States’ Rights Experiment Produces Frankenstein Monster by Pamela Sumners (September 1999)

Before Justice Felix Frankfurter wrote about how wonderful it was that the 50 states could serve as little laboratories of democracy, he should have visited Alabama. Alabama, where our recently deposed Governor declared that the Bill of Rights does not apply to the states. Alabama, where we will not vote to raise the nation’s lowest taxes for our schools because we apparently do not believe that three generations of imbeciles are enough–but in two hours at a school-prayer rally we can raise $15,000. Alabama, where the Christian Coalition’s phone number rang through to the Governor’s office. Where our former First Lady ordered lawn statuary at the Governor’s mansion removed because she thought the Chinese Foo dogs were satanic graven images. Where one courageous federal judge, a Republican and a Methodist named Ira DeMent, has faced calls for impeachment after he struck down Alabama’s fourth school-prayer statute.

Sweet Home Alabama–again the laboratory of a states’ rights experiment by its elected officials, the butt of the national joke, again evoking the image of Bull Connor instead of the vision of a vibrant “new South.” I was born around the time Bull Connor unleashed the dogs of his war on civil rights in the city where he did it. I feel qualified to tell you that Alabama’s peculiar experiments on our liberties, without the intervention of the federal courts, traditionally produce Frankenstein monsters. Thirty-five years ago, our monster was the monster of race. Over the last four years, our monster has been the monster of the religious intolerance of a fundamentalist majority that seized our state government during our last governor’s term.

Our last governor is the governor against whom I litigated Alabama’s three recent major church-state cases of the last four years. In perfecting service of process on him, we discovered that the governor’s true name is Forrest. Forrest–as in Nathan Bedford, and Gump.

Governor Nathan Bedford Forrest James announced during his first term as governor, in the 1980’s, that the Bill of Rights does not apply to the states. The United States Supreme Court was underwhelmed by the argument in the course of striking Alabama’s third school-prayer statute, in a case that fittingly passed into the law reporters under both Forrest James’ and George Wallace’s names.

In 1997, undeterred by the iron fist of precedent that had roundhouse walloped him in the 1980’s, in a case involving Alabama’s fourth school-prayer statute, Forrest James again declared that the Bill of Rights does not apply to the states and that federal judges who held otherwise were out-of-control, activist tyrants. (if at first you don’t secede, try, try again.)

The Guvnah chose to make this announcement in Scottsboro–smack in the middle of Sand Mountain snake-handling territory, historically a hotbed of Ku Klux Klan activity and scene of one of the most shameful episodes in American history. Eight young black men, tried for a rape they did not commit before an all-white jury, given a drunk for a lawyer, would have languished indefinitely in Alabama prisons, were it not for nine “activists” in black robes. Federal judges had better be out of control–out of the control of Alabama governors.

But Nathan Bedford Forrest Gump James went even a step further–it was an election year after all. He petitioned the United States Supreme Court to take immediate jurisdiction of the case from the Court of Appeals without awaiting its ruling. The Governor’s tired 1980’s argument did not improve with age, but his 1997 petition did contain some unparalleled rhetorical gems. Among them:

The Court does not accept limitations on its own power and has become an engine of “cunning, ambitious and unprincipled” people;
The Court has told lies about the Constitution from the bench;
Justice O’Connor legislates from the bench on the basis of her private “agnostic” beliefs;
The Court, through its Roe v. Wade decision, has taken the people “blindfolded and against their will” forthrightly into hell;
Justice John Marshall was wrong in his assumption that the Justices would have integrity and be honest; instead they are despots and self-promoters;
The Court has unconstitutionally pursued its favored social agendas in a ifraudulenti manner;
And–my favorite–the statement that “other constitutional officials throughout government owe no deference to the decisions of this Court.”
This last statement, I have denounced as treasonous because it advocates subversion of an independent branch of government. Small wonder that Forrest Gump’s petition was reprinted on the web sites of militia groups. Small wonder that the Supreme Court dismissed the petition without comment, proving that in fact life is not always like a box of chocolates, sometimes you know exactly what you will get.

