Trouble in Paradise

David A. Pendleton March/April 2000 The freedom to exercise one's religion is arguably the most precious liberty Americans enjoy. The very first clauses of the Bill of Rights to the United States Constitution read: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . ." For more than two centuries this "prohibition" has played a crucial role in ensuring the independence and vitality of religion in the United States.

The statement that "Congress shall make no law" is often identified as the establishment clause, for it articulates the disestablishment or antiestablishment principle that "no law respecting an establishment of religion" can be passed by Congress. The second statement, regarding "prohibiting the free exercise" of religion, often referred to as the free exercise clause, guarantees the freedom of religious exercise.

Both the establishment clause and the free exercise clause, however differently worded, serve to safeguard religious liberty. By no means at cross-purposes, they prevent government from commandeering religion for secular purposes, and they prevent the rise of a theocratic state. The goal, then, of both clauses is to ensure that religion and government are free to work in their respective spheres without interference from the other. The clauses require us to harmonize the need for a government to govern and the right of all people to adhere to and practice their sincerely held beliefs.

Religious liberty took center stage in the state of Hawaii for several days this past spring during the 1999 legislative session. Religious liberty was the subject of ardent debate in Hawaii because public complaints had been made against the state house of representatives and the state senate by individuals identified with Hawaii Citizens for the Separation of State and Church. The question was what free exercise rights do government officials have?

Specifically the complaints alleged that the practice of a number of state senators and state representatives to gather together periodically on their lunch breaks to pray for the people of Hawaii was unconstitutional. The argument was that because they are government officials, praying in a government building, there was a violation of the separation of state and church.

The complaints also asserted that by placing religious symbols on the doors of their offices legislators violated the separation of state and church. Most often the symbols were the traditional Christian fish symbol or the Jewish Star of David. In one case, however, a state senator displayed on his door an array of religious symbols from numerous religions practiced throughout the world.

In response the Hawaii state attorney general indicated that it was not improper for legislators to gather in such a manner, since legislators do not surrender their constitutional religious free exercise rights by virtue of becoming public officials.

By this reasoning, President Clinton, for example, can carry a Bible with him to church, even if it means carrying it with him in his armored limousine or on Air Force One, both of which are provided by the government. President Clinton can invite clergy to the White House for a prayer breakfast. He can even speak publicly of his private meetings in the White House with prominent clergy who serve as "spiritual counselors." None of these activities involving a government official and taking place on government property violate the Constitution.

The Hawaii State Ethics Commission also provided guidance regarding legislative gatherings. The opinions did not speak directly to the question of religious gatherings, but they clearly prohibit meetings for a commercial or "business purpose" or where use of state property furthers individual gain.

It should, of course, be no surprise that these government agencies supported the constitutionality of these practices, since the U.S. Supreme Court has long upheld the practice of opening a legislative session with a public prayer. If a prayer can be offered in, say, the chamber of the house of representatives at the start of the legislative session, then surely legislators can meet on their own time to eat lunch and pray for the people of Hawaii.

On the separate issue of the religious symbols, the attorney general indicated that such practice is not unconstitutional. That is so because the symbols do not serve to cause a passerby to "reasonably construe the symbol to reflect the government's endorsement of Christianity." Instead, they merely convey the individual legislator's personal views.

The doors are used as venues for expression by a number of legislators-hence the common practice of displaying posters promoting literacy or raising awareness about world hunger or voicing opposition to domestic violence. Clearly none of these expressions are meant to be formal pronouncements of official government policy, but rather are understood by all to reflect the individual legislator's sentiments on the particular topic. Just as legislators are permitted to print and mail newsletters to report on their individual votes and policy preferences, so they are permitted to post those same votes and policy preferences on their office doors.

One capitol staff member had this to say on the issue: "Members of Hawaii Citizens for the Separation of State and Church are legally entitled to voice their beliefs. That is the exercise of free speech. They can place on their own Hawaii Citizens office doors whatever messages they wish. What they cannot tell other citizens, albeit elected citizens, is what messages meet with their approval."

