During the 1970s, fundamentalist Christians fighting for the right to educate their children in their own private schools rolled up five landmark victories in the nation’s courts. It seemed that the legal walls separating church and state—at least in the realm of religious education—were becoming bulwarks.
But now, many constitutional lawyers who specialize in First Amendment freedoms for Christians are becoming agitated, because they believe the walls built during the seventies are being seriously eroded.
Ironically, the problem is not so much with the courts or the federal government as with a small, fundamentalist law firm in Cleveland, Ohio, named (David) Gibbs and (Charles) Craze. The firm has a distinctive philosophical view of how to handle the cases—a view that has not prevailed in three important decisions handed down in state courts during the last 12 months.
But philosophy is not the whole problem, according to the many critics of the law firm. Its senior partner, David Gibbs, is an able trial lawyer who has won some victories. But Gibbs spends most of his time on the road, preaching at fundamentalist rallies and lecturing in seminars about the need for pastors to stand their ground against the government. He does this under auspices of the Christian Law Association (not to be confused with the Christian Legal Society), which he and others founded in 1977 to raise money so Gibbs and Craze could defend its pastor clients and educate them about the dangers of government encroachment on the churches.
Consequently, Gibbs simply does not spend enough time preparing his cases for trial, say the critics, and they say he has lost more than one case because of Shoddy research. Gibbs roundly denies the accusation, but among those deeply concerned are the lawyers who have left Gibbs and Craze during the last two years because they were dissatisfied with Gibbs. In fact, as many full-time lawyers—four—have left the firm in the last two years as currently work there. (One of the four who has resigned, Tedd Williams, will stay on until June.) Besides the lawyers, the Christian Law Association’s last two editors have also left in dissatisfaction. One of them, Alan Grover, quit after only two months—before CLA’s magazine, the Defender, could even announce his arrival.
The three harmful court decisions that have been handed down in the last year involve Christian clients of Gibbs and Craze. It is what other constitutional lawyers see as inadequate defense of the issues at stake that has them so concerned. One of these is John Whitehead, a Washington lawyer, who told a group of Christian educators recently. “If [these three decisions] stand, they may have reversed 50 years of constitutional law.” (Whitehead is one of the lawyers who left Gibbs and Craze and now practices independently.)
A doctor who harms a patient by using a treatment that fails hurts no one but that patient. But a lawyer who loses a case in a top state or federal court sets a legal precedent. The court’s decision is used against other lawyers down the road when they try to defend similar cases. Each harmful precedent makes the battle more difficult.
One lawyer views the Gibbs and Craze situation as so serious that he has done something lawyers rarely do. He has criticized them publicly by writing an unfavorable letter to them and sending copies to other lawyers handling religious freedom matters. That lawyer is no idle critic. He is William Ball of Harrisburg, Pennsylvania, and he has won more important cases bearing on Christian freedom than any other lawyer in the country. All five of the landmark decisions in the seventies were won by Ball, and he has won others as well. Comments by two attorneys are typical of what one hears about Ball: “He’s a lawyer’s lawyer,” said one. “He’s almost a legend.” said another.
The court decision that prompted Ball’s letter involved two fundamentalist Christians. Paul Shaver and Dennis Steinwand, who sent their children to the Bible Baptist School in Bismarck, North Dakota, being operated by the Bible Baptist Church without state approval. The parents said they were required by God to educate their children by Christian principles, which were not taught in public schools; since Christian education was a religious duty, their school could not be required to submit to any state regulations.
Fair enough, said the state supreme court in its opinion; but if the parents believed state regulation imposed illegally on their religious beliefs, they should have showed how this was so; but they did not. “No attempt was made at the trial to show how compliance with the law would affect the religion of the parents or their children.” said the court in its opinion.
(In one of the landmark cases of the seventies, Whisner v. Ohio, the situation was similar. A fundamentalist school would not comply with the state’s “minimum standards,” which were contained in a 125-page booklet of 600 regulations. But in this case, William Ball, defendant Levi Whisner’s lawyer, called witness after witness to show that the “minimum standards” were a hopeless maze. Not all of the standards were even understood by the state’s educational bureaucracy. Ball also showed that state certification of teachers—one of the regulations—was not the safeguard the state claimed it was. Certification means the state approves the teacher’s credentials after he passes certain college courses and gets a degree. The trial was dogged work, but it paid off when, in 1976, the Ohio Supreme Court found the standards unconstitutional.)
