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Religion and the Constitution (1984) | ARCHIVES


Announcer: From the nation’s capital, the
American Enterprise Institute for Public Policy Research presents Public Policy Forums, a
series of programs featuring the nation’s top authorities presenting their different
views on the vital issues which confront us. Today’s topic, “Religion and the Constitution.” John Charles Daly: This public policy forum, one of a series presented by the American Enterprise Institute, is concerned with the relationship of church
and state under the Constitution of the United States. Our subject, “Religion and the Constitution.” Our Constitution, hammered out in the long
debate in Philadelphia in 1787, went to the States for ratification bearing one reference
to religion. Article VI States, “No religious test shall
ever be required as a qualification to any office or public trust under the United States.” After months of debate in the States, the
Constitution was ratified. However, the States had also made it clear
that the First Congress was expected to act immediately on amendments protecting specific
rights, among them religious rights. The Congress, in its first sitting then debated
and passed, and the state subsequently ratified, ten amendments, our Bill of Rights. The First Amendment declares, in part: “Congress
shall make no law respecting an establishment of religion,” that’s the Establishment Clause,”
or prohibiting the free exercise thereof,” and that’s known as the Free Exercise Clause. This brief, albeit comprehensive, declaration
of religious rights was distilled from a familiar background. The 13 colonies were substantially settled
by families fleeing religious persecution in England and Europe, and religion was a
dominant factor in the colonies where, by the way, religious persecution was not entirely
unknown. The two clauses, the Establishment Clause
and the Free Exercise Clause, have since been at the heart of an intense debated on their
scope and meaning and on the original intent of the founding fathers concerning them. In modern times, that intensity of debate
increased markedly on or about 1947, with the Supreme Court opinion. In that opinion, the Court held that the Establishment
and the Free Exercise Clauses were made wholly applicable to the States by the Fourteenth
Amendment’s Due Process Clause, and over time the application of the Establishment and the
Free Exercise clauses to the States through the Fourteenth Amend­ment played a major
role in cases before the Supreme Court. Sunday closing laws, the right to unemployment
benefits when a religiously mandated Saturday non workday made many jobs unavailable, or
when a worker, for religious reasons, quit a job, when switched to doing military work. All of these came in front of the court. On the legislative front in very recent times,
as you know, there have been amendments defeated in the Senate concerned with the voluntary
vocal and silent prayer. The house rejected an Equal Access Bill designed
to assure the student religious groups in public schools have the same, that public
high schools, have the same rights as secular student clubs to meet on school grounds. There are other issues that seem as pressing
to various constituencies teaching creationism in science education. The Supreme Court’s recent creche decision
affirming the constitutionality of including religious symbols in holiday displays on public
grounds and the issues concerning objector status in military registration and the naming
of an official ambassador to the Vatican. Well, to guide us through this complex and
contentious relationship between the constitution and religion, we have an expert panel. On my far right, Mr. Walter Berns, John M.
Olin, Distinguished Scholar in Constitutional and Legal Studies at the American Enterprise
Institute, and the author of “The First Amendment and the Future of American Democracy.” He also teaches at the University of Chicago. On my immediate right, representative Henry
J. Hyde, Republican member of the House of Representatives from Illinois, in his fifth
term. He’s a member of the House Judiciary Committee,
the Subcommittee on Courts, Civil Liberties, and the Administration of Justice. On my immediate left, Mr. Ed Doerr, Executive
Director of Americans for Religious Liberty and the former editor of Church and State
magazine. And on my far left, the Reverend Barry Lynn,
Legislative Council in the Washington office of the American Civil Liberties Union. He has been Legislative Council in the office
for Church in Society, United Church of Christ. He is also an ordained minister of the United
Church of Christ. Well, to begin, gentlemen, I would pose the
same question to each of you in turn. In general, does government have an obligation
to support religion as one way of helping to sustain a free society? Our nation’s motto is “In God We Trust.” The President, members of Congress, judges,
and other public servants often swear their oath of office on the Bible. Each day of the congressional session begins
with a prayer for guidance. And so should government help strengthen religious
values in these and other ways? First of all, let me ask representative Hyde. Henry Hyde: Well, I think it may do so within
the parameters of the Constitution, as long as it does not prefer one sect or group over
another but it always has the hostility towards all religions. That seems to be the progeny of the Everson
case has never been true. We have supported chaplains, not only in the
military, but for the House and for the Senate. The first chaplain was named William Lynn,
by the way, Reverend and Madison was on the committee that set up that procedure. So we’ve always had relationships of a sort
with the religious groups, but the constitution requires that it be in such a way as to not
set up a state religion, a national religion, and certainly not to prefer one over another. John Charles Daly: Right. Mr. Doerr. Edd Doerr: All right. The best thing that the State can do for religion
is to keep its hands off it. To let the religion stay in the private sector,
government should not force citizens involuntarily through taxation to support religion. Government should not meddle with the religious
lives of children or adults. It should not discriminate in any way for
or against various churches. And unfortunately, while our whole history
for two centuries since the adoption of the Constitution has been one of reaffirming and
furthering the separation of church and state that Jefferson and Madison spoke so highly
of. In the last few years, we have seen tremendous