Of course, this does not mean that legislators have an absolute right to place on their doors anything they wish. There are limits: the legislative doors are not entirely public forums, as are public streets, sidewalks, and parks. There are legal and ethical constraints as well as the parameters set by public pressure and the opinion of fellow legislators.

"The attorney general opined we could display religious symbols in our offices and therefore on our doors," explained Representative Barbara Marumoto, house minority leader. "So I did not mind when many representatives and senators put up a fish, a Star of David, or a Buddha icon. But if someone put up a Nazi symbol claiming free speech, I would object strenuously and take issue with the opinion," she said.

Prohibitions against messages that constitute harassment are constitutional, as are prohibitions against campaign-related messages. Additionally, legislators cannot place inaccurate or fraudulent information on their doors, such as titles that they do not hold or committee chairmanships to which they have not been duly elected.

While the controversy involved genuine constitutional issues, not least the rights of the individual legislators, leaders in the house and senate asked the legislators to exercise prudence. While legislators might be within their constitutional rights, it was hoped that they would take reasonable steps to avert any undue controversy with Hawaii Citizens for the Separation of State and Church.

Despite these attempts to moderate the situation, Hawaii Citizens for the Separation of State and Church continued to pursue the issue. On April 6, 1999, their members roamed the hallways of the state capitol in search of the "offending" symbols on doors of senators and representatives.

Legislators were forewarned about the "symbol sweep," as some dubbed it. They were also informed that the organization would either remove the symbols or add to them messages of their own devising, such as "Let's Tell Our Children the Truth: God Is Make-believe!" or "God Is Dead!"

The day passed relatively quietly. One particular senator did exchange some words with a person from the Hawaii Citizens for the Separation of State and Church organization, but other than that isolated incident there was little out of the ordinary at the capitol that day. This does not mean, however, that everyone was pleased.

Representative David Stegmaier, veteran lawmaker and former chair of the house education committee, returned to his office after a committee hearing to find his office door "cleaned up." "I was shocked when the theft of my office's religious symbols took place," he explained. "The incident made me realize how easily our rights of free expression can be taken away. On that occasion it was a bully acting in his private capacity, yet it could just as easily have been a government functionary simply following orders."

As Representative Stegmaier sees it, citizens do not lose constitutional rights to exercise their religion freely when they avail themselves of their constitutional rights to participate in the democratic process and embark on careers in public service. They are not somehow stripped of constitutional free exercise protections, though they certainly take on significant constitutional obligations and responsibilities.

Representative Stegmaier was the primary sponsor of a house bill modeled after the federal Religious Freedom Restoration Act (RFRA), which was supported by a broad civil rights coalition and sponsored in a bipartisan fashion by U.S. senators Ted Kennedy (D-Mass.) and Orrin Hatch (R-Utah).

Often referred to as the mini-RFRA (or a state RFRA), the legislation introduced in the Hawaii House of Representatives by Stegmaier and supported by many other representatives, including myself, was tailored to ensure continued religious liberty in the state of Hawaii. The measure was introduced because the issue of religious freedom is one that deserves the public's attention. Recent U.S. Supreme Court decisions have shown that many freedoms once taken for granted are at the mercy of majority sentiment.

Imagine, for example, a mandatory autopsy law that requires the autopsy of an Orthodox Jewish victim of an automobile accident, in direct opposition to the sincere religious beliefs of Orthodox Jews against such an autopsy. Or imagine a case in which a government prosecutor wishes to compel a clergyman to discuss the contents of a penitent's confession. Or imagine the State Tax Department litigating against the Society of Friends (Quakers) for refusing to attach the wages of their employees who refused for religious reasons to pay civil the defense or National Guard component of their taxes. Setting aside the question of whether churches become tax collectors for the IRS, such a scenarios could happen.

