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Barbara O'Brien

Tolerating Public Religion

By July 17, 2012

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The recent "Help the Advice Columnist!" post describes a Nichiren Shu Buddhist who was heckled and ridiculed while chanting in a public park. Some of the commenters to the original advice column cited seemed to think that heckling religious activity is their moral obligation. "... we who do not have or want anything to do with religion have a very strong interest in disabusing religious people of the notion that they deserve respect for shoving their worship nonsense into our faces in the public commons," wrote one.

Another wrote, "The sense of entitlement that the religious have in this country is astounding. The knee-jerk reaction that your rights were being infringed because someone didn't defer to your religiosity? Yikes." In fact, the Nichiren Shu letter writer hadn't said anything about her rights being violated. She was rattled and upset for having been loudly ridiculed in public, as most people would be. And I think all beings are entitled to not be bullied.

The last post told the story of a man who installed a Buddha statue on a public median in his neighborhood in order to discourage illegal trash dumping, graffiti, and other activities. In time tending to the Buddha statue became a kind of neighborhood activity that built a sense of community even as it drove away the trash dumpers. Then someone complained about a religious statue in a public place and asked that it be removed.

Both posts touch on the issue of public displays of religiosity. The scenario with the public gongyo chanter also presents us with clashing "entitlements." Leaving aside proselytizing, is a religious person "entitled" to engage in spiritual activity -- be it chanting, praying, meditating  or tai chi -- in a public place? Is someone who hates religion "entitled"  to having all religious activities removed from his sight so that they don't offend him?

I want to be clear that I'm talking about someone practicing a religious activity that isn't interfering with what other people in the public space are doing. Proselytizing certainly can be obnoxious, especially when the proselytizer is aggressively confronting passers-by about their religious beliefs. I personally think such behavior falls into the category of "public nuisance" and shouldn't be legally protected just because the nuisance has a religious context. On the other hand, in an area where people are allowed to hand out political brochures or other advertisements, quietly handing out religious tracts should be treated no differently, I say.

All over the globe areas that were once religiously homogenous are now being shared by multiple religious traditions, and it's causing friction, at the very least. It sometimes causes violence. Societies need to set ground rules about what's to be tolerated.

In the U.S., there's a lot of confusion about what's allowable in a public space under the First Amendment. The neighborhood Buddha in particular presents an interesting First Amendment question, so let's review.

I wrote about the First Amendment establishment clause in more detail in an old post, but very briefly, the clause prohibits the U.S. federal government from making laws that "establish" religion, which in 18th century legal language meant recognizing one particular religion as the official state religion. Then a series of Supreme Court decisions in the 20th century said, in effect, that the 14th Amendment places this prohibition on state and local government as well.

The authors of the Constitution were keenly worried about factions of any sort taking over government and using government to benefit themselves to the detriment of everyone else. In the case of religion, the 18th-century men who wrote the Bill of Rights understood how the practice of "establishing" religion had caused nasty religious wars in Europe. If the government was prohibited from passing laws favoring one religion over another, they thought, perhaps religious factions wouldn't cause so much political trouble in the future.

However, the establishment clause was never intended to remove all religious observance from public facilities. For example, President Thomas Jefferson had no problem with various groups holding church services in federal government buildings while they weren't being used for official purposes. In the days before electric bills such usage didn't cost the taxpayers any money, and no act of government compelled anyone to attend. However, Jefferson refused to announce national days of prayer, because he thought it was not government's place to tell people when to pray.

Today, current case law generally allows people to hold religious observances on public property as long as no agent of government is involved in organizing it. So, for example, children attending public school may participate in group prayers and religious study clubs on school property as long as the students organize it themselves and participation is voluntary. Religious activities may not be organized or promoted by public school faculty, however, because they are government employees.

So, like it or not, people really do have a right to practice religious observances in public parks as long as they aren't imposing on other peoples' enjoyment of the park. Those who object only because they hate religion need to chill.

The neighborhood Buddha installed on a strip of public land is a little more problematic. However, I think the neighborhood Buddha falls into a kind of First Amendment gray area.

In 2005 the Supreme Court decided that it was OK for a monument inscribed with the Ten Commandments to be installed on the grounds of the Texas statehouse (Van Orden v. Perry). In 5-4 decision, the Court decided that the Ten Commandments have historical and secular as well as religious significance, and anyway the monument had been in place for 40 years before anyone complained about it.

I don't agree with this decision, but if an official Ten Commandments monument installed on state capital grounds and tended by state capital groundskeepers is not a violation of the establishment clause, I don't see how the neighborhood Buddha qualifies, either. No government officials were involved in installing it, no taxpayer money is maintaining it, and no one is being compelled to pay attention to it. If the city of Oakland were to start installing Buddhas around town that would be something else entirely, of course.

July 31, 2012 at 7:53 am
(1) Edward Infield says:

Leaving aside constitutional considerations, I would suggest that a basis for any objection to a statue or activity of a religious nature would be whether it was intrusive, a nuisance, offensive or aesthetically repugnant.
For example under the English Law of Torts an action was brought because the ringing of church bells was deemed to be a nuisance. In recent times in Switzerland minarets were regarded as intrusive. In France laws have been passed against the wearing by women of head covering.
The statue of the Buddha referred to in your newsletter would not seem to be intrusive, a nuisance, offensive or aesthetically offensive so any objection to it would appear to be motivated by religious intolerance and not out of concern for the public good. Edward

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