efforts being made for the piecemeal repeal of the First Amendment through drives in state
capitals and in Congress to tax people for the support of religious institutions, efforts
to amend the constitution to authorize civil servants to meddle with children’s religious
lives, efforts by a government to interfere with the conscientious right of women to determine
whether or not they will be mothers. The President’s recent extension of diplomatic
relations to a single church in discrimination against all others, are some of the examples
of how government has been moving away from the constitutionally required neutrality toward
religion towards something else that is rather vaguely old worldish about it. John Charles Daly: Right. Mr. Berns. Walter Berns: Your question used the word “obligation”
whether the government has an obligation to do this. And strictly speaking, of course, the government
has no obligation in the sense that it has a constitutional obligation stated in Article
IV the constitution to see to it that they guarantee a republican form of government
to each of the States. So the question really is not whether the
government has an obligation but whether it would be well advised to do this or there
are some compelling reasons why it should do this. I agree with Mr. Doerr that, of course, the
purpose of the First Amendment was to subordinate religion and subordinate it to the private
sphere. So the question then becomes as to whether
the government is forbidden by the First Amendment to provide assistance to religion in the private
sphere and to act in one way or another, to see to it that religion in the private sphere
maintains its vitality. The answer to that question probably turns
on whether it is understood by us, as it was understood by Americans in the beginning,
that there is some connection between the sort of moral training that the churches provide,
and a healthy liberal democracy in the United States. That’s I think is the way the issue should
be phrased. John Charles Daly: All right. Reverend Barry Lynn. Barry Lynn: I think it’s important that we recognize
that the government may not be hostile to religion, but it must evince a very strict
neutrality in regard to religion. And that means at least several things. First of all, it needs to preserve the right
of conscience for all Americans, so that to the maximum extent possible persons are not
forced to support religious practices which they find themselves in disagreement about. Secondly, it means that the government must
rigidly keep itself uninvolved in religious matters and may not supervise religious institutions. It also neutrality means the avoidance of
the creation of political warfare over issues that are sectarian religious matters, and
should remain such. And finally, government neutrality is necessary
in regard to religion so as not to degrade the practice of religion itself. And I think the question for this decade and
the decades to come is not so much what the framers may have thought about the constitution
nearly 200 years ago, but how those majestic generalities within the First Amendment are
to be construed today as concrete restraints on what the government can do in the decades
to come. John Charles Daly: In other words, the constitution changes
this meaning over time? Barry Lynn: I think the constitution is a living
document, it must remain such. And in fact, it’s very interesting Mr. Hyde
mentioned that the James Madison voted for the establishment of congressional chaplains. I also think it’s important to realize that
he, several years later, as president wrote a document in opposition to the continuation
of the practice of having congressional chaplains because he felt it was a First Amendment violation. So even if at not the beginning, at the time
he was president, I’m sure he would have fit in very well, in the American Civil Liberties
Union. John Charles Daly: The issue is whether the constitution
changes this meaning over time. And apparently, your answer to that question
is, yes, it does indeed changes meaning over time. So what controls the direction in which the
constitution moves? Barry Lynn: The circumstances and that delicate
balance between how one balances the requirements of the Free Exercise Clause with the guarantee
that there shall be no establishment of religion. There is a tension in the clauses whether
the initial framers of the constitution recognized it or not. There is a tension perhaps that’s too polite. In some ways, there is a contradiction between
those two clauses. And I think the issue is, to the maximum extent
possible, we must guarantee the right of conscience and the right of free exercise so that persons
may exercise their conscience fully and completely in accord with their religious beliefs. Henry Hyde: If I could jump in, I agree with
virtually everything you’ve said, Reverend Lynn. But I think a much more important fundamental
question Mr. Berns raised is, how does this living document change? And how do we learn what its changes mean? Now, if an unelected group of nine people
men and women are going to through some insider, as justice Jackson said in his concurring
opinion, in Everson, nothing…no law but our own pre possessions. If that is going to determine what this document
means today in this environment rather than the legislative branch, which is accountable,
electable and re-callable by the people, then we’ve gotten away from the consent of the
governed and we’re back to the divine right of kings. Barry Lynn: But see if you create this dichotomy,
then you create the possibility that majority rule, as reflected by members of Congress
and their constituents is the arbiter, the final arbiter, of constitutional values. Henry Hyde: You know, I disagree. Barry Lynn: I think it’s been clear that since
Marbury versus Madison, that in fact it’s the Supreme Court that is the arbiter, finally,
of what the First Amendment and the rest of the Constitution mean, and that’s the way
it should be. Henry Hyde: Yeah, but I would suggest that their
task is to adjudicate, and not to legislate, not to find things there that weren’t there,
never were contemplated by the framers. Because the framers in their wisdom provided
a way to amend the Constitution, but they made it tough. They made an extraordinary majority to be
required in the House and in the Senate and then 38 States ratify. That’s tough. But they didn’t say that the majority of five
men or women on the court can change the constitution. They said, “You go out to the people and change
it.” That’s what we’ve gotten away from. John Charles Daly: Mr. Doerr. Edd Doerr: Whether they change the constitution
