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Though the exact wording is still being hashed out, the amendment will attempt to reinforce freedom for religious activity in the public sphere. "The purpose should not be to promote religion in general or Christianity in particular," says University of Chicago law professor Michael McConnell, an adviser to the cause. "The purpose should be to ensure that religious citizens and religious speech are permitted to play a role in American life equal to any other ideology, philosophy, or persuasion."
This is what McConnell argued last week before the Supreme Court in the Rosenberger case, pointing out to the court that U.Va. had given student-activity money to 118 other groups, including a Muslim publication and a gay-and-lesbian organization. The ACLU, the National Council of Churches and the National School Boards Association, among others, filed briefs supporting the university's argument that funding Wide Awake would have violated the First Amendment's establishment-of-religion clause. ACLJ, the Southern Baptist Convention, the National Association of Evangelicals and the Christian Legal Society backed the Christian students, whose appeal was bankrolled in part by the Alliance Defense Fund, a coalition of leading evangelists and broadcasters that aims to build a $25 million fund to aid Christian litigators.
"Rosenberger draws together some of the most important issues for religious citizens, namely government funding, free religious speech by private individuals, and equality,'' says Steven McFarland, an Episcopal lawyer who runs the Center for Law and Religious Freedom, a 20-year-old Christian-advocacy organization. But he has harsh words for some of the scare tactics used by some of the more militant Christian-law groups. "We don't need a Christian ACLU," he says. "The ACLU gets most of its results from bluster, saber rattling and intimidation. Any organization that claims to serve a God of truth should not be about any of that business." McFarland points out that he has been able to resolve many of his cases with a phone call or letter to a local attorney general or school board.
Moreover, the new Christian law, as taught at Regent University can fall far outside the mainstream. The heavily footnoted articles in the Regent University Law Review cite Scripture as well as legal precedent. And one of them, at least, crossed the line between legal and criminal opinion. In 1994 ACLJ lawyer Michael Hirsh, who was representing antiabortion activist Paul Hill in an abortion-protest case, submitted an article to the review that justified killing abortion doctors. The piece was approved and scheduled for publication--until the day Hill murdered two people outside a Pensacola, Florida, abortion clinic; then the article was yanked, and Hirsh was fired several months later. The uproar caught Regent Law School dean J. Nelson Happy by surprise: "If the student editors decided to publish this, I didn't feel it was appropriate to stop them. It didn't strike me as something inherently mischievous. Then I got a call from the New York Times."