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Mr. Chairman and members of the Subcommittee:
Thank you very much for affording me an opportunity to testify before you concerning the Religion Clauses of the First Amendment.
I speak from a variety of perspectives. For most of my professional career, I was a Professor, and later Dean, at the New York University Law School. I taught First Amendment law, including the Religion Clauses. My contact with the First Amend- ment, however, is not limited to my academic role. I have served as Corporation Counsel of the City of Now York, the chief legal officer of New York City, where I was responsible among other things for seeing to the City's compliance with the Religion Clauses. Finally, I have for many years served as co-chair v: the Commission on Law and Social Action of the American Jewish Congress, an organization with a long and distinguished record of leadership in the field of the Religion Clauses.
The contemporary debate over the Religion Clauses is essentially over the extent to which equality between religion and non-religion should be the Louchstone of those clauses. While I believe that this principle of equality is an important one in Religion Clause jurisprudence, it is not exclusive. Consider:
government can fund public education. It can place photographs of the President in a public building. It can restrict consumption of alcohol by minors. Does it follow that a principle of equality requires it to fund parochial schools, display a Nativity scene in every public building, or prohibit consumption or ritual wine by minors? I submit that on textual, historical, and policy grounds, equality cannot and should not be the center of Religion clause jurisprudence.
The central policy of the Religion Clauses should be to in- sure that (1) individuals are free to practice their faith without government playing any role in religious decisions and without unnecessary governmental interference (2) the government must not itself become embroiled in religious affairs, whether in the form ot regulation or subsidization; (3) the government not use its substantial resources to assist religious (or anti- religious) persons to spread their views, or coerce participation in religious or anti-religious events. Equality has a role to play in observing these precepts, but it is not an exclusive or central role.
It is surly no secret that there are important differences about the meaning and application of the Religion Clauses of the First Amendment. Unfortunately, it is something of secret that there is a great deal of common ground about application of First Amendment principles, even in the context of the Establishment Clause, and even in the contentious area of religion in the schools. To a great extent, the public clamor for a constitu- tional amendment to reframe the Religion Clauses stems from a lack of public knowledge of these shared understandings. Making clear the extent or agreement would, I believe, silence much of that clamor.
some examples:
The Supreme Court has said that the most fundamental principle of the Establishment Clause is that the government may not discriminate among religious faiths (Laroon v. Valente, 456 U.S. 228 (1982). No academic scholar of the Religion Clauses argues that it should be otherwise, To the best of my knowledge, no or- ganizational participant to the church-state debates argues oth- erwise. Yet in public discourse, one still hears claims for of- ficial preferences for majority faiths.
In April, a group of 34 religious, civil liberties and edu- cational groups issued a Joint Statement of Current Law on Reli- gion in the Public schools. This group, which was convened by the American Jewish Congress, and included groups as diverse as the National Association of Evangelicals and the ACLU, Americans United for the Separation of Church and State and the Christian Legal Society. Much of the dcbate over school prayer is fueled by the belief that, as J. Brent Walker of the Baptist Joint Committee put it at the press conference announcing release of the Joint Statement, "God has been expelled from the classroom." That, as Mr. Walker hastened to explain, is not true, although too many people who should know better keep telling the public otherwise. The Supreme Court has never so held. The Joint Statement carefully details the ways in which student religious beliefs may be expressed in school:
-Students may pray on their own, and they may discuss reli- gious issues with their peers provided they are not disrup- tive. They may possess religious books and read them when not otherwise engaged in school activities.
-Schools may teach about religion, including religious art and music, provided they do so without teaching religion it- self.
-Students may express themselves on religious subjects in homework assignments, reports and artwork.
-Religious remarks--either pro or con--may be made, subject to the usual rules of relevance, in the ordinary course of classroom discussions. Teachers may not ridicule, silence or endorse student religious vioce.
-Students may distribute religious literature to their peers, subject to content neutral time, place or manner restrictions.
-The so-called see-you-at-the-pole event is constitutionally protected, but teachers may not participate in an official capacity.
