America's Holy War

By NANCY GIBBS

To say that God is everywhere in American life is as much a statement of fact as of faith. His name appears on every coin, on every dollar bill and in the vast majority of state constitutions. Schoolchildren pledge allegiance to one nation, under him. The President of the United States ends his speeches with a benediction. God bless America.

In a country born of a pilgrim's dream, a country that exalts freedom of worship as a sacred right, perhaps none of that is surprising. What is surprising is that for most of the ensuing 200 years, Americans have not stopped arguing about God. In the past decade alone, the Supreme Court has decided more religion cases than ever before, and each day brings a fresh crusade.

At issue is the meaning of the basic principle enshrined in the First Amendment: that Congress, and by later extension the states, "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The modern Supreme Court has taken that to mean that government cannot do anything that promotes either a particular faith or religion in general. The backlash was a long time coming, but now it is here with a vengeance.

The fight is not so much over what people ought to believe; it is over what they can say, and where, and to whom. The battleground spreads from the courtroom to the schoolroom to the town square:

-- Last month the Pennsylvania Supreme Court threw out the sentence of a murderer who killed a 70-year-old woman with an ax, on the ground that the prosecutor had unlawfully cited biblical law to the jury in his summation urging the death penalty.

-- In Decatur, Ill., a primary-school teacher discovered the word God in a phonics textbook and ordered her class of seven-year-olds to strike it out, saying that it is against the law to mention God in a public school.

-- The town of Oak Park, Ill., blocked a private Catholic hospital from erecting a cross on its own smokestack because, councilors say, some local residents would be offended.

This is not simply a struggle between believers and nonbelievers, or between liberals and conservatives. The conflict is far more subtle, a product of centuries of legal evolution. It gets to the very heart of America's identity, for it is about a clashing of rights and responsibilities: Should Christian Scientist parents be allowed, on religious grounds, to reject medical treatment for a dying child? Should Mormon parents be allowed to claim a tax deduction for the money they spend sending their children out as missionaries? Like so many other issues -- abortion, the right to die, the right to bear arms -- the issue of religion's place in American life is at once deeply personal and yet highly public. It falls to the courts to find a way to preserve freedom of conscience while protecting individuals from the imposition of other people's beliefs.

THE TWO SIDES

In the broadest terms, there are two main camps in this holy war. On one side are the "separationists," who argue that church and state must remain clearly apart and that government should not be in the business of endorsing one faith or another. Some members of the camp make their case on practical grounds: they insist that in a country with nearly 1,200 different religious bodies, the only way to keep the peace is to keep them all out of the shared public sphere. Too many wars have been fought, too many freedoms crushed in God's name, for a democracy to try to integrate theology into its public life.

Other separationists argue on religious grounds; they want to protect their own churches and their private beliefs from exploitation by politicians or demagogues. "Religious beliefs worthy of respect are the product of free and voluntary choice by the faithful," Justice John Paul Stevens, the Supreme Court's most ardent separationist, wrote in 1985. "Government must pursue a course of complete neutrality toward religion."

In opposition are the "accommodationists," who believe that the "wall of separation" between church and state has grown too thick and costs too much. By isolating God from public life, they argue, the courts have replaced freedom of religion with freedom from religion. A nation's identity is informed by morality, and morality by faith. How can people freely debate issues like nuclear arms or the death penalty, how can children be educated, without any reference to spiritual heritage? As Justice Antonin Scalia observed in 1987, "Political activism by the religiously motivated is part of our heritage." The accommodationists deny that their agenda is to enforce conformity; all they want is for their positions to get a fair hearing.

For the past 40 years or so, because of a lengthy series of Supreme Court rulings, the tide has generally favored the separationists. In this nation of spiritual paradoxes, it is legal to hang a picture in a public exhibit of a crucifix submerged in urine, or to utter virtually any conceivable blasphemy in a public place; it is not legal, the federal courts have ruled, to mention God reverently in a classroom, on a football field or at a commencement ceremony as part of a public prayer.

The debate has now arrived at a crossroads. Last month the Supreme Court heard arguments in a case that invites it to rewrite the canons of church- state law. Lee v. Weisman involves a Rhode Island rabbi whose bland prayer at a middle-school graduation was later ruled unconstitutional. The rabbi gave thanks to God for "the legacy of America, where diversity is celebrated and the rights of minorities are protected." The district court suggested that the invocation would have been fine if the rabbi had just left out all the references to God. The school board is arguing that so long as the prayer was not coercive, it did not violate the establishment clause of the First Amendment.

