- The Washington Times - Tuesday, March 11, 2003

If there is a more confusing area of constitutional law than church-and-state, I hope I won't have to write about it anytime soon. Because the courts have confused this subject almost beyond discussion, clouding over even the simplest terms. Like church and state.
This is what happens when lawyers and judges are called on to think like philosophers and historians. It's like asking your plumber to devise a flood control plan for the Mississippi.
Result: confusion galore. Now we have the spectacle of scholars learned in the law and only in the law, one begins to suspect arguing over just how much religion should be allowed in the Pledge of Allegiance.
On one side are the perfectly serious zanies like the judge who compares the "under God" in the Pledge to the worship of Zeus. Hey, they're both deities, aren't they? And therefore equally verboten in American schools, according to the U.S. 9th Circuit Court of Appeals in, of course, San Francisco.
On the other side you have the lawheads who think they're defending the American Way when they argue that the mention of God in the Pledge is "innocuous" or "only minimal." And therefore allowed. What they're defending is the desacralization of American life the profaning of His name in order to keep it in the Pledge. Hey, it's only lip service.
What a circus. And most of the wilder acts stem from Basic Confusion No. 1: that the First Amendment outlaws religion in public life. It's not religion that the First Amendment bars in government but any establishment of it: a government church. It explicitly guarantees freedom of religion.
Just where an official proclamation or pledge of allegiance or national anthem crosses the line between religion and the government's establishment of one requires that rarest of qualities in the law: common sense.
Most of us can see now that Government Issue prayer is wrong, just as most of us recognize that learning the Pledge of Allegiance (and being free not to recite it) is kosher. If I may be permitted to use another religious concept that has slipped into the general, omnivorous American consciousness.
I'm not crazy about the reference to God in the Pledge myself for religious reasons. It sounds as if we're boasting, that we're using Him for our purposes rather than hoping He will use us for His. Which may be arrogant, but unconstitutional? Hardly. It's one more religious expression in a nation founded on it.
To get religion out of American government, you would have to censor not just this republic's history but its Founding document: "We hold these Truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness … ." You won't find a clearer or more concise expression of the idea of natural law and natural rights or a clearer recognition of their Author. Few governments have ever been based on so explicitly religious premises.
Thomas Jefferson is also credited with originating the metaphor of a wall of separation between church and state in this country. Like other metaphors, it can be as mischievous as it is useful. Fanatics on the subject now interpret the phrase to mean government must have no truck with religion at all.
Mr. Jefferson himself had no problem distinguishing between religion and its unconstitutional establishment. In the very letter to the Baptists of Danbury, Conn., in which he mentioned that Wall of Separation between church and state, he added, as president of the United States: "I reciprocate your kind prayers for the protection and blessing of the common Father and Creator of man."
It wouldn't take much effort to find all kinds of quotes from Mr. Jefferson on religion, pro and con, but clearly he did not exclude it from the American scheme of things, including government.
Behind this court's superficial confusion about the place of religion in American law and life is an even deeper confusion the unexamined assumption that a state can somehow be free not just of an established church but of any kind of transcendent belief, that it can neutral when it comes to any values.
Aldous Huxley, he of "Brave New World," once commented that our choice is not between having or not having a metaphysical belief, but between a good and bad metaphysic. Faith, like nature, abhors a vacuum. Man has to worship something; it is the way we find meaningfulness. And when God is ruled out, we'll substitute politics or art or sport or, our favorite, ourselves.
The old ladies in tennis shoes of all ages, sexes and footgear were onto something when they accused the courts not of outlawing religion but of introducing a new one: a secular humanism.

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