Monday, May 3, 2010

The Framers' Prayer for Religious Accommodation

      Many Americans will gather in Washington and state capitals on Thursday [May 6] to observe the National Day of Prayer. Millions of others will take no notice of this 58-year-old tradition. But some number will take quiet offense that federal and state governments are lending their support to a religious practice in which they conscientiously do not believe.
      Those in that relative minority are drawing encouragement from a ruling by a federal judge in Wisconsin last month [April 15] that the annual presidential proclamation of a national day of prayer, pursuant to a 1988 law, is unconstitutional.
      The 1988 law, senior U.S. District Court Judge Barbara Crabb wrote in the 66-page ruling, “does not serve any purpose for the government or the country as a whole, but simply facilitates the religious activities of particular religious groups.”
      Crabb’s ruling in Freedom From Religion Foundation v. Obama came two weeks before the U.S. Supreme Court turned a blind eye to another arguable violation of the First Amendment’s prohibition against an establishment of religion. By a 5-4 vote, the justices decided that federal courts in California had been wrong to block a congressionally mandated plan aimed at maintaining a lone Christian cross as a World War I memorial on what is now public land within the Mojave National Preserve.
      Try as they might, courts cannot escape entanglement in church-state disputes. The reason is simple: religious groups, like other interest groups in this pluralistic democracy, seek to enlist the government’s support for their purposes. And, so, believers — and, in particular, the Christian majorities — press for recognition, support, and tangible assistance from governments at the local, state and national levels.
      Courts are called on to police the boundaries that the framers wrote into the Bill of Rights more than two centuries ago. Congress — and later the states — were prohibited from enacting any law “respecting an establishment of religion” or “prohibiting the free exercise thereof.” Together, it was thought, the two religion clauses would safeguard religious freedom in the new republic.
      The Free Exercise Clause has served the country well. Most of the free-exercise cases decided by courts have involved laws with incidental impact on religious practices or beliefs. Only rarely have laws been passed specifically aimed at preventing people from practicing their religions as they saw fit.
      The Establishment Clause has proven more difficult to apply. The Supreme Court’s first modern-day encounter, in a 1948 decision, adopted the metaphor of a strict “wall of separation between church and state.” But the ruling upheld government-provided bus transportation for parochial school students.
      The high court became stricter in policing that wall in the 1960s with the controversial decisions that banned organized prayer or Bible reading in public schools. In 1985, the court — in an opinion by Justice John Paul Stevens — struck down Alabama's “moment of silence” law for schools on the ground that it was explicitly written to encourage prayer in the classroom.
      The court became more lenient of government support for religion in several decisions under former Chief Justice William H. Rehnquist that culminated in the 5-4 ruling in 2002 upholding the constitutionality of school vouchers even though they overwhelmingly benefited students in Catholic schools. Now, under Chief Justice John G. Roberts Jr., the trend appears to be continuing.
      Roberts helped form the majority in the new decision, Salazar v. Buono, that blinked at the evident sectarian purpose of erecting a Christian cross as a memorial to the fallen servicemen of World War I. The cross, Justice Anthony M. Kennedy wrote in the main opinion, was “not merely a reaffirmation of Christian beliefs,” but also “a symbol” used to “honor and respect” the nation’s heroes. Reading the opinion naturally brought to mind the exchange during oral argument when the plaintiff’s lawyer noted to Justice Antonin Scalia that there are no crosses on Jewish gravestones.
      The organizers of the National Day of Prayer appear to be equally blind to the national ideal of religious freedom and religious diversity. The official Web site for the observance repeatedly invokes Jesus’ name and cites almost exclusively to the Christian New Testament. The site pays not even lip service to the notion of a “Judeo-Christian” tradition, much less to the growing number of Americans who practice other religions or none at all.
      In the desert cross case, Justice Samuel A. Alito Jr. endorsed Congress’s solution to the supposed dilemma: transfer the land to the Veterans of Foreign Wars so that it could maintain the cross, still designated as a national memorial for the World War I dead. That solution, Alito said, was faithful to “the spirit of practical accommodation that has made the United States a Nation of unparalleled pluralism and religious tolerance.”
      In fact, the framers devised a very practical accommodation two centuries ago: freedom for religious practice plus freedom from government-established religion. Contrary to Alito, courts that do not maintain separation between church and state promote neither religious pluralism nor tolerance.
      In her ruling, Judge Crabb saw no “accommodation” in the officially proclaimed day of prayer. The law, she said, was “taking sides on a matter of religious belief.” Better, she suggested, would be to celebrate a National Day of Religious Freedom. With or without an official proclamation, that tradition merits celebration and reaffirmation, every day of the year.

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