Fighting the Establishment (Clause)

You may not have heard of the Rutherford Institute, but you've probably heard of some of its clients. There was the St. Louis boy who was forbidden to pray in the school cafeteria. There was the Virginia girl with physical and mental disabilities who was forced to stop reading her Bible on the school bus. And there was the public school teacher in Waco, Texas, who was fired after praying with a student during class.

A legal and educational organization based in Charlottesville, Virginia, the Rutherford Institute has emerged as one of the most active of the newly prominent religious right groups working, they say, to ensure that religious people get a fair deal, particularly in public schools. Rutherford has done some laudable work, challenging some ridiculous, discriminatory, and unconstitutional rules, and winning some important legal decisions on behalf of free expression. But Rutherford uses the tools and words of liberalism to advance a pinched, illiberal worldview. In its educational and fundraising efforts, it fosters a paranoid belief that Christians in America are under siege from evil forces that control the government and oppose faith and family. At its core, it is an organization that promotes suspicion and insularity, not trust and tolerance.

In fact, it's a pretty good time for Rutherford and its causes; the political and cultural influence of religious groups has plainly revived. But Rutherford and similar groups choose to ignore their own strength. They refuse to take yes for an answer, even though it is the answer that courts and other public institutions often give them. They continue to describe themselves as victims. Why? Because the answer they get is really "Yes, but . . ." They can have voluntary silent prayer in public schools, for example, but not the Ten Commandments. Still, this isn't an assault on religious people. It is instead an expression of the limited power any single religion can command in a liberal society. Like all true believers, the advocates of conservative religious causes can experience the satisfactions of concrete limited accomplishments, or they can embrace the more immediate gratifications of emotionalism and extremism and give no quarter to liberals, secularists, homosexuals, and others who have a different way of joining faith to citizenship. In a pluralistic and secular society like ours, the best, if not the easiest, choices are the former. Rutherford chooses the latter.

The Rutherford Institute was founded in 1982, nine years before Pat Robertson's American Center for Law and Justice. So far Rutherford hasn't attracted the media attention that Robertson's center has. John Whitehead, its founder and president, doesn't have a million-dollar ministry like Robertson's or a vivid public persona like Phyllis Schlafly's. But in 14 years Rutherford has grown out of the basement of a suburban Virginia home and into six regional and three international offices. It now has more than 200 cases before the courts.

Whitehead makes the implausible claim that a fiercely secular and aggressive state is forcing Christians into a defensive, even besieged, position. Whitehead declares on an audiocassette that the "arbitrary division between church and state" is "a rallying point to subdue the opinion of that vast body of citizens who represent those with religious convictions." Whitehead writes in his recent book, Religious Apartheid, "As Christianity is driven further away, American public life is increasingly vulnerable to radical lifestyles and opinions of a purely secular consensus. . . . Those supporting the system of religious apartheid in America will intensify the pressure, and oppression and even overt persecution of those holding a religious worldview may result." The traditional family, too, is under threat from agents of the state, who use the public schools to "insidiously undermine the innocence of children and try to reshape their hearts and minds." While about a third of Rutherford's budget is spent on legal work, the rest goes to educational and fundraising programs that produce these audiocassettes, videotapes, books, magazines, and pamphlets through which the Rutherford Institute promotes its defensive Christian worldview.

In the courts, by contrast, Rutherford's attorneys look like reasonable, results-oriented advocates. They often rely on arguments that even staunchly secular liberals would love, or at least swallow, making strong connections between free exercise rights and free speech rights, and decrying censorship of unpopular—that is, religious—ideas. Douglas Laycock is a constitutional scholar at the University of Texas Law School who has worked both with and against Rutherford (with the institute when it defends the religious free speech rights of students; against it when it defends school sponsorship of religious speech). He says of Rutherford: "They get a bad rap. . . . Lots of people assume that they don't give a damn about the establishment clause, and I've certainly heard them say things that give that impression. But if you look at their cases, the great bulk are straight free speech and free exercise." The Reverend John Andersen, a Baptist minister and member of Americans United for Separation of Church and State, says, "With Rutherford, we do often agree on many issues, which is something that often people in the mainstream press don't understand. We are both concerned about the free exercise [of religion]."

