Jesus vs. the ACLU

The ACLU has a feisty new First Amendment foe on the right


July 30, 2007 — -- A small southern Louisiana town is the latest battleground for a classic First Amendment showdown over the separation of church and state, pitting a feisty judge with a painting of Christ in his courthouse against the nation's top civil liberties group.

The American Civil Liberties Union sued Judge Jim Lamz of Slidell, La., earlier this month for refusing to take down a portrait of Jesus Christ above the words "To know peace, obey these laws" displayed in a courthouse lobby. The judge says he believes the picture is legal, and the mayor of the city — the mayor and the town are also named in the lawsuit — called the ACLU "America's Taliban."

The case began when a man walked into the Slidell courthouse earlier this year and saw the portrait, which has hung there for a decade.

The man, who is insisting on anonymity because of the nature of the case, is named in the suit as "John Doe." In his first media interview since jointly filing the lawsuit with the ACLU on July 3, the man told ABC News about his encounter with the display.

"You go in the courthouse, and you can't miss it," he said. "And I'm thinking, 'This is a court of law and they're blatantly disobeying the law with a religious symbol.'"

The town is represented in the suit by the Christian-inspired Alliance Defense Fund, which might be called the right-wing version of the ACLU.

"[The ACLU is] one of the worst attackers of religious speech in America," Gary McCaleb, senior legal counsel for the ADF, told ABC News.

Court fights over religious symbols on public property are a cottage industry in America, from Christmas displays on town greens to judges who post the Ten Commandments in their courtroom. At the heart of these fights are the First Amendment's famous first 10 words, known as the Establishment Clause.

The words — "Congress shall make no law respecting an establishment of religion" — seem pretty plain, but they are anything but to the parties involved in a legal scrap like the one in Slidell. And, with a decidedly right-leaning Supreme Court sitting in Washington, there is new zeal among groups like ADF to pursue such cases.

The ACLU and its supporters say the words in the Establishment Clause mean that no government entity can promote or endorse one religion over others. But the ADF believes the words should not bar religious expression by government institutions and were only meant to prevent the creation of a government-sponsored church.

The circumstances surrounding the Jesus painting make the Slidell case intriguing. Because the painting is the only display in the courthouse lobby aside from a picture of the courthouse's founding judge, the ACLU believes it's a religious symbol.

But the judge and his supporters flatly dispute this. Mike Johnson, an ADF senior legal counsel based in Louisiana, told ABC News the display is legal because there's no intent to advance a religion.

"The clear secular purpose for this thing was to decorate the walls," Johnson said. "This is not some sort of ulterior motive to advance Christianity."

Current law and past cases put the painting in uncertain territory. Two years ago, during the Supreme Court of Chief Justice William Rehnquist, two separate and conflicting decisions were issued involving religious displays on government property.

Justice Stephen Breyer provided the swing vote in each 5-4 case, one of which upheld a display of the Ten Commandments and another that struck it down. The rulings were issued on the same day in June 2005.

The difference between the two cases was based in the context of each display. One, in Texas, involved a Ten Commandments monument displayed among other religious and secular symbols. The other monument, in Kentucky, stood alone.

In the Texas case, the display, one of many on the lawn of the Texas State Capitol, had been there since 1961. It was considered by the court to have historic significance, and therefore was not found to be in violation of the Establishment Clause.

In the Kentucky case, the court held that the display of the Ten Commandments in the courthouse in the absence of other messages or historic symbols did violate the Establishment Clause.

In the Slidell case, the ACLU argues that the Jesus painting is much like the Kentucky display and is an obvious endorsement by the government of religion.

"There's not an appearance of government neutrality toward religion in this case," said Katie Schwartzmann, a staff attorney for the ACLU Foundation of Louisiana.

Two outside legal experts who spoke to ABC News were split on Slidell. David Hudson, with the Freedom Forum's First Amendment Center, said he thinks the painting would be illegal because it's not surrounded by other displays presenting various messages.

"It seems like the ACLU might have a stronger argument here under existing precedent," Hudson told ABC News. "The kicker would be [that] the composition of the U.S. Supreme Court has changed since [the Kentucky decision] came down."

Since the Texas and Kentucky decisions were issued, Roberts and another conservative justice Samuel Alito have joined the court after Chief Justice Rehnquist's death and the retirement of Justice Sandra Day O'Connor.

Douglas Laycock, a professor of constitutional law at the University of Michigan's law school, consulted Slidell's Lamz before the judge made the decision not to remove the controversial display. Laycock told ABC News he advised Lamz that he has a chance to uphold the Slidell display.

Interestingly, there are cases in which the ADF and the ACLU come down on the same side of First Amendment cases, although both organizations say they have never directly worked together.

In a New Jersey case decided in December, the ACLU supported the ADF's clients, who argued their daughter's First Amendment rights were violated when her elementary school prohibited her from singing a religious song in a school-sponsored talent show. A federal judge sided with the ADF and the ACLU.

The two organizations also support California high school student Tyler Chase Harper's right to wear a shirt opposing homosexuality in protest of his school's day dedicated to gay rights. The ADF is representing Harper in the case, and David Blair-Loy, an attorney in the ACLU's San Diego office, said the ACLU plans to file a brief supporting the ADF's argument.

"Civil liberties can make strange bedfellows at times," Blair-Loy said. "Our position will align with ADF's position in terms of freedom of speech."

While the New Jersey and California cases both involve federally funded schools, the ACLU contends it's the students, not the schools, who are exercising their First Amendment rights. The ACLU says no reasonable person would interpret their expressions as the desires of the schools themselves to promote one religion over others. Therefore, the schools are not violating the Establishment Clause.

Back in Slidell, it appears that Lamz has no plans to follow in the footsteps of former Alabama Chief Justice Roy Moore, who was removed from office after he refused a federal court order to take down his Ten Commandments monument. Lamz has said that if a federal judge orders the painting out, he'll comply.