Separating Church and State Still an Issue in the US

It bills itself as “southwest Florida’s newest hometown . . . A town where children can ride their bikes to school, walk to the candy store and scoot their way to the ice cream shop. Where neighbors are friends and life is good. Where everyone enjoys life as it is meant to be lived.”

Yes, it sounds like Mayberry, USA, but this is not the description of a made-for-TV utopia. Indeed, it’s a very real place created by Domino’s Pizza founder and former Detroit Tigers’ owner Tom Monaghan, in partnership with the Florida-based Barron Collier companies.

Indeed, Ave Maria, Florida, was founded as an unincorporated “stewardship community district” in 2005. Florida’s then-governor Jeb Bush attended Ave Maria’s groundbreaking and dubbed it “a new kind of town where like-minded people live in harmony between faith and freedom.”

Faith? Freedom? For Monaghan, the two are inseparable, and he has trumpeted his intention of creating a city “according to strict Roman Catholic principles.” As he sees it, this means that stores will be unable to sell pornography, pharmacies will be barred from selling condoms or other forms of birth control, and cable TV will not be allowed to carry X-rated channels.

Small wonder that civil libertarians, secular humanists and those who believe in religious pluralism have a host of questions about church-state separation in Ave Maria.

Their fears ramped up after an article in Catholicstand.com hailed the town’s religious foundation. “This small town used to be 1,000 acres of tomato plant and has been transformed into a college town with modern amenities and a very distinct religious lifestyle . . . Catholic culture is apparent everywhere, in street names such as Assisi, Avila and Cana . . . The entire town was built around and revolves around the center: The Oratory.”

It’s a dream come true for Monaghan – a way to build a lasting legacy that honors his commitment to conservative Catholicism. In fact, the creation of Ave Maria followed a 2010 pledge that the now-77-year-old Monaghan took at the suggestion of billionaires Bill and Melinda Gates and Warren Buffett. The idea? To give at least half of his fortune – The UK Daily Mail estimated his net worth to be $485 million in 2013 – away before he dies. His first step was building the Ave Maria School of Law in 1999. The program was initially based in Ann Arbor, Michigan, but moved to Florida in 2009 to be closer to the newly formed Ave Maria University in the town of – you guessed it – Ave Maria.

Monaghan decided to invest in higher education shortly after he sold Domino’s Pizza to Mitt Romney’s Bain Capital in 1998 – a $1 billion transaction. He then used $300 million to open the two schools.

“The most important thing I could do with the resources I had been blessed with was to help build quality, faithful Catholic education,” he told a reporter from annarbor.com. “To have a more global impact, I need to focus on higher education to train the teachers, the principals, the future Catholic university and seminary professors.”

Unlike Jesuit or more-liberal Catholic academies, Ave Maria University [AMU] is run “according to the guidelines of the Code of Canon Law,” a system of laws and legal principles that are made and enforced by the Catholic hierarchy. Twenty-eight majors including Catholic Studies, Early Christian Literature, theology and Greek, are offered. Mass is offered three times a day on weekdays and four times on Sundays. And it doesn’t come cheap: Tuition and expenses are estimated at $27,686 a year.

Similarly, the law school emphasizes “the moral foundations of law” from a traditional Catholic perspective. According to Talk2Action’s Frank Cocozzelli, Supreme Court Justice Antonin Scalia had “significant input” in developing the law school’s curriculum; ultra-conservative and anti-abortion Congressman Henry Hyde was on its first board of directors.

Nonetheless, both programs have had trouble attracting and retaining students. The town, however, is slowly moving toward its desired target of 11,000 residents.

That trend concerns Howard Simon, executive director of the American Civil Liberties Union in Florida. “Monaghan got on our radar in 2004 when he was first beginning to consider building Ave Maria as a self-contained theocracy,” he told Truthout. For the ACLU, the big issue is whether any government authority will be transferred to a religious organization or whether the community will be governed by religious rules. Simon notes, “People have a perfect right to be with their own kind. I may not think that Balkanized, homogeneous communities are the best way to live, but people have the right to live in a way that is comfortable for them.”

At the same time, Simon contends that problems arise when what is comfortable for one group treads on the rights of another. Take the issue of health care. Several years ago, Naples Community Hospital was in negotiations with Ave Maria to open offices in town.

“There were a lot of big questions,” Simon continues. Among them: whether medical care would be dictated by religious rules, for example, what if someone with a Do Not Resuscitate order had an accident of some kind? Would the hospital respect the order? What advice would a rape victim get? What kind of referrals? Would she have access to information about abortion or emergency contraceptives if she wanted them?

“We want to respect people’s choices,” Simon adds, “but when government gives authority to religious groups to govern in accordance with religious rules, it goes too far and violates the Constitution.”

