Just before Christmas, the Fourth Circuit Court of Appeals rejected a claim that Arlington County Virginia violated the Establishment Clause when it worked with a church to develop a building that contained both a church and affordable housing. A link to the court’s opinion in Glassman v. Arlington County can be found here.

First Baptist Church of Clarendon, Virginia had a problem – it needed a new church building and it wanted to provide affordable housing for people in an urban area of Arlington County. The church agreed to raze its existing place of worship, and in its place erect a building that contained church facilities on the first two floors, and apartments on the upper eight floors. The church financed the construction of its portion of the building, and Arlington County and the federal government financed the construction of the apartments. This was a win-win situation for everyone except for a local resident who opposed the project, Peter Glassman.

Mr. Glassman argued that the government cannot work with a church – even if they have mutual goals.  And he was particularly concerned that the church and the apartment residents would both share the same lobby and elevator.  Even worse, the tenants of the affordable housing would actually be exposed to a church steeple!

The Court of Appeals rejected all these arguments out of hand. Citing well-established Supreme Court precedent (Agostini v. Felton), it properly observed that the Establishment Clause “does not prohibit all interaction between church and state. To the contrary, interaction between church and state is inevitable, and we have always tolerated some level of involvement between the two.”

The court concluded that this was a “legitimate joint effort of the Church and the County to bring about the development of a real estate project, in which the Church funds construction of the portions to be used for sectarian purposes and the County funds construction of the portions to be used for the secular purpose of providing affordable housing.”

The Establishment Clause was meant to prohibit the government from establishing a church as the state religion, not keep churches from working with the government to help provide people with affordable housing.

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The Christmas season is always a busy time for churches with opportunities for presenting the Gospel to folks who may only attend church on holidays, and challenges like attempting to keep 50 pre-schoolers from falling off the stage during the annual play.  The spike in attendance many churches experience sometimes necessitates renting school auditoriums or other public facilities to handle special programs like the Christmas play.  And some churches even get permission to erect Christmas displays in public parks.

Unfortunately, there are some groups that view Christmas time as the right time to attack religion by misusing the First Amendment to restrict religious speech.  They use the Establishment Clause – originally meant to protect the Church from control by the State – as an Anti-Christmas Clause.

The good news is courts have held that churches have every right to use public facilities and parks that are generally open to the public.  We’ve summarized the law governing equal access for churches in a document titled “Equal Access FAQ” on our resource page. That law is very clear: churches get the same access to government facilities to express their message as other community groups.  They cannot be denied equal access just because their message is religious.

For instance, in the 1993 case,  Kreisner v. City of San Diego, the U.S. Court of Appeals for the Ninth Circuit held that a private group could erect a Christmas display in San Diego’s famous Balboa Park.  The group (called the Christmas Committee) had been obtaining an annual permit for the display every November and December since 1953.  The display depicted eight scenes from the life of Christ – most of which centered around His birth.  Each scene was accompanied by an appropriate passage of Scripture.

Thankfully, the court got it right and confirmed that the Establishment Clause isn’t a license to attack public observance of Christmas – even if it is religious.  Churches should not be intimidated by anti-Christian groups and ignorant government officials who think religious speakers don’t have the same right to access government facilities as everyone else.  They should contact us at ADF, and we’ll make sure all involved are aware of what the law really says, and go to court to enforce the Church’s rights, if necessary.

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Thank God we’re not as far gone as North Korea, but we’re definitely headed that direction. Christianity Today reports that government officials raided a Christian church service and either executed or jailed all 23 in attendance. The report observes:

Being a Christian in North Korea is considered one of the worst crimes by the oppressive government. All citizens are forced to adhere to a personality cult revolving around the worship of the current dictator and his deceased father.  No other religious beliefs are allowed in the country.

As exemplified by North Korea, the alternative to religious freedom is totalitarianism and worship of the state. If God is taken away, people will attempt to find meaning in life by worshiping something. Professor Esbeck correctly points out in his treatise on the Establishment Clause that religious freedom and “theism work [ ] to the benefit of democracy and the state” through, providing meaning to life apart from the State, limiting government (thus avoiding totalitarianism), and teaching morality.

We’re still a long way off, but make no mistake, recent attacks on religious freedom here in the U.S. open the door for unlimited government, and eventual persecution of the Church. North Korea is a great example of what we’re fighting to avoid.

