, or judicial reform. Precisely because the rule of law, as such, is not sacred, it is incapable of generating perfect justice. You want justice? Try faith, hope, and charity. The law is a modus vivendi, a way of making do in the absence of the kingdom of heaven. If Berger seems frustratingly insouciant in not weighing in more forcefully on the legal issues, that is because it is “ungrammatical” to get steamed up over curiosities. It is more important that we should see these issues AS curiosities than that we should resolve them.

    Berger closes by asking if progressives who are offended by the exclusion of a gay-marriage advocate from USD would be equally aroused by the exclusion from UCSD of a speaker who believes that homosexuality is sinful. I’ll stick my neck out and answer that progressives at the university that housed Herbert (“repressive tolerance”) Marcuse for many years (UCSD) would know instinctively that banning speakers on the “right side of history” is bad and that banning “hate” speakers on the wrong side of history is good. And there is zero chance that they would see anything curious in that situation.

  • Wayne Lusvardi

    Maybe all those Santa Monica protestors against nativity scenes in public parks should be reminded of a little history. In first century Rome Christians were persecuted by the state not for being Jews (which most were in that era) but for being ATHEISTS, meaning not for worshiping the other pagan gods.

    And lest we forget, if Jews became Christians in ancient Rome they became exempt from the special tribute – i.e., tax – that was imposed on Jews. But by not paying the tax Christians were prosecuted for boycotting pagan cults. Jews, on the other hand, were granted vectigalis libertas – loosely translated as the oxymoron: “liberty tribute” or “freedom that brings in revenue [to the state].”

    I can imagine that in ultra-left Santa Monica some of the same issues prevail. If it is still true that Christians even in pagan Santa Monica are opposed to many taxes then those who want taxes may also want Christian displays removed from the public square and want Christianity marginalized. The media never seems to tell us who fronts all the costs for 16 atheist booths in Santa Monica? And who has such time on their hands to undertake fighting Christian nativity displays? As Berger might say: every worldview has a social location. I wouldn’t be surprised if the atheist protestors are also new recruits — i.e., converts — to the 1.2 million people added to the SSI benefit rolls and feel threatened by any organization outside the state that might not legitimate their entitlements.

    My guess is that in California any organization, religious or secular, that doesn’t bring tribute to the state would be similarly sued and persecuted. It is sort of interesting that in all the cases cited above by Dr. Berger that such conflicts occurred at state institutions and when Christians dared to venture out of the margins into the public square.

    Another history lesson might help in understanding the conflict of free religious expression. It is written in the Christian gospel of Luke 23:2:

    “Then the whole assembly rose and led him off to Pilate. And they began to accuse him, saying, ‘We should have found this man subverting our state. He opposes payment of taxes to Caesar and claims to be the Messiah, a king.”

    Pilate apparently dismissed the former charge of tax evasion, although the latter charge of not paying tribute to state pagan religions was sustained.

    In the gospel of Matthew 18:15 Jesus went further and said if someone sins against another person and refuses to listen to your charges you “should treat them as you would a pagan or a tax collector.”

    The issues of so-called separation of religion and state and free religious speech are wrapped up in the issue of taxation just as much today as in first century Rome and Jerusalem.

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  • Wayne Lusvardi

    A friend proposed the following scenario after I read Dr. Berger’s above column to he and his wife:

    Suppose that an ecumenical council of Christian churches agreed that here forth that they were going to celebrate Christmas with fireworks displays. Plausibly the fireworks would symbolize the Christmas star of Bethlehem.

    Then antagonists could not so easily go to courts to ban aerial fireworks. That is because then that would mean that July 4th fireworks in public parks, fireworks shot into the sky over public bodies of water (“the waters of the U.S.”), or in other public venues would also have to also be banned.

    This would be the reverse of the above-describe anti-Feast of San Genarro celebration fantasy. Should Christians use some of the same shrewd tactics as their antagonists? A famous prophet said to be “wise as serpents and innocent as doves.”

  • Wim

    I’ve been trying to figure out why Dr. Berger strays into this kind of silliness: “Let it be stipulated . . . that in the United States I have the right to preach with intent to convert. But do I have the right to do so anywhere at all? On a public street, or also in a building in which putative convertees are worshiping?” Even people who admit they are not legal scholars — a category which includes Dr Berger AND myself — should know that the First Amendment applies to Government activities and Government property ONLY. Forcing a private institution of religion to admit missionaries of a conflicting faith would violate the very essence of the Amendment.

    Berger also claims that “. . . the US has an unusually strict separation of religion and the state, dwarfing France’s laicite . . .” In truth, across the world the separation of Church and State is practiced in ways that vary with legal stanards, tradition, history and politics, and the French may well hold that their way is more strict than ours. For one piece of evidence, France (and other European countries) could point out that the their government does not recognize religion-based marriages AT ALL. People who want to get married in a church are free to do so, but they must still go through a secular ceremony at City Hall to be recognized as man and wife.

