Almost 40 years ago, perhaps sparking the Bush team’s bright idea to declare a "war on terror," President Nixon declared a "war on drugs." By the time George Bush Sr. entered the White House in 1989, a Washington Post-ABC News Poll found that 62 percent of Americans would be willing to give up a few of their freedoms in order to fight the war on drugs. And Uncle Sam has been more than willing to take them up on it. Most of the court cases within the past 40 years that have methodically abridged individual rights like freedom of religion, freedom of speech, freedom from unreasonable searches and seizures and property rights, have all concerned drugs. Supreme Court Justice Thurgood Marshall even coined a term for the growing practice of sacrificing constitutional rights in the name of the fighting drugs: the "drug exception."

It seems appropriate on this Constitution Day to take a few moments to mourn all that we’ve lost from the Bill of Rights and the Constitution due to these "drug exceptions:"

Freedom from Unreasonable Search and Seizure: Perhaps the big loser of all has been the Fourth Amendment, which limits the power of the government to enter and search one’s private property. Think about it: Unlike other crimes, drug offenses do not often have complaining witnesses (i.e.: people who come forward to request police assistance). The parties who use, sell or manufacture drugs are consenting participants who likely wish to hide their drug activity. In order to unearth drug crimes, the police must engage in wiretapping, surveillance, undercover operations, the use of confidential informants, entrapment by offering to buy or sell drugs, and countless other practices that strike at the heart of what the Fourth Amendment is all about. In the name of the drug war, courts have allowed suspicionless drug testing of wide swaths of students and private employees, and the State of Michigan almost got away with conducting random drug testing of welfare recipients. The incidence of surprise, paramilitary-style raids on people’s homes – and courts’ approval of them – in the name of routine drug policing has skyrocketed in recent years. Similarly, courts have repeatedly given the stamp of approval to the ever-increasing use of police drug dogs to search homes, cars, bags and people.

Freedom of Speech: When it comes to speaking out against the government’s drug policy, the right to free speech has also fallen prey to the drug war. In 2007, the U.S. Supreme Court carved out a "drug exception" to one of the most central tenets of free speech jurisprudence: the government cannot discriminate on the basis of the viewpoints being expressed in speech.  In Morse v. Frederick the Court ruled that a student’s speech could be censored at a school-related event (even outside the school), not because it was disruptive or because it provoked imminent lawlessness, but because it contained the word "bong." The Court drew on other drug-related precedent to find that when it comes to students in the school context (and even students who are near a school, as in this case), the government can make exceptions to free speech rights when it comes to speech about drugs.

Freedom of Religion: In a 1990 case brought by Native Americans who use peyote for religious purposes, the U.S. Supreme Court shunned the longstanding rules protecting the free exercise of religion and ruled that all religious practices give way to the general laws of the land – in this case drug laws. In response, Congress passed the Religious Freedom Restoration Act (RFRA) which restored the rights of people to participate in religious activities even when their practices appear to be in tension with other laws. The U.S. Supreme Court subsequently struck down RFRA protections as applied to state laws so that when state laws and religious practices conflict, the state laws essentially win out. The silver lining, however, is that courts have ruled that RFRA protections remain intact in matters of federal law, such as in the case of Gonzales v. UDV (involving a church’s use of ayuhausca tea as part of its ritual, in conflict with federal drug laws) and Guam v. Guerrero (involving Rastafarians’ religious use of marijuana, in conflict with federal drug laws).  Currently, courts are considering the legality of the Church of Cognizance’s religious use of marijuana.

Right to Vote: Because the laws of many states continue to deny voting rights to those with current or prior felony convictions – many of them for drug offenses – an entire class of citizens has been shut out of the democratic process. To date, an estimated 5 million Americans have lost their fundamental right to vote, and in 11 states you can be barred from voting for life.

These are just a few of the "drug exceptions" to the Constitution. To learn more about how our basic rights as Americans have been compromised in the context of the drug war, check out the excellent article, "This Is Your Bill of Rights, On Drugs," by the director of the ACLU Drug Law Reform Project, Graham Boyd, and writer Jack Hitt.

