Persistently Wrong

The Religious Right Must Accept Its Losses

Persistence can be a good thing. It’s important to healing your body after a serious injury, and it’s crucial if you want to train to run a marathon. 

But sometimes persistence is just foolish. When courts have decided certain matters definitively, for example, continuing to pursue them can be a short-sighted and expensive mistake.

Two stories in the news recently reminded me of how groups and individuals who oppose separation of church and state continue to pursue goals they will never reach. In doing so, they don’t just frustrate themselves; they have the potential to squander scarce taxpayer dollars.

First, in Ashville, N.C., some members of the community are trying to deny Cecil Bothwell the right to take a seat he was duly elected to during a city council race.

Bothwell is an atheist, and his opponents have cited a provision of the North Carolina Constitution that denies public office to anyone “who shall deny the being of Almighty God.”

A Bothwell opponent, H.K. Edgerton, is threatening to file a lawsuit.

Edgerton hasn’t attempted to hide his bigotry. He told the Associated Press, “My father was a Baptist minister. I’m a Christian man. I have problems with people who don’t believe in God.”

It’s a shame Edgerton has a “problem” with atheists, but that doesn’t mean he has a legal case. In fact, he has none. The Supreme Court ruled in 1961 that state constitutional provisions like this limiting office to Christians or certain types of believers are unconstitutional.

That case, Torcaso v. Watkins, dealt with a Maryland man who wanted to be a notary public but refused to swear an oath containing a reference to God. The case reached the Supreme Court, where the decision wasn’t even close. Indeed, it was unanimous.

Six states – North Carolina, South Carolina, Pennsylvania, Maryland, Arkansas, Texas and Tennessee – still retain these discriminatory provisions in their constitutions. But they are dead letters and cannot be enforced. (Pennsylvania’s provision is especially strange, requiring potential office-holders to profess belief in a “future state of rewards and punishments.” This language is so strict it would bar Unitarians, many Jews and even some Christians from office.)

Any attempt by the government to revive these provisions in North Carolina or anywhere else means a protracted legal battle that will cost some astronomical amount. And we know what the outcome will be. There are better ways to spend public funds.

Across the country in California, a woman named Merry Hyatt (yes, Merry) is angry that some public schools don’t include religious Christmas carols in their winter pageants. She is collecting signatures on a ballot referendum that would require public schools to include such songs every December.

Hyatt got a boost when members of the “tea party” movement in Redding, the northern California city where Hyatt now lives, endorsed her drive and said they would help collect signatures.

I must be blunt: Hyatt and her allies would do better to spend their time planning real tea parties than chasing this chimera. They are wasting their time. In the unlikely event the measure gets enough signatures (it needs 433,971 valid endorsements by March 29), and in the unlikely event California voters were deluded enough to approve the proposal, it would be struck down by the federal courts – again, after expensive litigation that the budget-busted Golden State can ill afford.

Time and again, the courts have made it clear that public schools cannot sponsor religious activity. That includes the singing of religious Christmas carols, which are, after all, often Christian prayers set to music. Some of this music may be included in a school concert under certain conditions, but it obviously can’t be required. Altering the California Constitution won’t change that.

There are always interesting cases dealing with church-state separation knocking around in the federal courts. The Supreme Court has announced it will hear a case dealing with whether a public law school can require recognized student-run religious clubs to maintain non-discrimination policies. AU has sponsored important cases dealing with various aspects of “faith-based” funding. It’s fair to say some of these controversies are up in the air.

But some issues have simply been settled. Non-believers have the same right to run for public office as everyone else. Public schools cannot be required to impose religion on unwilling students.

AU’s Legal Department works constantly to remind public officials about church-state law. Sometimes we encounter government officials or public school administrators doing things they must know are wrong. A strongly worded letter usually sets them straight. There’s no need to go to court, because the other side knows they cannot win.

I wish our opponents under­stood why we need a church-state wall. I wish they would appreciate the religious diversity of America. But more than anything, I wish they would acknowledge when they’re beaten and stop clogging the courts with cases they cannot (and should not) win.

Barry W. Lynn is executive director of Americans United for Separation of Church and State