In the end, Naples Community Hospital did not open a satellite in Ave Maria. The reason? The health center’s refusal to restrict the availability of birth control, abortion and abortion referrals.

Health services are also an issue on the AMU campus, and the school is currently suing the Obama administration over the Affordable Care Act’s contraceptive mandate.

For the time being, the ACLU is keeping a close watch on Ave Maria, looking for violations of church-state separation and other infractions of law. “There’s a fine line between respecting religious liberty and respecting the Constitution,” concludes executive director Howard Simon.

Rob Boston of Americans United for Separation of Church and State agrees, but points out that Ave Maria is not an anomaly. “Over the years there have been a number of attempts to create insular religious communities in the United States.” Among them: Zion, Illinois, founded in 1901; Rehoboth Beach, Delaware, founded in 1873; and Ocean Grove, New Jersey, founded in 1869. Those communities are now diverse and largely secular. Other municipalities, however, including Kiryas Joel, New York, and the twin towns of Hildale, Utah, and Colorado City, Arizona, are presently testing the limits of religious authority in contemporary life.

“Historically,” Boston adds, “one of two things typically happens in places run by religious denominations. First, outsiders often move in and change the character of the area. Secondly, these communities tend to be riven by internal dissent.”

Boston points to Hildale and Arizona City – towns that were run by polygamist Warren Jeffs before his 2010 imprisonment on child endangerment and sexual abuse charges – as a case in point. He reports that Jeffs’ lieutenants in the Fundamentalist Church of Jesus Christ of Latter Day Saints [FDLS] are now trying to run the towns.

“People who are considered apostates or outsiders have had to bring the FBI and Department of Justice in because they’ve been denied housing and public utilities,” he says. “A town can’t treat people differently based on what they believe or don’t believe. If you base citizenship on where a person goes to church, you’re running a mini-theocracy.”

Complaints have led the feds to investigate at least three incidents involving discrimination against non-churchgoers. In one, a former FLDS adherent is charging that his truck was blown up by the FDLS in retaliation for his leaving the group; in another, the 16-year-old son of an ex-church member alleges that he was intentionally sideswiped by someone in the FDLS while riding his bike; and in a third, gunshots were fired into the local attorney general’s office shortly after the community was told that it could not “discriminate based on religion.”

Conflicts aside, Boston says that he understands the impulses that lead people to desire insularity. “Folks sometimes want to shelter their families from what is perceived to be secular American culture. They may see the threat as coming from sexual messaging or imagery, rap music, or violent movies or TV shows. It’s a strain of thinking rooted in the belief that you can cordon yourself off from society. But we need to remember that the idealized image of a Golden Age that people harken back to was an oppressive time for many parts of the population, including people of color, Jews, gay people and women.”

Still, insulating the community from outside influences is the raison d’être for residents of Kiryas Joel, New York, a small town 50 miles north of New York City that was founded by Satmar Rabbi Joel Teitelbaum in the mid-1970s and has since developed into a tight-knit enclave of more than 22,000 Hasidic Jews.

Kiryas Joel came to the attention of the New York Civil Liberties Union [NYCLU] in December 2012 when it learned that the town’s leaders intended to turn a public 283-acre park into a sex-segregated play space in which boys and girls would be restricted in accordance with religious law. According to the complaint, The Kinder [Yiddish for children] Park planned to require males to use blue equipment on one side; females would be confined to a separate area, complete with red and white playthings.

In March 2014, the New York Civil Liberties Union and Kiryas Joel reached an agreement. The suit was dropped after the town agreed to remove all signs mandating the gender separation. The accord also stipulates that the NYCLU will “monitor the park over the next three summers to ensure that there is no endorsed or enforced segregation on the basis of sex in public places or programs.”

Ongoing monitoring, of course, will be key in all these scenarios. “Government can’t pass laws that have a primary purpose of advancing religion,” says Alex Luchenitser, associate legal director of Americans United for Separation of Church and State. “For example, you can’t enact a law establishing a dress code for an entire city based on religious beliefs about modesty without violating the Constitution.”

That said, Frederick Clarkson, senior fellow at Political Research Associates, notes that the issues surrounding church-state separation and religious freedom remain somewhat thorny. “A guy like Tom Monaghan does not get to rewrite the Constitution in accordance with his religious or political viewpoint,” he says. “But a bunch of people can get together to form an intentional community. The question then becomes to what extent can a person give up his or her individual rights? In the town of Ave Maria, people need to see what’s in the fine print. Are they giving away something that is not anyone’s to take? Are there restrictions on free speech? Can you publish and distribute a newspaper that criticizes Tom Monaghan or the Catholic Church? For me, the real question is one that Thomas Jefferson asked: Are you as free to go out of a church as you are to go into one? Or are you a captive of the company store?”

Needless to say, the devil may be lurking in precisely these details.