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Understanding the First Amendment

The Justice Department is finally taking religious discrimination seriously.

11:00 PM, Jan 14, 2004 • By TERRY EASTLAND
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MORE THAN TWO CENTURIES AGO, when the framers decided to amend the Constitution to protect religious liberty, they wanted to constrain the federal government. So in the amendment that became our first, they told Congress to "make no law respecting an establishment of religion nor prohibiting the free exercise thereof."

Today, the framers might be surprised to learn that the federal government no longer is suspect when it comes to religious liberty. Indeed, the government now has a lead role in advancing that fundamental freedom. Consider the settlement reached last week in a case involving Balch Springs in southeastern Dallas County.

In August, the city improvidently decided to deny religious freedom to the citizens who use its senior center. According to the new policy, seniors no longer could say grace before meals, sing gospel songs, or listen to a weekly devotional message given by a Protestant minister who also frequented the center. The city didn't sponsor the activities, all of which were conducted by the seniors themselves. And participation was voluntary. With its policy, the city singled out only religious activities, as it continued to permit seniors to engage in speech on a variety of other topics.

A group of seniors complained to the city and then filed a lawsuit. Just before Christmas, the Balch Springs City Council voted unanimously to lift the ban on religious activity at the center and to adopt a new policy under which speakers may address members of the center without regard to the content of their speech.

Lawyers for the plaintiffs credit the Justice Department's investigation of the matter with helping to produce the welcome outcome. In a statement, Assistant Attorney General Alexander Acosta said senior citizens shouldn't be forced to check their faith at the door in order to participate in city-run programs and facilities.

The Justice Department opened its investigation under Title III of the Civil Rights Act, which authorizes federal action when someone is denied "equal utilization of any public facility" because of the individual's race, color, religion or national origin. Title III has been around for 40 years, but only now has the Justice Department become vigilant about enforcing it with respect to religion.

Nor is it the only statute affecting religious liberty that is being aggressively enforced. So are the other laws prohibiting discrimination based on religion (in education, housing and employment, among other areas).

There is an untold story here, for the stepped-up enforcement effort reflects a conscious decision made early in the Bush administration. Three years ago, those managing the transition at the Justice Department noticed that responsibility for enforcing the various laws touching on religious liberty never had been firmly established. Predictably, enforcement had been erratic. So the decision was made to create a special counsel for religious discrimination. The job is held by Eric Treen, a lawyer experienced in First Amendment litigation.

Thanks to the new emphasis, the Justice Department has engaged in a wide variety of cases involving people of diverse religions. In one case, Muslim girls were told by their public-school principal that they may not wear their hijabs to school. In another, a rabbi was cited for operating a house of worship in a residential zone because he held prayer meetings in his home with 10 to 15 people. In yet another, a Christian resident of an apartment with a room that residents may reserve for various events was informed that she may not use the room to hold a Bible study with friends.



Friday happens to be "Religious Freedom Day." As in years past, the president will issue a proclamation. But the real story will be over at his Justice Department and in places like the Balch Springs Senior Center, where, happily, the First Amendment now governs.



Terry Eastland is publisher of The Weekly Standard. This column originally appeared in the Dallas Morning News.