February 27, 1995

Christian Group Crusades in the Courts

On a drizzly evening in November, a group of Christian activists rallied to view a film featuring Charlottesville, Va. lawyer John Whitehead.

At one point in the movie, a posse of civil servants bursts in on a family as they sit around the breakfast table. The bureaucrats take away the family’s baby, untie the mother’s apron and send her off to work. Soon the daughters are wearing high heels and dancing to rock ‘n roll music, the son is glued to the television, and the father is left alone, dejected, wondering what happened to his family.

Whitehead, a born-again Christian who crusades for the rights of religious Americans, elaborated on themes sketched out in the film, Religious Apartheid, which he showed to an audience in San Jose, Calif., as part of a nationwide tour. In his choleric vision of late 20th century America, children are barred from praying over their lunches at school, churches are swarmed by "homosexual activists," and families are tormented by social services agencies because they have chosen to educate their children at home.

A ruddy, square-shouldered man with a football player’s build, Whitehead gathered the earnest-looking citizens together under the aegis of the Charlottesville-based Rutherford Institute, a public-interest law firm he founded in 1982 to provide free representation to people who feel their freedom to worship has been infringed.

Since Whitehead launched Rutherford with $200 and his family’s Christmas card list, the group has challenged governmental rule by suing public entities of every size and function. Rutherford has since moved from a basement room in Whitehead’s home to a large red-brick building in Charlottesville, with regional offices in Atlanta, Dallas, Chicago, Sacramento, Calif., and Grand Rapids, Mich. And although it is neither the first religious legal group nor the largest, it appears to be the most active, with 670 pending cases, by its own count.

The Institute’s litigation is rarely Supreme Court material. Only two Rutherford cases have reached the high court in 13 years; one resulted in last year’s ruling that made it easier for abortion clinics to use the Racketeer Influenced and Corrupt Organizations law against anti-abortion protesters. But Rutherford continues to inject itself into local controversies across the country, as it did in San Francisco in 1993 as counsel to the Rev. Eugene Lumpkin. The preacher unsuccessfully sued the city after being fired from the city’s Human Rights Commission because of his comments regarding biblical condemnation of homosexuality.

More recently, Rutherford has been on the front lines of the fight over the Freedom of Access to Clinic Entrances Act, which Congress passed last year in response to violence at the nation’s abortion clinics. A Rutherford attorney is representing an anti-abortion protester who was sentenced on Feb. 13 to 30 days in jail and fined $500 for violating the act after being arrested outside a Milwaukee clinic last June.

But while Rutherford’s litigation scorecard is less than stellar, simply by drumming up negative publicity, it often manages to win wars despite losing battles. A case in point is last year’s challenge to California’s Learning Assessment System tests – public-school proficiency tests that Rutherford protested were more psychological than educational. Although courts dismissed three Rutherford suits, the litigation ignited so much public opposition that last September, Gov. Pete Wilson vetoed legislation that would have renewed the tests. Rutherford is still pursuing seven of the CLAS suits because it claims schools continue to subject students to "psychological" questions.

Whitehead also admits to using the threat of costly litigation to force quick settlements. "We don’t charge our clients," he notes, "but if we sue each school board member, they each have to get a fancy outside law firm to defend themselves."

He sees no contradictions between the peaceable dictates of the religious life he seeks to protect, the angry vision of his movie, and the contentious nature of his litigation. When one wary believer in San Jose asked him how Christians can "turn the other cheek when we are suing those that oppress us?" Whitehead didn’t miss a beat.

"Just because the Bible says turn the other cheek doesn’t mean that your head becomes a revolving door," he says.

THE LAW OF THE DIVINE

John Whitehead experienced a religious conversion in 1974, the same year he graduated from the University of Arkansas law school. Concluding that a J.D. was of no use to a born-again Christian, he migrated to Los Angeles to study at the Light and Power House, a now-defunct retreat where he "took some time to do some sorting out."

Whitehead, who considered himself an atheist and a left-wing "radical of the purest sort" before his conversion, says he changed his mind about the value of a law degree when a friend told him about a fourth-grade teacher who had been reprimanded for wearing a cross.

"I went to the principal and said that that violated the right of free speech. And the principal backed off," Whitehead recalls.

Heartened by the experience, he devoted himself to studying constitutional law. Whitehead’s devotion was put to its first big test in 1979, when a gay organist sued San Francisco’s Orthodox Presbyterian Church, claiming that his firing violated the city’s new gay-rights ordinance. Whitehead offered his services free to the church when it was unable to find a local lawyer to represent it.

After a year and a half, U.S. District Judge John Ertola ruled that San Francisco’s 1978 law – the first of its kind – infringed on the congregation’s constitutional right to exercise their religious beliefs. As a result, other cities have included exemptions for churches when crafting their own gay-rights ordinances.

Soon after, Whitehead created the institute whose eponym is Samuel Rutherford, a 17th century Scottish minister who argued that the rule of kings was subordinate to divine law. The organization has since grown to an enterprise with an annual budget of $6 million, 15 staff lawyers, and a network of about 1,500 volunteer lawyers, who usually donate their time and court costs while the organization handles the legal research.

Like other Christian legal groups – there are about 10 of them, varying in size, funding, and focus – Rutherford lawyers often cite the American Civil Liberties Union and other non-profit firms as models for their own fundraising and organizational structure. How they differ, they say, is in their religious focus and the fact that they are willing to take on clients and causes they don’t necessarily agree with, while the ACLU steers what they consider a predictable political course.

