Church & state; back to basics

...The religion clauses, then, neither can nor do erect an impermeable barrier between church and state...

...the judicial opinions are rather a patchwork, frequently turning on minor facts and providing little guidance for future cases...

...As government participation in our lives has grown in the past fifty years, so have the points of possible friction with the Free Exercise Clause...

...But, because cases arising under the latter usually concern state actions which clearly have a secular purpose - such as providing soldiers for the national defense - courts often decide these cases by weighing that secular purpose against the incidental religious burden the state action has caused...

...The resurgence in religious intolerance, coupled with rising religious participation in things political, will very soon raise troubling questions for the courts over the proper relationship between the things that are Caesar's and the things that are God's...

...Religion is now less formal, less hierarchical, less organized than it formerly was...

...The riddles posed separately by each of those clauses would be quite enough for any secular court but, like animals into the Ark, the conundrums come two by two...

...Although they understand the dangers to which the Establishment Clause is addressed, many constitutional scholars believe that compromises like that of the Teaneck Board should be more kindly received by the courts...

...As Justice William O. Douglas opined in a 1952 case, the doctrine of the separation of church and state should not be read to suggest that "the state and religion be aliens to each other - hostile, suspicious, and even unfriendly...

...Bedeviled by these claims and skittish because the manpower needed for Vietnam was riding on its decisions, the several Supreme Court cases on this issue - like many religion cases - are a mixed bag which formulates no clear and general rule...

...In the recent challenge to the Arkansas law requiring that both evolution and creation science be taught in public schools, the issue was whether the latter was truly a science or merely posturing as such...

...The Establishment Clause is especially difficult...

...Sometimes the judicial branch joins in: the Tennessee Supreme Court, in an astounding 1977 decision, upheld a clause in the state constitution which prohibited members of the clergy from serving in the legislature...

...In many states, they Were permitted neither to testify in court nor to serve on juries nor to hold public office...

...Can public-school teachers constitutionally give equal time to creationist theories of the universe...

...As with Establishment Clause cases, courts will consider the governmental purpose and the religious effect of a law challenged under the Free Exercise Clause...

...The issue is a sticky and frequent one, however...

...the university maintains that its racial rules arise from its religious beliefs and that denying them tax-exempt status thus interferes with its freedom of religious exercise...

...The First Amendment commands that Congress enact no law "respecting an establishment of religion, or prohibiting the free exercise thereof...

...But, that said, the tough questions of the separation doctrine still remain...

...What are sanctions against murder if not expressions of an ultimately spiritual belief in the sanctity of human life...

...The secular society may well become the global exception...

...Not only must we wrestle with the enigmas of each religion clause and of the "tension" between them...

...Unconventional or dangerous religious practices also rarely succeed...

...Damned IF they do, damned if they don't, neither boon nor burden be: the government clearly has a ticklish role, a tightrope to walk, in matters of religion...

...Thus, Mormon plaintiffs who asked for exemptions from Utah's anti-polygamy statute haven't fared too well nor, in 1967, did Dr...

...The First Amendment forbids the government from encouraging or discouraging the exercise of all religions, any one religion, or atheism...

...The courts have come up with no general rule for deciding these cases...

...Laws allowing conscientious objection...

...That announcement pleased Bob Jones University, a fundamentalist school which bans interracial dating among its students...

...There has been an upsurge recently: the Moral Majority is chock full of intolerant fundamentalists...

...Not until 1968 did the Court strike down Arkansas's version of the Tennessee anti-evolution statute involved in the Scopes trial...

...and the traditional political prestige of religious figures in Poland, Ireland, and other nations continues unabated...

...How about the opening of each session of Congress with a clerical blessing, or the exemption of religious organizations from the payment of taxes...

...If Reverend Falwell badgered Congress into requiring all citizens to go to church, for example, he would run smack into the one-way wall separating church and state...

...The Teaneck (N.J...

...More generally, is there a personal sphere onto which the state may not step...

...For some, it is a religion...

...The doctrine of the separation of church and state, cherished by Thomas Jefferson if not by John Winthrop, is codified both in the First Amendment and in parallel provisions of many state constitutions...

...Do proscriptions on drugs unduly burden those American Indian tribes whose religious rites require the use of peyote...

...Extending the credit opens the government to charges of assisting religion and thus violating the Establishment Clause, while non-extension can be interpreted as a transgression of the Free Exercise Clause because such a policy penalizes with double payment parents who send their children to religious schools...

