by Charles Redfern, first published on www.creedible.com
See previous article on this subject here.
A Sincere, well-meaning pit-bull
I’ve met Peter Wolfgang, the Executive Director of The Family Institute of Connecticut, and I can’t help but like him, but … except … well … but … But … I’m falling back on typical language used in reference to the FIC: We support the FIC, but … We agree with the FIC, but … We endorse the FIC full hog, but … but … but … but … But the FIC scatters exclamation points on its web site like peanut shells in a zoo’s elephant cage; but Peter Wolfgang forever hyperventilates; but he cannot see that today’s adversary might be tomorrow’s friend; but Peter sees no gray areas, only black and white – and those suggesting gray fail to see that gray is a shade of black.
A prime example: A recent FIC Action Committee “action alert.” They’ve endorsed a pro-life Democrat for state comptroller, Waterbury Mayor Michael Jarjura. That’s a good move. Endorsing a Democrat helps fend off charges that the FIC is the Religious Right’s hypnotized child. But they can’t rest there. They’re addicted to alienating language, swallowing it like Dr. House downs Vicodin: “Since the 1980’s, the anti-family secularists who populate the left-wing of the Democratic Party have purged true pro-lifers from their party’s ranks.” That is factually wrong, but never mind, let’s estrange some more: “More recently, pro-life Democrats have had their reputation tarnished by the betrayal of Bart Stupak (D-MI), who voted for a healthcare bill that subsidized health plans covering abortion. Stupak’s cowardice …”
… Swatting Maine’s black flies …
So it seemed the very atmosphere breathed a giant, “uh-oh,” when the FIC heard that the Enfield Board of Education rescinded its decision to hold its graduations. They would fight the evil ACLU!
Court documents show the FIC rallied its own members through e-mails. Vacating the cathedral “will increase the power of aggressive secularism and cause further harm to the proper role of faith communities in our state.” Moreover, “the secular left wants to punish Christian churches for their prophetic voice,” and the “battle over graduations is simply the newest front in a war to silence and marginalize churches.” Three dozen FIC members called all nine Enfield board members the day before their crucial March 23 meeting, when Peter Wolfgang, donned in a white shirt, a dark striped tie, and a black suit, testified.
Those four minutes and six seconds proved pivotal. He supplied written documents assuring the Board that the American Center for Law and Justice would take its case pro-bono (free of charge); he said board members would not be personally liable, which is true. Then came the first you-gotta-be-kidding moment. Some worried the Board would be compelled to pay the ACLU’s court costs should they lose. He assured them: “In the entire history of the ACLJ, that has never happened. They don’t bring suits unless they’re going to win … It has never been the case that one of their clients is going to pay the ACLU. It’s only happened in the reverse. The ACLJ wouldn’t even offer to represent Enfield unless they were sure they could win this.”
Would anyone mind if I open my window and scream? For one thing, the ACLJ has lost to the ACLU. From the ACLJ web site: “By a vote of 5-4, the Supreme Court on June 27, 2005 upheld a lower court decision declaring the posting of copies of the Ten Commandments in the courthouses of two Kentucky counties to be unconstitutional. The ACLJ filed amicus briefs in support of the constitutionality of the displays [the ACLU was against it]” (emphasis added). Perhaps the ACLJ did not pay the court costs, so Wolfgang might be technically right but really misleading. Second, have you ever heard of Miranda v. Arizona, Peter? How about Roe v. Wade? Or how about the National Socialist Party of America (that’s right: the American Nazi Party) v. the Village of Skokie, Illinois, in which the ACLU had the (commendable) gall and temerity to defend the Nazi’s right to march through Skokie – a largely Jewish community in 1977 and the home of holocaust survivors! Ugh! And the lawyer who pleaded the Nazis’ case was Jewish! And they won! And they were right in doing it (if Nazi’s don’t have the right to free speech, who’s next?)! And … and … and … black flies in Maine!
How about the little ditty on never underestimating your opponent? Especially an opponent whose predecessor formed during World War One to fight off two federal statutes that make the modern-day Patriot Act look like puff and fluff?
