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May/June 2015

Discover more articles from this issue.

A Time of Fire

These are challenging times, but times of opportunity at the same time. People want to think for themselves; not just what they are spoon-fed.

My Body to Be Burned

Today we wouldn’t burn a man alive for what he believes, but our ancestors did. And when you look at the pictures, see what their hands wrote, and look into the faces sleeping in stone and bronze above their bones, they don’t appear much difference from us. Yet they extirpated dissent by burning, and it was a devilish business that we do well to remember.

Virtue and Freedom

Do humans have the inherent ability to make free choices and judgments, or are they determined by forces outside of their control?

Freeing the Church to Be the Church

Taking religious practice out of the classroom may or may not have been good for the state, but it was good for the church.

Inconvenient History

The late novelist Gore Vidal spoke of America once as “the United States of Amnesia.” This condition was highlighted all too painfully by the response of many conservative Christians to a remark made by President Obama during the National Prayer Breakfast on February 5, 2015.

A Man for All Seasons: Remembering Attorney Lee Boothby

He was faithful not just to his legal calling, but to a higher calling that he had obviously been given from above.

The Natural

Every man, woman, and child in America owes their religious freedom, in some part, to the doggedness with which Lee Boothby relentlessly advocated for that freedom.

I know What You’re Thinking

If Uncle Sam is using this power to track down the next Mohamed Atta or Dzhokhar Tsarnaev, who’s going to complain? The question is How many innocent people get their privacy violated in the process?

Magazine Archive »

Published in the May/June 2015 Magazine
by Céleste Perrino-Walker

Some people come into this world with a singleness of purpose that leaves an indelible impression on those who follow after. Lee Boothby was one of those people. In an era when the church he belonged to wasn’t encouraging young people to enter the practice of law, he became a lawyer. At a time when the United States was itself tentatively exploring the practical meaning of its newly minted civil rights, Lee carved out their boundaries by litigating fiercely for religious liberty. Every man, woman, and child in America owes their religious freedom, in some part, to the doggedness with which Lee relentlessly advocated for that freedom.

Lee Boothby (standing) at a panel discussion, speaks to the subject of whether or not private education should accept federal aid. Seated on his right are Norval F. Pease (left) and former Liberty editor, Roland Hegstad.

Born Orva Lee Boothby in Bakersfield, California, on March 17, 1933, Lee attended college at Emmanuel Missionary College (present-day Andrews University) and received his Juris Doctor in 1957 from Wayne State University in Detroit. He moved to Niles, Michigan, hung out his shingle, and started practicing law. One of his daughters remembers that at the time there were only four prosecutors in all of Berrien County.

Scarcer still were Seventh-day Adventist lawyers of any kind. “Lee was one of a very few Seventh-day Adventist lawyers when he started,” said Mitchell Tyner, retired associate general counsel of the General Conference of Seventh-day Adventists. “The vast majority we had were on the West Coast. Lee got involved in the fifties and sixties, when the church was very much concerned about labor union membership. We had a lot of members who felt on religious grounds they could not be members of unions. There were a lot more unionized workplaces then, and many of our members were being shut out of those places.” In addition to labor union battles, Seventh-day Adventists also faced employment discrimination because of their observance of Sabbath.

Who better than a Seventh-day Adventist lawyer to understand the First Amendment challenges of a Sabbatarian? “Lee started representing people with religious convictions who were being terminated or otherwise handicapped in the workplace,” says Robert Nixon, retired general counsel of the General Conference of Seventh-day Adventists. “The problem at the time was that religious accommodation wasn’t well defined under the federal Civil Rights Act. Eventually the Equal Employment Opportunity Commission (EEOC) promulgated guidelines, but much of the definition came about through court cases that asked, ‘Is this reasonable accommodation or not?’ And a court would decide. So a corpus of cases helped develop the concept of reasonable accommodation, and Lee was a key litigator whose cases helped flesh out the meaning of religious accommodation in the workplace.”

Despite ongoing flare-ups of race-related tension, most of us waste precious little time agonizing over the rights secured for us by the Civil Rights Act of 1964 and the subsequent amendment to Title VII, the Equal Employment Opportunity Act of 1972. We know on some level that discrimination based on race, color, national origin, sex, or religion is wrong and that if we were to experience discrimination on this basis we would have legal recourse. But this was not always the case. Simply having a law was only part of the battle; what lawyers needed to win cases were precedents and because the law was so brand-new, there weren’t any.

