(Originally posted on ACSBlog.)

The Supreme Court heard argument last Wednesday in Salazar v. Buono, an Establishment Clause challenge to the federal government's display of a Latin cross in the Mojave National Preserve. The Court's questions focused largely on esoteric procedural doctrine, and while it's always risky to predict the outcome of a case based on oral argument, it seems unlikely the Court will rule on the broader constitutional issues in the case - namely, whether the plaintiff, a devout Catholic and former National Park Service employee, had standing to challenge the display of the cross; and whether, before it tried to transfer the cross to a private party, the government violated the First Amendment by displaying the sectarian symbol on federal land. (The lower courts decided those issues in favor of the plaintiff in the first round of the case, and the Bush Administration chose not to seek Supreme Court review at the time. As a result, the Court now appears disinclined to revisit those rulings.)

But while the Supreme Court ultimately may pass on the loftier constitutional questions in Buono, Wednesday's argument did have some dramatic moments. In the most heated exchange of the morning, Justice Antonin Scalia peppered Peter Eliasberg, the ACLU attorney arguing for the plaintiff, with questions about the significance of the cross. Justice Scalia bristled at Eliasberg's suggestion that a World War I memorial featuring only a Christian cross sends a message of exclusion and religious favoritism, asking, "The cross doesn't honor non-Christians who fought in the war?" After Eliasberg responded that the cross "is the predominant symbol of Christianity," Justice Scalia pushed back, suggesting that there was no constitutional problem with the display because "the cross is the most common symbol of the resting place of the dead." Eliasberg resisted, explaining that "the cross is the most common symbol of the resting place of Christians." "I have been in Jewish cemeteries," continued Eliasberg, the son of a Jewish World War II Navy veteran. "There is never a cross on a tombstone of a Jew."

The notion that a war memorial featuring a stand-alone Latin cross serves to honor only Christian war dead - a notion Justice Scalia called "outrageous" - was echoed in a series of amicus briefs filed in the case by various veterans groups, including the Jewish War Veterans, the American Muslim Armed Forces and Veterans Affairs Council, the Muslim American Veterans Association, and a group of high-ranking retired military officers. However the Buono case is resolved, it will be difficult, if not impossible, to convince many non-Christian veterans that an isolated, freestanding cross expressly recognizes their service to the country. And Congress's designation of the Mojave cross as one of only 49 national memorials (and the only one commemorating World War I), joining such iconic symbols as the Washington Monument and Mount Rushmore, only compounds the problem. As one retired Army brigadier general recently put it, "The cross is unquestionably a sectarian religious symbol that, as a congressionally designated national memorial to veterans, would convey the message that the military values the sacrifices of Christian war dead over those of service members belonging to other faiths.

The U.S. military has always been religiously diverse, from the Revolutionary War, through World War I (when, for example, an estimated 250,000 Jews served in the U.S. Army), to the present (11 percent of current active members of the military say they belong to a non-Christian faith, and an additional 21 percent are atheists or report no religion). But unlike individual headstones for fallen American soldiers - which appropriately reflect the varied, personal religious preferences of those brave men and women, - the Mojave cross claims to speak for all veterans. Surely, there are other government-sponsored, national symbols that can serve that purpose admirably (the American flag comes to mind), without dividing the country along religious lines.

Yesterday, Jamil Dakwar, director of the ACLU Human Rights Program, presented a statement at the annual Human Dimension Implementation Meeting (HDIM) of the Organization for Security and Cooperation of Europe (OSCE) in Warsaw, Poland. The OSCE is an intergovernmental organization consisting of 56 "participating states," including the United States, Canada, European countries, and Central Asia.

The HDIM is Europe's largest human rights conference, and the most significant OSCE event addressing human rights and democracy in Europe, North America and Central Asia. For two weeks, more than 1,000 government representatives, human rights defenders, scholars, members of civil society and journalists examined the processes and extent to which OSCE member countries have implemented their commitments to human rights and democracy.

Jamil presented a written statement on "Charitable Giving and Religious Freedom in the U.S." during yesterday's session on fundamental freedoms, which focused on freedom of thought, conscience, religion or belief.

