The Foundation hears a different tune

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Oct 19, 2007 No Comments ›› Greg Jones

The Foundation hears a different tune

Here at the Foundation we are often asked about how we are different from other non-profit Christian legal outfits like the ACLJ, the Alliance Defense Fund, Liberty Counsel, the Rutherford Institute, and so on.  It is an important question, one which we answer by explaining that the Foundation makes legal arguments based on the original understanding of the text of the U.S. Constitution rather than based on judicial opinions that have twisted the Constitution to say what it was never intended to mean.  The Foundation does this because we believe that fidelity to the Constitution is the most honest, forthright, and favorable method of protecting our freedom.  The Constitution maximizes liberty under law based on a thoroughly Christian framework.  Adherence to the actual words of the Constitution yields practical—if not always perfect—results which preserve peace and freedom in a socially diverse society. 

Usually to demonstrate the difference between the Foundation’s approach and that of other organizations we point to arguments we have made on the same side as the other organizations in religious liberty cases.  For example, in a public prayer case like Doe v. Tangipahoa Independent School District (http://caselaw NULL.lp NULL.findlaw NULL.pdf), public interest firms like the ACLJ and the Alliance Defense Fund typically will explain why, in their opinion, the three-prong Lemon test or the Marsh v. Chambers historical analysis test allows public prayer by government bodies.  The Foundation, on the other hand, explains in its brief (http://morallaw,%20En%20banc%20amicus%20brief%20by%20Foundation%20for%20Moral%20Law NULL.pdf) on this subject why the words of the Establishment Clause of the First Amendment—“Congress shall make no respecting an establishment of religion”—do not prohibit public prayer.  The former approach is a judicial test analysis while the latter is a textual approach.  Remarkably, in every case in which we file, we are, almost without fail, the only party to suggest that the court follow the words of the Constitution rather than the judicial tests invented by the courts which vainly attempt to make sense of the text. 

A) An Instrumental Case

While examining cases in which we are on the same side as other Christian organizations offers one way to illustrate the stark difference between the Foundation’s approach and that of other Christian law firms, a recently decided case (http://www NULL.firstamendmentcenter NULL.aspx?id=19186) offers another useful way to demonstrate the Foundation’s legal and philosophical difference with these other groups.  Nurre v. Whitehead (http://www NULL.alliancealert NULL.pdf) is a case that involved the 2006 commencement ceremony at Henry M. Jackson High School in Seattle, Washington, and Kathryn Nurre, a senior and member of the wind ensemble.  The school had a tradition of allowing senior musicians to choose a song to play for commencement.  The wind ensemble chose Ave Maria (http://www NULL.zianet NULL.htm), a famous piece written by German composer Franz Biebl in 1964, which they had performed at a winter concert earlier in the year without objection.  The school rejected the ensemble’s request to play the instrumental at the graduation ceremony, however, because it said that graduation music must be “entirely secular in nature.”  With the help of the Rutherford Institute—one of the above-mentioned non-profit Christian legal groups—Nurre filed suit against the school district shortly after the graduation ceremony, arguing that the school district’s rejection of Ave Maria violated her free speech and religion rights under the First Amendment.

A federal district court rejected Nurre’s claims, finding no constitutional defect with the school district’s decision to deny the wind ensemble’s request.  John Whitehead, founder of the Rutherford Institute, stated that he was “absolutely and greatly disappointed in the ruling” because “[t]his is an important free-speech case.  The judge indicated that a public forum was created, but in order for a school to avoid the establishment clause, it must do away with free speech.”  Whitehead believes this is “one of those cases of simply overreacting with a very politically correct reaction,” and that “the framers of our Constitution would laugh at this ruling.”  Rutherford will appeal the ruling on Nurre’s behalf. 

At first glance it is tempting to completely agree with Mr. Whitehead and to be angry at the district court’s decision.  After all, it is absolutely silly that a school would prohibit the playing of an instrumental work simply because the title translates “Hail Mary.”  Many schools obviously have gone overboard in their attempts to ensure that they do not violate the federal courts’ version of the separation of church and state.  So why won’t the Foundation join the Rutherford Institute in its appeal of this case? 

The answer, quite simply, is because there is often a distinct difference between a bad policy and an unconstitutional one.  There is a common misconception in America today that just because something is stupid it also must be unconstitutional.  Yet, there are a myriad of government actions that make little rational sense, yet which the Constitution says absolutely nothing about.  One reason for this is that the Founders strongly believed in learning by doing: public policies are proposed, enacted, and watched to see if they work.  If they work, ideally they are continued, if they do not—whether because they are fiscally unsound, practically difficult to implement, or the people just do not like them—they are changed in favor of a different policy.  If most things were constitutional issues, then it would be extremely difficult to shape policies to fit the needs of the moment.  This is why the Founders attempted to make sure that the Constitution addresses a few key points and leaves the rest for every-day (usually local) governing. 