Third, attorneys I know invariably describe trials as “rolls of the dice” or a “crap shoots.” Witnesses don’t show up; a “good” witnesses turns “bad” (can you say, “Mark Fuhrman?”) and judges have different styles, philosophies, and backgrounds. Janet Hall, for example, was born in 1948 in Lowell, Massachusetts, graduated in 1970 from Mount Holyoke, magna-cum-laude, and the New York University School of Law in 1973, which she attended as a Root-Tilden-Kern scholar (which, according to its web site, “pays full tuition, without regard to financial need, for three years of law school to outstanding students who promise to pursue public service.”). She was a trial attorney for the anti-trust division of the US Department of Justice from 1975 to 1979 and a special assistant district attorney for the Eastern District of Virginia in 1979. She was in private practice in Hartford until 1997, and became a federal judge when President Clinton nominated her.
Add it up: She’s so smart she intimidates lesser mortals like me; she grew up in Massachusetts when the Kennedy’s came to power (did those immortal words by the president from Massachusetts play a role when she was around the impressionable age of twelve, “Ask not what your country can do for you…”? Inquiring minds want to know.); she went to law school because she wanted to be a public servant (Root-Tilden-Kern); she was a Clinton-era appointment. To top it off, she agreed with the ACLU in 2005 and ruled against provisions in the Patriot Act.
I’m not seeing a sure thing here.
But Wolfgang went on. He claimed that “essentially the ACLU is bluffing” (You gotta be kidding!) And then the fateful words: “The larger point is to ask you to stand up for your religious liberty. Don’t give in. The first amendment is worth fighting for.”
Open window … Scream … You gotta be …!
Even if Judge Hall wanted to rule in favor of Enfield in the subsequent law suit – even if she secretly yearned for all those seniors to break out in glory-halleluiahs and emulate Whoopie Goldberg in Sister Act – her hands were tied. Wolfgang has just called upon the board – a government organization – to assert its religious liberty. He has called upon it to assume a religious position, to establish, if you will, a religious viewpoint. This was not lost on her honor in her ruling.
He continued: He knew there were divisions between the two parties, but “this is an opportunity to transcend those divisions,” and “this is something you can all come together on.” You gotta be kidding! Those of us involved in conflict resolution would never have given such an assurance. Court battles never unify. Its apologists crow over its “adversarial” nature; it’s about guilt and innocence, winners and losers – and even the winners must reinvent their now-mauled reputations; relationships are shredded. Only the pit bulls thrive.
But the audience did not see how Peter had just sealed the Board’s fate. He concluded: “Enfield – Enfield” has become “ground zero in battles that really affect the whole nation.” Many applauded as he stepped down.
The Vote and its aftermath
The board voted 6 to 3 on April 13 to hold the graduations at the Cathedral. Anticipating the suit, it asked the church to mask or remove all banners, remove a visitors table, remove displays from the church bookstore window; cover the large fountain and art work; cover the word “sanctuary”; remove the communion table; cover the carpet’s religious imagery; cover the image of a dove; remove all fliers, brochures, hymnals, Bibles, donation envelopes, and “informational papers of any kind.” No cathedral staff should serve as greeters – nor should staff “interact in any way with the attendees, other than as necessary to provide the services contracted for by the Enfield BOE (Board of Education).” And, finally, “any religious image or message not specifically described above will be masked or removed if disclosed, the only exceptions being the cross at the top of the structure, and what has been represented to be a cross in the stained glass formed by the steel window mullions above the front stairway.”
The irony: after an appeal to “stand up” for religious liberty, a governmental body was instructing a church to sterilize its building of religious symbolism. To repeat: A governmental body was telling a church which of its items were “religious” and which were not; and a governmental body was telling the church to clear itself of the symbols it deemed improper. My guess: Washington, Madison, and Hamilton would have seen this as a clear violation of the establishment clause. They would have wagged their wigged heads.
Wolfgang e-mailed his supporters and claimed an FIC a victory: It was the lone organization that convinced Enfield to stand up to the ACLU. The e-mail, of course, would be used as evidence.
Climax and unraveling
The ACLU was not bluffing. Nor was Americans United for the Separation of Church and State. They filed their complaint on May 4, asking for a preliminary injunction against the ceremonies in behalf of five anonymous individuals, two students and three parents, all referred to as “Doe.”
