The right to practice what you preach. Constitution of the United States -- Amendment 1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; of abridging the freedom of speech or of the press; of the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Boston — A TRIO of American Indian tribes refer to it as the ``high country.'' The Yurok, Karok, and Tolowa Indians stress that this 25,000 acres in northern California's scenic Six Rivers National Forest must be protected from United States government bulldozers, because it is sacred to their religious worship. Federal authorities insist, on the other hand, that this area is part of a parcel of government-owned land needed for a paved highway.
Does public interest outweigh the Indians' religious rights? This is what the US Supreme Court will soon decide.
At issue is no less than a major interpretation of the ``free exercise'' clause of the supreme law of the land.
Perhaps no plank of the US Constitution has been more revered - and debated - than the First Amendment's religious clauses, ``establishment'' and ``free exercise.''
In recent years, judicial philosophy on establishment has evolved from the concepts that the government must not favor religion over nonreligion and that there be no unnecessary ``entanglement'' between church and state.
Cases on school prayer or access of religious groups to public funds continue to linger on the scene - with the establishment clause regularly challenged, reanalyzed, and reassessed.
But religious free exercise is no less in conflict - with new cases arising not only over Indian tribal rights but over the worship practices of church groups, usually denominations not in the mainstream.
These cases raise basic questions: Do individuals, under the Constitution, have a right to practice what the preach? And, if they do, is that right absolute, or may government place limitations on it?
The courts have generally enforced the principle of free exercise. But at the same time, they have indicated that some curtailment is required. The rule of thumb: The right to believe is absolute; the right to exercise those beliefs is not.
Many legal authorities have stressed the special need for protection of unorthodox or unpopular religious beliefs and practices.
Constitutional scholar Archibald Cox, Watergate prosecutor and former solicitor general of the United States, writes: ``Generally speaking, it is the `far out' groups, the unorthodox and dissentient in the world of the intellect and the spirit, or of government and policy, who need the protection of the guarantees of religious freedom.''
In a 1960s case involving the healing claims of a group called ``I Am,'' then-Supreme Court Associate Justice William O. Douglas said: ``Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs.''
Justice Douglas continued: ``The miracles of the New Testament, the divinity of Christ, life after death, the power of prayer are deep in the religious convictions of many.
``If one could be sent to jail because a jury in a hostile environment found those teachings false, little indeed would be left of religious freedom.''
Yet some current disputes bump free exercise right up against the establishment clause.
For instance, a case now before the Supreme Court weighs the constitutionality of a federal statute allowing public funds to be used by religious groups that counsel teen-agers on premarital sex.
The American Civil Liberties Union and others want the law struck down as an improper governmental establishment of religion in violation of the First Amendment.
Is `free exercise' in danger?
But some religious-oriented service groups insist that this statute protects their free-exercise rights. And they add that it would be discriminatory toward religion if government funds for youth counseling were available only to secular organizations.
The latter view is endorsed by Richard Neuhaus, a scholar and editor of the Religion and Society report. Mr. Neuhaus suggests that too much priority is given to the establishment clause over free exercise - and this, in effect, ``punishes'' religion.
``Don't override free exercise unless there is a `supreme' overriding interest,'' he admonishes.
Oliver Thomas, general counsel to the Baptist Joint Committee on Public Affairs - staunch supporters of church-state separation - sees it differently.
``Religions should teach sexual morality,'' Mr. Thomas stresses. But he is opposed to using taxes to underwrite church programs.
``The establishment clause is a guarantor of free exercise,'' the Baptist lawyer says. ``In the name of allowing government to help religion, we [could] give away free exercise,'' he adds.
Is the free exercise of religion in danger of being swallowed up by considerations of the establishment clause? Opinions vary widely.
Fundamental right seen
The Rev. Virgil Blum, SJ, president of the (Roman) Catholic League for Religious and Civil Rights, says that the courts have ``turned the First Amendment clauses on their heads.''
The conservative Jesuit leader adds that ``separation has become almost absolute under the establishment clause ... [while] the most fundamental civil right under the First Amendment is to free exercise and expression.''
Fr. Blum is particularly critical of recent rulings on ``equal access,'' which he says ``prohibit children at school from reading the Bible or talking about God during nonclass time, but allow them to talk about bingo and the World Series.''
Baptist spokesman Oliver Thomas, however, sees greater potential danger of erosion to the establishment clause if prayer in the schools and public funding of religion are sanctioned by the courts.
``A watered-down view of establishment will [also] erode free exercise,'' he warns.
Jesse Choper, dean of the law school at the University of California at Berkeley - and a church-state expert - insists that the establishment clause is ``not swallowing up free exercise,'' as some claim.
``There is tension between the two - but both must be understood to protect religious liberty,'' he says.