Summer 2002, Vol. 5, No. 2

Table of Contents
Summer 2002

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Articles in this issue

Church State Entanglement

Vouching Towards Bethlehem

The Real Man Without a Country

A Canterbury Tale

Kashmiri Muslims Caught in the Middle

Church State Entanglement
by Mark Silk

Over the past year, current events and court decisions have shoved the tectonic plates of religion and public life closer together.

September 11 reinvigorated American civil religion. The association of God and country never fares so well as in wartime, or during a reasonable facsimile of war. Long after the patriotic prayer services ended, billboards proclaiming "United We Stand God Bless America" still dot the countryside.

As if to test the proposition, a three-judge panel of the Ninth Circuit Court of Appeals decided that Congress unconstitutionally established religion when it inserted "under God" in the Pledge of Allegiance in 1954. From the halls of Congress and the thrones of punditry to the coffee shops and water coolers of the land, an outraged nation raised its voice in condemnation. Without skipping a beat, the panel put its ruling on hold pending what was universally expected to be a reversal by a higher authority.

For all the commotion, "under God" was small potatoes compared to the U.S. Supreme Court’s decision to uphold the constitutionality of Cleveland’s public school voucher program. In a rebuke to decades of First Amendment law, the Court permitted private sectarian schools to be underwritten with public money, provided the parents of eligible children make that choice.

Will vouchers prevail, and if so where and how and under what conditions? In its 1990 Smith decision, the Court stepped back from protecting the free exercise of religion, leaving legislatures more latitude to determine whether or not to provide religious exemptions from government rules and regulations. Zelman, the voucher decision, does the same for the Establishment Clause; voters and legislators are now much freer to permit religious bodies to conduct the public’s business.

But as Douglas Laycock points out in these pages, there’s a lot of rough terrain for voucher proponents to traverse before they reach their Promised Land. Hints of the difficulty can be found in President Bush’s initiative to make it easier for religious organizations to obtain government funding for social services—Charitable Choice. While public support for the idea is considerable, the legislation ground to a halt when Democratic senators refused to allow "faith-based" providers to practice job discrimination when federal funds are involved.

This was not merely a strategy of obstruction. Last year 78 percent of respondents told the Pew Religion and Public Life Survey that religious organizations which use public money to provide social services should not be allowed to limit their hiring to those who share their religious beliefs. The insistence of some evangelical Protestant activists that Charitable Choice won’t work unless they can hire their own kind doesn’t, it seems, wash with the public. Religious institutions can contract to serve the public weal, but not in any way they like.

Even when public money is not at stake, Americans are prepared to demand that religious institutions meet secular standards. Nowhere is this more evident than in the current sexual abuse scandal in the Catholic Church. Below, Dennis Hoover shows how in one legal arena after another, legislators, district attorneys, and judges are doing away with the special treatment the church has traditionally received de jure and de facto.

To be sure, this is just the latest round in a very old contest. Nine centuries ago, the archbishop of Canterbury, Thomas Becket, and King Henry II went toe to toe over whose courts should deal with clergy accused of crimes. For refusing to back off, Becket was assassinated in his cathedral by the king’s agents. In the aftermath, Henry was forced to grant first-time clerical offenders immunity from lay punishment.

In the year 2002, Vatican officials plainly think that the American branch of the church is too subject to the policies and procedures of the American legal system, and that view is doubtless shared by the hierarchy in the United States. But the American Catholic laity feels otherwise, even as it lays claim to the kind of authority within the church that the laity of most other American religious bodies take for granted. What opponents once called the Americanist heresy is back in force.

The democratization of religion is as much a hallmark of American religious history as the separation of church and state. The difference this time around is that it is the process of determining the extent of the separation that is being democratized.

Under the Supreme Court’s nearly moribund "Lemon Test," a government action is constitutional if it has a secular purpose, neither promotes nor inhibits religion, and avoids "excessive entanglement" with religion. For better or worse, religion and government are becoming increasingly entangled—whether excessively so will be up to the people to decide.

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