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

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.

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

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.

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

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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.

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."

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

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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