For example, section 703(a)(1) of the amended Title VII states that it is unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”1 The trouble was that one person’s interpretation of that statement might not be the same as another person’s interpretation, and the only way to determine which interpretation was correct in the eyes of the law was to build a body of court cases that could be cited when litigating each fresh case of religious discrimination.

“Lee was great at that,” remembers Nixon. “He loved to litigate. He was interested in religious liberty, and he was a natural.”

Lee suffered defeats in his defense of Sabbath accommodation, but he also achieved some spectacular victories and set important legal precedents. One of his milestone cases has been instrumental in obtaining Sabbath accommodation for hundreds, if not thousands, of individuals and continues to be cited. The case, Opuku Boateng v. California, involved a California grain inspector, Kwasi Opuku-Boateng, who worked for the California Department of Food and Agriculture. Originally given a position of plant inspector at a border inspection station in Yermo, California, Opuku-Boateng was let go before his first shift even started because when he learned he was scheduled to work on Saturdays, he refused because of his religious convictions.

The case was pivotal for several reasons. It was brought against the state of California and so, by inference, a decision in the case would be applicable to other states as well. Until this time most cases had been litigated against private employers. Also, the word “accommodation” was a nebulous thing. Over time the U.S. Supreme Court handed down rulings attempting to define what constituted religious discrimination on the part of an employer and clarify the duties imposed on them by the Civil Rights Act. The most contested issue in the Opuku-Boateng case was that the state had made virtually no effort to accommodate his religious beliefs. The victory, when it finally came, set an important precedent for both litigants whose religious beliefs required protection and employers who needed to know what their obligations were to accommodate those beliefs.

This was a hard-won victory that took 14 years to resolve. In speaking of the trial, Lee said, “After a substantial period of time, we did get a trial, which lasted several days. And ultimately, unfortunately, the judge ruled against him [Kwasi Opuku-Boateng], which is not unusual for Sabbatarians. So we immediately filed an appeal before the Ninth Circuit Court of Appeals. The matter was ultimately brought before three judges in the Ninth Circuit and they ruled in his favor, reversing the trial court judge.

“The State of California was shocked and filed a petition for review by the United States Supreme Court, which turned down the appeal, and thus the Ninth Circuit decision is good law and held in favor of Kwasi and in favor of the need to accommodate religious beliefs.”2

Even cases that didn’t result in complete wins furthered the cause of religious freedom by preventing its opponents from chipping away at the progress that had already been made. Nicholas Miller, professor of church history and director of the International Religious Liberty Institute, worked on a case with Lee in which some Catholic women were concerned that state materials being supplied to Catholic schools in Louisiana were compromising the schools’ religious identity. The women were worried that in taking down crucifixes and being less overt in religious instruction, the materials were having a corrosive effect on the religious behavior and identity of the schools.

“Separation of church and state cases were usually brought by more secular organizations, such as the ACLU and People for the American Way,” says Miller. “We did it from religious concerns. This allowed us to give a different kind of message, especially in the media, that it’s not just secularists who think separation of church and state is a good idea, it’s people who care about religion because of the negative effect government involvement has on religion.

“The case was technically a victory for the other side, because the court did allow the materials to go to the schools. But the government and opposing counsel were trying to use this case to make dramatic changes in the law that would allow essentially all government aid going to religious schools to be acceptable. The court refused to buy that larger argument, so it was, in essence, a case of technically losing the battle but keeping the principles safe in the larger war. We were disappointed that we didn’t win, but the other side was disappointed that they really didn’t make the larger case they were trying to make.”

This issue—opposing government aid to religion—was very important to Lee. According to Alan Reinach, executive director of the Church State Council, Lee wrote briefs before the Supreme Court in no less than 32 cases, and the two that he himself brought and argued both dealt with this issue.

While Seventh-day Adventists may have originally accounted for a large portion of people facing some of these unique legal problems based on freedom of conscience, they were definitely not the only ones, and Lee staunchly represented anyone who faced religious discrimination regardless of their denomination. In addition, as the structure of the Seventh-day Adventist Church organization changed, more and more of its members’ legal work was handled in-house by the church’s own legal counsel. This gave Lee more time to broaden his client base and put additional effort into shoring up religious freedom in other areas, such as testifying before congressional committees.