The school district’s decision in Nurre simply does not implicate the Constitution because it does not violate the text of the First Amendment.  No doubt it is an unwise overreaction to messy U.S. Supreme Court jurisprudence concerning the Establishment Clause, but it is not prohibited by the First Amendment.  In pertinent part, the First Amendment provides: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech . . . .”  Note that the first word is “Congress.”  That word alone excludes applying the rest of the text to a Seattle school district.  But most scholars and all federal courts today ignore that first word and apply the First Amendment to the states through 14th Amendment with a dubious doctrine called “incorporation.”  It is not my intent to have an incorporation debate in this post, so let’s move on to the part of the first clause which comprises the rest of the infamous Establishment Clause. 

B) The Establishment Clause

The Establishment Clause is quite possibly the most misunderstood phrase in the whole Constitution and its amendments.  It ought to be beyond dispute that playing an instrumental work of any kind at a high school graduation ceremony could not possibly constitute “a law respecting an establishment of religion.”  Indeed, not even the federal district court in this case made such a claim.  It found that the school district disallowed the musical work in question to avoid “a potential Establishment Clause violation,” but making a decision to avoid possible litigation is a far cry from finding an actual violation.  Put simply, music is not a “law” in any rational sense of the term.  Further, while playing music may set a tone or mood for an event, it would be ludicrous to suggest that music can “establish” a “religion” of any kind.  No one would say (or at least should say) that allowing a performance of Ave Maria at a graduation ceremony “establish[es]” Catholicism as the official religion of Jackson High School any more than playing Pomp and Circumstance establishes a royal kingdom at the school.  Playing music at a government sponsored event plainly does not implicate the Establishment Clause.

I wish I could say that the Establishment Clause analysis ends there, but unfortunately the Rutherford Institute, like several other such organizations (but unlike the Foundation), could not leave it at that.  Its attorneys actually argued that the school district’s prohibition of the music itself violated the Establishment Clause, employing the notorious Lemon (http://www NULL.cornell NULL.html) test to make its case, a test the district court admits has a “checkered career.”  One problem with doing this is that the Lemon test has been shown time after time to be utterly unhelpful and confusing in evaluating Establishment Clause claims.  Indeed, the federal courts’ persistent use of the Lemon test is likely a primary reason Jackson High School officials were so baffled about the law that they made this silly decision in the first place.  Any attempt by Rutherford to use the Lemon test perpetuates this poor jurisprudence by lending it the imprimatur of legitimacy. 

Be that as it may, Rutherford attorneys argued that, under Lemon, prohibiting Ave Maria demonstrates hostility toward religion by the school district.  The Lemon test mandates that government actions must meet three criteria to pass Establishment Clause muster: (1) the action must have a “secular” purpose; (2) the action’s principal or primary effect must neither advance nor inhibit religion; and (3) the action must not foster an “excessive entanglement” with religion.  The district court concluded that the school district’s action met all three criteria, and who can legitimately say that the court was wrong given that there is no consensus about what these three prongs actually mean?  What is a “secular” purpose?  Can any government action that implicates religion truly be said to be neutral toward religion (the impetus of the second prong)?  What constitutes an “excessive” entanglement with religion, i.e., how much is too much involvement?  The test is too malleable to be of any use at all.

Moreover, as several Foundation briefs (http://morallaw NULL.html) on this subject illustrate, the Lemon test in practice is actually hostile toward religion in general and Christianity in particular.  One of the arguments made by the Rutherford attorneys demonstrates this very point.  Plaintiff Kathryn Nurre stated in her case that, “The other seniors and I did not choose the Ave Maria piece because of any religious message it might convey.  Rather, the seniors chose it because of its beauty, we liked how it sounded and the performance would have made our graduation a memorable one.”  This is quite possibly true, but no doubt the reason Nurre’s attorneys emphasized the point was to meet the first criteria of the Lemon test, i.e., that playing the piece had a “secular” purpose.  The problem with stressing the secular characteristics of the music was that it undermined Rutherford’s arguments for the second and third prongs of the Lemon test, i.e., that prohibiting the music inhibited or constituted hostility toward religion and fostered an excessive entanglement with religion.  As the district court explained, “[P]laintiff cannot take the position that defendant acted with hostility toward religion or the School District’s action fostered ‘excessive entanglement with religion’ when plaintiff does not assert that the speech that was excluded conveyed a religious message.” 

