Nothing for Us
Stephen M. Bainbridge March/April 1998
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Although Christian books are one of publishing's fastest-growing genres, the Cleveland Plain Dealer recently reported the frequent complaint of evangelicals that "there is nothing for us" in their public library. While some libraries are now stocking Christian fiction, many still don't because librarians fear that Christian literature on their shelves might violate the Establishment Clause.
The problem is real. A public librarian in one state had decided to invite a number of speakers, including this author, to talk about Christian fiction. In the planning process, another librarian warned that a public library could not buy Christian fiction without violating separation of church and state. In fact, a number of librarians in this region have not offered Christian fiction for the same reason.
It's quite astonishing that anyone could seriously believe that the Establishment Clause of the United States Constitution bars public libraries from collecting religious literature, including religiously oriented fiction. Yet that concern appears, in some instances, to be the case even though no reported judicial decisions exist in which a public library was found to have violated the Establishment Clause in this manner-and given current jurisprudence, it is almost impossible to imagine a case in which one would. Yet fear that it might indicates just how much disinformation exists regarding the Establishment Clause.
At the same time, it's not altogether surprising that librarians would have Establishment Clause concerns. After all, some public officials use the Establishment Clause to exclude anything religious from the public sphere. Establishment Clause jurisprudence, meanwhile, makes for rough going even by experienced church-state lawyers, and many people don't understand the logic involved. Cowed by the ACLU and unable to find a safe harbor for their actions in the Supreme Court's admittedly confusing precedents, public officials are often unwilling to risk the litigation expense and negative publicity often involved in church-state disputes.
What makes matters worse and confusing for people like the local librarian is that the Supreme Court's Establishment Clause jurisprudence is in flux. Longstanding rules are under attack; much of the law, in fact, has changed in recent years; and more change may lie ahead, given that the Court has a number of religion cases on its current docket.
Despite these problems, however, it's still possible to identify basic standards, and under those standards, public libraries that do no more than acquire and lend religiously oriented materials have little cause for concern.
To begin, the Establishment Clause of the U.S. Constitution merely states that "Congress shall make no law respecting an establishment of religion." A reputable body of scholarly opinion believes that this language intended just what it says: Congress shall be prevented from establishing an official national religion comparable to the established Church of England, and nothing more. The Supreme Court, however, has read the clause far more broadly and has ruled that the clause was incorporated into the Fourteenth Amendment to the Constitution and, accordingly, restricts the activities of state and local governments as well. The Court has also held that the clause not only precludes official establishment of a religion, but more generally bars government entanglement with religion.
On that basis, Establishment Clause jurisprudence has culminated in the Lemon standard (named after the Supreme Court's decision in Lemon v. Kurtzman, 403 U.S. 602 [1971]), which holds that a government action (at any level) challenged under the Establishment Clause must pass a three-prong muster: (1) it must have a secular purpose; (2) it must have a primary secular effect; and (3) it must not involve the government in an excessive entanglement with religion. And though Lemon has its detractors (some of whom happen to sit on the U.S. Supreme Court), even under this rather searing test it's hard to imagine how a public library-if it did no more than acquire and lend religious texts-would be in violation of the law.
As far as the secular purpose-and-effect prongs of the test, Betsy J. Simpson and Marsha Foster, two Illinois librarians, have written on library censorship: "The public library in our democracy has a long tradition of providing information and varying perspectives on issues. Without free and open access to information and materials, our country and our tradition of freedom would be in jeopardy. In a totalitarian society, access to everything, including information, is controlled or regulated. In our democracy, these freedoms are granted under the U.S. Constitution and the Bill of Rights."
The American Libraries Association has adopted anti-censorship policies consistent with this philosophy: "Books and other library resources should be provided for the interest, information, and enlightenment of all people of the community the library serves. Materials should not be excluded because of the origin, background, or views of those contributing to their creation.
"Libraries should provide materials and information presenting all points of view on current and historical issues. Materials should not be proscribed or removed because of partisan or doctrinal disapproval."
As long as a library relies on these policies as the rationale for acquiring religious texts, rather than doing so with an intent to proselytize a particular religion, both requisite effects prongs of Lemon should be met: secular purpose because the library acts not to proselytize, but merely to reflect all viewpoints; secular effect because the library is not endorsing religion but merely providing materials that reflect the full diversity of intellectual life.
As the Supreme Court has recognized, the Establishment Clause does not require the government to turn a wholly blind eye to the prominent role of religion in American life. Though this society is increasingly pluralistic, as Richard Neuhaus has observed, "the democratic reality, even, if you will, the raw demographic reality, is that most Americans derive their values and visions from the biblical tradition."
No wonder, then, that Christian fiction is one of the most popular genres of modern literature. In 1994 more than 2,700 Christian bookstores were operating in the United States, with annual sales in excess of $2.7 billion and an annual growth rate of 7 to 9 percent. According to Gallup, religious nonfiction is expected to be the largest growth area in bookselling. Given that reality, a library can further its secular mission of providing materials representing "all points of view" only by including Christian fiction and other forms of religiously oriented literature.
