From the WSJ Opinion Archives
HOUSES OF WORSHIP
By Process of Intimidation
A portrait of Jesus and a lawsuit.
The town of Bridgeport, W.Va. (pop. 7,300), recently became the site of the latest skirmish in the culture wars. Americans United for the Separation of Church and State and the West Virginia chapter of the ACLU filed a federal lawsuit on behalf of two plaintiffs against the county board of education and other local officials. The suit alleged that Bridgeport High School violated the Constitution's Establishment Clause by hanging a copy of Warner Sallman's famous portrait, "Head of Christ," on a wall outside the principal's office.
The two sides recently settled the case: The school has agreed not to display the portrait but may use textbooks and other curriculum-related materials that reproduce it. Although such a settlement sounds amicable and fair, the case itself remains troubling and illustrates some of the tactics used to push religion out of the public square.
One fact that made the claim of church-state violation so odd in this case was the time-line: The disputed portrait had been hanging in the school for a long time. In 1969, a retiring guidance counselor, who had the portrait in his office, gave it as a farewell gift to the school's principal (now also retired), who decided to hang it outside his office. Thus students, parents, teachers, employees and visitors to Bridgeport High School apparently suffered from this violation of the First Amendment for 37 years.
So what sparked the original lawsuit? The portrait offended two local residents, Harold Sklar, an attorney whose son graduated from the school in 2004, and Jacqueline McKenzie, a substitute teacher whose daughter and three stepsons had also graduated from the school in the past few years. Mr. Sklar, who is Jewish, and Ms. McKenzie, who is Catholic, asked the school to remove the portrait several times. When the school refused, they lobbied the board of education. Mr. Sklar gave the board a copy of Washegesic v. Bloomingdale Public Schools, a 1993 federal court decision that banned Sallman's portrait from a public school in Michigan. The board refused to remove the portrait. With the assistance of both the ACLU and Americans United, Mr. Sklar and Ms. McKenzie filed a federal lawsuit to force the board to remove the portrait.
The suit alleged that the portrait illegally promoted Christianity. In a statement posted on Americans United's Web site, the Rev. Barry W. Lynn, the organization's executive director, said: "Public schools must welcome children of all religious beliefs." But is a single portrait unwelcoming? And if it is, would more portraits reflecting a wider range of beliefs help?
According to board member Michael Queen, when Mr. Sklar was asked by the principal "to organize an effort to help the school develop a 'Wall of Great Teachers' to include other religious figures," he declined. Mr. Queen believes that both the ACLU and Americans United were being "very selective" about what they considered a violation of the Establishment Clause. He notes that both groups had no objections to a two-foot statue and a portrait of Buddha that remain displayed in two classrooms in the school. (The settlement does not affect these two religious items.) "If they wanted to make it religion-free, why didn't they go through the entire school?" Mr. Queen asks. It would seem that some religious symbols are bigger violations of the Establishment Clause than others.
There is another aspect of this case that deserves attention. In federal lawsuits against state officials that allege violations of constitutional rights, defendants are required to pay the plaintiff's attorney fees if they lose the suit. In this case, Americans United explicitly warned the Bridgeport school board that, if it lost the case, it would be paying over a substantial amount of money to its own lawyers and those of the ACLU. Thus there is a strong--and unjustly one-sided--financial incentive on the part of many public institutions to cave in to the demands of groups such as the ACLU and Americans United and settle such suits.
To remedy this problem, Rep. John Hostettler, a Republican from Indiana, recently introduced the Public Expression of Religion Act. It bars the awarding of attorneys' fees in federal lawsuits involving the Establishment Clause. "It is outrageous that public officials have been threatened with the prospect of financial ruin merely because they wish to defend their constitutional rights in a court of law," Mr. Hostettler says in a statement posted on his Web site.
The House passed Mr. Hostettler's bill in September. Sen. Sam Brownback, a Republican from Kansas, has introduced a similar bill in the Senate, and it has been referred to the Senate Judiciary Committee. Not surprisingly, both the ACLU and Americans United strongly oppose this legislation.
The prospects that this bill will become law have been greatly diminished by the sweeping Democratic victory in the midterm elections. In fact, Mr. Hostettler was among the Republicans who were defeated. But if Democrats want to shore up support among religious voters, passing the Public Expression of Religion Act might go a long way toward helping them.
Mr. Cavalli is a freelance writer in New York.
