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Left and right join on religious expression statement

WASHINGTON – The Anti-Defamation League and the Southern Baptist Convention may butt heads over where the line ultimately should be drawn on the separation of church and state, but representatives of both organizations say they agree on where the law now stands — and with more than two dozen other experts they have come together to help explain it to the rest of the country.

After nearly four years of work, the organizational representatives have issued a 32-page document titled “Religious Expression in American Public Life: A Joint Statement of Current Law.”

Written in a question-and-answer format and including extensive notes, the document explains the state of the law on religious expression, answering queries such as “Are individuals and groups permitted to use government property for religious activities and events?”; “May employees express and exercise their faith within secular nongovernmental workplaces?”; and “Does the First Amendment place restrictions on the political activities of religious organizations?”

(The short answers: Yes with restrictions, sometimes, and no.)


Members of the 28-person drafting committee say they plan to distribute the document to state and local governments, civic and religious organizations, and other grass-roots groups. Having the document as a reference, the members say, can defuse many controversies over religious expression before they ever start.

“Frankly, a lot of the discussion of religion in public life in America when it hits the front pages or 24-hour cable shows is often presented in a hysterical mode that either a theocracy is being imposed” or that anyone expressing religious beliefs “is being run out of town on a rail,” said Nathan Diament, the Orthodox Union’s director of public policy and a member of the drafting committee.

The significance of the document is “showing that there really is a lot of common ground and common understanding” on these issues, said Diament, whose organization favors a lowering of the church-state wall on certain issues. “It has the potential to bring more sanity and civility to this area of the law.”

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A politically and religiously diverse collection of groups issued this 32-page document explaining the law with regard to religious expression. Center for Religion and Public Affair

The document also has the backing of the Anti-Defamation League, which generally sides with those fighting to maintain a robust separation of church and state. It “shows that religious expression is very much a welcome part of public life, but there are also lines we draw and shouldn’t cross,” said the ADL’s director of legal affairs, Steven Freeman, another member of the committee.

The drafting committee included religious scholars; representatives of strict separationist organizations such as the American Civil Liberties Union and People for the American Way; and leaders of a number of religious groups, including Jewish, Muslim, Sikh, and Christian groups spanning the political spectrum — from the National Council of Churches on the left to the American Center for Law and Justice on the right. In addition to the ADL and the OU, the panel included representatives from the Reform movement, the American Jewish Committee, and the American Jewish Congress.


The drafters stressed that the document outlines the consensus on how the U.S. Supreme Court has defined current law, not the law as various groups would like to see it.

“There are things in the document that we’re not necessarily pleased by, but they’re current law,” Freeman said.


“Sometimes the state of the law is not what we would like it to be, but we agree on what the current state of the law is,” said drafter Richard Land, president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention, which favors a more prominent role for religion in American public life.

Land quipped that if the report dealt only with the areas on which the groups agreed what they would like the law to be, “it would be a much shorter document.”


Drafter Marc Stern, acting co-executive director of the American Jewish Congress, noted, for instance, a disagreement among committee members about whether the IRS restrictions on the political activities of nonprofit organizations is constitutional — but they can agree that those are the rules the Internal Revenue Service has laid out.

And while there was disagreement on how much a supervisor can say about religion in the workplace to his employees, the members could agree on general principles.


The wide breadth of drafters should give the document credibility with both the left and the right, participants said.


”The drafters are as important as the draft itself,” said Melissa Rogers, director of the Wake Forest University Divinity School’s Center for Religion and Public Affairs.

Rogers led the effort after suggesting the idea at a Freedom Forum conference on religious issues in late 2005.


The document was modeled after a similar effort to clarify permissible religious expression in the schools that some of the same experts worked on in the mid-1990s. It was distributed by the U.S. Department of Education.

The committee never met formally in the same room, but exchanged drafts via e-mail over the past four years in a process that members described as cooperative despite the differences in opinions on the issues.

The committee did not have the time to confront every controversial religious question — the hot topic of federal funding for religious groups is not included, and such heated controversies as same-sex marriage and abortion are not addressed. And some sections of the document may not be entirely clear because the Supreme Court has not been clear, such as its muddled decisions on public display of the Ten Commandments.


But, Stern said, having a resource available that offers an informed view on the issues should help to cool the slogans and epithets that often are part of the debate on religious issues.


”The impact is not necessarily in a visible way,” he said, but “in the fact that they show people what they’re fighting about may not be worth fighting about” and “a lot of times what seems like a controversy goes away.”