In interviews, John Whitehead sounds like someone who wants only a level playing field for all kinds of beliefs. In a conversation in his big, sunny office filled with pop-culture kitsch, Whitehead speaks only a little about Christianity and quite a lot about free expression. He frames what Rutherford does in legal, procedural terms, not religious, substantive ones. Yes, he's willing to go to court to keep a picture of Jesus in a Michigan public school. But that's because there were also pictures of such great historical and religious figures as Martin Luther King, Jr., in the same hallway. "A picture of Gandhi? Why not? A picture of an atheist? Why not?. . . Why not make schools a forum?" he asks.

Kelly Shakelford is the southwest regional director for the Rutherford Institute, based in Dallas. His philosophy echoes Whitehead's libertarian-sounding remarks: "We're not fighting to get prayer in school. We're fighting for rights. . . . We don't want the government involved in religion. We also don't want religion banned." But what Rutherford appears not to recognize is that one person's religious freedom can sometimes be another person's religious coercion.

Take the case of one Rutherford client, the teacher in Waco who was scolded and eventually fired for establishing a moment of silence in her classroom, for reading a book about a biblical figure to her students, and for praying with a child to calm him down. On the first two points, the institute's lawyers are on solid ground: Many legal scholars believe a moment of silence is constitutionally acceptable, and teachers can use religious books for secular purposes. But, Shakelford admits, "the third one is a little more complicated."


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In fact, it's not more complicated—it's just plain illegal. In just about any circumstance, teacher-led prayer in school clearly constitutes state sponsorship of religion. Last year, President Clinton issued a directive on religion in the public schools that borrowed "heavily and gratefully" from a statement issued by a dozen religious and civil liberties groups, from the American Jewish Congress to the National Association of Evangelicals to the American Civil Liberties Union. The document interprets the First Amendment's applicability to schools by saying, "Teachers and school administrators, when acting in those capacities, are representatives of the state, and . . . are themselves prohibited [by the establishment clause] from encouraging or soliciting student religious or anti-religious activity . . . [and] may not engage in religious activities with their students." Secularists and atheists are not the only ones outraged by the idea of a teacher inviting a student to pray at school. Reverend Andersen of Americans United declares, "What would be worth fighting and dying for is if [school officials] tried to lead religious instruction for my child, or lead my child in prayer. A Methodist better not. . . . Even a Baptist who is not in my community of faith better not."

Both Whitehead and Shakelford disavow any desire to return to the pre-1963 schoolday, in which the principal intoned a prayer over the intercom every morning. They say they just want religious people to be able to express themselves freely in public, including in public schools. But this isn't always a matter of the free exchange of ideas in some ideal, neutral, rational forum. Parents worry, justifiably, that their children will learn and mimic someone else's ideas about the divine, which could undermine parental religious instruction as much as teaching by an unbeliever could. Rutherford is blind to the threat that one group of believers can present to the children of another group of believers. Rutherford can insist, as it does with success, that religion has a place in public schools. The Constitution allows that. The problem with Rutherford and other religious right organizations is that they want to go further. But beyond an insistence on equality between religious and irreligious points of view, they simply cannot go—not in state-supported institutions, anyway.