The First Amendment of the U.S. Constitution says two things about religion. The first is that “Congress shall make no law respecting an establishment of religion.” The second is that Congress cannot prohibit “the free exercise thereof.” The Fourteenth Amendment applies this to state government as well.
Courts have held that if the government “excessively entangles” itself in religion by overly regulating Christian schools, it has violated this first constitutional safeguard, the “Establishment Clause.” But in this argument is an admission that the government does have some legitimate duty to see that children are properly educated.
This is where David Gibbs draws the line. He and his clients believe education is ordered by God, so there is no distinction between the Christian school and the local church. Just as pastors would not permit the state to have a say in its church worship, neither can they permit the state any control over education.
Because of the beliefs of the pastors Gibbs has defended, he does not develop the “excessive entanglement” idea contained in the Establishment Clause because they believe in no entanglement. Their stand in court, therefore, is simply that any attempt by the government to regulate them amounts to a violation of the second constitutional safeguard in the First Amendment, the “Free Exercise Clause.” This is the philosophy that separates Gibbs from most other lawyers who defend Christian school cases.
Ball believes it is a fatal mistake. “The Constitution gives us two weapons against government, not just one. The First Amendment has a Free Exercise Clause and an Establishment Clause. It is the latter which is the Constitution’s big gun against violations of church-state separation.”
With regard to the implication that if excessive entanglement is prohibited, then some entanglement must be permissible, Ball said, “Not at all. In almost all these cases, the state has sought to impose excessive entanglements, very major violations of church-state separation. It is an awful mistake not to attack these.”
Lawyers differ about what rights the state has in Christian education. Ball believes it must be limited to reasonable fire, health, and safety regulations as well as the core curriculum, such as reading, writing, and arithmetic.
In a recent article, Ball wrote that if the “religious anarchists,” as he calls them, could write their own law, they would say the state would have no power to impose any requirement on what is taught in religious schools. “This means that nothing—literally nothing—can be required to be taught in any religious school. Although all such schools may, it turns out, teach English to their children and teach it well, this statute is a denial of the principle that we (as in ‘We the people …’) have any common concern for one another in the area of education. Thus, under such an exemption, no school, or home teacher, could be required to assure that a child learn the language of his country, or that he be able to compute, or know something of his country’s history, form of government or geography.”
Gibbs argues that his clients do not object to reasonable fire, health, and safety regulations for Christian schools either, as long as the government does not make a distinction between the church and the school. But this often happens, because local codes usually call for stricter regulations for schools than for churches. Problems occur when pastors refuse to obey the stricter regulations, especially when the school is located in the church building. They believe it is unreasonable for them to bend to stricter regulations during the week when they have far fewer people in the building than on Sunday.
The North Dakota decision, the first of the three that lawyers consider so harmful, was handed down last summer. The second of the three decisions came last December. In this case, the Ohio Supreme Court ruled that James Olin could send his daughter to an Amish school, even though the Olins were not themselves Amish. While that seemed like a victory, the court called for new, more reasonable, state regulations (to replace those struck down in Ohio in the Whisner case). It suggested that Ohio adopt the North Dakota regulations, which were upheld in the Shaver case, and which require teacher certification. Many teachers in tiny church schools are not certified, and this would wipe them out. This is deplorable, wrote Ball in a memorandum on the Olin decision. “I fear that it spells great difficulty for the future.” The law firm defending James Olin was Gibbs and Craze.
On January 30, the third harmful decision was handed down. The Nebraska State Supreme Court ruled against the Faith Baptist Church School in Louisville, Nebraska, after it refused to seek state approval. The court held that the state may certify teachers, that it may dictate curriculum, and that high scores by the religious school children on standardized tests are not sufficient to protect the state’s interests. As in Olin and Shaver, no attempt was made to show in detail how the regulations excessively entangled the state in religion. The law firm on the losing side was Gibbs and Craze. Ball and other constitutional lawyers believe it is imperative that religious education cases be prepared meticulously and defended on as many fronts as possible for one overriding reason. The United States Supreme Court has not yet ruled clearly on just how far the state may go in regulating religious schools, and the Christian legal community wants only the best-prepared case to get to the high court. Everett Sileven, pastor of the Nebraska church, is completely satisfied with Gibbs’s handling of his case, and has asked him to appeal it to the U.S. Supreme Court. He apparently will, and other Christian lawyers believe it will be devastating if the court decides to hear it, because they believe it has no chance of winning. Even that doesn’t disturb Sileven, who said he expects to go to jail to win the complete religious freedom he believes in.