The complaint, “Does 1, 2, 3, 4, 5, Plaintiffs v. Enfield Public Schools, Defendant,” is typical: any fact, however remote and far-fetched, is used to support the plaintiffs’ case. Did anyone warn Stokes he’d see harmless comments written two years ago used against him? “Mr. Stokes is a minister who serves as Pastor of Cornerstone Bible Church in East Windsor, CT, … In a January 14, 2008 blog entry, Mr. Stokes wrote, ‘my first love and responsibility is the fast growing congregation of Cornerstone Church,” and, “’my second responsibility is the Enfield Board of Education’ … On June 22, 2009, in a blog entry directed at graduating seniors, Mr. Stokes wrote, ‘Keep God in your life. We are physical, emotional, and intellectual beings. However, we are also spiritual beings and in my opinion that is the most important part of our existence. Many of you were brought to church as children and teens … Now it is time for you to get involved in your faith and help to keep the church of your choice healthy and strong. You will find that prayer is the key to a successful life. In good times or in bad, prayer is the component that will strengthen your daily life.”
All very proper. To be expected. Attorneys pack their motions with anything that might tip the scales – including what the legal profession calls “throw away” arguments.
Many rallied behind the Board. Harford Courant reporters Shawn Beals and Venessa De La Torre interviewed Enfield students. Said one: “It’s our senior year; we shouldn’t haveto worry about this.” He liked indoor ceremonies. Several students at both schools said they either didn’t notice or didn’t mind the religious symbols. Rachel Zeni called the Cathedral “gorgeous” and “perfect.”
A view from the bench
The issue for Hall, of course, was not interviews or opinion polls, but the law. She denied an ACLJ request to recues herself and held a hearing on May 24 and 25. She toured the church building on the 25th as well. Her ruling came on the 31st.
It’s a jarring read. The towering cross on atop the church building is evidence; the painting on the window above the main entrance door is evidence; the indoor fountain “that could be perceived to be a representational shape of a tomb,” evidence; the jets supplying the water, “arranged in the shape of a cross,” evidence. A large banner bearing the words of Psalm 100:4 is evidence … evidence … evidence … evidence: symbols that have spurred soul searches, changed lives, and inspired saints are … exhibits. Evidence. Data. “On the edge of a table just below the front of the baptistery facing the audience, is written, in size visible from the choir, the words, ‘this do in remembrance of me.’” Those sacred words are … evidence.
I must emphasize: Hall did nothing wrong. She was merely listing all this to pose the question mandated from higher courts: Would a reasonable observer understand this gathering as an endorsement of one religion over another? And she concludes: Yes. The seniors are likely to see all the symbolism and infer such an endorsement – especially since other venues were available (Remember that first ACLU letter back in 2006? That “courtesy” is now evidence – especially since officials from Enfield’s schools had suggested them again at recent meetings). While it is true that the Board requested the removal or covering of these vaunted symbols, it made similar requests in the past and the Cathedral did not comply. Why expect anything different this year? Besides, there’s all the FIC e-mail rhetoric and the call for the Board to “stand up for its religious rights.” She’s judicious: “The court does not at this point conclude that Enfield Public Schools adopted the ‘purpose’ of FIC in seeking to move graduations to First Cathedral. A legislature’s purpose need not be equated with a lobbying group’s purpose.” The issue is whether a “reasonable observer” would understand the graduations as such an endorsement. Given the Board’s turnaround at FIC urgings, an observer would be very reasonable in concluding just that.
And then there’s the Lemmon Test’s third prong: Has the government excessively entangled itself in religion? A government agency has designated which imagery is a symbol and tells a church to clear it out or cover it up. Her honor opines: “The act of the state entering a place of worship and directing church staff to physically cover or remove objects within that space creates constitutional questions.”
Note the crucial subtlety that evades pit bulls: Hall rendered her ruling partly to protect the church itself. And she did not rule that no one can hold a graduation ceremony in any church building at any time – just at this scene at this time. She concludes in routine, yet authoritative and non-negotiable court language: “Plaintiffs’ Motion for Preliminary Injunction (Doc. No. 5) is hereby GRANTED. The defendant, Enfield Public Schools, is hereby preliminarily enjoined from holding the 2010 graduation ceremonies for Enfield High School and Enrico Fermi High School at First Cathedral … SO ORDERED.”
I can almost hear the gavel fall, followed by the words, “next case.”
Such rulings never prompt celebration parades. Warnings may very well have been issued that the US District Court of Connecticut would be fielding more than the usual volume of hate mail.