As you may know, the ACLU has recently documented the consequence of U.S. government actions on American Muslims' exercise of their right to profess and practice their religion through charitable giving. The ACLU's research shows that post-9/11 terrorism financing policies and practices are seriously undermining American Muslims' protected constitutional liberties and violating their fundamental human rights to freedom of religion, freedom of association and freedom from discrimination. President Obama just signaled his commitment to working with American Muslims to ensure they can fulfill zakat (zakat is one of the core "five pillars" of Islam and a religious obligation for all observant Muslims) and highlighted the importance of this issue in a recent statement to mark the end of Ramadan and the beginning of Eid-ul-Fitr, stating: "As I said in Cairo, my Administration is working to ensure that Muslims are able to fulfill their charitable obligations not just during Ramadan, but throughout the year."

In his statement, Jamil noted:

Despite the often weak nature of its evidence, the Bush Administration publicly trumpeted its actions as successes and made inflammatory and unfounded or exaggerated allegations when it designated Muslim charities as terrorist, indicted them criminally, or raided them. These government actions have created a general climate in which law-abiding American Muslims fear making charitable donations in accordance with their religious beliefs.

While Obama's recent statements signal a step forward towards upholding the religious freedom of Americans — as this is a change in policy from the Bush administration — the Obama administration now must act.

We call on the Obama administration to work with Congress to reform our terrorism financing laws and policies in order to bring these laws and policies into compliance with international standards, and meet our country's human rights commitments to better protect and promote religious freedoms of Muslims and non-Muslims alike. The ACLU is joined by other groups who stand ready to work with the administration to make this happen. Stand with the ACLU today and demand religious freedom for everyone in America.

Learn more about the issue at: /muslimcharities.

— By Jennifer Turner and Nahal Zamani

In my recent blog post about the ACLU’s lawsuit against the State of Mississippi for promoting religion in a state-sponsored and state-funded event, I pondered whether Mississippi thinks the Constitution doesn’t apply to them. Apparently, Lt. Gov. Phil Bryant doesn’t think it does.

Early this week, the lieutenant governor commented on the ACLU’s case, saying:

I was so disappointed that the ACLU has decided that we don’t need to tell young women in the state of Mississippi about our faith; we don’t need to explain to them that abstinence, we believe, is related to our faithful Christianity beliefs.

If you are like me and cannot believe that a state official would basically admit to violating the Constitution, you can see for yourself by watching the lieutenant governor utter those words in an interview.

 

There are so many things wrong with his sentence, I don’t even know where to start. First, the lieutenant governor’s remarks show no respect for the First Amendment, which prohibits the government from supporting one religion or another. Mississippi clearly crossed the line when it featured Christian prayers, sermons, and performances in its 2009 abstinence-only summit.

Second, it is revealing that the lieutenant governor believes that we need to tell “young women” that they should remain abstinent until marriage. This is the age-old — and sexist — double standard that dictates that women and girls must be the gatekeepers of sex, and are solely responsible for the consequences. Instead of reinforcing these outdated gender stereotypes, we should be providing all teens with the tools they need to make healthy and responsible decisions.

Tomorrow, September 17, is Constitution Day — perhaps the lieutenant governor and other state officials should take a moment and study the First Amendment, so in the future they can ensure that they don’t promote government-sponsored, taxpayer-funded religious activities, and reinforce outmoded gender stereotypes in the process.

(Cross-posted to Daily Kos and Firedoglake.)

Florida's Santa Rosa County School District has a long and unrepentant history of unconstitutionally sponsoring prayers, proselytizing students, and generally promoting particular religious beliefs throughout district schools. In August 2008, no longer able to bear this infringement on their liberties, two students at Pace High School sued the district with the assistance of the ACLU. Many in the community reacted in an uproar: the student plaintiffs were vilified in the media and threatened with rape and death, among other efforts to intimidate them, and district officials vowed to fight back. Pace High Principal H. Frank Lay was perhaps the most vocal, declaring during a fiery sermon at an off-campus church service (MP3): "This country is founded on Judeo-Christian principles, there is no doubt about that. . . . I walk up and down the halls everyday and I see tons of kids that aren't saved. They have hollow eyes. They are void of a spirit. They need Jesus."

