american atheist magazine dec 1986

8/9/2019 American Atheist Magazine Dec 1986

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December 1986 A Journal of Atheist News and Thought

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AMERICAN ATHEISTS

is a non-profit, non-political, educational organization dedicated to the complete and absolute separation of state

and church. We accept the explanation ofThomas Jefferson that the First Amendment to the Constitution of the

United States was meant to create a wall of separation between state and church.

American Atheists is organized to stimulate and promote freedom of thought and inquiry concerning religious

beliefs, creeds, dogmas, tenets, rituals, and practices;

to collect and disseminate information, data, and literature on all religions and promote a more thorough

understanding of them, their origins, and their histories;

to advocate, labor for, and promote in alllawfulways the complete and absolute separation ofstate and church;

to advocate, labor for, and promote inalllawfulways the establishment and maintenance ofa thoroughly secular

system of education available to all;

to encourage the development and public acceptance of a human ethical system stressing the mutual sympathy,

understanding, and interdependence of all people and the corresponding responsibility of each individual in

relation to society;

to develop and propagate a social philosophy in which man is the central figure, who alone must be the source of

strength, progress, and ideals for the well-being and happiness of humanity;

to promote the study of the arts and sciences and of all problems affecting the maintenance, perpetuation, and

enrichment of human (and other) life;

to engage in such social, educational, legal, and cultural activity as willbe useful and beneficial to members of

American Atheists and to society as a whole.

;

Atheism may be defined as the mental attitude which unreservedly accepts the supremacy of reason and aims at

establishing a life-styleand ethical outlook verifiable by experience and the scientific method, independent of all

arbitrary assumptions of authority and creeds.

Materialism declares that the cosmos is devoid of immanent conscious purpose; that it is governed by its own

inherent, immutable, and impersonal laws; that there is no supernatural interference in human life; that man -

findinghis resources within himself - can and must create his own destiny. Materialism restores to man his dignity

and his intellectual integrity. It teaches that we must prize our lifeon earth and strive always to improve it. It holds

that man is capable of creating a social system based on reason and justice. Materialism's faith is in man and

man's ability to transform the world culture by his own efforts. This is a commitment which is in its very essence

life-asserting. It considers the struggle for progress as a moral obligation and impossible without noble ideas that

inspire man to bold, creative works. Materialism holds that humankind's potential for good and for an outreach to

more fulfillingcultural development is, for all practical purposes, unlimited.

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American Atheists - P.O. Box 2117 - Austin, TX 78768-2117


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December 1986

Vol 28, No. 12

m e r i c n t h e i s t

Journal of Atheist News and Thought

Editor's Desk

R. Murray-O'Hair

Director's Briefcase

Jon G. Murray

Could creche decisions make the U.S. a

constitutional theocracy? Our 'In-

spired' Founding hazards an answer.

News and Comments

Greeneville, Tennessee - Center of

the Universe - The complete text of

the Greeneville textbook decision ap-

pears with some intriguing comments.

Satan Claus

Christine A. Lehman

A short story mixes a Fundamentalist

mother, her daughter, and an unortho-

dox neighbor.

Mormonville: Life in a Theocracy

Fred Woodworth

How does a once-persecuted religious

minority behave when itisin control ofa

town? Unpleasantly, indeed,

Religion and the Schools

Daniel E. Anderson

A professor gives his. views on the

spread of theism in the Classroom.

Blasphemy (Part III)

C. B.Reynolds was found guiltyof abus-

ing free speech by encouraging free

thought - just one hundred years ago.

2 The Probing Mind

Frank R. Zindler

A Nativity Potpourri will leave a dis-

tinct odor in the minds of Christians.

3

34

36

37

39

40

44

45

46

ARE YOU MOVING?

Please notify us six weeks in advance to ensure uninterrupted delivery. Send us both your old and new addresses.

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3

Report from India

Margaret Bhatty

Is Time Running Out in Punjab for

peace between Sikh and Hindu?

7

Historical Notes

6

American Atheist Radio Series

Madalyn O'Hair

The Solstice Season is must reading

to prepare for your upcoming festivities.

Poetry

18

Press Conference

Brian Lynch

The Management of Information de-

bunks the liberal press myth.

Book Review

A look at

Evangelical Terrorism.

2

Me Too

Letters to the Editor

23

Our cover is the Existential Christmas Card

by

Theodore Ziegler, a St. Catharines, Ontario, artist.

It is from the collection of Martin Edmunds.

Name

Mail to: American Atheists

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December 1986 Page 1


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m e r i c n t h e i s t

Editor/R. Murray-O'Hair

Editor Emeritus/Dr. Madalyn O'Hair

Managing Editor/don G. Murray

Assistant Editor/Gerald Tholen

Poetry/Angeline Bennett, Gerald Tholen

Non-Resident Staff/Burnham P. Beckwith,

Margaret Bhatty, Nawal El Saadawi, Merrill

Holste, Lowell Newby, Fred Woodworth, Frank

R. Zindler

Production Staff/Laura Lee Cole, Christina Dit-

ter' Shantha Elluru, Keith Hailey, Brian J. Lynch,

Jim Mills, John Ragland, Virginia Schlesinger,

George Thomas

Officers of the Society of Separationists, Inc.

President/Jon

G. Murray

President Emeritus/Dr. Madalyn O'Hair

Vice-President/Gerald Tholen

Secretary/R. Murray-O'Hair

Treasurer/Brian J. Lynch

Chairman of the Board/Dr. Madalyn O'Hair

Members of the

Board/Jon

G. Murray (Vice

Chairman), August Berkshire, Herman Harris,

EllenJohnson, Scott Kerns, John Massen, Robin

Murray-O'Hair, Shirley Nelson, Richard C.

O'Hair, Henry Schmuck, Noel Scott, Gerald

Tholen, Lloyd Thoren, Frank Zindler.

Officers and Directors may be reached at P.O.

Box 2117, Austin, TX 78768.

Honorary Members of the Board/Merrill

Holste, John Marthaler

The American

Atheist

is published monthly by

American Atheist Press, an affiliate of Society of

Separationists, Inc., d/b/a American Atheists,

2210Hancock Dr., Austin, TX 78756-2596,a non-

profit, non-political, educational organization ded-

icated to the complete and absolute separation of

state and church. (Non-profit under IRS Code

501(c)(3).)

Copyright 1986by Society ofSeparationists, Inc.

All rights reserved. Reproduction in whole or in

part without written permission is prohibited.

ISSN: 0332-4310.Mailingaddress: P.O. Box 2117,

Austin, TX 78768-2117. .

The American Atheist isindexed inIBZ (l~terna-

tional Bibliography of Periodical Literature,

Os-

nabruck, Germany).

Manuscripts submitted must be typed, double-

spaced, and accompanied by a stamped, self-

addressed envelope. A copy ofAmerican Atheist

Writers' Guidelines isavailable upon request. The

editors assume no responsibility for unsolicited

manuscripts.

The American Atheist Press publishes a variety of

Atheist, agnostic, and freethought material. A

catalog is available free upon request.

The American Atheist isgiven free ofcost

to members of American Atheists as an

incident oftheir membership. For a sched- .

ule of membership rates, please see the

inside front cover. Subscriptions for the

American Atheist alone are $25 a year for

one-year terms only. The library and

institutional discount is 50%. Sustain-

ing subscriptions ($50 a year) are tax-

deductible.

Page 2

EDITOR'S DESK / R . M urray-O'Hair

HOT TODDIES

voyage.

Ifyou're a brand new reader of the Ameri-

can Atheist and not quite sure what all this

Solstice fuss is about, see this month's

American Atheist Radio Series for a dis-

cussion ofthe Solstice. You might also want

to glance over Ten Years Ago in the His-

torical Notes section; it has an excerpt

from our first call for an International Sol-

stice Celebration.

And if you still have a few friends and

relations stuck in the Jesus Christ myth, you

might find that Frank Zindler's A Nativity

Potpourri is the perfect gift for them.

A

fter each December - or Solstice -

issue, the American Atheist receives a

halfdozen letters from various readers con-

cerning the propriety of celebrating the Sol-

stice. To put itmore specifically, these indi-

viduals question the point of celebrating the

Solstice or any other day. Their argument is

that it is unreasonable to make a fuss over a

natural, cyclical event.