...To exempt only monotheists from the draft, Seeger and others claimed, violated the religion clauses because through that policy the government favored one form, the more traditional and orthodox form, of religion...

...THE spirit of the religion clauses is not hard to divine: people have a right to religious freedom, a freedom unfettered by fears of persecution or disadvantage resulting from their spiritual beliefs or religious practices...

...For example, do laws forbidding the transaction of business on Sunday violate the free-exercise rights of Jews and Seventh-Day Adventists, who observe the Sabbath on Saturday...

...Despite the unavoidable fact that all religions attempt to teach their adherents how to live, both in public and in private, both as individuals and as social beings, the popular misconception is that religion can and should be isolated from secular society...

...order to receive unemployment compensation, and yet not be exempted from Sunday-closing laws...

...It may be that the solution to the riddles posed by both religion clauses lies in a more comprehensive theory of the boundary, not between church and state, but between the individual and society, between those things that are private and those that are public...

...Only if they are so successful in their efforts that their activities become the activities of government, do the religion clauses apply...

...On the surface the idea seems sensible: private school tuition is rising and, without a tax credit, many parents would transfer their private-school children to overburdened public schools...

...religious groups or religiously-affiliated persons from engaging in political activity...

...Social welfare laws are an especially fertile source of trouble...

...The Free Exercise Clause grapples with a different problem: Is the government burdening someone's religious practices...

...That cry will no doubt be echoed by conservatives if more liberal religious groups achieve any success in their current campaign for nuclear disarmament...

...Religion is a vital social force whose moral vision is welcome in these days of cynicism and realpolitik...

...Eighteen states are considering "creationist" laws similar to the one recently struck down in Arkansas, and Congress has before it numerous bills to gerrymander school-prayer cases out of federal court jurisdiction...

...In explaining its decision, the Court said: It does not follow that a statute violates the Establishment Clause because it 'happens to coincide or harmonize with the tenets of some or all religions.' That the Judeo-Christian religions oppose stealing does not mean that a State or the Federal Government may not, consistent with the Establishment Clause, enact laws prohibiting larceny...

...whether that action will significantly aid a religion...

...Separation of church and state...

...On the one hand, we've come a long way: the recently-overturned Arkansas law requiring the teaching of both evolution and "creation science" is, despite its wrong-headedness, much more enlightened than the anti-evolution statute under which John T. Scopes was tried in Tennessee in 1925...

...Whether THE COURTS will find these practices unconstitutional depends on subtle distinctions...

...Reverend Jerry Falwell may offend one's sense of good taste and fair play, but he does not offend the United States Constitution...

...Both institutions would be debased by such a mix: the church too worldly, the state too tempted to stretch its mandate into matters of the spirit...

...There are problems with this line of reasoning, but the point is that the government, whether it grants the credit or not, must contend with the religion clauses...

...With rising religious participation in the hurly-burly of politics, there will undoubtedly be an upsurge in claims that this wall of separation has been breached, and in demands that its exact dimensions be measured...

...It is disturbingly common for people of all political stripes to view the religion clauses as somehow quarantining religion from the rest of society...

...Similar issues arise when states lend textbooks to religious-school students or provide them with transportation...

...Nonetheless, there are dangers in this trend also, and they are the traditional dangers the religion clauses were meant to guard against: the establishment of a governmentally-favored Church, untoward burdens on those who subscribe to disfavored creeds and, most importantly, interference with and deterrence of the individual's search for spiritual truth...

...If the requested exemption seems spurious or might wreak great social havoc, it is usually denied...

...cried many liberals upset by the rise of the Moral Majority...

...Thus, the Supreme Court has allowed the state of New Jersey to reimburse parents of parochial school students for school transportation expenses, but it has forbidden the state of Rhode Island from supplementing the salaries of parochial-school teachers who teach secular subjects...

...Critics, whose suit against this regulation is currently in the courts, charge that this policy violates the Establishment Clause by sending out a clear governmental message that "weekends are for worship...

...the singer Pete Seeger, for one, voiced skepticism about the existence of God but asserted his "belief in and devotion to goodness and virtue for their own sakes...

...The TM course trains students in a method or process of meditation...

...THERE is a more fundamental problem with the doctrine of the separation of church and state, however, or at least with the conventional understanding of that doctrine...

...It may be an opportune time, therefore, to examine the materials from which this constitutional construction is built...

