- The Washington Times - Tuesday, July 11, 2000

Religion awakens deep emotions. Reason and consistency take flight.

What remains is a smorgasbord of ill-defined thoughts and slogans that provide guidance only to the myopic or prejudiced.

The establishment clause of the First Amendment is no exception. Its language is simple but its application problematic: "Congress shall make no law respecting an establishment of religion." The difficulty of construction is not overcome by resort to Mathhew in the Holy Bible: "Render therefore unto Caesar the things which are Caesar's; and unto God the things that are God's." What if the two conflict? Some Muslims believe God ordained a theocracy, and that secular government is blasphemous. To pay taxes in furtherance of the latter is to subsidize an activity that offends the religious conscience. Yet to interpret the establishment clause to denounce the entire constitutional enterprise would be to make the tail wag the dog.

Nor is much profit gained from Thomas Jefferson's celebrated defense of religious liberty in the preamble of Virginia's statute that animated the establishment clause: "[T]o compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical." The rhetoric is stirring, but the wisdom empty. Government regularly employs taxpayer dollars to propagate support for war or sister uses of force which violate sincere religious convictions. Indeed, religious protestors may be conscripted to participate in the war effort itself, although as a matter of grace conscientious objector status for persons opposed to war in any form has mitigated the moral dilemma for some.

For more than half a century, polygamy was a pillar of the Mormon creed. The government, however, not only preached against the practice with tax money, but made it criminal. Polygamy was ultimately renounced by the Mormons as a concession to Realpolitik, not because of new religious thinking.

The First Congress which proposed the establishment clause was the same Congress which appropriated money for House and Senate Chaplains to open each session in the respective chambers with prayer, and voted against application of the clause to the States. U.S. Supreme Court Justice Hugo Black, whose earlier career in the United States Senate featured no sit-down or other protest against that longstanding and venerated custom, nevertheless sermonized in Everson vs. Board of Education (1947) that the establishment clause at least means that, "No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion."

Interpreting the establishment clause in a way that smacks more of reasoned legal principles and less of religious dogmas is no easy task. What previously seemed unclouded legal verities become clouded when religion enters the scene. Thus, Christians during the pagan days of the Roman Empire acclaimed religious tolerance, but switched their tune when Christianity dethroned paganism as the state creed under Constantine the Great. Puritans saluted religious freedom as a minority in monarchical England, but somersaulted when they became the majority in Massachusetts Bay and during the Cromwellian Commonwealth.

Without a readily discernible lodestar, the Supreme Court's establishment clause jurisprudence flutters erratically back and forth in either blessing or anathematizing various forms of state aid to religious institutions for example, tax exemptions, textbook lending and teacher assistance. Even the most learned Talmudist would be perplexed. The court's most recent excursion into the chaotic field in Mitchell vs. Helms (June 28, 2000) splintered the nine justices into a four-member plurality opinion by Justice Clarence Thomas, a two-member opinion concurring in the judgment by Justice Sandra Day O'Connor, and a three-member dissenting opinion by Justice David Souter.

At stake was a federal law that subsidized the lending of secular educational materials and equipment by state and local agencies to public and private schools according to a neutral formula. Religiously affiliated schools benefited in executing their secular educational obligations. The federal government subsidy objective, however, was secular, not sectarian: namely, educational pluralism and competition with the prevailing public school monopoly, which acts as a narcotic on innovation and industriousness. In other words, the government assistance was no proselytizing frolic traveling incognito.

But that is not enough to pass establishment-clause scrutiny under the high court's case law. Even if its purpose is innocuous, an aid program is constitutionally heretical if a primary effect promotes a religious enterprise. The plurality in Mitchell exonerated the secular educational materials from that charge, and gave short-shrift to the worry of covert or undetected diversion to teach religion. The opinion concurring in the judgment was more hedged, and voiced tentative constitutional qualms against school voucher schemes. The dissenting opinion maintained that the plurality had unjustifiably planted land mines under the cherished wall of church-state separation.

The free exercise clause of the First Amendment is no immunity for religious practices that violate evenhandedly applied laws sporting secular purposes. That religious subordination is one of the prices of civilization. Shouldn't the establishment clause similarly sanction all evenhanded government assistance inspired by secular objectives despite protesting individuals or groups demanding a religious exclusion? Is there even a shadow of a theocracy or religious discrimination in such a secular purpose and evenhandedness standard?

Bruce Fein is a lawyer and free-lance writer specializing in legal issues.

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