The latest round in the perennial legal battle over the separation of church and state ended on June 19, when the U.S. Supreme Court struck down a Texas school district's policy permitting voluntary, student-initiated public prayers before high school football games. But the litigation over religious expression in public schools is likely to continue. It is a conflict in which two key First Amendment protections—freedom of speech and the prohibition against state establishment of religion—seem to collide. And yet the real paradox, perhaps, is that neither side in this debate wants speech to be really free when it comes to religion.
The Supreme Court case, Santa Fe Independent School District v. Doe, began in 1995, when several families challenged the practice of having a prayer delivered over the school's public address system at the start of each home varsity football game. The plaintiffs—not atheists but Catholics and Mormons—saw this as part of a general pattern of promotion of a specific brand of Christianity by the schools of the mostly Baptist town. Teachers led prayers before lunch, handed out flyers for revival meetings, and in some cases actively proselytized students of other faiths and disparaged their beliefs.
After the lawsuit was filed, the district took steps to curb these excesses and devised an ostensibly neutral solution to the problem of public prayer at football games: The students would elect a speaker to deliver pre-game remarks—religious or secular—to "solemnize the event." It is this policy that the high court has rejected as thinly disguised public sponsorship of prayer.
In a caustic dissent, Chief Justice William Rehnquist complained that the majority opinion, written by Justice John Paul Stevens, "bristles with hostility to all things religious in public life." Yet Rehnquist conceded that if the disputed policy resulted in prayer, say, 90 percent of the time, it would probably be unconstitutional.
Conservative critics of a strict separation of church and state frame the issue as one of free speech and free exercise of religion. This emphasis is shrewd political strategy—no one wants to admit to being against either freedom—but it also raises a thorny issue. If government schools allow student-initiated religious expression at official school events, are they unconstitutionally promoting religion? If they muzzle such expression, are they unconstitutionally suppressing speech?
Even conservative Pepperdine University law professor Douglas Kmiec, who believes that modern secularism has "perverted" the constitutional ban on an official state religion into a mandate to banish religiosity from the public square, wrote in The Wall Street Journal that, "given the peculiar facts of the case, the Supreme Court may have been right" to strike down the Santa Fe policy. Those facts included the district's history of practices that were clearly unconstitutional even under the narrowest interpretation of the Establishment Clause. The policy allowing an elected student speaker to deliver an invocation was rather transparently designed as a way to preserve pre-game prayer.
But in other, more complex cases currently moving through the legal system, there is a far stronger claim that absolute separation unfairly singles out religious speech. Take the saga of the brothers Chris and Jason Niemeyer, devout evangelical Christians and successive class valedictorians at Oroville High School in California in 1998 and 1999. The Niemeyers were barred from giving the traditional commencement address to their classmates because they wanted to talk about their faith.
As many schools require, Chris Niemeyer gave the school administrators an advance copy of his speech, which asserted that all people are "God's children, through Jesus Christ's death, when we accept his free love and saving grace," and urged listeners to embrace a "personal relationship" with God. The principal told him to tone down the religious message. After an unsuccessful attempt to get a court order securing his right to speak, the boy wanted to make brief remarks at graduation explaining why he couldn't give a speech. But school officials stopped him on his way to the podium and told him he couldn't speak at all—a gesture that prompted loud protests from the crowd and nearly sparked a riot.
The following year, Jason Niemeyer submitted a valedictory address that, while less focused on religion, concluded by urging all those present "to take advantage of the friendship that is offered us in Christ." After consulting with attorneys, the school forbade him to give the speech and also nixed a revised version with no direct references to Jesus.
Both of the brothers are suing the school district. So far, the courts have sided with the school, which argues that graduation is an extension of the school curriculum and that, therefore, sectarian commencement messages should not be permitted.
Yet had the brothers been allowed to speak, interpreting their remarks as "establishment of religion" by the state would have been far more of a stretch than in the Texas football case. A valedictorian's address has a clear secular purpose, and neither boy would have been the sole graduation speaker. It is doubtful that any student in the audience could have perceived a religiously themed valedictory speech as official endorsement of a sectarian creed by the school (any more than Chris Niemeyer's election as class president in his senior year, at a time when he was also the co-leader of a Christian club at school, amounted to an endorsement of religion).
To remove any shade of suspicion, an administrator could have made a statement that any expressions of religious faith reflected the speakers' individual beliefs. Indeed, the concern of the officials seems to have been less that some people would feel coerced or discriminated against than that some people would feel uncomfortable.
In a declaration filed in the legal case, Chris Niemeyer's co- valedictorian, Delisa Freistadt, who is Jewish, stated that she was glad the court didn't "force" her to listen to his speech. The Niemeyers' attorneys counter, rather persuasively, that it is part of the American way that we are sometimes forced to listen to speech we don't like. (Freistadt could have countered speech with more speech and used her time at the podium to talk about respecting religious differences.) As applied in this case so far, the First Amendment seems to be less a guarantee of religious freedom than a speech code guaranteeing that no one's feelings are hurt.
There may be an anti-religion double standard at work as well. Some of the Niemeyers' local supporters gripe that the same school officials who muzzled the boys allowed the installation of a Vietnam War mural many people found objectionable. It also seems likely that if a public school had silenced a valedictorian who wanted to praise vegetarianism or assail racism, the mainstream media and the American Civil Liberties Union would have blasted the decision as an outrageous act of censorship.
