The Devils and Religious Expression
Edith Scram July/August 2007
Cathy Raddi is a live-and-let-live kind of woman. Shy, she doesn't like to make waves. She's a turn-the-other-cheek Christian. After all, that's what her Lord tells her to do. So when the Village of South Orange, New Jersey, said that her Care and Share Ministry couldn't perform on public property because of the religious content of their material, she just shrugged it off.
"Well, if it somehow violated the Con-stitution of the United States," she said, "then who am I to fight it?"
The incident was pretty much out of her mind until the phone call came to her home last June 17. A friend, Kathy Evans, who was also part of the Care and Share Ministry, told her to get ready because she was going to pick her up so that "you can see this for yourself."
What was this?
It was the Road Devils of New Jersey's second Annual South Orange Peel Out – a car club party that, it has been alleged, included public drinking, live rock bands belting out songs with vulgar language, and scantily clad female mannequins, including one that was wearing nothing but underwear.
The problem was, however, that the Road Devils were "peeling out" in the exact spot that the city had just denied Care and Share access to!
"I'm not against the Road Devils," Kathy said. "I even like loud rock music. Our church group plays loud rock music. I just didn't understand why we, who simply wanted to sing some songs and maybe have a skit and a puppet show, were denied access, while the Road Devils, with their mannequins, were given it. I thought to myself, "There's something wrong here."
A housewife and mother of four (her husband is a South Orange police officer), Cathy felt a grave injustice had been done. Again, though very tolerant of other people's view and rights, she couldn't continue to shrug it off.
"I can't believe that when our Founding Fathers envisioned the idea of church and state separation," she said, "they ever thought it would turn into something like this."
She was upset, and so were others as well.
Hence the suit Care and Share Ministries v. South Orange was filed in the United States District Court, District of New Jersey, which argued that the "defendants have excluded Plaintiffs solely because of their religious viewpoint and the religious content of their speech. This is a flagrant violation of the First and Fourteenth Amendments to the United States Constitution."
The Road Devils' Road Show
The place is a beehive of activity, with all sorts of ministries and outreach to the community, including Care and Share, which—though sponsored by the church—is an informal gathering of folks in various people's homes for fellowship, coffee, and Bible study. Cathy Raddi runs it. It's really for those who want Christian fellowship and to study the Bible, but who might not feel comfortable in a church setting.
Part of Care and Share involves music, skits, and puppet shows. It's made up of the Abundant Life Worship team. Cathy is the worship leader. The group cut two CDs—Make My Life a Holy Praise and We Come Before You—with songs such as "Now That You're Near," which goes, in part: "I stand before You, Lord/And give You all my praise/Your love is all I need/Jesus, You're all I need."
It was such songs that they have played in public before, in other towns in the area. To date, only South Orange gave them any trouble, telling them that their request had been denied. Laura Harris, assistant to the city administrator, said that "the village will not be approving any events sponsored by religious organizations."
If that notice were not bad enough, what made it worse was that Care and Share had already been given permission to play there.
"Back in October," Cathy said, "our request had been approved by the village. Then we had to cancel because of scheduling conflicts, but were assured we could have a new date. When we reapplied, they asked for a sample of our music. We complied."
Then, on June 26, 2006, she was informed by e-mail that Care and Share could not use village property because of the religious nature of their presentations. Though surprised, Cathy just accepted it.
That is, until the Road Devils' road show.
"It was then," she said, "that I e-mailed Demetrios."
Establishment Clause Concerns
Demetrios is Demetrios Stratis, who has a law office in nearby Fair Lawn. Cathy first met Demetrios a few years earlier, when immersed in a dispute with the local public school, which forbade the children from singing Christmas carols in the classroom. Stratis got involved in the dispute (which, says Cathy, "still hasn't been resolved"). When he looked into the facts regarding Care and Share and South Orange's refusal to let them use the property, he agreed to take the case, free of charge.
"There was an important constitutional right here," he said, "that needed to be protected."
Working with the Alliance Defense Fund, which defends "the right to hear and speak the Truth through strategy, funding, and litigation," he filed a suit against the village, arguing that its actions violated everything from free speech, the free exercise of religion, and the equal protection clause.