If you think the original drafters of the Constitution would be rolling over in their graves about now, you’re probably right. While it’s unlikely, in a time before the existence of heat-sensing surveillance, wiretapping and drug testing technologies, that they could have imagined the kind of power our government would someday have over our private lives, the drafters did include important, explicit rights in the Constitution and the Bill of Rights meant to shield individuals from just the kind of insidious government overreach we have sadly seen come to pass in recent years.

Constitution Day reminds us that all the good words written on a piece of paper (which, as some historians have suggested, may have even been made from industrial hemp, which is made of marijuana, now an illegal, Schedule I drug) don’t mean a thing unless today’s judges and policymakers interpret and enforce the rights that they accord to us all. This makes our role as the people to whom policymakers and elected officials are accountable all the more critical.

Let’s hope that public views on civil liberties and the drug war have changed since 1989 when 62 percent of us said that we’d accept a "drug exception" to the Constitution. There’s good reason to think the tide is shifting. Polls consistently show that a strong majority of Americans think the drug war is a failure and that resources should be shifted away from arrest, prosecution and prison and toward treatment and education. But the fact remains that the United States remains the world’s largest jailer of drug offenders, disenfranchises an entire class of people with drug convictions and even denies educational funding to would-be students with drug convictions.

If history is any lesson, our constitutional rights will continue to slip away in the name of the drug war unless we fight to keep them. Here’s to keeping up the fight. Happy Constitution Day!

Under current law, non-profit organizations, including churches, are not required to pay taxes if they refrain from those political activities that are now prohibited by the tax code. (Some activities are permitted while others are not. We will spare you the details.) Donors to tax-exempt organizations also get a tax break. (For inquiring minds, see what the IRS says.)

Of course, any organization that does not want to be tax-exempt is perfectly free to endorse political candidates and to engage in lobbying (as long as they don’t violate other laws like campaign finance). But under current law, you can’t have your cake (tax-exempt status) and eat it, too (violate provisions of the tax code).

But rather than explain this trade-off, ADF uses the word "intimidation" to describe the law that gives churches tax exempt status if they agree to comply with the same rules that apply to all other non-profit organizations.

Intimidation?

Really?

How many other laws that apply equally to churches and to everyone else does ADF consider to be "intimidation"? Speeding laws? ("But I’m late for church, officer.") Child-abuse laws? Assault and battery laws? ("The heathen deserved it!") Is it "intimidation" when churches are required to pay for electricity and water just like everyone else?

It needs to be added that ADF has generously offered to provide free legal representation to any church that takes its advice and violates the tax code by engaging in prohibited political activities.

To see just how serious ADF is, we have three little questions for them and one little question for any church that might be thinking of relying on ADF’s advice.

First, did ADF decide that it would itself violate the tax code to show solidarity with others, or is it only recommending that someone else violate the law and take the risk? ("Why don’t you jump into the crocodile pit and I’ll call the doctor!")

Second, why doesn’t ADF offer to pay the criminal fines of anyone convicted of following its "legal advice" to violate the tax code? (Hint, hint for anyone thinking of taking up ADF’s offer.)

Third, has ADF’s "crack" legal team fully considered its own liability under federal conspiracy laws in conjunction with its efforts to encourage others to violate the law? (We thought not! Here are some helpful cites: 18 U.S.C. § 371; 26 U.S.C. § 7206(2). We find. You decide.)

And finally, for well-intended churches out there who really want to do the right thing, what quality of legal representation could you reasonably expect to receive from someone encouraging you to violate the tax laws?

As they say, with friends like ADF . . . .

Noooooo! It is absolutely nowhere in the Constitution that Christianity, or indeed any religion, is the official religion of the United States. In fact, the sole mention of "religion" in the Constitution is in the First Amendment, which states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (emphasis ours)

Translation: Congress can’t establish a religion or stop you from practicing yours. ‘Nuff said.

Obviously, we need to keep bringing lawsuits like the one we filed today against the officials on the Santa Rosa County School Board in Pensacola, Fla. They must be a part of that 55 percent who believe the U.S. is a Christian nation, and take it as an excuse to force their religion on others: promoting and endorsing prayers at graduation ceremonies and other school events, sponsoring religious ceremonies and holding official school events at churches.

