Public High School Commencement In Church: A Case Study By Charles Cheves Richard and Dian

Public High School Commencement In Church:
A Case Study By Charles Cheves

Richard and Dianne Lolo, and their children Richard and Michelle, moved
to Port Charlotte, Florida, during the summer of 1988.  Port Charlotte
is a giant unincorporated subdivision in Charlotte County, platted in
the fifties to attract northern retirees. The greater part of it is
situated across the Peace River from Punta Gorda, the county seat, on a
large promontory on Charlotte Harbor between the Peace and the Myaka
River; but the more recently developed area where the Lolos bought a
house is across the Myaka, on the north side of Charlotte Harbor, much
closer to the unincorporated community of Englewood than to Punta
Gorda.

The area north of the Myaka is served by Vineland Elementary, Angier
Junior High, and Lemon Bay High School, all in or near Englewood.
Michelle was enrolled in the 5th grade at Vineland, and young Richard
entered the senior class at Lemon Bay.

Although they have not been active participants in church activities in
some years, the Lolos are "believers" and still consider themselves to
be Catholic. Religion is a very personal, independent subject for them,
and they have strong feelings in opposition to participation in any
organized religious format or formal membership in a church. They are
not First Amendment scholars but part of their religious philosophy is
a firm instinctive belief in separation of church and state, a concept
which Mr. and Mrs. Lolo have actively taught Richard and Michelle to
respect.

On Friday, June 9, 1989, a "graduation" and awards ceremony was
conducted for Michelle's fifth-grade class at Vineland, which would
move on to Angier Jr. High in the fall. Michelle attended the
ceremony.  After a welcoming statement by the principal, an invocation
was given by Rev. Bill Oakley, the minister at Gulf Cove Methodist
Church.

Richard, meanwhile, who was enrolled in Chorus IV, a graded music class
at Lemon Bay, learned that he was required to perform with the chorus
at a school-sponsored baccalaureate service at Englewood United
Methodist Church (EUMC), and at the commencement ceremony for his
class, conducted at the same church. Failure to participate would lower
his Chorus grade. He was not required to attend the commencement in
order to graduate and receive his diploma, but he earnestly wanted to
participate with his classmates.

Richard believed strongly that he "shouldn't be told that I have to go
into a church," either for a religious service or for graduation. He
definitely did not wish to attend a Methodist service, and his critical
beliefs concerning organized religion made entering the EUMC sanctuary
very distasteful.  He and his parents complained, to no avail. Richard
ultimately decided that both the official religious service and
graduation in the sanctuary were improper mixing of church and state,
contrary to his beliefs, and with his parents' consent he declined to
participate in either ceremony. He received his diploma, but his Chorus
grade was changed from "A" to "C," appreciably reducing his academic
grade point average for the school year.

The Lolos came to my law office in Venice, about 20 miles north of
Englewood, in August, 1989. Richard's experience, except for the
reduced grade, was water over the dam, but Michelle and her parents
were opposed to a continuation of the same practices at Lemon Bay,
where she would graduate in a few years.

My only experience with First Amendment Establishment Clause litigation
had been a suit filed in my own name in the early eighties seeking to
enjoin a traditional city-sponsored Christmas pageant on the grounds of
Venice City Hall. The city, against the advice of its lawyer, decided
to fight it out at any cost, but eventually the pageant committee
chairman backed down and moved the ceremony to a church yard and
severed all ties with city government. I dismissed the suit without
prejudice before it went beyond the pleading stage, and so had no
experience with preparation and presentation of such a case in court.

The general issue of school prayer had been resolved, of course, by
Abington School District v. Schempp (1963), but religious folks have
frequently ignored that case law. I studied the more recent case of
Jager v. Douglas County School District (1989), which had been decided
by our Eleventh Circuit Court of Appeals. Doug Jager and his father had
won their suit to enjoin prayers at Douglas County, Georgia, high
school athletic events. I also found authorities to support our
objection to an official baccalaureate service.

