December 1999 People & Events

House Prayer Vote Is 'Shameless' Posturing,
Says Americans United

A U.S. House of Representatives vote supporting organized prayer at public school athletic events is little more than "shameless political posturing," Americans United has charged.

Americans United Executive Director Barry W. Lynn sharply criticized the Nov. 2 vote, calling it yet another example of Congress' insensitivity to the separation of church and state. The nonbinding resolution (H.Con.Res. 199), sponsored by Reps. Henry Bonilla (R-Texas), Charles Stenholm (D-Texas) and 28 other representatives, urged the Supreme Court to allow official prayer at public school sports events.

 "America has education problems that need to be dealt with seriously," said Lynn. "If prayer at football games is all the House has to offer, heaven help us! Maybe we should send the House leadership back to the locker room until they come with up a better game plan.

 "This is shameless political posturing," Lynn continued. "The Supreme Court, not Congress, decides constitutional issues such as school prayer. The House ought to find something better to do with its time."

The resolution asserts that "prayers at public school sporting events are entirely consistent with our American heritage of seeking Divine guidance and protection in all of our undertakings" and goes on to say that "statements of belief in a Supreme Power and the virtue of seeking strength and protection from that Power are prevalent throughout our national history, currency and rituals."

The resolution adds that it is the sense of Congress that "prayers and invocations at public school sporting events are constitutional under the First Amendment to the Constitution and the Supreme Court, accordingly, should uphold the constitutionality of such practices."

The measure passed on a voice vote late in the afternoon when many members were absent. Football prayer has emerged as an issue because of a recent federal appellate court ruling against school-sanctioned invocations at athletic events in Texas. (The Santa Fe Independent School District v. Doe case was accepted by the Supreme Court Nov. 15 and a decision is expected by June or July.)

During debate on the floor of the House, proponents of the measure asserted that banning football prayer would infringe on students' rights and attacked separation of church and state. Repeating an often-heard Religious Right canard, Rep. Robert Aderholt (R-Ala.) insisted that the Constitution "grants freedom of, not freedom from, religion."

Rep. John Hostettler (R-Ind.) criticized the Supreme Court's interpretation of church-state relations and concluded that states have no obligation to abide by the Bill of Rights. "[T]he fact is that the Fourteenth Amendment does not apply the Bill of Rights to the states...," he said. (Hostettler's interpretation is at odds with the conclusion reached by the vast majority of constitutional scholars in the country.)

Rep. James Traficant (D-Ohio) rose to say he is sick of hearing "this First Amendment mumbo jumbo" and asserted that the Founding Fathers "are rolling over in their graves" because they "never intended to separate God and people." The Supreme Court, Traficant asserted, needs a "shrink over there." The Ohio Democrat added that Congress needs to pass more laws to protect school prayer.

But Rep. Robert Scott (D-Va.) disagreed. "Students may voluntarily pray together provided such prayer is not done with school participation or supervision," he said. "We are not talking about a student's ability to pray. We are talking about the ability of that student to require everyone else to participate."

Meanwhile, some school districts across Texas are ignoring the federal appeals court ruling barring prayers before football games, the Associated Press has reported. In some communities, students, egged on by school officials and other adults, are openly flouting the law. In Stephenville, for example, a group of 15 students smuggled in a portable address system and recited prayers before a football game.

Their action was applauded by Superintendent Larry Butler, who saluted the students for "doing something that they feel really strongly about. I think the entire community of Stephenville believes in school prayer."

In the community of Van, the local ministerial alliance brought a portable public address system to school so students could circumvent the court's order. The loudspeaker was set up near the playing field, and students recited prayers when the school superintendent called for a moment of silence.

"It's our own P.A. system. We're not violating the law," Scott Dornbush, pastor of a United Methodist church in Van, told the Tyler Morning Telegraph.

But not all districts are disregarding the law. In Tyler, Superintendent Donald Gentry said that although he does not agree with the ruling, he has told principals to comply with it.

"If nobody had made an issue out of it, we probably would have gone ahead and prayed," Gentry said. "Now we feel a legal obligation to follow the ruling."

Opposition to school-sanctioned football prayers also came from the Baptist Standard, the newspaper of the Baptist General Convention of Texas, the state's largest Protestant denomination. (Although affiliated with the fundamentalist-dominated Southern Baptist Convention, Texas Baptists still support the historic Baptist stand for church-state separation.) 

