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The American Civil Liberties Union has long fought to uphold religious freedom. We helped a nurse who was fired for wearing a cross-shaped lapel pin on her uniform. And we fought for high school basketball players from an Adventist school who could not play games on Saturday, their Sabbath. Despite our history, ironically, Congress has taken legislative aim at the ACLU in the name of protecting religion. The proposed Veterans’ Memorials, Boy Scouts, Public Seals, and Other Public Expressions of Religion Protection Act, which the House of Representatives passed on Sept. 26, would bar courts from awarding any attorney fees to plaintiffs who successfully challenge government expression or endorsement of religion under the establishment clause of the First Amendment. Supporters of this legislation assert that it will close what they call a “loophole” allowing the ACLU (and other groups) to recover attorney fees for successful challenges to government-supported displays or expressions of religion. The Traditional Values Coalition contends that “the ACLU is funding its anti-Christian activities on taxpayer money from hundreds of lawsuits filed over the past decade.” But their rhetoric is a smoke screen hiding the real threat. What the House bill actually attacks are the fundamental values of religious tolerance and government neutrality toward religion embodied in our Constitution. The so-called loophole is the Civil Rights Attorney’s Fees Awards Act, which authorizes attorney fees and costs to plaintiffs prevailing under a variety of civil rights laws. If this law is weakened, the real victim will be America’s commitment to religious tolerance and neutrality in the public sphere. The sponsors of this legislation show at best an incomplete understanding of the history of religious intolerance in this country, of the fundamental purposes of the First Amendment, and of the ACLU’s work protecting religious freedom. Consider whose rights the ACLU has been helping to protect. In Richmond, Va., a city ordinance severely restricted a program for feeding homeless people run by a Baptist minister. The minister said that providing alms to the poor was part of the church’s purpose. The ACLU of Virginia (of which I am a director) filed a free-exercise lawsuit on behalf of several churches and won. We have supported the Rev. Jerry Falwell in his challenge to a Virginia law that restricts the amount of land that churches may own. The ACLU, at Falwell’s invitation, argued that the law infringes on his right to practice his religion. The ACLU of Virginia has also argued for students who were told they could not carry Bibles or other religious items to school, helped student religious clubs to meet on school grounds after hours, defended the right of prisoners to receive religious materials, and defended the right of a church to hold baptisms in the Rappahannock River at a public park. Similar ACLU activity on behalf of the free expression of religion occurs all over the country. It is no overstatement to say that the ACLU has been the leading organization defending the right of Americans to free exercise of religion�in most cases, Christianity�against government attempts to stifle it. The examples are legion: •�The right of evangelical Christians to preach on the sidewalks of Las Vegas •�The right of a Mormon high school student to wear T-shirts with religious messages without being disciplined •�The right of a prison inmate to preach during Christian religious services •�The right of a Catholic not to be required to participate in a drug rehabilitation program, run by a Pentecostal group, that required him to engage in practices contrary to his beliefs •�The right of a high school student whose yearbook entry was deleted because of its religious content •�The right of a Mormon prison inmate to have access to religious texts, including the Book of Mormon, and Mormon religious services •�The right of a fundamentalist Christian woman who challenged a mandatory divorce-counseling program, conducted by Catholic Charities, that conflicted with her beliefs •�The right of a Methodist church to hold meetings in a town building that was open for use by community groups •�The right of a Christian church to run ads in public-transit advertising space criticizing the secularization of Christmas and promoting Christianity •�The right of Christian students to distribute religious literature during noninstructional time •�The right of evangelical Christians to Medicaid and food-stamp benefits without obtaining Social Security numbers for their children, which they believed was contrary to the Book of Revelation •�The right of an evangelical Christian ministry to be a vendor at a state fair when visitors to the fair objected to the religious content of the ministry’s message FOUNDING PRINCIPLES But the First Amendment does not protect just the right of individuals to express their religious beliefs in public places; it also bars the government from establishing a religious preference. That’s why the ACLU and others have gone to court to prevent governments at all levels from erecting religious symbols on public property and from requiring religious observances by unwilling participants. The ACLU of Virginia defended the right of Rita Warren to place a nativity scene in front of the Fairfax County government complex, as was her right under the free exercise clause (and the free speech clause). Yet we also sued the town of Vienna when it placed the same kind of scene in front of its community center, which amounted to a government establishment of religion. In both cases, we won. Some in Congress seem more upset by lawsuits