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Protecting private religious rights

THE BOUNDARY between church and state has always been subjected to constant probing and stretching. Advocates have attempted to include mandatory prayer in school curricula, place the Ten Commandments on courtroom walls, and specifically allow or ban various clubs based on religious principles.

Generally, courts deal with these cases justly. The simple interpretation is that under the First Amendment of the Constitution, the government is not allowed to proselytize, nor can it ban any otherwise law-abiding religious group. However, a recent ruling by the 7th Circuit court of appeals has made an almost bizarre alteration to the simple principle.

In the town of Marshfield, Wisconsin, a statue of Jesus used to stand in a public park. Some citizens of the town, in response to a lawsuit threatened by an atheist group, decided in 1998 that they would buy the plot of land on which the statue stood for the price of $21,726. The land, and the Jesus statue on it, therefore became private property. The lawsuit continued nonetheless, and on Friday the 7th Circuit handed down its decision.

According to the court of appeals, the Jesus statue remained unconstitutional despite its not being displayed on public property. Circuit Judge Michael Kanne wrote that because the park's layout could lead a reasonable person to "conclude that the statue is a part of the public park and that the government, rather than a private entity, endorses religion," a change had to be made.

The court did not order that the statue be taken down, but rather suggested that some clear demarcation be set up which would indicate the boundary between private and public land. Ultimately, however, the decision that will determine the fate of the statue still rests with the district court.

In short, the court ruled that it was not necessary that the government actually make any attempt to proselytize. The mere appearance that the government is supporting a particular religion is sufficient to make something unconstitutional. While some advocates hailed the decision as an affirmation that the statue was a clear violation of the Constitution, the decision is deeply troubling for a variety of reasons.

The first is that it places an almost ridiculous burden on the government. Reasonable people could conclude that all things appear to be advocacy, when in fact many are not.

Consider the case of a church under the protection of a county-wide historical commission. Such a thing is not uncommon in my home state of Alabama. The church is a legitimate historical location. However, a reasonable person could easily conclude by the placement of the county seal on a church door that the county government supported the religion practiced therein.

Or suppose I erected a statue of Jesus on private land I owned adjacent to a public building. A reasonable person might conclude from the location of the statue that it had been erected by the government. Is the government therefore required to erect a wall or fence separating its building from my yard?

A further reason to question this judgment is that it fits with almost no legal precedent whatsoever. Think about what this decision says, and the precedent it sets. It's not necessary that the government have actually done anything unconstitutional to be guilty of violating the Constitution. It's enough that someone thinks that it has.

The precedent set by this standard, even in civil cases, is dangerous. Suppose someone believes that a newspaper printed an article libeling him, even though this did not actually occur. If the layout and tone of the paper were such that the person might have thought a non-libelous statement was in fact libelous, should he be able to collect damages? Again, this seems a ridiculous standard to meet. Anyone can sue anyone for anything, even in contravention of established fact, so long as a reasonable person could believe the plaintiff.

The judgment by the 7th Circuit was obviously meant to close a loophole exploited by the people of Marshfield. There is no doubt that the actions of these citizens were meant to undermine the spirit of the law. It is far worse to commit a certain injustice, however, than to allow a possible one to slide. The court's response sets a ridiculous burden on the government, and furthermore establishes a very dangerous precedent. Making the ruling, therefore, was far more harmful than allowing the original situation to stand.

(Sparky Clarkson's column

appears Tuesdays in The Cavalier Daily.)