ACLU Outrage: Religious Dystopia Wins by a Nose

ACRU Senior Fellow Robert Knight wrote this article appearing October 13, 2010 on The Washington Times website and on October 14, 2010 in The Washington Times print edition.

During the early 1970s, comedian Flip Wilson played the Rev. Leroy in his fictional Church of What’s Happening Now.

It was clever satire of huckster religion, and Flip got high TV ratings. But it wouldn’t work today. It’s hard to satirize a theater of the absurd.

U.S. District Judge Malcolm Howard ruled last Friday (Oct. 8) that a North Carolina high school had to end the suspension of a 14-year-old who bucked the dress code with a nose piercing. The ACLU lawyer successfully argued with a straight face that the piercing was a ritual of the Church of Body Modification and that Ariano Iacono’s First Amendment right to free exercise of religion had been violated.

According to the Associated Press, the Church of Bod Mod has 3,500 members nationwide and is an old and venerable denomination. Okay, scratch that last part, which I made up. The AP says the church was incorporated in Pennsylvania in July 2008, according to the lawsuit. Who knows how many sacred piercings have been performed in the two years of the church’s existence or whether it has spawned a breakaway tattoo cult?

It’s unlikely that the Bod Mods will grow to overtake Pennsylvania’s burgeoning Amish community, but you never know. As nutty as it seems, the case does raise important issues.

Over the years, the courts have wrestled with what defines a bona fide religion. It’s important mostly for tax purposes or conscientious objection to military service. Without a line drawn, the Internal Revenue Service would be flooded with exemption requests from the Congregation of McNugget Lovers or the Friends Ministry for Dyslexic Yodelers.

America began as a Christian nation, with tolerance toward other religions or no religion at all, and the majority religion is still Christianity. Since the founding, the judicial consensus remained fairly stable, defining religion in familiar terms of major known religions until 1890. In Davis v. Beason, the court asserted that the government’s secular purpose in barring polygamy overrode the claim of religious liberty.

Secular purpose was expanded in 1944, when Justice William O. Douglas, apparently a member of the Freewheeling Church of Tree Hugging and Serial Marriages, wrote a majority opinion in United States v. Ballard that said in part:

The religious views espoused by respondents might seem incredible, if not preposterous, to most people. But if those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain. The First Amendment does not select any one group or any one type of religion for preferred treatment. It puts them all in that position.”

Well, okay. He’s got a point. Nobody can look into a person’s heart except that person and God Himself. But how then do you define religion?

Here’s a quick and by no means complete recent history of High Court church-state rulings.

In 1947, Justice Hugo Black in Everson v. Board of Education invoked Thomas Jefferson’s “separation of church and state” phrase from his 1802 letter to the Danbury Baptists, and we’ve been stuck with it ever since as a constitutional doctrine that is not in the Constitution.

In 1962 and 1963, the Court kicked out Judeo-Christian school prayer, thus establishing atheism as the official religion of public schools. They didn’t put it that way in Murray v. Curlett, but that’s how it has played out.

The court refined the definition of religion a bit more in 1965 in United States v. Seeger, in which a religious belief was established if the person’s beliefs were sincere and meaningful in a manner roughly equal to that of belief in a Supreme Being.

In 1971, in Lemon v. Kurtzman, the court conjured up the three-pronged “Lemon test.” A law is constitutional if it has a secular purpose; its primary effect neither advances nor inhibits religion; and it’s not excessively entangled with religion.

Ten years later, in Torasco v. Watkins (1981), the court did away completely with a theistic requirement, that is, a belief in God as the Supreme Being. In a famous footnote, the court elevated secular humanism to co-equal status with Christianity or Judaism: “[a]mong religions in this country which do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism and others.”

We’re getting there. By 1990, in Employment Division of Oregon v. Smith, the court ruled that Oregon’s ban on the use of peyote was a “neutral law of general applicability,” and so a Native American who was fired for using the drug as part of a religious ritual did not have First Amendment relief. Alarmed that First Amendment protection for religion was slipping, Congress passed two laws aimed at forcing courts to invoke a stricter standard. One was struck down almost immediately. In 1992, in Lee v. Weisman, the Court ruled out prayers by clergy at public school ceremonies.

There’s a lot more, but let’s get back to the Church of Bod Mods. Rulings like this do not happen overnight. They are the product of a steady drip, drip, drip of moral relativism into the judicial vein. It’s not hard to imagine what the reaction to this latest claim would have been from John Jay, the first Chief Justice of the United States, who went on to be president of the American Bible Society.

The final destination of this legal voyage into the cosmic and metacosmic realms is unclear, but we can be assured of one thing. The ACLU will continue to find ways to erase any hint of America’s Christian heritage from the public square while elevating virtually anything else to wear the “religious” label.

Why are they doing this, we might ask them? Well, perhaps the answer is in one of Flip Wilson’s best known lines:

“The devil made me do it!”