In fact, teachers and staff at Pace High School preach about "judgment day with the Lord" and offer Bible readings and biblical interpretations during student meetings. That kind of stuff is constitutionally protected—that’s, right, by the First Amendment—at private schools, in religious communities and, of course, at home, but that’s where it ends. Any government- or publicly funded school should never endorse, promote or espouse any religion.

Don’t even get us started on the pledge of allegiance.

Last Thursday the Department of Health and Human Services (HHS) released proposed regulations (PDF) that could seriously undermine women’s access to reproductive health services, including birth control and abortion. Now the public has 30 days to let the Bush administration know precisely what we think of these regulations. Click here for our Action Alert, which will allow you to send comments to HHS.

The Bush administration is trying to spin the proposed regulations as a necessary means of protecting health care workers who refuse to participate in abortions. But federal law has long carefully balanced protections for individual religious liberty and patients’ access to reproductive health care. It’s disingenuous to suggest otherwise.

What’s really new about these proposed regulations is that they appear to take patients’ health needs out of the equation. They expand the ability of health care workers to refuse to provide complete and accurate information and counseling to women who seek services. Moreover, both the regulations, and Secretary of HHS Michael Leavitt’s public comments about them, leave the door open as to whether institutions and individuals can refuse to provide contraception.

Make no mistake: that lack of clarity is intentional. As the Washington Post reports, "…when pressed about whether the regulation would protect health-care workers who consider birth control pills, Plan B and other forms of contraception to be equivalent to abortion, HHS Secretary Michael Leavitt said: ‘This regulation does not seek to resolve any ambiguity in that area.’" Indeed, the Wall Street Journal notes Leavitt’s admission that some medical providers may want to "press the definition."

Not reassuring.

Ditto for Leavitt’s justification for issuing the proposed regulations, which is based on his willful misinterpretation of last November’s statement (PDF) from the ethics committee of the American College of Obstetricians and Gynecologist. ACOG said that doctors should either be prepared to perform "standard reproductive services" or else refer those patients to someone who will. Leavitt claims that ACOG’s statement could potentially strip noncompliant doctors of their board certification, never mind that both ACOG and the executive director of the certifying board have explicitly told him otherwise.

But these regulations aren’t about responding to facts. This administration has, time and again, put its political and ideological concerns above the best interests of the American people.

They are, however, a very serious threat to women’s health and to existing patient protections that ensure that even in the face of religious refusals women can get the health care they need.

Click here to go to our Action Alert, which will allow you to submit comments to HHS. The deadline is September 20 and volume counts, so please act quickly and tell your friends.

The ACLU of Southern California blogged in DailyKos today about a new bill before Gov. Arnold Schwarzenegger: S.B. 1322, the “Loyalty Oath Reform Bill” (PDF). If you’re a Californian, urge the governor to sign S.B. 1322, and stand up for the religious freedom of all Californians.

The ACLU (yes we were even causing trouble all the way back then) put out an offer in a Chattanooga newspaper to defend a teacher who was willing to challenge the state law prohibiting the teaching of "any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals."

The legendary Scopes "Monkey Trial" would pit two giants of American legal history, Clarence Darrow and William Jennings Bryan, against one another in this summertime showdown over academic freedom. When the verdict against Scopes was read, he memorably stated his intention "to oppose this law in any way that I can. Any other action would be in violation of my ideal of academic freedom — that is, to teach the truth as guaranteed in our constitution, of personal and religious freedom." Scopes’ guilty verdict would later be overturned by the Tennessee Supreme Court, but this case would go on to be remembered as one of the most famous trials of the 20th century. It would serve as the basis for Jerome Lawrence and Robert Edwin Lee’s play Inherit the Wind in 1955, which was later turned into a famous film of the same name starring Spencer Tracy and Fredric March in 1960. If you haven’t seen it, I recommend adding it to your Netflix list.

Hard as it might be to believe, controversy over the teaching of evolution still exists in many parts of our country to this day. It was just in 2005, that Judge John E. Jones III ruled in a landmark case brought by the ACLU and our allies that so-called "intelligent design" is little more than creationism under a different name and represents a particular religious belief, in violation of the Establishment Clause of the Constitution, that has no place being taught in a science classroom setting.

