God on Trial

An insightful and dramatic account of religious conflicts that keep America divided, from the acclaimed author of A People's History of the Supreme Court

As the United States has become increasingly conservative, both politically and socially, in recent years, the fight between the religious right and those advocating for the separation of church and state has only intensified. As he did in A People's History of the Supreme Court, award-winning author and legal expert Peter Irons combines an approachable, journalistic narrative style with intimate first-person accounts from both sides of the conflict. Set against the backdrop of American history, politics, and law, God on Trial relates the stories of six recent cases in communities that have become battlefields in America's growing religious wars.Peter Irons is professor of political science at the University of California, San Diego. He is the author of five previous award-winning books. The most recent, A People's History of the Supreme Court, was awarded the Silver Gavel Certificate of Merit by the American Bar Association.

PREFACE

 

 

God on Trial tells the stories of recent conflicts over religion in six American communities: towns and cities that have become battlefields in America’s growing religious wars. They are spread across the country, from Pennsylvania to California, and range in size from a rural town of barely a thousand people to the nation’s seventh-largest city. Each conflict began with a decision by elected officials—school-board members, city councilors, county executives, or state legislators—to place a religious symbol on public property or to adopt a religious practice in public schools. Some of these symbols and practices went unchallenged for years, even decades, while others prompted an immediate objection by dissenting community residents. Each local conflict wound up in federal courtrooms, requiring judges—from the trial level to the Supreme Court’s chamber—to interpret and apply the first clause of the First Amendment to the Constitution: “Congress shall make no law respecting an establishment of religion.” The outcomes of these cases differed widely, reflecting long-standing judicial discord over the “original intent” of the clause’s framers in 1789 and its current meaning, more than two centuries later. Similar cases have already divided local communities, and will soon be decided by judges and justices whose earlier rulings in Establishment Clause cases remain open for either reversal or reaffirmation.

The seeds of this book were planted some thirty years ago by a four-word sentence in a Supreme Court opinion that I read as a law student: “We live by symbols.” Justice Oliver Wendell Holmes, who wrote these words, had in mind symbols that have long rallied their followers to heroic deeds, even to sacrifice their lives in wars to protect the values those symbols embody. One such symbol is the American flag, the defense of which against the Confederate insurrection in the Civil War spurred Holmes to enlist in the Union Army, in whose service he was twice gravely wounded in battle. An equally powerful symbol for many Americans is the Christian cross, often linked to the flag in a merger of religious and patriotic zeal. The two tablets of the Ten Commandments symbolize for both Jews and Christians the moral foundation of God’s rules for belief and behavior. Symbolic meaning can be expressed in words as well as objects. The first chapter of Genesis, read literally by many Christians, symbolizes their belief that God created all of Earth’s living creatures, including humankind, in just six days. And spoken prayer at public events, from the first meeting of Congress in 1789 to the most recent presidential inauguration, has symbolized the dual commitment of elected officials to God and to the Constitution whose commands they swear to uphold.

Public-opinion polls going back more than four decades show that a strong majority of Americans supports the public display of religious symbols, prayer in public schools, and the teaching of “creationism” in high-school biology classes. But a minority—sometimes just one person in a community—objects to such displays and practices. Many dissenters—and we cannot know how many—simply hold their tongues and remain silent, fearful of provoking the hostility of their friends and neighbors. Others, however, voice their objections at school-board meetings, in city-council sessions, or in letters to their local papers. An even smaller number take the step of filing lawsuits, often with the aid of lawyers representing organizations committed to the separation of church and state, suits that are frequently opposed by lawyers from well-funded Religious Right groups. Only a tiny number of these suits reach the Supreme Court, but the decisions in such cases have ramifications far beyond the towns and cities in which they began.