But the case law on the subject of conducting a public school
graduation in a church was sparse and inconclusive. I could only find
four cases which dealt with this issue. In 1972, a federal district
judge in Pennsylvania (Wood v.  Lebanon School District) found without
much comment that the use of a church for public school commencement
did not breach the First Amendment. Two years later, a federal district
judge in Wisconsin (Lemke v. Black) disagreed. He determined that
holding commencement at church "with knowledge that some prospective
participants could not attend without violating their conscience cannot
be allowed without a showing that there is an overruling secular need
to use those particular facilities." In 1916 the Wisconsin Supreme
Court (State ex rel Conway v. District Board) allowed commencement at a
church which was "more commodious and better calculated to take care of
the overflow crowds ... than any other building that is available." In
Miller v.  Cooper, the New Mexico Supreme Court allowed commencement at
a church which was said to be the only facility in the community which
could comfortably accomodate the students and their guests.

We learned that 1,200 people, including 175 seniors, attended the 1989
commencement. The only larger indoor facility in Charlotte County is
the county auditorium in Punta Gorda, approximately 18 miles from the
Myaka River Bridge, which accommodates 1,500 plus space on the stage.
We thus knew at the beginning that we would be faced with an argument
that the EUMC was the only facility in the immediate Englewood vicinity
large enough for the ceremony.

We filed suit against the School Board of Charlotte County in the U.S.
District Court for the Middle District of Florida in Tampa in October,
1989. Our suit sought injunctions stopping school prayer and the
baccalaureate service, requiring that commencement be conducted at
facilities other than the church, and reinstating Richard's "A" in
Chorus. The school board voted to defend the action, and regarding use
of the church for commencement, stated as their reason "There doesn't
seem to be ... a facility large enough to accommodate the 1,200 people
that do attend," and the church's estimated 1,200 capacity was said to
be barely sufficient.

*   *   *

On the recommendation of its legal counsel the School Board engaged
Gregg D. Thomas of Holland & Knight, Florida's largest law firm, as
defense counsel. Thomas is a knowledgeable, scholarly gentleman, a
capable First Amendment "establishment" and "free exercise" specialist
who has served as an advocate for folks on both sides of the separation
issue, including appearances in the U.S. Supreme Court. He was assisted
by Carol Jean LoCicero, an associate at the Holland firm.

Thomas believes in telling a client exactly what he is up against. His
advice to the School Board, reluctantly but wisely accepted, was that
in view of then existing case law interpreting the Establishment
Clause, the prayers at Vineland, the official baccalaureate service,
and the reduced Chorus grade were all unconstitutional, but that if it
could be shown that the EUMC sanctuary was the only reasonably
available, adequately sized facility for graduation, and if prayers and
hymns were expunged from the ceremony, he could develop an argument
defending the use of the church.

With his client's consent, Thomas filed an answer to our complaint
admitting the impropriety of the prayers and religious service, and the
grade reduction, but denying that any irreparable harm existed with
respect to the use of the church as a facility for commencement
exercises. This tactic substantially narrowed the issue to be
litigated, and eliminated from the suit our most compelling complaints
of unconstitutional conduct which I had hoped would taint the less
compelling question as to the propriety of using the church building
for graduation.

I made the half-hour trip from my office in Venice to Englewood for a
look at the EUMC facility. Say what you will about religious folks, you
must admire their ability to attract customers and get into their
pocketbooks.

The church is on a large, valuable tract, shaded with live oaks and
palms, with a sanctuary, separate education and administration
buildings, playgrounds for the kids, and ample parking. The sanctuary
has a huge cross attached to the front of its modernistic two-story
steeple. It has four large, stained glass windows depicting a religious
theme. A lighted wooden altar has a scripture verse carved in large
letters on front. (Thomas advised the Board to cover the scripture
during the 1990 commencement conducted while our suit was pending.) A
cross was affixed to the rear wall. Hymn books and bibles were in racks
on pew backs. Standing inside the cavernous structure, there could be
no mistaking that I was in a place dedicated to the worship of a deity,
a place I haven't been to for better than 30 years except when I could
not avoid a funeral. It made me uncomfortable, and any reservations I
had about the sincerity of Richard Lolo's negative feelings dissolved.