-Secondary school students may meet before and after school on religious or other topics under the Equal Access Act. As the St. Louis Post Dispatch said, "[the] Guidelines... show how religion can be included in the daily lives of students without breaching the historical separation between church and state."
That Joint Statement is, I think, an impressive demonstration that religious students need not check their beliefs at the schoolhouse door. It demonstrate as well as it is possible to maintain the barriers between state endorsement of religion in the public school context--as the courts have--and respect for the rights of individuals to express their religious views settled only after extensive litigation. It is sometimes said that there is something wrong with the prevailing constitutional standard Lemon v. Ktirtzman,403 U.S. 602 (1971)-- if school officials believe that it requires them to confiscate Bibles or order students to stop praying or if it takes years to establish the principle that students can distribute religious literature on the same basis which they can distribute underground newspapers or that non-curricular student religious clubs can meet on the same basis as other student clubs.
Several things must be said in response to those charges. First, it is not the casa that school officials are only in the direction at over-zealously excluding religion. Is is no less reprehensible that over 30 years after the Supreme Court held that school officials may not conduct officially sponsored prayer, it is still necessary to litigate such cases. The fact is that there are many clearly settled legal principles that are too often breached in this area as well as many others. It does not follow that a constitutional amendment is the solution to these problems. The problem here, as elsewhere, is not that doctrine is in confusion or even that new remedial mechanisms are necessary. It is that government officials are ignorant or dismissive of the law.
Law professors can find inconsistencies and conflicts in Su- preme Court decisions about public school religion. But from the point of view of school administrators, the constitutional rules are not that hard to determine. Either out of ignorance, or, sometimes, political expedience, school officials too often cal- culate that it is better to take the popular course than the le- gally correct one. The police, the welfare authorities and even the courts are no different.
To the extent that school officials confiscate Bibles or ban grace before meal in school cafeterias the publication and dis- tribution of the Joint Statement should go far to preventing their recurrence. If not, the federal courts offer ready redress, including attorneys fees. There is no need for a constitutional amendment to address these occurrences. They breach existing law.
Finally, church-state cases are often litigated because the question is not the general rule of law--which in often simple enough--but factual. It is, for example, by now understood that private religious activity in public settings is permissible, and that government support for religious activity is not. What is not often clear is on which side of the line a particular practice falls. Since it seems generally agreed that government ought not to itself conduct religious activity (none of the amendments so far introduced call for this to happen), the question is often whether a particular degree of government involvement constitutes governmental support for religion.
This was the case with the problem of equal access for extracurricular religious clubs. Because these clubs took place in conjunction with school, questions arose about whether the school was sufficiently involved to be charged with the religious activity. In retrospect that question appears easy. It was not so at the time. In the first place, there was the question of indi-rect, financial subsidies. Some cases involved relatively small financial subsidies, such an the use of empty classrooms. Others involved more substantial coats, including teacher supervision of student religious clubs.
But the costs which confronted the schools were not only fi- nancial. Opponents of equal access for religious clubs raised legitimate questions about whether particular activities presented either the reality or risk of improper government endorsement of religion. Would outsiders be given access to schools where student attendance was compelled, to use as mission grounds? Some church groups openly sought to exploit the fact of compulsory attenidance laws for their religious ends, a technique condemned in McCollum v. Bd. of Educ. 333 U.S. 203 (1947). Would teacher supervisore not only police behavior of religious clubs, but serve as club ministers, urging students to follow a particular act of religious beliefs and behavior? That was not a hypothetical question. In many communities teachers in fact traded in their official positions to encourage students to participate in religious activities.
Some early equal access proposals focused only on reli- gious speech, protecting only it but not their secular counter parts, giving rise to the legitimate and understandable perception that the schools were not merely permitting students to speak as they choose, but actively encouraging religious behavior.