Over the past three decades, both as a practicing lawyer and a constitutional-law professor, I have tracked hundreds of Supreme Court cases, and have written about dozens of them in several books, including The Courage of Their Convictions, which recounted sixteen cases—decided between 1940 and 1986—that raised issues of race, religion, protest, and privacy. For that book, I visited the communities in which the cases began, and interviewed the people who initiated legal challenges that resulted in landmark Supreme Court decisions. In a later book, Jim Crow’s Children: The Broken Promise of the Brown Decision, I also visited the five communities—in Kansas, Delaware, Washington, D.C., Virginia, and South Carolina—from which challenges to school segregation all reached the Supreme Court and were jointly decided in 1954 in that historic decision. In both books, I recorded the first-person stories of people who were involved in those cases, recalling their experiences in words that expressed the range of emotions from pain to exultation. These stories, I felt, added human faces and voices to the dry words of judicial opinions.

When the seeds of Justice Holmes’s observation finally sprouted in the idea for this book, I decided to follow the format of these earlier books, visiting the communities in which “symbol” cases began and recording the stories of people who played key roles in them. I also decided to include the stories of people on both sides of the cases, to understand better the differing values and beliefs that prompted them—some eagerly and others reluctantly—to stand on opposite sides of the “wall of separation” between church and state, an increasingly shaky wall in recent years. I faced the initial task of winnowing through dozens of possible cases. My final choice of the six that are recounted in five later chapters—two almost identical cases are joined in one chapter—reflects my judgment as to which cases were both significant and exciting, at least to me. I have placed these chapters in chronological order, based on the year the cases were filed and not on their final decision.

They begin in 1989 with a challenge in San Diego, California, to a forty-three-foot-high Latin cross in the middle of a 170-acre public park at the summit of Mount Soledad, the city’s highest point and its most visible landmark. Next, I recount the challenge in 1995 to the recital of prayers at high-school football games in the Gulf Coast town of Santa Fe, Texas. Four years later, in 1999, separate lawsuits were filed against the display of the Ten Commandments in the courthouses of two rural Kentucky counties and on the grounds of the state capitol in Austin, Texas. The following year, in 2000, a parent with a first-grade student in Elk Grove, California, challenged the words “under God” in his daughter’s daily recital of the Pledge of Allegiance to the American flag. Finally, in 2004, eleven parents of children in the public schools of Dover, Pennsylvania, challenged the school board’s decision to require the reading in high-school biology classes of a statement supporting “intelligent design” as an alternative to the Darwinian theory of evolution.

 

All these cases share two features that influenced my decision to include them in this book. First, the judicial decisions they produced all provoked heated reactions from political leaders, including prominent members of Congress and President George W. Bush, most often in denunciation of “activist” judges whose decisions the politicians deplored. Some rulings even spurred campaigns for the impeachment of the offending judges; ironically, most had been named to the bench by Republican presidents. Second, each case drew the involvement of both Separationist and Religious Right groups and their legal teams, either as counsel or as “friends of the court” in filing supporting briefs. Many other groups, some with millions of members, like the American Legion and the National Education Association, also filed briefs in high-profile cases. For example, when the Pledge of Allegiance case reached the Supreme Court in 2004, the briefs of the parties were joined by more than fifty that expressed the views of almost one hundred interest groups on both sides.

These factors help to explain this book’s admittedly provocative subtitle. It may seem hyperbolic to employ such a martial term as “battlefields” in recounting conflicts in which none of the combatants took up arms against one another. To be sure, in some cases tempers grew short, voices were raised, people were verbally abused, warned of eternal damnation, and even threatened with physical harm. But such expressions of anger and frustration are common when people clash over things in which they deeply believe, and few beliefs are more deeply held than religious convictions. Americans are fortunate—perhaps “blessed” is a better term—to have thus far been spared the bloody sectarian wars that have cost thousands of lives in other countries. In recent years, and even today, Catholics and Protestants in Northern Ireland, Muslims and Hindus in India, Jews and Palestinians in Israel, and Sunni and Shia Muslims in Iraq have killed one another in civil wars that have both religious roots and political aims. But even in America’s history, lives have been lost in religious conflict. As we will see, the execution of “witches” in colonial Massachusetts, the hanging of Quakers in that colony, and the death of thirteen people in the “Bible Riots” that erupted in Philadelphia in the 1840s all stemmed from religious conflicts in which the executioners and rioters claimed divine sanction for their murderous acts.

