Should Creed or Constitution Guide the Judiciary? "The First Amendment Asks of Us That We Find a Way, Perhaps along a Winding and Rocky Path, to Allow Both Individual Freedom and Public Openness in Matters of Religion, and to Do So without Allowing Either Concern to Swallow Up the Other."

Article excerpt

THERE HAVE BEEN arguments over religion and politics since long before there was a U.S. Despite the fact that several of the 13 colonies originated in the desire to create a righteous community in the New World free of the theological conflicts of the Old, in practice the colonists found themselves just as embroiled in disagreements rooted in religious faith. Following independence, Americans tried a different approach. One by one, those states in which a church had been established ended that legal status, and the nation as a whole enshrined in the Constitution the sweeping command of the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Thomas Jefferson, one of the nation's more outspoken Founding Fathers, rejoiced that the Republic had erected a "wall of separation between church and state" that would keep the public sphere free from the divisive effects of religious strife.

Whatever one makes of Jefferson and his views on religion, he turns out to have been a rather poor prophet. His metaphor, to be sure, has had a long and important life in U.S. law--the Supreme Court has been quoting him on the subject since 1878--but as a description of American political life, the suggestion that religion and government do not overlap is false. They intersect in a variety of ways. The constitutional question of how courts and others are to obey the First Amendment's command is better understood as an inquiry into the appropriate relationship between public life and religious faith rather than as an effort to maintain some unscalable wall. Recognizing that this is so may be one reason the Supreme Court--at least in recent years--has cooled noticeably toward Jefferson's famous language.

Yet, is it truly the case that the First Amendment ordains a courtship rather than a divorce between religion and government? Clearly, the answer is yes, but to see why, we need to recall that the Amendment makes two demands with respect to religion and public life. There shall be no establishment--no marriage, as it were, between religion and the state but equally there is to be no prohibition on the free exercise of religion or, the Amendment goes on to say, any abridgment of the freedom of speech, which includes, of course, the freedom to express religious views. In other words, us a constitutional matter, this country is committed to according the maximum possible freedom to persons of all creeds to believe, and to speak and act in accordance with their beliefs. Everyone, regardless of religious persuasion, is equally free to participate in the public life of the nation even while the Constitution declares that our public life itself is to be free of anything resembling an established religious (or irreligious) faith.

The principles of individual freedom of religion and public freedom from religious establishments seek, in many respects, complementary goals: Only those happy with the state's orthodoxy enjoy religious freedom in a state that establishes such an orthodoxy. There is, however, a tension between the two principles. for those who exercise authority in the public sphere, and who thus are obliged to respect the no-establishment principle, also are individuals, entitled like the rest of us, to maintain and express their religious views. For example, a Federal judge may hold whatever religious views he or she wishes, but at the same time is obliged as a public official not to wield governmental authority on behalf of a religious orthodoxy. Can this really be accomplished, or are our First Amendment commitments actually in opposition, at least when the individual's religious beliefs lead him or her to view as evil that which the government or the legal system requires?

One answer is that there is, or should be, no conflict between individual freedom and the ban on the establishment of religion because religious belief and practice are by definition "private" matters that do not belong in the public sphere. …