Representative Bob McDermott supported the introduction of the mini-RFRA religious liberty bill. Describing as disappointing the conduct of the Hawaii Citizens for the Separation of State and Church, he candidly shared that he does not believe the United States Constitution prohibits "the displaying of one's faith." In fact, he suggested, it would be dishonest for legislators to conceal their beliefs from those they serve. And given the ethical problems politicians face from time to time, he said "We need more people of faith regardless of your denomination, in public office."

I belong to the legislative prayer group. We periodically gather together for lunch to talk about the personal challenges in our lives and pray for the people of Hawaii. The group is bipartisan (Republicans and Democrats), ecumenical (Catholics and Protestants), and bicameral (representatives and senators). Attendance is of course voluntary.

I have become involved in the more controversial issue of religious symbols on legislative office doors, for I have only my name, title, district number, and room number displayed on my door. Nevertheless, in my office I have posters promoting literacy, education, and justice for our veterans. I also have flyers opposing domestic violence, gang involvement, and environmental pollution. A number of these policy positions are informed by my faith, although they do not promote my faith.

I must admit additionally that on my bookshelf in my inner office I have a Bible, along with a hundred other law, history, and civics books. I also have copies of Liberty, Adventist Review, and La Sierra Today, periodicals affiliated with religious institutions, on the end table in the lobby of my outer office. The presence of these magazines does not confer the government's imprimatur on my faith any more than does the presence of Forbes on my end table indicate endorsement of Steve Forbes' presidential candidacy.

While it is beneficial for a community to openly discuss matters of constitutional import and the role faith plays in our individual lives, the manner in which this particular discussion arose was certainly less than ideal. A number of legislators have stated that if the organization truly wanted them to remove the symbols, they would have approached them privately and politely. But because the organization chose publicly to cast aspersions on the constitutionality of practices and motives of legislators, they were forced to stand up for the First Amendment against those who would "censor their expression."

The confrontational approach taken was less than productive and may have actually encouraged a number of legislators to add symbols to their doors. It became a free speech issue in addition to a religious liberty issue. It drew into the conversation many who would otherwise have left their office doors unadorned. Unfortunately, though, it distracted media attention away from other pressing issues.

Freshman Democrat representative Brian Schatz believes there was a definite downside to the whole incident: "I think people should be able to put whatever they want on their doors. However, I can see the potential of the blurring of the line in the separation of church and state. I also think that the response was out of proportion. There were so many more important issues that we were dealing with last session, and this distracted attention from them."

Lessons can be learned from the recent incident in Hawaii. Often it is not what is said that is objectionable but how something it is said. Second, the media should not be the first group one turns to in order to address a concern-unless publicity alone is the goal. Third, there are no easy answers. It may be relatively easy to say one stands for the separation of church and state, but it can be challenging to determine exactly what practices and policies are consistent with that principle.

One of the noted Hawaiian navigators is Nainoa Thompson. He can sail ships thousands of miles without dependence on modern navigational instrumentation. He can successfully navigate the Pacific Ocean precisely because he can consult fixed stars. For brief periods of time he can use other natural phenomena-currents, tides, birds and their flight patterns, the sun. But if he fails to consult the fixed stars regularly he risks losing his way.

America's commitment to religious liberty is one of those fixed stars. Our Founders learned from centuries of religious war and persecution in Europe that government's role was to safeguard religious freedom, not to abridge it or to promote religion or a particular religion. Government must preserve religious liberty without establishing religion. Finding this delicate balance can never be easy. But it is necessary-and Constitutionally required-for us to be ever vigilant for true religious liberty.

David A. Pendleton, an attorney, serves as minority floor leader in the Hawaii House of Representatives.

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Article Author: David A. Pendleton

David A. Pendleton has served as a schoolteacher, college instructor, trial lawyer elected state legislator, and policy advisor to a state governor, and now adjudicates workers' compensation appeals in Honolulu, Hawaii.