It is tempting to sympathize in part with

those arguments. Few of us completely

enjoy mandatory holidays, complete with

artificial and strained gatherings of individu-

als who either barely know one another or

barely can tolerate one another.

And there are few of us alive who deep in

their hearts have never held dark thoughts

about parties.

But here in the lap of the South it is a cold

and rainy day. After one goes home in the

dark damp and scurries indoors, it is infi-

nitely cheering to curl up under a warm wool

blanket, with a nice hot toddy in hand and

the smell of a Solstice tree reaching one's

nose as it peeks from the woolen shelter.

And how much nicer it willbe, on Solstice

day, not to brave the dismal dampness at all,

but frolic at home with a few friends. Then

surrounded by bright green and red, instead

of the cold gray of the outdoors, one may

obtain a high feeling of comfortableness. A

few familydogs lying under the old pine tree

isjust the final touch needed.

It makes one want to warm up the hot

toddy mugs, just thinking about it.

And the point of these rambling para-

graphs? Simply that we should, as Atheists,

savor life.Of course, most ofus do that. But

the deliciousness ofexistence can be intensi-

fied by occasional days of celebration. Each

day may be wonderful to those of us who

onlyliveonce. But isitnot a good idea to punc-

tuate our lives with premeditated cheer?

If you are interested in adding a few

exclamation marks to your winter, you need

to know that Winter Solstice inthe Northern

Hemisphere willbe at 11:02 P.M. E.s.T. on

December 21. (It is, of course, the Summer

Solstice for our friends inthe Southern Hemi-

sphere.) And if you're not interested in

observing the Solstice, you can always lifta

toddy inhonor of the eighteenth anniversary

of the launching of Apollo 8, the first moon

December 1986

Speaking of gifts, this is our chance to

remind you of the present that keeps giving

all year long: newspaper clippings. The

American Atheist does need, use, and want

clippings of articles from newspapers and

magazines. Much of the information which

we give to our readers comes from such

sources. All, or nearly all, of the topics dis-

cussed on the American Atheist Television

Forum have their origin inclippings received

at The Center.

Don't assume that just because an article

appeared inyour local paper that everyone

knows about it. It may not have been car-

ried by the wire service; even ifit was, there

may be portions of the story printed in your

paper and not repeated elsewhere.

This month's News and Comments

article, for instance, isaccompanied by sev-

eral sidebars giving information relevant

to the understanding of the 'Greeneville,

Tennessee, decision. The sidebars were

derived from information given in the media.

Even though the news of the decision was a

wire story, the dozen clippings which we

received so varied that inthe end we utilized

them all.

Please, though, when you send them in,

remember to attach the name of the source

and the date of publication to each clipping.

We hope that those of you not participat-

ing in what we have playfully dubbed the

American Atheist Clipping Service will

take up the habit as a Solstice gift to the

American Atheist and your fellow readers.

We, of course, thank those of you who have

helped so much in this project in the past.

So, please keep those clips and letters

coming.

American Atheist


5/52


6/52

tional religious symbols, including the nativ-

ity scene and the Menorah.

That isa brief history ofthe fight over the

creche in the Chicago City Hallthat lead up

to the filing of a lawsuit by various Jewish

community organizations. The plaintiffs'

position in their complaint was:

The erection and display ofa creche

in the City Halllobby violates the first

and fourteenth amendments of the

United States Constitution because it

is ... governmental endorsement of

religion generally, and some forms of

Christianity in particular ... and that

this action constitutes the advance-

ment of religion in general and some

forms of Christianity inparticular and

concomitant discrediting of less fa-

vored religions.

The Meese-Led Response

Enter stage left one Judge Frank J.

McGarr.

I n

his opinion which accompanied

his dismissal of the American Jewish Con-

gress, et al case, Judge McGarr put forth

some of the most ridiculous but politically

acceptable Meese-inspired interpretations

of the constitutional doctrine of separation

of state and church that I have ever read.

The basic central theme of his opinion was

an application to the particular fact situation

at hand of the soon-to-be legendary Meese

doctrine of original intent. I n between

every line was the question Would the

Founding Fathers have objected to the

creche? with the preordained negative

response. Iwillattempt here to hit the worst

examples.

Judge McGarr began byreferring back to

documents drafted prior to the Billof Rights

in which phrases exist that point to religion

as a prerequisite to good government.

This has been a favorite trick of Reagan

administration cronies who know that most

Americans are basically illiterate with regard

to their own history so that attitudes

expressed prior to the actual ratification of

our government can falsely be attributed to

have long ago established twentieth century

legalprecedent. Itis true that many colonial

documents contain quotes from the ranks of

our Founding Fathers speaking highlyfavor-

ably about religion. Consider for a moment,

however, the theologically permeated cli-

mate in which they lived. Did that climate

leave them much choice but to speak favor-

ably of religion ifthey desired to gain public

office? The givingof lipservice to religion on

the part of politicians is nothing new. The

error arises when one extrapolates from

these quotes as did Judge McGarr when he

said that They proceeded from an almost

universal belief in a supreme being and an

acceptance of the Judeo-Christian ethic

flowing from the Ten Commandments and

Page 4

the Sermon on the Mount. Our Founding

Fathers, almost to a man, were Deists and

not Christians in anything resembling a

twentieth-century context. Yes, they did

believe in a creator god (as stated in the

Declaration of Independence - Nature

and Nature's God ) but they did not share

the precepts of the Christian faith (such as

the efficacy of prayer) that was predominant

among the rank and file colonial citizenry.

They were all educated far and above the

average man of the time and had opinions

philosophical that cannot be equated with

the popular sentiments of the period. Fur-

thermore they were educated mostly in

what was called English Common Law which

has its origins inproperty rights and not any

biblical commandments. The judge here

makes a leap offaith that a study ofhistory

does not provide evidence to support.

He went on to add that in his opinion,

History makes it clear that our

founding fathers believed religious

faith was conducive to the common

good and religious groups and their

churches and temples were respected

and encouraged in a variety of ways,

all subject to the overriding concern

that the government not discriminate

in favor of or against any religion or

religious group.

This position, that our founders meant

separation of state and church not to

include separation of religion and govern-

ment, as the evangelicals often now say,

may have in fact been true at least from the

popular perception of the colonial period.

We know tnat many of the founders had

substantive personal philosophical quarrels

withthe dogma ofthe predominant churches

of their day, for many of them wrote exten-

sively on those differences. Having a per-

sonal position and being able to translate

that into legislation are, however, two very

different things. Even Reagan has not been

able to force his social, moral, amd religious

agenda through a reluctant Congress. Per-

haps in a like manner many of our first six

Deistic presidents could not turn their pri-

vate personal views as to the unsoundness

of the Christian scheme into legislation, thus

leaving historians with the impression that

they respected and/or encouraged

churches and temples. It is the Atheist posi-

tion, however, that itmakes little difference

now what the founders ofthis nation thought

in the mid-eighteenth century. We now find

ourselves inthe twentieth century, closing in

on the twenty-first, with a political constit-

uency of far different composition than the

one that was in place in the time of our

founders, with attendant problems that they

could not have envisaged. The modern day

religionist regards the words of the found-

ers with the same solemnity as the words of

December 1986

his alleged Christ. The founders of this

nation never intended to laydown dogma for

future generations to worship. They did

intend to establish a working system of secu-

lar self-government that would be self-

perpetuating and certainly flexible and ame-

nable to change. I remain convinced that

they did not envisage being turned into

gods to be worshipped but merely thought

of themselves as establishers of precedent

that may well even be abandoned by future

generations on the basis of changing fact

situations.

Judge McGarr felt that even after the

Constitution was ratified America grew,

marked by a widespread belief in God, ...

and a benign tolerance for nonbelievers.

This is directly contrary to statistical infor-

mation from our first U.S. Census that

showed the vast majority ofearly Americans

to be unchurched with a benign tolerance

for religion. This common misconception

was followed by the infamous quote that the

Supreme Court willliveto rue the delivery of

in Zorach v. Clauson (343U.S. 305, 96 Fed.

954, 72 S.Ct. 679) in 1952. We are a reli-

gious people whose institutions presuppose

a Supreme Being. Our institutions do

nothing of the sort, and the Court has done

its best to weasel out of this remark in some

subsequent decisions. Many of our institu-

tions have in fact come into existence de-

spite and overriding the objections of reli-

gion. Hospitals and free public education are

the two best examples.

