August 22, 2004
Chipping Away at the Wall
By DAHLIA LITHWICK
80 years ago in Dayton, Tenn., an epic trial pitted the literal truth
of the Bible against modern science. And when the Scopes monkey trial
concluded, the presiding judge closed the proceedings as he'd opened them
each day - with a prayer.
In his wonderful book, "Summer for the Gods," Edward J. Larson paints
a picture of America in the mid-1920's that's oddly familiar: torn between
modernism and religious fundamentalism, Americans felt an old-time burning
need for a burning bush. Horrified by the moral and cultural declines
of the Jazz Age, they turned away from internationalism and intellectualism.
Welcome to 2004 and "Summer for the Gods Part 2: Revenge of the Public
Officials." In a new wave of religious fervor, we resent that secular
courts have chased God out of the public square. Again we want public
institutions to carry water for our churches. And again, public officials
happily flout the law to advance personal religious agendas. Consider:
In Horry County, N.C., last week, local officials opened their council
meeting with a prayer to Jesus, despite the fact that the United States
Court of Appeals for the Fourth Circuit had ruled the practice unconstitutional.
"This is a nation that gives us great freedoms: freedom of religion, not
freedom from religion," said the council chairwoman.
A Republican congressman called for a civil rights investigation last
week, after the University of North Carolina at Chapel Hill declined to
recognize a Christian fraternity for refusing to accept non-Christian
members. Every other student group on campus is held to the university's
nondiscrimination policy. The basis of the complaint: Such policies discriminate
against Christians' right to religious freedom and association.
During the recent confirmation hearing of a federal judge, J. Leon Holmes,
several senators - concerned by his religious writings - questioned whether
his extreme views would prevent him from applying existing civil rights
and abortion law. Holmes's supporters countered that the Senate is anti-Christian,
that federal judges cannot constitutionally be subject to "litmus tests."
The Defense Department confirmed last week that a senior military intelligence
official violated internal rules by giving speeches, mostly at Baptist
or Pentecostal churches, in which he said that America is a "Christian
nation," depicted President
Bush as having been anointed by God, and described the war on terror as
a battle against "Satan."
Add these incidents to the national furor over the amputation of "God"
from the Pledge of Allegiance, and the president's decision to hobble
stem cell research for religious reasons, and it's clear there is a growing
wave of public officials convinced that their own, personal religious
freedom renders the notion of a wall between church and state personally
offensive and legally irrelevant.
The twin religious protections enshrined in the First Amendment - that
one can freely exercise one's religion, and that the government cannot
establish a state religion - are forced onto a collision course when public
officials insist their personal religious freedom allows them to promote
sectarian views in office. Yet with ever-increasing shrillness, we hear
from elected or appointed officials that it's religious persecution to
ask them to suspend sectarian prayer or practices on the bench, in the
legislature or at the schoolhouse gate.
To be sure, the courts have made a hash of the First Amendment religion
jurisprudence. A crèche on government property is constitutional so long
as the manger includes a Malibu Barbie; and state aid to religious schools
is constitutional if it's triangulated through the alchemy of parental
choice. But the courts have not backed down from the principle that imposing
sectarian religion in the public square violates the Constitution. Religious
Americans have every right to insist they shouldn't have to be religious
in the closet. But that doesn't give public officials some free-floating
constitutional right to exercise their religion at the expense of everyone
they ostensibly serve.
At the end of the monkey trial, H. L. Mencken wrote that Tennessee had
seen "its courts converted into camp meetings and its Bill of Rights made
a mock of by its sworn officers of the law." We are there again. Maybe
the judge and the jury were right to convict Mr. Scopes for teaching something
so absurd as Darwinism. We haven't evolved one bit.
2004 The New York Times Company