Old church-state debates likely to continue in new year

Sunday, January 5, 2003

After a tumultuous year of church-state court battles and policy debates, most Americans probably begin 2003 with more questions than answers about the future of religious liberty in America.

In the legal upheavals of 2002, there was something for people on all sides to celebrate — and something to bemoan. If you advocate a high “wall of separation,” you cheered the court order that will require Alabama Chief Justice Roy Moore to remove his Ten Commandments’ monument from the state Supreme Court building. But if you believe that “separation” has gone too far, you were no doubt heartened by the U.S. Supreme Court’s decision upholding the constitutionality of school vouchers.

What does all of this mean for religious freedom? Let’s start the new year by sorting through some of the big religious-liberty stories of the past year and see what’s important and what’s not. Here are my nominees for the most significant, most underrated and most overblown religious-liberty stories of 2002 — plus an “under the radar” story that bears watching.

Most significant: With the school voucher decision, the Supreme Court opened the door for all kinds of government money to flow (however indirectly) toward religious institutions. Not only does this ruling have the potential to change the face of education in the United States, it also will pave the way for implementation of the Bush administration’s “faith-based initiative” — or at least the parts that propose “indirect” government funding for social services provided by religious groups.

On the education front, the Court’s decision pushes the voucher debate into the political arena. If vouchers win broad public support, millions of children now in public schools may soon be attending religious schools of all varieties. Among other things, this will mean that religious groups may face new government restrictions tied to government funds. And it will surely mean radical changes in public education — whether for better or for worse, no one can really say.

As the voucher battles heat up around the country, both public schools and religious communities will face tough choices. The outcome will have major implications for how Americans are educated — and how we live with one another — in the 21st century.

Most underrated: You probably missed it, but last month President Bush issued an executive order that actually implemented many elements of his faith-based initiative. Apparently weary of waiting for Congress to act, the president ordered various Cabinet agencies to clear the way for religious groups to receive federal funds for their social-service programs.

Critics of the Bush plan charge that it will open the door to direct government funding of programs that are religious in nature and discriminate in hiring — violations, they say, of the First Amendment and civil rights laws respectively. The administration counters that its only goal is to create a level playing field so that religious groups get equal treatment in the competition for government funds. Expect long and bitter court battles in 2003.

Most overblown: When a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled the words “under God” in the Pledge of Allegiance unconstitutional, most legal observers agreed that it would eventually be overturned (since it flies in the face of Supreme Court precedents). But that didn’t stop some in the news media, almost all members of Congress and advocacy groups from doing everything possible to whip up public outrage bordering on hysteria. Any hope for a reasoned debate about the pros and cons of what the courts have dubbed “ceremonial deism” was lost in the media hype. Is that really the best we can do?

Under the radar: Few Americans noticed (and the media shrugged) when Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) — prohibiting the government from restricting religious freedom without showing a compelling state interest (in cases covered by the act). But this little-known piece of legislation is proving to be a powerful tool in defense of freedom of religion.

RLUIPA was successfully invoked in 2002 in a surprising number of cases involving zoning fights and prisoners’ rights. Last May, for example, a church in Illinois won a settlement that changed a local zoning ordinance to treat churches and other places of worship on an equal basis with non-religious groups. And late last month an appeals court upheld the constitutionality of RLUIPA, allowing a lawsuit by Muslim prisoners to go forward. (The inmates claim that they were penalized for attending Friday religious services.) For advocates of strong “free exercise” protection, RLUIPA is good news indeed.

What does all of this say about religious liberty in America (beyond the fact that litigation has become the national pastime)? Without drawing grand conclusions, I’ll venture this much: Americans on all sides of these church-state fights take religious freedom very seriously. Yes, we argue endlessly about how high or low that “wall” should be. But the majority of us don’t want the government involved in religion. And yes, we debate vigorously about where to “draw the line” on free exercise of religion. But most of us are committed to guarding the right of every person to choose in matters of faith.

If recent history is any guide, it’s easy to predict that Americans will have as many, if not more, church-state arguments and legal battles in 2003 as we did in 2002. But as long as the underlying principles of “no establishment” and “free exercise” embedded in the First Amendment enjoy wide support, the American experiment will not only survive these debates — it will flourish.

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