Atheists And The Constitution

Judge McGarr then goes on to make a

rather complicated point. He begins byquot-

ing Justice Black in the famous Everson v.

The Board ofEducation of The Township of

Ewing (330 U.S. 1, 67 S. Ct. 504, 91 L.Ed.

711)case of 1947inwhich that Justice gave a

lengthy treatise based on the premise that

The establishment of religion clause

ofthe first amendment means at least

this: Neither a state nor the federal

government can set up a church.

Neither can pass laws which aid one

religion, aid allreligions, or prefer one

religion over another.

McGarr then took particular exception to

the phrase aid all religions, saying that it

embodied a concept that the framers of the

first amendment did not intend or believe,

citing modern establishments of religion

such as legislative chaplains, administrative

oaths, coin mottos, the Pledge ofAllegiance,

and religious tax exemptions as evidence.

He then argues that the Founding Fathers

would not have defined Atheism as a reli-

gion, and therefore it was a mistake when

the courts first took on separation cases of

that branch of government concluding that

American Atheist


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Atheism was a religion and that even non-

discriminatory tolerance of religion discrim-

inated against nonbelievers. He added that

conceiving of Atheism as a First Amend-

ment protected religion leads to a court

position that any benign attitude of gov-

ernment toward religionists is seen as pre-

ferential treatment of them over Atheists

which consequently discriminates against all

religionists in deference to Atheists. Is that

clear?

To say this again more simply, this judge

feels that the court definition ofAtheism as a

religion includes Atheists in First Amend-

ment rights where they don't belong because

the founders only intended for those rights

to apply to god believers. If the religion

clause ofthe First Amendment only applies

to religious persons, then Atheists cannot

make application for protection under its

wording. Judge McGarr concludes then that

religion must be limited by definition to

some form of relationship with a supreme

being so that it cannot merely be regarded

as a suitably fervent relationship with any-

thing that may tend to include Atheists and

thus bring them under the umbrella of First

Amendment protections which are reserved

for those who have a religion.

This judge then says that the end result of

application of the erroneous inclusion of

Atheists in First Amendment rights meant

only, for the religious in this nativity scene

case, that the government is being asked to

participate in the celebration of Christmas

only in ways which deny its meaning.

His attack then turns to the legalprinciple

of stare decisis, which is a doctrine or pol-

icy of following rules or principles laid down

in previous judicial decisions unless they

contravene the ordinary principles of jus-

tice (Black's Law Dictionary), sayin'gthat it

is fine in theory but does not work because

over a period of time itdistorts the original

intent of the laws. This is presumably like

the old grade school example of a. teacher

liningup a class ofstudents and whispering a

phrase into the ear of the first student who

passes itdown the lineto the last who recites

something totally different than what the

teacher actually said. This judge is saying

that the true original meaning of the First

Amendment has been, in a like manner,

twisted by successive interpretations of var-

ious courts over the years. He would rather

have an immutable doctrine that once laid

down cannot be modified by fact situations

beyond the scope or imagination ofthe orig-

inator of the doctrine at the time that itwas

first set forth.

After all of the above, Judge McGarr

throws in the argument that Christmas in

America has clearly acquired a secular

meaning, and that the nativity scene is so

widely accepted as a benign and salutary

symbol and message that it is an extraordi-

nary reaction to see in it a threat to religious

Austin, Texas

freedom. There is also no element of com-

pulsion here. With respect to the disclaimer

sign the judge felt that a disclaimer of the

obvious isofno significant effect. With that

I concur. A creche is obviously religious

regardless of a little sign placed in front,

although that is not what the judge meant,

preferring the expediency of considering it

to be a secular symbol.

We must keep in mind that the Chicago

decision isjust one of many to come on this

issue. Some willconcur and others will dis-

sent. Take for example the case of the Bir-

mingham, Michigan, creche. In August of

1983, after thirty-five years of its display, a

local resident and the ACLU filed suit. A

U.S. district judge in Detroit ruled in July

1984 in favor of the ACLU. The city

appealed, and the Sixth Circuit Court of

Appeals upheld the lower court decision in

June of 1985. The city then appealed to the

U.S. Supreme Court. On November 3 of

this year the U.S. Supreme Court upheld

the Sixth Circuit ruling which prohibits the

city of Birmingham from placing a nativity

scene

by

itself

on municipal property. The

19845-4 Supreme Court ruling on the Paw-

tucket, Rhode Island, creche said that that

scene did not violate the Constitution

because it had been erected with other

secular Christmas symbols such as Santa,

reindeer, and snowmen. Officials in Bir-

mingham are now considering the addition

of this secular paraphernalia to their

creche to get around the Supreme Court

ruling (Detroit Free Press, The Daily Trib-

une, Birmingham, Michigan). The creche in

Chicago had the extra symbols, including a

90 foot Christmas tree, Christmas lights on

I ~

it and other trees, a large Christmas package-

type box for items to be distributed to the

needy, and a five-foot figure of Santa Claus.

Christmas music iscontinuously broadcast.

We can see that even the Supreme Court

has taken two positions on nativity scenes

depending on the surrounding circum-

stances. I agree with the resident litigant in

the Birmingham case who said of the Paw-

tucket decision of 1984, I think that was a

bad decision. A religious symbol is a reli-

gious symbol and you can't disguise it with

reindeer and snowmen.

In 1985 the Supreme Court permitted a

Scarsdale, New York, nativity scene in a

village park as long as non-religious displays

were also allowed there.

In Mukilteo, Washington, a county su-

perior court judge ruled on November 10

that the classroom display ofa nativity scene

and menorah and a Happy Hanukkah

greeting by a junior high school science

teacher were unconstitutional. That judge

also struck down the portion of school dis-

trict policy that allows displays of religious

symbols because he felt that constant moni-

toring would be needed to decide if a given

symbol was displayed in a religious or an

educational manner. The judge there said

that the displays were unconstitutional

because they were not primarily secular and

educational. He said that the 1984 Paw-

tucket decision by the Supreme Court was

not applicable to the classroom in Washing-

ton (Everett Herald, Everett, Washington).

We have here a mixed bag, mostly dic-

tated by local option with the Supreme

Court essentially giving a formula for cities

to followfor the constitutional erection of

I \

.' - ,-


8/52

religious symbols on public property. The

Supreme Court has simply said that mixing

the secular with the religious symbol is OK

but having a religious symbol stand alone is

not. The next step willsurely be to say that

the attendant secular symbols are of little

consequence in the public mind and that

little baby Jesus can stand alone. Only time

and the illogical religious mind willtell.

The Broader Danger

What is so foreboding about the Chicago

creche decision inparticular is that itspeaks

to broader court doctrine outside ofthe sub-

ject matter of creches demonstrating what

can and willcome out ofan ultimate extrapo-

lation of the Meese doctrine of original

intent. It can be divined by the religious

mind that the First Amendment was laid

down bya group ofapostles selected by god,

who, in the words of Reagan, placed this

continent here for them to find, intending

that amendment only for the protection of

their flocks and not to be inclusive of those

outside the fold. This was the premise of

Judge McGarr's decision in Chicago. This is

also exactly what Pat Robertson has been

saying in his campaign for the Republican

nomination for President in 1988, and Rea-

gan has already placed legions of judicial

appointees on the bench who believe this.

Ifour Constitution and Billof Rights can

be redefined by Meese, Reagan, and their

judicial appointees to be of some divine

origin and therefore immutable, then we as

Atheists can be excluded from our own

government as unbelievers, just as the

Moslem theocracies ofthe Middle East have

been doing with infidels for thousands of

years. Our founders could not have envis-

aged themselves as being deified, and I am

sure that they would not have approved of

their writings becoming a kind of national

scripture. The dangers of transforming our

founding documents and those who au-

thored them into a national cult should be

obvious to us all.

We should all have been able to foretell

such a transformation as inevitable, though.

Centuries of religious indoctrination and

intolerance could only have produced a

uniquely American-Christian mind-set that

would not foster a continued cognitive abil-

ity to accept change. The teaching that is the

most basic to the survival of religion is to

resist new ideas and change. Ifthat teaching

becomes basic to our political system in an

allegorical manner, we will find ourselves

trapped in a theocracy that would be like

stepping into the Bible - like Alice through

the looking glass - into a world in which we

could not, as Atheists, ultimately survive.

