This article is reprinted (with permission) from Freethought Today, newspaper of the Freedom From Religion Foundation .
[This is excerpted from a speech given at the 15th annual convention of the Freedom From Religion Foundation (FFRF), December 5, 1992, San Antonio Texas.]
It really is a pleasure to be here. My wife and I are finding this a very congenial group, one quite different from the groups we're most accustomed to. We live in a small rural town in the bible belt of Indiana, and I'm an unbelieving Jew who teaches at a Catholic college! At that small Catholic college in Rensselaer, a colleague of mine and I have formed an organization that you ought to know about it. It's a rather small organization. In fact it only has two members. But it's acronym is far better than yours, and I think you might want to consider merging with us. Your acronym is "FFRF" ("Ferf"). Our acronym comes from the days when "7-Up" used to advertise itself as the "Uncola." Our organization is called "UNGOD." UNGOD stands for Unholy Nihilists for Godlessness Over Deism, and if you'd like to entertain a merger, we would be interested in your buying us out.
Many of you may have seen in the press just this past week a report about the Holiday Inns nationwide, which are now facing some legalaction because it's been reported that in many of their hotel rooms there are peepholes made by carving away the backing on the mirrors. The news media are assuming, of course, that those peepholes are being used by sexual voyeurs. I think the news media have really missed the story here. In truth, it's the Gideons who are using the peepholes, and they've been trying to find out who's been placing all those damned Freedom From Religion Foundation stickers!
I would truthfully like to encourage you as an organization to expand and better publicize your efforts in placing those stickers in Gideon bibles, because if you could do that you might so preoccupy the Gideons and so overstress their resources that they wouldn't have the manpower or the money to bring their bibles to the fifth-grade classrooms.
The reality is, of course, that the Gideons place bibles in public school classrooms all over America. For some reason, I'm not sure what it is--it's their logic and they don't share their logic with me--they always choose the fifth grade. This happens especially in small towns and especially in the bible belt, but it goes on from the East coast all the way to the West coast. The New Jersey Supreme Court in the 1950's ruled that this practice was unconstitutional. The practice has also been ruled unconstitutional in the federal court of the Eastern District of Arkansas. The Supreme Court has never ruled on this issue but they refused to grant cert. out of the case that came out of the New Jersey Supreme Court. But as the school board in Rensselaer, Indiana pointed out, decisions from the New Jersey Supreme Court are not binding in other parts of the country.
This issue rarely comes to trial because the Gideons very carefully and craftily withdraw from communities whenever there's a controversy. When someone like me complains about bible distribution, the Gideons give up the practice and move on to the next town, to come back as soon as the complainer moves away. Thus the issue is never tested in the courts.
In our case the bibles never actually got to the fifth-grade classroom. We found out about bible distribution in the public schools from a friend who is a teacher in a neighboring school corporation, an ex-student of mine. She came to me one day and said: "You know what happened to me the other day in school? The strangest thing. Two Gideon representatives came to my classroom, and I just felt funny about it. It didn't seem right. But the principal came by and said, 'It's okay. We've given them permission.' They came in, they distributed bibles to all the children, and gave a brief talk."
I was flabbergasted. I had no idea this occurred in America. At the same party that evening was the assistant superintendent from our local school corporation. My wife's a teacher in that school corporation and so he and I are friends. I walked up to him and said, "You wouldn't believe the story I just heard! We don't do that in Rensselaer, do we?" He said, "We've been doing that in Rensselaer for 40 or 50 years."
Turned out the Gideons were about to come into the fifth grade classrooms the very next week. My son was a fifth grader. Obviously that gave us good standing to complain, and we complained--not to the Gideons but to the school corporation. The school board did not respond to my letter of complaint. Instead they gave it to the press. Bibles in the local schools very quickly became a cause celebre and local churches began organizing to pressure the school board to continue the practice. At a meeting in December, 1989 they announced that they would in fact continue the practice. So the Gideons were never given the opportunity to withdraw from Rensselaer, Indiana as they have withdrawn in other parts of the country when complaints have been raised. Assuming we win this lawsuit, the school board in Rensselaer has not done any favor for the Gideons, International.
Our lawsuit was begun in January, 1990. I contacted the Indiana Civil Liberties Union (ICLU). They have been good enough to represent us and we are quite grateful for that.