It was in this context that I testified in opposition to an early version of the Equal Access Act in 1984. As a result of the challenges posed by the pre-Act caves, and as a result of the opposition to the early legislative proposals, the Act emerged with safeguards which ameliorated many of the concerns expressed by opponents of the Act. Thus, for example, as enacted, the Act is limited to secondary school students. It prohibits outsiders from regularly controlling or attending Meetings of equal access clubs. Teachers and other school personnel are prohibited from doing more than attending to keep order. It allows school officials to protect other children from the activities of clubs. Funding beyond the use of the room are not permitted. The Supreme Court, in upholding the constitutionality of the Act, has given these restrictions real teeth.
In short Lemon v. Kurtzman wasn't the problem; the problem was that early versions of equal access were one-sided, and did not give sufficient attention to all of the constitutional prin- ciples involved, including that of government's non-involvement with religion.
The upshot of this process of constitutional give-and- take was a statute which both sides can live with. It is my impression that hundreds, perhaps thousands, of clubs have been formed, but the excesses which we feared--and which were far more likely under early Equal Access proposals--have not come to pass. There remain questions of statutory interpretation under the Act- -is lunch noninstructional time, may a club be required to accept members of different faiths as officers--but these do not take away from the central success of the Act of balancing all of the principles which I laid out at the outset. The Act allows private religious expression, And ensures against state support for religious activity.
The process of sorting out these Competing concerns slowly produced a sound balance, one that would not have emerged had advocates of equal access simply sought constitutional protection for their speech.
I could brace a similar development with regard to another controversial area of school law, the distribution of religious literature by students to their peers. Again, these issues did not emerge out of nowhere. For many years, many school districts granted Gideons International preferential access to distribute their Testaments to students, often in the classroom, under the watchful eye of a teacher who encouraged the distribution. Al- though the courts and state attorney generals were unanimous in condemning these practices, starting with Tudor v. Bd. of Educ., 14 N.J.2d 3i, 100 A.2d 287 (1953), on the ground that the students were not in school voluntarily and could not be used as a convenient audience for colporteure, school officials nevertheless persisted in permitting the practice.
Thus, when students started to distribute religious literature these Gideon precedents seemed apt. Those of us who believe that the school should not facilitate the proselytization of our children understandably feared that the student leafletters were nothing more than an end run around the Tudor decision. Moreover, there was often reason to think that the students were often mere conduits for outside mission groups.
But it was also the case that Tinker v. Des Moines I.S.D., 303 U.S. 503 (1968) had granted students substantial First Amendment rights. Subsequent lower court cases had upheld the rights of students to distribute underground newspapers, typically over the objection of school administrators. Why should not this line of cases control the distribution of religious literature? These two lines of cases, each with ito own roots, appeared to be in conflict.
A handful of lawsuits resulted, none of which ever reached the Supreme Court. Typically these were not brought by groups like AJCongress, ACLU or Peuple for the American Way. (AJCongress has never taken the position that student distribution of religious literature was unconstitutional.) They were, rather, instigated by school boards more interested in preserving for themselves maximum authority over student speech than preserving the separation of church and state. These School Boards received encouragement from decisions of a conservative majority on the Supreme Court, which in cases such as Fraser v. Bethel School District, 489 U.S. 675 (1986) and Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), hoth of which appeared to cut back on the scope of student religious speech protected by Tinker.
What emerged from those cases was a relatively clear rule. Students could distribute religious literature, but schools were entitled to maintain content neutral time, place and manner re- strictions on the distribution, such as requiring distribution from a fixed location. Such restrictions avoided the danger of excessive zeal in forcing literature on unwilling fellow students, something that occurred in at least one of the early cases. This result is, it seems to me, a proper one, and one that appears to have achieved widespread acceptance. It is certainly a result that was achieved under the current Lemon test without any great difficulty. Again, the result of the give-and- take of constitutional "common law" litigation has been the emergency of a sound rule.
The same process took place in the holiday religious display case. The decade-long litigation over the issue, too, has pro- duced clear rules, and, in my judgment, social understanding of the resulting rule. The first cases involved officially sponsored displays. The court, after some wavering, settled on a rule that says such displays are permissible only if the display is not wholly religious. This, too, has proven to he a sound and valuable rule.