Governmental systems are for people and

need to be based on the reality of lifeas we

know it in a complex world. We cannot

transform theological fantasy into govern-

mental reality by convincing ourselves that

government should be modeled after the

Bible. I see those now in power fighting to

make our system of laws mirror the Bible

where absolutes are handed down through

divine inspiration of apostles who spread the

word among the people. Logic directed by

situational analysis is the only basis for

self-determination.

The ayatollahs of the Middle East have

demonstrated the how-to's of achieving a

complete admixture of religion and govern-

ment in which religious principles become

government principles and vice versa. The

blueprint is there; we only need to see to it

that it is not applied here. ~

ABOUT THE AUTHOR

A second generation Atheist,

Mr. Murray has been the director

of The American Atheist Center

for ten years and is also the managing

editor of the American Atheist. He

advocates Aggressive Atheism.

SATAN CLAUS

(Continuedfrompage 17 )

The phone rang. Sarah nearly swore but

caught herself just in time. Can you get

that, Katie?

No, Mama, I'm in the bathroom Katie

yelled from upstairs.

Now Sarah did curse. She'd ask for for-

giveness later. Why did it always ring when

she was busy with a hundred and one other

things?

Hello she shouted, picking it up on the

sixth ring. Hello, who's there?

Uh - uh, it's Billyfrom next door, said

the startled voice on the other end. I -

Katie can't come to the phone right now.

Call back. Sarah told him, and started to

hang up. His yelp of dismay stopped her.

No, Mrs. Young, I, can I talk to you for a

minute?

Me? Sarah was startled, but then an

unexpected thought hit her. He wants to ask

about the Lord She rejoiced silently, and

immediately her voice became calm and

sweet. Why, certainly, Billydear. What can

I do for you, sweetheart?

Well, it's about -

The doorbell jangled, and Sarah nearly

dropped the phone. Just a moment, dear,

Page 6

she said to Billy. Katie Get down here,

right now, and answer the door I'm on the

phone

Katie barreled down the stairs, hurriedly

straightening her skirt, and pulled open the

front door - then stood and stared, unable

to speak, until Sarah hollered, Who's there?

Katie, answer me

Katie opened her mouth, but nothing

came out. The visitor smiled at her, a kindly

twinkle in his eyes, and answered for her:

It's just Santa Claus, Mrs. Young, come to

ask your daughter what she wants for

Christmas.

WHAT?

Billy was nearly deafened as Sarah

slammed the receiver down and burst into

the hallway, grabbing Katie and screeching

at the top of her lungs, DEVIL DEVIL

DEVIL

To David's horror, she produced a small

but extremely vicious-looking pistol, seem-

ingly out of nowhere (the police told him

later she'd kept iton a table by the door, just

in case), and waved it in his general direc-

tion. JESUS HAVE MERCY ON YOUR

SOUL she screamed, blasting a hole in his

right foot.

Daddy Billycried in horror, having run

over as fast as his legs could carry him. His

mother, two steps behind him, pushed him

aside and flung herself over David's body:

You BITCH she shouted at Sarah, who

December 1986

stared at the gun, the prone Santa, and the

screaming woman for about twelve seconds

before darkness overtook her and she

fainted dead away.

Mama?

Silence.

Mama, please wake up.

Sarah opened one eye, focused on her

child, opened the other, refocused, and tried

to sit up. The restraints stopped her.

Mama?

Hmmm? Strange, even though she was

strapped to a strange bed, she felt no fear,

no pain. Everything felt

wonderful.

How ya

doin', baby? she murmured lovingly.

Okay. Mama, why did you shoot Mr.

Jordan?

Didn't, her mother muttered. Satan.

Shot Satan. Satan Claus. Heh heh.

I love you, Mama, Katie said stiffly. I'll

come and visit you later.

Do that little thing, Sarah said, smiling

vacantly. Just leave that Devil at home.

David Jordan, still limping, winced as he

pulled the little girl towards the door. But

Katie held back, taking one last look at the

wreck of her mother, and said quietly, 'The

Devil's not so bad, Mama, once you get to

know him.

They left her then, to laugh and cry and

dream of Christmas trees, burning and

blackened. ~

American Atheist


9/52

NEWS AND COMMENTS

GREENEVILLE, TENNESSEE -

CENTER OF THE UNIVERSE

On October 24, the media of our

nation pounced on a decision given in a

federal district court of Tennessee with

such fervor that the story made the

front page of just about every news-

paper in the nation. The basic message

was that the Fundamentalists had won

a big one in the ongoing struggle be-

tween the public educational system of

the nation and the born-agains. Sensa-

tionalism sells newspapers and

maga-

zines and brings advertising dollars

to

television and radio. It is not so impor-

tant to know what happened as it is to

color it purple.

The American Atheist magazine in its

inception determined that it would

always bring to the reader the full story

and let the reader evaluate what he

read, together with what guidelines the

editorial staff could give. In that spirit

now

appears the

Memorandum

Opin-

ion given by Thomas G. Hull, U.S. Dis-

trict Court of the Northeastern Division

of Tennessee.

The results obtained in this case are

the results of

a dozen

other earlier

cases. The United States courts have in

the past ten years so deliberately sus-

tained religious contentions that an

irreversible course has been set. Judeo-

Christianity, now held as sa,crosanct

and virtually beyond the rea~h of any

laws, cannot at this point in time be

gainsaid in its claims. Hull faces this

fact in the carefully reasoned decision

he reached. Hull, after all, was chosen

to

be

a

federal

judge

because he is the

same kind of ideologue as are those

who appointed him

to

of/ice. Hull, age

sixty,

a

native of

Tennessee,

served for

ten

years as a

Republican member of

the state

House. He

also served

as a

Tennessee state judge and, later, as

legal counsel to Gov. Lamar Alexander,

a

Republican. When he was appointed

to the federal bench in 1983 by Reagan,

he described himself at congressional

confirmation hearings as a strict con-

structionist of the U.S. Constitution.

Knowing Ed Meese, you all know what

that means under the Reagan admin-

istration.

Austin, Texas

The facts are succintly given by the

judge. The decision, in its entirety, is

given here.

This is a civil rights action, 42 U.s.e.

§1983, seeking injunctive relief and money

damages for the alleged violation of the

plaintiffs' First Amendment right to the free

exercise of religion. This controversy stems

from the compulsory use of the 1983edition

of the Holt, Rhinehart [sic] and Winston

basic reading series (Holt series) in the

Hawkins County Public Schools. The plain-

tiffs, fundamentalist Christian school chil-

dren and their parents, claim that their reli-

gionrequires that they not be exposed to the

Holt series because its contents are offen-

sive to their religious beliefs. The relief

sought by plaintiffs includes money damages

for the expenses incurred in sending their

children to private school and an order of

the Court requiring the school system to

accommodate their religious beliefs by pro-

viding alternative reading instruction,

It is important to note at the outset that

the plaintiffsare not requesting that the Holt

series be banned from the classroom, nor

are they seeking to expunge the theory of

evolution from the public school curriculum,

Despite considerable fanfare in the press

billingthis action as Scopes II, it bears little

relation to the famous monkey trial of

1925. These plaintiffs simply claim that they

should not be forced to choose between

reading books that offend their religious

beliefs and foregoing a free public education.

The defendants, including intervening

defendant, Dr. Robert McElrath, Commis-

sioner ofEducation for the State of Tennes-

see, take the position that broad state inter-

ests preclude the fashioning of educational

alternatives for the plaintiffs. They contend

that any attempt to provide acceptable text-

books for the plaintiffs would violate the

Establishment Clause of the First Amend-

ment through excessive state entanglement

with religion.

This action juxtaposes two of our most

essential constitutional liberties - the right

offree exercise ofreligion and the right to be

free from a religion established by the state.

Moreover, it implicates an important state

interest inthe education ofour children. The

December 1986

education of our citizens is essential to pre-

pare them for effective and intelligent partic-

ipation inour political system and is essential

to the preservation of our freedom and

independence. See, Wisconsin v. Yoder,

405 U.S. 205 (1972).

I

BACKGROUND

In January 1983, pursuant to state law,' a

textbook selection committee was appoint-

ed by the Hawkins County school district to

select a basic reading series to be used from

kindergarten through the eighth grade. After

evaluating several series oftextbooks over a

number of months, the committee recom-

mended purchase of the Holt series. This

recommendation was unanimously ap-

proved by the Hawkins County Board of

Education (Board) at its regular meeting on

May 12, 1983. The books were purchased,

and the. Hawkins County schools began

using them at the start of the 1983 school

year.

