Successfully Arguing 'The Traditional Position'

There are probably a lot of people in this room who can sign their names with case numbers after it for state/church litigation, which is terriÞc. I only get the honor because there are people willing to come forward and Þght for principles, because my clients have the courage of their convictions. I get paid to do what I do; obviously I wouldn't do it if I didn't like it. I could get paid a lot more do to other kinds of law. But in the Þnal analysis, it's because Jean Bertolette, Jim Sands, Packard Roundtree, Darrell Barker and all the other people in a very small, rural community--not a hotbed of progressive thought --have the willingness to take the abuse that comes with challenging the traditional position in this country.

Having used the word "traditional" to describe the other side, I really do believe that the position that I represent when I go to court, on behalf of Jean or Darrell or anyone else, is really the traditional position. It derives directly from the original intent of the framers, and I take that position on both sides of the street, as an ACLU lawyer. I actively look for free exercise cases, because I think it's important to do those as well, although I'm not sure how much is left of the free exercise clause after the peyote case.

There are two concepts that I've always understood were central to the First Amendment in this country. One is the notion that the Establishment Clause required neutrality in how the government dealt with religion in this country. That means that religion and government should be separate. It wasn't just Jefferson's wall of separation; it was also Madison's idea, and a lot of others who developed the core principles on which this government was founded. Neutrality controls the Establishment Clause. The Free Exercise Clause requires the government to accommodate the practices or nonpractices of the people, and not to place a burden on an individual's beliefs. Something's gone wrong today, because now the government is always arguing the reverse.

The Establishment Clause has come to mean "accommodation" in the government's mind, and in Justice Kennedy, Scalia, and Rehnquist's mind. And free exercise means neutrality! So the government no longer takes steps to protect the rights of different believers. It doesn't bend its laws at all; it says too bad if your beliefs conþict with the law. Its concept of neutrality and the Establishment Clause means that everybody has free access to government facilities and government money. They deÞne it almost in the worse.

So now the government can fund something like a pregnancy prevention program that requires consultation with religious leaders and in fact allows money to go to religious groups. In the case like this that the US Supreme Court decided, it allowed $400,000 to a group of nuns who teach teenagers that Christ does not want them to have sex, and they should save themselves for Christ. These nuns wrote letters to the Vatican informing the Pope how proud they were that they had received $400,000 from the US government to do Christ's work! That Justice Rehnquist called neutrality! Something's wrong.

I want to talk about one particular case, Desert Christ Park, because I think that it really does demonstrate what has gone wrong. An interesting concept appears in both the graduation prayer case and the Desert Christ Park case--which they now call the Antone Martin Memorial Park (just an accident that they called it "Desert Christ Park" for 30 years). The concept is that "religion means nothing." That's the way the government justiÞes permitting religious practices under the Establishment Clause.

So in the California prayer case, the Chief Justice of the state Supreme Court described prayer in a graduation or public function context as "empty of any meaning." He called God references "weak symbols." Now most of us in this room agree with that from a different perspective! But I don't think our philosophical bent on these issues necessarily deÞnes how we look at the legal picture. When people justify these religious practices by demeaning and denigrating religion, it is a sad state and a sad day. The graduation prayer case, which involved a split decision, clearly did that with the Chief Justice's opinion, but no one else's. Four of the justices disagreed vigorously that we should denigrate religion in order to have it become part of government.

Desert Christ Park is in San Bernardino County, California which includes the community of Yucca Valley. The park had 40 statues, larger-than-life-size, organized into 13 scenes from the New Testament depicting the life of Christ. It was not the Stations of the Cross, although I guess it had many of the stops along the way. They were generally scenes that were well-known, created originally by a private artist. After his death, it was deeded to two townspeople, who then turned it over to the county on the condition that the county would keep it into perpetuity as a park.

The statues dominate the terrain. I use that word cautiously, because when I used that word before the federal appeals court in California, the presiding judge cut me off, and started yelling at me. What did I mean, dominate the terrain? It turns out he was an art patron and was very concerned my argument was going to limit the government's ability to fund art under the NEA grant. But in this case, what I meant by "dominate" is clear from the property. Although it is a three-acre park, probably two-thirds is given over to mountainous terrain, so there's about an acre of sort of þat land that has all the statues. The judge challenged me: "Well, couldn't you play baseball there?" I said no, there's no baseball Þelds and no room for one. "Couldn't you picnic?" I said yes, in one of two picnic tables: in the home of Lazarus or with the woman of Samaria, both attractive alternatives. That really is the picture. This place sits next to an Evangelical Free Church, undivided in any way--a few mulberry bushes--so that it keeps its biblical "authenticity," as the government said in this case. Other than the bushes, nothing tells people when they arrive there that it's separate from the church. The county has for 25 years advertised not only the statues on its property, but the statues that are on the Evangelical Church's property, including the large lighted cross, the 25-foot high Blessing of Christ that overlooks the freeway, and the tableau of the resurrection of Christ.