...The school-prayer cases pose a typical Establishment Clause question: Is the government giving religion its approval and assistance by allowing public schools to be used for either mandatory or voluntary prayer...

...And so, courts and country face an arduous task in the years ahead...

...invocation recited at the opening of each session of the Supreme Court OUT OF THE CHURCHES and onto the hustings: American religious groups are more vocal about and more visible in the nation's political life than they have been in years...

...its sturdiness is yet unknown...

...and wills and trusts they had constructed were nullified...

...difficulty courts now have in even deciding whether the activity at issue is in fact a religion: Consider, for example, the curious lawsuit in Malnak v. Maharishi Mahesh Yogi, where plaintiffs contend that the New Jersey school system is violating the Establishment clause by allowing licensed teachers to use public school facilities to teach Transcendental Meditation (TM) as an elective course...

...Moreover, airing those views is a constitutionally protected activity: "Religious worship and discussion," wrote Justice Powell for the Supreme Court last December, "are forms of speech and association protected by the First Amendment...

...a 1956 Alabama court exhibited little anguish dismissing the free-exercise claim of a group whose religious rituals included the handling of poisonous snakes, a practice which contravened Alabama's laws...

...In America, however, the secular society is at least partly required by the Bill of Rights...

...And there were often criminal sanctions: heresy and blasphemy remained common offenses well into the twentieth century...

...Greater religious involvement in politics will not simplify things, but the trend is nonetheless salutary...

...When a court grants a plaintiff's free-exercise claim and so exempts him from a law by which everyone else must abide, that religiously-based exemption inevitably raises questions of governmental assistance to religion, thereby implicating the Establishment Clause...

...We may criticize the lack of realism in the notion that the religion clauses sever and isolate religion from the rest of society, and we may rue the enervation of public debate which would result if such a notion were ever enforced, but if the wall of separation is not impermeable, then how porous is it...

...Quakers and Catholics and Jews and others have been historically stigmatized for their faiths in this country...

...Not every plaintiff succeeds, of course...

...Regardless of whether a person's desire to practice polygamy is based on spiritual tenets or more temporal concerns, is it the government's business how that person orders his domestic life...

...The major issue of that case was whether the pope was visiting in his capacity as a religious figure or as a foreign dignitary...

...Compulsory chapel attendance at the military academies...

...Leary and a Quaker pacifist are, in the eyes of the courts, equal in their claims to free religious exercise - this rise of formless and fluid religions adds an unwanted wrinkle to an already complicated area of law...

...The thought is that Christians can transact business six days a week, but the former groups, forbidden by the state from doing business on Sunday and by their religions from doing business on Saturday, can engage in their livelihoods only five days a week...

...and the Skokie fiasco, the Awacs affair, and an alarmed B'nai B'rith report of an eight-fold increase in anti-Semitic incidents in the past four years sadly suggest a swell in hatred for Jews...

...There are, in fact, worrisome signs of resurging religious intolerance in this country, an intolerance which threatens those values which the religion clauses constitutionalize...

...Are compulsory vaccination laws violative of the constitutional rights of Christian Scientists and Seventh-Day Adventists...

...Although public protest has given it second thoughts, the Reagan administration recently reversed a decade-old policy which denied tax exemptions to otherwise qualifying institutions which practice racial discrimination...

...The Establishment Clause has furrowed the brows of the Supreme Court with increasing frequency during the postwar years...

...How the courts will weigh and apply these factors is often unclean the final judgment is frequently based on a detail which both sides in the dispute considered trivial...

...Nine years later, the Court exempted an Amish family from the strictures of Wisconsin's compulsory school attendance law because, in the words of Chief Justice Burger, "Formal high school education beyond the eighth-grade is contrary to Amish beliefs...

...The Moral Majority, the National Conference of Catholic Bishops, Clergy and Laity Concerned, and other religious associations are with increasing frequency imparting their respective (and sometimes conflicting) moral visions on such political issues as nuclear arms, welfare, abortion, and school prayer...

...During the past forty years, the country and the courts have become more sensitive to the religion clauses, thanks in large part to effective patrolling of the boundary between church and state by the ACLU and other civil-liberties groups...

...It is clearly consonant with that goal that religiously based speech, so important to so many members of our society, be as protected by the First Amendment as secular speech...

...As Archbishop John Roach, president of the National Conference of Catholic Bishops, claimed at that group's meeting last November:'' We should not accept or allow the separation of church and state to be used to separate the church from society...