The purpose of Gideon bible distribution, obviously, is a key issue in our case. In talking about the purpose we need to talk about the purpose of the Gideons, on the one hand, and also the purpose of the school corporation which allows the Gideons to distribute their bibles. The purpose in both cases is pretty clearly proselytizing, not education. I must tell you I have no problem with religion in public school classrooms so long as it is a matter of teaching comparative religion, teaching the role of religion in society. It would be nice if those teachings could include some freethought perspectives. But I don't think that's a constitutional issue.
The purpose of this bible distribution is gaining converts. That's very clear from the inserts which the Gideons placed in these little bibles. The Gideons call themselves "an international association whose purpose is the promotion of the Gospel of Christ to all people to the end that they might come to know the Lord Jesus Christ as their Personal Savior." The back cover of the bible reads: "My decision to receive Christ as my Savior, confessing to God that I am a sinner and believing that the Lord Jesus Christ died for my sins on the cross and was raised for my justification, I do receive and confess him as my personal savior."
That's the Gideon's purpose. How about the school board's? The Rensselaer school board, of course, has said "We're just about giving local organizations a forum. Our purpose is not to evangelize. That's their purpose." It's pretty clear that, in fact, the school board's purpose is proselytizing as well. The bible is not used in the classroom for any educational purposes; the students are told by Gideon representatives how valuable the book is and to take it home and read it. The schools are directly implicated in the distribution; teachers and principals are directly involved in the mechanics of distribution.
The school board made a big deal in announcing it was all "voluntary." In fact, parental permission slips supposedly were sent out. Turns out that that hasn't been done for at least 10 years; nobody much cared about parental permission slips. Even with parental permission slips, I believe there is a serious constitutional violation.
That the purpose is proselytizing is especially clear when Gideon bible distribution is placed in context in our own local schools. Other organizations come into the schools to distribute sign-up sheets for Girl Scouts, swim teams, essay contests for the DAR. Only one other organization, to our knowledge, has ever distributed real literature in the public schools, an organization called the "In Jesus's Love Foundation," which has distributed books to elementary children in the public schools, such as Young People of the Bible.
Beyond that, my wife and I have attended school events, such as honors programs, where the school chorus has provided entertainment-- singing Christian hymns at secular school events. The football coach at the local high school engages his team in a mandatory saying of the "Our Father" at the end of every game. It's pretty clear that the Christian influence is overwhelming in the public schools, and that the school board endorses Christian evangelizing.
Our legal argument has relied on a case many of you may already be familiar with: Lemon v. Kurtzman, a case heard before the U.S. Supreme Court back in the early 1970s. Lemon v. Kurtzman requires that a government practice, to pass muster, must 1) have a secular purpose, 2) must not have the primary effect of inhibiting or advancing religion, and 3) must not foster an excessive entanglement with religion. Since Lemon v. Kurtzman in 1971, the Supreme Court has dickered a bit with that finding, although Lemon v. Kurtzman remains intact. The modifications have mainly come under the influence of Justice Sandra Day O'Connor.
Justice O'Connor has modified the Lemon Test toward what she calls an "endorsement test" or an "endorsement twist" on the Lemon Test. For O'Connor the purpose prong of the Lemon Test asks whether government's actual purpose is to endorse or disapprove of religion and the effect prong asks whether irrespective of government's actual purpose, the practice under review in fact conveys a message of endorsement or disapproval. An affirmative answer to either question, she writes, should render the challenge or practice invalid.
It is our belief that bible distribution in public schools violates all three prongs of the Lemon Test as amended by Justice O'Connor. First of all, bible distribution has a purpose which is not secular, and which in fact endorses religion. As I mentioned, the bible is not used for educational purposes in the classroom. The distribution has been going on, at least in Rensselaer, for 30 to 50 years. Nobody seems to know how long, but everybody seems to remember receiving a bible. The bible is an element in the distribution of religious veneration, not an item to be discussed or critiqued. And the endorsement of Christianity is especially clear when the distribution is placed in the context of other practices in the public schools.
The second Lemon prong asks why would a reasonable observer perceive the practice as an endorsement of religion? The reasonable observer in this case is the fifth-grade student. Justice O'Connor is very clear in writing that religious intrusions in the public schools should be viewed from the perspective of the school children affected. I'll quote for you very briefly from her writing:
"At the very least, presidential proclamations are distinguishable from school prayer in that they are received in a noncoercive setting and are primarily directed at adults, who presumably are not readily susceptible to unwilling religious indoctrination. This Court's decisions have recognized the distinction when government-sponsored religious exercises are directed at impressionable children, who are required to attend school, for then government endorsement is much more likely to result in coercive religious beliefs."
