Pacific Justice Institute
delivered at the
International Coalition for Religious Freedom Conference on
"Religious Freedom and the New Millenium"
Washington DC, April 17-19, 1998
We are a nonprofit organization committed to defending religious rights and civil liberties. I am gong to touch briefly upon Cuba and Canada, but most of my comments will be about the United States.
With regard to Cuba, let us make no mistake. It is one of the most religiously intolerant places in this hemisphere, to say the least. Over 3,500 priests and clergy have been arrested. Churches have been confiscated. Recently we noticed that the pope visited Cuba and sought a number of reliefs, including restoration of church property, permission for religious broadcasting, and the ability to participate freely in the open marketplace of ideas—if there is such a thing in Cuba. We have yet to see what changes will occur, and we need to watch Cuba very carefully.
Another country to look at is Canada. Canada is, I think, where the United States could be. I don’t see that as a positive. I have some attorney friends from Canada. One lives in Vancouver, and he describes Canada as not exactly a bastion of religious freedom. There is very little protection in their constitution with regard to individual free exercise. Because it is more socialized, protections are more inhibited than in the United States.
What about the United States? There are three basic theories I am going to touch upon and then look at how they apply to cases I have been involved in. This will give you a taste of what we have been doing since we opened last June. We have been very busy.
First is strict separation of church and state, as espoused by the ACLU. When I have debated the president of the ACLU, Nadine Strasen, she has been very open about their support of the strict-separation doctrine. That doctrine, in a nutshell, maintains that whatever government touches, wherever government pervades, must be sterilized from religion and religious expression. This is so whether it be in schools or the workplace. Those of you who are advocates will probably disagree that I gave it justice, but I will move on to the next point.
Next is the philosophy of benign neutrality, which is upheld by the majority of the present Supreme Court. Rheinquist is the one who basically has been credited with upholding this philosophy. This viewpoint maintains that government, by accommodating religion while remaining neutral, does not violate the establishment clause of the First Amendment to the Constitution even though religion may benefit from this accommodation. This philosophy has gained a lot of momentum over the last two decades.
The final one is that of natural law. This is basically the legal philosophy that Blackstone and those legal thinkers who developed our fundamental law and even the common law adhered to. Presently there is only one member of the Supreme Court who believes in natural law: Justice Clarence Thomas. He is the first Supreme Court justice in 50 years to openly support the concept of natural law.
The theory of natural law is basically the idea that many hold to be central to the Constitution and the Declaration of Independence, that human laws are presupposed to be under a higher level or a higher law of accountability. The laws of nature, and nature’s God, the Creator, provide the foundation of law and principles of law upon which we are to judge ourselves and our leaders. That is basically the concept of natural law. It doesn’t presuppose theology or revelation, but it does presuppose a standard to which all are accountable.
How does this play out in real life, in the real world? Ask yourself how these theories would apply to different situations. Let us look at employment law. One case was Monty Tucker vs. the California Department of Education. In this case, a man wanted to have religious items in his workstation. He wanted to be able to share his religious faith with others during lunchtime or break time. He worked for the government. The California Department of Education said no.
The case was heard by the Ninth Circuit Court of Appeals, which ruled that the policy was unconstitutional, that he was protected by the First Amendment of the Constitution. This is not Canada. This is the United States. It is important to keep this in mind. For those of you from Canada, we can talk about some prospective modifications of the constitution there. But that is an important case.
In the private sector, the United States has something called Title VII, which says that an individual in a private company who has sincerely held religious beliefs or practices should be accommodated absent a showing of some kind of undue burden or hardship upon the employer. This is important as well.
We had another case that went up through the court process, Terry Silo vs. a hospital. He was fired for sharing his faith during lunchtime on the outside steps of the hospital with a fellow worker. He lost at the initial court level, and then, on appeal, he won. He won under Title VII. It took over a year of litigation. Title VII also gives us a lesson. And that is, it doesn’t pay to have laws on the books for religious freedom if we aren’t willing to see those laws enforced.