We tend to look back on such events as aberrations from the tradition of religious tolerance that we like to think better reflects our nation’s history. But this strain of religiously motivated violence is not ancient history. Over the past three decades, antiabortion militants have murdered doctors, nurses, and clinic patients in the name of God. Loosely tied under the banner of the “Army of God,” these Christian extremists ironically share that name with a faction of Muslim extremists who have beheaded Americans in the name of Allah. Needless to say, the antiabortion movement should not be tarred with the brush of such domestic terrorists, any more than American Muslims should be charged with the crimes of their religion’s terrorist fringe.

But the imagery of religious “warfare” remains in American society and politics, reflected in the titles of two recent books. David Limbaugh, a lawyer and brother of the better-known Rush Limbaugh, was the author in 2003 of Persecution: How Liberals Are Waging War Against Christianity. Journalist Clint Willis answered in 2005 with Jesus Is Not a Republican: The Religious Right’s War on America. As these titles suggest, Limbaugh and Willis both blame their political adversaries for launching religious wars to achieve political goals. Behind their fevered rhetoric, both authors have correctly identified a long-standing feature of our nation’s history, the close linkage of politics and religion. Back in the 1830s, Alexis de Tocqueville—a French Catholic visitor to America—noted that “religious zeal is perpetually stimulated in the United States by the duties of patriotism” and remarked that “you meet with a politician where you expected to find a priest.”

Over the years since Tocqueville’s perceptive observations, American politics has been infused with religious appeals for partisan support. The most notable recent example was voiced in the fiery speech by Pat Buchanan, the conservative writer and one-time presidential candidate, to the Republican national convention in 1992: “There is a religious war going on in this country, a cultural war as critical to the kind of nation we shall be as the Cold War itself, for this war is for the soul of America.” Buchanan’s linkage of religion to the broader American culture is telling, and reflects the fact that virtually every aspect of our culture—art, literature, television and film, family life, sexuality, and other elements of our society—has become a target of what I call the New Puritans. Those who campaign against pornography, abortion, and same-sex marriage are the same people who battle to protect such religious symbols and practices as the Ten Commandments, Christian crosses, and school prayer.

 

This book’s structure reflects the intersection of American history, law, and politics as they jointly affect the religious battles that have been waged since our nation’s earliest days. The first three chapters explore these factors in that order, providing the context for the cases recounted in the five that follow. Chapter One lays the historical foundation, beginning with the settlement of the New England colonies by English Puritans, determined to build a “New Jerusalem” in which church and state were linked with legal codes based explicitly on Old Testament proscriptions and punishments. Other colonies, such as New York, Pennsylvania, and Virginia, did not follow the model of the New England theocracies, but most taxed their residents to support established churches and punished religious dissenters, most notably Baptists, with fines and imprisonment for preaching without licenses. Two Virginia politicians, James Madison and Thomas Jefferson, were revolted by what Madison called in 1774 the “diabolical, hell-conceived principle of persecution” for religious beliefs, and responded with successful efforts to disestablish their state’s Episcopal Church. Although Madison resisted calls at the Constitutional Convention in 1787 to add a bill of rights to the new nation’s charter of government, he reluctantly bowed to pressure from opponents of its ratification, drafting in 1789, as a member of the First Congress, a bill of rights whose first two clauses provided that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Chapter Two explains the seemingly puzzling fact that not until 1947 did the Supreme Court issue its first Establishment Clause ruling. Because the First Amendment, by its terms, applied only to congressional acts, the justices had consistently held that local and state laws were beyond their jurisdiction. Starting in 1925, however, the Court abruptly—and without explanation—began the process of “incorporating” First Amendment guarantees into the Fourteenth Amendment, which requires the states to provide their citizens with the same “due process” guarantees of the Fifth Amendment. One by one, beginning with the Free Speech and Free Press clauses, the Court protected First Amendment rights against state abridgment. A series of rulings between 1938 and 1943 extended that protection to the Free Exercise Clause, largely in cases brought by members of the Jehovah’s Witnesses, who challenged laws that banned or restricted their practices of door-to-door and street-corner proselytizing. In 1947, the Court held that the Establishment Clause “requires the state to be a neutral in its relations with groups of religious believers and non-believers,” in an opinion written by Justice Hugo Black. Over the next five decades, the Court applied the “neutrality” doctrine—with a few exceptions—in striking down state laws that allowed prayer and Bible-reading in public schools, the teaching of Biblical “creationism” in high-school biology classes, and the posting of the Ten Commandments in school classrooms. These decisions have all served as precedent in the cases recounted in this book, although the Court’s divisions in recent Establishment Clause cases have exposed what Justice Clarence Thomas has aptly described as the “hopeless disarray” among his colleagues over that clause’s interpretation and application.

