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Church & State: How High is the Wall? June 2001 |
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KEYNOTE Jeffrey Rosen Associate Professor, George Washington University Law School; Legal Affairs Editor, The New Republic; author. SPEAKERS Robert P. George McCormick Professor of Jurisprudence, Princeton University; Director, Princeton’s James Madison Program in American Ideals and Institutions. Barry W. Lynn Executive Director, Americans United for Separation of Church and State. Marvin Olasky Sr. Fellow, Acton Institute for the Study of Religion & Liberty; Professor, University of Texas at Austin. Nadine Strossen President, American Civil Liberties Union; Professor, New York Law School. FORUM MODERATOR Richard D. Lamm, Professor, and Director of the Center for Public Policy and Contemporary Issues, University of Denver; former Governor of Colorado
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An Overview The First Amendment to our Constitution does more than guarantee the freedom of the press. Indeed, in its very first clause it states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." Not surprisingly, the meaning of these elegant but ambiguous words has been subjected to intense scrutiny by historians and constitutional scholars ever since they were written. Just within the past decade they have sparked an intense national debate on such issues as the role of prayer in classrooms and football stadiums; the public support of religious education through vouchers and otherwise; indeed the very place of religion in public life. The recent presidential campaign added fresh rhetoric to the debate, and the issues raised are not likely to go away anytime soon. Was this so-called "establishment clause" intended to do anything more than disestablish the Church of England as the official religion of the former colonies? What does it say about the role of churches generally in public affairs? What about the expression of individual, non-institutional faith in public life? Does the Constitution require the state to practice abstinence or only neutrality in religious matters? Is non-belief equally protected? Every year Americans give over 150 billion dollars to charitable causes which they then deduct from their income taxes, resulting in a substantial subsidy for their individual choices. Yet about half of this sum is donated to religious institutions. Does this amount to public support of religion? Are vouchers used for religious education any different? How? For some the "wall" between church and state was constructed more to protect religion from the corrupting influences of the secular state rather than to protect society from the intrusions of a state religion. For many years the principal of separation was strongly supported by evangelical protestants who feared the incursion of religious beliefs brought by the waves of immigrants who began to arrive in the latter part of the 19th century. Later it became an important article of faith for the Jewish community, which saw it as a bulwark against discrimination. Mainstream protestants have traditionally supported it, while Catholics have chafed under it. With the increasing assimilation of most of these groups and the rising acceptance of multiculturalism many of these attitudes have changed and new alliances have emerged. Fundamentalist protestants are now as often to be found supporting an increased role for religious beliefs in the secular arena, and the Jewish community has been split between those who adhere to the old tenants of separatism and those who support a more public affirmation of their faith. Economics has also had its effect on these realignments. With a growing skepticism of the ability of the state to solve a long list of social problems has come an increasing willingness to privatize social services. This in turn has led to a greater reliance on faith-based organizations that are often seen as doing a more effective job. The rubric "charitable choice" has been coined to describe this shift, and the campaign for school vouchers is only one of its manifestations. Still another recent cultural phenomenon has played a role. With the decline of privacy in public life that has characterized the post-Watergate era has come an increasing acceptance of what has been called identity politics. This includes the professions of faith that have become common for public figures. It is no coincidence that at least three of the four candidates in the recent national elections made pointed reference to their individual faiths. Over the years the courts have tried with varying success to accommodate these changes with the Constitutional mandate. For many years in a post-war secular society the courts defended the principles of strict separatism. The high water mark of this view was probably reached in the 1980’s; since then the courts have increasingly spoken in terms of religious neutrality or equality. Will religious neutrality lead to religious supremacy? Where does this leave the role of non-belief? As one commentator recently asked, is anything secular anymore? Is there still a distinction to be made between private and public affirmations of belief? Is the current trend merely a way station in the long history of the church-state dialogue? Or does it mark a fundamental shift - some would say return - to a more openly religious society? This, the tenth anniversary seminar of the Vail Valley Institute, will probe these and similar issues in the Institute’s traditional setting of Socratic dialogue. TOP OF PAGE |