The entanglement prong of Lemon, meanwhile, simply requires that public officials refrain from activities that erode the principle of government neutrality with respect to religion. Although some risk exists that an acquisition program focused on Christianity to the exclusion of other religions, or on a particular denomination or sect of the Christian faith to the exclusion of others, could violate the principle of government neutrality, it's also true that an acquisition program that excludes religious texts equally violates that principle. In the latter case, officials have chosen to come down on the secular side of the debate, surely not a neutral position. The Supreme Court has recognized that the Establishment Clause proscribes not only governmental actions that advance religion but also those that disparage or harm it: "The State may not establish a 'religion of secularism' in the sense of affirmatively opposing or showing hostility to religion, thus 'preferring those who believe in no religion over those who do believe'" (School District of Abington Township v. Schempp, 374 U.S. 203, 225 [1963]).
Analogous precedents provide strong inferential support for this understanding of the Establishment Clause. In School District of Abington Township v. Schempp, when the Supreme Court struck down a state law requiring that the school day begin with Bible reading or the Lord's Prayer, the Court nevertheless confirmed that the decision did not bar the Bible from schools in toto: "It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment."
By analogy, nonproselytizing inclusion of religious materials in a public library's collection, when done to further the library's secular mission, would also seem appropriate. Just as a school may teach comparative religion courses when done without proselytizing intent, a library should be permitted to offer a variety of religious materials for the same reason.
A second relevant precedent, again from the school context, is the Supreme Court's decision in Widmar v. Vincent, 454 U.S. 263 (1981). In the aftermath of the Supreme Court's prayer decisions, some officials tried to eradicate any religious vestiges from the schools. For example, student religious groups were routinely denied access to school facilities, even though other student groups (such as chess clubs and the like) were given access. In Widmar the Supreme Court held that the free speech rights of student religious groups were violated by denying them equal access to these facilities. The Court rejected the school's argument that allowing student religious groups to use school facilities would violate the Establishment Clause. Once a school opens its doors to some student groups, it may provide the same degree of access to student religious groups as well. By analogy, once a library opens its doors to secular viewpoints, it may also open its doors to religious ones too.
A third and final analogous decision is the Tenth Circuit Court of Appeals' decision in Roberts v. Madigan, 921 F.2d 1047 (10th Cir. 1990). Kenneth Roberts, a public grade school teacher, kept religiously oriented books, including a Bible, in a classroom "library" on his desk. During a daily silent reading period students were required to read something from home, from the school library, or from the classroom one. When ordered to remove the Bible and other religious books from the classroom, Roberts claimed Free Speech and Free Exercise rights. The court of appeals rejected this argument, affirming a lower court ruling that the order was constitutionally permissible.
One of Roberts' arguments was based on the presence of religious books in the school library. In effect, he asked: "Why was I ordered to remove religious books from my classroom library when the school officials permit religious texts to be present in the school library?" The lower court drew a sharp distinction between the classroom and the school libraries: "The school library must be distinguished from the classroom library. . . . Books in the school library are arranged according to subject, with the religious book section containing many volumes on various religions. In comparison, Roberts' classroom library has no arrangement by subject, with only the two books in question being religiously oriented. This distinction mandates different constitutional results.
"In the school library, a student may go directly to the religious section, where he or she will find an assortment of books on various religions. The student selects books according to personal curiosity, out of the glare of teacher supervision and peer pressure. The voluntary nature of choice, combined with the variety and number of books, provides the student with protections against undue religious indoctrination. Roberts' classroom does not afford the student the same protection and opportunity for individuality.
"Attendance is compulsory in the classroom. The teacher stands in a position of power as disciplinarian, role model, and educator. Students are constantly in the presence of their peers, who may observe their every action. The students are, in a real sense, a captive audience vulnerable to even silent forms of religious indoctrination.
"This compulsion of circumstances in the classroom has been recognized by the Supreme Court and other courts. The danger of indoctrinating students with, or unduly exposing them to, religious beliefs is much greater in the classroom than in the library. An Establishment Clause analysis must consider this heightened danger in order to 'prevent as far as possible the intrusion of either [the church or the state] into the precincts of the other.'"
Hence, while inclusion of religious materials in the classroom library was constitutionally suspect, the presence of religious texts in the school library presented no constitutional difficulties. As the court bluntly stated: "The Establishment Clause does not require that religious books be removed from the shelves of public school libraries. Public school libraries may include Bibles and other religiously oriented books provided that no one sect is favored and their inclusion in the library's collection does not show any preference for religious works in general." (Italics supplied.)
The public library is far more analogous to the school library than to a classroom one. As with the school library, the public library is likely to have books written from a wide variety of religious (even anti-religious) viewpoints. As with the school library, the public library patron presumably is voluntarily selecting books out of "personal curiosity." Indeed, a public library is even more removed from the scope of Establishment Clause concerns than is the school library. As Roberts suggests, the public school is an area of especially pronounced Establishment Clause concern. If a school library collection may validly contain religious works, it thus follows a fortiori that a public library with no school affiliation may do so all the more readily.
Though it's not surprising that there are no reported cases challenging the acquisition decisions of public libraries with respect to religiously oriented materials, it's not surprising either, given the state of Establishment Clause jurisprudence, that some librarians might fear offering these materials anyway. But as long as the library staff refrains from using such literature to proselytize library patrons, it's an unfounded fear. Almost no likelihood exists that a public library's acquisition of religious books would violate the Constitution.
Thus if the Christians' complaint that there's "nothing for us" in the public library is valid, the fault isn't with the Establishment Clause; instead, it rests with an unfortunate but common misinterpretation of what that clause means.
Stephen M. Bainbridge is a law professor at the University of California in Los Angeles.