Critics of the Court delight in mocking this result, which they derisively label the "two reindeer rule." But what is wrong in this society, with its kaleidoscope of religions, with gov- ernment refraining from the unvarnished celebration of a religious event as a religious event? What message does a Moslem postal patron set when her post office is decorated at Christmas only with a creche, depicting the miraculous birth of Jesus?
This constitutes no heckler's veto. Religious displays can be displayed in many visible places, including offices, stores and of course, houses of worship and private residences. It is not to silence or marginalize religion that we ask government to stand apart from it. On the contrary, it in precisely because we recognize the power of religion and the power of government that we insist that government stand aside.
The decision in the cases involving government sponsorship of religious displays (Lynch and Allegheny County) gave birth to a second group of cases involving temporary displays of holiday re- ligious symbols on public land at the initiative of private par- ties. This plunged the courts into the thicket of public forum law, one of the murkiar areas of constitutional law. More broadly, the question was whether the presence of a religious symbol on public land was popularly understood as a suggesting government support or endorsement of that symbol and the religious message for which it stood. Again, it is worth noting that the question is a quase-factial one--how the presence of a particular symbol understood--not a theoretical, legal one, some presumption that government must silence religion.
Except for the narrow category of seat-of-government religious displays, the courts have all-but-unanimously concluded that such displays are not only not forbidden by the Establishment Clause, but are constitutionally protected by the Free Speech Clause. (The narrow, reserved issue of religious displays at the seat of governmental--which again presents a sort of constitutional fact question--is presently before the Supreme Court in Pinette v. Capitol Square Review Board.) The point, again, in that the courts have come to sensible conclusions without a constitutional amendment.
Not every issue has been settled. Some will require the intervention of the Supreme Court. I have in mind specifically the dispute over student-initiated prayers at graduation ceremonies. The Fifth Circuit has, with some limitations, held that such activities are constitutional on the ground that the speech is purely private and thus not subject to the Establishment Clause- based rule of Lee v. Weisman banning official graduation prayers.
The Ninth Circuit reached an opposite result, concluding that the prayers in the context of a tightly choreographed graduation cer- emony, are necessarily the product of governmental action. (A petition for certiorari is still pending in this case. Two other cases are pending in the Third and Eleventh circuits.) My own view in that the Ninth Circuit has it right. While I agree with the court's reasoning, I think there is a more fundamental flaw with student-initiated prayer than the fact that the student's speech is fairly treated as the government's own.
The claim for student-initiated prayer in that a denial of that privilege is a denial of free speech to exclude a particular type of speech. But the right to freedom of speech never includes the right to force speech on others with the assistance of government. As the Supreme Court has said, the freedom of religion (or speech) does not encompass the right to use the government "as a sword" with which to force one's views on others. (These arguements are set out in detail in the amicus brief of the American Jewish Congress in a pending case, Ingebretsen v. Moore (5th Cir. 1995).) But the legislative proposals I have so far seen mostly ignore the claims of the unwilling listener.
The dispute over student-initiated prayer illustrates how complex these cases are. Courts are faced with a conflict between competing claims of religious liberty--the freedom of some students to express themselves religiously against the claim of others not to be subjected to unwanted religious exercises. No one principle can resolve these cases once and for all. Any attempt to deal with them by the blunt instrument of a constitutional amendment designed primarily to protect religious speech will necessarily run roughshod over the rights of one or the other side. Those others will typically be religious minorities. That is not a category that includes just a few, small, marginal religions. In this fractious country, almost every group will be a minority someplace, unwillingly subject to someone else's religious expression.
