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«Fordham Urban Law Journal Volume 24, Issue 3 1996 Article 5 Linking Genes with Behavior: The Social and Legal Implications of Using Genetic Evidence ...»

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Roger Williams's view that "worldly corruptions... might consume the churches if sturdy fences against the wilderness were not maintained").

82. See Nina Totenberg, A Tribute to Justice William J. Brennan, Jr., 104 HARV. L.

REV. 33, 37 (1990) ("Justice Brennan is a religious man, a devout Catholic who attends mass every week. Yet.... is the author of opinions erecting a high wall of he separation between church and state, including decisions banning parochial school aid...11).

83. Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989).

84. See, e.g., Aaron Epstein, Blackmun Remembered as Abortion Rights Champion, THE NEW ORLEANS TIMES-PICAYUNE, April 10, 1994, at A18 (noting that Justice Blackmun is a devout Methodist).

85. Id. at 655 ("[Blackmun's] view of the Establishment Clause reflects an unjustified hostility toward religion, a hostility inconsistent with our history and our precedents, and I dissent from this holding.") (Kennedy, J., dissenting).

FORDHAM URBAN LAW JOURNAL [Vol. XXIV accusations are as offensive as they are absurd. Justice Kennedy apparently has misperceived a respect for religious pluralism, a respect commanded by the Constitution, as hostility or indifference to religion. No misperception could be more antithetical to the values embodied in the Establishment Clause.8 6 As the Supreme Court has repeatedly stated: "A union of government and religion tends to destroy government and to degrade '87 religion. It destroys government because it leads to division along religious lines-the sort of conflicts that have historically led to brutal wars and are still tearing apart many countries, including the former Balkans.' And a union between government and religion degrades religion by watering it down or homogenizing it as a precondition for government approval. 89 In the words of the First Amendment's author, James Madison: "Religion flourishes in 0 greater purity, without than with the aid of Gov[emmen]t.

We in the United States have one of the most religiously vibrant communities in the world. 91 Those who have studied religion in America have consistently concluded that religion is so strong here precisely because of our Establishment Clause. For example, back in the 1830s, Alexis de Tocqueville observed that religion was the strongest of all American institutions, and wrote that "all thought that the main reason for the quiet sway of religion over their country was the complete separation of church and state. '9 2 To this day,

86. Id. at 610.

87. Engel v. Vitale, 370 U.S. 421, 431 (1962); see also Lee v. Weisman, 505 U.S.

577, 606 n.8 (1992) (Blackmun, J., concurring) (quoting Engel, 370 U.S. at 431).

88. See Engel, 370 U.S. at 429 (stating that "[the constitutional framers] knew the anguish, hardship and bitter strife that could come when zealous religious groups struggled with one another to obtain the Government's stamp of approval...

89. See Weisman, 505 U.S. at 589-90.

The design of the Constitution is that preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere, which itself is promised freedom to pursue that mission. It must not be forgotten then, that while concern must be given to define the protection granted to an objector or a dissenting nonbeliever, these same Clauses exist to protect religion from government interference.


90. Letter from James Madison to Edward Livingston (July 10, 1822), in 9 THE 1819-1836, at 98, 103 (Gaillard Hunt ed., 1910). AcWRITINGS OF JAMES MADISON cord, JAMES MADISON, MEMORIAL AND REMONSTRANCE AGAINST RELIGIOUS AsSESSMENTs (1785), reprinted in 8 THE PAPERS OF JAMES MADISON 1784-1786, at 295, 301 (Rutland, et al. eds., 1973).

91. Barbara Bedzek, Religious Outlaws: Narrative of Legality and the Politics of Citizen Interpretation,62 TENN. L. REV. 899, 958 n.240 (1995).

92. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 295 (J.P. Mayer ed. & George Lawrence trans., 1969), quoted in Marsh v. Chambers, 463 U.S. 783, 822 (1983) (Brennan, J., dissenting).