In a Sept. 15 editorial, editor Marv Knox listed several reasons why football games prayers are a bad idea. "While the court's decision is no more popular than rooting for the arch-rivals, it is correct," Knox wrote. "First, that stadium microphone is sponsored by the government, and the U.S. Constitution forbids government establishment of religion..... [S]upport and endorsement of a particular religion is forbidden by the Constitution's Establishment Clause."

Knox also blasted the "ho-hum, one-size-fits-all prayers" common at football games. "What a waste of breath," he wrote. "Prayers like that fit the description my old coach, Hoss Byerly, used to give for a tie ball game: 'It's kind of like kissing your sister. It doesn't really hurt. It doesn't help at all. And it's sure no fun.'"

In other news about school prayer:

\xb7 A federal judge in Houston has dismissed an Aledo, Texas, student's lawsuit challenging a public school's ban on organized prayer at graduation. Katherine Hackleman sued the school after a district lawyer deleted parts of a prayer she planned to read as part of the official program. Although school officials later relented and told Hackleman she could recite the prayer, she sued anyway, backed by a group called the Liberty Legal Institute. But the gambit failed when U.S. District Judge John McBride ruled Oct. 27 that Hackleman did not have a valid case.

Americans United Files Politicking Complaint Against La. Church

Americans United for Separation of Church and State has asked the Internal Revenue Service to investigate The Asia Baptist Church in New Orleans, La., for supporting a candidate for governor in apparent violation of federal tax law.

 During the gubernatorial campaign, Democratic candidate William Jefferson asked hundreds of pastors throughout Louisiana to declare Oct. 17 "William Jefferson for Governor Day" and solicit campaign contributions on his behalf. Federal tax law, however, prohibits houses of worship from endorsing candidates for public office and intervening on their behalf.

According to a report in the New Orleans Times-Picayune, Asia Baptist heeded Jefferson's request. Pastor Zebadee Bridges told the newspaper he not only spoke on Jefferson's behalf from the pulpit, but also directed those in attendance at Sunday services to contribution envelopes that had been sent to the church by the Jefferson campaign.

 "Most people didn't put in but a dollar or so," Bridges told the Times-Picayune. "We probably collected $200. People who will give a dollar will vote. And that's what we're trying to do, too, to get people out to vote."

 Bridges also told the newspaper, "The churches have always been involved in something political." Referring to Jefferson, he added, "This is the first black congressman we've had in the state of Louisiana. We've never elected a black governor, might never have one.... But if the churches don't help people get together to elect somebody, we'll never have one." (Despite the church-based push, Jefferson was soundly defeated by incumbent Gov. Mike Foster Oct. 23.)

 Bridges' comments led Americans United to conclude that the congregation ignored federal tax law prohibitions on partisan politicking by churches. In a formal complaint filed with the Internal Revenue Service Oct. 25, Americans United Executive Director Barry W. Lynn said Asia Baptist's activities "seem like a clear violation of the Internal Revenue Code....Accordingly, I urge you to conduct an investigation into the actions of The Asia Baptist Church and any other Louisiana church that participated in partisan endeavors."

 In 1996, Americans United began an effort called Project Fair Play. As part of the initiative, AU attempts to educate religious leaders about the legal and moral implications of houses of worship engaging in partisan politicking. The most egregious examples of religious institutions ignoring the law are reported to the IRS.

 Project Fair Play is conducted in a non-partisan fashion. Since the initiative began, AU has reported church activities in support of Democratic, Republican and Independent campaigns. Most recently, Americans United reported eight churches to the IRS that had distributed Christian Coalition voter guides in support of GOP candidates in the 1998 election.

Houston Public School Backs Out Of Deal With Religious Academy

Officials with the Houston Independent School District have suspended a plan to send some poor-performing students to a private religious school with taxpayer dollars, after the scheme drew fire from church-state separationists.

The school district had entered into discussions with Dr. Leon Spivey of Life Ministries Christian Academy, who had expressed an interest in accepting Houston public school students who fail to meet promotion standards. Spivey said he would create a new school for the students called Fifth Ward Preparatory Academy, which would be separate from his ministry and would comply with relevant state and federal laws.

