- The Washington Times - Monday, March 18, 2013

You can’t keep a good theophobe down.

Despite losing in court, the American Civil Liberties Union (ACLU) says it will continue opposing Missouri’s voter-approved constitutional amendment guaranteeing the freedom to pray in public places.

An ACLU spokesman also likened Missouri legislators to Russian strongman Vladimir Putin, but more about that below.

Designed to protect schoolchildren and public officials from nuisance lawsuits by the ACLU and other enforcers of official atheism, the amendment requires public schools to display the Bill of Rights “in a conspicuous and legible manner,” and allows prayer in schools and public prayers offered by lawmakers. This makes ACLU lawyers break out in hives.

Missouri voters approved the right-to-pray measure by 83 percent to 17 percent on Aug. 7, 2012, so the ACLU, naturally, filed suit the next day. It’s probable that the ACLU hates the whole thing, but the argument their lawyers chose is that the law violates the religious rights of prison inmates.

Among other things, the amendment states, “The provisions of the resolution cannot be construed to expand the rights of prisoners in state or local custody beyond those guaranteed by federal law.” In other words, prisoners cannot claim any “extra” constitutional protections that Missouri citizens don’t already have.

To the ACLU, the prisoner reference in the amendment means that “all prisoners will lose the additional protection of religious liberty that they had been afforded since 1820, when the Missouri Constitution was originally adopted.”

However, prisoners were never given “additional” protection. The language of the pre-amended Article 1, Section 5 simply says that Missouri citizens “have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences” and “that no human authority can control or interfere with the rights of conscience.”

The amendment restates this and elaborates on prayer and public expression of religious beliefs. The prisoner reference was inserted to discourage more lawsuits over things like hair grooming, which prompted an unsuccessful challenge to Missouri prison policies in 1993.

“Think of the U.S. Constitution, which provides basic religious rights, as a cake, and the Missouri Constitution, which provided additional religious liberties, as the icing,” said Tony Rothert, legal director for the ACLU of Eastern Missouri. “The newly passed Amendment 2 will strip the icing off that cake for prisoners, and doing so perpetuates the stereotype that prisoners are inferior .”

U.S. District Judge Howard F. Sachs didn’t buy this half-baked logic, dismissing the case in February.

“No practical change in the law can be supposed, and plaintiffs fail to suggest hypothetical situations where the results would be altered by the new amendment,” he wrote, adding that the claim lacked “a plausible claim of actual prejudice.”

This echoes an earlier ruling by the Missouri Western District Court of Appeals, in which Chief Judge Lisa White Hardwick wrote that the proposed amendment would “not repeal prisoners’ state constitutional rights to religious freedom.”

“Rather, it simply makes those rights coextensive with federal law,” she wrote, adding that the ACLU’s claim is “purely conjectural.” You might say she found the ACLU to be a hair off the mark.

When the Missouri legislature in August 2012 approved another, unrelated religious freedom measure, the House of Worship Protection Act, the ACLU’s Mr. Rothert compared Show-Me-State legislators to Mr. Putin, whose government convicted members of a punk rock band for “religious hooliganism.”

The naughty-beyond-what-I-can-describe-here protesters had invaded Moscow’s Orthodox Cathedral of Christ the Savior on Feb. 21, 2012, dancing in masks and singing obscenities. Except for the overt blasphemy of their choosing this location — the spot in the sanctuary where worshippers take Communion — it was tame for the group, known for explicit performances in museums and supermarkets.

“It’s almost like Missouri legislators are asking themselves ‘What would Putin do?’ and then taking it one step further,” Mr. Rothert said. “They seem to have forgotten that the USA has the First Amendment.”

On Sept. 28, 2012, U.S. District Judge E. Richard Webber dismissed the complaint, saying it would cause more harm to strike down the law than to leave it in place.

The House of Worship Protection Act makes it a second-class misdemeanor if a person or persons:

“(1) Intentionally and unreasonably disturbs, interrupts or disquiets any house of worship by using profane discourse, rude or indecent behavior, or making noise either within the house of worship or so near it as to disturb the order and solemnity of the worship services; or (2) Intentionally injures, intimidates, or interferes with or attempts to injure, intimidate, or interfere with any person lawfully exercising the right of religious freedom in or outside of a house of worship or seeking access to a house of worship, whether by force, threat or physical obstruction.”

A second offense rises to a first-degree misdemeanor, and a third offense makes it a felony.

Judging by his earlier remarks, it doesn’t sound like Mr. Rothert, who worries about cakes without icing, would have much of a problem with that female punk rock band coming into an American church shouting obscenities. Or maybe the girls could just do this on the sidewalk right outside a church.

One man’s riot is another man’s icing.

Robert Knight is a senior fellow for the American Civil Rights Union and a columnist for The Washington Times.