Various courts around the country have already wrestled with the same issue. California earlier this year ruled against the constitutionality of graduation prayers, as have Iowa and Rhode Island. Virginia and Pennsylvania permit them; it falls to the Supreme Court to decide which is right.

This may turn out to be the first accommodationist court in years. "The wall of separation between church and state is a metaphor based on bad history," declared Chief Justice William Rehnquist in 1985. "It should be frankly and explicitly abandoned." The Lee case is also the first major test of Justice Clarence Thomas, who remarked in 1985, "My mother says that when they took God out of the schools, the schools went to hell. She may be right." Were Thomas and his colleagues to agree with Rehnquist, it could change dramatically the role that religion plays in America's marketplace of ideas -- and ultimately, in every citizen's private life.

If ever there was an issue cast in shades of gray, this is it. Faith is often a matter of given truths and absolute beliefs, but once it becomes entangled in law and politics, its certainties begin to blur. One of the primary fears of the separationists is that if government gets too involved with religion, the result will resemble the bloodless, lifeless state-backed churches in Europe. Many of the supporters of the church-state wall fear that politicians, bent on compromise more than conversion, would try to invent some inoffensive brand of faith -- the creche encircled by reindeer hauling Santa's sleigh. "What you are tending to see is a new secular state religion," says Lee Boothby, a Seventh-day Adventist who is general counsel with Americans United for Separation of Church and State. "It's not really religion."

Other separationists are most concerned with protecting atheists or members of minority faiths from pressure to conform. This is a far more diverse country than it was in 1892, when the Supreme Court declared, "This is a Christian nation." Millions of Americans attend worship services each week, but the locales range from Hindu temples in California to churches of snake- handling Pentecostalists in Appalachia. Baptist parents might like their child's school day to start with a Bible reading, but could a Muslim teacher choose a passage from the Koran instead? Do Satanists have the right to distribute materials at school? Would a santero football coach be allowed to sacrifice a chicken before the big game?

If only the Christian God is allowed to make public appearances, non- Christians fear they will be unprotected in many subtle ways. "The danger," notes Harvard law professor Laurence Tribe, a noted liberal constitutional expert, "is that those who are not part of the locally dominant culture will be reduced to a sort of second-class citizenship. Though they may not have to wear yellow stars on their sleeves, they will be given a message that they are outsiders."

On the other side, accommodationists make many of the same arguments with a different twist. It is religious people who have been ostracized, argues lawyer John Whitehead, founder of the Rutherford Institute, a not-for-profit religious-liberty advocacy organization backed by conservative Protestants. Whitehead entered the church-state fray in 1976 when he defended a fourth- grade girl in California whose teacher said she could not wear a cross on her necklace. "Society has been secularized, and the religious person finds he's the odd person out," Whitehead says. "In public schools, religion is something to be avoided, obsolete. I see kids expressing their beliefs as healthy."

To accommodationists, previous Supreme Court decisions appear to be sending the message that religion is acceptable so long as it is not too public. It is a strange definition of free speech and religious liberty, they note, that prohibits mention of God. "Angela Davis, a communist, was the speaker at my son's high school graduation," says Berkeley law professor Phillip Johnson. "People have to listen to the most heavy-handed dogmatism. Then suddenly the Constitution is violated if an agnostic hears the word God. This is absurd. If we have to put up with things we don't agree with, why is only God excluded?"

The issues involved are not mere differences of philosophy; in the inner cities especially, the debate is deeply practical. Religious groups contend that moral and spiritual teaching can strengthen their efforts in prevention of teen pregnancy and drug abuse, as well as health services, tutoring and % other social services, and that such groups can perform those tasks more cheaply and humanely than government agencies.

THE LEGAL DEBATE

At the heart of the legal debate is the clashing of two constitutional principles enshrined in the First Amendment. The idea of guaranteeing "free exercise" of religion while shunning any "establishment" of religion was designed to protect liberty and keep the peace. Anyone could worship however he or she pleased, the framers said, but the government was forbidden to install a monopoly state church along the lines of the Church of England.