is a matter of opinion, but the constitution was written 200 years ago, the founders are
long since dead. When there is an apparent conflict over constitutional
rights, the Supreme Court doesn’t exactly legislate but it settles disputes between
parties, people who really go into court with a real controversy or case, and they both
make contradict constitutional claims and the Supreme Court and the lower federal courts
have to decide who has the better claim in the light of the constitution. So I think it’s stretching things to say that
they are legislating. They are the guardians of the constitution,
and without them, congress could run roughshod over our liberties, as it has sometimes done
in the heat of passion. Walter Berns: The question is whether the guardians
of the constitution whose meaning becomes…remains relatively fixed, or the guardians is something
that they themselves create. If they are the guardians of something they
themselves create, there’s no problem here at all because they will guard it like the
father guards his childhood, and the miser his money. Edd Doerr: What is your solution to that? Walter Berns: Solution to what? I keep asking the question here as to whether
the constitution changes its meaning. And the Constitution says a president has
to be 35 years of age. Now, does the living quality of the constitution
indicate that in time that 35 will mean something other than 35? John Charles Daly: Could I suggest here that a process
by which 35 can become something else is an amendment process and that is there and available
to be used? Walter Berns: Yeah, but congressman, Hyde, spoke
about really. Barry Lynn: Very There’s very little that is
necessary to interpret the meaning of “35 years of age” is a great deal of interpretation
necessary when we’re talking about the free exercise of religion or the guarantee of no
establishment of religion. Walter Berns: Absolutely. Barry Lynn: But to suggest what the Supreme
Court is designed to do and capable of doing and whether you or I agree with all of their
decisions, they are the people vested with the power to make those decisions. Walter Berns: Well, Reverend Lynn, unless we
agree that these words in the First Amendment mean something, our discussion here today
will be your opinion about the constitution versus my opinion of the constitution, and
neither opinion is to be preferred to the other. We have to agree that these words mean something. I agree that the two parts of the First Amendment,
religious parts of the First Amendment, contradict each other when carried to the extreme. Nevertheless, one can learn something from
those words, one can learn something from what the members of the first Congress said
with respect to them, one can learn something from what James Madison had, one can learn
something from the political philosophy that informed this amendment, but the words have
to mean something or we’re just uttering opinions up here. The question I posed originally was this,
and I think this is a fair statement of it. Do we agree or disagree that religion, morality,
and knowledge are necessary to good government? If they are, then it might follow, and the
First Amendment might have room for a program of assistance on a non discriminatory basis
across the board to all churches, all religions, all sex. That I think is my position. In fact, I know that is my position, and I
suspect it’s Congressman Hyde’s position. Henry Hyde: As late as 1896, Congress was appropriating
$500,000 for religious education of the Indians. So whether the Supreme Court never bid into
the Establishment Clause till 1947 in the Everson case. John Charles Daly: May I interrupt to ask if we can’t come
to tussle with what is going on the present scene? I mentioned earlier that the Senate had defeated
proposed amendments to the constitution relating to voluntary prayer in public schools, silent
prayer, neither was passed in the Senate in spite of strong evidence in public opinion
polls that a large majority of Americans favored some form of voluntary prayer in public and
in public schools. Should public polling play a paramount part
in congressional and court decisions on religious issues? No. Barry Lynn: No, it absolutely should not, although
that was one of the principal arguments used by those who would amend the constitution. Not for what is truly voluntary prayer, because
truly voluntary prayer is permitted in schools now. The ACLU, no state school board official,
is going to come into a school lunchroom and try to stop someone from saying grace before
he or she has lunch. No one’s going to try to stop a basketball
player from crossing himself before he takes the foul shot. But what the Senate was attempting to do was
to prescribe a minute set aside at the beginning of each school day for the States to permit
state-selected, not necessarily state-written, but state-selected prayer, which would be
sectarian prayer, which would be the establishment of religion. And which would be a very serious conflict,
not just with the Establishment Clause as it exists today, but with the notion of government
neutrality in regard to religion. Henry Hyde: You see, I have trouble with that. I’m not thrilled about some particular religious
philosophy being thrust on anybody, especially with the discipline that a school structure
has. But by the same token, it just seems incongruous
that state legislatures, the federal Congress opens every day with a prayer prescribed by
somebody. I’ve never been asked for my selection by
a chaplain who was paid with tax dollars and the Supreme Court says, “God save the Constitution
in this Court,” oaths are taken on Bibles. Everybody can pray one way or the other in
a structured manner except the kid in school. And I just have a problem with that. Edd Doerr: When the Congress prays in the
morning, they all do not stand up and recite the same prayer. Every member of Congress doesn’t do this. And incidentally… Henry Hyde: We usually bow our head and listen. John Charles Daly: They’re staying in the modern reference,
but let’s just go to the silent prayer in this context too. Edd Doerr: In your own state of Illinois,
Mr. Hyde, school prayer was done away with before any of us were born. And the citizens of Illinois who’ve grown
up since 1900, don’t seem to have been any of the worst for it. Henry Hyde: Well, we have some problems in Illinois,
in Chicago. I’ll take you for a walk some evening and
we’ll both pray. We get out of the neighborhood. Barry Lynn: Let’s do it on the streets, not
in the schools. But I think silent prayer is another issue. Henry Hyde: Let’s do it in both places. Barry Lynn: Silent prayer is another issue that