Before the first month of school passed,

however, plaintiffVicki Frost, who had three

children attending the Hawkins County pub-

lic schools, discovered that the sixth grade

reading textbook contained material that

offended her family's religious beliefs. Mrs.

Frost and a friend, Jennie Wilson,2 organ-

ized a meeting which was held September 1,

1983, at the Church HillMiddle School. At

this meeting, which was attended by two

Hawkins County school principals, Mrs.

Frost, Mrs. Wilson and others objected to

the sixth grade reading textbook.

In September 1983, a group of Hawkins

County residents, including most of the

plaintiff-parents, formed an organization

named Citizens Organized for Better

Schools (COBS). Members ofCOBS spoke

at regularly scheduled school board meet-

ings on September 8, October 13, and

November 10,1983, objecting, among other

things, to the use of the Holt series. The

IT.C.A. §49-6-2207.

2Mrs.Wilson is apparently the grandmother

of plaintiffs Heather and Vicky Baker.

Page 7


10/52

NEWS AND COMMENTS

Beverly LaHaye isthe founder and pres-

ident of Concerned Women for Amer-

ica, whose lawyers represented the

Fundamentalist parents who brought

the case. She characterized the deci-

sion as a strong endorsement of the

rights of parents over the training of

their children.

COBS members apprised the Board that

they found the Holt series offensive to their

religious beliefs and presented petitions

requesting removal of the Holt series from

the schools.

At various times during the Fall of'1983,

six plaintiff-families- contacted Mr. Salley,

principal of Church HillMiddle School, and

requested that their children be provided

with alternative reading arrangements. Prin-

cipal Salley apparently acceded ~o the

requests, and seven plaintiff-students at

Church Hill Middle School were provided

alternative reading arrangements. Two

other plaintiff-students were provided alter-

native arrangements at two separate ele-

mentary schools in the district.>

The Meads and the Bakers, two other

plaintiff-families, sought alternative reading

arrangements for their children at Carter's

3The Frosts, Mozerts, Whittakers, Eatons,

Couches and Marshalls.

4The arrangements varied from child to

child. Usually the teacher would assign a

passage from another reader, and the stu-

dent would go to another room to read.

5Sarah Frost at Church Hill Elementary

School and Samuel Couch at Mt. Carmel

Elementary School.

Page 8

People for the American Way will aid

with an appeal of the decision. Its presi-

dent, Anthony T. Podesta, said that the

ruling will invite students from every

sect to pick and choose what they will

study and what they willnot. I think we

will have havoc in the public schools.

ValleyElementary School. Principal MacMil-

lan refused a proposal for an alternative text,

and no alternative arrangements were al-

lowed.

Despite presentations by two plaintiff-

parents, the Board unanimously adopted,

without discussion, a resolution requiring

teachers to use only textbooks adopted by

the Board ofEducation as regular classroom

textbooks 6 at the November 10, 1983,

school board meeting. In compliance with

this resolution, school officials at Church

HillMiddle School told seven of the student-

plaintiffs that they would no longer be

allowed to use an alternative reader. At that

point, these students refused, on religious

grounds, to read the Holt series or to attend

the reading classes in which the Holt series

was used. They were suspended from school

for three days as a result. On November 22,

1983, they were again suspended, this time

for ten (10)days, because they continued to

refuse to attend reading class and/or read

the Holt books. Following this rigorous

enforcement of the Board's mandate, many

of the student-plaintiffs withdrew from pub-

lic schools and enrolled inprivate, Christian

6JointStipulation ofFact (Court FileNo. 205

at 44).

December 1986

W. J. Michael Cody, the attorney gen-

eral of Tennessee, feels that the ruling

puts the education system at risk. He

further warned that the proposed meth-

od ofcompromise would stigmatize par-

ticipating Fundamentalist students.

schools.

Plaintiffs filed this-suit in December 1983.

On March 15, 1983, this Court granted

summary judgment in favor of defendants.

This Court found that the plaintiffs' religious

beliefs were sincere and that certain pas-

sages inthe Holt series might be offensive to

them, but that, because the books appeared

neutral on the subject of religion, they did

not violate.the plaintiffs' constitutional rights.

Mozert v. Hawkins County Public Schools,

_ F. Supp. 201, 202 (E.D. Tenn. 1984),

rev'd, 765 F.2d at 75 (6th Cir. 1985).

The Sixth Circuit reversed this finding

and remanded, instructing this Court to

determine whether the defendants infringed

on the plaintiffs' free exercise rights, whether

a compelling state interest would justify such

infringement if any, and whether a less re-

strictive means could accommodate both

plaintiffs and defendants without running

afoul of the Establishment Clause. Mozert v.

70n December 8, student-plaintiffs Gina

Marshall and Travis Mozert were suspended

a third time, for an additional ten (10) days.

Gina Marshall was allowed to return to

school before the third suspension period

ended and was not required to read the Holt

series.

American Atheist


11/52

NEWS AND COM MENTS

Hawkins County Public Schools, 765 F.2d

at 78 (6th Cir. 1985).

With the agreement of the parties, the

Court determined that the issue of liability

should be decided by the Court without

intervention of a jury and that the issue of

damages would be tried by a jury at a later

date ifnecessary. The hearing on the issue of

liabilitybegan on July 14, 1986.Based upon

the evidence and testimony offered at trial,

and the record as a whole, the Court makes

the findings of fact and conclusions of law

which follow.

II

BURDEN

When deciding a free exercise claim, the

courts apply a two-step analysis. First, it

must be determined whether the govern-

ment action does, infact, create a burden on

the litigant's exercise of his religion. Ifsuch a

burden is found, it must then be balanced

against the governmental interest, with the

government being required to show a com-

pelling reason for its action.

Mozert, 765

F.2d at 78. In addition, itmust be determined

whether the state has acted in a way which

constitutes the least restrictive means of

achieving [the

1

compelling state interest, as

measured by its impact upon the plaintiffs.

Thomas v. Review Board, 450 U.S. 707, 718

(1981).

The plaintiffs assert the free exercise

rights of both the students and the parents,

who assert that their religion compels them

not to allow their children to be exposed to

the Holt series. Plaintiffs have also alleged

that the Board's policy interferes with the

inherent right of the parents to direct the

upbringing and education of children under

their control. ... Pierce v. Society of Sis-

ters, 268 U.S. 510, 534 (1925), see also, Wis-

consin v. Yoder, 406 U.S. 205 (1972).

In deciding whether plaintiffs' free exer-

cise rights have been impermissibly bur-

dened by the state, the Court must first

determine whether the beliefs are religious

and whether they are sincerely held by the

individual asserting them. [T]o have the

protection ofthe ReligionClauses the [plain-

tiffs'] claims must be rooted in religious

belief, Yoder, at 215; and, although the

truth of a belief is not open to question,

there remains the significant question wheth-

er it is 'truly held.''' U.S. v. Seeger, 380 U.S.

163, 185 (1965).

Fortunately for the Court, these subtle

threshold determinations were made prior

to trial. The parties stipulated both that the

plaintiffs' beliefs were religious and that they

were sincerely held. Joint Stipulation 9.

Austin, Texas

However, before the Court may turn to the

issue ofwhether the exercise of these beliefs

isburdened by the Board's requirement that

all students read from the Holt series, the

defendants would have the Court decide

whether these beliefs are central to the

plaintiffs' faith. The defendants argue that

unless the beliefs are central to the plaintiffs'

faith, they are not entitled to protection

under the Free Exercise Clause of the First

Amendment.

In making this assertion, the defendants

rely on certain language in Yoder, supra, in

Sherbert v. Verner, 374U.S. 398 (1963), and

also on two Sixth Circuit cases. Lakewood

Ohio Congregation of Jehovah's Witnesses,

Inc. v. City ofLakewood, Ohio, 699 F.2d303

(6th Cir. 1983),

cert. denied,

464 U.S. 815

(1983); and Sequoyah v. Tennessee Valley

Authority, 620 F.2d 1159 (6th Cir. 1980),

cert. denied, 449 U.S. 953 (1980).

