Zachary Hood, an elementary-school student in Medford, N.J., is a veteran of the continuous religious wars in the public schools. His first losing skirmish was in kindergarten, when the kids were given a Thanksgiving assignment to make a poster of something for which they were grateful. Zachary chose Jesus.
A school employee took his poster down, but after some negotiation, it was put back _ safely away from the other drawings.
The next year, each child in his first-grade class was allowed to choose a story to read aloud. Six-year-old Zachary, not yet versed in the Establishment Clause, picked a story about two formerly estranged brothers, Jacob and Esau, who became reconciled. The story, which did not mention God or miracles, was from a children's book of Bible stories he had read at home.
His teacher told him the story was not suitable because it was "prayer" _ not allowed in a public school. The principal agreed, adding that it might offend Muslim, Hindu or Jewish students in the class.
In federal district court, as I noted in a previous column, the school was upheld because letting Zachary read the story would have "endorsed" the Bible. On appeal, the 3rd U.S. Circuit Court of Appeals _ without even oral arguments _ brusquely dismissed the suit.
Since then, however, the appeals court has unexpectedly decided to rehear Zachary's First Amendment case. And in June, Eric Treene, litigation director for the Becket Fund for Religious Liberty, participated in oral arguments.
Although it is unwise to predict an appellate decision on the basis of judges' questions, it appeared that this time the appeals court at least did not think the issue was frivolous.
After all, as Treene told the court _ quoting Justice William Brennan _ "the First Amendment does not tolerate laws that cast a pall of orthodoxy over the classroom." And since the state can neither favor nor disfavor any religion, here was disfavored Zachary, made to feel an outcast before his classmates.
I truly believe that under the Establishment Clause, no public tax money can be given directly or indirectly to a religious school through vouchers. But in Zachary's case, Justice Robert Jackson's 1943 decision in West Virginia Board of Education vs. Barnette is right on target:
"Individual freedom of mind" is to be preferred to "officially disciplined uniformity."
Also being challenged again in the courts are the free-expression rights of certain high-school valedictorians. When they have to submit their graduation speeches for the principal's approval, any statement of gratitude to Jesus or God is censored by prior restraint.
But like Zachary's poster and his story of delayed brotherly love, the state did not, in any way, command or initiate the valedictorian's personal note of thanks. The First Amendment should protect those students from the pall of orthodoxy. To my knowledge, the ACLU has never defended these valedictorians.
Meanwhile, much has been written recently about the display of religiosity by current presidential candidates. As in Al Gore's assertion that "the purpose of life is to glorify God." Or George W. Bush's informing us that "everyone is the child of a loving and merciful God who counts our tears and lifts our heads."
I prefer the perspective of independent Minnesota governor Jesse Ventura. When asked on TV for his reaction to the failed attempt in Congress to enact a "National Day of prayer, fasting and humiliation before God," Ventura said he would not have voted for it. "There are atheists out there," he said. Thank you, Governor.
Economic issues _ not the unfurling of one's religious faith in order to get votes _ should be the business of politics. Gore and Bush should remember James Madison's witnessing to pluralistic democracy in an 1819 letter to Robert Walsh: "The number, the industry, and morality of the priesthood and the devotion of the people have been manifestly increased by the total separation of the Church from the State."
Syndicated columnist Nat Hentoff is an authority on the First Amendment and the rest of the Bill of Rights.
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