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February 9, 2001/Shevet 16, 5761, Vol. 53, No.19
Think tank struggles with 'establishment'
BARRY COHEN
Community Editor
Define "establishment clause." Explain "free exercise of religion." Determine whether increased religion in public life threatens the rights and security of Jews in the United States.
Approximately 60 participants at the American Jewish Committee's "think tank" on the separation of church and state wrestled with First Amendment vocabulary and issues. The Feb. 4 event at the University Club in Phoenix was moderated by Allen Feinstein, a lawyer and AJC past president.
Professor Paul Bender of the Arizona State University Law School gave the keynote address, providing constitutional background on the issues surrounding church-state separation.
Free exercise of religion is best understood in two parts, said Bender: "One, that government in this country shall not make any law about the establishment of religion, and second, that governments in states cannot prohibit the free exercise of religion."
Past U.S. Supreme Courts have attempted to deal with religion as a "private matter," excluding government interference, he explained. At issue, he said, is whether religion can be viewed through this lens.
"In a country where, increasingly, government and people's private conduct intersect - for example, in schools because most schools are government-run - it's not so easy figuring out how the general purpose of making religion a private matter should be vindicated."
Among complicating factors is when the U.S. Congress or a state legislature passes a law restricting the free expression of religion. One example is a law in Oregon making the use of peyote illegal. Despite the law, some Native Americans in Oregon continue to use peyote in worship services.
Bender said resolving civil law with the free exercise of religion is no easy matter.
Even when government "does not target a religion, does not act for the purpose of preventing the free exercise of religion, its laws may have the incidental effect of prohibiting what people consider to be the exercise of their religion," he said.
Bender also offered a definition of "establishment clause." A literal interpretation, he said, is that government is forbidden to establish an official state- sponsored religion. But even U.S. Supreme Courts have not always agreed on what "establishment" means.
Bender also said it is unclear whether prayer in school, including at football games and graduation ceremonies, represents the establishment of religion. What complicates the definition is whether worship led by teachers or students represents the "establishment" of religion.
"Everybody agrees, (the establishment clause is) a complete theoretical mess and in a state of transition," added Bender.
The Supreme Court has attempted to use the Lemon Test, based on a 1971 U.S. Supreme Court ruling in the case of Lemon v. Kurtzman, to determine whether a piece of legislation violates the separation of church and state, Bender said. If the answer to any one of these three questions is "yes," then the legislation is unconstitutional:
Is the purpose of the legislation's program to aid religion?
Is the principal effect of the legislation to aid religion?
Is there too much entanglement between religion and the federal government?
Bender said the Lemon Test does not sufficiently determine the constitutionality of two of President George W. Bush's proposed programs - school vouchers and subsidies to religious institutions providing social services.
The current Supreme Court agrees that the test is no longer effective in determining whether legislation violates the separation of church and state, Bender said. "The problem is that no five members of the court ... have been able to agree on what the right approach is."
Bender gave the think-tank participants an "assignment" to succeed where the Supreme Court has failed - to provide a means of clarifying when increased religion in public life violates the separation of church and state. Participants broke into eight groups, each with an internal reporter who recorded the line of discussion, and conferred on such questions as:
¥ Is there a movement to transform the United States into a Christian nation and thereby remove the separation of church and state?
¥ As Jews, should we be vigilant to keep religion out of public life, public forums, political events and public schools?
¥ Does the concept of school vouchers threaten the separation of church and state?
¥ Would direct government subsidies to religious institutions for charitable social service programs undermine the separation of church and state?"
After 40 minutes of discussion, the groups reconvened, and the reporters presented their conclusions.
For American Jews, separation of church and state is a value in itself and from our perspective, often ends arguments over the merit of legislation - like President Bush's proposed vouchers - that enters the religious realm, said Sam Coppersmith, Valley attorney and former congressman. But we need to realize that people of other groups, religions and cultures do not always think in these terms, he said. Instead, he added, Jews need to ask them whether encroaching on the separation is "good for America or not."
With regards to vigilance in keeping religion out of public life, group reporter Paul Steen said, we should be on guard, "but pick our battles."
Andrea Sutter-Feinberg, another group reporter, said that her group believed school vouchers would take money from public schools and punish schools that need it most. Vouchers alone will not cover costs for poor children to attend private schools, she said.
"Because (the vouchers are) only $1,500, (they) are really a subsidy for the wealthy," Steen noted. For this reason, the president is beginning to reformulate his original idea into "tutor vouchers," to cover fees for students to have tutors, he added.
Coppersmith said it is difficult to label Bush's efforts to increase government subsidies to faith-based institutions a violation of the separation of church and state. According to Coppersmith, there is already a lot of government involvement in institutions that have a religious component, such as Catholic Social Services, Jewish Family and Children's Service and the Salvation Army, all three of which currently receive federal funds.
The think tank "gave people a chance to express their thoughts, to wrestle with issues they may not have had a chance to put in focus before, and to recognize they do have the possibility of an impact on the direction of the country they live in," said Rabbi Robert Kravitz, executive director of the AJC area office.
He said it is difficult to predict what form President Bush's school voucher plan will take or whether his program to increase subsidies to faith-based institutions will become law.
"More than likely, wisdom of centrists will take hold, and that will be the best direction for our country, to eliminate the radicals on the left side and radicals on the right side," Kravitz said.
In Bender's wrap-up, he stressed the difficulty of determining criteria for religion to enter public life and yet not violate the separation between church and state.
"These battles are going to be fought, I think, on a pragmatic basis. I don't think the court is going to step in very often and reverse what the democratic system does," he said. The Supreme Court is not going to put many restrictions on legislatures from mixing religion and public life, he added.
Bender said he does not believe the current increase of religion in the public life represents a "slippery slope," or that the separation between church and state will continue to be eroded.
"I think we go through a cyclical process, and ... right now there seems to be a more visible presence of religion and religious statements in public life," said Bender. "I guess I think ... that it's going to change, and the pendulum will swing the other way."
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