in fact means a great deal more than it might sound at first blush. There was an effort made to pass a silent
prayer amendment to the Constitution, which would have mandated essentially a moment of
silent religious activity during the day. And the very selection of that mode of prayer
is a dramatic step for any government to take. Many people, of course, are offended by silent
prayer. In fact, some of my more fundamentalist Christian
friends believe that it is absolutely blasphemous to participate in silent prayer because prayer
in their tradition must be oral for it to have any meaning. So the mere selection of silent against vocal
prayer is a major distinction with a great theological significance and certainly not
something which the Congress ought to be legislating about. Henry Hyde: I’m thinking of introducing a bill
to at least commemorate the usefulness of, in all schools, young people pulling out their
old Declaration of Independence and reading that part about, “We hold these truths to
be self evident, that all men are endowed by their creator with certain unalienable
Rights.” I think it would be therapeutic, if not instructive,
to cogitate on what our very Founding Fathers, way before the constitution, had in mind. Edd Doerr: Every child may do this now in
any public school. Henry Hyde: I understand that. It isn’t done and I think it ought to be done. John Charles Daly: Now, next can we go, pardon me, to the equal access issue in the house? Would you like to discuss that Walter? Walter Berns: What interests me about that is
the lack of public discussion as to the constitutional authority for the national government to decide
whether the school system, or the schools of, say, Ottumwa, Iowa, should or should not
admit a certain group and give them access to school facilities to conduct a meeting. We have gone so far in this country that it’s
no longer a matter of discussion that the national government is assumed to have the
authority to dictate that to Ottumwa. I mean, that’s astonishing, really. Now, of course, the authority here is said
to… Well, it’s in fact tied to the giving out
of money. And if you give money and promised or threatened
to withhold it, you can do practically anything under this constitution, and that raises problems. As to the access question itself, what interests
me about this is that it was decided that religious groups might not have access on
the basis of the Supreme Court’s decision with respect to this question if the Communist
Party wanted access, and if the schools refused that access the court would rule in favor
of the Communist Party. Conclusion: communist may have use of our
public facilities, religious groups may not. And that I think was probably not intended
by James Madison. Edd Doerr: Well, I would say the course that
the… You’re right, Mr. Berns, that it’s high-handed
of Congress to dictate policy to the school board in Ottumwa, Iowa, or someplace in Idaho
either, but the real issue was the gross abuses that could creep in or that would be plainly
there if the Equal Access Bill had been passed. There was nothing in there to prevent the
proselytizing of children as young as 11 or 12, in the seventh grade, by outside adult
missionaries. And this sort of thing happens in many public
schools. There was no safeguard against that in the
bill. The sponsor of the bill had no interest in
approving of an amendment to the bill to provide these safeguards. Henry Hyde: If I could jump in because I have
real problems with that bill. I frankly, my urge, my instinct, was to support
it on a libertarian theory that it is a public building paid for by public funds and that
it ought to be available to the public in an orderly fashion, not chaos, so long as
it’s non discriminatorily made available. So if the Moonies, if Hare Krishna want to
come in there’s as entitled exercise free speech as you and I, are entitled to much
as I would disagree with what they would do. But I did not see how we could shut the door
to one group and not to another, or shut the door to all groups under our constitution. This is a much more radical approach to religion
in the public schools than even a moment of prayer because it does allow religious services,
it allows doctrinal instruction, as well as these efforts to convert other students right
in the corridors and the classrooms of America’s public schools. John Charles Daly: Can we discuss this for a minute, you
know, in the light of the fact that the court has held that at the university level, public
university level, that equal access must be given to all groups if you give access to
some. What is the great difference between that
procedure now practiced in our universities and what is proposed in the public high schools? Edd Doerr: Well, there has to be a dividing
line between people who are old enough not to be easily sucked into something and people
who are young and immature. We have an age for acquiring a driver’s license,
for consuming alcohol, for getting married… And so too… Barry Lynn: For learning about God, is that
it? But only in the public schools. Edd Doerr: We have institutions for learning
about God, and those are called churches and synagogues. We also, the Supreme Court itself has said
that the public schools may offer objective academic instruction about religion, and there’s
a lot of it going on. It’s perfectly respectable in our public schools. Henry Hyde: You acquaint handling liquor then. We require a level of maturity, then, before
these ideas maybe foisted on young minds. Edd Doerr: No, we draw lines we draw lines. For instance, we draw a line at the lower
level. We won’t let children into school until a
certain age. Henry Hyde: But sex education for the little
ones is okay even though it’s usually… …but not prayer… Barry Lynn: There’s one very important distinction
that also makes a difference between the University of Missouri and a junior high school in Illinois,
and that is that the university was an open forum. It was truly open to every known organization. Henry Hyde: Equal access, in other words. Barry Lynn: Equal access was truly there. And in America’s public schools today, it
is just as difficult. In fact, I’d submit it’s more difficult to
get a club to study Karl Marx than it is to get a club to study the Bible. Henry Hyde: I really would think the ACLU would
be pushing for equal access, even for the ideas we don’t agree with. Your proudest moment was the toughest moment
you ever had, and that was defending the Nazis right to march. I wouldn’t have done that. I mean, I think they would cause a riot and