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Jeffrey Rosen Keynote Speaker Associate Professor, George Washington University Law School; Legal Affairs Editor, The New Republic; author. From a legal perspective the current relationship between church and state is cause for celebration. In the 1990s the U.S. Supreme Court rejected both religious separationism and religious supremacism. Instead the Court has crafted a policy of neutrality toward religion in which secular and religious expressions are to be treated equally. The Court is willing to approve state aid to religion as long as it is available to religious and secular institutions on equal terms and as long as private choice, rather than governmental decree, determines the destination of public funds. Such policy approves of charitable choice and school vouchers, but not school prayer or public posting of the Ten Commandments. Far from threatening public life, or for that matter, religious liberty, the revived cooperation between church and state may be an inevitable result of treating religion as just another aspect of identity politics in a multicultural age. The weakening of support for strict separationism is a consequence of the changing relationship between Protestants and Catholics in America. After the Civil War, the backlash against Italian, German and Irish immigration was reflected in state laws mandating that the King James Bible be the authorized text for religious instruction in the newly-created public schools and that no state funds be made available to “sectarian,” i.e., Catholic, schools. Conservative Protestants and evangelicals, who formed the majority of Southern Democrats, feared the effects of government aid to parochial schools, but by the 1980s and 90s, white Southerners were Republican rather than Democratic, and after Supreme Court decisions banning school prayer and legalizing abortion, they felt more alarmed by what they perceived as creeping secularism than by the threat that public funding might lead to the growth of the Catholic Church. After World War II, mainstream Jewish organizations like the American Jewish Congress and the Anti-Defamation League of B’nai B’rith decided that building a wall of separation between government and religion was the best way of protecting Jews from discrimination. The Thurgood Marshall of strict separationism was Leo Pfeffer, chief lawyer of the American Jewish Congress’s Commission on Law and Social Action. Pfeffer’s 1971 victory in Lemon v Kurtzman struck down state laws that provided salary supplements to teachers of secular subjects in Catholic and other faith-based schools. Applying the Lemon test at the height of the separationist era, some lower courts interpreted the Constitution as forbidding expressions of religious faith by private citizens on public property. In 1984, the Federal Appeals Court in Philadelphia held that students in a public high school could not form a nondenominational prayer group because the spectacle of students praying might constitute a tacit endorsement of religion. These and other decisions that held that religion should be a completely private activity inspired an understandable backlash. In an era when other groups in America were finding their voices in public, it seemed a violation of the free speech rights of the religiously devout to forbid them to proclaim their identity in public along with everyone else. In the 1980s and 90s, as liberals and conservatives lost confidence in the ability of government to provide welfare and education services in the inner cities, the wall of separation began to collapse as public officials turned to private providers, both secular and religious, for effective services. Consumers of education and welfare services in the inner cities — most notably African-Americans — became enthusiastic supporters of school vouchers, and many churches presented proposals to administer state and Federally funded welfare programs. During this period, there was also a realignment among Jews. Some Jewish neoconservatives and Orthodox Jews concluded that they had more in common with evangelicals and with the Catholic hierarchy than with the pillars of Reform Judaism like B’nai B’rith and the American Jewish Congress, deepening the division between the religiously devout and the secularists. Just as political and intellectual support for strict church-state separation was collapsing, its legal underpinnings were being eroded in academia. Liberal and conservative law professors began to agree that equal treatment for religion might be a more appropriate model for protecting religious liberty than strict separation or religious supremacism. In 1981, while clerking for Supreme Court Justice William Brennan, Michael McConnell persuaded Justice Brennan to review Widmar v Vincent. That case concerns a 1972 regulation by the University of Missouri at Kansas City forbidding the use of university property “for purposes of religious worship or religious teaching.” The University had long made its facilities available to a variety of student organizations, but refused to let a Bible study group meet after classes. A Federal District Court upheld the exclusion. After review of Widmar, the Supreme Court agreed 8 to 1 that when a public institution opens its facilities to private speakers, the First Amendment requires it to treat religious and nonreligious groups equally. In 1995, McConnell argued Rosenberger v the University of Virginia, which involved a university rule that allowed all journals of student opinion except those with a religious perspective to receive a subsidy from a student activities fee. Lower courts had held that a university couldn’t withhold funds from a gay newspaper because it disapproved of its message, and McConnell argued that a religious newspaper was entitled to equal treatment. The Supreme Court agreed with McConnell 5 to 4. Four justices — Rehnquist, Kennedy, Scalia and Thomas — announced that the First Amendment forbids public institutions to exclude religious groups from benefits that are offered to a broad class of participants. Four justices — Souter, Stevens, Ginsburg and Breyer — cited the First Amendment prohibition of direct government funding of religious activity, even if the funds are distributed as part of a neutral scheme, and O’Connor concurred with the majority but drew a series of small distinctions that preserved her ability to change her mind in a future case. All of the hard questions that the Supreme Court has decided