I made a hasty count of seating capacity in the ornate pews, and
figured that a good deal of temporary seating in aisle space would be
necessary to accommodate 1,200 people. On a hunch, I called the fire
marshal and learned that the fire code limited the sanctuary to 999
people. State law required that this be posted in a conspicuous place,
and it was not. How about that? These good Christians were breaking the
law! They and the Charlotte County School Board were willing to risk
the lives of young people for the satisfaction of conducting
commencement in a church.  This information allowed an argument that
1,200 was "barely sufficient," the limited capacity of 999 was clearly
insufficient, justifying the 20-mile drive to Punta Gorda to use the
county auditorium. I had learned that the Lemon Bay juniors and seniors
traveled 15 miles from their school to a hotel at Boca Grande in Lee
County for their annual prom, and that the seniors traveled by bus to
an all-night graduation party at Disney World, a three-hour trip.  It
didn't seem to much to ask that they have commencement in Punta Gorda,
their county seat.

The lawsuit dragged a bit while we conducted depositions of school
board members, school administrators, and church officials, and
unsuccessfully attempted to resolve the dispute in court ordered
mediation. School Board members, the Lemon Bay principal, and the
school superintendent (who happened to be a member of EUMC) all
insisted that they defended the use of the church because it was a
community custom and the most convenient facility. They denied any
religious motivation. Board member Robert Waldrop expressed his belief
that Richard Lolo was a disgruntled individual trying to do something
unfair to his classmates. Chairwoman Vicky Matthews could see no
"reason why we should change everything just because of one student."
If any students were uncomfortable in a church "they are free to get
their diploma without attending a service."

At the deposition of Supt. Robert Bedford, I asked him to assume
hypothetically that the "Satan Devil Worshiping Voodoo Church of
Englewood" had constructed facilities adjacent to EUMC's property,
building a 2,000 seat auditorium more comfortable and convenient that
the EUMC sanctuary. I pointed out that Lemon Bay needed at least a
1,200 seat capacity, but EUMC could legally seat only 999 people. I
asked Mr. Bedford what his position would be with respect to a proposal
that the Satan Voodoo church auditorium be used for Lemon Bay's
commencement ceremony.

Mr. Bedford responded that "there would be a huge public outcry if we
were to use something like that ... we would probably not have many
graduates attend and that therefore, that's probably not a facility
that would be considered." This, he said, was because satanists and
witchcraft "were not very popular or accepted." He wasn't sure he would
attend a secular activity at the Voodoo Church.  "I would be aware of
where I was," he admitted.

Several board members spoke of "secularizing" the sanctuary for
commencement exercises, including the removal of hymnals and bibles.
When I deposed Rev. John Hires, senior pastor of EUMC, he acknowledged
that his 2,600 member congregation was outraged at the concept of
"desecularizing" their church and stated that hymnals and bibles would
not be removed. He told me that there was no objection to the use of
the sanctuary for secular purposes, and indeed it was occasionally used
for such things as performing arts concerts. I asked if there were any
limitations on the secular uses. He answered, "Well, it would have to
be in line with whatever--for wholesome purposes, I would say ...
Obviously we're not going to have a meeting of nonbelievers ... "

Early in 1991 I learned that the School Board had completed
construction of a beautiful $3.2 million auditorium at Lemon Bay High
School, with plush seating for 762 people, plus an orchestra pit, space
for disabled persons in wheel chairs, and the second largest stage in
Southwest Florida, altogether a total seating capacity of 994, just
four less than the church sanctuary.

