The Catholic League, the American Atheists, and the Spirit of Christmas
	By MARCI A. HAMILTON
	Thursday, December 9, 2010

Not since World War II has it been more imperative that Americans come together as a united people against a common enemy. The jihadists want to destroy all that is good about America.

But, frankly, the Catholic League may beat them to it.

Here is what is not just good about America, but extraordinary: We are a religiously diverse people who have never in our history had a religious war. We started diverse, with multiple Christian denominations and Jewish settlers, and we are now the home for a rich, complex, and ever-changing collection of believers (as well as a small percentage of nonbelievers).

Look around the world and at history: We have accomplished a miracle. The saying "Live and let live" nicely sums up what is best in America.

The First Amendment has made this possible by protecting unpopular -- and even offensive -- speech. It permits people to vent, and it keeps the majority from suppressing the minority through the hand of government. A robust marketplace of discourse, therefore, has flourished.

The vast majority of Americans are religious believers of some variety. But regardless of whether one is, or is not, a believer, the First Amendment has protected absolutely the right to believe whatever one wants, and it has permitted a civilized clash of sometimes widely-differing viewpoints.

The American Atheists' Billboard versus the Catholic League's Billboard

There has been some entertaining verbal jousting this year, which illustrates my point about a robust marketplace of discourse.

This Christmas season, the American Atheists bought billboard space on which they placed a nice picture of a creche scene, along with the catchy phrase, "You KNOW it's a myth. This season celebrate reason." Obviously intended to goad the tottering Christians among us into joining their community of nonbelievers, the billboard is also supremely ironic, in that the atheists have chosen the way of most believers: proselytization.

Never one to lose an opportunity to take the martyr pose, Bill Donohue of the Catholic League erected his own billboard in response -- which cleverly says, "You know it's real. This season, celebrate Jesus." Donohue said that the board was intended to deliver a "counterpunch," which, as Steven Colbert pointed out, is exactly what Jesus would do.

This exchange between the billboard-authoring groups is truly amusing, because both plainly are operating out of their narrow universes, and yet both seem to think they are effectively speaking to others. The atheists simply don't get faith, which is not based on what one "knows." It is not science, or reason at all, that motivates the believer to believe. So the American Atheists' billboard is, at best, a gentle jab at the believer, not the punch intended. And in turn, Donohue's Catholic League has fallen into the atheists' trap, treating Christian belief as something one could "know" scientifically. Moreover, Donohue's invocation of violence in describing it as a "counterpunch" betrays what Christmas is all about.

Really, though, if these two groups are engaged in mutual verbal headlocks, where is the harm? That is what is great about America! Unfortunately, however, another controversy that involves free speech and the Catholic League is less benign.

The Smithsonian and the Catholic League: Controversies over Art, and Lobbying to Achieve Its Suppression

Donohue has been busy. The Catholic League also recently pressured the government to discriminate, in violation of the First Amendment.

The Smithsonian's National Portrait Gallery is hosting a provocative show entitled "Hide/Seek: Difference and Desire in American Portraiture." The exhibit portrays, in sometimes-graphic images, the challenges faced by homosexuals in this society. It included, until Donohue complained, a video by celebrated artist David Wojnarowicz, entitled "Fire in My Belly," which portrays the artist's intense suffering as he died of AIDS. One of the images in the video is of a crucifix lying on the ground, covered in ants.

The image is disturbing, but it also evokes the central themes of Christianity -- the suffering of Christ before his death; the way in which nature takes over our corporeal bodies after death; and the ugliness of death brought on by violence, or in Wojnarowicz's case, disease. It is a striking and thought-provoking metaphor that, in the end, is relevant to everyone.

Donohue had one interpretation of this powerful image -- it was an attack on Catholics. And no one "attacks" Catholics while he is on watch.

I think we are all clear on Donohue's viewpoint now: Catholic images should only be in the public square if they agree with his own world view. When images derived from Catholic culture are appropriated by others and used to make artistic points, he reserves the right to demand censorship. So in his view, there will be no crosses placed in urine (as occurred first in an Andres Serrano artwork that was included in an exhibit sponsored by the National Endowment of Art, and later in a hilarious "Curb Your Enthusiasm" episode); no elephant dung on black Madonnas (as was seen in a painting by the highly regarded and African-born artist Chris Ofili in a 1999 Brooklyn Museum exhibit), and now, no ants on crucifixes. None of these images is pretty, but not a single one resulted in the downfall of the Church.

In America, Thankfully, There Is No Right Not to Be Offended

Donohue is relentlessly consistent in labeling anyone he thinks is criticizing the Church as being "anti-Catholic." When I first started writing about the Catholic Bishops' preference for image over children, he quickly emailed me to call me a Catholic-hater. I responded that I love my Catholic husband and kids very much, but that I do hate one thing: child sex abuse. He continues to inveigh against the victims that the bishops created, in order to protect a false image of the Church. But I digress.

The Supreme Court routinely has rejected any claim to a right against offense. The risk of being offended, the Court has made clear, is simply the price that we pay for living in a religiously, ethnically, and culturally-diverse society built on the First Amendment's bedrock protection for speech.

Yet, Donohue always treats his own offense as if it gives him a right to pressure the government to remove the image that has offended him -- and in so doing, he proceeds as though government viewpoint-discrimination is as natural as breathing air, rather than being constitutionally-forbidden. In Donohue's ideal universe, drawn straight from the Middle Ages, he apparently has a right to use the government to stomp out Catholic blasphemy.

Donohue's cause lost at the Brooklyn Museum, and it should lose here as well. During the Brooklyn Museum controversy, Mayor Giuliani, taking his cue from Donohue and John Cardinal O'Connor, threatened to remove the Museum's city subsidy and to remove board members if the offending exhibit was not removed. Then he tried to evict the Museum. He lost: The federal courts held that such moves violated the First Amendment.

Every American Should Protest the Smithsonian's Self-Censorship in the Face of Attacks on Its Art

Now, however, Donohue has, in very short order, successfully pressured the Smithsonian to betray the heart of its exhibit. He trotted out the old "taxpayer dollars" argument, but the Smithsonian has said that this particular exhibit was financed with private funding. And yet, it still yanked the video from its exhibit.

This is a case of the government's succumbing to the entreaties of a religious lobbyist to engage in viewpoint discrimination. It is a classic case of majoritarian sentiment silencing a small, minority voice that interprets the world differently. As such, it is a major First Amendment mistake.

Remember the Danish and Dutch cartoons about Mohammed, and the Muslim attacks on them, which I discussed in this column? There is no meaningful difference between the reasoning of the imams and the Catholic League on these issues. They are both seeking the suppression of images they find offensive, based on their religious values. In other words, they are seeking to shape the world to their religious world view. In the end, that is precisely what the jihadists seek through violence.

If President Obama were the leader he should be, he would be fiercely protecting what makes America great, and reinstating the "Fire in My Belly" video at the Smithsonian right now.

Marci Hamilton, a FindLaw columnist, is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). A review of Justice Denied appeared on this site on June 25, 2008. Her previous book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback. Her email is hamilton02@aol.com .