Special Report: First of three parts.
Oral arguments were to begin before the U.S. Supreme Court on one of the most litigated questions in American law: Should the Ten Commandments be displayed on government property?
Outside, protesters sang hymns and held up signs proclaiming “The 10 Commandments: The way to live your life.” A few feet away, a larger group clustered around Ellen Birch, a member of American Atheists, who describes herself as a descendant of Thomas Jefferson.
“A favorite claim of fundamentalists,” she told anyone listening, is that America is “indebted to the Bible and Christianity for our laws.”
Not so, Miss Birch says.
“State support of a religion leads to corruption within both government and religion,” she says, adding that Jefferson himself said, “The wall of separation between church and state was absolutely essential in a free society.”
The clash of cultures, between spiritual and secular America, was on full public display.
Secularists such as Miss Birch cite Jefferson’s wall in their fight to exclude God from public life, proposing to ban creches at city hall, Christmas carols in public schools, graduation prayers at colleges and grace over meals at military academies — as well as the more than 4,000 stone and concrete testaments to the Ten Commandments across the country.
They’re part of a network of organizations that shares logistics, troops, board members and funding sources and includes radical feminists, humanists, atheists and liberal Jewish and Christian groups. Four organizations furnish most of the leadership.
The oldest and best-known is the American Civil Liberties Union (ACLU), whose Kentucky chapter is the plaintiff in one of the two cases before the Supreme Court. The others are Americans United for Separation of Church and State, People for the American Way (PFAW) and the Freedom from Religion Foundation (FFRF). The latter two filed friends-of-the-court briefs in support of the lawsuits.
Lawyers argued the two cases — Van Orden v. Perry and McCreary County, Ky. v. ACLU of Kentucky — in a Supreme Court chamber surrounded by engraved images of the Ten Commandments.
The carved Commandments on the grounds of the Texas Capitol in Austin is excessive, Duke University Law School professor Erwin Chemerinsky argued on behalf of Thomas Van Orden, a homeless, disbarred lawyer.
“It’s the most powerful and profound religious message that this court has ever considered on government property,” Mr. Chemerinsky said. “Here you have a monument that proclaims not only there is a God, but God has dictated rules of behavior for those who follow him or her.”
The justices appeared unimpressed.
“I don’t know whether that’s any more profound or ultrareligious than the prayer the chaplain gives every day in the House,” Justice Anthony M. Kennedy said.
Several justices noted the frieze overlooking the chamber depicting Moses with the two tablets upon which the Bible says God proclaimed His laws to the Israelites. But the frieze, Mr. Chemerinsky argued, includes 17 lawgivers besides Moses, and American society is too fragmented to agree on a single source of divine revelation.
“Imagine the Muslim or the Buddhist who walks into the [Texas] State Supreme Court to have his or her case heard,” he said. “That person will see this monument and realize it’s not his or her government.”
Justice Antonin Scalia injected a little humor, saying, “Probably 90 percent of the American people believe in the Ten Commandments, and I’ll bet you probably 85 percent of them couldn’t tell you what the 10 are.”
Though many Americans cannot recite the Ten Commandments as set out in the books of Exodus and Deuteronomy, an Associated Press survey in February found that 76 percent of the 1,000 people polled approved of displaying them on government property.
Opponents say such displays violate the establishment clause of the First Amendment to the Constitution: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”
The intent, scholars say, was to protect Americans from an imposed state religion, guaranteeing the right to worship God however they pleased.
‘Dirty little secret’
The ACLU, Americans United, PFAW, FFRF and their allies have filed hundreds of lawsuits since the 1960s on the grounds of “separation of church and state.” The phrase, which Jefferson first used in a letter to an association of Connecticut Baptists, appears nowhere in the Constitution.
A federal appeals court, citing the “separation” concept, barred a cross on federal land in the Mojave Desert. The San Diego City Council voted March 8 to remove a 43-foot cross atop the Mount Soledad War Memorial, ending a 15-year battle with an atheist backed by the ACLU. A lawsuit by Michael Newdow, another California atheist, to remove the phrase “under God” from the Pledge of Allegiance was dismissed by the Supreme Court on a technicality in June.
The faithful accuse the “anti-Christian soldiers” of disproportionately targeting Judeo-Christian symbols while ignoring other religious symbols.
In 2003, the ACLU urged the National Park Service to remove plaques inscribed with Bible verses from three overlooks at the Grand Canyon but did not protest the names of park buttes — Brahma Temple, Vishnu Temple, Shiva Temple, Osiris Temple and others — commemorating Hindu and Egyptian deities.
