By Kent Willis, Executive Director, ACLU of Virginia
Several weeks ago, ACLU president Nadine Strossen spoke in Fredericksburg as part of an excellent program celebrating the 225th anniversary of the drafting of the Virginia Statute for Religious Freedom. Just about every day since, it seems, I have woken up to a letter or editorial in my Free Lance Star criticizing the ACLU's stand on religious rights.
As a proponent of free speech, my first thought is to take pride in the fact that I work for an organization that provokes people to express their opinions so vigorously.
My second thought is to wonder why the ACLU's position on religion seems to be so misunderstood. I understand and expect disagreement with our positions. But I cannot fathom why it is that the ACLU is perceived by some to be against religion when our record shows just the opposite.
The ACLU promotes--with equal fervor--the first two principles laid out in the First Amendment to the U.S. Constitution, namely, separation of church and state (the establishment clause) and the right of each individual to practice the religion of his or her choice (the free exercise clause).
This constitutional tandem has served our nation well. By guaranteeing the right to practice religion and by preventing the government from exercising its vast power either to inhibit religion or to promote one religion over another, there are more religions practiced more freely in the United States right now than is at any place at any time in the history of the world.
The ACLU of Virginia, like other state ACLU offices, stands at the forefront of defending religious freedom. Several years ago, for example, I received a call from a Baptist minister in Richmond who was concerned about an ordinance that severely restricted his program for feeding homeless people. He said that providing alms to the poor was part of the church's purpose, and that he felt it was unfair for the city to interfere. We filed a free exercise lawsuit on behalf of several churches and won.
When Rita Warren was told she could not place a nativity scene in front of the Fairfax County Government Complex because she was not a county resident, we took her case. We argued that all people, regardless of where they live, and all messages, whether religious or not, are equally welcome in a public forum. The court agreed with us.
Last year, a Jehovah's Witness called us to say that she was being told she could not get a promotion with the Department of Defense unless she signed an oath swearing full faith and allegiance to the government. As a Jehovah's Witness, however, she was not allowed to swear allegiance to any entity other than God. When the Defense Department refused to reword the oath to accommodate the employee's religious beliefs, we sued. Soon thereafter, the oath was rewritten.
In a couple of weeks, the ACLU of Virginia will be filing a legal brief on behalf of Jerry Falwell, who is challenging a Virginia law that restricts the amount of land churches may own. The ACLU, at Falwell's invitation, is arguing that the law infringes on his right to practice his religion.
In recent years, the ACLU of Virginia has also helped students who were told they could not carry Bibles or other religious items to school, assisted student religious clubs with their right to meet on school grounds after hours, defended the right of prisoners to receive religious materials, and challenged a Department of Corrections policy requiring a lineage test to prove affiliation with certain religions.
The peculiar thing about these important examples of defending religious freedom is that they received very little attention from the public. It seems that everyone takes for granted the winning of religious freedom cases.
The opposite is true of the establishment clause cases. This may be due to the fact that there is still some debate--although not much--about the interpretation of the its intent. Literalists say that its sole purpose is to prohibit Congress from creating an official government religion. The broader interpretation, supported by scores of decisions handed down over the past sixty years by both conservative and moderate Supreme Courts, is that it means government must maintain a strict neutrality toward religion.
Religious leaders tend to support the establishment clause. They know better than most that the greatest threat to religion would be to let the government have some control over it. Even very conservative religious icons like Pat Robertson, to my knowledge, support separation of church and state in principle. Jerry Falwell's lawyers are actually making a separation of church and state argument in court to support their position in the case described above.
Granted, Robertson and Falwell's interpretation of how rigorously, where and when the principle of separation of church and state should be applied differs significantly from that of the ACLU and the Supreme Court. Robertson and Falwell believe, for example, that teacher-organized prayer in public schools should be allowed. The ACLU and the Supreme Court hold that while each student has a right to pray in school, the school itself should not be involved in promoting or organizing prayers.
Just as we do with free exercise cases, the ACLU of Virginia stands at the forefront of promoting separation of church and state. We challenged the right of VMI to pressure students to participate in an evening prayer and won. We challenged school-organized prayers at Loudoun County graduation ceremonies and won.
We challenged a nativity scene in Vienna that was bought, erected and displayed with government dollars and won. (Had the Vienna nativity been privately owned and placed in a public forum, the ACLU-- as with Rita Warren-- would have been the first organization to defend its right to exist.)
In each of these cases, the ACLU--and the courts--held that the state threatened our religious freedom by imposing its own religious message on citizens.
We lose cases, too. Based on comments made by legislators, we were confident that the General Assembly passed a law requiring a minute of silence in Virginia's public schools for the purpose of promoting organized prayer. On a split decision, but with a strongly worded dissent, the Court of Appeals ruled against us.
Sometimes, the rights of free exercise and separation of church and state appear to be in conflict, making our decisions more difficult. Several years ago, an evangelical student group at UVA asked the college for funds to print and disseminate a magazine for recruiting students to join their religious movement. UVA, which ordinarily gives such funds to student groups, balked.
The university thought it would violate of separation and church and state to provide government dollars directly to a religious endeavor. Indeed, no Supreme Court case had ever allowed the direct flow of taxpayers' dollars to an overt religious function. The students in the religious group sued UVA, claiming that their free speech and free exercise rights were violated when the school refused to treat them the same as non-religious student groups.
Asked by both sides to file a supporting brief, the ACLU decided, after considerable debate, to endorse the university's position. The vote by ACLU decision-makers, however, was nearly evenly split, with just under half taking the student's side. In the end, the Supreme Court ruled in favor of the students, much to the delight of many within the ACLU.
The ACLU holds no special sway over our society. Within the organization, we debate the issues, decide the positions we will take, then ask the courts to rule. In this regard, we are no different from the Christian Coalition or any other group that takes a stand and exercises its constitutional right to advocate for it.
That many will disagree with the ACLU is understood, accepted and even defended. Any group that takes to the frontlines and promotes its view on important issues is going to receive its share of criticism. But it is simply a misunderstanding of what we do to say that we are against religion. In Virginia and nationally, the ACLU is the preeminent organization for defending and promoting both the free exercise of religion and separation of church and state, the two basic tenets of religious freedom in America.
And we have the record to prove it.