What do the kids in Rensselaer see when they receive bibles in the public schools? They see two representatives from the Gideons accompanied to the classroom by the teacher and usually the principal. These are relatively unsophisticated observers. How do I know they're unsophisticated? Not only because I have a fifth grade son, who's actually more sophisticated than most, but friends of ours told us a funny story about the Gideon visit to their daughter's classroom. There was a man and a woman (usually it's two men who distribute Gideon bibles because it's an association of men-only) to distribute the bibles. They were introduced to the class by the teacher as the Gideons. Our friends' daughter came home that day and announced to her parents that "Mr. and Mrs. Gideon had been in school"!
The teacher plays a direct role in organizing the kids, quieting them for the presentation from the Gideon representatives. The principal stands by at the doorway to the room. The teachers assist in the distribution. It certainly seems to me that the reasonable fifth-grader would perceive endorsement by school officials of this text.
The third prong of the Lemon Test is whether Gideon distribution in the public schools fosters excessive entanglement in religion. Obviously, we believe it does. Many of you are familiar with the "open forum" cases that have recently gotten a lot of media attention. The Supreme Court has ruled that if public high schools are an open forum, school boards cannot restrict religious groups from using that forum. The other side in our case has argued repeatedly that this is in fact an open forum case. However, what the Rensselaer school board is providing is not just a forum or place or facility. What the Rensselaer school corporation is providing, as are school corporations all over America where Gideon bible distribution is allowed, is a captive audience. The proselytizers are welcome. They are sponsored by school authorities, and in fact the school acts as a religious censor, in that the principal and superintendent in Rensselaer decide which groups to admit to the classrooms and which to deny admission to. Under oath, when we were taking depositions, my lawyer asked the superintendent would you allow other religious groups to distribute their literature and to make a brief presentation to the students in the classroom? She said, "Well of course we would--except for Satanists, and other religions like that!" Satanists are a pretty easy target, nobody seems to like Satanists. I don't know what she meant by "other religions like that." Probably freethinkers and bunches of others. Rensselaer is pretty isolated, a small town of about 5,000 people in the corn and soybean belt. We don't get many religious groups coming through requesting access to the schools, other than the Gideons and the In Jesus's Love folks.
Lemon v. Kurtzman is not the only precedent that's important. The other very important precedent is the recent Lee v. Weisman ruling. I can't tell you how excited I am about meeting the Weisman family here in San Antonio this weekend. Prior to decision on Lee v. Weisman, our attorneys argued that we ought to win this case even if the court ruled against the Weismans and took the Bush Administration position that a governmental practice should only be ruled unconstitutional if it constitutes coercion--coerced religious belief or practice. In this case, clearly there is a coercive element in that fifth grade classroom. Of course, the Weismans, to my great surprise and I think somewhat to theirs, won their case!
Our opponents had argued that our appellate hearing needed to be delayed because Lee v. Weisman would obviously change establishment clause law and necessitate a ruling against us. Now that the Lee v. Weisman decision has come down, our opponents have announced that it is irrelevant! What Lee v. Weisman did in part is that it left the Lemon Test intact. The justices of the Supreme Court said we need not return to this precedent and re-evaluate it.
We have argued since the Lee v. Weisman decision, that the dominant facts which mark and control the confines of that case apply with even greater force to our case. And there is even greater reason to rule Gideon bible distribution in the public schools an establishment clause violation.
The factual conclusions which the majority on the Supreme Court found compelling in Lee v. Weisman were the following: involvement of the school official in arranging the religious exercise, in this case a prayer at Deborah Weisman's graduation ceremony; the exaggeration of subtle, coercive pressures which exist in young children's school environments, particularly when directed by teachers or principals; and the fact that attendance and participation in the religious activity was in a fair and real sense obligatory.
