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March/April 1999

Discover more articles from this issue.

Principles or Procedure?

Do the religion clauses of the First Amendment say anything meaningful about the respective roles of the church and the state? In "Wrong Jurisdiction"...

On Rights and Restraints

Individual Rights and Structural Restraints The difference between rights and structure within the overall Constitution is commonplace. For government...

The Establishment Clause Assault

The Bell and McCord children were verbally assaulted at the school, not just by students, but by the faculty as well. Upside-down crosses were taped to...

With God All Things Are Possible

Background The controversy involved Capitol Square, a 10-acre site in Columbus, where the Ohio state capitol building, or "statehouse," is located. The...

Iambs And Pentameters

In the first ruling of its kind, a federal judge in Virginia declared that a public library cannot install filters on its computers. Why? Because the...


In 1991 the Willis family moved to Troy, Alabama, from Seattle, Washington. Their youngest child, Rachel Willis, stayed home with Mrs. Willis, while their...

A Secular Nation?

The laws of every society reflect certain moral presuppositions. The law prohibits, allows, or promotes certain behaviors based upon what that society...

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Published in the March/April 1999 Magazine

In the first ruling of its kind, a federal judge in Virginia declared that a public library cannot install filters on its computers. Why? Because the filters could interfere with the right of adults to view whatever smut they want. In other words, though the filters could help keep children from using the public library to view everything from sado-masochism to snuff photos, the collateral damage that this protection could cause to adults who might want to use the library to view sado-masochism and snuff photos was considered violative of what appears to be a newly created constitutional right to view sado-masochism and snuff photos in public libraries (another one of those "penumbras formed by emanations" flowing from the First Amendment, apparently).

There's no doubt the First Amendment does a wonderful job of preventing government from interfering with an open exchange between artists, writers, publishers, film-makers, and their patrons, no matter how smutty, morally vacuous, and inane the products often are. Hustler magazine is the price we pay for the New Republic. But, last we heard, the amendment does not require booksellers to stock every kind of book; nor does it require them to cater to the needs or wants of their clientele. Are Christian bookstore required to sell Das Kapital or Henry Miller's Sexus, Nexus, or Plexus? Of course not. Public libraries are also not required to place every kind of book on their shelves; they routinely pick and choose what they want on their shelves.

Sure, this is dealing with a public library, paid for with tax dollars, but does that mean then that public libraries are required by the Free Speech clause to make available any sort of material that any tax-payer wants, including free access to Internet smut? Apparently a group of Loudoun County citizens, calling themselves Mainstream Loudoun, believed so, and they filed a lawsuit in federal court claiming that the library policy infringed on their First Amendment right to view pornography in the public library. Judge Leonie Brinkema of the U.S. District Court of the Eastern District of Virginia agreed with the plaintiffs, arguing that though the library was under no obligation to provide Internet access to its patron, once it did, the library is "restricted by the First Amendment in the limitation it is allowed to place on patron access."

Does this mean that once it displays TIME or Newsweek it must also display Playboy and Penthouse? Suppose the library didn't have books written by white supremacists arguing for the expulsion of all non-Aryans from America? Is that somehow unconstitutional? Could they be sued by those who insist that the library contain neo-Nazi propaganda? After all, like the good folks at Mainstream Loudoun, don't white supremacists pay taxes, too?


A Muslim father who claimed that his religion mandated corporal punishment for children lost his bid to have his son returned to him. Thomas B. M. lost custody of his son, Jonathan, after a lower court ruled that the boy was in danger when he lived in the father's home, where the child was reportedly whipped and smacked in the head. The father appealed, arguing that his First Amendment rights were violated because his religion "favors disciplining by corporal punishment." The appellate court stated that Thomas must first establish that spanking was rooted in the practice of his religion, as opposed to being merely a philosophical preference. "The determination of whether a belief is actually rooted in religion is difficult because the line between a religious belief and a philosophical belief may be a fine one," the court stated. The court noted too that Thomas did not present any witnesses from his mosque or from the Nation of Islam to argue that the use of corporal punishment was an integral part of Islam. Rather, the court said, Thomas's position was "based on ideological or philosophical beliefs, not religious tenets" and the court ordered the removal of Jonathan from Thomas' home "to protect Jonathan's physical safety, health, and well being." Of course, even if Mr. B. M. proved that whacking his kid in the head was mandated by his faith, it's highly doubtful that he would have won anyway. Free exercise rights mean a lot of things, but not smacking your kid in the head.