Greg Thomas and I were able to put together a stipulated fact statement
and we agreed to present our case to the court by way of cross motions
for summary judgment. A summary judgment is available when there is no
genuine issue of material fact. It is highly unusual for opposing
lawyers to agree that such is the case, although fairly often there are
no significant factual disputes.

While we were waiting for notice of a hearing on our motions, I
received an order assigning the case to a new district court judge,
Ralph W. Nimmons, Jr., formerly serving on one of Florida's circuit
courts of appeal. I called a Tampa lawyer who had clerked for my office
while in law school, and had later clerked for Nimmons at the appellate
court. To my sorrow, I learned that Nimmons, a Reagan appointee, is
extremely religious. We were in trouble! Federal procedure rules
governing recusal of judges likely to be biased against a party are
quite inadequate. We were stuck with him.

Gregg Thomas filed a scholarly memorandum of law supporting his motion
for summary judgment. The main thrust of his argument was that the
church sanctuary was only a building, frequently and customarily used
as a secular meeting place by Englewood folks, that the Lolos were
unreasonable in objecting to its use for high school commencement. He
contended that the Supreme Court's Lemon v. Kurtzman test for
permissible government involvement in religion was satisfied because
the purpose for using the church sanctuary was secular. This was the
primary bone of contention, because we felt that disregarding the
self-serving statements by board members and school administrators, the
undisputed evidence clearly showed that EUMC's sanctuary was not
adequate, that Lemon Bay's new auditorium was equally convenient, and
that the Charlotte County Auditorium, with its 1,500 seat capacity, was
the only adequate facility in the county. Since an equally convenient
school facility was available in Englewood, and a much more adequate
facility was available in Punta Gorda, the only credible reasons to
continue using EUMC were the religious majority's stubborn resistance
to a valid minority point of view and its preference for a church as
the site of Lemon Bay's commencement.

*   *   *

The following is an abbreviated version of the memorandum of law I
filed on behalf of the Lolos.

"The undisputed facts show that the [EUMC] sanctuary is inadequate to
accommodate the Lemon Bay commencement by more than 200 seats, that the
new school auditorium has substantially the same capacity, that the
Charlotte County Auditorium has more than sufficient size for Lemon
Bay's commencement. Of the three facilities, the School Board has no
valid secular reason to insist upon using the church in the face of
protest by a minority which cannot enter a church.

"Defendant seems astonished that the Lolos object to attending
graduation in a church, contending that the church sanctuary is only a
building. Never mind that it looks like a church, there is a huge cross
outside, bibles and hymnals in the pews, a pulpit with a bible verse
carved on its face, stained glass windows pictorially portraying
religious concepts, a cross on the rear wall. Never mind that it is
obviously and undeniably a church, a place sacred and holy to true
believers but a monument to superstition and hypocrisy for atheists and
people who abhor organized religion. The Lolos, who are so offended by
organized religion that they want no part of any church and refuse to
enter one, should think of it only as a secular building, says
defendant. The religious majority of students and parents can see it as
secular, says defendant to the Lolos, and so should you.

"Defendant's contention that the sanctuary is seen only as a secular
meeting hall at commencement is belied by an instruction by the senior
class faculty sponsor in a school newsletter: 'Please remember
baccalaureate and commencement are held in a church, and we want the
services to be dignified.' Defendant observes that the sanctuary is
used for secular civic activities. It is reasonably certain that while
the local symphony is welcomed to perform there, local residents will
have to drive to the county auditorium in Punta Gorda to see 'The Best
Little Whorehouse In Texas,' or a comedy monologue by Whoopi Goldberg.
Why?  Because the [EUMC] building is a church.