Martin Luther King Jr., in his movement for racial freedom and civil liberties, would have lost if people had not ensured that the 1964 Civil Rights Act was enforced and implemented throughout the country. We need the same vision and commitment for religious freedom in the United States and around the world as we adopt legislation.
Another example of religious intolerance in employment is the new trend toward sensitivity training with regard to sexual orientation. I am going to hit the issue right on the head because that is where it is hitting the people I am representing. Many people who have religious beliefs don’t believe that homosexuality is a valid alternative moral lifestyle. They don’t want to attend sensitivity training classes that orient them toward that philosophy. They have religious beliefs about it.
We at the Pacific Justice Institute believe that their religious beliefs need to be accommodated and that they should not be forced to attend these seminars. Yet that is becoming a predominant element of corporate America throughout the United States and probably in other countries as well. Tolerance means accommodation, even if it is not politically correct.
What about housing? We talked about employment, but what about housing? One lady we represented has a condominium. In the private area of her condominium she wanted to have a cross displayed with some plants. The private condominium association said no because it is offensive and a nuisance. We settled that case recently. She had reasonable monetary damages awarded because we defended her. If we hadn’t defended her, she would have had to pay monetary damages.
This is an important principle and issue: the extent to which we are going to allow even private entities, like associations, to restrict individuals’ use of their property for religious purposes. If it was a huge cross that was blocking the entrance, that would be one thing, but simply because it is offensive is not right. Those kinds of policies can be addressed on the legislative level as well.
What about public education? I could talk all day on this. First, public education today has been underscoring parental rights. Why are parental rights important? Because parents are the ones who have the fundamental right over their children’s education and upbringing, including religious and moral instruction. One school district I dealt with required children to take a human interaction class that trained them in death and dying, self-esteem, and sexuality and sexual orientation. Some parents said these were not their religious beliefs. It took over a year of litigation and two weeks of trial to see their rights defended and adjudicated. That was a victory, but it took a lot of work.
We have seen these patterns up and down the West Coast, and I think it is something we are going to see throughout the United States: public education ignoring the rights of parents over their children’s religious values and religious instruction.
Another example is outright attack with regard to students’ religious instruction. The Equal Access Act in the United States protects Bible clubs, along with other clubs, in high schools. We have a case, though, that deals with a middle school where kids are not allowed to form a religious club. We feel they are protected by the First Amendment and should not have to endure hostility because they are religious. The establishment clause not only forbids preference of a particular religion but forbids hostility to religion. That is a principle we intend to see implemented throughout our laws and throughout our public schools—that students not be discriminated against.
A latest element of public education is that of religious imbalance. For example, a school district in California has adopted for one of its elementary schools the Waldorf curriculum. This is controversial. I am sure some of you may have experienced the Waldorf curriculum. It is valid, it is protected, but it also has a religious basis that has been implemented as part of the curriculum in a public elementary school. The main issue is that courts give Eastern religions the same scrutiny as they do Western religions such as Judaism, Islam, and Christianity. We need to strive for equality and equal treatment of all religions in the open marketplace of ideas, including that of public education.
What about the Internet? There is also an ongoing struggle with regard to communication on the Internet. The question is: Are we going to silence those who want to implement filtering systems just because those filtering systems are founded upon religious beliefs and values? I hope not. We have to preserve free speech. By the same token, when we are dealing with a case such as the one that involves a public library and whether it can have computers that have filters for minor children, we are dealing instead with the rights of a community to decide for itself what is morally appropriate and also the rights of parents with regard to their children’s education.
What about religious institutions or even quasi-religious ones like the Boy Scouts? Recently the state of California ruled in favor of the Boy Scouts, but not on constitutional grounds. It is their right not to admit people based on their sexual orientation as leaders or to require their members to say an oath or pledge to God. That is an important case. They ruled on statutory grounds and said that the legislature can modify the statute if it wants it to apply to other entities, like the Boy Scouts. That is a continuing ongoing battle for quasi-religious organizations that acknowledge God but don’t have a religious doctrine.
