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Craig Parshall, General Counsel

 

Rock, Paper, Scissors – You Lose

November 17, 2010

I have noticed a trend in the American courts on matters of religion illustrated by two recent federal court decisions. If the trend continues, Christianity will get caught in a two-edged scissor effect. Either way you look at it, the Christian faith may get further marginalized in the public sphere while at the same time a myriad of other religions enjoy a climate of general promotion.

Here are the two blades of the “scissor effect.” First, we have the Establishment Clause, which was originally intended by the Founders to simply prohibit the establishment of an official national religion. It has been expanded by federal judges to strike down even indirect support by government for religion; in reality, Christian ideas and symbols have been banned more often than not. Non-doctrinal, non-traditional religions, though, will likely escape such a disadvantage, as I describe below. The second “blade” is the Free Exercise Clause of the First Amendment. It was originally designed by the Framers of the Constitution to preserve religious liberty. But more recently the Supreme Court has sharply limited that protection so that only those religions that are deemed to be “targeted” by government will find any refuge. More specifically, religions that are in the minority in America, like Santaria (protected by the Supreme Court in 1993), or to be even more precise, Islam as exemplified by another case I mention below. Meanwhile however, the Christian Gospel will have a hard time qualifying for Free Exercise protection.

As for the first problem under the Establishment Clause, I point to the case of PLANS v. Sacramento City Unified School District, decided on November 4, 2010. There, a federal judge in California ruled that something called “anthroposophy,” a clearly spiritual worldview, could be taught in a public elementary school without running afoul of the Establishment Clause. Though this lawsuit was clearly plagued by numerous procedural and evidentiary problems, the court’s ruling is astounding considering the fact that the judge acknowledged that this “Waldorf” school methodology imparts “meditative tools … meant to encourage personal thought and self-reflection.” It also involves “adherence” to the views of Rudolf Steiner, the “founder of the School of Spiritual Science.” According to the Rudolf Steiner website, Steiner was “the most significant occultist to come forward in the last century.” The federal judge focused on the lack of traditional “sectarian activity” of anthroposophy, together with an absence of established “dogma” in ruling that it was not really a traditional “religion” under the First Amendment. According to that reasoning, new age religious beliefs, religious mysticism, and much of Buddhism will be entitled to flourish in public schools and institutions while Christianity, with its more formal theological “dogma,” will continue to be banned. By the way, the federal Court of Appeals in the 9th Circuit had previously used the same flawed reasoning as the judge in the PLANS case: ruling in a case that sprang from objections of Christians to a new age sculpture commissioned by a city, that new age religion is not really the kind of “religion” prohibited from being advanced by government under the Establishment Clause. Thus, public symbols of that religious movement can be legally erected in government buildings. Indeed, it is lawful even for public school children to be indoctrinated in new age religious teachings while Bibles are being forcibly removed from those same schools.

Regarding the second concept of the Free Exercise Clause, we have the November 9, 2010, court decision in Oklahoma in Awad v. Ziriaz, head of the Oklahoma Board of Elections. In that case, a ballot proposition was passed in that state in November by 70% of the voters. It simply stated that “Sharia law” (i.e., Islamic law) should not be used by judges to decide cases. However, the ballot result was suspended by a federal judge as a violation of the Free Exercise Clause. The mid-term election ballot question, the judge ruled, had “discriminated against” Islam and was guilty of “targeting religious beliefs” of Muslims. But to illustrate how this “targeting of religion” business is a one-way street, consider for a moment the Supreme Court’s decision in June (2010) in Christian Legal Society v. Martinez. There the Court ruled that a Christian group could be banned from official college campus recognition because it refused to compromise its Biblical position on homosexuality. The evidence showed that the campus policy could have been enforced against all 60 student groups, yet it was only a Christian organization that was prosecuted and had its recognition revoked. However, the Court’s majority declined to call that unconstitutional “targeting” of Christianity. In his stinging dissent, Justice Alito complained that the decision made the Constitution bow to “political correctness” and went on to note: “ … the [college’s] policy singled out one category of expressive associations for disfavored treatment: groups formed to express a religious [in that case Christian] message.”

Until we get a federal judiciary that breathes logic and some measure of sound American history into these religion cases, we will continue to see the Christian Gospel treated to a child’s game of “rock, paper, scissors,” where the government and almost every other religious group always have the scissors and the Christians are left holding the paper.