Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, February 16, 1992 TAG: 9202160070
SECTION: VIRGINIA PAGE: D-1 EDITION: METRO
SOURCE: CODY LOWE RELIGION WRITER
DATELINE: CHARLOTTESVILLE LENGTH: Long
THE RIGHT-TO-WORSHIP WATCHDOG
It's not often you find a 10-year-old with enough muscle to change a school principal's policies.But the Rutherford Institute, born in 1982, is affecting school policies across the country, going to school or court if necessary, to protect its view of the First Amendment.
A stable of affiliated lawyers is available to challenge what the institute sees as unconstitutional restrictions on individuals' freedoms of speech and religion. More often than not, the lawyers are defending students' or teachers' rights to speak their minds - usually on the subject of religion.
The story of Kenneth Green, a high-school senior from Oswego, N.Y., is typical of the kind of cases the institute handles, says founder and President John W. Whitehead.
Green prepared a rap performance for a school talent show in which he described himself as "a Jesus machine" and told of his experience of being born again at the age of 14.
When school officials discovered the content of the lyrics, they banned the performance, citing concerns over the separation of church and state.
In that case, Whitehead said, all it took was a fax to school officials to preserve what he sees as Green's right to speak about his religious faith.
In its short life, the institute has grown from a one-man basement office into an international organization. Its headquarters are in Charlottesville, but - based on the model of the American Civil Liberties Union - it has more than 40 state and regional chapters.
There also are international affiliates working for religious freedom in such places as South America and Great Britain. Eastern Europe is targeted for offices soon.
The institute's First Amendment emphasis is aimed at "the defense of religious freedom, the sanctity of human life and family autonomy."
The institute's growing reputation and, perhaps, a growing sensitivity nationwide to church-state issues mean a letter alone often will produce results.
The institute is "clearly an important watchdog on the religious liberty clauses," said Robert Peck, a First Amendment expert with the American Civil Liberties Union in Washington.
But, he quickly pointed out, while the ACLU often would agree with the Rutherford Institute on questions about the free exercise of religion, it would just as often be at odds on issues of separation of church and state.
Rob Boston of the Maryland-based Americans United for Separation of Church and State agrees.
Rutherford has litigated cases "with real merit, such as workers protesting not to work on their Sabbath," Boston said.
But, he added, the institute's view that the Constitution allows accommodation of religion rather than a strict wall of separation between church and state could lead to an "undermining of the neutrality of the public school system" in matters of religion.
The institute has conducted "very savvy public relations" in drawing attention to its cases, Boston said.
One of the favorites is the case of an Oklahoma schoolgirl.
The way Whitehead tells it, the elementary-school student and a friend would read the Bible under a tree in the schoolyard each day. They asked other students to join them, eventually attracting three or four others to their lunchtime reading and discussion.
The principal - often the bad guy in these cases - said such a Bible study, even though originated and led by students, was illegal and had to be stopped.
The Rutherford Institute protested that the students' First Amendment rights had been violated. The case eventually was settled in the girl's favor, an institute spokeswoman said.
Boston sees the case differently. He says the girl was aggressively proselytizing, causing other students and parents to complain.
"In fact, this was an ill-mannered young child who needed to be told how to deal with her fellow students," Boston said.
There are, however, "cases where school officials clearly overreacted," he added, and Americans United for Separation of Church and state would agree with the Rutherford Institute's position.
A few years ago, in another oft-repeated Rutherford case, a child was told she could not read the Bible on the bus to and from school.
"That was clearly out of bounds," Boston said. What bothers him about the Rutherford treatment of the case is what he sees as the institute's "crowing about it as if it were common" when it is not.
Whitehead would disagree.
About half of the hundreds of cases the Rutherford Institute handles involve school-related issues, Whitehead said. The examples seem countless, all handled by Rutherford lawyers without charge to clients.
School administrators have misunderstood court rulings on church-state issues, Whitehead said, and are "too heavy-handed most of time" in dealing with conflicts.
Among Whitehead's numerous books is "The Rights of Religious Persons in Public Education," in which he defends most religious expression of teachers and students as issues of free speech, rather than violations of the separation of church and state.
In Whitehead's view, many school issues also boil down to questions of parental rights.
Although school issues take up the largest chunk of the institute's time and energy, there are other high-profile First Amendment cases.
"I am strongly anti-censorship," Whitehead said. "I'm for art."
But when it comes to government funding for art he considers anti-religious, he is ready to challenge the National Endowment for the Arts as often as religious people are offended.
The endowment points out that in 20 years it has supported artists who have created "20 million images" with the assistance of 85,000 grants. In the agency's 1990 annual report, NEA Chairman John Frohnmayer said, "Only a handful . . . have stirred up any degree of complaint."
In recent years, though, the complaints have been notorious and have led to lawsuits against the endowment and museums that exhibit the works.
Among the most famous offenders were a photo by of a crucifix immersed in a jar of urine and an illustration showing a thorn-crowned Christ mainlining drugs.
The latter prompted Whitehead to file suit, unsuccessfully so far, against the NEA's funding of such work.
From Whitehead's point of view, the attacks just keep coming; the most recent one is a drawing of Christ sexually fondling Lazarus, who is recorded as having been raised from the dead.
Such works "denigrate the whole concept of Christianity," Whitehead said - not to mention the question of whether they are obscene.
Although Whitehead likes some aspects of what he sees as a new spirit of "neo-1950s conservatism," he also worries it "could turn out to be more oppressive" for religious people.
On the Supreme Court, in particular, a more conservative bench may be less likely to protect "individual-freedom issues."
Whitehead complains that the court is often poorly informed, particularly as cases over religious issues make up such a small part of the docket.
"The court has no clear concept of where it's going" in terms of religious law, he said.
Whitehead is suspicious of attempts to circumvent what he sees as bad court decisions through federal legislation.
For instance, Whitehead thinks the courts are the right forum to correct what he sees as the error of the Roe vs. Wade decision, which legalized abortion, because the Supreme Court created the law.
The institute has done a lot of work for crisis pregnancy centers that advocate adoption rather than abortion and has defended anti-abortion protesters across the country, including members of Operation Rescue, the controversial organization that blocks access to abortion clinics.
Last year, he said, the institute lost more than $100,000 in contributions because its attorneys defended Operation Rescue members.
Whitehead insists the principle of providing a defense for people who acted out of conscience is too important to be influenced by concerns over money.
Of the institute's $4 million 1992 budget, 99 percent is raised through small individual contributions, Whitehead said.
There is a huge mailing list, and the institute solicits new donors and new cases through a 2 1/2-minute radio show that airs daily on more than 450 stations around the country.
As the institute grows, it has maintained its focus on the First Amendment, taking on cases without regard to which political or religious groups might become allies or opponents.
"If the right group were to be arrested for demonstrating out in front of the building against us, we might defend them," Whitehead said.
"We're not defending people's opinions," said Alexis Crow, the institute's legal and educational coordinator.
"We're defending their right to believe what they want . . . and their freedom to express those beliefs."