Chapter Three examines the political factors in America’s religious wars, first looking at the groups—most notably, the American Civil Liberties Union and Americans United for Separation of Church and State—that have long supported church-state separation. Beginning in the 1930s, ACLU lawyers racked up an impressive string of Supreme Court victories, largely in defending Jehovah’s Witnesses. Founded in 1947, Americans United joined the ACLU in opposing laws that provided tax support for private religious schools, most of them Catholic. In these early Establishment Clause battles with local and state officials, ACLU and AU lawyers most often faced—and almost always defeated— lawyers with little experience in First Amendment law. The emergence and rapid growth of the Religious Right during the Reagan years, however, prompted its leaders to establish legal arms for such groups as Pat Robertson’s Christian Coalition and Jerry Falwell’s Moral Majority. Robertson set up the American Center for Law and Justice in 1990, and Falwell soon followed by forming Liberty Counsel; more than a dozen other Religious Right groups now have their own legal arms. Lavishly funded by right-wing foundations, these organizations are staffed by skilled and media-savvy lawyers who have battled their ACLU and AU adversaries in dozens of religion cases over the past two decades.

With these first three chapters as background, Chapters Four through Eight take us into the six communities in which began the local battles over religious symbols and practices they recount. Each chapter ends with the first-person stories of people who played key roles on both sides of these battles. They include both evangelical and mainstream Christians, Jews, those with no religious ties, and atheists. They represent, in fact, people who live in almost every American town and city, distinguished only by taking a stand on issues that have divided their communities and the nation.

 

Let me, finally, explain the background and beliefs that impelled me to write this book. My longtime interest in religious disputes stems from those within my own family. One of my ancestors, the Reverend John Greenwood, ordained as an Anglican priest, broke with the Church of England and was among the first Puritan ministers in England. He was executed in 1593 for “writing against the Book of Common Prayer,” spurring members of his church to seek sanctuary in Holland. My earliest American ancestor, William White, arrived with other Puritans from Holland and England on the Mayflower in 1620, and was a signer of the Mayflower Compact. The first generations of this family branch were staunch Puritans, several becoming Puritan ministers. More recently, my maternal grandparents were both religious apostates. My mother’s father, whose parents were born in Ireland, was banished from his family in New Hampshire at the age of thirteen after refusing to attend daily Catholic services. He and my maternal grandmother, raised as a Methodist in Nova Scotia, encouraged my mother to sample all the churches in Hudson, Massachusetts, where she grew up. She finally chose the Unitarian Church, which imposes no creedal affirmations on its members, as the most welcoming for a teen-ager with an inquiring mind.

My father’s ancestors were Scots-Irish immigrants to western Pennsylvania in the 1780s, bringing with them the stern Calvinism of the Presbyterian Church and producing several noted ministers; the Irons Memorial Presbyterian Church in McDonald, Pennsylvania, bears the name of my great-great-grandfather. My father left the Presbyterian Church during his college years, and became a Unitarian when he married my mother. Along with my six brothers and sisters, I attended Unitarian churches from the age of seven through high school. During my years at Antioch College, whose first president in the 1850s was a noted Unitarian, Horace Mann, I attended Quaker meetings in the college chapel. Over the two decades after my graduation from Antioch in 1966, during which I obtained a doctorate in political science from Boston University and a J.D. from Harvard Law School, I rarely attended church, although I sometimes went to Quaker meetings and Buddhist services, relishing the focused spirituality they encouraged.