These were radical notions at the time, born of a commitment to moral self- improvement and an Enlightenment faith in the power of free inquiry and tolerance. The task of the Founding Fathers -- some of them quite devout, others much less so -- was to identify some vision of the common good that could be shared by citizens with very different priorities. They constructed a system of government and law in which freedom and equality were both essential, and religion was neither too close a friend nor the enemy.

During those years and beyond, churches enjoyed fairly free access to the public sphere. Before the Revolution, the Anglican church in Georgia was supported by a tax, and under the state's first constitution, only Protestants were allowed to sit in the legislature. When the Bill of Rights took effect, five of the 13 states had government-sponsored churches, and most schools were church-run. For literally centuries, until 1961, Maryland required officeholders to declare their belief in God. The problem is that as the nation's religious life grew more varied and its public life more complex, it became nearly impossible to uphold both constitutional principles -- free exercise and nonestablishment -- with equal consistency.

The modern debate over church-state separation dates back to 1947, when the Supreme Court first set strict limits on the use of state funds that benefit religious institutions or activities. Justice Hugo Black, a Baptist, wrote that neither federal nor state governments "can pass laws which aid one religion, aid all religions or prefer one religion over another." That ruling marked a sharp separationist turn in court thinking. It unleashed a torrent of litigation that continues to flood courtrooms 44 years later. And in a succession of cases, the court drew the line ever more strictly.

In the landmark 1962 case Engel v. Vitale, the high court threw out a brief nondenominational prayer composed by state officials that was recommended for use in New York State schools. "It is no part of the business of government," ruled the court, "to compose official prayers for any group of the American people to recite." The following year the court outlawed mandatory daily Bible readings in public schools.

But as the court became increasingly concerned about government support for religious expression, opponents began speaking up. It was one thing to outlaw state-written prayers, they said, but what about a moment of silence? Perhaps reading the Bible as part of a morning devotional was inappropriate, but what about recognition of extracurricular religious clubs? Justice Potter Stewart, writing in 1963, foreshadowed the debates of the 1980s and '90s when he warned that the court was hardly being neutral in its school-prayer decisions. A ban on noncoercive religious exercises in school placed religion "at an artificial and state-created disadvantage," he said.

The case that crystallized church-state separation doctrine, Lemon v. Kurtzman, came in 1971, when the court struck down Pennsylvania and Rhode Island laws that set subsidies for the salaries of parochial school teachers. Referring to earlier cases, the Justices proposed a threefold test to determine the permissibility of government activities that touched the religious realm. First, state action must have a secular purpose. Second, the primary effect of the action must neither advance nor inhibit religion. And finally, there should be no "excessive entanglement" between church and state.

In the 20 years since that ruling, the Lemon test has come under accommodationist fire. With the birth of the Moral Majority in 1979 and the political rise of the religious right, clashes over religious issues that had once been quiet and philosophical became loud and politically explosive. Then, as the composition of the Supreme Court became more conservative in the Reagan and Bush years, expectations began to rise that the accommodationists might get a more sympathetic hearing. Yet many major issues remain in dispute, such as whether voluntary prayer should be allowed in schools, whether government bodies can mount religious displays and whether public funding should be used for church-sponsored social programs.

The most pure and abstract battles remain to be fought over the use of religious symbols in the public arena -- an issue rife with irony in a country ! that stamps its coins with the words "In God We Trust." Later this year the Supreme Court will decide whether to hear an appeal from the city of Zion, Ill., which was ordered by a lower court to scrap the city seal, consisting of a ribbon with the words "God Reigns" and a shield containing a dove, sword, crown and Latin cross. The device was adopted in 1902. The city argues that the seal is mainly a historical artifact, recalling the founding of the city by the Christian Catholic Church.

THE PUBLIC SCHOOLS

The symbolic issues pale, however, compared with the heated debates about what can take place in the nation's public schools. This has always been the central battleground for church-state conflict in America. On the one hand, children are viewed as more impressionable and vulnerable to peer pressure than adults and so should be protected from anything resembling religious indoctrination.

