Blog post by ADF Senior VP; Senior Counsel Gary McCaleb

At the wind-whispered south rim of the Grand Canyon, three small plaques silently praise the Creator of that stunning abyss.  “O Lord, how manifold are thy works!  In wisdom hast Thou made them all; the earth is full of thy riches” (Ps. 104:24), reads one.

Seems rather apt, one would think—and a bit ironic, for the visitor who gazes past the scripture plaques will spot such geographic features as the temples of Isis, Horus, Shiva, Zoroaster, Brahma, Krishna, Buddha, and others.  Seems the early-day map-makers had a field day with grand names from eastern religions. And none of this should really surprise any American—we have a long, rich cultural tradition of describing awe-inspiring landscapes in religious terms

But alas, where religion goes, censors soon follow—and so it was in 2003 that an ACLU paralegal shot an email to the Grand Canyon National Park superintendent, noting reports of the plaques and asking “why they were there.”  One would think that the supervisor would say, “because they reflect how we humans understand our environment” and perhaps invite the ACLU to take a hike (in the Canyon, that is).  But then a leftist group with the lovely acronym of PEER (Public Employees for Environmental Responsibility) weighed in, and down came the plaques in a hurry.

Fortunately, the superintendent did one thing right by returning the plaques to those who had put them there some 33 years before—the Evangelical Sisterhood of Mary, a group of Protestant nuns who maintain a tranquil, strikingly beautiful prayer garden in north Phoenix.  They seem quaint, quiet, and devoted to Christ.  The casual observer would think that, faced with the might of the U.S. Government, they would quail and quit the fight.

One would be wrong, though, for the Sisters have a bit of a history of dealing with despots; a history that begins with the attacks of September 11.  But not the infamous day which has dominated our last decade.  Rather, it was September 11, 1944 that marks their beginning—in a quiet university town virtually devoid of heavy industry called Darmstadt, Germany.  On that night 240 British bombers used Darmstadt as a “beta test” for the subsequent horrific firebombing of Dresden.  Over twelve thousand Germans—mostly civilians—died in that eighteen-minute air raid.  Twelve thousand, dead.

But some survived, including a handful of young Christian women who had met for some years to study the Bible—women who through the preceding decade had aligned with the “Confessing Church,” a Christian movement which rejected Nazi efforts to suborn Christianity to serve evil.  Simply put, the Confessing Church was one of the few moral bright spots in the early Nazi era, where Christians risked (and some lost) their lives by opposing Hitler.

Horrified by the bombing, and led by their teacher, Basilea Schlink, these women founded the Evangelical Sisterhood of Mary as a ministry of prayer, repentance, and reconciliation for the sins of Nazi Germany.  By 1949, the order amounted to two dozen sisters and a chapel constructed from materials scavenged from burned-out Nazi barracks.  Yet they persevered, laboring in a world decimated by global conflict, overflowing with refugees, and already threatened by the emerging cold war.  As time passed, their message of peace and charity spread from Germany to many nations. Eventually they even established a guest house in Jerusalem where the Sisters host Holocaust survivors, seeking to sooth the unspeakable wounds visited upon the Jews by the Germans.

Today the Sisters model sustainable community as a religious order; open their chapels and prayer gardens to the surrounding communities; practice acts of charity and hospitality; and engaging in communal acts of repentance and reconciliation.  And they place scripture plaques where natural beauty abounds.

The plaque project began in 1960, when Mother Basilea visited Bavaria’s Obersalzberg, noted for its striking mountain scenery—but known also for Hitler’s “Eagle’s Nest” redoubt and retreat.  Spiritually moved as she contemplated the scenery so colored by its recent history of horror, she resolved to honor the Creator by placing “praise plaques” throughout the world.

The idea took root. Today there are approximately 1000 plaques in Germany, 450 in Switzerland, 300 in Austria, 22 in Israel, and smaller numbers in, America, Angola, Australia, Brazil, Canada, Denmark, England, Finland France, Ghana, Greece, Holland, India, Indonesia, Italy, Japan, Jordan, Korea, Norway, Sweden, Singapore, Tanzania, and Uruguay.

So what of the plaques pulled from the Grand Canyon? Well, they are still there. Seems the Sisters knew ADF President Alan Sears from his visits to the prayer garden, and they knew who to call for legal help.  Once ADF, international media, and intercessory prayer came into play, the plaques were reinstalled posthaste.  And so they remained, until PEER, perhaps bored with hawking “undercover activist” boxer shorts  to raise money, awoke from an eight-year nap on the issue and began banging the media drums again.

