Michael Helms’ recent letter — “Keep religion out of government” in West Hawaii Today March 8 — suggests that a permitted nonpermanent display of an informational kiosk of religious tracts at the Hawaii Volcanoes National Park is an unconstitutional governmental endorsement of the message being conveyed. I respectfully disagree.
The First Amendment to the United States Constitutional provides: “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 of the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” The U.S. Supreme Court, the recognized final arbiter of the meaning of our Constitution, has on numerous occasions addressed the constitutional imperatives embraced within these provisions.
Different mechanisms protect speech and religion. Speech is protected by ensuring its full expression even when the government participates, for the very object of some of our most important speech is to persuade the government to adopt an idea as its own. (Meese v. Keene (1987) 481 U.S. 465, 480–481; see also Keller v. State Bar of California (1990) 496 U.S. 1, 10–11.)
The method for protecting freedom of worship and freedom of conscience in religious matters is quite the reverse. In religious debate or expression, the government is not a prime participant, for the Framers deemed religious establishment antithetical to the freedom of all. The Free Exercise Clause embraces a freedom of conscience and worship that has close parallels in the speech provisions of the First Amendment, but the Establishment Clause is a specific prohibition on forms of state intervention in religious affairs with no precise counterpart in the speech provisions. (Lee v. Weisman (1992) 505 U.S. 577, 591.) The explanation lies in the lesson of history that was and is the inspiration for the Establishment Clause: that in the hands of government what might begin as a tolerant expression of religious views may end in a policy to indoctrinate and coerce. A state-created orthodoxy puts at grave risk that freedom of belief and conscience which are the sole assurance that religious faith is real, not imposed. (Id. at p. 592.) If citizens are subjected to state-sponsored religious exercises then the state has disavowed its own duty to guard and respect that sphere of inviolable conscience and belief which is the mark of a free people.
Thus, laws that coerce nonadherents to support or participate in any religion or its exercise would by definition violate their right to religious free exercise. (See Employment Div., Dept. of Human Resources of Ore. v. Smith (1990) 494 U.S. 872, 877 [under Free Exercise Clause, “government may not compel affirmation of religious belief”]; see Burwell v. Hobby Lobby Stores, Inc. (2014) __U.S. __, 134 S.Ct. 2751, 2790.)
What Mr. Helms’ article fails to address and which is essential to a proper understanding of the constitutional questions at issue is whether the informational display at Hawaii Volcanoes National Park meets the constitutional equivalency test of a state sponsored religious exercise. I submit it does not.
Prior holdings of the high court do not call for total separation between church and state; total separation is not possible in an absolute sense; some relationship is inevitable. (Lemon v. Kurtzman (1971) 403 U.S. 602, 614.) In order to determine whether the government entanglement with religion is excessive, and therefore unconstitutional, courts examine the character and purposes of the institutions that are benefited, the nature of the aid that the state provides, and the resulting relationship between the government and the religious authority. (Id. at p. 615.)
The general principle to be gleaned from the First Amendment and all that has been said by the high court is this: “we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.” (Waltz v. Tax Commission of City of New York (1970) 397 U.S. 664, 669-670; see also Everson v. Board of Ed. Of Ewing (1947) 330 U.S., 1 15-16 [a case cited by Mr. Helms].)
In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the state to limit expressive activity are sharply circumscribed. At one end of the spectrum are streets and parks which “have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” (Hague v. CIO (1939) 307 U.S. 496, 515.)
A claim of First Amendment access to public property which is not by tradition or designation a forum for public communication is governed by somewhat different standards. The courts have recognized that the “First Amendment does not guarantee access to property simply because it is owned or controlled by the government.” (United States Postal Service v. Greenburgh Civic Ass’n (1981) 453 U.S. 114, 129.) In addition to time, place, and manner regulations, the state may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view. (Id., at 131, n. 7; see also International Society of Krishna Consciousness, Inc. v. Lee (1992) 505 U.S. 672, 688.)
The religious kiosk to which Mr. Helms’ letter refers obtained prior park service permission for a limited presence in a designated area that did not interfere with public access to or from or within the park. Nor did the kiosk’s attendants engage in conduct which could reasonably be construed as disturbing the peaceful enjoyment of disinterested visitors — there was no amplified sound equipment to broadcast their message nor any unwanted physical or verbal contact with such persons. Moreover, the National Park Service did not in any fashion endorse the message being offered, did not encourage park visitors to engage with those manning the kiosk, nor does it appear that the National Park Service had an institutional policy favoring one point of view over another. So where is the constitutional violation?
Edward H. Schulman is a resident of Kailua-Kona.
Viewpoint articles are the opinion of the writer and not necessarily the opinion of West Hawaii Today.