JTA

 
 

Westboro case poses dilemma for Jewish groups

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Members of the Westboro Baptist Church protested against The Jewish Standard, standing at a nearby corner, a year ago this month. Josh Lipowsky

WASHINGTON – Jewish defense organizations long — and proudly — have upheld a delicate principle in defending the First Amendment: Hate the speech, defend the speaker.

But a Supreme Court case whose arguments were scheduled for Wednesday have put that precept to the test: A Maryland family is suing the Westboro Baptist Church for picketing the funeral of its son, Matthew Snyder, a soldier killed in a noncombat accident in Iraq.

Jewish organizations that routinely have defended free speech that others might find abusive are sitting this one out. The American Jewish Committee has not filed a brief; the Anti-Defamation League filed a brief arguing that the case has no merit.

The case pits the Snyder family’s right to privacy and protection from defamation against the rights of Westboro church, which is well known for its message that America’s woes derive from its tolerance for homosexuality. The tiny Kansas-based church also has a long record of anti-Semitic activity and regularly pickets Jewish institutions throughout the United States. [Editor’s note: The Jewish Standard was among Westboro’s targets last year.]

“Free speech encompasses hate speech,” said Marc Stern, the associate legal counsel at the American Jewish Committee, “but this church is off the wall. They’re not just saying things, they’re shoving it down people’s throats.”

The Snyders sued Westboro after church founder Fred Phelps picketed the Catholic church where Snyder’s funeral was held, protesting against U.S. soldiers for not rising up and overthrowing the “sinful” U.S. government.

Ultimately the family won $5 million, but an appeals court threw out the award. The Snyders brought the matter to the U.S. Supreme Court.

On the side of the Snyders is a coalition of state attorneys general who argue for the family’s right to privacy. Civil rights groups, led by the American Civil Liberties Union, are defending the Westboro church’s right to political and religious expression.

In its brief, the ADL argues that the court should not have taken the case because there was no actual conflict. Police had separated the protesters from the service to the extent that the Snyders were not aware of the event until afterward, when Matthew’s father read about it online.

“ADL unequivocally condemns the anti-Semitic and homophobic rhetoric of the Westboro Baptist Church and its funeral protests,” said a statement by Deborah Lauter, ADL’s civil rights director. “However, the Supreme Court need not and should not address the constitutionality of their conduct in the absence of a real conflict.”

The key danger, said Steven Freeman, the ADL’s director of legal affairs, is that by addressing a theoretical confrontation instead of an actual one, the court risks ruling in an advisory capacity, expanding the judicial branch’s powers.

“That would set them down a path of issuing advisory opinions, giving advice as opposed to resolving people’s disputes,” he said. “It’s a bad path.”

Westboro increased its anti-Jewish profile about a year ago, picketing outside federations and synagogues, drawing publicity in the process. The anti-Semitic rhetoric in its published materials dates back at least to the 1990s, when the church compared its own tribulations to the persecution of Jews in the Holocaust.

In 2004, writing about Gen. Wesley Clark’s decision to drop out of the Democratic primaries and endorse John Kerry, a Westboro church statement said, “His Christ-rejecting, God-hating Jew blood bubbled to the surface. Yes, like his boss Kerry, Clark is a Jew.”

Clark and Kerry had fathers whose Jewishness was revealed to them only in adulthood.

Freeman said it was clear for a long time that the ADL would be presented eventually with a dilemma about whether to defend virulent anti-Semites and homophobes. In recent years, the ADL has condemned the explosion of hate speech on the Internet but maintained that it is constitutionally protected.

“This isn’t the right case to address this thorny issue,” Freeman said. “We’ve been reporting on Westboro for a long time — by the same token we have a long tradition of defending First Amendment rights.”

Stern, who left the American Jewish Congress and joined the AJCommittee after the decision was made not to file a brief in the case, said the Supreme Court ruling could have broader — and worrisome — repercussions should the court uphold the ruling for the Snyders, who sued the church both for violation of privacy and defamation.

Should the court rule solely on the issue of privacy, the free speech ramifications would be minimal. However, should it emulate foreign courts that have banned certain forms of hate speech, it would amount to a major change in interpretation of the First Amendment.

Stern noted the appeal of such a ruling to otherwise incompatible bedfellows: conservatives who are repulsed by the Westboro church’s targeting of the bereaved, and leftists who in recent years have held that hate language is an instrument of oppression, citing laws in countries such as France, Germany and Israel.

“There are strong free speech arguments for the church,” Stern said. “If the court rules that certain kinds of speech are not protected at all or of such little utility as to deserve protection, that would be a really radical change in American law.”

JTA

 
 
 
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