Though sometimes Americans United for Separation of Church and State (AU) is so preoccupied with building such a high wall of non Establishment that it weakens Free Exercise protections, the watchdog group is doing the cause of religious liberty a great service with its "Project Fair Play." Started in September 1998, "Project Fair Play" is a nationwide drive to make houses of worship aware of federal tax law and Internal Revenue Service regulations that bar non-profit groups from intervening in partisan politics. The catalyst for the drive, among other things, has been the Voter Guides distributed by Pat Robertson's Christian Coalition. Though supposedly non-partisan and distributed merely to inform church members of candidates' positions, the guides are clearly stacked to favor conservative Republicans, or anyone who holds the political position the Christian Coalition has decided reflects their version of New Testament theology.

The success of AU's project, at least in the last election, seems apparent by the Christian Coalition's open attack against Americans United, which last year sent out about 80,000 letters to churches warning that if they distributed the guides they could be in danger of losing their tax-exempt status. In response, the Christian Coalition sent out a letter attacking Barry Lynn, the executive director of Americans United. "HE [Barry Lynn] WANTS TO DISCOURAGE CHRISTIANS FROM VOTING AND HE KNOWS PASTORS HOLD THE KEY. IF HE CAN MISLEAD YOU, HE CAN SILENCE MANY CHRISTIANS."

The issue, of course, isn't stopping Christians from voting; rather, it's using non profit churches to promote a blatantly partisan agenda. Though the Christian Coalition claims to be merely "a non-partisan educational organization" that's not out to "advocate the election of defeat of any candidate," anyone who knows anything about the organization could see how blatantly false that claim is (it's also another good example of how political involvement corrupts Christians). If the Christian Coalition is non-partisan, then so is James Carville. In fact, the Federal Communications Commission filed a suit against the Christian Coalition over, among other things, the distribution of the voter guides, which were obviously slanted in favor of the candidates that the CC wanted to see in office. The voter guides themselves say: "This Scorecard is for informational purposes only and is not intended to influence the outcome of any election. Christian Coalition does not advocate the election or defeat of any candidate." Yet a study of the guides shows that they slant and even distort facts in order to make the candidate they want look good and the ones they oppose look bad. In a book about politics, authors Glenn Simpson and Larry Sabato wrote that "by systematically rigging the content of its voter guides to help Republican candidates, the group has essentially donated hundreds of thousands of dollars (perhaps millions) in free advertising for the Republican party."

And the Christian Coalition has been doing it in churches, which is what Americans United's challenge is over. Though its campaign did indeed scare off some churches from using the guides, others distributed them anyway, and Americans United has filed complaints with the IRS regarding the most blatant examples, hoping to spark a test case that will lead the IRS to declare the obvious: that the voter guides are not merely informational broadside but are instead partisan politics.


The U.S. Supreme Court has declined to hear a case that challenged a voucher program instituted in Milwaukee, Wisconsin thus leaving the program intact (see Liberty, January/February 1999). Though the High Court could have used the case to help decide, once and for all, the controversial parochiaid issue, for now the question will stay clouded. The Milwaukee plan allowed for 15,000 lower income students to use the vouchers in more than 100 private schools, many of which are sectarian. Though two lower courts ruled that the program did, indeed, violate Establishment Clause concerns, the state's top court reversed, arguing that the voucher plan was merely "placing on equal footing options of public and private school choice, and vesting in the hands of parents [the right] to choose where to direct the funds allocated for the children's benefit."

Though opponents of the program were disappointed by the court's decision, the case does not set any kind of nationwide precedent. The Supreme Court's denial of cert doesn't mean it approves of the appealed decision (the High Court declines to hear cases for numerous reasons). A New York Times editorial said: "The Court's refusal to take up the case does not signal approval of the Milwaukee scheme. But the Court's silence leaves in place a plan that will directly harm the vast majority of the city's school children, namely those left in public schools while others flee to the voucher program. The Court's denial of review will also embolden voucher supporters elsewhere to adopt similar plans that would funnel public money into religious and private education."

And though the Court was able to dodge the question for now, sooner or later--with voucher cases pending everywhere from Vermont to Arizona, the Court is going to have to settle this issue, especially because the lower court rulings in this area have often been contradictory.

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