Last week, Governor Terry McAuliffe vetoed a bill that would have protected students from religious discrimination and restored core First Amendment values that are being diminished by an increasingly thin-skinned, intolerant society.
Senate Bill 236, sponsored by Senator Charles Carrico and passed by both houses of the Virginia General Assembly earlier this year, provides that students in public schools are free to engage in voluntary prayer or religious expression to the same extent as students are permitted to engage in secular expression. In this regard, the bill simply clarifies First Amendment principles that courts have already applied in the context of the public schools.
The legislation is important because it would also eliminate a perennial cause of expensive litigation: the censorship of faith-based student speech at graduation ceremonies. While the Supreme Court has definitively ruled that students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” litigious, secularist organizations such as the American Civil Liberties Union (ACLU) have sued or threatened to sue school districts when student speakers mention their faith at school-sponsored events.
These organizations claim that when a student speaker takes the stage at a graduation ceremony, he becomes the government. Therefore, they say, if that student mentions the importance of faith in his life, he effectively “establishes” a religion in violation of the First Amendment’s Establishment Clause.
Senator Carrico’s bill would have done students and communities a big favor, by codifying First Amendment principles into a workable, legally sustainable, state-wide policy, thus eliminating successful lawsuits by groups on both sides of the issue.
The bill wisely adopts a judicial construct known as a “limited public forum,” allowing school officials to retain limited control over the content of the neutrally-selected student’s speech (i.e., restricting obscenity) while prohibiting viewpoint-based censorship. Finally, the bill sensibly requires school officials to issue a written or oral disclaimer to the audience, making it clear that the student is not speaking as a representative of the school district.
Governor McAuliffe and the organizations that urged him to veto this sound legislation, including the American Civil Liberties Union (ACLU), demonstrate an unfortunate misunderstanding of one of the most basic civil liberties of Americans: the right to free speech.
Echoing ACLU arguments, Governor McAuliffe justified his veto by saying, “the bill actually infringes on students’ right to be free from coercive prayer and religious messaging at both voluntary and required school events.”
In other words, our Governor believes students have a “right” not to hear other students say religious things. He claims, as the source of this “right,” the provision of our Constitution that prohibits Congress from making laws “respecting an establishment of religion.”
While the Governor’s argument is as wrong as it can be, it is, unfortunately, not new. It is the same, tired old argument that has been trotted out time and again to rid public places of prayer and references to the offensive name of “Jesus” by ordinary citizens who have a life-saturating faith.
All Virginians should reject the Governor’s position, whether they care particularly about religious expression or not, because it is a position that signals the sacrifice of liberty to feelings.
Speech—even religious speech at a graduation ceremony—is inherently non-coercive. That is precisely why society can afford to declare “free speech” to be every person’s “right.” But how can this “right” continue to exist if, as our Governor claims, people also have a “right” not to hear certain speech? It cannot.
In 1969, when the Supreme Court ruled decisively in favor of First Amendment protection for students, it explained that school officials’ desire to avoid “discomfort and unpleasantness” could not justify interference with students’ right to free expression. Apparently, our Governor disagrees.
We must actively resist his reasoning and insist upon a robust, historically accurate interpretation of the First Amendment. Please ask Virginia’s Senators to override the Governor’s veto on April 23rd.
Rita M. Dunaway is vice president for Public Policy with Virginia Christian Alliance. She lives in Harrisonburg.