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On April 15, 2010, United States District Court Judge Barbara Crabb, for the Western District of Wisconsin, struck down the National Day of Prayer statute, 36 U.S.C. § 119. This opinion usurped hundreds of years of American history and tradition and must be overturned. It was on November 26, 1789, that George Washington issued the first Thanksgiving Day prayer proclamation, calling this nation to a day of prayer and giving thanks. But if this decision is not overturned, future prayer proclamations like our first president’s will be jeopardized. Be assured, though, that the Alliance Defense Fund is prepared to devote its resources and manpower to protecting our American heritage and religious freedom.

In striking down the statute, the court ruled it serves no secular purpose, but rather calls the nation to engage in a religious exercise – prayer. The court also ruled that the NDP statute violated the endorsement test because a reasonable observer, upon reviewing the statute, would conclude that the government endorses religion. And according to this court, even the endorsement of religion generally is a violation of the establishment clause. The court concluded, “[b]ecause the National Day of Prayer does not have a secular purpose or effect, it cannot survive scrutiny under Lemon and the endorsement test.”
We at the Alliance Defense Fund believe this court’s decision will be overturned as the Supreme Court has already upheld the very similar practice of legislative prayer. In Marsh v. Chambers, 463 U.S. 783 (1983), the Supreme Court upheld the practice of opening a legislative session with prayer because it dates back to the founding fathers.

But the Wisconsin federal judge ruled that Marsh is a limited opinion that should not be applied in this case. The court stated that while the NDP statute encourages national prayer, the legislative prayers in Marsh were just examples of ceremonial deism. In addition, the court said that just because prayer proclamations have been going on since our nation’s inception, that does not make the practice right.

The good news is that the court’s ruling specifically does not apply to the 2010 National Day of Prayer, or to any other future National Days of Prayer until this case has been fully appealed, which could include an appeal to the United States Supreme Court. We will continue to fight in this case through all appeals to protect our religious heritage. It is vitally important that decisions like this attempt to minimize America’s religious historical roots are not allowed to stand.

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On April 15, United States District Court Judge Barbara Crabb, for the Western District of Wisconsin, struck down the National Day of Prayer statute, 36 U.S.C. § 119, claiming that it violated the Establishment Clause. 

Did this statute require people to join a church?  Did it force people to pay tithe to the Southern Baptist Convention?  No.  This statute did not even force people to sing all four stanzas of Amazing Grace. 

So how is it that this statute was found to violate our First Amendment’s prohibition against the establishment of a national religion?  Here is the exact wording of the statute:

The President shall issue each year a proclamation designating the first Thursday in May as a National Day of Prayer on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals.

All that this statute does is set aside a day each year for those that want to, to gather in prayer.  This is hardly the religious persecution our founding fathers faced when they fled England.  No one is forced to pray.  No one will be required to attend church or take communion in order to be a citizen. 

This statute is simply a reflection of our history and our heritage.  It is fast becoming a national secret, but America has a religious heritage.  We have a religious history.  As Supreme Court Justice William Douglas said, “We are a religious people whose institutions presuppose a Supreme Being.”

From George Washington to today, Presidents have issued proclamations asking for national prayer.  In 1789, both the House and the Senate passed resolutions asking President Washington to issue an exhortation to the nation to pray and be thankful.   This tradition has been carried on by the many different presidents, has sustained us through national crises, and has continued till today.

But our nation’s history was of little concern here.  The opinion stated, ““[I]f history is controlling, it would require the Supreme Court to overrule much of its establishment clause jurisprudence of the last 50 years.”

Finally, we get a concession from a federal judge that the last fifty years of jurisprudence has been slightly off the mark from our nation’s history!  But in the end, the court struck down the statute because it was a promotion of religion in general.

Luckily for this nation, the court stayed its ruling until all appeals have been exhausted.  Most likely, the Supreme Court will have the last say on whether our history will be re-written.  And we at the Alliance Defense Fund will be employing every legal strategy to make sure our history, our heritage, is not so easily discarded.

Let President Obama know that the National Day of Prayer is important to you and to our country.  Encourage him to instruct the Justice Department to appeal this decision.

Sign the petition for President Obama

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