ACLU President Nadine Strossen says her group correctly ignored the rest.
“Most people would not see those as religious, but as religious art,” she says in an interview. “Would a reasonable observer see those as a government endorsement of religion? If it’s such an exotic religion that most people wouldn’t know what the symbol is?”
Ms. Strossen declines to characterize her religious beliefs. She describes the ACLU as supported by “rabbis, ministers, priests and other religious leaders who recognize that government involvement is as dangerous to religion as it is to a diverse, pluralistic society.”
Litigation and protest has split communities, sometimes inviting sectarian hard feelings. School districts across the country have banned Christmas carols, Nativity scenes and — in Texas — even the traditional Christmas colors of red and green at a holiday party in an elementary school.
“I blame my fellow Jews for the situation,” columnist Burt Prelutsky wrote in the Los Angeles Times last year. “When it comes to pushing the multicultural, anti-Christian agenda, you find Jewish judges, Jewish journalists and the American Civil Liberties Union at the forefront. The dirty little secret in America is that anti-Semitism is no longer a problem in society — it’s been replaced by a rampant anti-Christianity.”
The Alliance Defense Fund (ADF), a group that advocates religious liberty, advances the view that Christianity is singled out for challenges.
The ADF, founded in Scottsdale, Ariz., in 1993 by leaders of 30 conservative Christian organizations, tracks “anti-Christmas” cases filed by the ACLU. Alan Sears, its president, argues that the ACLU uses the courts to make policy.
“The future of America,” he says, rests on legal battles mounted against the ACLU.
His group organized a “Christmas project” last year, writing instructions on what schools legally can and cannot do to mark the holiday, then sending the list to 6,740 school districts.
“The pendulum has swung so far into this notion of being able to remove only the Christmas holiday because that might hypothetically offend someone,” ADF staff attorney Joshua Carden says. “People are sick of it.”
Polls typically show that poor countries are more religious than rich. America is the exception. A Gallup survey of 1,001 adults in late March, for example, shows that 84 percent identified “with a Christian religion.”
The nation’s history is steeped in religious faith. Christopher Columbus thought his sail to the unknown New World in 1492 was a divine calling, and colonists framed the Revolutionary War in religious terms, referring to themselves as “God’s elect.” The British were the “anti-Christ.”
The Declaration of Independence acknowledged the Judeo-Christian deity in appealing to “Nature’s God,” “Divine Providence” and “the Supreme Judge of the world.”
Every presidential inaugural speech since George Washington’s in 1789 either has invoked God or referred to religious faith. By 1830, Alexis de Tocqueville, the French author of “Democracy in America,” declared that in this raw nation religion had become “indispensable to the maintenance of republican institutions.”
These institutions came under duress during World War I, second only to the Vietnam War as “the most unpopular war in American history,” Samuel Walker wrote in his book on the ACLU, “In Defense of American Liberties.”
In the tumultuous years that followed the end of World War I, pacifists, anarchists, socialists, communists and suffragettes joined to fight what they regarded as the evils of industrial capitalism and government repression of free speech.
Birth of the ACLU
Roger Baldwin, a member of the Industrial Workers of the World, a Chicago-based radical labor group, founded the ACLU. He was a Unitarian, a denomination that believes in God but not in the divinity of Christ.
When Mr. Baldwin refused to join the military in 1918, he went to prison for a year as a conscientious objector. Soon after Mr. Baldwin’s release, on the second anniversary of the Russian Revolution, U.S. Attorney General A. Mitchell Palmer jailed thousands of anarchists and labor activists for suspected communist activities.
A month after 249 foreign-born activists were deported to Russia in December 1919, Mr. Baldwin organized the ACLU. The group’s early causes included defending John Scopes, arrested in Dayton, Tenn., in 1925 for teaching the theory of evolution in defiance of state law.
“The ACLU was the legal arm of militant labor,” says Bill Donohue, founder of the Catholic League for Religious and Civil Rights, whose 1980 doctoral thesis examined the group. “From the beginning, they were tied to the politics of the left. It was hard-core left. They justified Stalinism.”
Mr. Baldwin visited Stalin’s brutal police state in 1923 and 1927 and praised it in a book, “Liberty Under the Soviets.” But he disassociated himself from communism when Stalin signed a nonaggression pact with Nazi Germany, and the next year, the ACLU expelled its top communist board member, Elizabeth Gurley Flynn.