The ACLU has criticized the free speech defense of student-initiated prayer at graduation, cautioning that such a position would force schools to grant equal access to all speakers of all viewpoints on a first come, first served basis—a less relevant concern when the issue is one of free expression for speakers already chosen on an ideologically neutral basis. It is also worth noting that the Colorado ACLU has championed the right of black students to wear a ceremonial African cloth over their graduation gowns as a protected form of expression.
An even better case that strict separationism can turn into censorship can be made in a suit currently pending in the U.S. Court of Appeals for the 3rd Circuit in Philadelphia, brought by the parents of Medford, New Jersey, schoolboy Zachary Hood. In 1996, each child in the boy's first-grade public school class was asked to choose a story to read aloud. Zachary's selection, the story of the reconciliation between the brothers Jacob and Esau from The Beginner's Bible, was deemed inappropriate by the teacher, even though it contained no mention of God or miracles. He was told that he could read it to her in private but not to the entire class.
In 1999 a three-judge panel of the 3rd Circuit ruled that the teacher acted properly, agreeing with the school's rather wobbly argument that permitting the story to be read in the classroom would have sent a message to the impressionable kiddies that "the teacher or the school endorsed the Bible." Late last year, however, the full court vacated that decision and agreed to consider the case, which may go all the way to the Supreme Court.
It would be difficult to dispute the religious con- servatives' claim that the treatment of Zachary Hood or of the Niemeyers reflects "viewpoint discrimination" against religious speech. It is fairly clear that in these instances it is the exclusion rather than the inclusion of religion that may "discriminate against, or oppress, a particular sect or religion," as Justice William Brennan put it in the 1963 ruling School District of Abington v. Schempp, which found mandatory school prayer unconstitutional.
But it would also be disingenuous for the anti-secularists to claim that they want religion to be treated as just another viewpoint in the marketplace of ideas—a viewpoint which can be defended but can also be attacked and even ridiculed, like any other idea. Indeed, the same people who wax poetic about defending religious liberty for Christians can get very unhappy with the wrong kind of speech about religion. Just as religious conservatives now couch their demands for prayer in public schools in the "liberal" language of free speech, their attempts to squelch what used to be called sacrilege are couched in the politically correct language of anti-bigotry and opposition to "hate speech." The charge of "Christian bashing" (or "Catholic bashing") has been directed, for instance, at the ABC show Nothing Sacred, which questioned Catholic doctrine on birth control and priestly celibacy.
In 1998 news of a Broadway production of Terrence McNally's play Corpus Christi, depicting a gay Jesus-like character, sparked a predictable firestorm. The Catholic League for Religious and Civil Rights launched a letter-writing campaign demanding that the production be canceled. It is true, of course, that a protest is not censorship. But when the Manhattan Theater Club decided to cancel the play due to threats of violence and arson, the Catholic League's jubilant reaction did not show a strong commitment to free speech. While formally deploring the threats, the league warned that if another company picked up Corpus Christi, it would "wage a war that no one will forget." (The theater eventually revived the production after coming under fire from the press and from authors.) Catholic League President William Donohue explicitly, and favorably, compared the anti–Corpus Christi protests to the actions taken by racial, ethnic, and feminist groups against speech they find offensive.
And in July, in what may be the most creative use of hate speech phraseology to date, L. Brent Bozell's Media Research Center ran an ad accusing CBS of "condoning religious bigotry." Early Show host Bryant Gumbel had been caught on camera saying "What a fucking idiot!" after an interview with the Family Research Council's Robert Knight, who had defended on religious grounds the Boy Scouts' exclusion of gays. Even if Gumbel was referring to Knight and not, as some have claimed, to a CBS staffer, it is noteworthy that he used no slurs referring to Knight's faith. (Is it racist to call Al Sharpton a fucking idiot?) Nonetheless, Bozell invoked CBS' firing of sports oddsmaker Jimmy "The Greek" Snyder for televised comments about the innate racial superiority of black athletes and concluded that "racial bigotry on CBS is dealt with unequivocally; religious bigotry on CBS is met with a disinterested yawn."
In an essay published in The New York Times Magazine last January, legal commentator Jeffrey Rosen noted that the strict separationism endorsed by the courts in the early 1970s, which held that the government could not support any religious activity in any form, has given way to "a very different constitutional principle that demands equal treatment for religion." Under this doctrine, Bible study clubs and prayer groups can function on public school property on a par with other student groups, and parochial schools can receive federal aid for special education programs on a par with other schools. (School vouchers that would subsidize tuition at religious schools remain a more contentious issue.)
Rosen insightfully links the crumbling of the wall between church and state to the rise of cultural diversity: "In an era when religious identity now competes with race, sex and ethnicity as a central aspect of how Americans define themselves, it seems like discrimination—the only unforgivable sin in a multicultural age—to forbid people to express their religious beliefs in an increasingly fractured public sphere." As Rosen concludes, the resulting expansion of freedom of religious expression may well be a healthy development for public life. But the examples of race and sex also point to certain dangers. While the new appreciation of diversity can liberate discussion and expression, it can just as easily narrow the range of acceptable speech in order to protect sensitivities.