Your freedoms are at risk where people attempt to supplant “Freedom of Religion” with “Freedom from Religion”

On March 7, 2014, Governor McAuliffe vetoed the Virginia legislature’s amendments to § 22.1-203.1 and 22.1-203.3 of the Virginia Code, claiming that such amendments are not necessary, however, his explanation demonstrates the very need for the legislation.

The legislature obviously believed the amendments were necessary to make clear the public policy of Virginia with its long historical roots that protect its citizens’ rights to religious freedom.

The passage of this law would have removed the ignorance that frequently pops up from time to time among educators who have misinterpreted “freedom of religion” to mean “freedom from religion” in our schools.    The passage of this law would have saved the Commonwealth money by giving those educators a clear guide by which they may avoid litigation that follows when students are denied these basic freedoms.

Ironically, the Governor claims that passage of this legislation would lead to litigation, when his veto explanation invites schools to regulate the students’ religious expression and will certainly result in denial of religious freedom and resulting litigation.

Mr. McAuliffe, Virginia’s governor stated in defense of his veto the following:

Pursuant to Article V, Section 6, of the Constitution of Virginia, I veto Senate Bill 236, which proposes to codify the right of students in public schools to pray, engage in religious activities or other forms of expression and to organize prayer groups, gatherings and religious clubs to the same extent that students may engage in nonreligious activities or expression and organize other activities and groups.

While this bill provides that school divisions may disclaim school sponsorship of student-organized religious groups and activities, it requires divisions to adopt a policy that creates a “limited public forum” at every school event with a public speaker and refrain from regulating a student’s voluntary expression of a religious viewpoint on an otherwise permissible subject in such a setting.

Although proponents claim that SB 236 is needed to protect the religious freedom of Virginia’s public school students, the bill actually infringes on students’ right to be free from coercive prayer and religious messaging at both voluntary and required school events. It is firmly settled in law that the Establishment Clause of the United States Constitution forbids school-sponsored prayer and religious indoctrination, as well as any school initiative designed to endorse prayer or sponsor a particular religious viewpoint. Further, the federal Equal Access Act already requires high schools to allow students’ religious clubs the same privileges afforded to secular clubs.

Importantly, the Guidelines Concerning Religious Activity in the Public Schools, developed by the State Board of Education and the Office of the Attorney General, have, since 1995, clearly informed Virginia school divisions of the extensive breadth of students’ freedom of religious expression, including choice of religious literature, discussion of religious themes with other willing students, voluntary student prayer, and other non-disruptive expressions of belief, both verbal and as expressed through attire or other personal effects.

I believe SB 236 is not necessary to ensure students’ freedom of religious expression. The freedom of religious expression is already  protected from intrusion by Virginia school divisions. SB 236 would likely subject school divisions to extensive and costly litigation. This would seriously impinge on the ability of our schools to fulfill their most important mission – providing our students with the quality education they require to succeed in the future.

Accordingly, I veto this bill.

It is worth dissecting his excuse.

He states, “Further, the federal Equal Access Act already requires high schools to allow students’ religious clubs the same privileges afforded to secular clubs.”   The reality is that the United States Constitution affords those clubs the same privilege, but it took the Equal Access Act to educate individuals of that right.   The proposed legislation vetoed by the governor would have provided similar education.

He states, “Although proponents claim that SB 236 is needed to protect the religious freedom of Virginia’s public school students, the bill actually infringes on students’ right to be free from coercive prayer and religious messaging at both voluntary and required school events. It is firmly settled in law that the Establishment Clause of the United States Constitution forbids school-sponsored prayer and religious indoctrination, as well as any school initiative designed to endorse prayer or sponsor a particular religious viewpoint.”   This excuse is code for an invitation to educators to continue to deny “freedom of religion” and to attempt to create “freedom from religion.”

The establishment clause of the United States Constitution states “Congress shall make no law respecting an establishment of religion. . . .” It is immediately followed by what is referred to as the “Free Exercise Clause” which stated “or prohibiting the free exercise thereof.”   Governor McAuliffe and many like him attempt to separate the two.  He claims in his excuse that “the bill actually infringes on students’ right to be free from coercive prayer and religious messaging at both voluntary and required school events.”   The legislature’s bill passed by both the House and Senate provided guidance to the schools, by requiring the school to disavow itself as the government from the students’ expression, while not prohibiting the students’ free exercise of religious expression.   It would make clear that the religious expression of students is theirs alone and not the government’s—thus no establishment nor a prohibition on the free exercise.  The faithful performance of this act would have reduced litigation.   Instead, the Commonwealth’s chief executive has by his veto excuse encouraged schools to equate a school’s tolerance of the voluntary religious expression of students as “coercive prayer and religious messaging.”   This liberal intolerance of freedom of religion is dangerous.  