recently are attempts to apply the equal treatment model to a series of increasingly complicated cases. In the most recent application of the neutrality principle, the Good News case, Justice Thomas wrote for six members of the Court that the Milford School District in New York violated the free speech rights of the Good News Club, a private Christian organization for children, when it denied the group’s request to hold prayer meetings and Bible lessons in school facilities after school hours. Last year the same six justices held that it is constitutional to distribute government funds to provide computers to public and private, religiously affiliated schools on equal terms. In Mitchell v Helms, the Court upheld the loan of computers to parochial schools because the law forbids the schools to use the computers for religious purposes. During the 1980s the religious supremacists tried in vain to persuade the Supreme Court to reconsider its refusal to permit prayer in schools and the posting of the Ten Commandments in classrooms. The Bush administration aligned itself with the religious supremacists in 1991 when it urged the Supreme Court to uphold a nonsectarian graduation prayer offered by a minister or a rabbi at the invitation of school officials. The Court rejected the solicitor general’s argument 5 to 4 and in striking down the student-led prayer at the football game in the 2000 Santa Fe case, the Court firmly allied itself with religious neutrality rather than religious supremacism. But the Santa Fe case strikes me as more complex than the Court suggested. In that case, students were given the chance to vote on whether to have an invocation at football games and if they voted yes, to select a student to deliver it. A further modification by the district court said that the invocation had to be “nonproselytizing and nonsectarian.” Perhaps the narrowest way of striking down the prayer would have been to say that the requirement that the school guarantee a nonsectarian prayer in itself constitutes an illegitimate entanglement between state and religion. In this worst of all possible worlds the school is imposing the prayer on unwilling students and dictating its content. But the Court preferred a different argument. In his majority opinion, Justice Stevens suggested that the real problem with the prayer was that some people might perceive it as offensive. This would send an illegitimate message that would make some people feel excluded. To make the permissibility of speech rest on whether it offends its listeners is a troubling precedent. The neutrality principle may be good constitutional law, but is it good social policy? Within the next decade it is not hard to imagine a largely privatized public sphere in which education and welfare services are contracted out to religious organizations. Would the renewed commingling of church and state be good or bad? And for whom? There is a long theological tradition in America which holds that the purpose of the wall of separation is to protect the church against the worldly corruptions of the state, rather than to protect the state against the religious overreaching of the church. As churches become more deeply involved in administering public education and welfare programs, they may find themselves under new and troubling forms of scrutiny. The monitoring necessary to ensure that public funds are used for secular purposes could alter the character of the churches themselves. And in advocating a closer relationship between government and religion, politicians may not have taken into account the full spectrum of religious practice in this country. Whether the collapse of the wall of separation is good or bad for the church or the state, it marks a reversion to what Columbia University historian Alan Brinkley calls “a more typical relationship between religion and the public sphere, if you look over the span of American history.” Americans have always been deeply religious and deeply suspicious of state-imposed uniformity. In an era when religious identity now competes with race, sex and ethnicity as a way Americans define themselves, it seems like discrimination — the only unforgivable sin in a multicultural age — to forbid people to express their religious beliefs in the public sphere. During its brief reign, strict separationism made the mistake of trying to forbid not only religious expression by the state, but also religious expression by citizens on public property. The new vision of equal treatment for religion might be seen as a return to a more normal vision of separationism, which insists that religious activity should be initiated and controlled by individuals rather than by the state. And this strikes me as an occasion for celebration. Far from threatening public life, or for that matter, religious liberty, the revived cooperation between church and state may be an inevitable result of treating religion as just another aspect of identity politics in a multicultural age. TOP OF PAGE |
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Robert P. George Executive Director, Americans United for Separation of Church and State The debate about religion and public life in the United States has been distorted by the misconception that the establishment clause of the Constitution’s First Amendment states a principle whose discernable meaning settles questions regarding prayer in public schools, aid to parochial schools, religious symbols on public property and the like. These questions are important ones and there are Constitutional provisions that may be relevant to their resolution, but the establishment clause is not one of them. The sooner we and our courts recognize this, the sooner we will be in a position to debate these questions more fruitfully. The First Amendment states “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” Since 1947, when the Supreme Court of the United States handed down its first decision interpreting the establishment clause, there have been two competing views of its meaning. One is identified with the