You see, the Lemon test forces people to drain the religious content from the action at issue (whether music, a Ten Commandments display, a prayer or whatever), thereby discrediting any possible claim that prohibiting the action constitutes religious discrimination of some kind.  The more inherently religious something is, the less likely it is to be declared constitutionally acceptable.  This is undoubtedly unfair and illogical, but blame has to be placed not just on the courts which apply this religiously bigoted jurisprudence, but also on the religious liberties lawyers that argue according to Lemon’s reasoning.  You are not going to win very often playing on an unlevel playing field, and when you do win it is going to make the refs and the other teams think you are perfectly content to keep playing under those conditions.  At the very least, you ought to call the refs (the courts) out on their bias, but these attorneys will not even do that for fear of losing cases. 

The Foundation’s approach is: (1) to tell the courts that their method of deciding these cases is impractical, biased, and unconstitutional; and (2) to offer the proper method evaluating a constitutional claim—following the text of the Constitution.  The Establishment Clause says nothing about “secular purposes,” neutrality, or “excessive entanglements,” so why are people arguing according to and deciding cases based on these inventions?  The results will not change unless the jurisprudential method changes, and that is what the Foundation advocates.  But doing that means being consistent about it—even if the text of the Constitution fails to help you in a particular case, like this one.

C) The Free Exercise Clause 

Oh, but there is still the matter of the remaining First Amendment Clauses at issue in this case.  But those clauses are of no more help than is the Establishment Clause.  Nurre’s attorneys do not even attempt to make a “free exercise” claim, but in the interest of thoroughness, let’s look at it.  The Free Exercise Clause simply protects the “free exercise” of religion.  As understood by the Founding generation, it could not possibly be said that being denied the chance to play Ave Maria at a graduation inhibits “free exercise” because that term denoted the basic elements of one’s religious worship such as prayer, church attendance, observance of the Sabbath, and so forth.  Playing that piece at a graduation is not vital to anyone’s religion, especially not to Nurre’s religion given that she admitted that the music was not selected for its possible religious content. 

D) The Free Speech Clause

What about that bastion of American freedom, the Free Speech Clause?  Rutherford attorneys made free speech the centerpiece of Nurre’s suit, which is not shocking given that the Supreme Court’s free speech jurisprudence has proven to be by far the most favorable among First Amendment rights toward religious claims.  As we have already seen, Establishment Clause jurisprudence is anti-religious and Free Exercise Clause jurisprudence is quite limited in its scope.  In contrast, Free Speech Clause jurisprudence is so broad it is easier to ask what it doesn’t cover rather than what it does in order to get a handle on it.  Over the course of time, the Supreme Court has ruled that “free speech” constitutes everything from words to art to gestures to flag-burning (http://www NULL.cornell NULL.html) to nude dancing (http://supct NULL.cornell NULL.ZO NULL.html).  So could Rutherford attorneys really be blamed for trying to argue that an instrumental piece of music falls within “the freedom of speech” as well?

     (1) Speech

Historically, the concept of free speech comes from England, where its unwritten constitution prohibited lawmakers from being punished for anything they said while in Parliament.  The idea came to be expanded under British law to include not placing any “prior restraint” on the written and spoken word concerning public subjects (meaning political issues or public figures).  This meant that preemptive censorship by the government could not occur, but if an utterance proved false or defamatory, the author could be punished for it.  When it came time for the Founders to fashion their own protection of free speech, it was understood (http://press-pubs NULL.uchicago NULL.html) to incorporate these ideas and expand on them.  Though debates at the time of First Amendment’s adoption indicate that some believed “the freedom of speech” kept the rule of “prior restraint,” the majority expressed the view that the American version of free speech (influenced by the trial of John Peter Zenger (http://www NULL.umkc NULL.html) and other events) erased it.  Thus, under the original understanding of the term—the standard used by the Foundation—“the freedom of speech” meant the freedom to speak about public subjects without fear of government retribution.  It has nothing at all to do with musical renditions of any variety, whether religious or not. 

It must be noted in passing that the school district contended that the music was not “speech,” but its argument was not based on any fidelity to the Constitution.  The school district contended that Nurre had not shown that “an intent to convey a particularized message was present, and [that] the likelihood was great that the message would be understood by those who viewed it.”  In other words, the school district made the quite rational argument that an instrumental version of Ave Maria would not convey any particular message to the audience.  Yet, the school district’s own argument demonstrates why its prohibition of the musical selection made no sense.  If no particular message would be conveyed by playing the music, then why prevent the students from playing it?  It is also blatantly contradictory for the school district to argue both that the music is not “speech” because it would not convey a particular message, and that the music was religious in content, creating an Establishment Clause problem.  You can’t claim the music has no message and yet claim it is religious, but the district court allowed the school district to do just that. 