But as the case proceeded and overwhelming evidence of a pervasive pattern of egregious constitutional violations continued to mount, it became clear that the district's activities were indefensible. How could the defendants explain away the Pace High Teacher Handbook, which, on page four, requires school personnel to "embrace every opportunity to inculcate, by precept and example, the practice of every Christian virtue"? How could they justify school officials' regularly leading or directing students in prayer at extracurricular and athletic events, arranging for prayer during graduation ceremonies, proselytizing students during and outside of class, and sponsoring religious baccalaureate services? How could they defend one teacher's display of a waist-high white cross in her classroom? They could not, and to the school board's credit, they (including Lay, a named defendant) admitted liability for their unlawful practices in December 2008, and agreed that the court should enter a preliminary injunction pending a final consent order to be worked out by the parties.

However, though every district employee received a copy of the court's preliminary injunction ordering school officials to immediately cease their longstanding and pervasive practice of "[p]romoting, advancing, aiding, facilitating, endorsing, or causing religious prayers or devotionals during school-sponsored events," several decided to flout the court's authority and directed that school-sponsored prayers take place regardless. After learning of these violations, the court ordered two of those employees — Lay and Pace High Athletic Director Robert Earl Freeman — to face criminal contempt proceedings next month.

During the September 17 hearing, Lay and Freeman will have to answer for their roles in promoting prayer during a school luncheon to dedicate a new field house. (Another school employee will face a separate civil contempt complaint tomorrow for similarly violating the same court order). If held in criminal contempt, the pair could be assessed a fine and/or or assigned up to six months in jail.

Fox News, not surprisingly, has had a field day with the field house prayer, devoting no fewer than five on-air segments to the contempt proceedings in the last week alone, all of which have focused exclusively on the fact that Lay and Freeman could be subject to prison time if found in criminal contempt of court. Consistent with Fox's modus operandi,each new segment ratcheted up the hysteria with Bill O'Reilly declaring that the judge (who, O'Reilly neglects to mention, was appointed by former President George W. Bush) is "probably an atheist" and Mike Huckabee warning ominously on his show last weekend to "be careful when you pray, Big Brother is watching."

But as LiberalViewer so artfully points out in this YouTube video breaking down these Fox segments, when you take a closer look at the actual facts here (which Fox largely distorts or ignores), the upcoming contempt proceedings are wholly unremarkable:

Please note that by playing this clip You Tube and Google will place a long-term cookie on your computer. Please see You Tube's privacy statement on their website and Google's privacy statement on theirs to learn more. To view the ACLU's privacy statement, click here.

Lay and Freeman openly violated a federal court order (something judges do not take kindly to) and now they must answer to the judge — facing the same consequences that may be imposed on any person subject to a criminal contempt proceeding in any case. There is nothing unusual about that. Indeed, even if they are found in contempt, it is unlikely that the court will order jail time here; no one — including the ACLU — has argued that prison would be an appropriate sanction in this particular proceeding. Undeterred by these facts, Fox News nevertheless seems more intent on sensationalizing the case than reporting the truth.

If the contempt proceedings against Lay and Freeman are noteworthy at all, it is for an entirely different reason than the controversy ginned up by Fox News and its ilk: in the irony of all ironies, Lay and Freeman's September 17 court hearing is slated to take place on "Constitution and Citizenship Day," an annual commemoration of the signing of the Constitution, which federal law requires public schools to observe with relevant educational programming.

The confluence of these two events sets the stage for a perfect teachable moment for Santa Rosa students, as there are a number of valuable civics lessons that can be drawn from this case, including, among others, the necessity of respect for the rule of law and the authority of the judicial system; and the vital role that the Constitution plays in protecting those of minority faiths from governmental intrusion and coercion. Let's just hope that Santa Rosa's civics teachers, and indeed, teachers across the country, can see through the Fox News hype to recognize and impart these crucial lessons to their students, who, after all, will be our future lawmakers, attorneys, and judges. Otherwise, the Constitution doesn't have a prayer.

Check out our Myths & Facts page to learn more about this case.