So here we are again, with U.S. Government officials wondering what to do.  And again, ADF is happy to help them make the decision, dropping a letter to the government lawyers to explain why America should not be the first nation to censor the Sisters’ plaques.  And again, we will be in prayer—and we hope you will join us—as we deploy our faith and legal expertise to stand with our Sisters in their relentless pursuit of peace and praise!

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My colleague David Cortman posted a blog about the recent Supreme Court victory in ACSTO v. Winn.  As he points out, there are many great things to celebrate about that case.  I thought I would highlight one other positive development from that case.  For decades, we have been witnesses to an unprecedented assault on religion in the public square, aided by the Supreme Court who has allowed the ACLU and its allies to file lawsuits against anything the government does that in any way touches religion.  These case have removed prayer, Bible reading, and the Ten Commandments from schools, removed the Ten Commandments from courthouses across the nation, struck down prayer at school football games, prohibited religious involvement in government programs, invalidated aid to certain private schools simply because they might be religious, held unconstitutional scholarships that may be used for religious education, and the list goes on and on.  Suffice it to say that religion in the public square has taken quite a beating in the last several decades thanks to the ACLU and its allies.

The ACLU has gotten away with this because the Supreme Court has relaxed the “standing” rules to bring lawsuits under the Establishment Clause.  Put simply, a person must normally prove they are specifically and uniquely injured in some way in order to seek redress from the courts.  If a person only suffers an injury that is shared by all of society, then they are not suffering a particular injury that the court can remedy.  As an example, normally a person cannot sue the government and claim that the taxes he or she pays are being used inappropriately. The courts recognize that such a claim of harm is speculative and that the proper remedy for that claim lies in the legislature, not the courts.

Yet the Supreme Court created a broad and expansive standing doctrine under the Establishment Clause that allowed for the ACLU and its allies to essentially roam the country and file lawsuits against anything they saw that offended them.  That’s why today we see lawsuits like those in Colorado and Wisconsin that challenge even our ability to engage in a National Day of Prayer.  It’s why the ACLU felt it could challenge Arizona’s school choice law.

The Supreme Court, though, in the ACSTO case seems to be saying that it has had enough of these kinds of frivolous and speculative lawsuits.  The ACLU and its allies in ACSTO were arguing that they were injured by the school choice program simply because some people in Arizona might choose to give money to a school tuition organization who would then possibly decide to give a scholarship to a student that might be used at a religious school; and then the people who originally gave the money might choose to avail themselves of a tax credit offered by the State of Arizona and, the people represented by the ACLU might have to pay more money in taxes as a result.  What a twisted, convoluted, and speculative logic!  But the Supreme Court thankfully saw just how twisted this line of reasoning was and held that there was no injury here and the ACLU and its allies had no standing to challenge the school choice law.

This was a positive development in the law.  Indeed, if we could step back and look at a possible developing trend, we would see that the Supreme Court seems to be cutting back on the ability of the ACLU and its allies to have standing to bring challenges under the Establishment Clause.  Just last year the Court decided a case called Hein v. Freedom From Religion Foundation where it held that the Freedom From Religion Foundation did not have standing to challenge expenditures by the Executive Branch of government that touch on religion.  The ACSTO case is another step in the right direction of limiting the ability of the ACLU and its allies to roam the country in search of what they perceive to be Establishment Clause violations and then file a lawsuit to have those invalidated.

The Supreme Court still has a long way to go to restore sanity to this area of the law.  For example, another way the Court has expanded the standing doctrine under the Establishment Clause is to allow people “offended observer” standing.  This allows groups like the ACLU to sue over Ten Commandment displays and the National Day of Prayer simply because they have to come into unwelcome contact with something that offends their religious (or agnostic) sensibilities.  The Court should do away with this doctrine like it seems to be doing away with taxpayer standing under the Establishment Clause.  ACSTO was a step in the right direction.  Let’s pray that the Supreme Court continues this trend of undoing the great damage caused in the courts by the ACLU and its allies.

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To read David Cortman’s blog about the ACSTO v. Winn ruling, click here.

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Earlier today (April 4^th), the Supreme Court of the United States handed down an extremely important decision in ADF’s case, ACSTO v Winn.  Although the Court doesn’t always get it right, at least in my opinion, it certainly did in this case.  And it’s not simply because it was an ADF case.  It was because of the important issues that were at stake; such as, whether the ACLU or its clients can even bring a lawsuit over someone else’s donations (like your tithes) to non-profit groups (like your church), whether those donations violate the so-called separation of church and state simply because some of them go to religious groups, or the underlying issue of whether all of our money belongs to the government and only by its “grace” does it not tax it all.  And even though these issues came to the Court wrapped in the context of school choice, which is an important issue itself, these are tremendously important issues in all contexts.