At any rate, the district court did find that Ave Maria constituted “speech” under the Supreme Court’s expansive definition of the term, thus getting the Rutherford attorneys half-way to victory.  Be that as it may, it is an argument they never should have made.  It should be beyond obvious that the Founders never would have considered an instrumental piece of music to be “speech” of any kind—let alone the kind of speech described in the First Amendment.  Instrumental music is not speech—and for that matter neither is art, flag-burning, or nude dancing.  The U.S. Supreme Court has twisted the idea of “speech” so that it somehow covers non-speech.  As a result, we get absurd decisions like the 2004 Ashcroft v. ACLU (http://a257 NULL.g NULL.akamaitech NULL.supremecourtus NULL.pdf) decision in which the High Court struck down the Child Online Protection Act as being too restrictive under the Free Speech Clause, or the infamous case that approved flag-burning as constitutional, Texas v. Johnson (http://www NULL.cornell NULL.html) (1989).  To argue that an instrumental piece of music qualifies as free speech is to take advantage of the same logic that made these and other abominable rulings possible.  It is lawyering based solely on the principle of winning rather than on sound legal and moral principles.

     (2) Forums

The compromise on principle ultimately did the Rutherford attorneys no good because the district court, following multiple Supreme Court precedents, found that the forum where the “speech” was to be broadcast constituted a “limited public forum,” and that the school district had placed a “reasonable” restriction on the kind of music that could be played in light of the purpose of the graduation ceremony.  The Supreme Court in its infinite wisdom has not only expanded the definition of speech, it has also conjured up no less than four different categories (called “forums”) under which different rules apply for government restrictions on speech.  There are public forums, designated public forums, limited public forums, and non-public forums.  The level of government regulation on speech permitted in each kind of forum operates on a spectrum: from very minimal restrictions in public forums (such as parks and sidewalks) to tight restrictions in non-public forums (such as government offices, prisons, and courthouses). 

Nurre’s attorneys argued that the graduation ceremony was a “limited public forum,” and the district court agreed.  A limited public forum is a non-public forum that the government has intentionally opened to certain groups or for the discussion of certain topics.  In a limited public forum, restrictions on speech are permitted so long as they are “viewpoint neutral” and “reasonable” in light of the purpose served by the forum.  Much like the Lemon test in Establishment Clause cases, the limited public forum test gives the judge so much leeway that it is quite difficult to say when the court’s decision is incorrect as a matter of law.  Very few restrictions do not meet the requirement of being “reasonable,” and “viewpoint neutrality” really depends upon your point of view. 

This case is a perfect example of the pliable nature of the test: how can it be said that prohibiting religious messages at a graduation ceremony is unreasonable any more than the Establishment Clause requirement that everything be “secular” in nature?  The district court concluded that the school district’s prohibition on religion in the graduation ceremony was “viewpoint neutral” because it did not “discriminate against a specific religious sect or creed.”  From a certain point of view, albeit a very technical one, this makes sense.  But given that the Supreme Court has consistently held that neutrality in the Establishment Clause context means not only that the government cannot show favoritism between different religious sects but also between religion and “irreligion,” it seems hypocritical to claim in the Free Speech Clause context that viewpoint neutrality permits the government to single out religious speech for prohibition.

While Rutherford attorneys had a plausible argument that the school district’s prohibition was not viewpoint neutral, they never should have placed themselves in the position of resting their case on silly-putty judicial tests that can take any shape a judge chooses to fit the judge’s desired outcome.  As with their Establishment Clause arguments, they should not be shocked that they got burned when they played with the fire of judicial whims. 

E) Conclusion

The point of all of this is that Nurre’s case should not have been in court at all because, as poor as the school district’s decision was, it did not violate the First Amendment to the U.S. Constitution.  Christian public interest attorneys debase their claims when the only arguments they make rely upon the fabricated musings of the U.S. Supreme Court because of all attorneys, we should be the ones standing on honest and true moral and legal principles.  The Constitution may not always get things right in terms of what it protects versus what it does not protect, but it is the law, and following it will, more often than not, maximize our liberty under law—including our religious liberty.  This is why the Foundation bases its arguments on the text of the Constitution, and it is how we tangibly and starkly differ from the rest of the Christian public interest legal world.  We may march to the beat of a different drummer, but since the drum is the U.S. Constitution, they are the ones who need to adjust their steps.

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