viewpoint labeled liberalism, the other with that labeled conservatism. The liberal view is sometimes referred to as strict separationism. It applies the principles advanced by the majority in Everson v Board of Education (1947) that the establishment clause prohibits the federal government, and by extension via the Fourteenth Amendment incorporation doctrine the states as well, from advancing, promoting or favoring religion, even religion in general. The conservative view is sometimes labeled nonpreferentialism. It interprets the establishment clause as prohibiting federal or state partiality towards or discrimination against particular religions, but permitting broad accommodation of and even aid to religion on an even-handed or non-preferential basis. Partisans of both views appeal to history in defending their positions. Establishment clause jurisprudence is one area of constitutional law in which everyone seems to agree that the correct interpretation is the one most closely in line with the intentions of the Framers, but neither side comes close to understanding the historical purpose of the Constitutional prohibition of laws respecting an establishment of religion. In truth that prohibition has nothing to do with the issues that divide strict separationists and non-preferentialists. Let me explain why. The words, “Congress shall make no law respecting an establishment of religion” do indeed prohibit something more than the establishment of a national church. Understood in textual and historical context, they make plain that the intentions of the framers and ratifiers of the First Amendment were to prohibit not only a national church but also any interference by the national government with the established churches in the states. In other words, this particular constitutional principle was concerned not with the rights of individuals to be free of religious impositions, though the free exercise provision is certainly concerned with that; rather, the Establishment Clause is concerned with maintaining principles of federalism and particularly the general jurisdiction of the states, as opposed to the national government in matters of religion. When the First Amendment was ratified, many of the states had established churches that did not finally die out until the 1830s, when the remaining establishments were dissolved by the states themselves, not by the federal constitution or the federal courts. What the establishment clause accomplished, beyond forbidding the creation of a national church, was to protect these churches against federal efforts to tax, regulate or disestablish them. Do you doubt this? Look at the words: “Congress shall make no law respecting an establishment of religion.” Lexicographical research reveals that “respecting” meant in 1791 what it means in 2001: “regarding,” “touching upon,” “having to do with.” And “establishment” meant what we mean when we talk about the Church of England today or the historical fact of an established church in South Carolina in the late 18th and early 19th centuries. The opening words of the First Amendment are not ambiguous. Considered in historical context, they are not difficult to interpret. And they have nothing to do with school prayer, school vouchers or nativity scenes. Some might object that my analysis represents an unreasonably fastidious application of the interpretive method known as originalism. I would reply that the debate over the Establishment Clause is one in which competing partisans agree that recovery of the original intent is the key to understanding its meaning. Moreover, the alternatives to originalism in this case make no sense for the simple reason that they are incompatible with the plain meaning of the text. You might object that I am overlooking the significance of the incorporation doctrine by which Bill of Rights provisions (with minor exceptions) apply to the states via the Fourteenth Amendment’s due process clause [“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”]. The Supreme Court has held that the Establishment Clause has been incorporated so that it now applies the same prohibitions to the states. But there is a fundamental flaw in this argument. It is illogical that a provision protecting a state prerogative can be incorporated and applied to prevent the state from exercising that prerogative. So I think that the Supreme Court’s incorporation of the Establishment Clause rests on a mistaken interpretation of the clause. Because the Court doesn’t take guidance from the language itself, the Justices end up resolving disputed questions on the basis of their policy judgments case by case. The result is unpredictability and incoherence. Policy has to be made in this area. The question is who is to make it. That the courts have a role I have no doubt. That they have overstepped that role seems also undeniable. There is a certain absurdity in the idea that nine unelected and electorally unaccountable lawyers in the absence of any real guidance from the Constitutional text are the only people in the country with a right to deliberate and vote on the role of religion in American public life. TOP OF PAGE |
