BOSTON — THE SUPREME COURT'S HOLY BATTLES PBS, tomorrow, 9-10 p.m. (Please check local listings). Documentary narrated by Roger Mudd. Producer/director: Karen Thomas. HISTORIAN Leonard Levy suggests that when government gets involved with religion, neither is benefited.
It is this premise that permeates the Jeffersonian reference to a ``wall of separation'' between church and state and that has basically guided United States jurisprudence on this issue.
PBS's new documentary, ``The Supreme Court's Holy Battles,'' which airs on most stations tomorrow, doesn't really fulfill the promise of its billing. But that may be part of its effectiveness. The litany of cases, ranging from those dealing with school prayer to others focusing on the rights of individuals to practice their religion when it may be in conflict with public policy, doesn't tell the underlying story of religious freedom in America.
The series of pre-Revolutionary War battles in Virginia pitting Jefferson and Madison against Patrick Henry - depicted in this one-hour special - lays a framework for today's ongoing church-and-state controversy. The former saw religion as personal and private, not the business of government. ``I am a sect unto myself,'' Jefferson is quoted as saying. Henry, on the other hand, pushed for a state tax, the revenues to be used to promote religion.
Anglicanism was firmly entrenched in the early days of the colonies - with the requirement that even non-Anglicans attend the church of this denomination at least once a month. This was later challenged and invalidated, with a wave of new religious thought.
What is significant is that this nation was not born into religious freedom and right of choice but that these had to emerge through orderly legal, legislative, and social processes.
The one current case the documentary focuses on deals with the right of a religiously oriented student group in Renton, Wash., to use public classroom facilities for their evangelical activities. The school board and the lower courts vetoed the idea, citing the constitutionally impermissible edict against the entanglement of church and state. This litigation is headed for a US Supreme Court hearing.
Based on the present conservative composition of the court - which is more prone to religious accommodation than strict separation - the Renton students may get a sympathetic response from the high tribunal.
School prayer and public aid to parochial schools has generally been warded off by the Supreme Court, although citizens groups are increasingly active in pointing out that it was not the motive of the Founding Fathers to isolate religion from the public community, just to negate the possibility of government preference of one religion over another.
Many First Amendment scholars challenge this interpretation as much too narrow, also stressing that the Constitution forbids preference of religion over non-religion. The supreme law of the land states that ``Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof....''
The PBS special, although penetrating and sound as far as it goes, almost totally ignores the free exercise aspect of the First Amendment, opting for discussion of the Establishment Clause.
This is unfortunate. Important cases now in the legal pipeline involve the rights of parents to use prayer and spiritual means in the treatment of their children's illnesses, absent of state interference; the preference of citizens, based on religious convictions, to avoid requirements of Social Security cards or photographs on drivers' licenses; and the ability of American Indians to preserve certain public lands for sacred rituals, which the state would earmark for other purposes.
To some, these issues may seem trivial or ones that must concede to government policy or public welfare. Yet they are basic to the religious freedom that Thomas Jefferson so clearly articulated over two centuries ago. PBS would do well to follow up on its present documentary with some of these aspects.