therefore it was too inflammatory but that took guts and I don’t agree with everything
that… Barry Lynn: In a public forum, of that public
park, we do support it. But for the same reasons that we don’t want
religious worship services to occur in school we don’t want the Hitler Youth Movement to
meet in school during school hours because that would give the state imprimatur or blessing
on racially discriminatory activity in violation of the constitution. John Charles Daly: Because time is fleeting, may I take
you to tuition tax credits. And Representative Hyde, this is an area of
your particular interest. Would you speak to it? The issue is a very simple one. Some parents have decided that their children
would receive a better education, perhaps including a deeper religious education in
private schools, both run by religious and by non religious, and that they bear two burdens
of tax under that principle, and therefore that is perfectly reasonable. There should be some return intuition tax
credit. Henry Hyde: Well, ever since 1925, the Supreme
Court has held that if you send your child to a parochial school, you are fulfilling
the secular requirement of a public education, a good education, so long as the Board of
Education is certified, that you’re getting a decent education. Now, if you can fulfill the state law requirement
by sending your child to a parochial school, I don’t see the constitutional difficulty. Now we can argue the wisdom, that’s really
another question, and I’m really prepared to argue that too. But I see no constitutional infirmity towards
providing tuition tax credits, which are really saying to the parent, “You don’t have to bear
this double burden. We’ll let you keep some of your own money
because your child is going to a parochial school.” It has been held by the court that these tax
credits, for instance, the money you put in the collection box on Sunday is not establishing
a religion. That’s been held by the courts. So I shouldn’t think tuition tax credits would
be establishing a religion either. I’m not talking about the wisdom which
I do support but the constitutionality of it. Edd Doerr: Well, you seem to think that there
hasn’t been any constitutional history of this. The Supreme Court, back in ’72 and ’73 and
subsequent decisions, examine several tuition tax credit programs from New York, from Ohio,
from New Jersey, and found them to be clearly unconstitutional. They were transferring money from the public
treasury, for which we are all taxed, into the treasuries of religious institutions. Henry Hyde: What about when you go to church
on Sunday, and you put your $20 bill in the collection, and you write that off on your
income tax. What’s the difference between that… Edd Doerr: We all get deductions for contributions
to religious charitable and any mercenary organizations, and that’s across the board. It hits everybody. But the tax support for specifically religious
institutions, the way tuition tax credits are, the Supreme Court has found that that
violates the Constitution. There’s a further infirmity in that, which
the court did not even need to get to because it didn’t need to be brought up. And that is that tax aid, through tuition
tax credits or vouchers or any other scheme, provides to public support for the various
kinds of invidious discrimination that are practiced by non public schools, credal segregation,
class discrimination, academic discrimination. There are a number of forms of discrimination
that are practiced in non-public schools that would never be tolerated in public schools. Any form of federal or state aid to nonpublic
schools means we’re taxed to support those forms of discrimination. Henry Hyde: As long as the tax credit is across
the board to Methodist, to Lutheran, to Jewish schools, to Roman Catholic schools, it would
be my position there is no constitutional infirmity if there is no preference of one
over the other. John Charles Daly: Let’s move to the battle being fought
on the issues of science education. The one hand, some legislators and educators
around the country argue that evolution remains but one theory of man’s beginning and that
the biblical account of creation is another. Therefore, they conclude both theory should
be taught as part of students’ science education. On the other hand, the argument is made that
evolution is science while the teaching of biblical creationism only serves to advance
religion and should not be taught as a science. Now, who would like to start? Barry Lynn: Well, I think that this is another
nearly bogus issue, a phony equality of treatment. There’s nothing similar between the scientific
theory of evolution and the religious theory of creationism. I think creationism probably should be taught
in public schools. It should be taught in a comparative religion
class where it belongs, but it should not be in the public schools masquerading as science. Science begins with observation, goes to experimentation,
then tries to find the truth or to falsify the hypotheses that it develops. Creationism starts with the conclusion, everything
was created by God 10,000 years ago, and then seeks to find miscellaneous bits of information
from a variety of sciences to support the conclusion. That is not science. Henry Hyde: And like a Supreme Court decision,
they get the result and then they look for ways to justify it. I would say that an educated person ought
to know about the theory of creationism as well as evolution or any other theories, and
they ought to be presented to the kids in a nondiscriminatory way. The teacher can say, “I prefer this or this
is scientific.” This is a leap of faith. But there are people who believe in creationism. And I see no… I think your education’s incomplete if you
don’t understand it. Barry Lynn: But you don’t think it should be
taught as science in biology books of the United States. Henry Hyde: Absent an answer to the question
of the “uncaused cause,” I don’t think it’s unscientific to say there are those who believe
that a force created something out of nothing, because we science doesn’t yet tell us about
the “uncaused cause.” Barry Lynn: No, but neither do biology textbooks
about evolution. They leave that first cause, the uncaused
cause, out of biology books for a reason. Henry Hyde: You can say, “Now take your science
hat off and put your religion hat on, we’re going to talk about creationism.” But an educated person should know about both
theories. Edd Doerr: This teacher cannot take off his
science hat and put on a religion hat, he has to be neutral. Henry Hyde: That’s the sad thing for education. Edd Doerr: Which religion would you have him
