Cornyn Gives Senate Stage to Judge Who Refused to Follow Law

The Senate Judiciary Subcommittee on the Constitution, Civil Rights and Property Rights, chaired by Sen. John Cornyn of Texas, is scheduled to hold a hearing today on “Hostility to Religious Expression in the Public Square.” Among the witnesses is former Alabama Chief Justice Roy Moore, who was dismissed from his office for refusing to obey a federal court order removing a Ten Commandments monument Moore had installed in the state judiciary building. Moore and his followers have been defiant, even though the U.S. Supreme Court has rejected his request to intervene on his behalf.

Lawbreaking Judge Celebrated by Some Religious Right Leaders, Political Allies

Roy Moore’s appearance says volumes about the misinformation likely to be peddled by some at the hearing. Moore, like other Religious Right leaders, either misunderstands or intentionally distorts the difference between protecting individuals’ freedom of religious expression and using the coercive power of government to proselytize or impose one religious viewpoint over others – which is what Roy Moore did repeatedly when he used his power as a judge to impose his religious beliefs on people seeking justice in the Alabama courts. The courts that have ruled against Roy Moore did nothing to reduce the ability of Americans to follow or promote the Ten Commandments or to worship according to the dictates of their faith and conscience; the courts acted only to protect individuals from having the government use its resources and power to endorse and promote a set of religious beliefs.

These facts have not prevented some Religious Right activists from trying to make Moore a folk hero and to use his case to build public support for weakening the separation of church and state. Unfortunately, distorting the truth about church-state separation and religious liberty is nothing new. For decades, Religious Right leaders and their political allies have wrongly claimed that the courts have thrown God/the Bible/prayer out of the public arena and public schools. Both claims are false. Public high school students are free to carry and read their Bibles, form Bible clubs if their school has an extracurricular club program, share their faith with friends, meet with other students to pray before school, say grace over lunch, and otherwise express their faith in ways that are not disruptive and not coercive to other students. What cannot be done constitutionally is to impose religious belief or practice on individuals in a captive audience setting like classrooms or at school-sponsored events – or courtrooms.

Church-State Separation Protects Against Coercion and Divisiveness

One of the other witnesses at the Cornyn hearing will provide a powerful example of the destructive divisiveness that results when government does take sides on religion. Steven Rosenauer of Manatee County, Florida will testify about his family’s experience with the county school board’s practice of beginning its public meetings with sectarian prayer. Rosenauer and his wife and son were invited to a school board meeting in May 2003 so that their son could be honored for his academic achievements. The Rosenauers were shocked when the Board Chair began the Board meeting by asking everyone to stand for a recitation of the Lord’s Prayer. The Rosenauers, members of the Jewish faith, were made to feel like outsiders in their own community. That evening, Mr. Rosenauer wrote to the Board to object to the recitation of Christian prayer by the Board. The Board never responded to Mr. Rosenauer’s letter, and continued to recite the Lord’s Prayer to begin its meetings.

During the next several months, People For the American Way Foundation attorneys, as counsel to the Rosenauers, sent letters to the Board explaining that its practice endorsed religion generally and Christianity specifically, in violation of the constitutional requirement that the Board must remain neutral toward religion and insisting that the practice cease. In August 2003, the Board adopted guidelines calling for its meetings to begin with a nonsectarian “invocation,” but it repeatedly violated those guidelines by continuing to start meetings with Christian prayer, leaving the Rosenauers with no choice but to file a lawsuit. The School Board recently agreed to a court-approved settlement prohibiting the Board from starting its meetings with sectarian prayer.

The Rosenauers’ stand on behalf of their family’s religious liberty rights was met with repugnant displays of intolerance by some in the community who suggested that the Rosenauers should leave the county. In April, during Passover, the Rosenauers’ home and vehicle were vandalized with red paint. Fortunately, local newspapers were strongly supportive of the family and criticized School Board members for expending so much energy to defend a practice that was unconstitutional, unnecessarily divisive, and a distraction from the educational issues that are the board’s real responsibility. It is unfortunate indeed that School Board members put a higher priority on using their public office to promote their religious beliefs than on welcoming the broadest possible community support for the school system.

An Irresponsible Strategy

Too many political leaders raise false charges of religious persecution for short-term political gain, regardless of the destructive long-term consequences. The same strategies are used by Religious Right groups and their political allies in other debates, including ugly charges of anti-Catholic bigotry made against a number of senators because they opposed a judicial nominee who happened to be Catholic, and ludicrous but frequently repeated claims that granting equal marriage rights to gay couples and their families will lead inexorably to the persecution of churches with religious objections to homosexuality. There is a reason these irresponsible accusations are made so often. Religious Right leaders stoke fears of anti-Christian persecution in order to raise funds and encourage support for their political agenda. It is easier, for example, to convince people that they should support discrimination against gay and lesbian Americans if you have previously convinced them that gay people are out to destroy their churches and families.

Protecting the First Amendment’s Twin Pillars of Religious Liberty

Sometimes, of course, public officials make flawed judgments regarding the First Amendment in the public arena and make decisions that wrongly infringe on individuals’ right to free expression. Those errors are often corrected once they are brought to light. It is inaccurate to argue, as many Religious Right leaders do, that such individual instances and anecdotes are evidence of a broad attack on religious liberty that requires a radical step such as a constitutional amendment being touted by Moore to restrict federal courts’ ability to uphold separation of church and state.

In fact, it is fair to suggest that many of those mistakes may result in part from confusion caused by the relentless propaganda flowing from the Religious Right claiming that the courts have required cleansing the public square of any religious expression. People For the American Way Foundation has worked hard to help public school officials and others understand and uphold the rights of students and others to express their faith.

Religion and peaceful religious pluralism have flourished in the United States precisely because of the First Amendment’s twin pillars of religious liberty – the Free Expression Clause and Establishment Clause. Far from being an enemy of religious expression, separation of church and state protects all Americans’ right to worship or not according to the dictates of their conscience.

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