Church/state conflict and the Burger court

Religion, State, and the Burger Court, by Leo Pfeffer. Buffalo, N.Y.: Prometheus Books. 310 pp. $22.50. Since Cain slew Abel as the result of rivalry for the favor of the Lord, ``more blood has been shed in religious conflict than in any other cause.''

So notes Leo Pfeffer, a longtime authority on church/state affairs and special counsel to the American Jewish Congress. However, the religious wars Professor Pfeffer has devoted himself to recently have been fought in the courtroom rather than on the battlefield. And they have been clashes not among the churches but between the religious community and government authority.

The First Amendment to the United States Constitution and, by inference, the Fourteenth forbid the enactment of any law leading to the establishment of religion or forbidding its free exercise. Over the years, interpretation of statutes in light of these amendments has resulted in the so-called ``wall'' of separation between church and state. Scholars continue to debate whether this wall should be impenetrable or porous.

Today, political ultraconservatives, especially the Christian Right, are waging a well-financed campaign in courtrooms, legislatures, and in the public forum to poke holes in the wall or chip away at the longstanding barrier (whichever metaphor you like). Their chief goals are to bring ``God back into the classroom'' through school prayer, subsidize parochial education with public money, restore the solemnity of the sabbath, and allow Christmas displays on civic property.

Civil libertarians, on the other hand, are sounding an alarm about religious intrusion, the sparking of bigotry against minority or disfavored religions, and the fighting anew of ``holy wars.''

Pfeffer makes no secret of his bias. He is unapologetically a church/state separatist. And he is highly critical of the conservative wing of the US Supreme Court, which he says is moving down a path of ``accommodation'' of religion rather than maintaining a clear division between church and the public sector, as the court had done in the past. But Pfeffer does not use this volume -- unique in its subject matter by any standards -- to perpetuate the controversy. Rather he examines decisions of the high court over the 16-year reign of Chief Justice Warren E. Burger and concludes that there have been ``two Burger courts'' in the area of church/state rulings

``Burger I,'' the court of the 1970s, ``delighted the most doctrinaire of the separatists'' by using the ``Establishment'' clause of the Constitution to strike down a host of laws advancing religion or resulting in excessive government entanglement with church, Pfeffer points out. ``Burger II,'' the court of the '80s, has turned in another direction, handing down rulings that, in the author's words, ``made the separatists grieve and the accommodationists smile.''

Pfeffer is referring to rulings that have permitted tuition tax credits for parents whose children attend parochial schools, allowed prayer meetings on college campuses, and approved a Christmas cr`eche as part of a holiday display on public property.

Pfeffer stops short of suggesting that the court has done a full about-face. He merely points out that it is more flexible in interpreting the ``purpose-effect-entanglement'' standard that it once used as a yardstick; by that standard the court generally held a law invalid if it had the purpose of promoting religion or the effect of favoring one church over another, or if it unduly entangled the secular and nonsecular.

Will this book fuel concerns that future decisions of the court will lead to a complete breach of the wall?

It really shouldn't. Despite some predictions to the contrary, there is no indication yet that the Burger court will rule in favor of audible prayer in the classroom, broad public financing of religious schools, or establishment of publicly supported Christmas imagery.

These are part of the agenda of a very vocal religious right. And they are often advocated by White House conservatives, possibly more for political reasons than for ideological purposes. There have been and undoubtedly will be more thrusts for constitutional amendments and legislation along these lines.

But the court will not necessarily go along. Pfeffer predicts that it won't. Adding credence to his view is the fact that the tuition tax credits that the court allowed during a recent term were not limited to parents with students in parochial school but provided for parents of children in any private school. And even the cr`eche decision, which the author scores as a major intrusion, was made on the basis that the display contained nonreligious symbols, reindeer and snowmen, along with the nativity scene.

More tests will come -- some very soon. Pfeffer points out that the court tends to announce rulings on controversial church/state matters late in its term, at the end of June or early in July. According to one rationale, this permits schools to use the summer recess to adjust to the rulings. According to another, this shields the court from some of the winds of controversy.

Curtis J. Sitomer writes the Monitor's weekly ``Justice'' column.

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