For those of you not familiar with the case, the case centers around an ACLU challenge to an Arizona school choice program, brought on behalf of a few taxpayers who were offended by the fact that private religious schools–along with all secular schools–were permitted to participate in the program.  The state of Arizona is one of the nation’s leaders when it comes to school choice.  Educational options currently include traditional public schools, charter schools, virtual or on-line schools, free out of district schools, home schools, and private schools.  As part of these choices, the legislature enacted a law allowing donations to be made directly to public schools, and indirectly to private schools through non-profit 501(c)(3) organizations (called STOs or School Tuition Organizations).  Anyone can set up an STO.  Any STO can support any group of schools.  Any citizen can make a donation to any STO.  And any taxpayer may take a state tax credit up to a certain limit for the donation.

Sounds like a good plan, so what was the problem?  In my opinion there were at least two fundamental problems that the ACLU had with this program. The first is that the ACLU doesn’t like that religious groups get to participate in government programs–even on a neutral basis.  The second is that the ACLU is no friend of school choice.

As to the first problem, the ACLU claims that the program is not “neutral” because more donations are sent to religious schools.  This, they claim, skews the choices of parents toward sending their kids to religious schools.  And this allegedly violates the Establishment Clause because the government is the one that is supposedly favoring religious schools by enacting the tax credit.  Got that?  If it sounds convoluted and seems like tortured logic that is because it is.  There are so many obvious flaws in this argument that it is almost difficult to know where to begin.  But I said “almost,” so here I go.  As to neutrality, the constitution requires that the government program be neutral, not the choices of Americans in utilizing that program.  Even so, the program allows anyone to donate to any public school directly, or to any private school through an 501(c)(3) STO.  Anyone can set up an STO, and that STO can support any group of schools.  Sounds neutral to me.   What about more money going to religious STOs and schools?  A few responses.  Most logically (and supported by simple math), there are more religious private schools than non-religious ones (religious groups tend to be the ones who open private schools).  Hence, the part about more money going to religious schools.  And not a dime can go to a religious school unless a parent chooses for his child to attend that school and apply for a scholarship.  And isn’t this program supposed to be about parental choice in education?  At least I thought it was.  A bit more math.  Even though there are more private religious schools, as a matter of percentages there is more money going to private secular schools than religious ones.

And then there’s the whole “this is the government’s money” argument that the ACLU makes.  Talk about far-reaching and dangerous.  The ACLU argues that because a tax credit is given by the government for the donation, the money is really the government’s to begin with (even at oral argument before the Court, several Justices recognized that this was the essence of the ACLU’s claims).  Let’s analyze that claim for a minute.  So, if you donate to your church or other charitable organization and take a charitable contribution deduction on your tax return, does that mean that the money you donated was really the government’s and not your own?  Because as a constitutional matter, there is no difference between 30 cents on a dollar tax forgiveness for a charitable deduction (depending on your tax bracket) and a 100 cents on a dollar tax forgiveness for the tax credit.  Let’s look at where the ACLU’s logic extends.  If every dollar that the government chooses NOT to collect from us in taxes is really the government’s money, where does that stop (or start)?  To put it plain and simple, it is a communistic/ socialistic theory in its purest form.  According to the ACLU, it all belongs to the government—even the portion that they allow us to keep.  Talk about elevating the government to a god-like status.  But providentially, the Court rightly dismissed that argument by stating, “When Arizona taxpayers choose to contribute to STO’s, they spend their own money, not money the State has collected from respondents or from other taxpayers…. Private bank accounts cannot be equated with the Arizona State Treasury.”

And quickly to that whole school choice issue.  The ACLU is obviously a leftist organization, and those on the far left don’t like parents to be able to choose where their own children go to school.  These leftist groups, also including the powerful NEA (National Education Association)–which filed a brief in the case supporting the ACLU–enjoy a stranglehold on our public schools.  They control billions of dollars (including forced union dues–yes, it’s that whole union thing again) and thereby have financial control of the educational system.  And they get to impose what is taught to our children, much of which is far-left ideology.  And how are these groups doing running our schools?  Let’s see, nearly a 30% high school dropout rate, a U.S. ranking of 25^th out of 30 nations in math scores, and a staggering amount of crime in public schools.  A failing grade by any standard.  But Arizona’s program, like so many others around the country, is trying to change that by empowering parents to have more realistic options of where to educate their children.  And that threatens the left’s control, which they will obviously oppose at any cost.

