AMERICANS are still trying to sort out the particulars of separation of church and state. This Jeffersonian concept is unique to a system that is based on religious tolerance and the acceptance of a range of beliefs and creeds. The First Amendment forbids the state to establish religion, meddle in church affairs, or to prefer one sectarian group - or none at all. It also guarantees the right to practice what is preached.
In recent years, however, controversy has arisen over how absolute these protections are.
Is prayer in the schools an invasion of individual rights or a proper part of a learning experience? Is the use of Christmas symbols in a public display or on government grounds a preference of Christians over non-Christians? Is public aid to church-run institutions a violation of the principle of separation of church and state? And should state interests prevail over religious rights in the care of children or the use of Indians' hallowed ground?
The public and the courts are deeply divided over the answers to these questions. Both are concerned about barring religious values from the public sector, but are also ambivalent over the absolute freedom to exercise religious beliefs, particularly as they relate to children.
Recent cases point up the lack of consensus among the judiciary on church and state matters.
Cr`eche controversies have come to the courts for over a decade. Until now, the United States Supreme Court has applied an endorsement test to most cases involving the use of Christmas displays on public property. The high court appears to be saying that a Nativity scene - by itself - on public land is not permissable because it endorses Christianity over other beliefs or non-belief. The justices, however, have less trouble allowing a cr`eche on government property that includes secular symbols or non-Christian artifacts along with Christian ones.
Witness recent rulings in a pair of Pittsburgh area cases: The court - by a 5 to 4 margin - struck down the right of local officials to erect a Nativity scene inside the main entrance to a county courthouse. At the same time, it voted 6 to 3 to uphold the placement of a publicly sponsored Hanuka menorah next to a Christmas tree in front of the city-county building a block away from the cr`eche.
Associate Justice Harry A. Blackmun explained that the former constituted an impermissible endorsement of the Christian religion. The latter, in contrast, he said, ``... must be understood as conveying the city's secular recognition of different traditions for celebrating the winter-holiday season.''
Justice Blackmun is part of what is now a minority moderate-liberal coalition on the US Supreme Court, which is desperately trying to maintain the Jeffersonian ``wall of separation'' between church and state. To do so, they must win over a fifth vote in borderline cases, such as the cr`eche matter. This time it was Associate Justice Sandra Day O'Connor who provided the margin of victory for the separatists.
Justice O'Connor wrote: ``If government is to be neutral in matters of religion,'' it ``cannot endorse the religious practices and beliefs of some citizens without sending a clear message to nonadherents that they are outsiders or less than full members of the political community.''
Justice Anthony M. Kennedy, on the other hand, rejected the endorsement standard, suggesting that the real test is whether a government-approved display was intended to coerce people or was ``an obvious effort to proselytize on behalf of a particular religion.'' Kennedy's position is that barring government sponsorship of the cr`eche shows an ``unjustified hostility toward religion.''
The latter rationale may ultimately win the day as the high court adds to its conservative majority.
In a broad context, Justices O'Connor and Kennedy are both right. Government should neither endorse religion nor be hostile to it. The courts need to take note of this not only in establishment clause cases, but also in free exercise matters.
Current litigation, now in the legal pipeline, deals with the right of parents to use spiritual prayer for the care and comfort of their children. Some who have lost children not under medical treatment have been indicted, even convicted, on felony charges.
The lives of many youngsters, as well as adults, have been saved through the power of prayer. A continued trend to prosecute parents who rely on spiritual means and who have been anything but abusive and neglectful in the care of their children can only be construed as hostile to religion.