David Gibbs’s brethren in the legal profession are not the only ones upset at what they perceive to be his failure to prepare well. Clients have been known to feel the same way.
Dale Crowley, Jr., is executive director of the National Foundation for Fairness in Education in Alexandria, Virginia. Four years ago, his organization hired David Gibbs to handle their lawsuit against the Smithsonian Institution. Crowley and his group believe the National Museum of Natural History, run by the Smithsonian, breaks the law by displaying an evolution exhibit because it offends the religion of those who believe in biblical creation. The suit was lost, and Crowley lays much of the blame on David Gibbs.
Crowley said in an interview that after hiring Gibbs, “We ran into delays, neglect, and preoccupation with his speaking engagements across the country. It drove us up the wall. We’d write him letters and get no answers, make phone calls and get no return calls. We even had him scheduled for a meeting down here and he didn’t show up.” At the meeting were influential people from the Washington, D.C., area who might have been influenced by the lawyer’s presentation of the case and contributed to the high costs of the suit, said Crowley.
Gibbs finally did come, apologized for neglecting the case, and promised to advise the group once a month of the developments. When they got no monthly updates, Crowley and others wanted to fly to Cleveland to see Gibbs. When they could not get an appointment, they did not go. “It was a nightmare,” said Crowley.
Responding to Crowley’s statements, Gibbs said he did not show up for the meeting because his plane was snowed in. Sometimes, he acknowledged, he is hard to reach because he has so many cases and is on the road so much. He denied that his busy schedule prevents him from making the best possible preparation for the cases. “Do we do our dead level best to prepare as best we can? The answer is yes,” he said.
But Gibbs’s law partner, Charles Craze, has become the subject of a legal action brought by an unsatisfied client. Craze handled her case on behalf of the Christian Law Association and lost it. She is appealing, and one of the grounds is “inadequacy of counsel.” The appeal is being handled by John J. McLario, a prominent fundamentalist Christian lawyer.
The defendant is Cynthia Webster, wife of David Webster, pastor of the Bible Baptist Church in Neillsville, Wisconsin. She was a teacher at the church’s school, and one day in October 1978, she swatted a five-year-old boy five or six times with a wooden pointer after he deliberately, and repeatedly, refused to pronounce a word that he knew. After serious bruises were found on the boy, Mrs. Webster was charged with a felony count of child abuse, a serious crime. The trial was in August 1979, and the following facts are from the appeal documents:
As the trial date approached, the Websters began to wonder because they had not heard much from the Christian Law Association, although it had agreed to take the case. David Webster said, “We were a little apprehensive because we were never told of any strategy, any investigations, any attempt to get witnesses from our side or any instructions concerning questions we would be asked if we had to testify. We wondered if they had forgotten about us.…”
Craze flew into town the day before the trial and spent only about three hours with the clients. The appeal claims Craze’s defense was inadequate, and here is some of what the appeals documents said:
• The lack of preparation was evident when David Webster made a serious error on the witness stand by admitting that his wife was wrong in using a pointer instead of a paddle to swat the child. Craze compounded the error because he apparently wasn’t paying attention and had Webster repeat, in the jury’s presence, the admission that the pointer was wrong. Webster’s response “… can only be characterized as confused, disorganized, and destructive to his own wife’s case,” said one of the appeal documents.
• Craze did not question the child’s testimony, although he would not answer questions at first and his mother repeatedly whispered to him as he testified while seated on her lap.
Asked about all this, Craze responded by saying the case was adequately defended. He said the defense strategy was to be completely open with the jury, and “it borders on stupidity” to suggest that he should have objected that the child was an incompetent witness, because when children are involved in a trial, they easily win the sympathy of a jury, and criticism of them, even if justified, can backfire. He said he did not see Scott’s mother whispering to him, although affidavits from spectators say she did. Regarding the alleged slip by David Webster in admitting that his wife was wrong in using a pointer, Craze said the jury had a harsh impression of Webster, and needed to hear him admit that a mistake had possibly been made.