Last month, Louisiana Governor Bobby Jindal signed into law legislation that will make it easier for religious beliefs to work their way into science classrooms. Clearly the legacy of the Monkey Trial from eight decades ago is still very much with us in the present.

The President’s Faith-Based office has been all about politics. We need look no further than the voices of those who have worked for the president and have run this office over the Bush years. They have spoken of their frustrations with how politicized the office had become. They saw first-hand that the effort was, and is, more about politics and courting churches.

Unfortunately, the creation of the faith-based office as part of the Bush administration was never about creating a way to better advocate for, and better fund, successful partnerships with all federally funded social service programs; nor has it been about ensuring that programming, and the tax-payer dollars that are allocated for such programming, finds its way to those most in need of services and to those organizations that are most qualified to deliver such services. This is something that has disturbed many who have worked in the faith-based office over the years. David Kuo’s book on his experiences working for the president in the faith-based office tells the tale in great detail.

The Administration can spew what appears on the surface to be impressive numbers, but it rings no more true than the “Mission Accomplished” sign in Iraq. Sadly, the faith-based office added little value, less accountability and a whole lot of government-funded discrimination. Yes, of course, one of our chief complaints about this president’s faith-based office is that it does not ensure that ALL organizations receiving government dollars be required to protect the constitutional and civil rights of those receiving services and all employees working in these programs.

The Bush administration has eviscerated most of the safeguards that had successfully protected the independence of churches, while also protecting the rights that all Americans have to expect equal treatment when they apply for a government-funded job or when they participate in a government-funded service. This office and this administration have actually promoted discrimination. No one should have to face government-sanctioned and government-funded religious discrimination when applying for a job or when receiving services funded by the government. Should a social worker who is not the “right” religion be excluded or fired from a government funded job because he or she is not of the right religion or has violated a tenet of their religion? Of course not. Discrimination based on religion goes against a core American value.

It is not just the discriminatory behavior of the office. It is the lack of fiscal accountability that disturbs me. It is hard to believe that any taxpayer would find it acceptable that the faith-based office is not holding all grantees accountable for where our dollars are going and how they are being used. It has become clear to those who have spent years trying to figure out the specific details of where the money has gone, how it has been spent program-by-program and how successful these programs have been is impossible to track—because in many cases that information does not currently exist. For example, I don’t think I need to bother running through all of the documented examples of the misuse, lack of accountability and sheer thievery that occurred following the dumping of funds into random programs following Katrina. Just as we know of the rampant government-funded discrimination that has occurred over the years.

At the end of the day, the real issue is not whether or not an office that helps coordinate and advocate for more and better resources for those in need is necessary, many will continue to debate and discuss its value. However, one thing is clear no matter what is decided; this office should not function as a political tool that panders to and attempts to buy off support from religious communities.

Have you noticed that rarely does anyone—including the Bush Administration ever add the words “…and ‘community initiatives’” when they speak of this office? This is more than telling. As they say…the devil is always in the details…and that is definitely the problem with the current administration’s misuse of its faith-based office.

And Molly quips: "That principle is so important, it’s worth being a pain in the ass about. And that’s what the ACLU is."

Well, we’re at it again. After several midshipmen at the U.S. Naval Academy (USNA) in Maryland complained to us that the academy’s daily "noon meal prayer," required of all midshipmen, violates their religious freedom, the ACLU, along with the ACLU of Maryland, sent a letter to the USNA’s Vice Admiral Jeffrey L. Fowler, asking him to eliminate the mandatory prayer.

It was also after the midshipmen’s complaints that the USNA released this completely unhelpful FAQ that utterly fails to address the problem. The FAQ pretends that this very issue—compulsory prayer in military academies—was never addressed by the U.S. Court of Appeals for the Fourth Circuit when it struck down the Virginia Military Institute’s "supper prayers:"

While the First Amendment does not in any way prohibit [cadets or midshipmen] from praying before, during, or after [meals], the Establishment Clause prohibits [military academies] from sponsoring such a religious activity."

‘Nuff said, USNA.

Now for those naysayers out there who like to complain that the ACLU hates religion, we’d like to direct you to our very long, nearly exhaustive list of instances where the ACLU has stood up for and protected the rights of religious people. From suing to protect the rights of evangelical Christians to preach on the sidewalks of Las Vegas to defending the right of an elementary school student to sing "Awesome God" in an after-school talent show, everybody gets the benefit of our "extremism".