The Supreme Court's stated test for detecting Establishment Clause violations is primarily that of Lemon v. Kurtzman, 403 U.S. 601 (1971) in which the Court laid down a three part test constituted for establishment class violations-- that a practice have a secular purpose, primary secular affect and cause no undue entanglement with religion. In its original incarnation, the tripartite test was described as nothing more than a helpful signpost. Moreover, the test has not been frozen in its original form. It has undergone several modifications since it was first laid down. And the Court has never regarded itself as confined to the Lemon criteria, as Justice O'Connor noted last year in Kiryas Joel v. Grumet (1994).
The Lemon test did not emerge full-blown form the head of Zeus. It was, as Chief Justice Burger himself demonstrated at length in Lemon, a distillation of 25 years ot decision-making cases. (The point was made at length by Professor Douglas Laycock in an amicus brief he filed on behalf of AJCongress, et al. in Lee v. Weisman. The criticism of Lemon is thus mostly a surrogate for an attack on all the Court has done in 50 years. In that time span, the Court dismantled a de facto Protestant establishment. Are we to take the current assault on Lemon and all it stands for by the Christian Coalition and its allies as a last ditch effort to recreate that establishment?
It is worth noting as well that the criticism of Lemon has gone through a variety of forms. For years, it was fashionable to assort that the court had wrongly understood the Establishment Clause to bar non-preferential aid to religion. When that thesis was conclusively shown to be without historical foundation, critics shopped around for a different theory. A coercion test was one suggestion, but most of those who advocated it were critical when the Court applied it to invalidate graduation prayers. One suspects that the critics are less concerned with doctrine than with the fact that the Court takes the Establishment Clause seriously.
Another common criticism of Lemon and its progeny is that they it produces inconsistent results. Critics delight in pointing out that the Court permits the government to lend geography textbooks but not qlobes to parochial schools. I may be excused for doubting that the critics would be any happier if the Court had been consistent and banned both.
Logical consistency is an import and value in judicial decision-making. No one wants constitutional decisions to be random events, dependent solely on judicial whim. But critics of the Supreme Court sometimes forget that the court does not operate only on the plane of logical consistency. The Court, after all, is not in the business of writing law review articles, but deciding cases, cases that involve complex, messy fact pattern, and which are sometimes poorly litigated. It has to deal not only with application of a single constitutional clause. Sometimes the Court must balance several clauses, doing its best to give them each meaning, purely a practical, not a precise, science.
Courts exercising the prerogative of judicial review must also defer to the will of the legislature as far as possible, which sometimes requires foregoing judicial elegance to deference to the popular will. And the Court must adjudicate cases not only on a priori assumptions, but with due regard to the public meaning of official acts, again not a precice art. An example from another area of the law will be helpful in making the point.
The Thirteenth Amendment, the Court has suggested, allows Congress to bar all badges and incidents of slavery. What badges and incidents of slavery are depends not only on history, but how particular practices fit into larger social matrices, e.g., is closing a street leading from a Black neighborhood to a white one a badge of slavery? These judgments are not reducible to abstract principles. They are inescapably social assessments.
Much the same is true of the Establishment Clause. Whether a particular governmental act advances religion depends on an asaessment of its place in the larger culture.
It must also be recalled that the constitution was a pragmatic political document. The Founders were students of the theory of goverment, but they were also men of affairs. They know that some things posed a greater danger to democratic repub- licanism than others. Prospective laws can be oppressive in ex- tinguishing legitimate expectations. The Founders left that risk to the democratic process. But they thought that ex post facto laws posed a far greater risk of oppression, and that the risk was not tolerable, so they prohibited them entirely. One can argue that the line between the two is not perfectly logical. The Founders were planning a government, not writing a treatise, so they eschewed logical symmetry, targeting only the worst evils for constitutional prohibition.
The decision to ban religious establishment, but not their political, cultural, scientific or social equivalents, was a deliberate response to the Founder's differing assessment of the relative risks of government support for religious activity as compared to the ideological programs of other cultural institutions. That practical calculation pulls on the Court in ways that stict logic would not.
Constitutional adjudication is, in sum, a complex process. To criticize the Court because it sees complexities for what they are-particularly as the Court confrnnts not first generation cases, but third generation cases-is no service tn the Constitution.