In Yoder, the Court found that compul-

sory school attendance past the age of four-

teen contravenes the basic religious tenets

and practices of the Amish faith. (emphasis

added).

Yoder,

supra at 218. In

Sherbert,

the Court found that in refusing to work on

Saturday, a Seventh-Day Adventist followed

a cardinal principal of her religious faith.

(emphasis added). Sherbert at 406. In both

of these cases, the Court did note that the

belief or practice at odds with a state regula-

tion was one of utmost importance to, or

about which their was no disagreement

within, the plaintiffs religion.

However, at no point did the Court hold

that such a finding must be made in order to

prevail on a free exercise claim. Rather, as

mentioned above, the concern appears to

be simply that the belief or action be rooted

in religion. Accord, Thomas v. Review

Board, supra, at 713. That Saturday wor-

ship is a cardinal principal of the Seventh

Day Adventist religion simply makes it easy

to find that the belief is religious. No

Supreme Court decision has turned on the

issue of whether a particular belief was cen-

tral to the believer's faith. The two Sixth

Circuit cases relied upon bydefendants also

support the rooted in religion standard

and do not mandate ajudicial determination

of the relative doctrinal significance of the

beliefs at issue.

In Lakewood, the desire to construct a

church building on the particular parcel of

land zoned residential had absolutely no

basis in the congregation's faith. Their reli-

gion did not compel them to build a church

on that parcel of real estate. Indeed, the

court determined that the building of a

church, either in the residential district or

anywhere else, had no religious or ritualistic

December 1986

significance for the Jehovah's Witnesses.

Thus, it isclear that no evaluation was made

by the court of the importance of the alleged

religious action for which protection was

sought. The case turned upon the fact that

the act of building a church was not inte-

grally related to any underlying religious

belief of the plaintiffs.

In Sequoyah, certain Cherokee Indians

sought to enjoin the flooding of the Little

Tennessee River because it would destroy

sacred burial grounds which some felt com-

pelled to visit and/or preserve. Although the

court stated that the claim of centrality of

the land to the practice of the traditional

Cherokee religion was missing, 620 F.2d at

1164, the case turned upon the fact that the

plaintiffs'objections were based primarily

upon a fear that their cultural heritage would

suffer if these sacred grounds were lost.

The overwhelming concern of the [plain-

tiffs] appears to be related to the historical

beginnings of the Cherokees and their cultur-

a~development.

[d.

The plaintiffs believe that they must not

allow their children to be exposed to the

content of the Holt series. The Court is of

the opinion that itshould determine whether

this belief is essentially religious and not

whether it is a central tenet of the plaintiffs'

faith. And this determination should be

made despite the fact that many people hold-

ing more orthodox religious beliefs might

find the plaintiffs' beliefs inconsistent, illogi-

cal, incomprehensible, and unacceptable.

Based on the stipulations of the parties and

the proof offered at trial, therefore, the

Court FINDS that the plaintiffs' beliefs are

sincerely held religious convictions entitled

to protection under the Free Exercise

Clause of the First Amendment.

The parties have stipulated that the plain-

tiffs find certain material in the Holt series

offensive to their beliefs. Joint Stipulation

55. Testimony at trial reinforced this posi-

tion. The representative plaintiff-parents

clearly testified that the material objected to

was offensive in the context of the Holt

series. The plaintiffs perceive certain objec-

tionable themes running throughout the

Holt series. For example, the Holt series

contains a definite feminist theme, and the

plaintiffs have a religious objection to stories

which appear to denigrate the differences

between the sexes.

It appears to the Court that many of the

objectionable passages in the Holt books

8There is no question that the reading texts

teach more than just how to read.

Page 9


12/52

NEWS AND COMMENTS

he following press release was is-

sued

by

American Atheists on

ctober

25,1986.

American Atheists today condemned the

decision of the federal district judge in

Greeneville, Tennessee. A 1983 Reagan

appointee, his decision is a harbinger of

what can be expected from eight years of

Reagan's packing of the federal judiciary

with judges more interested in Jesus than

justice. The effects of this decision willbe

intimidation of teachers, school boards,

and publishers ofschool texts, and a further

dumbing-down of America's public educa-

tion. It is a victory for religious fanatics in

their unrelenting attack on reason and

education.

American Atheists charges that the prem-

ises on which fundamentalist Christianity is

based are irrational and idiotic - totally

outside and apart from the real world. They

are inappropriate for education.

would be rendered inoffensive, or less often-

sive, ina more balanced context. The prob-

lem with the Holt series, as it relates to the

plaintiffs' beliefs, isone ofdegree. One story

reinforces and builds upon the others

throughout the individual texts and the se-

ries as a whole. The plaintiffs believe that,

after reading the entire Holt series, a child

might adopt the views ofa feminist, a human-

ist; a pacifist, an anti-Christian, a vegetarian,

or an advocate ofa one-world government.

Plaintiffs sincerely believe that therepeti-

tive affirmation of these philosophical view-

points isrepulsive to the Christian faith - so

repulsive that they must not allow their

children to be exposed to the Holt series.

This is their religious belief. They have

drawn a line, and it is not for us to say that

the line [they] drew was an unreasonable

one. Thomas, supra, at 715.

Having made these findings, we must

determine whether the state's action has

burdened plaintiffs' free exercise of their

religious beliefs. The applicable test was set

forth in Thomas, supra, at 717·18: Where

the state conditions receipt of an important

benefit upon conduct proscribed by a reli-

gious faith, or where itdenies such a benefit

because of conduct mandated by religious

belief, ... a burden upon religion exists.

While the compulsion may be indirect, the

infringement upon free exercise is nonethe-

less substantial.

Page 10

American Atheists' Reply

This decision willcause school text pub-

lishers, intimidated by fundamentalist par-

ents, to further eviscerate their materials,

removing more science, history, and other

material from textbooks out of fear that

school purchasing officials willnot buy any-

thing which may be objectionable to a par-

ent's religious beliefs. The primary concerns

oftextbook publishers are sales and profits;

quality content is secondary. This is evident

from the manner inwhich biology texts have

been purged of material on evolution over

the past twenty years. The decision willalso

intimidate school boards, teachers, princi-

pals, and other school officials, all of whom

willfear a federal case if they present any-

thing to which a parent may object. Judge

Hull cited free exercise of religion, stating

that students either read the Holt series or

forfeit a free public education. This is

wrong; public education is available to all,

and teaching religion is not the function of

the public schools or education in general.

In Thomas, a Jehovah's Witness resigned

his employment on religious grounds after

his employer transferred him to a depart-

ment that manufactured armaments. The

state denied unemployment compensation

benefits. The Supreme Court held that this

violated his free exercise rights because it

put pressure on the plaintiffto either violate

his religious beliefs or forego the otherwise

available public benefit.

In Sherbert, a Seventh-Day Adventist

refused to work on Saturdays because of

her religious convictions. Following her dis-

charge, the state denied her unemployment

compensation benefits. The Supreme Court,

based upon the reasoning subsequently used

in Thomas, held that this violated her free

exercise rights.

In Spence u, Bailey, 465 F.2d 797 (6th Cir.

1972),a high school student, who had a reli-

giously based conscientious objection to

war, refused to attend state required ROTC

training.? The school refused to award

Spence a diploma. The Sixth Circuit held

9The state required every student to take

one year ofphysical education or ROTC. No

physical education classes were offered for

males at Spence's high school. He was thus

faced with state requirement that he attend

ROTC.

December 1986

American Atheists regards this as a per-

nicious, wrongheaded decision. It is one

which will lead to further deterioration of

American education, making America's

future graduates less competitive in the

global economy. Even today, major corpo-

rations are fleeing to Japan, Germany, and

other nations to find a well-educated work

force. Currently, the Soviet Union and

Japan are graduating twice as many skilled

engineers, scientists, and mathematicians

per capita as the U.S. This suggests that

they willbe the world leaders of tomorrow

- not the United States. The federal judi-

ciary should be more concerned about

that

than the beliefs ofa few ultra-religious nuts.

We should not permit the decline of Ameri-

can society through undermining of our

educational system, or dictating by reli-

gious fanatics hostile to appropriate educa-

tion for a technologically advanced society.

that this violated his free exercise rights

since itcompels the conscientious objector

either to engage inmilitary training contrary

to his religious beliefs, or to giveup his public

education.

ld:

at 799.