"The reaction of many religious people is 'Why should the Lolo children
be offended? They are going to a church building, not a church
service.' Discovery disclosed that if school authorities proposed to
move commencement from the inadequate church sanctuary to a larger and
more comfortable and convenient 'Satan Devil worshipping Voodoo
Church,' there would be a huge public outcry and very few graduates
would attend. Why should this be so? The Satanist Church is only a
building, even if there are books praising occult symbols on the walls.
The graduates would not be required to worship the devil, only to sit
in a sanctuary dedicated and consecrated to the antitheses of their
personal beliefs, used by Satan's followers to glorify his name. Why
should that offend the good Christians of Englewood? Because it is a
church used by a religious group which espouses views repugnant to
theirs.

"Richard and Michelle Lolo refuse to enter any church because they find
organized religion repugnant. Their classmates would refuse to enter a
Satanist Devil Worship Church because they find devil worship
offensive. Since the religion practiced at [EUMC] does not offend most
folks, the majority has no problem using the church for commencement.
They can overlook the fact that the [EUMC] sanctuary is a religious
place because the religion is familiar and agreeable, but they would
not be able to overlook the inherent religious function of a Satanist
Church and treat it as just another secular auditorium.

"In the Virginia Bill For Religious Liberty, Thomas Jefferson wrote
'That no man shall be compelled to frequent or support any religious
worship, place, or ministry whatsoever ... ' The Supreme Court has
acknowledged that the First Amendment religion clauses have the same
objective and were intended to provide the same protection as did the
Virginia Bill.

"In Everson v. Board of Education, Justice Black, writing for the
majority, said: 'Neither a state nor the federal government can force
nor influence a person to go to or remain away from church against his
will or force him to profess a belief in any religion.' As it is
impossible for many citizens to distinguish a church sanctuary from its
normal usage, it cannot be constitutional for a school board to insist
that a high school's commencement be conducted in a church."

(At this point I cited Lemke v. Black, where a Wisconsin federal
district judge had enjoined the use of a church for commencement.)

"The judge in Lemke identified the question before him as 'being
whether the practice here challenged threatens those consequences which
the Framers deeply feared; whether, in short, they tend to promote that
type of interdependence between religion and state which the First
Amendment was designed to prevent.' He cited Abington School District
v. Schempp, where the Supreme Court held that a uniquely public
function of American schools was 'the training of American citizens in
an atmosphere free of parochial, divisive, or separatist influences of
any sort . . ' He concluded that state activity increasing religious
tension between public school students runs afoul of the goals of the
First Amendment and the purposes of public schools. He found that such
a conflict existed because a few students 'had made it known that it
violated their consciences to attend commencement in a Catholic
church.  The heart of his decision was his determination that holding
commencement at the church 'with knowledge that some prospective
participants could not attend without violating their conscience cannot
be allowed without a shwoing that there is an overruling secular need
to use those particular facilities.'  He notes that while the ceremony
is voluntary, it is an important event for the students and observed
that `It is cruel to force any individual to violate his conscience in
order to participate in such an important event...' He considered it
insignificant that only a slight minority of students had objected,
citing Schempp for the proposition that `the measure of seriousness of
a breach of the Establishment Clause has never been thought to be the
number of people who complain of it.'

"The crux of this case is brought in focus by the comment in Lemke that
holding commencement in a church in the face of conscientious objection
should not be allowed 'without a showing that there is an overruling
secular need to use the particular facilities.' Defendant argues that
the Lemon v. Kurtzman test is satisfied because the school board
members and school officials unanimously express the same secular
purpose: [EUMC] is the only indoor facility within the Englewood
community which can comfortably accommodate the numbers attending the
commencement. If the stipulated facts show that this self serving
unanimous opinion is unjustified, then the defense collapses in a
heap.

"Twelve hundred people attended before the fire code was enforced, the
1,200 capacity was minimally adequate, and reduction of that capacity
to 999 renders the church clearly insufficient. Defendant complains
(before enforcement of the fire code) that after limiting each graduate
to 'only four guest passes' there are only 124 seats left for school
board members, school officials, band, chorus, and invited guests, with
a 'few remaining seats' (176) distributed by lottery to seniors who
wish to invite more than four guests. Four passes obviously are not
enough for parents, siblings, grandparents, and family friends.
Underclassmen are left out altogether. The church sanctuary was thus
entirely inadequate as a facility for commencement, even with a
capacity of 1,200.