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Barry W. Lynn Executive Director, Americans United for Separation of Church and State Welcome to the apocalyptic vision of an unrepentant liberal. I’ve never found an example of too much separation between church and state. A significant distance between the institutions of the state and those of faith makes it very difficult for government to damage faith-based institutions or for them to become dependant upon government largesse. Separation is healthy for both parties. I want the government at all levels to be strictly neutral in matters of religion. To me, neutrality means having no opinion on the value of religion or specific faiths, their theologies and missions. In 16 words of the First Amendment: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof,” the Framers put religion in a unique category of human enterprise. There is no language in the Constitution prohibiting Congress from establishing an economic model, values, or departments of government but it is prohibited from promoting one religion over another or promoting religion over nonreligion. Both church and state benefit from that arrangement. Government is not going to promote or prohibit your faith. If you’re a nonbeliever you’re not going have to worry that government will judge conscience derived from reason as inferior to conscience derived from divine inspiration. Government doesn’t require a proof text from any holy scripture to make regulations or laws. “God told me this is what is right” is not to be viewed as an adequate explanation for public policy. How could such an arrangement be interpreted as a removal of all religious expression from schools or the public square? No decision of the United States Supreme Court diminishes our right to pray in public. All over the country there are students who wear religious-themed tee shirts to school, there are 10,000 student-led Bible clubs, and students have the same right to invite their peers to church as that they have to ask them to the movies on Friday night. As a Christian, I can place a Nativity scene on my front lawn at Christmas. I can put up a 6-foot high granite monolith with the Ten Commandments on it and keep it up for 365 days. I would argue that an effort by the local zoning board to tell me that my Nativity scene would have to wait until December 1st would be a violation of my religious rights. The idea of official hostility to religion seems to be a bogus one as the last presidential election demonstrated. The campaign often looked like a contest for prelate rather than President of the United States. The airwaves are awash in religious broadcasting, and church attendance in the United States is the highest in the western world. Churches are exempt from federal income tax, and in all 50 states they are exempt from property taxes, as well. There is little interest in having any government body fund churches, but some of the same people who reject direct subsidies want to fund religious missions through vouchers or grants for social services. In the 53 years Americans United for the Separation of Church and State has been in existence, we’ve deposed hundreds of private religious school officials who have testified that their schools are missions, extensions of their parent body designed to advance the faith. Recent Supreme Court decisions have assumed that religion is an auxiliary activity in religious schools. In fact, religious ideology imbues the teaching of every subject in those schools. Because money is fungible or interchangeable, when government supplies funds to religious schools that would otherwise be derived from private sources, the private funds are freed up for religious activity. Government in fact does fund religion in these schools by funding services for which the schools would otherwise have to pay. The Supreme Court has made distinctions to justify this funding. Some seem extraconstitutional, some seem extraterrestrial to me. Implicit in these decisions is the assumption that private schools take pressure off the financial commitment communities have to make to public education, but cost/benefit analysis has nothing to do with the Constitution, which is about principles, not economic models. Finally, a narrow majority of the Supreme Court has allowed a bogus argument about equality to justify allowing states to supply educational materials equally to private and public schools. To me, funding these schools equally is a violation of the separation principle and of neutrality. For example, it is easy to imagine loaned computers being diverted to religious use. The President’s faith-based initiative is predicated on the same erroneous assumption that there is official hostility to religion. In fact, groups like Catholic Charities already receive over 60% of their budgets in most communities from government sources. But they agree to provide genuinely secular services. They agree not to evangelize or discriminate on the basis of religion or any other factor in hiring people to run those programs. Mr. Bush’s initiative would give special rights to faith-based providers, including the right to reject job applicants because of religion or religiously based beliefs. It will allow public dollars to be used to convert people in those programs. As the head of Teen Challenge testified before Congress a few weeks ago, it would permit them to “complete” Jews, meaning convert them to Christianity. Separation of church and state is the greatest intellectual idea this country has contributed to world thought. I don’t want to abandon it, to reconstruct it, or even tinker with it. It has led directly to the intellectual and spiritual mixing in this country where nearly 2,000 faiths practice and live together — millions of nonbelievers with them — in harmony most of the time. It would be foolish to risk changing this model in a way that leads us incrementally in the direction of Afghanistan or Northern Ireland, where government favor of a particular religion leads directly to violence and an utter disregard for the conscience of religious minorities. TOP OF PAGE |