And when “praying judge” Roy Moore defied a lawful order to move the Mayflower Compact closer to the Ten Commandments plaque looming over the judicial bench, the Governor not only threatened to call out troops (and the Auburn and Alabama football teams) to prevent its removal, but also threatened impeachment of Alabama Supreme Court justices who voted against Moore. The Governor, of course, would appoint successor judges.

But what would we expect from a man who allowed his aides to wear Confederate flag neckties to press conferences and tried to put the Confederate flag back atop the capitol dome that a lawsuit saw removed in 1992? A man who for months refused to fire a cabinet official who not only used the n-word but also audited the tax returns of black legislators?

The Governor was memorably photographed at a state school board meeting imitating a monkey to dramatize his opposition to teaching evolution. (This monkey business turned up in the 1998 reelection campaign, when his challenger in a runoff observed, sensibly enough, that a governor acting like a monkey was an image problem for the state. The governor responded that at least he wasn’t a fat monkey, and the governor’s wife then opined that at least the governor wasn’t a “sissy monkey.” Thus began the “big fat sissy monkey” debate of 1998, kind of a lowbrow Scopes trial.) Well, stupid is as stupid does.

Exactly what would Alabama’s laboratory of democracy look like, if Forrest James and his friends succeeded in telling federal courts to butt out of their experiment in proclaiming fundamentalist Christianity Alabama’s official religion? We need only travel to three Alabama counties to examine the monster.

The supposedly “nonsectarian, nonproselytizing, voluntary, student-initiated prayer” (the latest school-prayer statute’s words) in DeKalb County, Alabama turns out to be: teachers leading classroom prayer or giving Pavlovian cues that lead students to “voluntarily” recite the Lord’s Prayer in unison, or selecting students to pray; teachers selecting Bible verses for student recitation; and prayers ending “in Jesus’ name” over the intercom. This is not voluntary, student-initiated, or nonsectarian. Nor is it mere “accommodation” of student speech or “free exercise” of religion. It is explicitly Christian prayer using school facilities and teacher sponsorship. Schoolchildren are captive, without their parents there to protest state intrusion on their right to provide religious instruction to their own children. The Supreme Court held such practices unconstitutional in 1963. In enjoining them, Judge ira DeMent broke no new legal ground.

But–because we had been praying in our classrooms and over our intercoms for 35 years after the Supreme Court said not to, we either never realized or never cared that it was illegal. Consequently, Judge DeMent’s injunction against these practices was eerily like Brown v. Board in Alabama. For months, students walked out of classes in protest. New York Times reporters travelled to the foothills of the Appalachians to interview 12-year-old victims of the injunction. Organizations were formed. Bumperstickers for God were printed up. Parades, rallies, and marches were held. From october 29 when the injunction was handed down until January 29, when the Birmingham abortion clinic was bombed, the case of Chandler v. James dominated the front and editorial pages. It took a bombing to knock us off the front page.

I tell you about DeKalb County so that you will understand the results of Alabama’s experiment on religious rights in Pike County, where my clients were the only four Jewish children in public schools and Christians prayed unceasingly in the schoolhouse. These Jewish children had swastikas drawn on their clothing and property; these Jewish children were ordered by teachers to bow their heads for Christian prayers and one actually experienced a teacher bowing his head for him; these Jewish children heard at a school assembly that they will go to hell if they do not accept Jesus; these Jewish children were told that they could not wear the Star of David because it is a gang symbol; “Happy Birthday Jesus” parties proceeded with cake and ice cream; birth of Jesus plays were enacted at mandatory school assemblies in December; the vice principal assigned an essay on “Why Jesus Loves Me” to discipline one of these children; the school principal told one of these children that she would convert him to Christianity because if his parents wouldn’t save his soul, she would.

The two boys were viciously taunted and physically assaulted by their classmates, who went unpunished by school officials; antisemitic cartoons were given to the boys and graffiti appeared in the bathrooms; and the Gideons entered classrooms to distribute New Testaments. One of the children did what these children were always permitted to do–leave and stand in the hallway like a discipline case–but she was taunted by her classmates for leaving.