"If there is a secular facility in the community with substantially the
same capacity, or better ... , then there is no compelling secular need
to use the church.

"With the new auditorium on campus providing substantially the same
capacity as [EUMC], defendant has not shown an overruling secular need
to use the church. If the School Board will use the county auditorium
in Punta Gorda, it can seat 1,500 .... There will be no bibles,
hymnals, crosses, stained glass windows, vestments, or inadvertently
displayed bible verses. The facility will be entirely secular. ...

"Given the existence of a substantially equivalent school auditorium on
campus, and a far more adequate facility in Punta Gorda, the use of
[EUMC] clearly expresses a preference for a church sanctuary.

"The use of the inadequate church sanctuary when equivalent and more
adequate secular facilities are available clearly violates the
'purpose' and 'effect' tests set forth in Lemon v. Kurtzman, if not the
'entanglement' test. Defendant's motion for summary judgment should be
denied. Plaintiffs' motion should be granted."

We orally argued the motions before Judge Nimmons at the Federal
Courthouse in Tampa. On October 18, 1991 Judge Nimmons signed an order
granting the school board's motion and denying the Lolos' motion. He
conveniently ignored the undisputed fact that reduction of the church
seating capacity from 1,200 to 999 left the sanctuary completely
inadequate to accommodate the usual crowd, much less many others who
probably would like to attend. He agreed with the Board's obviously
erroneous opinion that the church "comfortably and appropriately
accommodated the commencement program." He found the school auditorium
less adequate because the graduating class would have to sit on the
stage rather than with the audience as at the church.  (The other two
Charlotte County high schools sit on the stage at the County
Auditorium.)

He found that the church was preferable to the county auditorium
because of the distance to Punta Gorda. He held that the sanctuary
"becomes a mere auditorium on graduation nights." He quoted from the
Conway decision (Wisconsin) but failed to include the point that in
Conway the church was "more commodious and better calculated to take
care of overflow crowds . . . than any other building that is
available."

He brushed off the compelling logic of Lemke as "wrongly decided." He
cited the New Mexico Supreme Court decision in Miller v. Cooper,
including the point that the church was the only facility in the
community which could comfortably accommodate the students and their
guests, but since his decision completely ignored the crucial fact that
a 999 capacity was inadequate, the distinction from Miller v. Cooper
was not apparent on the face of his order.

Ignoring the concessions made by Thomas at the beginning of the suit,
Judge Nimmons directed that a judgment be entered for the Defendant
Board. The Clerk did so promptly, with the effect that the Board was
not enjoined from continuing the admittedly unconstitutional prayers
and baccalaureate, and was not directed to reinstate Richard's "A" in
Chorus.

I filed a motion for rehearing bringing this error to Nimmons'
attention. I also asked him to reconsider his decision on the use of
the church:

"This Court mistakenly and erroneously found that the church is a
perfectly suitable facility. ... The stipulated facts show that it is
unsuitable and unsafe. It was jam-packed with at least 1,200 people for
commencement services conducted before the Fire Marshal limited
capacity to 999. Therefore its capacity is deficient by at least 201
seats. There will be a strong temptation to overlook the Fire Marshal's
ruling in order to accommodate all who desire to attend, and if the
trip to Punta Gorda is 'risky,' the use of the church will be downright
dangerous because it will be a fire trap. The Charlotte County
Auditorium has a capacity of 1,500, and is an eminently suitable, safe,
secular facility."