like those against Vienna than like those against Fairfax. The thrust of the House bill�and, more generally, of objections to legal challenges to official expressions of religion�is that prohibiting such expressions restricts the people’s right to practice their faith. This fear is completely unfounded. Private expressions of religion are and will remain entirely constitutional. To cite one of the imaginary horribles posited by the proponents of the new law, religious symbols on gravestones in military cemeteries are not being threatened. What does inspire legal challenge is, for example, the 43-foot cross at the top of Mount Soledad, part of a veterans memorial owned by the city of San Diego. It’s hard to credibly maintain that this huge Christian symbol is not a constitutional problem. Yet if the House’s proposed law had been in effect when the suit was brought, the plaintiff might have been discouraged from bringing suit by the fact that attorney fees would not have been available. That is certainly the intent of the House bill. But a quick look at American history shows why a defense of government neutrality is so necessary. HISTORY’S WARNING Many settlers of North America were themselves fleeing religious persecution in Europe and seeking the opportunity to express their own beliefs freely. Nevertheless, persecution of religious minorities and establishment of state religions quickly became a part of life in many colonies. In 1656 Massachusetts Bay Colony lawmakers banished Quakers from the colony. Those Quakers who returned were subjected to increasingly harsh penalties, from whipping to mutilation to death. Between 1659 and 1661 one woman and three men were hanged on Boston Common. As late as 1774, when the colonists were strongly protesting British invasions of their rights, 18 Baptists were jailed in Massachusetts for refusing to pay taxes to support the town’s Congregational minister. In 1610, Virginia passed a law that prohibited “blasphem[ing] God’s holy name.” The penalty for repeated offenses was death. The first Sunday law in America was a Virginia statute requiring regular attendance at religious services. Again, the penalty for repeated offenses was death. In 1723, Maryland imposed fines upon those who violated the Sunday laws. In 1739, Delaware put Sunday-law violators in the stocks for four hours. Mindful of this history and of the centuries of religious wars and persecution in Europe, some Founders embarked on what was, for the time, a radical course. Thomas Jefferson drafted the Bill for Establishing Religious Freedom in 1779, and James Madison steered it through the Virginia General Assembly. It was opposed by, among others, Patrick Henry, who introduced legislation that would have imposed a tax for the support of “teachers of the Christian religion.” In leading the opposition to Henry’s bill and in support of Jefferson’s bill, Madison wrote one of the most notable, if not often-noted, documents of American liberty, the Memorial and Remonstrance Against Religious Assessments. Government-coerced adherence to a religion, or to religion at all, Madison said, is destructive not only of individual liberty but also of religion itself. Religious belief “can be directed only by reason and conviction, not by force or violence. [It] must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.” The same authority that requires adherence to one religion, he warned, can require adherence to one sect of that religion and can, in changing political circumstances, require adherence to another sect or religion. Establishment of religion is corrosive of faith itself. It leads, according to Madison, to “pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution.” STILL WITH US Madison’s warning is as apt today as it was in his revolutionary era. Disputes over maintenance of overtly religious symbols on public property regularly rekindle the crucial dispute about the true meaning of the First Amendment’s religion clauses. All too quickly, tolerance disappears. At a gathering in support of the nomination of Justice Samuel Alito Jr., one pastor warned opponents, “Don’t fool with the church because the church has buried a million critics. And those the church has not buried, the church has made funeral arrangement for.” Another heated example has been the accusations of a so-called war against Christmas. Those who object to Christian prayers at a public tree-lighting ceremony have been accused of “treeson” and told to go live in Israel. In these arguments over the role of religion in public life, the charge is often made that those, like the ACLU, who oppose official government expression or endorsement of religion are opposed to free expression of religion or are even anti-Christian. Some baldly assert that litigious bullies are seeking to drive faith from the public square and instead should themselves be silenced. The verbal attacks sound a chilling echo of a time in American history when opponents of mainstream religion were literally buried for their beliefs. The Founders wisely recognized that government must stay out of religion and religion out of government. With sectarian violence rampant in many parts of the world�as events in Iraq daily remind us�we too must uphold the principles of tolerance, protection for religious expression, and government neutrality toward religion embodied in the First Amendment. The Senate should remember the principles of Madison and reject the House’s ill-advised bill. David A. Drachsler, a member of the D.C. Bar living in Alexandria, Va., sits on the board of directors of the ACLU of Virginia and is vice chairman of Virginia’s Human Rights Council.

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