“I remember testifying with Lee before some congressional committee, probably in the early seventies,” says Nixon. “Often a committee would say, ‘Prepare a paper, prepare anything you want, but you’ve got five minutes to say it.’ So you’d go there, and they would have four or five people lined up at a table to present their summaries. Lee always argued for practical accommodations of religious beliefs and practices of real people in the workplace.”

Lee had a reputation for being a one-man operation, a sort of Lone Ranger who operated very independently. “He was really an independent force in a way,” remembers Cole Durham, director of the International Center for Law and Religion Studies at Brigham Young University. “He was very much his own independent force in support of religious freedom.”

At the same time, people who worked with him in the fight for religious freedom saw him as a bridge builder, someone who took pains to understand the positions of others even if he didn’t share their views; he cultivated and built the kinds of relationships that would undergird the cause of religious liberty. These skills would prove crucial, because Lee’s passion for religious freedom wasn’t restricted to the United States. With the fall of the iron curtain there was a need to promote and help develop religious freedom in countries in which it had previously been unknown. Lee was very involved overseas in the international promotion of religious freedom, primarily in Russia and Ukraine. Americans United for Separation of Church and State—Lee was their general counsel for more than 12 years—reported that “during his career, he visited 36 countries, usually on missions to lobby officials to protect the right of conscience.”3

“There was a particular kind of drama in seeing things open up in Russia and Ukraine that I think was a kind of magnet that attracted a lot of us,” remembers Durham. “We’d grown up with the iron curtain and knowledge of restrictions on religious freedom in the Soviet Union. To see that changing and recognize that government officials really needed technical assistance in trying to figure out how to restructure their laws to be more in conformity with internationally recognized freedom notions was a very exciting thing, particularly in the early nineties. Lee had spent a lot of his career working on religious freedom issues and to have the opportunity to share that knowledge and experience with people who were opening up to freedom of religion was very exciting and motivating.

"Religious freedom for him was a universal value which wasn't just for the United States but for all people around the world."

“His dedication and really personal commitment to be able to attend some of the conferences that were really making a difference in the way people thought about religion laws was significant. I remember the spring and summer of 1997 when the 1997 Russian law [“On Freedom of Conscience and Religious Associations”] was being pushed through the Duma, I was often on phone calls with him. It was one of the first times for many of us to be directly in touch with some reporters on the ground. We’d get Internet messages every morning and would work together to send things back for the arguments or suggestions for how one could oppose some of the more restrictive measures in legislation.”

“Religious freedom for him was a universal value which wasn’t just for the United States but for all people around the world,” says John Graz, secretary general for the International Religious Liberty Association (IRLA). Lee was a member of the IRLA’s board of experts for many years. He often spoke at legal conferences and was almost always on the panel when the topic of religious freedom or separation of church and state came up.

“Everywhere we needed him, or someone invited him, he took a ticket and he went,” says Graz. “He had a passion for religious freedom, and he also had an international dimension. He was very involved in the IRLA.”

Lee “led or worked as general counsel for several organizations, including Americans United for Separation of Church and State, the International Commission of Freedom of Conscience, and the International Academy for Freedom of Religion and Belief.”4 Because he was very versatile and wore several caps, he could go to conferences on his own, for his own association, or the IRLA when they asked him. He was also a staunch advocate for the strict separation of church and state, and he maintained a law practice past retirement age. He continued to advocate for freedom of conscience until his stroke in 2013, and passed away a little more than a year later.

Eulogizing Lee at his memorial service, Reinach said, “Hundreds have been able to get their lives back because of legal precedents set by cases that Lee Boothby fought and won. . . . Most will never know they owe him a debt of gratitude. He’s a man who made a difference. His work has touched the lives of so many who will not even know the story this side of eternity. Indeed, I think all Americans who enjoy religious freedom owe Lee Boothby thanks for his efforts to preserve our freedom. He was a mentor and a friend, and he inspired me to continue fighting for religious freedom.”

There can be no greater testament to your life’s work than that you improved humanity’s lot while alive and inspired others to carry on that work. Lee Boothby’s contributions to religious liberty will forever be a monument to his unswerving devotion to the right of each individual to have the freedom to practice their religion as God and conscience convict them.

Author: Céleste Perrino-Walker

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