After I moved from Boston in 1982 to teach constitutional law at the University of California, San Diego, I returned to the Unitarian Church. Here I met my wife, whose parents are nonobservant Jews but insisted that she attend Hebrew school and go through the Bas Mitzvah ceremony. Our two daughters attended Unitarian Sunday school in San Diego, but after I retired from UCSD in 2004 and we moved to a very small town in northern California, far from the nearest Unitarian church, I began attending the local United Methodist church, whose members were delighted to finally have a bass in its seven-member choir. Greenville’s Methodists have welcomed me into their church, although I do not recite the Lord’s Prayer and sit quietly in my pew during the monthly Communion service. This family background of Puritans, Catholics, Methodists, Presbyterians, and Unitarians has shaped the perspective that I bring to this book.

During my legal career, I have been involved in several religion cases. Between 1989 and 1998, I served as counsel for two San Diego atheists who filed a lawsuit to remove a Latin cross from the Mount Soledad Natural Park, arguing the case in the federal court of appeals and successfully opposing the city’s petition for Supreme Court review of the lower-court order to remove the cross. My account of that case in Chapter Four includes my own participation in the ongoing legal battle. In 2004, I wrote and filed with the Supreme Court a “friend of the court” brief in the suit to block the recital of the words “under God” in the Pledge of Allegiance in public-school classrooms in Elk Grove, California. I filed the brief on behalf of nineteen eminent theologians and religious scholars—Christian, Jewish, Buddhist, and Hindu—who supported that challenge. That same year, I also represented Carrie Roat, a parent in the small Ozark mountain town of Humansville, Missouri, who challenged the display of the Ten Commandments and the recital of Christian prayers in her teen-aged son’s school. Carrie filed her suit against Greg Thompson, the school superintendent, who had posted the Commandments and led the prayers, and who passionately defended his actions. That case ended with a settlement I negotiated with the school district’s lawyer, in which the school board agreed to remove the Commandments and stop the prayers. Greg Thompson refused to sign the settlement and was fired for his recalcitrance. The story of Carrie’s case, which provoked intense community hostility against her, could easily have been a chapter in this book, although it never reached trial.

It bears reflection that there are hundreds of towns like Humansville, in which religious symbols and practices in public places go unchallenged, but only a handful of people like Carrie, willing to take a stand against the majority of their fellow citizens. My own sympathies lie with the Carrie Roats in our nation’s towns and cities, but we need also to understand the Greg Thompsons. Talking with people like them, in the six towns and cities I visited in recent months, has given me a deeper understanding of the differing beliefs and values that have sparked these local battles in America’s growing religious wars. My hope in writing this book is that its readers will also deepen their understanding of the ongoing struggle for “the soul of America.”

 

 

 

God on Trial

 

 

 

Chapter 1

“Respecting an Establishment of Religion”

 

 

The backdrop to America’s growing religious wars lies in the dark under-side of our nation’s history. Before we visit the cities and towns in which recent battles over religious symbols and practices began, we need first to examine how that history shaped the current struggle between partisans on both sides of the national conflict over church-state separation. Those who debate the role of religion in the public square—preachers, politicians, and pundits among them—fire rhetorical volleys across the metaphorical “wall of separation” that divides the combatants, all claiming that history supports their side. Echoes of these noisy debates reverberate in the quiet chambers of the Supreme Court, which has the final word in deciding cases that begin with local disputes over religion and end with rulings that reflect the Court’s reading of the historical record on which justices base their opinions. Over the past quarter-century, the Court’s initial consensus in religion cases has dissolved into often bitter discord among the justices over the “intent” of the men who framed and adopted the Establishment of Religion Clause of the First Amendment.