put on in the school? Henry Hyde: All of them. The major religions: Muslim, Islam, Judaism,
Christianity. Edd Doerr: This may be done in the social
studies now and in comparative religion classes. I mean, I’m a former social studies teacher. I talked about religious issues in an academic
neutral way. This can be done. It is being done by thousands and thousands
of teachers. Henry Hyde: Well, I know, but when you’re talking
about the creationism in science, you shouldn’t have to go to recess and go down the hall… Barry Lynn: But do you want every religious
doctrine that has something to do with explaining man’s relationship to the universe to be taught? Henry Hyde: Just the major ones. Barry Lynn: But you are the person who just,
a few minutes ago, said you shouldn’t draw any distinctions about religions, Unification
Church, Baptists, Methodists, Catholic, they’re all the same. Henry Hyde: We’re talking about the time they’re
going to spend. I don’t think they’re that many theories about
creationism. I don’t think the Methodist and the Baptist
have a different theory. They may not agree on any theory but they
are… Barry Lynn: But there are not only Methodists
and Baptists in the United States. There are, I think, 415 identifiable religious
groups in this country today. And many of those… Henry Hyde: How many theories of the creation
of the world are there? Barry Lynn: There are indeed hundreds of theories
of the creation in the world. Henry Hyde: Well, an educated person should
know that fact. John Charles Daly: Well, let’s move to the creche decision in the Supreme Court. You know, recently the court ruled, in the
so called Pawtucket case, that is constitutional for creches to be included in holiday displays
on public grounds. Walter Berns: Let me speak to the Pawtucket situation. That’s a beautiful example of why the ACLU
should keep its nose out of public business. That was a case in which the ACLU filed this
suit. The creche was not on public property, it
was purchased with public funds. The question ought to be raised as to why
the court grandstanding in this particular case. My point here is that many of these issues
ought not to be litigated. And so I would ask the court to ask the ACLU,
“What skin off your nose is it that we have this creche in Pawtucket?” And if you insist on bringing this case to
the court, you might very well lose. And as a matter of fact, you lost. Now, what did you lose, and what have we lost,
because you lost that particular case?” I would imagine that, in the past, many a
city councilman, many a mayor has said, in effect, to some importunate constituent who
asks for a religious display and so forth, “Charlie, you know doggone well we can’t do
that. That gets into the First Amendment and the
city can’t put creches on top of the Palmolive Building and so forth and so on.” The consequence of the ACLU’s pushing that
suit is you have deprived every mayor around the country of that response to all the Charlies. And there are lots of Charlies of lots of
religions. But pretty soon the public world is going
to be festooned with a variety of religious symbols. Barry Lynn: I’ll tell you, one of the things
that Justice Black said once was that when you mix real government and religion, you
tend to destroy governments and degrade religions. And I think that in Pawtucket, we have the
perfect example of the degradation of an important religious symbol because some “Charlie” in
that state got his way with the mayor and the City Council. Here, in fact, is the second most important
symbol of the Christian faith, the manger scene, the Baby Jesus. In the middle of clowns, a talking wishing-well,
an elephant, a blue bear, some reindeer, and the Santa Claus house. Now if I cannot imagine anything more degrading
to the symbol, this central symbol of Christianity, then that scene, I’m surprised that someone
didn’t come out in the middle of the night and destroy the scene in a Pawtucket Square,
not because of constitution objections, but because of blasphemous objection. Walter Berns: The consequences of the ACLU filing
the suit, and the court granting standing to the ACLU, is usually to have that important
symbol of Christianity surrounded by red-nosed reindeer all over this broad land. Thank you very much, ACLU. Barry Lynn: Already we’re doing it and the proof
is in the pudding of that suit and other suits around the country that involve religious
symbols, mixing in the secular symbols so that those parents who are deeply religious
and deeply Christian, and who take the matter of Christmas seriously and try our darndest
to keep apart the secular meaning of Christmas and Santa Claus from the historic and religious
meaning of the birth of Jesus Christ. John Charles Daly: Well, I think we’ve covered several
of the major areas of conflict with respect to the constitution and religion. And in fairness to this fine audience we have,
who must have some questions, we’ve come to the question and answer session. May I have the first question, please? Mr. Ranney: Those of us in this room have
listened with great interest to this discussion of what’s constitutionally permissible and
what isn’t. With your permission, I’d like to ask a public
policy question and directed to all of the members of the panel. My question is this, what makes you think
that state support of religion in any form will do some good, and what evidence do you
have for that? And equally, what makes you think that States
supportive religion will do harm, and what evidence do you have for that? John Charles Daly: Who volunteers to start? Walter. Walter Berns: I’ll start. This is not evidence, Mr., Ranney, but it’s
testimony. It was the opinion of George Washington, of
course, uttered in his Farewell Address, that there was a connection between morality to
use our word and the viability of our republican institutions for the testimony is provided
by Tocqueville, who at great lengths had developed this theme. And indicated that the good health of the
United States really did depend upon the continuation of certain habits. Tocqueville probably provides the most thematic
treatment of the subject available to us. And in his discussion of it was really a question
of how under this constitution, under democratic auspices, when everything points to individualism
and taking care of oneself, how somehow does one remind all of us, all citizens of the
United States, that we have some responsibility towards others? And I would suppose that religious education
does, in fact, somehow, go some way to reminding us of that. Henry Hyde: I am inclined to agree with Mr.