...Familiar with the history of the Anglican church and sensitive to the heritage of the many colonists who came here in flight from religious oppression, they were keenly aware of the danger of spiritual demagoguery created by a mixing of church and state...

...it does not, of course, prohibit FRANCIS J. FLAHERTY, whose work has appeared in America and the Hudson Review, is a graduate of Harvard Law School...

...It also seems equitable: property taxes finance public education and, therefore, parents who pay both property taxes and private tuition are in effect paying twice for their offspring's education...

...It was not until 1961 that the Supreme Court declared unconstitutional Maryland's requirement that all public officials make a "declaration of belief in the existence of God" before assuming office...

...The courts grappled with this issue somewhat unsuccessfully in the conscientious objector cases of the early 1970s...

...Because many states did not have religion clauses in their own constitutions, or because the clauses they did have were either ignored or narrowly interpreted by their courts, these states were free to mix religion and politics in any number of ways...

...Scores of hopeful conscientious objectors attacked this limitation...

...This may be a worldwide phenomenon: Pope John Paul II is a peripatetic and political pope...

...and whether the action unduly "entangles" the state with religion...

...But that wall is of fairly recent construction...

...AS IF THE VAGARIES of the two religion clauses were not enough, there is an inherent tension between those two clauses which further complicates the courts' alThe popular misconception is that religion can and should be isolated from secular society...

...If there is a general principle to the court decisions on free exercise, no one has discovered it...

...Difficult though that role may be, the Framers thought it warranted by history...

...In addition, the nature of religion (or our perception of it) has changed somewhat over the past decades, and this change will further complicate matters for the courts...

...Such comparisons are exceedingly difficult...

...Because all courts ardently want to avoid assessing the sincerity or value of a person's stated religious beliefs - Dr...

...The latter right tries to insure that all views are heard before a public policy is set...

...Islamic fundamentalism is sweeping the Arab world...

...Such activities are safeguarded not only by the religion clauses but also by the more famous First Amendment right of free speech...

...Like the sphere of human endeavor which they aim to protect, the religion clauses are full of mysteries...

...On the other hand, though, we haven't come that far...

...the First Amendment requires that the state steer clear of religion, but it does not mandate the reverse...

...Or, to reduce all this to the absurd, how about the provision of police and fire protection to seminaries, churches, and temples...

...Other Free Exercise Clause problems: Did the prohibition of polygamy violate the free-exercise rights of nineteenth century Mormons...

...We may not be as safe from institutionalized religious intolerance as we'd like to think...

...Church and state are neither actually separate nor practically severable...

...In 1980 the Supreme Court held that the Hyde Amendment, which outlawed federal funding for certain abortions, did not violate the Establishment Clause by codifying into law the tenets of the Catholic faith...

...There are new creeds, and many persons claim the protection of the religion clauses for their personal moral philosophies...

...but for thousands of people throughout the country it is a mental exercise, often engaged in by enthusiastic adherents of such formal religions as Christianity, Judaism, and Mohammedanism...

...Until 1940 and 1947 - and even later, as the cases wended their way through the courts - atheists and persons with disfavored religious beliefs were often burdened by these states with a broad array of civil disabilities...

...When a person makes a claim under the Free Exercise Clause, he is in effect requesting a religious exemption from a general law which applies to everyone else...

...Timothy Leary convince a federal court that his use of marijuana in accordance with the tenets of the Brahmakrishna sect of Hinduism was a constitutionally protected activity...

...The cases invalidating these laws are of disturbingly modern vintage...

...Do draft laws obstruct Quakers in the practice of their faith...

...Sometimes, however, the government gives a helping hand to those with dubious free-exercise claims...

...The only certainty in an Establishment Clause case is that the court will consider three factors in making its decision: whether there was a secular or a religious purpose to the government's action...

...These proscriptions, known respectively as the Establishment Clause and the Free Exercise Clause, address two distinct problems...

...Because America has a religious as well as a secular tradition, the number of potential Establishment Clause cases is vast: Does the "In God We Trust" motto on our currency violate that clause...

...Moreover, social and extra-legal religious prejudice has always been with us...

...Christmas trees at the Capitol...

...they were often denied custody of their children in divorce proceedings...

...Every public issue has secular and religious aspects, inextricably intertwined...

...their judgments very much hinge on the facts peculiar to each suit...

...Defenders of the rule say it is a sensible method for accommodating the needs of religion and the needs of education...