So we hope the USNA will, ahem, see the light, and stop this mandatory prayer business. Because if they refuse, we have these lawyers, see…

Holding cells, Joint Task Force, Guantánamo, Cuba; © Richard Ross; From the book and exhibition Architecture of Authority (Aperture)

Photographs of the outside of Abu Ghraib and Guantánamo take the viewer into a world of heat, dust and desert—Gitmo’s abandoned open-air shower stalls wrapped with barbed wire at Camp X-Ray, the outdoor housing units in Abu Ghraib’s Camp Remembrance—but once inside, images of the cold, hard, almost clinical edges of a Gitmo cell or the shackle chained to the floor of an interrogation room at Camp Delta dominate.

Ross writes in the afterword of the exhibit’s book:

“I remind myself that the people held here are prisoners or detainees, not necessarily convicts. Such nuances of language are important. At Abu Ghraib, as well as Guantánamo, there are detainees who have not been convicted. At Guantánamo, they are being indefinitely detained…detainees are in limbo, purgatory—they are nowhere men. Time stretches infinitely, governed by the caprice of the American rules. Jose Padilla is to the United States what Josef F. was to Kafka, a citizen held under a set of rules that keep changing. This fictionalized nightmare becomes our reality, our legacy.”

The exhibition is displayed to juxtapose the subjects in provocative ways. Ross comments on sex-segregated prayer in Islam with two photos: the interior of the grand Blue Mosque in Istanbul, Turkey, with its huge, multi-tiered circular chandeliers hung with glass candle lanterns and massive expanse of red carpet beneath a soaring domed ceiling, hangs next to a picture of a women’s prayer area in a mosque in Syria: a comparatively tiny area partitioned off by shower curtain-like fabric.

The overall issue of surveillance is present throughout. From a guard watch tower in a prison yard, to video cameras inside prison “rubber rooms,” and even the photos of the interiors of mosques, you get the creeping feeling that someone is always watching.

The surveillance theme also reflects back to the overall theme of the show: authority. Whether the authority figure is a preschool teacher, a prison guard at Abu Ghraib, President Bush, the United Nations, or God, the collection conveys a simultaneous respect for, and contempt towards, authority. The show also confronts how the buildings where those figures exist both establish and reinforce, but then sometimes undermine, their authority.

John R. MacArthur writes in the book’s forward:

“[W]hat provoked Ross to do this book was his horror at the sudden rise of hard, illegitimate authority in America, the abrupt lane change in our political culture that took place after 9/11. This self-righteous, vindictive, and reckless divergence by the Bush administration was aimed at justifying actions at once unconstitutional and shameful: torture, the suspension of habeas corpus, “preemptive” invasions, and bald-faced lying to Congress, the American people, and the world. I’m a skeptic by nature, but talking with Richard Ross for any length of time makes it impossible to doubt his political sincerity and his outrage over the transformation of American into a country that practices waterboarding in the name of liberty. “The United States,” says Ross, “is not America anymore.”

“Architecture of Authority” will be on display at the Aperture Gallery (547 West 27th St., 4th Floor) through July 31. After that, the exhibit will travel to the Nerman Museum of Contemporary in Overland Park, Kan., this fall, then will go on to the Goldstein Museum of Design at the University of Minnesota in St. Paul from February 7, 2009 through April 5, 2009. It will be at the Tampa Museum of Art from September 11, 2009 through November 8, 2009.

Those were the words from Pat Boone’s 1955 hit single that came to mind when I read his recent ‘ACLU: Tear down this wall!’

Now I’m not as much of a biblical scholar as Pat Boone, but I always believed that one of the core messages of the Bible is ‘not to bear false witness.’ When we talk about someone else, or when we describe their positions, we certainly ought to do the best we can to be accurate.

Isn’t that true?

If I wanted to argue with Pat Boone about an issue, the first thing I should do is make sure that I know what his position is. So I would read his writings, listen to his talks, and maybe even listen to a song or two. It would also make sense to visit his home page.