But the Supreme Court saw through all of that rhetoric and held that the ACLU’s clients have no right to come to court in the first place because they have no legal standing.  In simple terms, they have no injury to complain of.  The Court agreed with ADF’s argument that the money donated is private money—not the government’s—and that someone else’s donation creates no legal injury to ACLU’s clients.  The Court wisely rejected the ACLU’s–and their allies’–extreme arguments.  And which groups filed briefs in the case in support of the ACLU?  Looks like a veritable cornucopia of groups on the far left:  National Education Association, Americans United for Separation of Church and State, American Jewish Committee, The Anti-Defamation League, American Humanist Association, Atheist Alliance International, Council for Secular Humanism, Freedom from Religion Foundation, Institute for Humanist Studies, Secular Coalition for America, Secular Student Alliance, and Unitarian Universalist Association.

So while the Court had no need to reach the question about whether the program was consistent with the Establishment Clause, which ADF believes it was, it nevertheless issued an extremely important ruling that protects school choice programs, parental rights, and charitable giving, while at the same time limiting the ability of the ACLU and its cronies to complain about such programs.  But when the next case comes up where the ACLU again challenges a school choice program, and it certainly will—ADF and its allies will be there once again to fight on behalf of our families and our children’s educational future.

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To learn more about how ADF defends Religious Freedom in Education, visit the ADF Public Schools page.

ADF Senior Counsel David Cortman writes:

Let me first state a few lawyerly disclaimers:  I am not a scientist, nor an expert on evolution.  But I was taught in my public school education many years ago that evolution was a scientific theory.  And to my understanding, that remains true today.  So aren’t theories supposed to be tested, critiqued, and examined until they are either proven to be scientific fact (or disproven)?  Why then is the ACLU of Tennessee strongly opposing a proposed bill from that state that would allow critical thinking of evolution?  Now there’s a loaded question.

You see, ACLU’s answer is that the bill is really a guise to teach the “c” word.  Don’t say it.  Because according to the ACLU, even mentioning “creationism” or “intelligent design” is illegal in public schools.  And in this case, even not mentioning it is still illegal since the bill only calls for critiquing evolution, not teaching creation science.  All of this supposedly violates, you guessed it, the same old, same old, so-called “separation of church and state.”  Regardless, if evolution and creation science/I.D. are theories (and the ACLU would not only argue that creation science is a theory, they would argue that it is flat out untrue), what is the harm in critiquing or exploring them both?  Isn’t the ACLU a “free speech” organization open to discovering the truth no matter what the cost? Ah, but therein lies the rub.

“Truth” is not the ultimate goal.  And religion is not really the issue, at least not in the sense that the ACLU claims.  What is at issue is the vehement opposition leveled against anyone daring to question their belief system, their “god,” if you will.  And don’t be fooled; it is a belief system.  Some may choose to believe that this wonderful Earth of ours was created, excuse me, formed randomly out of a big bang, and life sprung forth from no life (tough to scientifically repeat that) and that we evolved from primordial slime, all the way to apes, and then (finally?) to our current human form (I am curious to know what we will evolve into next—unless of course, evolution is done evolving).  But, personally, I find it more plausible to believe in a Creator who purposely formed us in His own image.  And whichever “theory” is true, true science will back it up.  Proponents of either theory should not fear critique.  For if God created the heavens and the earth and all that is in them, He created science too.  And if He didn’t, what does the left have to fear from critical analysis?  After all, isn’t that what our public schools are supposed to be teaching our kids?

Ironically, the ACLU claims that those of us who believe in creation science (currently more than 100 million Americans according to a recent Gallup Poll) are close-minded, religious zealots who are unable to engage in critical thinking.  All we are concerned about, so the story goes, is instituting a theocracy where we leave our brains at home (or maybe better stated, at church), and encourage others to do the same.  Well I, for one, am getting a bit tired of this type of ad-hominem attack.  IF evolution is true, then what exactly is the ACLU (and their allies on the left) so afraid of?  Christians certainly face criticism to their belief system on a daily basis.  And if the ACLU believes that the Bible can be proven untrue scientifically, go for it.  You see, most of us are not only accustomed to having our faith questioned, but expect it as part of critical thinking.  I certainly would like to think that there is a place in heaven for the “smarter” folks, along with the rest of us.  But at the same time, why is it that you can’t criticize evolution or point out its weaknesses?  Think about that with an open mind.