  • Peter Jessen

    The “no establishment” and “no hindrance in free expression” have too often morphed into profile standards of what to do when one’s own ox gets gored by those of a different identity (viewed as on the wrong side of history).

    I’m intriqued by Lusvardi’s question of who “fronts all the costs for 16 atheist booths” as well as his question as to how many of those supporting the atheist booths are “new recruits — i.e., converts — to the 1.2 million people added to the SSI benefit rolls,” as well as Berger’s report on the Atheists, Humanists and Agnostics (AHA) applying for and getting funding. It is the same dynamic as gay rights advocates of the 1970’s opposed to gay marriage to their now being in favor because, as one leading gay marriage advocate has said, for over 1,400 reasons, all in the tax code (including inheritance rights as well as hospital visitation rights).

    Which makes me curious about what will be the social science version of Newton’s second law, reactions that create unintended consequences and a whole host of “reciprocal causations of reality” in light of actions taken for or against religious liberty exercised in free speech.

    Novak notes the needed Thomas a Kempis like advice: “faith, hope and charity” (the latter meaning love or compassion), and not the passive “Genero fantasy” on one end or, on the other end, the violence/vandalizing actions against that which offends, neither being the “imitation of Christ:” forgiving good neighbors.

    Even more curious will be to what degree progressives will be aroused to confront the growing determination of certain practitioners of Islam to not only be ruled by sharia law, but who sue to be able to practice their fundamentals, including the suppression of women’s rights and outlawing gay rights in their communities. In other words, how will progressives react when they seek sovereignty over these “sacred” identity planks of progressives? If allowed, women’s rights and gay rights would be morphed from being fundamental to being relative.

    Recognzing the base of the “human condition” (imperfect), Berger advocates seeking middle positions between the extreme views held by those with fundamentalist and relativist approaches (whether religious or political).

    We “know” (have faith in) whose state of grace will eventually prevail. The question becomes how do we get there using the calculi of meaning and pain to engage a contestation of the opposing ideas about how to do so? And will we remember (1) that the greatest defense against losing our political and economic freedoms is the first amendment granting of freedom of speech and freedom of religion, and (2) that our full appreciation of these is best demonstrated by being loving neighbors, not antagonistic ones?

  • Wayne Lusvardi

    One has to understand California political culture to “divine” what is behind the atheists in Santa Monica (led by a person who resides in the City of Burbank).

    When the Occupy Movement mobilized for months in front of the Los Angeles City Hall, it was all funded and supported by public unions. They destroyed a public park that had to be totally renovated at public expense.

    When a person ran successfully for mayor of a California city, a local union bought the for sale house next to his and began harassing his every move and making the mayor miserable unless he voted for unrealistic pensions.

    The unions control every Democratic Party member in the state legislature.

    My guess is that the unions do not want any organization in the public square in California other than themselves. I am not sure Rev. Richard John Neuhaus foresaw in his book The Public Square and other writings that a threat to religious free speech would come from public employee unions.

  • Wayne Lusvardi

    A check of public property records online indicates the atheist leader, Damon Vix, owns a home in co-owneship with Lori Greengold, the principal of a local public school and presumably a member of the California Teacher’s Association union.

  • Don

    Hobbes redux! You go Peter Berger!

    ” The “rule of law”, often evoked with breathless awe, is nothing sacred. Rather, it is the regrettable consequence of the profane proclivities of our species, which would quickly lead to murderous chaos unless reined in by coercive regulations. “

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  • Nicodemus

    “I don’t know what branch of Christianity the missionaries belong to (three of the four have Arabic names, but of course they might be Evangelical Protestants—the usual suspects when it comes to aggressive proselytism).”

    I appreciate very much your writing and contributions and am disappointed with the above in my view gratuitous comment.

    This stereotype and generalised statement is unhelpful and particularly at an intellectual level. The term “evangelical” offers a spectrum of beliefs that is very wide, “protestant” includes an enormous number of different groups. Once we know whom you are talking about we could perhaps comment further as to the veracity of your statement in that context. In the meantime, maybe your comment could be construed as an aggressive form of proselytism, the proselytism of your cause? And then there is the compare and contrast and on and on. Whilst not totally on point and certainly not meant as a personal attack on you I would refer you to this quote by Paul Johnson as an antidote for such statements which can come back to haunt us.

    “The study of history is a powerful antidote to contemporary arrogance. It is humbling to discover how many of our glib assumptions, which seem to us novel and plausible, have been tested before, not once but many times and in innumerable guises; and discovered to be, at great human cost, wholly false.”

    Paul Johnson, The Quotable Paul Johnson: A Topical Compilation of His Wit, Wisdom and Satire, edited by George J. Marlin, et al (New York: Farrar, Straus and Giroux, 1994), p. 138.

  • ltlee

    It is unfortunate that most Americans do not understand the separation of Church and State. Strict separation of church and state requires the government to take the stand of an agnostic. If god can be proven to be exist, then the government should be theocratic to assure good governance. If god can be proven not to exist, then all religious organizations are based on lies. The government should shut down all of them. The government not acting as agnostics is the source of all the troubles regarding the separation of church and state.