Spivey, however, refused to say exactly where the new school would operate, leading some critics to believe he intended to simply enroll the public school students in his religious academy at taxpayer expense. This raised concerns among church-state separationists.

On Sept. 28, Americans United Litigation Counsel Ayesha Khan wrote to Dr. Rod Paige, superintendent of the Houston Independent School District, and Board President Laurie Bricker, warning them that the proposal was "rife with constitutional pitfalls."

Observed Khan, "My understanding is that Fifth Ward Preparatory Academy will be located in the same building as the pre-existing Life Ministries Christian Academy, and that both academies will be operated by the same person(s). According to the terms of the agreement, 'Students enrolled in the Contract School will be integrated into the existing school program in accordance with all district policies and procedures.'"

Khan noted that Americans United litigated a string of cases with similar facts in the 1970s and won them all. She urged the school officials to "reconsider the arrangement to require that the Fifth Ward Preparatory Academy be truly independent of religious authorities in all aspects of its operations, including its location."

In addition, Charlotte Coffelt, vice president of the Houston Chapter of Americans United, testified against the plan at a school board meeting Sept. 16. "If you board members authorize the superintendent to negotiate and execute the final contract with a sectarian school and award money to fund public school children's education at such an establishment, that action will surely call into serious question your fiduciary responsibility to the public," Coffelt told the board. "Please consider the implications of this recommendation. Any use of tax dollars to support a religious ministry will violate the Constitution and almost certainly result in litigation."

On Oct. 13, Paige wrote a letter to Spivey suspending negotiations over the proposal.

Federal Court Says No To N.J. First Grader's Proposed Bible Lesson

A federal appellate court has ruled that a New Jersey elementary school student does not have a First Amendment right to defy his teacher and read a Bible story aloud to his classmates.

The conflict began in 1996 when Zachary Hood, then a first grader at Haines Elementary School in Medford, N.J., was selected to bring a story from home to read aloud during a story time. Hood wanted to read a selection adapted from the Book of Genesis from The Beginner's Bible: Timeless Children's Stories. The teacher, Grace Oliva, asked him not to read it to classmates, fearing that the children in the diverse class might perceive it as a teacher endorsement of Hood's religious beliefs. (Oliva had previously told the children she would review their books to make sure they were appropriate.)

Hood and his mother then sued the school, insisting that his First Amendment rights had been violated. The Hoods were represented first by the Rutherford Institute, and later by the Becket Fund, two Religious Right-oriented legal groups. School officials defended Oliva's action, arguing that teachers and administrators, not students, determine what goes on in the classroom.

A federal court ruled in favor of the school in 1997, and in an Oct. 22 decision, the U.S. 3rd Circuit Court of Appeals agreed. The three-judge panel said that the elementary school has no obligation to permit a student to read from a religious text to a captive audience of 6-year-olds.

Americans United, one of the groups that filed a legal brief in support of the school, applauded the decision as a victory for church-state separation and common sense. "It seemed obvious to the judges that first graders do not have an absolute First Amendment right to read religious literature aloud to other students during class," said the Rev. Barry W. Lynn, executive director of Americans United. "As much as the Religious Right wanted to turn this case into one of religious discrimination, these judges wisely knew better."

In its C.H. v. Oliva decision, the unanimous court said discretion over classroom content must belong to the teacher, "not only because she is a professional educator, but also because she is in a far better position than [the court] to predict how students and their parents are likely to respond to the way she conducts her class in any given situation and what impact those responses may have on the ongoing educational process."

The judges added that allowing a student to read a religious story aloud in class could lead to a series of adverse results. "It is not unreasonable to expect that parents of non-Christian children would resent exposure of their six-year-old children to a reading from the Bible," the court said. "Nor is it unreasonable to expect that some parents of Christian first graders would regard a compelled classroom exposure to material from the Bible as an infringement of their parental right to guide the religious development of their children at this stage."

Fla. Sheriff Removes Religious Website Posting After AU Warning

The sheriff of Lee County, Fla., has removed an overtly sectarian message promoting his personal fundamentalist Christian religious views from a government website after receiving a protest from Americans United.

In late September Americans United received a number of complaints about the activities of Sheriff John J. McDougall of Fort Myers. On the sheriff's office website, McDougall posted a lengthy message title "Wake Up America! Before It's Too Late!" that blasted legal abortion and the Supreme Court's rulings banning mandatory prayer in public schools.