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ADF Senior Counsel Brett Harvey writes:

Gazing across the street at Independence Hall in Philadelphia, I was struck by the irony.  It was an overcast January day as the city was digging out from a snow storm.  To quickly glance at the clock tower of this landmark was to see the spire shining brightly against a pale blue sky.  However, upon closer inspection the illusion was revealed.  I wasn’t looking at the building at all; rather I was staring at an image of the building printed on a tarp used to cover the scaffolding that surrounded the clock tower.  Independence Hall was being “updated” behind the facade.

Where is the irony?  It was ironic because I was in Philadelphia to witness an attempt to “update” another American icon, the U.S. Constitution.   Ironic because across the street, between the National Constitution Center and Independence Hall sits the federal courthouse where the 3^rd Circuit Court of Appeals heard oral arguments about the constitutionality of opening a public meeting with a prayer.  Ironic that such a challenge would be heard within earshot of the Liberty Bell.

 It was on September 7, 1774, in Philadelphia that the First Continental Congress opened with a prayer delivered by the Rev. Jacob Duché.  Not even two years later the Continental Congress stepped out of Independence Hall and declared that we citizens have inalienable rights endowed by our Creator.  Ironic that the first congress, in 1789, finalized the language of the First Amendment just three days after they authorized the appointment of paid chaplains to deliver prayers before each session of congress, and now the court is deciding whether that same First Amendment prevents a school board from opening its meeting with a prayer.

The irony would be amusing if the consequences were not so grave.  Unfortunately, this is not an isolated incident.  Right now, three of the eleven Federal Circuit Courts of Appeals, have pending challenges to the historic American tradition of opening public meetings in prayer.  The next 12 to 18 months may well shape the future of public invocations.

In 1983 the U.S. Supreme Court pointed to the history of this nation and ruled that prayers given before the Nebraska Legislature were entirely constitutional, even though the state had paid the same chaplain to make expressly Christian prayers for more than a decade.  It is the only time the Supreme Court has directly considered the validity of prayer before public meetings.  If all three appellate courts allow invocations to be given consistent with the dictates of the prayer giver’s conscience, this historic tradition will be safe – for now.  But if the courts split or decide that the government needs to dictate the content of prayer, this legal issue will be ripe for review once again by the Supreme Court.

The most recent federal appellate court to take up the issue did so in 2008.  In that case, the 11^th Circuit determined that prayer givers were free to pray as their conscience leads them.  However, if the secularists who brought suit in the 2^nd and 4^th Circuits get their way, the government will be forced to censor invocations and dictate what constitutes an acceptable prayer.  Ironically, if the courts come to that conclusion, local governmental bodies will not even be permitted to recite the prayer uttered by Rev. Duché at the First Continental Congress because it will be considered “too Christian” and, therefore, unconstitutional.  If the atheists succeed in the 3^rd Circuit, the school board will be forced to abandoned the time honored tradition altogether.

  Despite clear historical and legal precedent, the legal fight continues.  Recently states, counties, and towns across the U.S. have received letters from activists groups like the ACLU and Freedom from Religion Foundation demanding that invocations before public meetings be stopped or censored.  This campaign of fear and intimidation has made an impact.  In January the Senate for the State of Hawaii abandoned public invocations after being intimidated with the threat of a lawsuit.  The Senate correctly reasoned that they shouldn’t try to control how people pray.  However, they then took a wrong turn and concluded the only way to protect the speech rights of invocation speakers was to silence them.

 The arguments and demands in activists’ letters are like the image draped on the scaffolding of Independence Hall.  At first blush, their arguments appear to be constitutional, but a closer inspection reveals they are a mere facade, intent on hiding the work being done to reshape an American icon.  Beware!  They are not simply restructuring a historical artifact made of brick and mortar; they are attacking the very foundation upon which this country was founded.

As I left the courthouse that day, I walked past the image of Independence Hall and stopped for a moment before a statue commemorating religious liberty.  Hopefully, the memorial is not simply a reference to a former day, but a reminder of how important religious liberty is and why we need to be ever vigilant against those opposing forces that would destroy it.

• - Know the history of the Constitution so you will not be fooled by a facade that simply resembles this foundational document. 

• - Be alert!  If a government body in your area is challenged to censor prayer or abandon the practice of opening public meetings with prayer, call the Alliance Defense Fund at 1-800-TELL-ADF or fill out the online legal request form.

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