David Steketee: Doing what’s right vs. doing what’s good
David Steketee speaks to the FFRF convention crowd during his Freethinker of the Year acceptance speech on Nov. 3, 2018, in San Francisco.(Photo by Ingrid Laas)
Here is an edited version of the speech David Steketee gave as FFRF’s 2018 Freethinker of the Year. He delivered it on Nov. 3, 2018, at FFRF’s 41st annual convention in San Francisco. He was introduced by FFRF Senior Counsel Patrick Elliott:
The Freedom From Religion Foundation has been awarding a “Freethinker of the Year” since 1987. The award is intended to recognize and honor successful state/church litigants — or sometimes just very brave ones who should have succeeded.
David Steketee came to FFRF armed with research, documents and a resounding indignation over the misappropriation of state tax dollars for religion in his state of New Jersey. So FFRF and David Steketee went to court, and won a resounding — unanimous — decision by the New Jersey State Supreme Court. We’ve won the case, but New Jersey is asking the Supreme Court to take their appeal. [See Page 1 for story.]
We’re pleased to announce that defending us in that motion is the distinguished Erwin Chemerinsky, dean of Berkeley Law School. He will be filing a brief asking the Supreme Court to let stand this important ruling. In other words, not to take our case.
David grew up in St. Louis and studied journalism at the University of Missouri. He has been an avid student of constitutional law since his years participating in speech and debate in high school, and became engaged with separation of church and state issues when his neighboring state of Kansas voted to exclude evolution from the science curriculum. Over the last 20 years, he has advocated for student press rights, student privacy rights, and separation of church and state. He is a cloud architect with a large global professional services firm. David currently resides in Madison, N.J., with his wife and two children.
David, we have a plaque for you — naming you Freethinker of the Year 2018. Please come up.
By David Steketee
The New Jersey Supreme Court ruled unanimously that the use of tax dollars for the repair and restoration of religious buildings throughout Morris County by the Morris County Freeholders was unconstitutional. And yet they’re still fighting it.
But let’s take a step back to where this all began. In 2011, while strolling through Morristown, N.J., I noticed a sign in front of the Church of the Redeemer’s Parish House indicating it had received funds from the Morris County Historic Preservation Trust. I later discovered it almost by accident. The Morris County program was mentioned because Morris County, unlike the other grant programs used by the church, has no requirement for a public posting indicating the source of funds. After doing some research, I discovered this program had already doled out over $4 million since 2003.
In 2012, I filed a complaint with FFRF. But it wasn’t until 2015 that I was able to attend public meetings for our county government and argue my point of view. After grants were approved later that year, I emailed FFRF and asked them to proceed with a lawsuit. By this point, the program had granted over $9.5 million to religious institutions.
Our case was heard in late 2016, and in January 2017, the New Jersey Superior Court ruled against us. We appealed, and counsels for the county and churches requested to move the case directly to the New Jersey Supreme Court, bypassing the appellate court. Oral arguments were held in late 2017, and in January 2018, the New Jersey Supreme Court ruled in our favor, ending a program which had cost the taxpayers over $11 million.
Not admitting defeat
You would think such a resounding defeat delivered with unambiguous language from the New Jersey Supreme Court, composed of both conservative and liberal judges, would cause any government official with an eye to justice to admit defeat. But no.
The Morris County Freeholders, all Republican, handed the case over to the Becket Fund. You may have heard of the Becket Fund. They were behind the Hobby Lobby case. The Freeholders were summarily disinterested in my pleas to adhere to the New Jersey State Constitution — which makes clear no person shall “be obliged to pay tithes, taxes or other rates for building or repairing any church or churches” — disinterested in my pleas to adhere to the multitude of prior case law restricting use of government funds for sectarian purposes, and disinterested in the pleas not just from an atheist liberal such as myself, but from church-going conservatives, as well. But they will now allow a right-wing legal group to use the case to erode the wall of separation between church and state under the guise of religious freedom.
It is remarkable to think government officials, for whom there is no more basic expectation than to follow the law, would not be persuaded by rational discussion, analysis and facts. I cited Committee for Public Education v. Nyquist, and an OLC opinion from 1995 specifically on historic preservation grants. I explained the issues with a later 2003 OLC opinion upon which the Freeholders’ counsel relied heavily in his opinion on the constitutionality of the program. I explained the distinction between the Trinity case and Morris County’s activities. All to no avail.
What struck me is these politicians don’t care about what’s right. They care about what’s good. It’s easy to sell something that appears good. It’s easy to get votes talking about the good they do for the community. It’s easy to convince people to ignore what’s right with the promise of something good. The challenge, of course, is what’s good is more subjective than what’s right. And, people ascribe different value to being right or being good. In the best of times, we can be both. In the context of our case against Morris County, I suspect we’re right, but not necessarily good. And that makes this case especially challenging.
On a half-mile walk through Morristown, where the case originated, you’ll pass five historic church buildings. These churches are magnificent historic structures representing architecture worthy of preservation. So, I would argue their preservation is good for the community. And that’s the simple argument our Freeholders made in support of spending over $4 million on their restoration. That’s the argument which reasonably appealed to the community. That’s the argument which, frankly, makes it difficult to argue for what’s right, because what’s good is visible to everyone, and what’s right doesn’t really impact anyone because, in this case, nobody’s taxes are actually reduced as a result of doing what’s right. The impact of doing what’s right is often less visible than doing what’s good.
Whether it’s funding restorations of religious buildings, or displaying a religious banner in a school, or praying at football games, whether it’s teaching creationism, or reciting sectarian prayers before meetings, or putting religious mottos on police cars, it is perhaps disingenuous to claim they are not trying to do what’s good. Religious people often act out of the best of intentions, only to have less than righteous outcomes. It is important that we put ourselves in their shoes. It is important we understand their motivations. It is important that we have empathy for those who may not respect our perception of what’s right. Through that understanding we can better argue in ways that appeal to their sense of good, even if we disagree on what’s right.
When I appealed to our local board of education to end a drug search program which fell afoul of the Fourth Amendment, explaining from a purely from a legal point of view fell on deaf ears. It was only on my fourth attempt when I appealed to what was good that the program was finally halted. Rather than explain how the law violated the principles of T.L.O. v New Jersey, I asked them to consider the impact of hauling a high school student, possibly one of our low-income students, possibly without access to legal counsel, possibly with parents who didn’t speak the language, in front of the county prosecutor and local police because his backpack might smell of marijuana because his grandmother has a medical marijuana license. It was this scenario that rang true. It wasn’t the appeal to what’s right, but rather an appeal to what was good. It was a deeper understanding of the motivations behind the program, a genuine desire to do what was good, that I was able to alter my approach, to expose the potential harm, and to ultimately persuade them to do what was right.
Whether in our case against Morris County, or drug search programs or religious prayer in schools, I think we should not always assume those we disagree with are acting out of malice. I suspect, in most cases, they genuinely believe they are doing something good. And so, to the degree we can change people’s point of view based upon a sense of what’s good, the easier it is to convince them to do what’s right.