Religion in public life: finding a consensus

WASHINGTON — A diverse, 28-member drafting committee has issued a description of current law regarding religious expression in the United States that it says is unprecedented in scope.

The document is the most thorough statement of the status of the law on American church-state issues to be produced so far, according to its sponsor, the Wake Forest University Divinity School's Center for Religion and Public Affairs. While there have been joint statements on religion in the public schools, this is the first one to address religion in American public life so expansively, said Melissa Rogers, the center's director.

The statement, Religious Expression in American Public Life, from drafters at different points along the left-right policy spectrum, acknowledges some of them frequently disagree on how courts should rule on issues of religion and government but they were able to reach consensus on the present status of the law. "However much we differ about what the law should be, we agree in many cases on what the law is today," they say in the document.

In the 32-page statement released Jan. 12, the drafters address such topics as the involvement of religious organizations and people in politics and public policy, religious meetings and religious symbols on government property, chaplains in the military and legislature, and religious practice in the workplace.

The drafters say they hope the document "will improve our national dialogue on these issues."

The organizations with representatives on the drafting committee included the Ethics & Religious Liberty Commission (ERLC), American Center for Law and Justice (ACLJ), Baptist Joint Committee for Religious Liberty (BJC), The Freedom Forum First Amendment Center and a variety of Jewish public policy organizations.

Citing a U.S. Supreme Court opinion, the drafters encourage Americans to remember the First Amendment's contrast between "government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect."

The reference to "private speech," the drafters say, means "individuals and groups have the right to practice and promote their faith, not only within their homes and houses of worship, but also publicly in places such as parks, street corners, the airwaves, open meetings and many other places subject to the same time, place and manner limits that apply to other nongovernmental speech."

The document, which addresses the subject in 35 questions and answers, includes the following points about current law:

• "The mere fact that a law coincides with religious tenets does not mean it violates the religion clauses of the Constitution."

• "Public schools may not promote or endorse religious expression, but students are free to pray alone or in groups, read their scriptures and discuss their faith so long as they are not disruptive, do not infringe upon the rights of others and comply with the same time, place and manner restrictions applicable to other non-school-related student expression."

• "The First Amendment protects the rights of religious organizations to participate in political activities," but, if they want to maintain their tax-exempt status, they must abide by Internal Revenue Service restrictions.

• "The Supreme Court has not ruled on the constitutionality of the military chaplaincy, but lower courts have upheld it."

• "Employers have an obligation to reasonably accommodate the religious practices of their employees unless doing so would create undue hardship for the employer."

• "A city may not require individuals and groups that are merely seeking to advocate a cause, including a religious cause, to get a permit before engaging in door-to-door advocacy," though it may control the "time, place and manner" of those actions.

The statement says not all the drafters would endorse everything the law currently permits. "This document describes what is legally permissible, not necessarily what is desirable," the drafters say.

Among members of the drafting committee, were Melissa Rogers, ERLC president Richard Land, ACLJ Senior Counsel Colby May; BJC Executive Director Brent Walker and General Counsel Hollyn Hollman; First Amendment Center Senior Scholar Charles Haynes; Catholic University law professor Robert Destro; Nathan Diament, director of public policy for the Union of Orthodox Jewish Congregations of America; Richard Foltin, director of legislative affairs for the American Jewish Committee; David Saperstein, director of the Religious Action Center of Reform Judaism; and Marc Stern, acting co-executive director of the American Jewish Congress.

Among the organizations that did not have a current staff member on the drafting committee were the American Civil Liberties Union, Americans United for Separation of Church and States and People for the American Way.

The statement is available online at http://divinity.wfu.edu/pdf/DivinityLawStatement.pdf.

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