For example, Rutherford lawyers proudly note that despite criticism that they are interested only in advancing a Christian agenda, they have also filed suits for Hari Krishnas and Orthodox Jews.

They have learned one important lesson from secular public interest firms, however: persistence.

Brad Dacus, Rutherford’s western regional coordinator in Sacramento, believes the institute has reached the point in its growth where opponents expect a fight to the end.

"The ACLU is much more of a barking organization than a bite organization," he asserts. "There have been a number of cases where they’ve challenged school districts [in prayer cases] and have backed down when they realized someone was on the other side and was going to follow through." He adds, "A lot of our defense amounts to stepping into the ring and challenging the ACLU to either put up or shut up."

Elaine Elinson, a spokeswoman for the ACLU’s Northern California chapter, says officials in her office are not familiar with Rutherford’s work. "I think they like to say that they are like the ACLU on the other side," she says. "But we haven’t seen much evidence of that.

FREE-SPEECH MOVEMENT

After years of struggling through the courts, waging wars under the establishment clause, religious legal groups have also found that free-speech arguments – long the linchpin of ACLU cases – are winning cases where other theories failed.

The Rutherford group’s adherence to this tactic led it to back out of a recent case in the U.S. Court of Appeals for the 9th Circuit, Peloza v. Capistrano Unified School District, challenging the teaching of evolution in schools. Rutherford’s volunteer lawyer on the case, Cyrus Zal of Folsom, Calif. wanted to argue that the schools were establishing religion by teaching evolution, or "secular humanism." The Rutherford brain trust insisted on a free-speech approach couched in terms of "academic freedom." When Zal disagreed, the counsel parted ways. The plaintiffs recently lost the appeal.

Likewise, philosophical differences over defense strategy led Rutherford to pass on representing Paul Hill, the anti-abortion activist who was sentenced to death in December for killing Dr. John Britton and his escort in front of an abortion clinic in Pensacola, Fla.

After two jailhouse visits and a series of meetings in Rutherford’s Charlottesville headquarters, the institute concluded it could not defend Hill with the justifiable homicide defense that he insisted on using. Whitehead says Rutherford would have taken the case if Hill had agreed to an "indoctrination" defense illustrating the circumstances that led him to commit the crime.

"Through bad teaching, he had come to a point where he did what he thought was rational," Whitehead explains. "If you are told apples are peaches from childhood, you come to believe it."

Just for talking to Hill, Whitehead estimates his group lost $50,000 in direct-mail donations. But he says the organization has a responsibility to represent even unsympathetic clients like Hill, and faults other religious legal groups for steering clear of him completely.

"It is shameful how the pro-lifers distanced themselves from Paul Hill so quickly," Whitehead told his audience in San Jose last November.

‘ELECTIONS ARE LIKE BREEZES’

Charlottesville is Ollie North Country.

At some invisible point on the drive west from Washington, D.C., rear-bumper décor on the cars and trucks of central Virginia shifts from Sen. Chuck Robb’s blue and red to the star-spangled North stickers. In the countryside outside Charlottesville in the weeks after North lost a close senatorial race, one could see North posters tacked to mailboxes, stuck on rusted shells of cars, and nailed to trees on the overgrown shoulders of back roads.

North transformed himself from a discredited ex-colonel to a viable Senate candidate with the support of the same middle-class, religious voters who are most likely to be Whitehead’s clients.

Still, Whitehead says that politics are in some ways averse to his group’s libertarian mission. "Elections are like breezes," he explained to the roomful of euphoric San Jose activists the week after the Republican electoral rout. "They blow here and there because people vote their pocketbooks."

He says he has learned through experience that conservative political victories don’t always guarantee results. "Just because there’s talk about a prayer amendment doesn’t mean Newt Gingrich is going to stop school principals from trying everything they can to stop a kid from praying over his lunch," Whitehead says.

He cites Antonin Scalia’s 1990 Supreme Court opinion in Oregon v. Smith as instructive. The decision, which upheld a state employment agency’s denial of benefits to two men who ingested peyote during Native American religious ceremonies, dealt a serious blow to the religious rights of individuals.

"We have found that the conservative judges were terrible on free-speech issues," Whitehead says, "Everyone thought Scalia was going to be the darling of the right, and he wrote the peyote case."

But Rutherford’s claims of an apolitical agenda seem slightly suspect. Recently, the group mailed out a "Contract for Constitutional and Religious Freedom" – a spin-off of the Republicans’ Contract With America in name, if not in precept – calling for voluntary school prayer, the right to educate children "free from government intrusion," and the right to work and worship "free from government edicts that attempted forced acceptance of so-called ‘alternate’ homosexual lifestyles in workplaces, churches and private homes."

Nevertheless, Whitehead insists that his group’s only concern is protecting civil liberties.

"We’re a legal group," he says. "That’s what we are. We don’t go passing out tracts and stuff. We try to do good work and we don’t get the religious concerns into it."

His speech, however, is peppered with references to "recycled parts of dead babies" and the Holocaust. His movie, Religious Apartheid, shows an America of burned-out buildings and dirty, waif-like children roaming the streets, where Nazis oversee everything, stomp on crosses, and extinguish religious references.

"The Bible says love my neighbors. Unborn babies are my neighbors," Whitehead told the legion of followers congregated in San Jose. "Families are my neighbors. I believe people who fall by the wayside are my neighbors, too.

"Should you be divisive? You should pray to God that you are divisive and controversial and dogmatic."

END