It would of course be unfair if I were to start out by ridiculing him with caricatures, exaggerations, and stereotypes - and then suggest that somehow I know why he behaves the way he does. We all know how nasty things can become when people lead with an insult rather than the facts.

Indeed, it is not hard to bear false witness - anyone can do it.

Bearing true witness requires care. It requires discernment. It requires honesty. It requires verifying rather than vilifying.

The words that Pat Boone uses to describe the ACLU - which he offers in support of true religion - certainly don’t sound like words coming from someone who takes seriously the command to ‘love your enemy’! Boone says:

I believe that even in their diabolical determination to remove every vestige of religion from public life - every mention of God or scripture from pledges, from currency, from public ceremony - that even they realize there are still some limits to how far they can go in robbing the vast majority of Americans of their freedom of speech, of expression, of liberty itself. I think they sensed that, were they to mount their customary screeches, litigation and protest, against the most admired single person on the planet, they might just spark a long overdue rejection of their insidious campaign.’

Now where did good old Pat get such ideas? I looked through his article and see that he never actually quotes an ACLU position on anything.

Rather than believing that he already knows ACLU’s positions (which clearly he does not), I invite Mr. Boone to go to our religion web page and look at two ACLU documents that reveal almost the opposite of what he imagines.

Does he have any proof for the extravagant claim that the ACLU is seeking ‘to remove every vestige of religion from public life,’ or is that just some fanciful false witnessing?

The truth - for those who seek it - can be found in part in the major statement of the ACLU position on freedom of religion.

For example:

Religion is pervasive in the public square in the United States - and it is constitutionally protected. The ACLU has long defended individuals, families, and religious communities who wish to manifest their religion in public…

The ACLU has supported the right of people to preach their religion in public places and to go door-to-door to spread their religious messages. The Constitution properly protects the right of religious figures to preach their messages over the public airwaves. Religious books, magazines, and newspapers are freely published and delivered through the U.S. Postal System. No other industrialized democracy has as much religion in the public square as does the United States.

All of this is constitutionally protected and the ACLU defends the rights of individuals, families, and religious communities to express such religious beliefs in public.

The ACLU does however believe that it is not the role of the government to be promoting religious beliefs or deciding religious questions - whether it’s the religion of the great Pat Boone or the mighty Reverend Moon.

These are the true ACLU positions. Now maybe Pat Boone believes that it is a good idea for the government to be endorsing religious beliefs and paying for religious activities. Fine. Let’s have a serious debate about that. But to suggest that the ACLU is trying to eliminate every vestige of religion in public is bearing false witness and the facts prove otherwise.

For example, the ACLU has represented many religious believers - including many Christians - in helping them to exercise their rights to manifest their religion in the public square. A list of recent ACLU cases on just this issue include:

• the right of Christians to protest against a gay pride event;
• the right of high-school athletes not to violate their Sabbath by playing sports;
• the right of an elementary-school student to sing Awesome God in a school talent show;
• the right of a Christian to condemn homosexuality in front of a Wal-Mart store;
• the right of churches to obtain a zoning permit that had been denied;
• the right of Evangelical Christians to preach in public;
• the right of public school students to express religious messages to other students;
• the right of a Christian to erect a cross on public property that was an ‘open forum.’

The document gives dozens of other examples. All of these facts are easily available for someone who wants to know the truth. When the ACLU opposes religious symbols it is when they are promoted by the government or when they erected on government property. The issue is not ‘religion in the public square’; the issue is government-sponsored religion.

And I’ll even wager that Pat Boone himself does not want the government to be promoting any religion other than the one in which he believes. If he ever lobbies to erect monuments to the Koran in front of the Courthouse or inserting the beliefs of L. Ron Hubbard in the Pledge of Allegiance, then I’ll eat my hat. I’ll eat his too.

Perhaps someday Pat Boone will finally read the actual ACLU positions and conclude that he doesn’t agree with them. Perhaps he will find some contradictions or inconsistencies. (Lord knows we’re only human!) Or perhaps he sincerely believes that it is a good idea for government officials to get in the business of deciding which religion the state should support and which religions it should not. Well, then we can debate those issues. But let’s not start out by throwing mud.

Finally, I hope that Mr. Boone does not think that the biblical command against bearing false witness should not apply to those who claim to act in the name of religion. That would be a shame.