Not surprisingly, the justices have differed sharply in their readings of America’s religious history. On the rough spectrum from left to right, the more “liberal” justices have most often read that history as requiring “a wall between church and state” that “must be kept high and impregnable,” as Justice Hugo Black stated in 1947. More “conservative” justices have generally dismissed the “misleading metaphor” of the church-state wall, as Justice William Rehnquist wrote in 1985. We will discuss those dueling opinions in the following chapter; my point here is that Black and Rehnquist both quoted extensively from the same historical record in reaching their opposite conclusions. Through Black’s liberal eyes, this record supported his “separationist” position on church-state separation, while Rehnquist’s conservative eyes found in it support for his “accommodationist” approach to Establishment Clause cases.

 

If justices like Black and Rehnquist have differed so sharply in their reading of America’s religious history, it is fair to ask whether that history matters, or has simply become a convenient weapon for the combatants on both sides of our current religious wars. In my view, both propositions are true. The history of religious conflict that led to adoption of the Establishment Clause in 1791, as Black noted, clearly supports the contention of its primary author, James Madison, that the clause was intended to ensure “the total separation of the church from the state.” It is equally clear, however, as Rehnquist pointed out, that Madison had initially proposed only that no “national religion be established,” presumably leaving the states free from congressional regulation in religious matters. Which of Madison’s words—and those of the other men who participated in framing the Establishment Clause—should we consider the best guide to its meaning and application? That question, I submit, makes little difference to the partisans on both sides of our current religious wars, who pick and choose from the framers’ words only those that serve their political purposes.

There is, however, considerable irony in the complaints of today’s Religious Right leaders that church-state separation is a “lie of the Left,” propagated by “non-Christian people and atheistic people” who have conspired “to destroy the very foundation of our society,” as Pat Robertson has charged. Many of today’s evangelical Christians seem unaware that their colonial forebears were the very people that James Madison had labored for years to protect from the forced exactions of established churches. Those who denounce church-state separation as a “myth” have turned history on its head. Proclaiming that America was founded as a “Christian nation,” and that its laws should reflect that heritage, they ignore the persecution of evangelicals and other religious dissenters who challenged the established churches of the colonial period. The earliest advocates of a “Christian nation” in the New World, in fact, persecuted adherents of nonconforming sects with an Old Testament vengeance. The real myth, taught to generations of schoolchildren, is that the Pilgrims who signed the Mayflower Compact in 1620 had left England to establish a colony in which all religions would be tolerated. It was, however, only the “Advancement of the Christian faith” the Compact’s signers declared as their goal, and to whose adherents they promised “just and equal Laws” to which the colonists would owe “submission and obedience.”

The Puritans who followed the first Pilgrims to Massachusetts in 1630 had even less regard for religious tolerance. As their name implies, they wanted to “purify” the Church of England, to which they still claimed allegiance, from doctrinal “corruption” and ecclesiastical domination. John Winthrop, the Massachusetts Bay Colony’s first governor, famously depicted the Puritan vision of the “New Jerusalem” as a “city upon a hill,” in which Christians would live by God’s commandments, not the edicts of the Anglican hierarchy. American presidents from John Adams to Bill Clinton have invoked Winthrop’s stirring imagery. Ronald Reagan, most notably, spoke of America as a “Shining City” that was “God-blessed, and teeming with people of all kinds living in harmony and peace,” and whose “doors were open to anyone with the will and the heart to get here.” What these presidents failed to note, however, was that Winthrop drew his image from the book of Matthew, recording the message of Jesus that only the “righteous” inhabitants of this holy city could “enter into the kingdom of heaven.”

The doors of Puritan Massachusetts were definitely not open to the “unrighteous” who challenged its religious orthodoxy. Winthrop and his followers imposed a rigid theocracy on the colony, enforced by laws based on the Mosaic Code of the Old Testament. Nathaniel Ward, a former lawyer in the English courts and later a Puritan pastor, drafted in 1641 a “Body of Liberties” that heeded Winthrop’s admonition to punish “anything that can be proved to be morally sinful by the word of God.” In drafting the criminal code for the colony, Ward noted in the margin of each provision the book, chapter, and verse in the Bible that gave divine sanction to punishment of its transgression. Ward’s listing of fifteen capital crimes began, not with murder, but with the most serious affront