In

Moody

u,

Cronin,

484 F. Supp. 270

(C.D. Ill.1979),Pentecostal children refused

to participate in co-educational physical

education classes because of their religious

objection to exposure to the opposite sex in

immodest attire. The school mandated

that they attend these classes under penalty

of suspension, expulsion, denial of credits

for graduation, and other discipline.

Id

at

272. Based upon reasoning likethat applied

in Spence, the district court found that the

children's free exercise rights had been vio-

lated. Cj Graue u, Mead School Dist. No.

354, 753 F.2d 1528 (9th Cir. 1985), cert.

denied, 106 S. Ct. 85 (1985).10

On the basis of the foregoing, it seems

hardly possible to question the fact that the

plaintiffs' free exercise rights have been bur-

dened. Plaintiffs' religious beliefs compel

them to refrain from exposure to the Holt

series. The Board has effectively required

that the student-plaintiffs either read the

offensive texts or give up their free public

education. This case is clearly in line with

Thomas, Sherbert, and their progeny. Ac-

cordingly, the Court FINDS that the plain-

tiffs' free exercise rights have been bur-

dened by the school board policy.

American Atheist


13/52

NEWS AND COMMENTS

The mere fact that the [plaintiffs'] reli

gious practice is burdened by a governmen-

tal program does not mean that an exemp-

tion accommodating [their] practice must

be granted. The state may justify an inroad

on religious liberty by showing that it is the

least restrictive means of achieving some

compelling state interest.

Thomas

at 718.

Whether that burden isimpermissible or not

willturn on the discussion to follow.

I I I

S T T E I N T E R E S T

The state interest implicated inthis action

is its interest inthe education of its young. In

order for a state's interest to justify uniform

lOInGrove, a student objected on religious

grounds to reading The Learning Tree,

which was assigned in her high school En-

glish literature class. Her teacher assigned

another book and allowed her to leave the

room during discussion of the offensive text.

The student and her mother brought suit

seeking removal ofthe book from the school,

alleging that it

violated

the student's free

exercise rights as well as the Establishment

Clause. Because the school allowed her the

option of foregoing exposure to the offen-

sive text, the court found that there was no

coercion against her free exercise rights.

Plaintiffs allege that they

believe

'eternal

consequences' result to them and their

children from exposure to The Learning

Tree or discussion of it. That allegation

would probably be sufficient to present a

free exercise question if Cassie Grove had

been compelled to read the book or be pres-

ent while it was discussed in class. (Canby,

J., concurring at 1541-2).

application of a regulation which burdens an

individual's free exercise rights, it must be

compelling, Thomas, overriding, U.S. v.

Lee 455 U.S. 252, 258 (1982), ofthe highest

order, Yoder at 215, and especially impor-

tant,

Bowen v. Roy,

_-U.S. __ (1986)

(O'Connor, J. concurring in part and dis-

senting in part, Slip. Op. No. 780 at 5).11

No party disputes that the state's interest

in education meets these various tests. Pro-

viding public schools ranks at the very apex

of the function of a state. Yoder, supra at

11Defendants have indicated that in a case

such as the present action, challenging the

denial of otherwise uniformly provided

benefits, a lesser showing of state interest

may be required. This is based upon the

Chief Justice's opinion inBowen. Chief Jus-

tice Burger's opinion was the opinion of the

Court in that case, but it is the majority

opinion only so far as parts I and IIare con-

cerned. It is in part III that the pronounce-

ments relied upon by the defendants are

found. Part III of the opinion finds accord

with only two other members of the court.

Chief Justice Burger states therein that,

when a government regulation indirectly

and incidentally calls for a choice between

securing a government benefit and adher-

ence to religious beliefs, Bowen, SlipOp. at

12, the Government meets its burden when

it demonstrates that [the] challenged [regu-

lation] ... , neutral and uniform in applica-

tion, is a reasonable means of promoting a

legitimate public interest. Id at 14. This

Court finds itself in agreement with Justice

O'Connor, who notes that the test enun-

ciated by the Chief Justice has no basis in

precedent. (O'Connor, J. concurring in

part and dissenting in part at 4).

213.

However, in the instant case, the state,

acting through its local school board, has

chosen to further its legitimate and overrid-

ing interest in public education by mandat-

ing the use of a single basic reading series.

The Court has found that compulsory use of

this reading series burdens the plaintiffs' free

exercise rights. In order to justify this bur-

den, the defendants must show that the

state's interest in the education of its chil

dren necessitates the uniform use of the

Holt reading series - that this uniformity is

essential to accomplishing the state's goals.

Therefore, the Court must decide whether

the state can achieve literacy and good citi-

zenship for allstudents without forcing them

to read the Holt series.

It seems obvious that this question must

be answered in the affirmative. The legisla-

tive enactments ofthis state admit as much.

Although Tennessee has manifested its com-

pelling interest in education through its

compulsory education law, it has, by allow-

ing children to attend private schools or to

be taught at home, also acknowledged that

its interests may be accomplished in other

ways and may yield to the parental interest

in a child's upbringing. Moreover, the fact

that the state has approved several basic

reading series for use in the Tennessee pub-

lic schools tells us something of the expend-

ability of any particular series.

In insisting upon the necessity of unifor-

mity, the defendants point to legitimate con-

cerns about the difficultyof administering an

alternative reading program. The Court

agrees that uniformity would make the test-

ing, grading, and teaching of reading more

manageable.

However,

it is clear from the

evidence at trial that the state's interest in

uniformity is by no means absolute. Many of

the expert educators who appeared at trial

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Page 11


14/52

NEWS AND COMMENTS

indicated that teaching isbest accomplished

through individualized instruction.v

The defendants also insist that any ac-

commodation of the plaintiffs is impossible.

This position is based, in part, on the plain-

tiff's lists of objections to the Holt series.

Exhibits 22-37. It is true that many of the

plaintiffs' objections suggest that other ele-

ments ofthe curriculum besides the reading

program could easily be considered offen-

sive to their beliefs. However, as indicated

earlier, it is the Court's perception that the

plaintiffshave drawn a line in regard to their

religiouslymandated action. The Holt series

is on one side of the line as intolerable, and

apparently the balance of the books and

school curriculum remain, at this point, on

the other side of the line. The plaintiffs have

not made multi-subject, multi-text

obiec-

tions; they have objected to the Holt reading

series. The defendants may not justify bur-

dening the plaintiffs' free exercise rights in

this narrow case on the basis of what the

plaintiffs might find objectionable in the

future.

Moreover, proof at trial demonstrated

that accommodating the plaintiffsis possible

without materially and substantially disrupt-

ing the educational process. See, Tinker v.

Des Moines Independent Community

School District, 39 3 U.S. 5 03, 509 (1 969).

The students at the middle school were pro-

vided with an alternative reading arrange-

ment for a period of several weeks. There

was no testimony at trial that those arrange-

ments resulted in any detriment to the

student-plaintiffs. In fact, those children still

received above average grades for that

period. Even after the School Board man-

date, compromise arrangements were

worked out with some of the plaintiffs.P

A related concern of the defendants is

that if plaintiffs are allowed an alternative,

the Court willhave opened the floodgates

to a barrage of such requests. The state

argues that [t]o permit individual teachers,

12Mrs.Evelyn Rodriguez, who has taught

elementary school in Hawkins County for

ten or eleven years, testified that she not

only divides her reading class into two or

three groups by reading level, but that she

always uses additional texts and materials

other than the basic reader. As much as

possible, she works with the students on

their individual reading level, particularly ifa

child is below grade level in reading skills. In

addition, children requiring special instruc-

tion in reading leave the classroom during

the reading period and go to a reading lab.

Page

12

students, parents or ministers to choose the

textbook of their liking would inescapably

result in widespread chaos not only within

the Hawkins County School System but

also every public school system within the

State of Tennessee.t't-

While this is a very legitimate concern,

such a scenario seems unlikely to occur.

Proof at trial indicated that objections such

as those of the plaintiffs have never, to the

memory ofHawkins County school officials,

been raised in the past. Dr. J. Gordon Mel-

ton testified that, although there are a vari-

ety of sects inand around Hawkins County,

the area is relatively homogeneous from a

religious standpoint.v Accommodating the

beliefs of the small group of students

involved in this case probably would not

wreak havoc in the school system by initiat-

ing a barrage of requests for alternative

materials.

