I can understand why Olivia would be upset. After her first choice of a song to perform at what is the most glamorous event of her school year doesn't pan out, she has to give up her second choice, a favorite since birth, thanks to the nonsense of grownups. Brutal. I can understand the tears, and I can understand her parents complaining to the principal and then the school board, each time without success. Your kid feels bad, you do what you can to make her feel better.
But go to federal court?
At the time, more than a year go, Olivia could not have dreamed that her sweet, unassuming performance would become the subject of a church/state lawsuit, one that brought together such strange bedfellows as the Alliance Defense Fund and the American Civil Liberties Union, both fighting for her right to sing about God after school. But that's exactly what happened.
Claiming that the school board, its president and Brennan violated her First Amendment right to religious expression, Olivia now waits for U.S. District Judge Stanley Chesler to decide this month whether a trial is necessary before he rules on her demand that kids be allowed to sing religious songs at the annual talent contest. It's not really her demand, of course, because Olivia's parents filed the lawsuit on her behalf. But with three of the nation's most ideologically driven legal organizations — the conservative ADF, the ACLU and the Bush Justice Department — all arguing Olivia's side, you wonder whether it is even the Turtons' lawsuit.
When public institutions like schools do anything, one of the basic rules is this: It must be for a secular reason, it must have primarily a secular effect and it can't entangle them with religion. That's why the U.S. Supreme Court struck down prayer and Bible reading in class. But Olivia's case raises unusual issues on the entanglement point. Her song was religious, but the talent show was open to the public and held after school, no students were required to attend, and no rule prohibited acts with religious themes. Yet school officials worried that someone, especially a child, might still think they endorsed the message of "Awesome God" because they sponsored the show, so they pulled the plug on the song. Olivia's supporters said this was nonsense — as well as illegal: She has the free-speech right to sing any song within the rules, and no one could possibly believe that her speech was also Frenchtown Elementary's.
Few school districts are nimble enough to navigate between religion and speech without tumbling into a lawsuit, so I can't blame the Frenchtown officials for trying to play it safe. But despite their conflicting politics and agendas, the ADF, ACLU and Justice Department all seem to find the district's position ridiculous, a reaction that suggests they have more than the law on their minds.
For the Alliance Defense Fund, whose lawyers represent the Turtons, it's pretty clearly the promotion of Christian causes. The organization was created in 1994 largely to counterbalance the ACLU in court, and it has since successfully defended the Boy Scout ban on gay scoutmasters, helped stop San Francisco from instituting gay marriage, and backed efforts to keep Terri Schiavo alive. Now it's on the same side as the ACLU, which makes local ADF counsel in the Turton case very uncomfortable. "I almost see it as a conflict," said Demetrios Stratis of the ACLU's role in the case. "They're just throwing a bone to Christians, if you will, so they can say they support everyone."
For the ACLU, though, it's the chance to change that irksome perception, to show that the organization is as much a defender of religious speech as it is of the political kind. The ACLU of New Jersey filed a brief supporting the Turtons because "we have a dedication to ensuring the right to religious expression," said legal director Edward Barocas, who stressed, a little defensively, that his office has supported "numerous such cases in recent years."
For the Justice Department, it's the need to burnish the Bush Administration's image among its political base, the Christian right. In recent years, the department has rarely participated in civil rights cases, except when pro-life and other conservative causes were at issue. Its position that the school district's "censorship was unconstitutional" squares with that record.
Not that Olivia's case is weak. In fact, constitutional law expert Michael Dorf at Columbia University Law School says her free-speech argument should make a decision in her favor "a no brainer" for the court. But lost in the legal posturing is what the Turtons, and particularly Olivia, get out of all this.
Her father, Robert, said he went to the ADF because the suggestion that religious songs are unacceptable "was the wrong message to relay to our daughter." But the case is in its second year, Olivia is entering the fourth grade, and it is all beginning to wear on the family. "She feels it's a lot of trouble over something that seems so simple to her," said Robert. "She doesn't really understand it. She just wanted to sing a song."