Should creed or constitution guide the judiciary? "The First Amendment asks of us that we find a way, perhaps along a winding and rocky path, to allow both individual freedom and public openness in matters of religion, and to do so without allowing either concern to swallow up the other.".(Religion)

Publication: USA Today (Magazine)

Publication Date: 01-MAR-04

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THERE HAVE BEEN arguments over religion and politics since long before there was a U.S. Despite the fact that several of the 13 colonies originated in the desire to create a righteous community in the New World free of the theological conflicts of the Old, in practice the colonists found themselves just as embroiled in disagreements rooted in religious faith. Following independence, Americans tried a different approach. One by one, those states in which a church had been established ended that legal status, and the nation as a whole enshrined in the Constitution the sweeping command of the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Thomas Jefferson, one of the nation's more outspoken Founding Fathers, rejoiced that the Republic had erected a "wall of separation between church and state" that would keep the public sphere free from the divisive effects of religious strife.

Whatever one makes of Jefferson and his views on religion, he turns out to have been a rather poor prophet. His metaphor, to be sure, has had a long and important life in U.S. law--the Supreme Court has been quoting him on the subject since 1878--but as a description of American political life, the suggestion that religion and government do not overlap is false. They intersect in a variety of ways. The constitutional question of how courts and others are to obey the First Amendment's command is better understood as an inquiry into the appropriate relationship between public life and religious faith rather than as an effort to maintain some unscalable wall. Recognizing that this is so may be one reason the Supreme Court--at least in recent years--has cooled noticeably toward Jefferson's famous language.

Yet, is it truly the case that the First Amendment ordains a courtship rather than a divorce between religion and government? Clearly, the answer is yes, but to see why, we need to recall that the Amendment makes two demands with respect to religion and public life. There shall be no establishment--no marriage,...

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