The fact situation is even more compelling in our case, we believe. The fifth-grade classroom, after all, is an environment with an even greater potential for subtle coercion, which Justice Kennedy noted existed in Deborah Weisman's situation. The average 10 year old fifth-grade student is an even more impressionable subject than the 14 year olds in Deborah Weisman's class. The Gideon bibles are handed out during the course of the regular school day. Unlike the somewhat voluntary, though not entirely voluntary ceremony in Lee, in this case Indiana law obligates 10 year old students to attend school. The fact that the Gideon presentation occurs in the course of the regular school day, during which children are taught to pay attention to the contents of the instructional program, presents a more highly coercive atmosphere than the public graduation ceremony in Weisman. The public ceremony at which parents are present to counter or offset the religious prayers may be contrasted with the instructional nature of of the school day when students are unaccompanied by their parents.
Lee v. Weisman leaves us cautiously optimistic with regard to the appellate outcome. Our case was argued in the Seventh Circuit Appellate Court in Chicago on October 21. We are awaiting a decision. Everybody tells me don't try to handicap the appellate court.
To our consternation and not surprise--given what we knew about Federal Circuit Judge Allen Sharpe, northern district, South Bend--Judge Sharpe had ruled against us. He said it was not an establishment clause case, it was a freedom of speech case. I am reading from his opinion:
"One could view the Rensselaer policy as simply a trespass regulation controlling the access of nonschool persons or groups onto school campus during school hours, or it could be viewed as a program to make available to students locally generated literature reflecting many aspects of their community. In any event, the court finds that the defendant's policy satisfies the Lemon Test."
Notice that Judge Sharpe focused on the school board policy. The policy statement simply reads: "Any group which would like to gain access to the classroom must have permission from the principal or the school superintendent." That reads to me like a trespass regulation. It reads to Judge Sharpe like the creation of an open forum--all are invited into the classroom. If all are invited, why not religious groups? To exclude religious groups would be to discriminate against religion, which the Constitution forbids, according to his rationale.
Well, we never challenged the trespass regulation! What we challenged was the practice of Gideon bible distribution.
You may have read in the press the following quote from Judge Sharpe. It's my favorite from his opinion. He wrote:
"The court finds that no observer, Christian adherent or not, could reasonably view the Gideon organization's distribution of bibles in the Rensselaer schools as an endorsement of the Christian faith. Permitting the local Gideons to circulate their literature in public school classrooms is no more an endorsement of Christianity than allowing Little League baseball to disseminate its material endorsing the national pastime. Nor would a reasonable observer perceive a similar leaflet campaign by the American Civil Liberties Union or the Anti-Defamation League of B'nai B'rith as an endorsement of the respective views of these organizations."
What Judge Sharpe failed to realize is that nowhere in the Constitution does it demand separation of Little League and state! Nowhere in the Constitution, to the consternation of many of our opponents, does it demand separation of ACLU and state.
Interestingly enough, the argument in the press is very different than the argument in the court. The issue is freedom of speech in the courtroom. In the court of public opinion the issue is freedom of religion. Except there's a great deal of confusion here as to whose religion is at issue. My wife and I recently gave access to a religious group from Florida called Coral Reef Ministries to our home. They came in and interviewed us for a TV show they were doing. We found that show quite interesting. In the introduction, the host said that the ACLU has filed a suit restricting the religious liberties of the children! Their freedom to be forcibly proselytized is at issue, I guess! At the same time, this same individual said the government can't prevent you from exercising your religion. Well the Gideons are exercising their religion. So you see, it's the Gideon's freedom of religion that's at issue! There's a great deal of confusion.
Most annoying, of course, is how we are portrayed in the media, annoying but at the same time somewhat amusing. Robert Skolrood, a lawyer for Pat Robertson's National Legal Foundation out of Virginia Beach, Virginia, which is helping represent the school corporation, says, "This battle goes beyond the Gideons and the ICLU. We know that it's a spiritual battle. When you get in the courtroom you can see from the things that are said and the actions of the people." (I was flipping through Dan Barker's book last night [Losing Faith In Faith: From Preacher To Atheist, FFRF, Inc., PO Box 750, Madison WI 53701] and was interested to find a reference, where he suggested when anyone uses the word "spiritual" to challenge them to define it.)
When I came to Rensselaer I found many people who believed that Jews had horns. And for Skolrood I still have horns. And I guess that's something of an honor.
Allen Berger is Professor of Anthropology and Assistant Vice-President for Academic Affairs at St. Joseph's College in Rensselaer, Indiana. He is also director of the Indiana Consortium for International Programs and a Board member of Planned Parenthood for Northeast and Northwest Indiana. He and his wife Becky are the parents of Joshua, 13, and Moriah, 9.
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