"This was," he said, "blatant discrimination on the basis of religion. Mrs. Raddi's group seeks nothing more than neutral treatment: the freedom to speak about the same subjects as other groups do. The establishment clause does not bar their use of the Village Plaza."
What would have caused the village of South Orange to act as it did, in a nation that has for more than 200 years been the beacon of religious freedom? A case like this, in which people were discriminated against by a public entity solely because they were religious, sounds like the former Soviet Union, not the United States of America. How could it happen?
The answer is simple: it comes from a misunderstanding of the religious clauses of the First Amendment, which read: "Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof." When justices of the United States Supreme Court haven't agreed on what the establishment clause means, or is supposed to mean, who should be surprised that some officials in a town of fewer than 17,000 residents might not either?
Basic questions remain regarding this fundamental principle of American religious law. Why was it adopted? What did the framers mean when they wrote it? How should it be interpreted today?
One thing, though, everyone agrees on: with the carnage of Europe's religious wars ringing in their ears, the framers wanted, at minimum, to prevent the establishment of some sort of national church. Beyond that, little consensus exists over the meaning of the clause. Even so, a valid question remains: How does one go from a constitutional provision prohibiting the creation of a national church to a village that doesn't allow a local church ministry to sing religious songs and have a puppet show in a public square out of fear of violating the establishment clause?
In one sense, it's not that long a stretch. Through decades of some at times rather torturous legal genuflections and contortions, the United States Supreme Court has interpreted the clause, especially in the contexts of public schools, in ways that could certainly give the impression that any kind of religious expression in the public square was just one short step away from initiating an American inquisition. In such an environment, it's no wonder that some public official, not exactly up on the nuances and caveats of the First Amendment jurisprudence, would go overboard in excluding religion from the public domain.
In the seminal Everson case (1947), Justice Hugo Black wrote these oft-quoted words: "The establishment of religion clause of the First Amendment means at least this: Neither a state nor the federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. . . . Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and State.'"
While in principle that sounds reasonable enough, putting it into practice hasn't been so simple. Does using public school buses to transport children to parochial schools aid religion? Does a manger scene in a public square mean that the government is, even so slightly, participating "in the affairs" of a religious group? Is allowing religious groups to distribute government welfare benefits a violation of church-state separation?
And, more immediately, what happens when a religious organization wants to use public facilities to promote their beliefs, which one could argue is what Care and Share was doing? Would that not, in principle, violate the establishment clause, especially when the public property is maintained by tax money? Was not that, in principle, aiding a religion?
Sticky issues, to be sure, with boundaries that are usually murky and shifting. In recent years, however, the courts have been pretty clear about religious expression in public places. Though a host of other factors can complicate matters intensely, the principle goes like this: if other viewpoints are given free expression in a public forum, then religion must be allowed the same and equal access to that forum for their views. Period.
"Once the government opens up a forum for expression," said Anthony R. Picarello, Jr., Esq, vice president and general counsel of the Beckett Fund, "it can't specifically exclude religious expression."
Thus, if the New Jersey Road Devils could use public property, how could Care and Share be excluded?
Resolution
It couldn't, at least not legally.
Who knows what motivated them, but the city soon relented. At a settlement conference in March 2007 between Care and Share and village officials (instigated at the request of the city), and presided over by Magistrate Judge Mark Falk, South Orange agreed that Care and Share's request should not have been denied, and assured them that the ministry would have full and equal access to city property.
"That's what they should have done right from the start," said Stratis. "The city cannot discriminate against my client on the basis of their religious viewpoint. It was smart of them to have avoided taking this to court."
Unfortunately, not all church-state separation issues, especially involving the establishment clause, were as clear-cut as this one, whose outcome most anyone would agree was correct.
"This was," Cathy Raddi said, "a great victory."
It was, and though many questions regarding the scope and interpretation of establishment remain, Cathy isn't worrying about them now. She's too busy planning Care and Share's public ministry in South Orange.
Edith Scram is a freelance author who has a special interest in the free exercise of religion that she says "grew on me till it became a compulsion." She writes from Mount Airy, Maryland.