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Marvin Olasky Sr. Fellow, Acton Institute for the Study of Religion & Liberty; Professor, University of Texas at Austin I speak as a journalist and historian, and I will try to ground my presentation in an account of current reality. Mr. Lynn mentioned that there are religious groups that have wonderful records of providing secular services, but these are not truly secular services. There is a theological principle called the ministry of the deed, such as feeding people. There is a battle going on today between the ministry of the deed and holistic ministry, which is ministry of the deed plus ministry of the word, in which the religious feed people but also talk to them about why they’re feeding them, what’s changed their life and what they think can change the recipients’ lives. I think an argument can be made in terms of Christianity, at least, that both times Jesus fed people he fed them after he preached to them for quite a long time. This is a theological argument, and why should the federal government be putting its thumb on the scale by rewarding one view and redlining another? The government says to theologically liberal Christians, You can have freedom of your faith by feeding people. To theologically conservative Christians — and this would work for Orthodox Jews and Muslims, because they want to talk to people about their faith — the government says, You need to be quiet because talking to people about your faith while doing charity is not allowed. The absence of talk or prayer means something. It is not neutral. I had an interesting discussion with some men in the homeless program at the Broadway Presbyterian Church, 114th Street and Broadway in New York City. This program involves feeding people, but for a long time the sponsors were reluctant to say anything about why they were doing it. Finally they decided they should say grace and have discussion. In the discussion, the homeless men said they wondered why the sponsors never talked about Christ. Were they ashamed of it? Richard John Neuhaus in The Naked Public Square says that absence of religious discourse or symbolism in the public realm is not neutrality but nakedness. If two people stood before you, one clothed, the other naked, you would not say that the naked person had a neutral position toward clothing. I have had the chance in the past 10 years to visit a number of homeless shelters and programs that fight drug and alcohol addiction, and I would like to report on what I’ve seen. One example is a homeless man who had been bunking at a shelter that doesn’t have a religious orientation, like Big Owl Shelter in Memphis. That shelter gets surplus food from the USDA. The homeless man then chose to go a place that has the reputation for helping to change lives, the Memphis Union Mission. But Memphis Union Mission was told several years ago that it could no longer get surplus food because it has a sermon after dinner. Why not give the homeless man his choice? Failing to give government subsidies to this program hurts this man’s freedom of choice. In San Jose, California, the city wanted to subsidize City Team, a model anti-drug and alcohol program, but because the program talked about Christ, they couldn’t. The Bible message of God’s love increases the addicts’ self-esteem, the core of the program, so City Team declined the pass-through federal aid rather than give up their worship service. Therefore, people who needed help didn’t get it, or at least not the most effective help. Why should we be anti-choice when there are people who would like to go to this program to have their lives changed and they can’t because it’s not growing fast enough to accommodate them? I want us to think in terms not just of theory but also of the practicalities. Compassion means suffering with those in need one-to-one, and that is what has proven to be most effective in poverty programs. Who is going to provide that one-to-one help? Even if we double the budget of the U.S. Health and Human Services Department for counseling and programs, it is still not going to cover the need. The government welfare caseworkers I interviewed work with many people with long-term, deep-set problems, but they have heavy caseloads so they can’t be effective with people with those kinds of needs. Therefore you can’t provide real compassion to those who need it. People from a variety of backgrounds volunteer to be available to those in need, but the largest numbers are those from religious backgrounds. A lot of those people believe that God has changed them and that the greatest gift they can offer is to convey that message about how God changes lives. Why not? But if they start doing that, the program may be treated in a far different way than a program whose volunteers have vowed to remain silent about their religion or who are helping for other reasons. That’s one of the things that happens when you have unequal treatment. How do we prevent what is going to happen to government when it funds religious programs? I’m not too worried about what will happen to government. Federal programs dwarf private programs. Secular people are afraid of theocracy, but a lot of church people see the world in an opposite way. They see that secular society has a lot of power. Religious organizations are weak compared to the mass of governmental power. We are not about to be taken over by a particular religion. Today we have so many groups competing in the American religious and ideological marketplace and many of them are so critical of each other. Let me go to the opposite question of what will happen to the religious groups that receive federal funding. These groups are working right now to develop program objectives; they are applying for grants that are not going to dominate their budgets. What I propose is not that the government extend grants, but that it offer tax credits so that individual taxpayers could send money to the charity of their choice. I am very pro-choice in just about all issues except one. I want taxpayers to have a choice, and I want individuals to have a choice of what type of group they go to for help. Individuals should not be forced into one-size-fits-all. Taxpayer choice would work much better than a governmental grants approach because the power would not be in the hands of federal officials, which is a danger. I would much rather the power be in the hands of individual taxpayers. TOP OF PAGE |