McDougall wrote that the only hope for America is for the nation to "say Lord Jesus, we are sorry for having betrayed our promise to you by having turned our backs on you and your Commandments. Please give us the grace to confess our sins and humbly ask your forgiveness. Restore us once again, as a holy people, and one nation truthfully Under God."

McDougall observed, "Daily we learn of the mass killings of students in our schools, shootings taken [sic] place in day-care centers, and places of worship. Is there any wonder why so many young people are committing such horrible crimes against innocent victims, when we protect the rights of atheists, and abolish the recognition of Almighty God in our classrooms?"

Elsewhere McDougall warned of "the diabolical forces of moral corruption working feverishly, behind closed doors." These include, he wrote, "Gay and Lesbian coalitions, rabid feminist groups, United Nations one-world government radicals, and the American Civil Liberties Union." These "parasitic groups," he wrote, "force us under the protection of law to tolerate and accept their despicable conduct and agenda."

McDougall called for posting the Ten Commandments in public schools and government buildings and for a ban on abortion.

On Sept. 27, Americans United Litigation Counsel Ayesha Khan wrote to McDougall and advised him to stop using a government-owned website to promote religion.

"While you are entitled to your own personal views, the Constitution forbids use of your government position to assert those that advocate or endorse religious points of view," wrote Khan. "Accordingly, we ask that you delete all constitutionally inappropriate passages from the Sheriff's office website. If you fail to do so, we will not hesitate to take legal action." 

McDougall subsequently removed the message from the website.

IRS Can Restrict Partisan Politicking By Churches, Americans United Tells Federal Appellate Court

Churches do not have a constitutional right to endorse political candidates and still keep their federal tax exemption, Americans United has advised a federal appeals court.

 In a brief filed with the U.S. Court of Appeals for the District of Columbia Oct. 26, Americans United argued that the religious freedom guarantees of the First Amendment do not entitle churches to engage in partisan politicking while maintaining tax-exempt status.

 "Houses of worship have broad constitutional protections, but they cannot hide behind the First Amendment when they engage in blatantly partisan politics," said AU Executive Director Barry W. Lynn, in a press statement.

 The case at issue concerns the Church at Pierce Creek, a Binghamton, N.Y., congregation that bought full-page newspaper advertisements in the 1992 presidential election advising "Christian voters" that supporting candidate Bill Clinton would be a sin.

Americans United filed a complaint against the church with the Internal Revenue Service, citing the provisions of federal tax law barring partisan involvement by tax-exempt groups. The IRS revoked the church's tax exemption three years later.

 TV preacher Pat Robertson's American Center for Law and Justice filed suit, challenging the IRS action. However, U.S. District Court Judge Paul L. Friedman ruled March 30 that the tax agency's conduct was in accordance with federal law and did not violate the church's constitutional rights.

 The case, Branch Ministries v. Rossotti, is now on appeal.

AU's brief, written by General Counsel Steven K. Green and Litigation Counsel Ayesha Khan, notes that the IRS Code mandates that churches refrain from engaging in partisan activity as a condition of receiving tax exemption but does not bar houses of worship from all political endeavors.

Americans United, Allies Oppose Parochial School Aid In Louisiana Case

Government aid to religious schools in the form of computers, software and library books violates the separation of church and state, Americans United has advised the Supreme Court.

In a friend-of-the-court brief in a controversy from Louisiana, Americans United and eight other national organizations urged the justices to uphold a lower court ruling striking down federal "Chapter II" aid to private religious schools.

The groups argue that the program is flawed because there are no safeguards to make certain that the material is not diverted to religious use. The brief points out that in 1982, for example, religious schools in Jefferson Parish used taxpayer money to purchase sectarian titles such as The Illustrated Life of Jesus and A Child's Book of Prayers.

The long-running case, Mitchell v. Helms, was brought originally by Louisiana taxpayers with Americans United's assistance in 1985. After years of delays in the lower courts, it reached the U.S. 5th Circuit Court of Appeals, which declared the program unconstitutional in August of 1998.

Church-state observers say the Helms case is important because it could provide a strong clue about what the high court thinks about vouchers and other forms of direct aid to parochial schools. In recent years, the Supreme Court has upheld several forms of indirect taxpayer aid to sectarian schools but has stopped short of approving direct assistance.