The central contemporary criticism of Lemon is not a criticism of that case as an exposition of the law. Rather, the criticism is that by imposing special restrictions on religion, the court has marginalized religion. The remedy is some form of guarantee of equal treatment for religious activity. The idea is reminiscent of the views of Phillip Kurland, enunciated some 30 years ago.
In one area the Supreme Court has insisted on equal treatment of religion, and that is in regard to the free exercise of religion. In Employment Devision v. Smith, (1990), the Court insisted that religious objections to compliance with facially neutral laws deserved no more consideration than similar claims of political or ideological objects. The entire religious community objected vigorously to that decision. Congress stepped in and enacted the Religious Freedom Restoration Act. That invocation of equality ought to serve an a warning of the danger of treating the Religion Clauses as a limited version of the equal protection clause.
In the wake of the last election, and the prominence of the Christian Coalition, its religious allies and opponents in public policy debates, I am hard-pressed to understand the claim that religion has been marginalized in its access to the political sphere. Religion is legally entitled to be in the public square, and to make its views known. The Court has said so repeatedly.
To be sure, religious ideas, and religious ideas of a particular sort, are not equally popular or respected in every segment of this society. This is not the fault of the government, but the weakness, or perceived weakness, of, or disagreement with, those ideas. As a matter of first principles, is no more the role or government to bolster religious ideas, to ensure their acceptance, than it is to hamper them. Religious ideas should and will stand or fall on their own merits.
As I said at the outset, equality is one element of holding the balance true between religious liberty and non- eatablichment. Thus, it is properly settled that if parks are made available for public gatherings, religious groups must be allowed equal access. I doubt that the government could broadly exempt non-for-profits from real cotate taxation, but tax church property.
There are, of course, hard cases, cases like Rosenberger v. Rector, now before the Supreme Court. In that ease, a college allowed mandatory student activity fees to be used to subsidize various student publications but not religious or political ones. Students who wished to publish a religious newspaper challenged this rule as hostile to religion. The university originally defended on the ground that the Establishment Clause prohibited it from subsidizing religious speech. The District Court and the Fourth Circuit agreed and upheld the rule. Thu Supreme Court heard argument in the case last fall.
The arguments made on behalf of Rosenberger are of particular interest because they were drafted by Profeesor Michael McConnell, who is here this morning and who in one of the leading drafters of a contemplated constitutional amendment to enhance religious eqaulity. He is also one of the most persistent critics of Lemon. Professor McConnell makes two sets of arguments in Rosenberger's behalf. The first Simply argues, plausibly, if not persuasively to me, that existing precedents condemn the University of Virginia's rule. Essentially, the argument is that the discrimination against religious speech is unsustainable without the Establishment Clause, and that clause would not be violated by granting students activity fees to a religious publication. The most that can be said if the Supreme Court rejects those arguments -- and many observers think it will not - - is that in a close and difficult case other concerns proved more weighty. Unless we are prepared to amend the constitution every time the Supreme Court hands down a decision in a hard case with which Congress disagrees, this is not the basis for a sweeping revision of the First Amendment.
The second set of arguments are more interesting. Profesoor McConnell argues that the Lemon test should be discarded, because, by imposing special restraints on religion, it marginalizes it. I have already noted that it is 'hard to detect this marginalization in the real world of politics and people's lives. To 'cure' this 'problem,' I Professor McConnell proposes to broadly adopt a ruIe which says that where government funds or tolerates a wide range of activities it may not refuse to include religion in the range of beneficiaries.
Although he carefully lays down some lawyerly caveats- Professor McConnell is a highly competent lawyer-he does not shrink from the farranging implication of this proposed doctrine. He acknowledges that adoption of his theory would probably allow government to fund parochial schools. It would also allow church charities to accept government funds and use them in programs which serve as vehicles for spreading the church's religious message, indeed in which acceptance of the message is a condition for participation.