I must tell you that my own schooling in the New Testament was very weak before this case. I was raised in an Old Testament faith and I don't even know that very well. I had no idea what these things were. They used to have chapter and verse on all of the brochures. In preparing to argue the case I had taken photos, and had them all out in the law library. Somebody came into the law library and said, "What are you doing with all that religious stuff?" The woman, who's Southern Baptist, identiÞed them as pictures from the New Testament. I asked her, "How do you know that?" She told me these scenes are plastered everywhere, in every bible book you read as a kid, they're on the stained-glass windows in the churches. I went through each one of them and asked her to tell me what it was. "That's easy," she said. "That's Mary and Martha in the home of Lazarus." I tossed out another one. "Oh, that's the Garden of Gethsemane. You must have another one of them sleeping." And I did in fact have another one.

It was clear to me that this park had a religious message. When I took the case to trial before a very conservative judge who was appalled by the case from the day I walked in with it, he issued a decision which said that the park did not have a religious effect, because, after all, the New Testament was not well known! And really very few people would recognize this!

Yucca Valley has about eight parks. The average attendance at most of these parks is about 15,000 people a year. The attendance at this park was over 40,000 people a year. The ads in the local Yellow Pages said, "Tourist attraction. Visit a unique Christian theme park depicting the life of Christ." They had tour buses coming, even from other countries. There was no doubt in my mind, and in the mind of any of my experts who went out to look at this park, that this was a religious theme park. As I said, a judge who didn't want to hear the evidence concluded that it was a "shrine to peace" and that no one would mistake it for anything else.

It's difÞcult to do church/state work in an era where the decisions in the court are so intellectually dishonest. They are dishonest from the top all the way down. Everybody in this country has learned through conÞrmation battles what "original intent" means. The court keeps telling us we should go back to "original intent." There is probably no more fertile area of constitutional thought, of historical thought, to look to original intent to guide the court than in the area of church and state. And yet in that area more than any other, the court has disregarded original intent--because it didn't allow violations of the Establishment Clause and the Free Exercise Clause.

Anybody who is honest about the intellectual underpinnings of the First Amendment, who reads Madison's Memorial and Remonstrance, the Danbury letters of Jefferson, can't help but come away with a view of American history that mandates a stricter separation of church and state than we have today, and maybe even stricter than what we had in the heyday of separation in the 1960s.

I too get a lot of death threats. I don't have a listed telephone number. You probably couldn't Þnd me in Los Angeles unless you looked really hard for a long time. I haven't had a listed phone number since I started getting letters at home. After I moved, I don't even have a phone number that's unlisted. I have no phone in my name; it's in somebody else's name.

I always used to think my husband was very cautious about security concerns. He's a psychiatrist so he has his own reasons to be cautious about security! He's had people at his door with guns who were unhappy about the advice he gave one of his patients. Nevertheless, I've always sort of pooh-poohed those cautions. I began to see the wisdom of his ways when Michael Reagan, the President's oldest son, on his then-national radio show, told people in response to his unhappiness with the nativity scene case I had once, that people should Þnd out where I live and come to my house to "sing Christmas carols" and tell me how they felt about the case. Michael Reagan went off the radio shortly after that, and in part, I think, because of my expression of deep displeasure of the appropriateness of that sort of a comment on a national radio show. That is the kind of thing that lawyers go through as well, who represent people with courage like Jean.

There are also pleasurable moments, such as when I was litigating this nativity scene and won a temporary restraining order. When the creche committee that deÞantly put it up again was then told by the court to remove it from the city hall grounds, one of the leaders turned to me and called me a "godless atheist." I took enormous pleasure just looking at her and saying, "Isn't that a bit redundant?" The problem is I don't think she understood!

I'd like to convey my pleasure being here tonight. I enjoyed the last time I spoke with this group, and my sense of privilege of being allowed to do this work and being allowed to represent people like Jean, Darrell and all those others who are willing to step forward in probably what is the most difÞcult and most unpopular area to be a litigant or a lawyer. On matters of faith, people seem to have no sense of humor!