Jewish World Review June 23, 2000 /20 Sivan, 5760
http://www.jewishworldreview.com -- HARD CASES, it has been observed, make bad law, and the Supreme Court of the United States has just made some.
One of the most difficult challenges in a society as diverse, as changeable and as religious as this one, is to demarcate the essential but serpentine wall of separation between church and state. And once again, the court has moved that wall, perhaps only slightly in this case, but ominously for the cases to come.
By declaring what may prove a blanket ban on public prayer at school functions, a majority of the justices seem out to wall off not just church from state, but American society from any public expression of religion. This decision about a matter as mundane as a high-school football game has some sweeping overtones.
Lest we forget, it is the sacralization of the mundane, of ordinary life, that marks the religious impulse in the human species. Yet the court seems determined to confine that impulse to an ever more narrow sphere, as if it were declaring not a law, but a quarantine.
To quote the chilling new dictum from John Paul Stevens' decision for the majority: "Worship is a responsibility and a choice committed to the private sphere.'' He makes it sound as if the court were out not just to separate religious expression, but to ghettoize it.
To quote one of the three dissenters from Monday's majority opinion, Chief Justice William Rehnquist, the majority's opinion is not just neutral on the subject of religion, but hostile. Note the language of Mr. Justice Stevens' opinion for the majority, in which he warns that prayer can be "a personally offensive religious ritual.'' Is that what hearing somebody else pray has become in our oh-so-ecumenical society? Let's hope not. Let's hope we're all more tolerant than that.
Till now, the court has kept an understandable -- and wholesome -- principle in mind as it dealt with religious expression in school: The state may not impose prayers on schoolchildren -- whether it is acting through teachers, principals or visiting clergymen who check out their message with the front office. But students themselves, consistent with good order, might express their religious convictions as freely as they do other beliefs.
But now students in the public schools are told that they may not witness to their faith if that means letting them have the microphone -- no matter how freely or fairly or fully the chance to speak out may be offered. In this case from Texas, the students' elected representatives were allowed to give a "message or invocation'' before the game. The only limit on their freedom of speech was that their words promote good citizenship and good sportsmanship.
It would not have been disturbing if the court had decided that this particular policy was a sham, that it was just a way to establish a specific religion or maybe religion in general by using a legal cover. But the majority opinion seems to rule out all student-led expressions of religious belief, no matter how fairly regulated. In its zeal to ward off any establishment of religion in this country, the court seems to have overlooked the rest of the First Amendment, including freedom of religion and freedom of speech.
For if prayers cannot be said before a football game, what about at a high-school honors assembly, or during a graduation ceremony, or at school board meetings that students may attend? Will we ban public prayer on all those occasions, too? That way lies not tolerance for others' beliefs, but intolerance. (If the court were really interested in banning an establishment of religion, it would have banned high-school football itself, which may be as close to an established religion as some states come.)
It is the mark of the mediocre mind that it can hold but one idea at a time, rather than tolerate different, often conflicting principles.
Surely we all understand by now that it was wrong for the state to require the children of The Witnesses to swear allegiance to the flag of the United States and violate one of the tenets of their faith. But does that mean the rest of our children should not swear allegiance to the flag, too, lest The Witnesses feel uncomfortable, like outsiders? And does swearing allegiance to one nation under G-d constitute a prayer? (There was always something troubling about inserting a religious test into the pledge of allegiance.)
Once again, in its search for clarity, the court invites confusion. That's what happens when law chooses abstract logic over common sense and local custom, an empty uniformity over a rich diversity of beliefs. In a long series of decisions by now, the court seems to be telling students that they may express any opinions in school except religious ones.
While tolerating the minority, shouldn't the majority be able to expect that its expressions of belief be tolerated, too? Or do we now demand diversity in all things except religious belief, where only an empty, sterile, state-approved vacuum is to be allowed?
This single decision Monday would seem to be part of a long slide toward a European separation of the civil from the religious -- a separation that has weakened both and created two different, often irreconcilable ways of life.
In contrast, the American separation of church and state -- but not religion from public life -- seems to have strengthened both. Here no government has been so foolish to think it could ban the kind of religious expression that has permeated American society at least since the Pilgrims.
It has been a long and uncertain process by which state has been separated from church in these United States -- without confining the religious spirit or its expression. But in this decision, the Supreme Court seems to have chosen sides between church and state, rather than finding a way to live with their competing claims.
There is still time for the Supreme Court to think again as other cases make their way to its
attention, as controversies inevitably will in a free and, indeed, fluid society. One hopes the court will
yet show greater tolerance for religion. But for now, it has spoken all too simply and clearly on
behalf of the almighty state: Thou shalt have no other gods before