Draw Up a List of Questions, and Put Church-State Issues at the Top


"At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate. Our regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish. Americans attend their places of worship more often than do citizens of other developed nations, and describe religion as playing an especially important role in their lives. Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?"

Those are the words of Justice Sandra Day O'Connor in the recently decided McCreary County v. American Civil Liberties Union of Kentucky. It is doubtful that the fundamental rationale for preservation of the strict wall of separation between church and state has ever been more succinctly or more precisely stated.

While listening to the national discussion in the days after the nomination of Judge John Roberts as O'Connor's replacement, you might reasonably conclude that the only issues of consequence to which we ought to be paying attention are abortion and, to a much lesser degree, affirmative action.

Almost entirely absent from any of the commentary has been the First Amendment's guarantee of religious freedom and the string of Court decisions that has followed therefrom.

Yet you can fairly argue that no feature of the American constitutional and judicial landscape has had a greater impact on America's Jews – and has made a more powerful contribution toward enabling Jewish safety and success in this country.

Other issues matter, of course. But no list of issues on which members of the Senate Judiciary Committee should be encouraged vigorously to question Roberts can be complete if it does not include close questioning on the two key clauses of the First Amendment: the Establishment Clause and the Free Exercise Clause.

There is very considerable jurisprudence on the meaning of the First Amendment, and lately, some of the Supreme Court votes have been very close. Thus, it is not possible to infer whether the wall still stands firmly or has begun to crumble. That's why it is so important that Roberts be questioned about his views. It's fair to ask the nominee how he sees the Supreme Court's tradition on church and state, and how he sees the balance between the free-exercise and establishment clauses.

These days, with President Bush's faith-based initiatives gaining traction and procedures unthinkable just a decade ago now accepted as routine, a nominee's church-state views are of more than casual interest.

And in the case of Judge Roberts, they take on added importance: As deputy solicitor general, he wrote the briefs that argued for prayer at public-school graduations, and for weakening the test the court used for resolving establishment-clause violations.

Because close questioning on church-state separation ought to rank in the first tier of issues to be considered by the Senate, the absence of any reference thereto in the first days following the nomination is an ominous omission; it suggests that all's settled and well on the religious front, and that we can take the wall of separation for granted.

But the fact is that neither the court itself nor public opinion can be viewed as settled.

School prayer, charitable choice, the proselytizing activities at the Air Force Academy – even the idea of a wall of separation itself – are matters of intense debate, spurred on by the Christianization of America.

Religious views then insidiously spill over into the debates about evolution, stem-cell research, gay rights and more; all these are affected, and many infected, by inappropriate religious argument and by a radical misunderstanding of the First Amendment.

What better time is there to re-educate the American people on the source of the religious freedom we here enjoy than during the confirmation hearing of a nominee to the Supreme Court?

Leonard Fein is a Boston-based columnist.



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