While the court must be sensitive to the

wide-spread implications of its decisions, it

must also limititsdecisions to the facts ofthe

case before it. Bender v. Williamsport Area

13SteveWhittaker was allowed to return to

school after the suspensions and continue

reading from an alternative book until the

first of the year. Thereafter, Steve partici-

pated with the rest of his class upon the

assurance from his teacher that she

wouldn't put emphasis on the stories that

were objectionable to us and violated our

religious beliefs. TR. at 925. His teacher

also wrote notes about some stories on

Steve's worksheets such as, Don't believe

what's in the content of this story.

Id.

at

92 6.

The Whittakers could not afford to

send Steve to a private school.

Gina Marshall was allowed to return to

school after the suspensions without partic-

ipating inthe Holt series. She simplyworked

on English in the accompanying workbook

Her teacher put an x through the portions

dealing with stories from the Holt series.

School District, __ U.S. _ (March 25 ,

1986) .

The case before the Court isa narrow

one. The plaintiffs are objecting, on religious

grounds, to the mandated use of the Holt

series inthe Hawkins County public schools.

The Court has already found that the plain-

tiffs' sincerely held religious beliefs are bur-

dened by the defendants' requirement. In

order for the plaintiffs to be entitled to any

judicialrelief,the court must also findthat no

compelling state interest justifies this burden

on the plaintiffs and that the state's interests

can be served by less restrictive means. The

proof at trial overwhelmingly supports such

a finding.

Accordingly, the Court FINDS further

that, while the State of Tennessee has a

compelling and overriding interest in the

education of its children and the literacy of

its citizens, this interest can be accom-

plished by less restrictive means. The uni-

form, compulsory use of the Holt series in

the Hawkins County public schools is by no

means essential to furthering the state's

goals.

IV

INJUNCTIVE RELIEF

Given these findings, the Court must now

consider the plaintiffs' demand that they be

afforded alternative reading texts and the

defendants' concern that such relief would

violate the Establishment Clause.

Evidence at trial indicated that providing

alternative texts would require additional

preparation by existing teachers or the hir-

ing of part-time reading tutors. However, it

was clear that this accommodation could be

14Pretrial Brief of defendant Robert McEl-

rath, Commissioner of Education of the

State of Tennessee, at 9.

ISTR.at

1552, 1555.

Churches in the area are

primarily Protestant.

American Atheist

f t P r 1 1

M4 father sa4s that Abraham lincoln wasn't reouq assassinated ... he

just had the wind knockedout of him.

December

1986


15/52

NEWS AND COM MENTS

achieved without substantially disrupting

the education process and without substan-

tially inconveniencing either the plaintiff-

students or the rest of the student body.

Moreover, such an accommodation might

promote a spirit of religious tolerance in the

school system and impress upon the stu-

dent body the high regard this society has

for religious freedom,

On the other hand, considerable evidence

indicated that no single, secular reading se-

ries on the state's approved list would be

acceptable to the plaintiffswithout modifica-

tions. Reading assignments might have to be

tailored to the plaintiffs' needs, and the aver-

age reading teacher might not readily recog-

nize those portions ofthe texts which offend

the plaintiffs' beliefs. The defendants are

rightly concerned that any accommodation

ofthe plaintiffsin the schools would have the

effect of advancing a particular religion and

would involve an excessive entanglement

between the state and

religion,

See, Lemon

v. Kurtzman, 403 U.S. 6 02 ( 1 97 1 ). It ishard

to imagine any reading program for the

plaintiffsoffered at the schools which would

not present Establishment Clause problems.

Under these circumstances, the Court

FINDS that a reasonable alternative which

could accommodate the plaintiffs' religious

beliefs, effectuate the state's interest in edu-

cation, and avoid Establishment Clause

problems, would be to allow the plaintiff-

students to opt out of the school district's

reading program. The State of Tennessee

has provided a complete opt-out, a total cur-

riculum alternative, in its home schooling

statute. T.CA §49-6-30S0. The Court per-

ceives that this alternative could also work

effectively for a single subject. Allowing the

student-plaintiffs to opt out of reading class

would relieve the school system' of any

burden that would have been caused by

providing alternative teaching arrangements

and would relieve the plaintiffsof the burden

on their religious freedom. Although it will

require extra effort on the part of the

plaintiff-parents, these parents have demon-

strated their willingness to make such an

effort as the price of accommodation in the

public school system.

As the Court envisions the opt -out pro-

gram, each of the student-plaintiffs would

withdraw to a study hall or to the library

during his or her regular reading period at

school and would study reading with a par-

ent later at home. The home schooling por-

tion of the child's education would be pro-

portionally subject to the provisions of the

statute. T.c.A. §49-6-30S0 (b). The child's

reading proficiency would be rated by the

standardized achievement tests used by the

Austin, Texas

Little Ado About Much

The national news media made a

great fuss about objections to The

Holt, Rinehart, Winston Basic Reader

series for kindergarten through eighth

grade by Tennessee Fundamentalists.

In fact, the case,

Mozert v. Hawkins

County Public Schools,

was frequently

called a modern monkey trial.

But what the media neglected to

mention was that the Holt series had

already been forbidden in other states

- just more quietly.

For instance, when Texas reviewed

readers for public school use in 1980,

Mel Gabler, a semi-professional, Fun-

damentalist textbook critic, raised

state. If deficiencies develop, the parents

and school officials should confer to facili-

tate improvement. The Court finds that

these children are bright and capable of

completing such a program without serious

detriment to their reading skills or citizen-

ship. The specifics of this program willbest

be developed by the professional educators

and the parents.

The home schooling opt-out does not

contravene the Establishment Clause. There

is neither state sponsorship, financial sup-

port, nor active involvement of the sover-

eign in religious activity. This holding is in

accordance withSpence, supra, and Moody,

supra, which granted similar relief without

an Establishment Clause problem.

Accordingly, the defendants are hereby

ENJOINED from requiring the student-

plaintiffs to read from the Holt series and

ORDERED to allow the student-plaintiffs to

attend the Hawkins County public schools

without participating in the course of read-

ing instruction, as long as the parents submit

written notice

o f

their intent to provide

home school reading instruction in accor-

dance with T.CA §49-6-30S0. During the

normal reading period, the student-plaintiffs

shall be excused from the classroom and

provided with suitable space inthe library or

elsewhere for a study hall. No student shall

be penalized for exercising this option.

This opinion shall not be interpreted to

require the school system to make this

option available to any other person or to

these plaintiffsfor any other subject. Further

accommodations, ifthey must be made, will

December 1986

objections to the Holt series. He re-

cently reminisced about it: We thor-

oughly reviewed the series in 1980and

found them to have a consistent theme

that was anti-biblical and anti-Chris-

tian. The Texas State Board ofEduca-

tion reviewed a new list of elementary

grade readers during November 1986.

(The material chosen then would be

used for six years.) The Holt series was

not under consideration at all.

The publisher of the series says that

the readers are in use in 15,000 school

districts. But how many has it already

been quietly kicked out of?

have to be made on a case-by-case basis by

the teachers, school administrators, Board,

and Department of Education in the exer-

cise oftheir expertise, and failingthat, bythe

Court.

V

DAMAGES

Finally, we turn to the individual defen-

dants' assertion that their good faith immuni-

ty bars the plaintiffs' claim for damages.

[G]overnment officials performing discre-

tionary functions generally are shielded from

liability for civil damages insofar as their

conduct does not violate clearly established

statutory or constitutional rights of which a

reasonable person would have known.

Harlow v. Fitzgerald, 457 U.S. 800 , 8 18

(1982). The standard for invoking the good

faith defense is objective, not subjective.

In the case at bar, where Free Exercise

rights clash with Establishment Clause pro-

tections, considerable doubt existed to

whether the defendants' actions violated

clearly established constitutional rights. This

Court's initial appraisal of the situation was

that the constitution did not protect the

plaintiffs from exposure to offensive ideas

and that the Board was not inviolation ofthe

plaintiffs' rights as longas the Holt series was

neutral on the subject of religion. While the

application of the sequential reasoning

required by the Sixth Circuit's on remand

has now lead the Cou

american atheist magazine dec 1986

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