These children were routinely harassed by their classmates with remarks that could have been scripted by the anthropologist for the Klan: Jews aren’t like us, Jews smell different, Jews only bathe once a week.

One of the saddest things I have ever heard is that swastikas were drawn on a second grader’s crayon box. The children’s mother, Sue Willis, complained to the school superintendent about all of these things, and about what she called “the open bigotry in Pike County schools.” She says that the superintendent told her in response that if the family would just convert, there would not be any problems. She went to a local lawyer, who told her she didn’t have a lawsuit “the good people of Troy, Alabama” could get behind. Like Michael Chandler in DeKalb County, she complained for five years without success before she found the ACLU.

My hobby is writing fiction, and in Pittsburgh or San Francisco or Chicago, this all no doubt sounds like fiction. But I have taken very little license with the words Sue Willis said to me the first time I met with her, which I fashioned into an affidavit:

“Every day that I send my children to Pike County schools, I wonder if I am sending them into a war zone. The moment one event is over, a worse one follows on its heels. Every day that I send my children to Pike County schools, I feel that the environment threatens every value that my husband and I have tried to teach them at home. I have asked school officials how they expect me to train my sons to respect other people’s property when their own property is vandalized at school and no one is punished. I have asked school officials how I can teach my children to be tolerant human beings and not bigots when they are subjected to outright religious persecution and bigotry in school. The consequences of the school environment on my children’s psyches are devastating. The effects of the school environment on our family are devastating. My children are growing up believing that America is a caste society and they are untouchables–except for the purpose of getting beaten up.”
That’s how Sue Willis felt when she came to me.

Perhaps I misspoke earlier when I referred to the crayon box. Perhaps there is one thing sadder than a swastika on a crayon box or Sue Willis’ concerns about her children’s spirits being crushed. And perhaps that sadder thing is indifference.

I went to a holiday party the December after I filed the case and talked with several artists. To a person, they were appalled by this case. I then talked to a young Jewish lawyer at a large defense firm. His reaction to Pike County was that his child was only a year old, and by the time his child was school-aged, he would be able to afford private school. It was not his concern. It seemed to me then, listening to him, that the Forrest James secession mentality has been adopted by some people we can’t afford to lose.

But even Pike County does not exhaust our theocratic pretensions in the State of Alabama. In the Etowah County courtroom of Roy Moore, citizens who would be jailed for disregarding jury summonses must acquiesce in prayers ending “in Jesus’ name we pray, Amen.” Moore has said that no Muslim will deliver the prayer in ihisi courtroom because they do not iacknowledge God.i in an attempt to explain why he has never invited a rabbi to deliver the prayer in “his” courtroom, Moore offered into evidence the church listings from the Gadsden, Alabama Yellow Pages, proving that it’s hard to find a good synagogue when you’re dialing “C” for church. Moore says his practices are constitutional because this is a Christian nation and 95% of Etowah County citizens are Christians.

Judge Moore, in whose honor a rally on the Capitol steps was held, locally known as Godstock ’97, whose minions set up a web site offering Ten Commandments plaques suitable for hanging in any public building for $149.95 and selling copies of that inscrutable instrument known as his legal brief for $10. Judge Moore, who as a guest on the radio show of a Christian identity preacher stated that, from what little he knew of the group, it had some good teaching points. (These teachings include that Jews are literally the spawn of a mating between Eve and the Serpent in the Garden of Eden and that black people are subhuman “mud people.” You may remember Christian identity from Centennial Park, from a Gay Nightclub in Atlanta, and from the abortion clinic in Birmingham. But I will credit Roy Moore’s protestation that he knows little.)

Judge Moore, for reasons clear only to Judge Moore, decided to enjoin the enforcement of Judge DeMent’s federal injunction in Etowah County, Alabama. It is a mystery whether Judge Moore is ignorant of the Supremacy Clause of the federal Constitution or whether he merely likes page 1 of the New York Times–where Alabama never appears for its good works. Or perhaps, as befits Alabama politicians, he is simply indifferent to the Supremacy Clause. Following Moore’s intrusion into a case far removed from his jurisdiction, his erstwhile spokesman let few days pass without denouncing Judge DeMent as my puppet and generally insinuating that he was stupid, crazy, corrupt, or all three.