Mr. Baldwin had made his peace with the U.S. government when he resigned as ACLU director in 1949. In fact, two years earlier Gen. Douglas MacArthur appointed him as consultant on civil liberties in Japan and Korea. He continued espousing left-wing causes until his death in 1981.
The ACLU courted controversy during the 1950s and ‘60s, even defending the American Nazi Party. When the Nazis planned a march in the heavily Jewish Chicago suburb of Skokie, Ill. in 1977, the ACLU went to court in support of their right — however abhorrent — to do so. The decision cost the organization $300,000 in donations, and its membership plunged from 275,000 to 200,000. Such longtime allies as the American Jewish Congress deplored ACLU involvement.
Skokie was home of the largest U.S. concentration of Holocaust survivors, and many Jews saw the march as insulting the memory of the 6 million Jews exterminated by the German Nazis. Aryeh Neier resigned as executive director of the ACLU and described the dilemma of majority will and minority rights in his 1979 book, “Defending My Enemy.”
“The alternative to freedom is power,” wrote Mr. Neier, who was born in Nazi Germany. “If I could be certain that I could wipe out Nazism and all comparable threats to my safety by the exercise of power, perhaps I would be tempted to choose that course. But we Jews have little power. As a Jew, therefore, concerned with my own survival and the survival of the Jews — the two being inextricably linked — I want restraints placed on power.”
Mr. Neier, now 78, assumed the presidency of liberal philanthropist George Soros’ Open Society Institute in 1998, a New York-based foundation that describes itself as promoting pluralism in democratic societies.
Mr. Neier’s fear of a powerful majority imposing its will on a nonconsenting minority moved the ACLU to oppose mandatory school prayer in the 1962 Supreme Court case Engel v. Vitale and oppose Bible reading in public schools as well in 1963’s Abington v. Schempp. It was paired with the more famous case, Murray v. Curlett, filed by atheist Madalyn Murray O’Hair.
The Supreme Court’s rulings in all three cases, Mr. Walker wrote in his ACLU biography, “completed the process of disestablishing Protestantism as the nation’s unofficial religion.”
Making a mark
Faith in all forms of authority underwent severe tests during the cultural ferment of the 1960s and ‘70s.
“The ACLU saw freedom of religion as something they wanted to put their mark on,” the Catholic League’s Mr. Donohue says. “They take the strict separationist position: ‘The more we are separated from religion, the better off we are.’ ”
With $48 million in annual revenue, the ACLU, now with 400,000 members in 50 state affiliates, counts $125 million in net assets. ACLU employees gave $57,830 to Democratic candidates last year, according to the Center for Responsive Politics. The largest total ($18,730) went to John Kerry. No ACLU money went to Republicans.
The ACLU’s Ms. Strossen argues that separating church and state is in the interest of American pluralism.
“Many people with deeply held religious beliefs don’t want the government to interfere by having government sponsorship,” she says. “We have the most religiously vibrant country in the entire world, and all observers say the reason for it is the First Amendment with its nonestablishment clause.”
What of ACLU members themselves?
“We have people of all denominations in the ACLU,” Ms. Strossen says. “On the [83-member] national board alone, there are several ministers. The vice chairman of the national advisory council is a Catholic priest.”
This vice chairman is the Rev. Robert Drinan, a liberal Jesuit professor at Georgetown University who served in Congress during the 1970s and as an adviser to the Kerry presidential campaign. But when Father Drinan was dean of the law school at Boston College from 1956 to 1970, he accused the ACLU of magnifying the establishment clause to the detriment of religious liberties.
Conservative critics of the ACLU argue that it continues to use such tactics. Some of these critics have formed their own organizations to contend against it, beginning with the founding of the Moral Majority in 1979 by the Rev. Jerry Falwell.
Mr. Falwell and other Christian conservatives, buoyed by Ronald Reagan’s election as president in 1980, mounted bids in 12 states to reintroduce school prayer. Alarmed, the ACLU ran an ad in the New York Times proclaiming, “If The Moral Majority Has Its Way, You’d Better Start Praying.”
In 1990, the Rev. Pat Robertson, the religious broadcaster, founded the American Center for Law and Justice to challenge the ACLU in the courts.
Ms. Strossen brushes aside the relevance of personal faith to the organization’s goals. “The only beliefs we have,” she said of ACLU members, “are pro-civil liberties beliefs.”
Note: The original version of this report incorrectly reported that the ACLU is a plaintiff in the Texas case challenging the Ten Commandments and also mischaracterized political contributions by ACLU employees. Those errors have been corrected in this version.