The pit bulls roared, growled, and drooled. Hartford Courant Columnist Rick Green was especially snide. He liked Hall’s decision, then wagged his finger: “Enfield parents and taxpayers are right to wonder what the priorities of the board of education are when Constitutional grandstanding is a higher priority than the nuts and bolts of public education,” and, “as US District Judge Janet Hall pointed out in her ruling on Monday, Stokes colluded with Family Institute Director Peter Wolfgang to come up with a plan to hold the graduation at First Cathedral …”
I’ve always been told that even opinion columnists should get their facts right. If anything, the Board wilted under pressure. It did not grandstand. And its involvement in this issue does not mean neglect of others. Green seems unfamiliar with the pressure the board faced from its own citizens – nor is he aware that the board was working on its budget and school consolidation program. How about a little old fashioned shoe-leather work, Rick? I drove to Enfield and, through a little chit-chat, discovered that Stokes had only met Wolfgang twice and Archbishop Bailey once.
And yet Green goes on. Stokes had supposedly “cut a deal” with the Family Institute for free legal help. Green uses conspiracy language when Stokes was merely fulfilling his civic obligation: Save the town money. If the ACLJ, which does have a successful – if not perfect – record in arguing its cases, and if it was offering its services pro-bono, then Stokes had to explore the opportunity. Green’s language is technically correct but misleading. We can throw it back at Green himself: “After clandestine meetings with government officials and obtaining information shared with no one else, Rick Green schemed before his computer today and tapped on the keyboard …”
That’s normally called a “scoop,” Rick. It’s your job. Do it and let Stokes do his. He can talk to people, which is what he and Wolfgang did. And by the way, your editors were factual but misleading again when they pasted a picture of Pat Robertson in one of your write-ups. It’s true that Robertson established the ACLJ. It is also true – whether we like it or not – that the ACLJ has won the respect of the ACLU itself. Read Nadine Strossen’s comments when she stepped down from the ACLU presidency in 2008: “Activists across the spectrum have more in common with each other than we do with members of the public who don’t care about these issues. Take the head of the Christian Coalition’s legal arm, Jay Sekulow [ACLJ’s chief counsel]. He cares passionately about the same issues I care about. Obviously we deeply disagree on abortion and gay rights. But we have strong agreement on freedom of speech and free exercise of religion. The ACLU absolutely defends the free speech rights of anti-abortion protesters.” The two organizations have actually filed joint actions.
The FIC hyperventilated: “Judge Blocks Graduations! Enfield to Appeal!” Judge Hall was conveying that “FIC and First Cathedral are outsiders, not full members of the political community, and that despisers of religion are insiders, favored members of the community.” He never mentions the students.
Many reacted to the ruling as I first did. It smacked of government baby-sitting. I wrote up a column in which I pictured a field trip to Europe and fears of religious imagery. It was witty. I got compliments. I was oh-so proud of myself. But then, as the pit bulls barked and growled, I thought of Proverbs 18:17. I read Hall’s decision. I saw her reasoning. She followed the guidance of the higher courts. In short, she was doing her job.
I was relieved when the Enfield Board decided not to appeal the case. It was time to move on and think of the students. Wolfgang, of course, had a cow and took it as a personal insult. I can only describe his June 4 e-mail as “incredible”: “Enfield Caves In! Twenty-one years ago today a young man stood athwart a column of tanks in China’s Tienanmen Square for the sake of freedom. Last night, Enfield’s Board of Education decided it could not even face down a lawsuit for freedom’s sake …”
You gotta be kidding! This is not Tiananmen Square!
But on he gasped: “Family Institute of Connecticut’s role in the Enfield graduation battle was to help secure the BOE’s April 13th 6-3 vote for returning graduations to First Cathedral. Afterwards it was up to the American Center for Law and Justice and the BOE to carry on the fight. The ACLJ did its part; the BOE did not … The BOE took a cowardly position last night. They betrayed the trust that was placed in them to act according to the commitment they had made. They betrayed their commitment …”
Where is the concern for Enfield’s students? Where is the compassion for beleaguered volunteers thrust into a court fight amid budget cuts and school consolidations? If they are like town officials I’ve known, at least some of them are losing sleep over the teacher layoffs. They may very well know some of those teachers and staff. And what about his own inaccurate assessments that propelled them into the fight? What about the statements he made that undermined their case? Pit bulls bark, growl, and even bite. They rarely confess.
And then, after an understandable swipe at Joe Green, there’s this: “We stood up for religious liberty! Will you? Click here to donate to FIC, the one Connecticut organization that takes the fight to them!”
I won’t comment.