Thomas responded to my motion, pointing out that when we had entered
our stipulation early in the suit, "the law prohibited schools from
permitting prayer and sponsoring religious baccalaureate services." He
noted that later on "the United States Supreme Court granted certiorari
in Lee v. Weisman and that oral argument would occur shortly. In that
case the Court will decide whether prayer at middle school graduations
is constitutional." The Board wanted to withdraw from its stipulation,
hoping that the Supreme Court would reverse the ruling barring
graduation invocation in Lee v.  Weisman. Even an Establishment Clause
scholar like Gregg Thomas had been surprised when the Supreme Court's
acceptance of jurisdiction in Lee v. Weisman raised the possibility
that prayer would again be allowed in public schools.

Judge Nimmons took the bait. His first reaction apparently was to allow
the Board to renege on its stipulation if the Weismans lost their case.
He sat on my rehearing motion for over five months, presumably waiting
for a Supreme Court decision. Finally, in May, 1992, he got tired of
waiting for the Supreme Court and entered an order directing that an
amended judgment be entered incorporating the stipulated concessions,
"without prejudice to any right the Defendant may have to seek relief
from enforcement based upon the holding announced in Weisman." He thus
tried to leave the door open for an unprecedented modification of a
final judgment. Otherwise, he denied my motion for rehearing, again
ignoring the undisputed inadequate seating capacity of the church. A
short time later, the Supreme Court affirmed in Lee v. Weisman, to the
huge disappointment of the right wing and the stunned gratification of
freethinkers.

*   *   *

Within days after the order on rehearing was entered, my long-time
partner was appointed a state circuit court judge and I decided to
retire from the practice of law after 30 years engaged in civil
litigation. Without a law office and administrative support, it would
be impractical for me to handle an appeal for the Lolos. Additionally,
I had to advise them that the probability of a reversal was quite slim,
with Reagan appointees predominating on our Circuit Court of Appeal,
and the Supreme Court decidedly pro religion, notwithstanding its
narrow five to four decision in Lee v. Weisman. I had not charged them
for my services, and apparently they did not find another lawyer who
would risk the substantial time necessary for a federal appeal with no
prospect of being paid unless the appeal were successful. They did not
file an appeal.

As the school population grows on the Englewood side of the Myaka
River, it is quite possible that by the time Michelle graduates even
the Methodist school superintendent will have to acknowledge that using
the church with a capacity of 999 is religious-motivated foolishness
when the County Auditorium will comfortably seat over 1,500.

We at least eliminated prayers and school sponsored church services,
but the outcome of the Lolo case provides a classic example of the
difficulty encountered by a litigant seeking to uphold the
Establishment Clause when the judge is wearing religious blinders, an
all too frequent situation. Religious judges, slipping and sliding on a
slope that Jefferson and Madison intended to be a vertical wall, engage
in all manner of intellectually dishonest rationalization, and
sometimes stoop to cooking the facts, as they strive to blur the easily
identified line between church and state.

Unlike pornography, religion is always quite easy to define and
identify. Former Chief Justice Burger said that the barrier between
church and state was "blurred, indistinct and variable," that "total
separation is not possible in an absolute sense." If that is so, it is
only because judges like Burger have made it so in cases such as Marsh
v. Chambers, where he ignored established case precedent and could find
no constitutional impediment to prayers in legislative chambers, and in
Lynch v. Donnely, the Pawtucket creche case, where he decided that the
Christ child in his manger could be a secular holiday decoration like
Rudolph the Red-nosed Reindeer.

Such abject foolishness should draw a failing grade in a first-year
logic course, but it is the law of the land, which means that
freethinkers have a very tough row to hoe in the courtrooms of this
nation. It will stay that way until we have a president who will
appoint judges like Holmes, Brandeis, Cardozo, Douglas, Black and
Brennan to our Supreme Court. Will it be Clinton?  That depends upon
whether his Southern Baptist affiliation represents his true beliefs or
was part of the pragmatic veneer he adopted to achieve the presidency.
We can only wait and see.


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This article is reprinted (with permission) from the May
1993 issue of Freethought Today, bulletin of the Freedom
From Religion Foundation.

For more information, write or call

Freedom From Religion Foundation
P. O. Box 750
Madison, WI  53701
USA
(608) 256-8900
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