...we must also find the golden mean between a stilted, solely secular approach to the affairs of state and the spiritual demagoguery which often accompanies the mixing of religion and politics.ften accompanies the mixing of religion and politics...

...religion is a social current which, like economics and ideology and self-interest, will inevitably influence the tide of politics...

...Boards of regents forbade the heterodox from serving on the faculties of state schools...

...Why should those who observe the Sabbath on Saturday be exempt from the requirement that they be willing to work on that day in The rise of formless and fluid religions adds an unwanted wrinkle to an already complicated area of law...

...The separation of church and state" (a phrase that does not appear in the Constitution) is thus a misleading metaphor despite its coinage by Thomas Jefferson...

...Father Robert Drinan can constitutionally enter politics, and fundamentalists can lobby and lambaste politicians to their hearts' and souls' content...

...If divorce were outlawed, with the strong political support solely of Catholics and over the vehement protests of Jews and Protestants, would that proscription violate the Establishment Clause...

...In the landmark case of Sherbert v. Verner in 1963, the Supreme Court struck down the many state laws which, by denying unemployment compensation to persons who refused to work on Saturdays, effectively barred Saturday Sabbath-observers from receiving such aid...

...But clear principles get cloudy when applied to specific cases, particularly in a sphere as complex as the separation of church and state...

...Church and state can never be truly separate, Jefferson notwithstanding...

...The Free Exercise Clause is no less perplexing...

...For example: For many years there has been a movement to give parents who send their children to private (including religious) schools a tax credit for tuition...

...No general rule can be gleaned from the cases on it...

...The Framers' solution to these two dangers was the two religion clauses, but it is important to note that those clauses bind only the government...

...Sometimes the tension between the two clauses threatens what otherwise seems to be a reasonable accommodation between church and state...

...Robert Drinan, Jerry Falwell, and Madalyn Murray O'Hair can constitutionally walk the halls of Washington as much as they desire...

...like political parties, religions are vital social forces whose views are commonly codified in our laws and customs...

...Fair enough, but is there any amount of "coincidence" which does transgress that Clause...

...Public libraries regularly rejected books tinged with secular humanism...

...And what are the dimensions of that sphere, if it exists...

...Moreover, such expanded participation will, one hopes, dispel the common misperception that the religion clauses are meant to purge public life of religion, to bowdlerize from secular affairs any mention of the sacred...

...When the government enacts a Sunday-closing law, for example, does its interest in providing its citizens one common day of respite from the hubbub of commerce weigh more, or less, than the burden which that law imposes on those whose Sabbath is Saturday...

...Congress had passed a law granting conscientious objector status only to those whose draft opposition was based on a "belief in a relation to a Supreme Being involving duties superior to those arising from any human relation...

...ready arduous task...

...For example, the Massachusetts Civil Liberties Union charged the City of Boston with violating the Establishment Clause by financing construction of the platform on Which Pope John Paul offered Mass during his visit to the United States a few years ago...

...Who would deny that laws forbidding adultery or prostitution have religious bases...

...The courts have tried manfully to achieve consistency in this area but, like the Establishment Clause, the Free Exercise Clause has proved a tough nut for the legal profession to crack...

...Abortion is a salient example, but by no means the only one...

...Moreover, legislators - spurred by fundamentalist influence - are making new attempts to raze the wall separating church and state...

...The former prohibits governmental favoritism toward, or undue involvement in, religion, and the latter forbids government from unduly burdening its exercise...

...Board of Education, for example, forbids where feasible the scheduling of extracurricular activities from Friday night through Sunday morning...

...All our laws, particularly our criminal laws, have moral and religious components...

...Conversely, when a court agrees that a government policy is an establishment of religion, it must reckon with the free-exercise claims of those whose religion it held "established...

...And if we answer "Yes," then doesn't consistency require that we overturn anti-polygamy laws, which are merely secular expressions of the requirement of monogamy common to most American creeds...

...In his American Constitutional Law, Laurence Tribe of Harvard Law School gives a good example of the Net until 1968 did the Court strike down Arkansas's version of the Tennessee anti-evolution statute involved in the Scopes trial...

...Not even the most unreconstructed of modern judges would subscribe to this statement made by the Supreme Court of Maine in 1920: "Stability of government in no small measure depends upon the reverence and respect which a nation maintains toward its prevalent religion...

...Because of a quirk of legal history, the religion clauses of the First Amendment were not applied to state and local governments until 1940 (Free Exercise Clause) and 1947 (Establishment Clause...