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Nadine Strossen President, American Civil Liberties Union; Professor, New York Univesity Law School I would like to respond to some of the myths and misconceptions that pervade too much of the discussion about separation between church and state, in part because of the pandering of some politicians and the hyperbolic claims of certain activist groups. The most pernicious claim is that supporting government neutrality toward religion is somehow antireligious or harmful to religion. Former Supreme Court Justice Harry Blackmun, a self-described devout Methodist, answered that false charge with this statement: “These critics have misperceived a respect for religious pluralism as hostility or indifference toward religion. No misperception can be more antithetical to the values embodied in the establishment clause.” Throughout American history some of the staunchest separationists have been some of our most devout religious leaders. While it is well known that Thomas Jefferson coined the phrase “building the wall of separation between church and state,” it is less well known that Roger Williams, founder of the first Baptist church in North America, used the same metaphor 150 years earlier. Williams preached that the sanctity of religion depends upon a hedge or fence to separate “the garden of the church against the wilderness of secular society.” He believed that for the sake of the church, we need this wall or hedge. Many religious organizations have worked with the American Civil Liberties Union (ACLU) to maintain the wall for the sake of religion as well as for the sake of our secular society. In one of our recent Supreme Court victories, Lee v Wiseman, more religious entities filed briefs on our side, in favor of church-state separation, than on the other side. The Supreme Court agreed with us and our religious allies that it is unconstitutional for a public school to include a prayer in official graduation ceremonies. The school-sponsored prayer in the Wiseman case shows that school-sponsored prayer is no favor to religious believers. As is typical in these situations, the school issued guidelines to the clergy that were designed to make the prayers nonsectarian, an approach abhorrent to many devout believers because it means that government officials are in effect dictating their prayers. Justice Blackmun wrote, “When government favors a particular religion or sect, the disadvantage to all others is obvious, but even the favored religion may be tainted with a corrosive secularism. The favored religion may be compromised as political figures reshape the religion for their own purposes. It may be reformed, as government largesse brings government regulation.” That is one reason conservative religious organizations are rejecting government funding. One example is a Texas chapter of Phyllis Schlafly’s Eagle Forum. In their newsletter they have said they are opposed to school vouchers because vouchers would destroy private education and in particular, private religious education. The Supreme Court has stated, “A union of government and religion tends to destroy government and to degrade religion.” Such a union destroys government because it leads to division along religious lines, which in turn creates conflicts like those in Northern Ireland. The union degrades religion by diluting and homogenizing doctrine as a precondition for government approval. How have we been able to maintain on the one hand an extremely diverse and an extremely devout population with an extremely low incidence of sectarian strife? Precisely because of the establishment clause. Far from opposing religion, separation of church and state supports religion. Too many right wing religious and political leaders falsely charge that the Court has banned prayers from public schools or that the Supreme Court has removed religion from the public sphere altogether. We do not have to return what has not been removed. The Supreme Court has approved of the rights of voluntarily constituted groups of students to pray in schools, and there are an estimated 10,000 Christian clubs flourishing in our schools. Just as religion is thriving in general, it is thriving in the public schools. The only kind of prayer or other religious exercise that is not allowed is that which is school-sponsored. In the Santa Fe, Texas, football prayer case, the ACLU represented a Mormon family and a Catholic family whose religious beliefs were offended by having a student with school sponsorship lead the crowd in prayers at a football game. The Court agreed with them and with the ACLU that the practice violated the First Amendment; however, the Court stressed the many other kinds of prayers that could be said by students voluntarily, not only at football games but also in school itself. I am often asked why separation of church and state is important for so many who cherish their faith and for so many who cherish their freedom. I would like to quote our client in the school graduation prayer case, 13-year-old DeborahWiseman, who said, “I don’t think a little prayer is a small thing. It excludes. They force me to pray to someone else’s god. That is a big deal. When I am forced to participate in a ritual, it’s an attempt to make me different, to change my identity, to make me conform.” Here is Justice O’Connor’s opinion on why it violates the establishment clause for the government to favor or endorse religion: “Government support or endorsement of religion sends a message to nonadherents that they are outsiders, not full members of the political community and to adherents that they are insiders, favored members of the political community.” And that, of course, is completely contrary to the values of tolerance and legal equality that unite our pluralistic society with its rapidly increasing diversity. In conclusion, I would like to quote a statement that aptly summarizes why separation of church and state has shown itself through actual experience to be the best protector of religion and government. The Supreme Court stated, “The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind. We have come to recognize through bitter experience that it is not within the power of government to invade that citadel, whether the purpose be to advance or to retard. In the relationship between man and religion the state must be firmly committed to a position of neutrality.” TOP OF PAGE |
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