Why church and state should be separate.

• Author: Chemerinsky, Erwin

A couple of years ago, I argued a case at the United States Supreme Court involving the constitutionality of the Ten Commandments monument that sits between the Texas State Capitol and the Texas Supreme Court. (1) The monument is six feet high and three feet wide, (2) and atop it in large letters and words it states, "I am the Lord, thy God." (3)

In the days before the argument at the Supreme Court, the case received a great deal of media attention. (4) Some of the reports mentioned that I was the attorney who would be arguing the case against the monument before the Court, (5) and as a result, I received a large amount of what can only be described as hate mail. (6) Some of it, in its viciousness, was shocking.

By itself, what this showed me was that there are some people who care very deeply about having religious symbols on government property. But there were also more subtle lessons to be learned. The State of Texas was arguing in front of the U.S. Supreme Court that it wanted the Ten Commandments monument to remain because of the historical importance of the Ten Commandments as a source of law. (7) I was easily and quickly convinced, however, that this was not at all the reason why the people who were sending me hate mail wanted the monument there. They wanted the Ten Commandments there because it was a religious message and a religious symbol. After all, it was not that long ago that the Chief Justice of the Alabama Supreme Court, Roy Moore, was removed from office because of a two and a half ton Ten Commandments display in the Alabama State Courthouse. (8) He defied a court order to keep the Ten Commandments there, (9) obviously not because he thought it was an important historical symbol. Rather, he wanted it there because it was a religious symbol, and it had come to be taken as a symbol of his religion. (10)

As a result of my experience in the Ten Commandments case, I was saddened but not surprised when I heard of the controversy surrounding President Gene Nichol's decision to remove the cross from the Wren Chapel at the College of William & Mary. (11) The people who had wanted to keep the Ten Commandments at the Texas State Capitol were, at least philosophically, the very same people who would want to keep the cross atop the altar in the chapel at William & Mary. Their goal was not to keep the cross because of some historical message, but rather because they believed that as a religious symbol, it should be on display. (12)

What underlies the debate, whether it is over the Ten Commandments at the Texas State Capitol grounds or the cross in the chapel at William & Mary, is the profound question of whether to have a secular government or whether to have a government that affiliates with and advances religion. The underlying issue is that stark. The reason that I agreed to handle the Ten Commandments case is that I believe deeply that our government should be secular. It should not be affiliated with any religion and it should not advance any religion. But I also know that those who are on the other side believe just as deeply that they want their government to be religious, not secular.

This Essay will discuss the role of religion in a public university. In order to do that effectively, I will begin by discussing more generally the appropriate role of religion in the government, and then, based upon those principles, I will address the role of religion in public universities.

This Essay is divided into three Parts. In Part I, I will discuss the competing visions of the First Amendment's Establishment Clause. Part II then suggests what I believe is the preferable vision: one that tries, to the greatest extent possible, to separate church and state. In this context, I will move to a discussion in Part III of the appropriate role of religion in a public university.

1. COMPETING VISIONS OF THE ESTABLISHMENT CLAUSE

   The controversy over the cross in the chapel at William & Mary is obviously part of a larger constitutional and cultural debate. The provision of the Constitution at stake is found in the First Amendment. It says: "Congress shall make no law respecting an establishment of religion...." (13) In 1947, the United States Supreme Court held that although the provision refers to Congress, it applies equally to state and local governments. (14) There is an ongoing debate among the Justices and among constitutional scholars regarding the best understanding of the Establishment Clause. What I find interesting is that each of the Justices--and each of the scholars--can invoke quotes from Framers of the Constitution to support a particular conception of the clause. I think that Justice Robert Jackson got it right, albeit in another context, when he said, "Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh." (15) Research will reveal little more than competing quotations that each side cites to support its position.

   There are three major competing views of the Establishment Clause. One view is strict separation. (16) This says that, to the greatest extent possible, we should separate church and state. The idea is that our government should be secular. (17) The place for religion is in the private realm--in our homes; in our churches, synagogues, or mosques; in our own consciences; and in our own daily behavior. Those who believe that this is the right interpretation of the Establishment Clause think that Thomas Jefferson got it right when he coined the phrase that there should be "a wall of separation between church and state" (18)--a wall that the Supreme Court later declared both '"nigh and impregnable." (19) It is interesting that when the Supreme Court in 1947 held that the Establishment Clause applied to state and local governments, all nine Justices then on the Court endorsed this notion that there should be a wall separating church and state. (20) Today, it is highly questionable whether a majority of the Court would endorse this view.

   There is a second vision of the Establishment Clause, much different from the first. This view argues that the Establishment Clause commands that government should be neutral with regard to religion. (21) The government should not favor religion over secular matters, or for that matter, secularism over religion. (22) The government should never favor one religion over others; it should simply be neutral.

   Over the last quarter century, those who take this second approach have often thought of it as a requirement that the government should not symbolically endorse religion, or a particular religion. Sandra Day O'Connor was the first Justice to put the test in this way. (23) She did so over a quarter century ago, coining the symbolic "endorsement" test. (24) Under this test, the question is whether the government is, from the perspective of a reasonable observer, symbolically endorsing religion or a particular religion. (25)

   Those who take this approach say that religion is an enormously important part of American history and of American society today. Religion should not be excluded, but neither should it be favored. Given the diversity of religious beliefs, it is essential that the government always be neutral among them. (26)

   A third competing vision, quite different from the first two, is called the accommodationist perspective. This view says that we should accommodate religion and government, and accommodate government support for religion. (27) This approach says that the government violates the Establishment Clause only if it literally establishes a church or coerces religious participation. (28) Nothing else violates the Establishment Clause besides this.

   Those who take this approach quote a Supreme Court decision from a few decades ago that states, "We are a religious people whose institutions presuppose a Supreme Being." (29) Those who take this approach are fond of pointing to George Washington's Thanksgiving Proclamation, (30) or even to Thomas Jefferson talking about the rights that come from our Creator. (31) They believe that, to a large extent, it is permissible for religion to be a part of government, so long as the government does not go so far as to literally establish a church or coerce religious participation.

   Now, I have presented these three views to you in quite an abstract manner. But almost any issue of the Establishment Clause that you can think of, including the controversy over the cross in the William & Mary chapel, comes down to these three approaches. Let me give some examples to make this concrete rather than abstract.

   Nineteen years ago, in 1989, the Supreme Court decided County of Allegheny v. ACLU. (32) This was decided as two companion cases that came to the Supreme Court together. (33) One involved a county courthouse that showcased a nativity scene in its large stairway display case during the December holiday season. (34) The other involved a Pittsburgh city building. (35) In front of the building, a menorah was placed during the holiday season, as well as a Christmas tree and a proclamation about the importance of tolerance during the holiday season. (36) The Supreme Court held that the nativity scene was unconstitutional, but the menorah was constitutional. (37)

   Stated that way, it may seem strange: surely the Supreme Court was not favoring Jewish religious symbols over Christian ones. But the way in which the Court came to this result was the product of a division among the Justices with respect to the three theories of the Establishment Clause. Four Justices took the accommodationist perspective. (38) Justice Anthony Kennedy wrote for them; he was joined by Chief Justice Rehnquist, Justice White, and Justice Scalia. (39) Justice Kennedy expressly espoused the accommodationist philosophy: the government only violates the Establishment Clause if it is...