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8/9/2019 American Atheist Magazine Dec 1986
1/52
December 1986 A Journal of Atheist News and Thought
$2.95
8/9/2019 American Atheist Magazine Dec 1986
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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.
American Atheists Membership Categories
Life $500
Couple Life* $750
Sustaining , $100/year
Couple*/Family $50/year
Individual $40/year
Senior Citizen**/Unemployed : $20/year
Student** $12/year
*lnclude partner's name **Photocopy of ID required
Allmembership categories receive our monthly Insider's Newsletter, membership cardts), a subscription to
American Atheist magazine for the duration ofthe membership period, plus additional organizational mailings,
i.e., new products for sale, convention and meeting announcements, etc.
American Atheists - P.O. Box 2117 - Austin, TX 78768-2117
8/9/2019 American Atheist Magazine Dec 1986
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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.
NEW ADDRESS: (Please print) OLD ADDRESS: (Please print)
Name
Address
City _
State _
Effective Date: _
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
Austin, Texas
Address
City _
State _
P.O. Box 2117 Austin TX 78768-2117
Zip _
Zip _
December 1986 Page 1
8/9/2019 American Atheist Magazine Dec 1986
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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
8/9/2019 American Atheist Magazine Dec 1986
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8/9/2019 American Atheist Magazine Dec 1986
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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 \
.' - ,-
8/9/2019 American Atheist Magazine Dec 1986
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. ~
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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.
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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.
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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.
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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.
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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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8/9/2019 American Atheist Magazine Dec 1986
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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
8/9/2019 American Atheist Magazine Dec 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