Berns. One is tempted to say it might not help, but
it certainly couldn’t hurt in terms of an objective, non discriminatory recognition
of the fatherhood of God. If a majority of people in a given community
feel that way, it’s awfully hard to work on the brotherhood of man without some notion
of the fatherhood of God. At least, I found it hard to prove the basic
tenet that all men are created equal. Clearly, mankind is different. There are smart ones and dumb ones, talented
ones and klutzes, and all of those things. But if you don’t consider the essentials,
which are really God-given, you have problems with our basic philosophy. An objective standard of morality, I think
is what we need rather than all of these 235 million subjective standards of morality. So I, being very chary about abuses and preferences
and that sort of thing, I would like to see a little more return to the “fatherhood of
God” notion. John Charles Daly: Mr. Doerr. Edd Doerr: Of course, there are many people
with both genders who might feel that assigning a gender to God is a government taking a position. That’s out of line. Henry Hyde: She doesn’t mind. Edd Doerr: Okay, whatever. Or they… Henry Hyde: It. Edd Doerr: Whatever. I think that Madison hit the nail on the head
in his “Memorial and Remonstrance against Religious Assessments” in 1785, when he called
attention to the fact that when government aids religion, it corrupts religion, it corrupts
the clergy, it just messes everything up. And I think the evidence of history is that
those countries where there was a close union of church and state, where government subsidizes
religion, promotes it, tries to help it, religion itself becomes corrupted and an ally of frequently
very bad politics. The American experience, I think Cardinal
Cushing pointed it out and lots of other people that because we have pretty much implemented
the church state separation principle in this country, we have had more religious tolerance,
more religious freedom than any other society has ever known. And when something works right, as one of
Murphy’s corollaries has it, don’t mess with it. Church state separation has been a great boon
to our country. It’s our perhaps most significant contribution
to civilization. We should leave it alone and try to enhance
it. Walter Berns: May I add something to this? I should not like Mr. Doerr’s response to
this question to go as the final word on this question. Essentially, he was saying, “If it ain’t broke,
don’t fix it.” Let us not indulge the idea that the history
of the United States is almost 200 unbroken years of complete separation of church and
state. It certainly is not. There is more separation of church and state
now than there was in the past. There were certainly more since the Supreme
Court nationalized the First Amendment and this became a national question. There was certainly more association of church
and state in the States on the State level, at the municipal level in the past. Well, that’s enough. Edd Doerr: You’re quite right, but I think
we have been making progress. And this is to the good that we have a greater
separation now than we did 185 years ago. Henry Hyde: If I could just follow through for
a moment, I’m not satisfied that “it ain’t broke” in terms of society today. The narcotic problem is a tidal wave, whether
we know it or not. It is, in sports, among kids in school. Pornography, we’re so used to it now that
it doesn’t seem to do much. But it is a serious… Edd Doerr: What does that have to do with
government meddling with religion? Henry Hyde: I’m talking about the getting away
from the notion of right and wrong, and of God, an objective standard of morality, a
sanction for doing wrong other than doing what your nerve endings say will gratify me
now. So I think society is certainly damaged, if
not broken, and we should be looking for some answers. A book on ethics it works better this way
ain’t enough, in my opinion. Edd Doerr: Justice Rehnquist has said recently
some, I think, frightening things about America today. He has suggested that religious divisiveness
is not a real problem in 20th century America. And I think that we’ve seen in the process
of the last few months of debate over these volatile issues like school prayer and equal
access, some of the most intense demagoguery to support governmental intrusions into religious
matters. Demagoguery that has surpassed in my experience
of 10 years in Washington lobbying on all kinds of unpopular causes. Never have I received the mail, the hatred,
the threats that I have received, simply because I think that government should be out of the
prayer writing and the prayer selecting business. And those very valiant and courageous members
of the United States Senate who fought the school prayer amendment on the floor, received
letters consistently that were as disgraceful to legitimate and honest political debate
as any I’ve ever seen on any issue. I think the potential for religious divisiveness
occurs, it occurs in communities around this country. When religious clubs begin to meet in high
schools, we see neighbors pitted against neighbors, children pitted against neighbors, literally
homes burned down of those courageous people within the community who protest the activities
that are going on in the public schools. We are a hair’s breadth away from true internecine,
inter religious warfare in the United States. And what we have seen happening in communities
all over the country would certainly increase dramatically if we sent any constitutional
amendment about church and state out for ratification by all the States. Walter Berns: I want to disassociate myself with
what Reverend Lynn said, and to say that we are a hair’s breadth away from Khomeini’s
Iran or Ian Paisley’s Northern Ireland, or Archbishop Laud’s, 17th century Britain, I
think, is hyperbole. I also would want to say to Mr. Doerr, the
issue is not government supporting religion, the issue is, for example, whether tax exemption
should be given to church property and so forth and so on, and Supreme Court has upheld
that. That’s the issue, not whether we have an established
church in the full sense of the term. No one on this panel wants an established
church in the United States. I think everybody on this panel is in favor
of toleration. Everyone on this panel would abhor the situation
that Reverend Lynn describes, and certainly would not take any action leading to it. John Charles Daly: Next question, please. Yes, sir. Dick: Yes. I’m Dick Howard of the University of Virginia. The panel has made clear the role of the Supreme
Court, especially since 1947 in importing the notion of the “wall of separation” into
its First Amendment religion decisions. In light of that it’s rather striking that
the most recent, the last three significant Supreme Court decisions have all been in effect
accommodationist. They have all upheld challenged state measures,
the Minnesota case upholding tuition tax credits, the Nebraska case upholding the paying of
chaplains and the Pawtucket, Rhode Island, case upholding the display of the creche. I’m curious to know, and I direct this question
to any or all the members of the panel whether you think those three cases represent simply
some marginal adjustment in the court’s thinking about the First Amendment or are we now all
these years after ever since beginning to see something that may portend a major adjustment
in the direction of permitting more accommodation by States and by government generally of religious
practices in the public arena? Barry Lynn: I wouldn’t call what’s happened
simple accommodation, because there is long, and serious, and thoughtful case law about