But on the other hand, many devout parents are eager to instill in their children the moral strength that they hope will deliver them from evil, whether it is sex, drugs or secular humanism. Such families also believe that faith is central to serious intellectual activity and should not be relegated to Sunday school. So the debate over what teachers can teach, what books may be used, what songs sung, even what clothes children may wear at school strikes at the heart of many families' sense of spiritual freedom.

The content of curriculum and textbooks has been closely examined on both sides. Fundamentalists are often criticized for wanting to teach creationism or for incorporating Christian "propaganda" into history and literature classes. But they respond that the intrusions and distortions can cut both ways. One 1985 government-funded study of public school textbooks found that social-studies textbooks rarely mentioned religion at all, even when discussing events in which churches were a driving force, such as the abolition of slavery. Many books omitted the deep religious motivation of Martin Luther King Jr. Others failed to say to whom the Pilgrims gave thanks on Thanksgiving.

Over time, many schools have come to avoid mentioning religion at all, fearing that the subject was too controversial and invited lawsuits. But in recent years the balance has shifted in areas where accommodationist sentiment has grown. Two years ago, North Carolina's board of education launched a revision of the state curriculum to include religious references in classes on history, social studies and culture. Other states, such as Arizona and California, have introduced similar programs, though all have been careful to distinguish between exposing students to the history and beliefs of various religions and advocating any creed.

Strict separationists have worked not only to keep religious practices out of the classroom; they also want to prevent religious activity anywhere on school grounds. Frequently under litigation is the issue of what religious materials may be distributed on those precincts. Earlier this year, a federal judge ruled that school officials in Wauconda, Ill., could stop a junior high school student, Megan Hedges, from distributing copies of an evangelical Christian newspaper, Issues and Answers. The court agreed with school administrators who did not want to appear to endorse the publication, which includes articles with headlines like SATANISM BRED IN SECULAR SCHOOL SYSTEM.

"We're probably the most suppressed newspaper in America," says Dan Rodden, whose Caleb Campaign publishes Issues and Answers. "In the schools today there is definitely a religious and philosophical bent that is anti- Christian. Little children, by the time they're in second grade, know that God is illegal." The issue of prayer in the classroom arouses even greater passions. If public schools allow teachers to lead students in prayer, it looks very much like an endorsement of religion, and it is hard to imagine that a child would not feel pressured into joining in. Particularly in deeply religious communities, atheist and agnostic families are often afraid to protest. "In many areas no one complains when the church starts creeping into public life," says Jay Jacobson, executive director of the Arkansas affiliate of the ACLU. "We get calls at the beginning of the school year against a generic prayer at football games, but no one is willing to file an official complaint. The Bill of Rights is not self-enforcing."

The fears may not be unfounded. Two Little Axe, Okla., families that brought suit against morning prayers in school in 1981 became targets of relentless harassment. The children were repeatedly asked by teachers why they didn't believe in God, and one youngster found an upside-down cross hung on his locker. One evening while members of one of the families were at a football game, their house was fire bombed and burned down.

But on the other hand, when fifth-grader Monette Rethford, in Norman, Okla., is told that she cannot get together with other students on school property to pray or read the Bible, it looks very much like a restriction of her freedom to worship. To publicize their own fervor, tens of thousands of students gathered around their school flagpoles to pray last Sept. 11. "I don't want a government church or a teacher opening class with prayer," says Jay Sekulow of Christian Advocates Serving Evangelism, a conservative organization specializing in church-state litigation. "But the First Amendment protects individual speech, even religious speech, and even on public property."

The popular compromise proposal of recent years is a moment of silence. Douglas Laycock, associate dean of the University of Texas School of Law, who favors strict government neutrality toward religion, finds it hard to believe that it could be unconstitutional merely to tell a classroom of kids to keep quiet for a minute. He says, however, that "it's beastly hard to implement it in a fair way. Teachers do deliver messages, and the children do have understandings."

There are still other religion cases pending before the court, and in light of its recent rulings, no one can predict which way the Justices will decide. Many accommodationists were encouraged last year when the court, by an 8-to-1 vote, approved a federal law that allows voluntary student religious clubs to meet in public schools after hours on the same basis as other noncurricular student clubs.

