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An even better case that strict separationism can turn into censorship can be made in a suit currently pending in the U.S. Court of Appeals for the 3rd Circuit in Philadelphia, brought by the parents of Medford, New Jersey, schoolboy Zachary Hood. In 1996, each child in the boy’s first-grade public school class was asked to choose a story to read aloud. Zachary’s selection, the story of the reconciliation between the brothers Jacob and Esau from The Beginner’s Bible, was deemed inappropriate by the teacher, even though it contained no mention of God or miracles. He was told that he could read it to her in private but not to the entire class.
In 1999 a three-judge panel of the 3rd Circuit ruled that the teacher acted properly, agreeing with the school’s rather wobbly argument that permitting the story to be read in the classroom would have sent a message to the impressionable kiddies that "the teacher or the school endorsed the Bible." Late last year, however, the full court vacated that decision and agreed to consider the case, which may go all the way to the Supreme Court.
It would be difficult to dispute the religious con- servatives’ claim that the treatment of Zachary Hood or of the Niemeyers reflects "viewpoint discrimination" against religious speech. It is fairly clear that in these instances it is the exclusion rather than the inclusion of religion that may "discriminate against, or oppress, a particular sect or religion," as Justice William Brennan put it in the 1963 ruling School District of Abington v. Schempp, which found mandatory school prayer unconstitutional.
But it would also be disingenuous for the anti-secularists to claim that they want religion to be treated as just another viewpoint in the marketplace of ideas—a viewpoint which can be defended but can also be attacked and even ridiculed, like any other idea. Indeed, the same people who wax poetic about defending religious liberty for Christians can get very unhappy with the wrong kind of speech about religion. Just as religious conservatives now couch their demands for prayer in public schools in the "liberal" language of free speech, their attempts to squelch what used to be called sacrilege are couched in the politically correct language of anti-bigotry and opposition to "hate speech." The charge of "Christian bashing" (or "Catholic bashing") has been directed, for instance, at the ABC show Nothing Sacred, which questioned Catholic doctrine on birth control and priestly celibacy.
In 1998 news of a Broadway production of Terrence McNally’s play Corpus Christi, depicting a gay Jesus-like character, sparked a predictable firestorm. The Catholic League for Religious and Civil Rights launched a letter-writing campaign demanding that the production be canceled. It is true, of course, that a protest is not censorship. But when the Manhattan Theater Club decided to cancel the play due to threats of violence and arson, the Catholic League’s jubilant reaction did not show a strong commitment to free speech. While formally deploring the threats, the league warned that if another company picked up Corpus Christi, it would "wage a war that no one will forget." (The theater eventually revived the production after coming under fire from the press and from authors.) Catholic League President William Donohue explicitly, and favorably, compared the anti–Corpus Christi protests to the actions taken by racial, ethnic, and feminist groups against speech they find offensive.
And in July, in what may be the most creative use of hate speech phraseology to date, L. Brent Bozell’s Media Research Center ran an ad accusing CBS of "condoning religious bigotry." Early Show host Bryant Gumbel had been caught on camera saying "What a fucking idiot!" after an interview with the Family Research Council’s Robert Knight, who had defended on religious grounds the Boy Scouts’ exclusion of gays. Even if Gumbel was referring to Knight and not, as some have claimed, to a CBS staffer, it is noteworthy that he used no slurs referring to Knight’s faith. (Is it racist to call Al Sharpton a fucking idiot?) Nonetheless, Bozell invoked CBS’ firing of sports oddsmaker Jimmy "The Greek" Snyder for televised comments about the innate racial superiority of black athletes and concluded that "racial bigotry on CBS is dealt with unequivocally; religious bigotry on CBS is met with a disinterested yawn."
In an essay published in The New York Times Magazine last January, legal commentator Jeffrey Rosen noted that the strict separationism endorsed by the courts in the early 1970s, which held that the government could not support any religious activity in any form, has given way to "a very different constitutional principle that demands equal treatment for religion." Under this doctrine, Bible study clubs and prayer groups can function on public school property on a par with other student groups, and parochial schools can receive federal aid for special education programs on a par with other schools. (School vouchers that would subsidize tuition at religious schools remain a more contentious issue.)
Rosen insightfully links the crumbling of the wall between church and state to the rise of cultural diversity: "In an era when religious identity now competes with race, sex and ethnicity as a central aspect of how Americans define themselves, it seems like discrimination—the only unforgivable sin in a multicultural age—to forbid people to express their religious beliefs in an increasingly fractured public sphere." As Rosen concludes, the resulting expansion of freedom of religious expression may well be a healthy development for public life. But the examples of race and sex also point to certain dangers. While the new appreciation of diversity can liberate discussion and expression, it can just as easily narrow the range of acceptable speech in order to protect sensitivities.