accommodating religious beliefs. In other words, at what point can one exempt
individuals on religious grounds from laws of general applicability? I think that these decisions that you mentioned
have gone much further than that. They’re not accommodation. They come dangerously close to what we mean
by establishment, by the very non-neutrality that creates the dangers I posed in the beginning
of this program. That is the degrading of religion, the trivializing
of religion, the creation of political warfare between and among religious groups. I think they’re bad decisions. Most of them, thankfully, are very narrow
decisions. And I think it will to some degree depend
on the quality and the capabilities of the next few appointees to the Supreme Court as
to whether this will be a floodgate toward establishment instead of a responsible recognition
of accommodation. John Charles Daly: Walter? Henry Hyde: Well, I disagree. I think they’re fine decisions. I think the absolute nature of the Everson
decision is being recognized as based on non scholarship. It wasn’t based on how the first Congress
and the framers felt and acted in the early presidents, but based on how the court felt
the law ought to be at that time. But whether it will continue again, is interesting. It depends on the personnel of the court. So much depends on the personnel of the court,
and that’s the vice of letting the court write legislation or rewrite the constitution according
to their pre-possessions. So, you know, it’s interesting around the
turn of the century, the court was anathema to the progressive forces of America because
it was reactionary. Today, or recently, when it is a liberal court,
it is the darling of the progressive forces in Congress, the elected body is anathema. So it ebbs and flows, depending on the liberality
or reactionary nature of the court. John Charles Daly: Next question. Yes, ma’am. Elizabeth: I’m Elizabeth Little, and I’m a
member of Concerned Women for America. Mr. Lynn, you stated that you are against
any doctrinal instruction of children. Many parents find it in extreme disfavor that
their children are being taught situational ethics in school with public’s tax money. They personally believe that there are intrinsic
rights and intrinsic wrongs. And they find this philosophy of situational
ethics quite a conflict with their own moral standards. What rights do you think that these parents
have? Barry Lynn: I think that parents have a right
to expect that, in a class which is about to teach questions of values, that students
are taught that some people believe that there are different values depending on the situations
and then other people believe that there are fundamental correct, right, and wrong positions
on the great moral questions of the day. And I think that any school that is not teaching
that both of those are responsible ways to do moral analysis is a school district that
needs a little help and its teachers need a little help. But I do resist the idea, that I believe is
a part of your question, that somehow situational ethics has been prescribed as the national,
or state religion, or the secular humanism, or that some other phrase that generally reflects
whatever a person doesn’t seem to like, but it has been established as the national religion. It has not. Neither is situational ethics, courses and
ethics and how one does. Moral reasoning is appropriate in the schools
and it should reflect the many, many dozens of varieties of ethical thinking. Walter Berns: I’m on the National Council of
the Humanities, and the question of support from federal tax dollars comes up quite frequently
with respect to situational ethics or some variety of it, and the teaching of these things
at seventh-grade level, for example. My own view is if I can encapsulate it, I
would prefer to have children at that level told with some authority behind that, that
it is wrong to murder another human being or to steal from that other human being or
etc., than it is to have these subjects introduced as debatable propositions. And I think that’s a fair way of stating it. And if we were concerned about, as the Supreme
Court is and has made a rule of law out of, the difference between older and younger and
what might be done in colleges with older people and not done with children younger,
because younger are more impressionable, I think that carries over here too. I want to impress on young people that murdering
other human beings is not debatable. Barry Lynn: When you get beyond those two examples,
what is the basis for the moral absolutes that you would teach? Walter Berns: Yeah, absolutely I recognize that. We have to avoid anything that leads us in
the direction of Ian Paisley or the Ayatollah Khomeini, etc. I don’t minimize the problem at all, Reverend. Edd Doerr: Of course, teaching values in school
is not a simple matter of one, two, three, this is the truth, you don’t question it. Well, I think teachers have a more sophisticated
approach to the situation. You don’t say a murder is wrong simply because
I say so, or because it’s in the Ten Commandments. It is appropriate for a teacher to encourage
a class of kids to discuss why a murder is wrong, why stealing is wrong? And you encourage the kids to… Walter Berns: You can try it with me, Mr. Doerr,
and I can figure out some reasons why it isn’t and I suspect the 10-year old can too. John Charles Daly: All right. Next question, please. Yes, sir. Maury: I’d like to ask the panelists to comment
on the recent U.S. appointment of a ambassador to the Holy See. Henry Hyde: I don’t think it’s any big deal,
frankly. I think it’s a change in title. I know it offended a lot of people that it
was an ambassador to a religion and hence a violation. I don’t know if it was worth all of the fuss
that it created, although it didn’t create all that much fuss. I don’t recall Congress dealing with it at
all, but I don’t think it’s an earth-shaking event, frankly. Barry Lynn: I think it certainly gives added
credibility to the notion that one religion is favored, and that is the Roman Catholic
faith, because we don’t have an ambassador going to the World Council of Churches in
Geneva, Switzerland serving as a representative of the United States. And I think the other thing that it does… Henry Hyde: I’d vote for that if they did. Barry Lynn: Would you? Even the World Council of Churches? Henry Hyde: Sure. Edd Doerr: What about Reverend Moon? Henry Hyde: They might learn some from… Barry Lynn: Let me just finish. I think the other thing is that it does give
a favorite status to this church because it makes it makes it much easier for that religious
organization to speak to the United States government through the Department of State. It gives a corridor to them that is not given
to any other faith. John Charles Daly: Somehow, we wandered into another thicket
in answering that question, and I much regret our time is all gone. This concludes another public policy forum
presented by the American Enterprise Institute for Public Policy Research. Good-bye from Washington. Conclusion: It is the aim of AEI to clarify
issues of the day by presenting many viewpoints and the hope that by doing so, those who wish
to learn about the decision making process will benefit from such a free exchange of
informed and enlightened opinion. This public policy forum series is created
and supplied to this station as a public service by the American Enterprise Institute, Washington,
DC. AEI is a nonprofit, nonpartisan, publicly
supported research and education organization. For a transcript of this program, send $3.75
to the American Enterprise Institute, 1115, 17th Street, Northwest Washington, DC 20036.

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