Despite the fact that Craze says the defense was adequately prepared, the appeal contains an affidavit from Timothy Hallett, pastor of the New Testament Baptist Church in Eau Claire, Wisconsin. Said Hallett, “Attorney Craze indicated to me that he was very busy and that it is hard to keep up with all of the different cases and difficult to do them justice because there just isn’t enough time to spend on each.… Attorney Craze stated to me during that conversation that he did not have enough time to prepare for the Webster case and that he wished he could have given more time to it.” Craze does not recall saying that, but said he may have; he said most lawyers wish they had more time to prepare. He reiterated that the Webster case was well defended.
It is not surprising that the Christian Law Association has so many cases. Gibbs is on the road almost constantly. He is a gifted speaker, able to dissect the principles of First Amendment law so that the fundamentalist pastors who flock to the CLA’s “biblical-legal” seminars across the country can grasp the urgency of their need to stay free from the government’s grasp. Much of the advice seems sober, level headed, and valuable, but at other times it is belligerent. During a lecture at a seminar in Mount Hermon, California, Earl Little, CLA vice-president, told some 200 pastors that since Satan is behind bars, the pastors needn’t fear him when he comes disguised as a zoning inspector trying to make a school comply with regulations. He compared government agents with apes behind bars, and snakes behind a glass barrier. He exhorted the pastors to resist their intrusions, saying Jesus’ disciples counted themselves worthy when they stood against the government. “If you roll over on your back and wag your tail, they’ll dance on your chest with steel cleats,” Little said.
During the very next lecture, however, Gibbs urged the pastors to be calm when their school is visited by government inspectors, and to exhibit Christian love at all times. A pastor checking his notes after the seminar might be excused for being confused about the stance he should take.
Gibbs has a wide and apparently growing following among fundamentalist pastors. His reputation started in Ohio during the turmoil of the seventies, when the state was pressing its burdensome regulations on Christian schools. Gibbs spoke powerfully at rallies, explaining the cases he was handling. The situation was defused when Ball won the Whisner case, having the regulations thereby declared unconstitutional. At that time, Gibbs was also defending a church in Concord, New Hampshire, whose pastor was under threat of a jail sentence for operating his church school in violation of local zoning regulations. The case, which lost in lower courts, was upheld by the state supreme court, but only after Gibbs drove all night through a blizzard from Cleveland to Concord to appear in court and argue the case. By all accounts he gave a dazzling performance. The Christian Law Association was organized that year, 1977, to raise funds as the case load grew with Gibbs’s reputation.
The CLA engages in brassy self-promotion, mostly through its magazine, the Defender. In 1978, the magazine quoted the well-known fundamentalist pastor, Jack Hyles, as saying that Gibbs is “the legal messiah for the Christian school movement in America today.” A slide-tape presentation says the CLA “is to the judicial system what the ballot box is to the political system.” The Defender articles are shamelessly effusive: “The morning hours were grueling and tedious as Attorney Gibbs’ cross-examination pressed on with unwavering determination to secure the truth,” read one account of a trial.
Officially, the CLA is a client of the Gibbs and Craze law firm, and the CLA paid the Gibbs and Craze firm nearly a half million dollars for its legal services in 1979 (1980 figures were not available). As a practical matter, it seems Gibbs controls both the firm and the CLA. Wallace Metts was employed by CLA as media director, but left in dissatisfaction last December, partially because Gibbs was gone so much that Metts could not get things accomplished since Gibbs’s approval was necessary for most of what Metts did. “Everything I did was subject to Gibbs and Craze. It got to be intolerable.” Metts said.
He also grew disturbed at the two hats Gibbs was trying to wear at the same time: that of preacher—calling pastors to stand fast in the faith, even if it means going to jail for it; and that of constitutional lawyer—trying to perform the exacting work it takes to bring momentous cases to court while on an exhausting touring schedule.
The dual role does not seem to be working successfully, as testified by the growing number of Christian lawyers who are nervous about Gibbs, including those who have worked for him and who have left because of him. So far Gibbs has not taken to heart the growing chorus of criticism that says he is greatly jeopardizing the cause of Christian freedom in the nation.