Green and Wolfgang yelled at each other through e-mails, Green’s column, and Wolfgang’s letter to the editor. Green accused his new enemy of being in it for the money – which I doubt is true, despite Wolfgang’s final paragraph. He deserves a mountain of criticism, but he isn’t a money-chaser. He really believes in his cause and that’s why he’s there. But no matter. The grown men insulted each other like screaming kids in a playground. Others joined in: Agnostic bloggers called Stokes a liar while conservatives accused Hall of “judicial activism.” The besieged Enfield Board reversed itself again on June 8 and decided to appeal anyway – even while it prepared for graduations at the schools themselves. Wolfgang reacted: “FIC applauds last night’s vote and hopes that the BOE’s erratic behavior will not damage Enfield’s chances of winning the lawsuit.”
No grace. None.
The appeal was denied not on the merits itself but because the board was already planning to hold graduations at the schools, which means no permanent injunction has been filed. The door is still ajar for a court battle next year. I hope Enfield doesn’t walk through it. The ACLU, meanwhile, has filed for a permanent injunction, so the court case winds on.
Healing? Recovery? Solutions?
Judith Apruzzese-Desroches said this to the Courant when she gave her reasons for voting against the appeal on the 8th : “We’re walking into something and I don’t think people realize how big it is and how long it’s going to last.”
Suffice it to say that people have been hurt. While it’s true that many Enfield residents urged a principled stand, their town was soon caught in the crossfire of someone else’s battle. Peter Wolfgang forever scatters his exclamation marks over principles and dogmas; the American Civil Liberties Union stands for its principles and dogmas as well; so does the ACLJ. Principles are fine, but those organizations – and others – rarely dwell on individual men, women, boys and girls. They dwell in the world of concepts.
The Enfield Board of Education can think beyond mere principle without denying its value. It can think of the students, parents, and relatives whom principles and dogmas should serve. I’m not arguing for moral relativism. I’m merely counseling perspective. Individual board members must ask themselves, honestly: “Did I forget the people in this battle over principle? Did we – as a board – get so enmeshed in winning the fight that we lost sight of those we serve?” I would challenge: Picture your Pyrrhic victory if you had won: A church building with its imagery stripped or veiled. Would you ever ask that of a synagogue? Or a mosque?
I’m convinced that Greg Stokes has a pastor’s heart for those people – which is good, commendable, and quite Constitutional. I know he’s praying for his town and I will pray for him. I’ll pray he will remember those verses: James 1:19; James 1:26, and Proverbs 18:17. The sentiments behind those verses can guide him and his board. They’ll keep them out of the cross-fire of interest groups and those who would use them for their own agendas. They’ll keep them out of the pit-bull den.
I’ll speculate more in the future.
For Further Reading:
Altman, Alex, “Outgoing President Nadine Strossen,” Time, October 28, 2008, http://www.time.com/time/nation/article/0,8599,1854339,00.html
American Center for Law and Justice web site: http://www.aclj.org
American Civil Liberties Union web site: http://www.aclu.org/
Allen, Bob, “Connecticut school board to appeal graduation ruling after all,” Associated Baptist Press, June 9, 2010, http://www.abpnews.com/content/view/5222/53/
Chernow, Ron, Alexander Hamilton (New York: Penguin Press, 2004).
Does 1, 2, 3, 4, AND 5, Plaintiffsv. Enfield Public School, Defendant Case 3:10-cv-00685-JCH- http://www.aclu.org/files/assets/2010-5-5-DoesvEnfield-Complaint.pdf
Epstein, Lee; Walker, Thomas G., Constitutional Law For A Changing America: A Short Course, Second Edition (Washington, D.C.: CQ Press, A Division of Congressional Quarterly, Inc., 2000).
Family Institute of Connecticut: http://www.ctfamily.org/
Green, Rick, “Enfield Learns About Constitution, Town Pays,” Hartford Courant, June 1, 2010, http://blogs.courant.com/rick_green/2010/06/enfield-politicians-learn-abou.html
Green, Rick, “Family Institute of Connecticut Is All About The Money,” June 8, 2010, http://www.courant.com/community/enfield/hc-green-0608-20100607,0,6475329.column
Hall, Janet A. Ruling: Plaintiffs’ Motion For Preliminary Injunction (Doc. No. 5) http://www.acluct.org/downloads/Enfieldgraduationdecision.pdf
Hamilton, Alexander; Madison, James; Jay, John, The Federalist Papers (London: Penguin Books; first publishing in 1788, Penguin Book Edition, 1987).
Root-Tilden-Kern Public Interest Scholarships: http://www.law.nyu.edu/publicinterestlawcenter/financialassistance/scholarships/rootscholarship/index.htm