What about parish church organizations that have clear religious doctrine? Let me tell you about a case we have right now, Valley Christian Home v. the California Department of Fair Employment and Housing, also, the Fair Housing Council of Riverside. This home is religious. It has a chapel. It ministers to people, provides discounted housing, and is nonprofit. It is similar in philosophy to Mother Teresa and her desire to reach out and help people, even people outside their faith. This is what they are about.
They put an ad in the Yellow Pages saying “Christian environment” to describe their home. Christian environment. It says who they are and what they are about. Nonetheless, they were sued because of it. The state of California claims that because they have some people there who are not of the same denomination, they are not protected for religious purposes, and therefore, they have to follow all the regulations that forbid them from proclaiming their religion in their advertising. This is not Cuba, this is the United States. Yet this is some of the increased governmental control. With government control comes suppression of religious freedom and religious tolerance.
As we see the world and governments develop, we should work to give protections within the law to ensure that government expansion and development don’t encroach upon religious freedom.
Calvert Christian Center has a wonderful ministry providing housing to people who want to live there and grow in their faith. Yet some people were trying to snuff it out because it was dealing with people who formerly had drug problems. Therefore, they were a drug rehab center and needed a state license, with all that entails. The state backed down recently, and now we are defending the center’s right to open a Christian private school. That is quasi racial and religious intolerance.
Finally, what of church autonomy? One church in Oregon wanted to fire someone because he didn’t belong to it. This was a Church of Christ, and they have convictions about that. The state of Oregon says because this person had an administrative role, not a clergy role, the church is not protected and the employee’s suit is valid. That is a serious encroachment on church autonomy, which we hold dear, which we intend to defend. It is critical that autonomy be maintained between the church and state in the original context of separation of church and state.
Last is the issue of civil liberty groups and organizations that are nonreligious and are headed by religious people. I am going to talk personally on this one. I am a Christian. I believe that Jesus Christ is the Lord and Savior, that salvation is through him only, that he was God in the flesh who came down, died on the cross for our sins, rose again from the dead, and that he will one day return in full glory in accordance with the scriptures of the Bible. I believe that and I have a personal relationship with Jesus Christ and a growing relationship with Jesus Christ. I am not ashamed of that. Nonetheless, when people hear that I am the head of Pacific Justice Institute, some of those in the secular world say, “Aha! So you really have an ulterior motive,” and they try to discredit the fact that we are a bona fide civil liberties organization representing and defending all people. And we do. If you look at our cases, you will see we have diverse representation.
Just because you are religious doesn’t mean your sincerity in defending others’ religious freedom should be discounted. In fact, it doesn’t make sense that you would have someone committed to the cause of defending a right when they don’t exercise it at all. Yet that is the logic. For example, I know that the head of the International Coalition for Religious Freedom is a member of the Unification Church. Should we discount this organization because it may receive funding from or is headed by someone who is part of the Unification Church? Do we say, “Aha! They have a secret agenda and shouldn’t be taken seriously as really being for religious freedom?” I think not.
Religious freedom is something that those who hold religious liberties dearest are going to be the most fervent to fight for, as a general rule. And no matter what our religious perspective, we need to be very careful not to fall into that same trap.
The bottom line is that we in the world today have many paths that we could take. There are many different countries that have chosen many different directions with regard to religious freedom. In some ways the United States serves as a role model. Coming back to our Constitution, we cannot ignore the fact that laws and principles of law inevitably relate back to religious conviction, in whatever religion. There are laws such as Title VII and the Equal Access Act that can be used as models.
In addition, let us never forget that just because even we in the United States have some of these laws on our books, though we need some more, doesn’t mean the game is over. Instead it takes diligence for us to have these rights and freedoms protected for ourselves and our posterity.