The Great Freedoms

By Richard N. Ostling

A government agency may legally lend geography books containing maps to religious day schools but may not lend maps alone or films on geography. It may bus students from their homes to such schools but not from the schools to museums. It may diagnose speech or hearing problems on the schools' premises, but subsequent therapy must occur elsewhere if public money is involved.

The U.S. Supreme Court has drawn some confusing borders between church and state, basing its decisions on a fervently disputed phrase in the Constitution: "Congress shall make no law respecting an establishment of religion." As interpreted by the high court, those words forbid incidental aid to parochial schools and religious agencies, posting the Ten Commandments in public classrooms or, in a decision two weeks ago, laws that require teaching "creation science" alongside evolution. Citing the establishment clause, the pro-choice Abortion Rights Mobilization hopes the courts will force the Roman Catholic Church to stop pro-life politicking or lose its tax exemption.

Another phrase in the First Amendment protects religion's "free exercise." Though the circumstances that would justify limiting that freedom are sharply contested, there is a broad understanding of the concept. There is no consensus, however, on what establishment of religion is or what it signified to the Founding Fathers. Law Professor A.E. Dick Howard of the University of Virginia says the Supreme Court has had difficulty forming "a consistent, plausible, steadfast interpretation" of establishment. More bluntly, former U.S. Solicitor General Rex Lee snaps, "The law's a mess."

The resignation last week of Supreme Court Justice Lewis Powell, a moderate, throws open the possibility of a new examination of the "mess." Justices William Rehnquist, Sandra Day O'Connor and Byron White have indicated a willingness to lower some church-state barriers, and Antonin Scalia, a conservative who joined the court last year, dissented from overturning a Louisiana law that required equal school treatment for creation science, deeming the court's work on the establishment clause "embarrassing." Powell's replacement, who will become President Reagan's third court appointment, may create a new 5-4 majority favoring a less rigid approach in some church-state cases.

A growing challenge to separation comes from "accommodationist" thinkers, who contend that the Government should recognize religion's role in society without favoring any one faith. A prime exponent is Rehnquist. In a blistering 1985 dissent (before he became Chief Justice), he declared that the Supreme Court's implementation of strict separation for the past 40 years has "no historical foundation." Similar points are made by Reagan Cabinet Members Edwin Meese and William Bennett, by conservative Protestants and, more mildly, by Roman Catholic leaders.

On the opposite side stand "separationists," who adhere to Thomas Jefferson's famous metaphor that the Constitution built a "wall of separation between church and state" and who embrace most of the Supreme Court's establishment rulings. Exponents include many Jewish lobbies and the National Council of Churches. The 14.6 million-member Southern Baptist Convention, the country's largest Protestant body, deeply split on the issue, is represented in Washington by the proseparation Baptist Joint Committee on Public Affairs. Its leader, the Rev. James Dunn, says true faith is cheapened by "proclamation of God as the national mascot."

The Supreme Court's policy of near strict separation was laid out in a 1947 case, the first to apply the establishment clause to the states. The court declared neither federal nor local governments "can pass laws which aid one religion, aid all religions, or prefer one religion over another." In addition, no tax money should support "any religious activities or institutions." In 1971 the court developed a new threefold test: laws must avoid "excessive government entanglement with religion," have a "principal" effect "that neither advances nor inhibits religion," and have a "secular" purpose. Last week the high court decided that this test is not violated by a law that permits the Mormon Church to discriminate religiously to fill nonreligious jobs.

To accommodationists, the interpretations since 1947 have been based on a skewed reading of history. The late Justice Potter Stewart, for example, contended that in 1789-91 Congress and those states that ratified the Bill of Rights intended merely to prevent the establishment of a single national religion and keep the Federal Government from interfering with the established churches in various states. Accommodationists delight in noting that Jefferson allowed the Bible and a hymnal to be used to teach reading when he headed the District of Columbia school board, and that he signed a treaty in which the U.S. Government paid a Catholic missionary's salary and built churches for Indians. James Madison, who drafted the religion clauses of the Bill of Rights, issued prayer proclamations when he was President and sat on the committee that recommended chaplains for Congress. More recently, a meditation room was provided for Congress.

Most of the considerable emotion that surrounds the establishment clause concerns education -- aid to schools with religious sponsorship and the treatment of religion in public schools. In 1985 the Supreme Court threw out a law authorizing a "moment of silence" in Alabama's public classrooms because the state law specified that the purpose was to set aside time to pray. The court hinted broadly that it might accept a nearly identical law if the measure did not narrow the purpose so plainly. Such a law is currently under challenge in New Jersey.

The Supreme Court used the establishment clause in 1968 to overturn an Arkansas law prohibiting the teaching of evolution, as well as the equal- treatment law in Louisiana. Using a reverse twist on the establishment idea, Federal Judge W. Brevard Hand last March alarmed many educators by banning 45 textbooks used in Alabama because they established "secular humanism" by giving inadequate treatment to religion and moral absolutes. Hand's ruling is now on appeal, but his contention is nothing new. In the famous 1963 establishment ruling against school prayers and Bible reading, the dissent by Justice Stewart argued that removal of religion from public schools amounts to the "establishment of a religion of secularism."

Many of those seeking a new church-state approach agree with Justice Rehnquist that nothing in the establishment clause requires government to be strictly neutral "between religion and irreligion." To Justice O'Connor, the test is that government activity should not communicate a message of either "endorsement or disapproval of religion."

Favoring public aid to religious agencies on similar lines, the Rev. Richard John Neuhaus, a neoconservative Lutheran, insists that "if a legitimate public purpose is being advanced, it doesn't make a difference under what auspices it is advanced." Catholics strongly agree. Mark Chopko, chief staff lawyer for the U.S. Catholic hierarchy, is upset at a D.C. district-court decision against federal grants to religious agencies to help stem teenage pregnancies and at a new federal proposal to eliminate grants to churches for aiding the homeless.

An influential proposal comes from Jesse Choper, law-school dean at the University of California, Berkeley. He sees both the establishment clause and the free-exercise clause rooted in religious freedom, so that "establishment" should not limit free exercise. Choper says the governing principle in matters of belief should be the "freedom not to be coerced." Congress employed this concept in the Equal Access Law, which favors the free- exercise right of public school students to organize voluntary religious meetings on school premises, overruling claims that this creates an "establishment."

There is always a danger in legal tinkering with the religion clauses. One of the few notions that all factions affirm is that the free-market religion of America, cut off from Government sponsorship and repression alike, remains far more vital than the senescent established churches of Europe. For this reason, everyone from Fundamentalists to freethinkers has a stake in building at least fences, if not high walls, between church and state.

With reporting by Anne Constable/Washington and Michael P. Harris/New York