The Commandments still hang unadorned by any other historic or legal documents. Judge Moore still invites only Christian clergy to lead subpoenaed jurors in prayer. Even though the case Governor Gump filed against the ACLU, into which Moore voluntarily injected himself, was dismissed in January 1998 because the Alabama Supreme Court found that the Governor had filed a sham lawsuit, Moore continued to allow televangelsists to raise money for his idefensei fund. He is presently under criminal investigation to determine where some $25,000 of the $100,000 collected went.

It is tempting to tell you only war stories from the Alabama crusades. But I must tell you that these school-prayer cases are not about children at all. They are about right-wing adults who have started a fight on the backs of children. And in the course of fighting the alleged ebb and creep of secular humanism, they have made some children into outsiders in the only body politic known to them as children: the schoolhouse.

And Roy Moore isn’t about the sanctity of the Ten Commandments or even whether they merely express good moral precepts. Roy Moore is about being a self-appointed moral censor for the rest of us, pushing an agenda of state-enforced solicitude for other people’s souls and choices. This is tyranny, not piety.

Alabama’s little experiments are not about infringing on the religious rights of our local fundamentalists, who portray themselves as victims of activist judges and pretend that being told not to pray over the intercom has itaken awayi their rights. The truth is, their rights are safer in Alabama than anywhere.

I have poked fun at my home state and have perhaps pandered to stereotypes about it. But we deserve our bad press. We elected George Wallace, we elected Nathan Bedford Forrest Gump James–that man who for four years in these religion cases kept the igooberi in gubernatorial with his ape-imitating anticsoand we are obviously a civically illiterate people for doing so. But we are no worse, we are no more civically illiterate, than people who aren’t from Alabama who think that being well-off is somehow going to insulate them from the efforts of power-hungry scapegoaters who are intent on making this nation a theocracy.

Despite best efforts, Alabama has not seceded from this Union, and what happens in Alabama matters in Pittsburgh, San Francisco, and Transverse City, even if you can’t believe that such things happen. All three of these Alabama cases come from the same place, a geography of the human heart that is not confined to Alabama but has been to Salem in the 1600s, Sierra Leone in the 1990s, and stalks the Sudan today. It was there at the Inquisition no one expected.

But we are a more fortunate people. We have a First Amendment that stands as a brake on those knuckle-dragging morons among us who do not realize that the marriage of the altar and the throne tends to degrade the altar and destroy the throne.

Sue Willis’ case may have been a “Jewish” case in the sense that it has greater resonance for the Jewish community, but it was a constitutional case first. Sue Willis understood better than anyone else that it was state sponsorship of fundamentalist Christianity that created her family’s suffering. She understood that when the state allies itself with a particular religion, and when state officials call for Christian prayer in school–and make no mistake, Pat Robertson and Forrest James do not care about inonsectarian, nonproselytizing prayeri–the natural consequence is that all other religions are rendered outsider religions.

Well, the self-parodying Fob James has ridden off into the sunset, taking my best comedic material with him. But we still have all the constitutional waste our little laboratory has produced. The Gump experiments can be replicated. So do not dismiss a handful of rednecks 2,000 miles away with the thought that they cannot affect your rights. Psychic secession never protected anyone.

Our little Alabama laboratory is only the first in the Religious Reich’s assault on our freedom to differ with its goosestep toward orthodoxy and on our constitutional system of checks and balances on majoritarian passions. And it is an assault that we must meet in the way we always haveotaking our cases before “activist” judges who do what our legendary Alabama judges have always done: save the United States and its honorable courts from demagogues, bigots, and their constitutionally illiterate followers.

The writer is an attorney working with the Alabama ACLU. The body of this speech was delivered on July 4, 1999 at Lake Hypatia, Alabama to participants of a gathering of the Alabama Freethought Association and freethinkers from around the country.

Freedom From Religion Foundation