At the 2014 National Prayer Breakfast, President Barack Obama acknowledged, “It’s also clear that around the world, freedom of religion is under threat.”  What he didn’t acknowledge was that the threat is greatest in the United States where the beacon of religious liberty once was the brightest but is now under attack.  Under President Obama and men like Governor McAuliffe, religion will be marginalized to a private and personal exercise, and not the free exercise guaranteed by the United States or Virginia Constitution.   

Even the Virginia courts will provide little protection.  Virginia trial courts have persistently ignored the fact that the Virginia Bill of Rights are self-executing, elevating the protection of personal property above even life and liberty!  They frequently misconstrue Robb v. Shockoe Slip Foundation, 228 Va. 678, 324 S.E. 2d 674 (1995) by erroneously applying to constitutional provisions in the bill of rights the analysis for determining whether constitutional provisions outside the bill of rights are self-executing.

 

Thomas H. Roberts, Esq.
Founder of Freedom Works Foundation
Virginia Civil Rights
Richmond, Virginia

The Virginia Constitution provides the following:

Section 16. Free exercise of religion; no establishment of religion.

That religion or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and, therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other. No man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but all men shall be free to profess and by argument to maintain their opinions in matters of religion, and the same shall in nowise diminish, enlarge, or affect their civil capacities. And the General Assembly shall not prescribe any religious test whatever, or confer any peculiar privileges or advantages on any sect or denomination, or pass any law requiring or authorizing any religious society, or the people of any district within this Commonwealth, to levy on themselves or others, any tax for the erection or repair of any house of public worship, or for the support of any church or ministry; but it shall be left free to every person to select his religious instructor, and to make for his support such private contract as he shall please.

Footnotes:

For examples of cases where the lower courts have refused to recognize the self-executing nature of the bill of rights – See Chandler v. Routin, 63 Va. Cir. 139 (2003)(Norfolk). Other examples include, Gray v. Rhoads, 55 Va. Cir. 362, 368 (Cir. Ct. Charlottesville 2001) J. Taylor, remanded on other grounds, 268 Va. 81, 597 S.E.2d 93 (2004), (“The reason the cases finding Article I, § 11, of the Virginia Constitution to be self-executing all deal with deprivation of property, not life, is obvious; that provision expressly provides a remedy for takings of property by a governmental entity, stating that “private property shall not be taken for public use without just compensation.” (emphasis added). This language, then, renders Article I, § 11, self-executing, but only to the extent of deprivation of property; the section does not include similar language for deprivations of life and liberty. If the drafters had intended to provide similar rights and remedies for deprivation of life and liberty, they could have done so by including such language in that provision..”); See also Young v. City of Norfolk, 62 Va. Cir. 307, 312-313 (Va. Cir. Ct. 2003) (“Article I, § 1, of the Constitution of Virginia is unchanged since its adoption by the Convention of 1776. It sets forth the natural rights of man. Article I, § 10, of the Constitution of Virginia, the prohibition on the issuance of general warrants, is also unchanged since its adoption by the Convention of 1776. I am aware of no authority in the intervening two hundred twenty-seven years that declares any private right of action exists under either provision. The silence of so many courts over so many years is, to me, conclusive. Article I, § 11, of the Constitution of Virginia embraces many objects, but only its provisions governing the taking or damaging of private property for public use have been held to be ‘self-executing.’ The General Assembly of Virginia has never adopted any statute comparable to 42 U.S.C. § 1983. The Commonwealth, its officers, and its agencies have been sued countless times under that statute, so if the General Assembly had intended to provide such a remedy under this section of the Constitution of Virginia, I am certain it would know how to do so.”).

On the other hand, see  Robb v. Shockoe Slip Foundation, 228 Va. 678, 324 S.E. 2d 674 (1995) which sets forth the “fundamental analysis” for determining whether a constitutional provision is self executing.

A constitutional provision is self-executing when it expressly so declares. Even without benefit of such a declaration, constitutional provisions in bills of rights and those merely declaratory of common law are usually considered self-executing. The same is true of provisions which specifically prohibit particular conduct. Provisions of a Constitution of a negative character are generally, if not universally, construed to be self-executing.

Robb, 228 Va. at 681-82 (quotations and citations omitted).  A constitutional provision is self executing, then, if it expressly so declares.  A provision is also usually self-executing if (1) it is part of a bill of rights; (2) is merely declaratory of common law; (3) prohibits particular conduct, or (4) is of a negative character.  Id.