1997] the United States has one of the highest percentages of regular attendance at religious services in the world-even higher than that of countries with official established religions.93 Just as religion flourishes when it is separate from government, the opposite is also true. Religion is threatened by government involvement, including government involvement that is ostensibly in the form of "support."'9 4 Even government measures that seem to support religion in the short run-for example, the parochial school aid program that a bare majority of the Supreme Court upheld 95 in June 1997 (overturning the Court's 1985 decision that had struck down this same program 96)-in the long run endanger religion's independence and vitality. This was eloquently explained by

Justice David Souter, dissenting from the Court's 1997 ruling upholding parochiaid:

The rule [against government subsidization of religion] expresses the hard lesson learned over and over again in the American past and in the experiences of the countries from which we have come, that religions supported by governments are compromised just as surely as the religious -freedom of dissenters is burdened when the government supports religion....

The ban against state endorsement of religion addresses the same historical lessons.... The human tendency, of course, is to forget the hard lessons, and to overlook the history of governmental partnership with religion when a cause is worthy, and bureaucrats have programs. That tendency to forget is the reason for having the Establishment Clause (along with the ConstiGEORGE GALLUP, JR. & JIM CASTELLI, THE PEOPLE'S RELIGION: AMERICAN FAITH IN THE 90's 48 (1989).

94. See Weisman, 505 U.S. at 608-09 (Blackmun, J., concurring). In Weisman, Justice Blackmun noted:

When the government favors a particular religion or sect, the disadvantage to all others is obvious, but even the favored religion may fear being "taint[ed]...with a corrosive secularism." The favored religion may be compromised as political figures reshape the religion's beliefs for their own purposes; it may be reformed as government largesse brings government regulation. Keeping religion in the hands of private groups minimizes state intrusion on religious choice and best enables each religion to "flourish according to the zeal of its adherents and the appeal of its dogma."


95. Agostini v. Felton, 117 S. Ct. 1997 (June 23, 1997) (overturning a 1985 decision and holding that Establishment Clause was not violated by a government program under which public school teachers are sent into parochial schools to teach remedial classes there).

96. Aguilar v. Felton, 473 U.S. 402 (1985).

FORDHAM URBAN LAW JOURNAL [Vol. XXIV tution's other structural and libertarian guarantees), in the hope of stopping the corrosion before it starts.9 7 The "corrosive" effect upon religion of breaches in the wall separating it from government are illustrated by the latest school prayer case decided by the Supreme Court, Lee v. Weisman.98 The American Civil Liberties Union represented Daniel and Deborah Weisman, a father and daughter, who successfully argued that the First Amendment barred prayers at public school graduation ceremonies. 99 As is typically the case with any organized school prayers, the school in that case had certain guidelines that it issued to the members of the clergy who delivered the prayers, which were designed to make such prayers nonsectarian. 1 But, as the Court noted, this kind of government involvement with religion should be at least as troubling to believers as it is to nonbelievers.10 ' For devout believers, it is abhorrent for a government official to tell them and their religious leader what to include and what not to include in a prayer. A Baptist minister, with whom I have collaborated in defending both the Free Exercise and Non-Establishment Clauses of the First Amendment, has noted that, from a religious person's perspective, a so-called "nonsectarian prayer" is an oxymoron. 1 2 If a statement is nonsectarian, he observes, it cannot be a prayer, but conversely, if it is a genuine prayer, it cannot be nonsectarian. 03 Consider the case of one student in Texas, the son of a Baptist minister, whose school officials recently told him that his "nonsectarian, nonproselytizing" prayer could not include the words "Jesus" or "God."'" Complaining that he did not know how to pray without saying "Jesus," he sued the school for mental anguish caused by violating his religious freedom. 0 5 So, the price that must be paid to utter a school-sponsored prayer is precisely to strip it of its essential religious character, an affront to many devout people. 0 6 No wonder, then, that more reliAgostini v. Felton, 117 S. Ct. 1997, 2020-21 (1997) (Souter, J., dissenting) (citations omitted).

98. 505 U.S. 577 (1992).

99. ld. at 599.