Graduation prayer is as difficult a legal issue as classroom prayer. The U.S. Fifth Circuit Court has declared that nonproselytizing, nonsectarian, student-initiated prayer is acceptable at graduations. Rutherford, while enthusiastically promoting the Fifth Circuit's decision, has sought in at least one case to distort it. The institute represented a number of students who, perhaps realizing that saying a generic prayer is like addressing a love letter to "occupant," wanted to pray in accordance with their faith, rather than in a generic way, at a Santa Fe, Texas, graduation ceremony. Flaccid as it is, however, nonsectarian prayer is the only kind of prayer appropriate for a government ceremony (it was a public school), since it is the only kind that does not confer the state's imprimatur on a particular faith. As Laycock says, "To say [prayer] is student initiated when it's an official school function is just a fiction. It is still school sponsored, students are delegated authority by the school. People who [don't] want the religious service [have] it imposed on them." But, Shakelford responds, "Do we want to encourage our kids to ask others to be censored or do we want to encourage our kids and students to appreciate expression even though they disagree with it? It's an important part of learning how to live in a diverse society."

Wait a minute. Is this an argument for Christianization based upon diversity? If so, there is irony (or worse) in this right-wing organization's borrowing one of the left's favorite ideas to advance its own agenda. Does Rutherford really want the lively open forum that Shakelford and Whitehead claim to want? A look at their "public education program efforts" reveals a deep discomfort with America's multiplicity of beliefs. A note to potential donors from John Whitehead's wife Carol urges, "Unless we act, and I mean soon, homosexual marriages and homosexual 'families' will be placed on equal and possibly preferential footing with the traditional heterosexual marriage and the traditional family"; the letter details other "threats" to traditional families such as, weirdly, the increasing percentage of young, childless married couples. A "child protection education bulletin" includes an excerpt from a state-administered test deplorable for showing a "violent, depressing, hopeless, and pro-feminist view of life."

So it appears that diversity, for Rutherford, is a tactic, a way to get their standpoint heard—and then to disqualify the standpoints of others. Of course, fundraising solicitations are rarely a place for even-handed discussion, and religious people cannot be expected to bless what they find wholly immoral in the name of tolerance. But even so, Rutherford's "educational" material (such as its Religious Apartheid video, which shows blue-suited bureaucrats dismantling a family, and swastika-wearing soldiers brainwashing a hapless father) seems designed to enrage the faithful, rather than to help people with the challenge of living in, and even changing, a pluralist society that treats their essential commitments and deepest beliefs as just another opinion.

Moreover, what neither Rutherford's low-key legal mode nor its apocalyptic "educational" one acknowledges is how much consensus there is about the importance of religion, and the remarkable degree of freedom that Americans have to live out their faith, in public schools as in other arenas. Students can gather around the flagpole to pray before school. They can have religious-club meetings in the school building if secular clubs have the same privilege. They can distribute tracts and evangelize willing classmates. Book reports on the Bible, history papers depicting Jesus as the greatest person who ever lived, and religious drawings for art class are all acceptable provided the student chooses the subject. True, some ACLU-fearing administrators don't know all this, but that makes them ignorant, not (as Rutherford suggests) malicious.

Rutherford's picture of religious life in America is a distortion. It is hard to believe Rutherford's claim that religious people face growing persecution. If that were the case, then why does the institute continue to trot out the same half dozen or so examples? Rob Boston, assistant director of communications for Americans United, points out that Rutherford is still showing up at congressional hearings with the same wheelchair-bound, mentally handicapped child whose Bible was confiscated six years ago on a school bus. "Here's an organization that claims to have instances of gross violations, 4,000 calls a month. Yet they continue to trot out this case that's six years old, and that was solved with one phone call. . . . These stories are circulated and talked about to get people worked up into a frenzy."

The Rutherford Institute can do the good work of securing religious liberty and promoting its view of morality without compromising its principles or retreating from public life altogether. Other groups have made admirable, if imperfect, efforts to dissociate conservative religious views from hateful utterances. Rutherford, by contrast, seems to want it both ways. Its angry, alarmist rhetoric reaches more people than the briefs it has filed in federal courthouses, and this rhetoric militates against any understanding between fearful Christians and cynical secularists. Rutherford's contradictions exemplify the contradictions of the Christian right. Any serious work Rutherford and its followers do in opening up the public square to believers is compromised by what they say when they step into the public square themselves.

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