But one of the most important religion cases in years, Employment Division, Department of Human Resources of Oregon v. Smith, confounded partisans on all sides and for once has united the forces that usually disagree on most church- state issues. Unlike the most controversial recent cases, Smith did not involve "establishment" issues, of the government getting too involved in some religious activity. Instead it focused on the free-exercise clause, which protects the right of individuals to adhere to their private religious beliefs. The case involved Alfred Smith and Galen Black, two members of the Native American Church who chewed peyote as part of their church's religious ceremonies. They were fired from their jobs as drug counselors and were refused unemployment benefits.

The challenge to the court in Smith was to decide when the government's interest in law enforcement should take priority over someone's private religious practices. The first major ruling on that issue came in 1879, when $ Mormons were forbidden to practice polygamy. One of the leading precedents was fixed in 1963 in Sherbert v. Verner, when the Supreme Court ruled that a worker who refused to work on Saturdays because it was a day of worship was still entitled to unemployment compensation. In that opinion, the court stated that government had to demonstrate a "compelling interest" in order to justify an infringement of religious liberty.

In their Smith ruling last year, the Justices could have used many rationales against accepting the use of peyote for religious reasons -- for instance, that the government has a compelling interest in keeping the workplace free of illegal drugs. But instead, by a 5-to-4 vote, they discarded precedent and decided against Smith and Black on entirely different grounds. Writing for the majority, Justice Scalia declared that "the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability.' " There was no need to use the compelling-interest test in such a situation, he said, because that would permit every person "to become a law unto himself."

For all the rifts among religious and civil-libertarian groups, this decision brought a choir of outrage singing full-voice. A whole clause of the Bill of Rights had been abolished, critics charged, and the whole concept of religious freedom was now imperiled. "On the really small and odd religious groups," said the University of Texas' Laycock, "it's just open season." The court itself was deeply split. In a spirited dissent, Justice Sandra Day O'Connor said the majority's stance "is incompatible with our nation's fundamental commitment to individual religious liberty." As a result of the uproar, Congress is considering a law to restore the compelling-interest test.

THE CHALLENGE

There is no predicting which way this court will go in a case like Lee v. Weisman. The basic split is not only between those who want to accommodate religion and government and those who want to keep the two separate. There is also a split on the court between those who defer to the government and those who continue to emphasize individual liberty.

If the court's conservative majority is taking its cues from the Bush Administration, it promises to go much further to usher in a new era of accommodation. Solicitor General Kenneth Starr argued the Administration's position in the Lee case. He maintained that the government promotion of + religion through civic ceremonies does not violate the Constitution if coercion is not involved. Students who did not want to pray at graduation, Starr implied, could sit without joining in prayer or skip the exercises.

If the Supreme Court agrees with that position and decides to apply it across the board, the new test of the separation of church and state would not consider whether an action favors religion or whether it entangles church and state but rather whether it forces people to join in expressions of a religious belief. The implications of such a change are radical and would call into question hundreds of settled cases. "This will tear the country and each county apart," says Seventh-Day Adventist Boothby. "The unfortunate result would be to create more religious controversy, discontent and disharmony." Says Laycock: "All sorts of astonishing things become O.K. The Constitution then means a lot less than we've thought." Theoretically, Congress could decide, for example, that it would pay the salaries of preferred members of the clergy. Even less outrageous consequences, such as requiring that all public functions begin with a nondenominational prayer, could be highly divisive.

A country already wrestling with a new tribalism, with racial tensions and cultural clashes that set language and law on edge, cannot afford to slip further into religious contention. Some yardstick of moderation, and perhaps a measure of common sense, is necessary. What is too often missing from all the talk of religious and secular rights is any mention of mutual respect. When people claim the right to pray or not to pray, to worship or not to worship, as they choose, they must also respect the right of others to choose differently. For government to arbitrate in such intensely personal matters invites insurrection; but if the court and the Congress decide to distance themselves from religious disputes, they must also keep the playing field level.

For God to be kept out of the classroom or out of America's public debate by nervous school administrators or overcautious politicians serves no one's interests. That restriction prevents people from drawing on this country's rich and diverse religious heritage for guidance, and it degrades the nation's moral discourse by placing a whole realm of theological reasoning out of bounds. The price of that sort of quarantine, at a time of moral dislocation, is -- and has been -- far too high. The courts need to find a better balance between separation and accommodation -- and Americans need to respect the new religious freedom they would gain as a result.

With reporting by David Aikman/Washington and Richard N. Ostling/New York