100. Id. at 581.

101. Id. at 588-89.

102. Oliver S. Thomas, Remarks at the Law & Philanthropy Conference, New York University Law School (Oct. 15, 1993).

103. Id.

104. Pamela Coyle, The Prayer Pendulum, 81 A.B.A. J., Jan. 1995, at 62, 65.

105. Id.

106. See Lynch v. Donnelly, 465 U.S. 668, 727 (1984) (Blackmun, J., dissenting).

Justice Blackmun, dissenting from the majority's rejection of an Establishment Clause 1997] RELIGION AND POLITICS gious institutions signed amicus briefs in support of the ACLU's position in the Weisman case-opposing the school-organized graduation prayer-than on the other side. °7 Indeed, this inevitable problem has led even some members of the so-called "Religious Right" to criticize the ploy that is now being advocated by other members of the Religious Right: "student-initiated, nonproselytizing, nonsectarian" prayer at graduation ceremonies, pursuant to school-organized elections and school-administered guidelines.' 8 For example, Kelly Shackelford, who is the Southwest Regional Director of the Rutherford Institute, has commented, "The whole point [of the Establishment Clause] is to keep government hands out of these things."'1 9 By the same token, for those who are non-religious, or who follow different religious traditions from those asserted in the schoolsponsored prayer, the exercise is equally problematical, as Justice

O'Connor has well explained:

challenge to a city-sponsored nativity scene, stressed that, under the majority's rationale, "[t]he creche has been relegated to the role of a neutral harbinger of the holiday season, useful for commercial purposes, but devoid of any inherent meaning." Id.

107. Briefs supporting the ACLU's clients, the Weismans, were filed by the Baptist Joint Committee on Public Affairs, the National Council of Churches of Christ in the U.S.A., the General Conference of Seventh-Day Adventists, and James E. Andrews as Stated Clerk of the Federal Assembly of the Presbyterian Church (U.S.A.), as well as several Jewish organizations, including the American Jewish Congress, the American Jewish Committee, the Anti-Defamation League of B'nai B'rith, and the National Jewish Community Relations Advisory Council. See Brief Amici Curiae of the American Jewish Congress, Baptist Joint Committee on Public Affairs, American Jewish Committee, National Council of Churches of Christ in the U.S.A., Anti-Defamation League of B'nai B'rith, General Conference of Seventh-Day Adventists, People for the American Way, National Jewish Community Relations Advisory Council, New York Committee on Public Education and Religious Liberty, and James E. Andrews as Stated Clerk of the General Assembly of the Presbyterian Church (U.S.A.) in Support of Respondents, Lee v. Weisman, 505 U.S. 577 (1992) (No. 90-1014). The specifically religious institutions that filed in support of the school district were the Southern Baptist Convention and the National Association of Evangelicals. See Brief of the Southern Baptist Convention Christian Life Commission as Amicus Curiae Supporting Petitioners, Weisman (No. 90-1014); Brief Amicus Curiae of the Christian Legal Society, National Association of Evangelicals, and the Fellowship of Legislative Chaplains, Inc. in Support of Petitioners, Weisman (No. 90-1014).

108. Harris v. Joint Sch. Dist. No. 241, 41 F.3d 447 (9th Cir. 1994), vacated and remanded with directions to dismiss as moot, 115 S.Ct. 2604 (1995); Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963 (5th Cir. 1992), cert. denied, 508 U.S. 967 (1993);

ACLU v. Blackhorse Pike Regional Bd. of Educ., No. 93-5368 (3d Cir. 1993); Friedmann v. Sheldon Community Sch. Dist., No. C93-4052 (N.D. Iowa 1993), vacated on standing grounds, 995 F.2d 802 (8th Cir. 1993); Gearon v. Loudoun County Sch. Bd., 844 F. Supp. 1097 (E.D. Va. 1993).

109. Coyle, supra note 104, at 65.

450 FORDHAM URBAN LAW JOURNAL [Vol. XXIV The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community. Government can run afoul of that prohibition in two principal ways. One is excessive entanglement with religious institutions, which may interfere with the independence of the institutions, give the institutions access to government or governmental powers not fully shared by nonadherents of the religion, and foster the creation of political constituencies defined along religious lines. E.g., Larkin v.

Grendel's Den, Inc., 459 U.S. 116 (1982). The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message. 11 0 This adverse impact of government-endorsed religion is not just a matter of


constitutional theory. Its tangible damage is demonstrated by Deborah Weisman's experience. The most common question that she got about her case-and the one that the ACLU most often hears whenever we seek to enforce the Establishment Clause-is: "Why make such a big deal out of a small prayer?" Here is Deborah's answer to that question, speaking

from her own experience as a public school student:

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