Such a result would not be mere correction of erronneous decisions of the Supreme Court. It would be wholesale revision of the church-state policies adopted by the Founders.
History Demonstrates that the Founders intended to absolutely forbid the state from using the mechanism of taxation to fund religious activity. That history has been often told by-scholars and I need not retell it here. See Leonard W. Levy, The Establishment Clause. 1986. Thomas Curry, The First Freedoms. (1986). Thomas E. Buckley, Church and State in Revolutionary Virginia (1977).
Madison summarized the arguments in his Memorial and Remonstrance. He noted that it was wrong to tax people to support religions with which they disagree becaucause "it is the duty of every man to render the Creator such homage, all such only, as he believes to be acceptable to him.' (Emphasis added.) Therefore, added Madison, it is wrong to "force a citizen to contribute three pence only for the support of one 'establishment' for that sets a precedent which may force him to conform to any other establishment whatsoever."
The rounders, well aware of tha doleful European experience of machinery of state to finance religion, intended specifically to bar this practice. Professor McConnell had at- tempted to avoid the thrust of this historical analysis by arguing that in the Revolutionary era struggle the only question was whether government could aid religion only, not whether it could fund religion as one recipient of government largesse among many. This, of course, is to recast the Revolutionary Era debate in terms alien to it, and then to speculate on the answer the Founders would have given to a problem they did not contemplate.
More fundamentally, it is a view which simply ignores what the Founders in fact thought about the dangers of government subsidized religion without regard to what else government did or did not subsidize. If we wish to adopt Professor McConnell's theory, a constitutional amendment is in fact necessary, not to correct the errors of the Supreme Court, but to correct those of the Founding Fathers. The case for doing so, for "correcting" and "improving" the Bill of Rights, has not been made.
A rule of equality would in any event not solve the problems which confront the courts. An equality rule might perit studentinitiated graduation prayer. What of the interests of those who didn't want to hear such a prayer, whose religions may prohibit even their presence during such prayer? Would a rule aquinst coercion still apply? If it does, an equality amendment would accomplish little for its proponents and unsettle much. If it does not, it would work a true revolution in the relationship between one which provides a government, religion and citizens, but not one which provides a net gain for liberty.
Similarly, the principle of equality would create new problams in the funding area. Could church-schools receiving public aid discriminate in admission on the basis of religion? Since public schools cannot practice religious discrimination, the equality principle would not permit government funds to be used in this way. But to insist on an open admission policy is to deny the religious schools their liberty.
I could go on in this vein, but I think I have said enough to demonstrate that a constitutional amendment - provided it did not degenerate into a lengthy code - is no panacea. It would of neces sity raise almost as many new questions as it would answer old oncs. And of course, it would leave in doubt the statue of dozens of supreme court and hundreds of lower court cases. Nothing on the horizon remotely justifies such a wholesale revision of the First Amendment.
CONCLUSION
When the Supreme Court first held that the Constitution prohibited officially sponsored school prayer, prophets of doom predicted that the moral fiber of the Republic was in danger, that the Court had usurped an authority it did not possess, and that religion was being marginalized. Today, almost no party to the debate on school prayer calls for overturning these decisions, whose correctness are today taken for granted. It is equally true that those of us who advocate church-state separation have been known on occasion to predict similar doomsday scenarios when a First Amendment issue is decided against us.
The Supreme Court can get individual cases wrong. Over time, though, the Court has in deciding Religion Clausces cases, struck a by-and-large sensible balance between protecting the religious liberty of individuals and keeping the government out of the religion business. Any attempt to drastically alter that balance will to result in distorted balance and a net loss for religious liberty.
Those who seek a constitutional amendment apparently believe that without an enhanced government role in promoting religion, religion is doomed to a decreased role in society. That pessimism is unwarranted. On the contrary, keeping government at a distance is a vital safeguard for religions health. Without question, the over-two-hundred-year-old policy of separating church and state is sometimes a burden to religion. But it is a burden well worth shouldering for the health of individual liberty, our diverse society and above all, religion itself.