 This program is brought to you by Emory University. Good afternoon. I would like to welcome everyone to this lecture, and I thank you all so much for taking time out of your schedules. This is a very special event for us. My name is Frank Alexander, and I'm privileged to be on the faculty here at Emory Law School and co-direct the Law and Religion Program with my colleague John Whitty. Today's lecture is the part of our new project in the Center for the Interdisciplinary Study of Religion that has been funded by the Alonzo L. McDonald Family Agape Fund. This fund was created by Al and Susie McDonald, and we're delighted to have Al McDonald here and sad that his wife Susie could not join us this afternoon. Susie's been ill, but thankfully she is recovering. Al McDonald is an incredible figure in what he has done and what he stands for. He's a native Georgian born here in Atlanta, began his career working for what is now the AJC, the Atlanta Journal at the time. He's an Emory graduate. He then, however, migrated away from reporting and went to work for Westinghouse. After five years with Westinghouse, he went to work for what was then a small company called McKinsey. Al McDonald then rose through McKinsey and Company, headed the Paris office, the Zurich office, became the managing director worldwide of McKinsey and Company. In the middle of that position, a fellow Georgian called upon Al McDonald and said, Al, I need you. Most people could not get to Al McDonald, but this person was Jimmy Carter. The multilateral trade negotiations were at a stall. President Carter said, I need somebody who's got the understanding and clout and capability of pulling off the multilateral trade negotiations. In 1977, President Carter appointed Al McDonald as the special ambassador in charge of the trade negotiations. In record short time, Al McDonald completed the negotiations for the trade treaties. Al McDonald then, instead of going back to McKinsey and Company, which he had planned to do, he then agreed to become deputy chief of staff in the White House for President Carter. After he left the White House, Al McDonald decided not to go back into McKinsey, instead went to Bendix and was the CEO there for several years. He jokingly says he retired in 1983, but what he did was start his own development and investment bank, Avenere Group, out of Michigan. He is still on the board of numerous corporations worldwide and in buying and selling companies and investing in a number of startup ventures. But one of the most significant features of what Al and Susie McDonald have done in recent years is a profound commitment of their own personal faith, their personal resources, and their energies to have an impact on education. Mr. McDonald is a trustee emeritus of Emory University, but what he has done most recently is make possible for us in the Center for the Interdisciplinary Study of Religion a five-year project in which we are doing a second series of works in Christian jurisprudence. Al and Susie, his wife, are deeply committed to developing some of the finest scholarship they can in the academies, not just here at Emory, but at other schools across the country. Scholarship which is devoted to questions of faith and the practice of that faith in the community. Much as Al and Susie have done in their own lives, they're challenging constantly us academics and academic institutions to understand in greater ways than they ever have the manner in which faith impacts their walk in the community. And he's now doing that with us in the law school, challenging us and making possible for us to begin to probe the question of how we can begin to walk our talk in better ways. The McDonald gift to the Center for the Interdisciplinary Studies of Religion makes possible this lecture series. And the first lecture today is part of this series and this new project is being given by one who is known to all of you, my dear brother, my friend, my colleague, John Whitty. One of the mantras of corporate development that is repeated often is that if you want to grow, if you want to develop, if you want to be better, always hire people that are smarter and better than you. And that's what I am so delighted to have been able to do with John Whitty. I came here and then was able a few years later, Professor Harold Berman joined our faculty. And then Hal Berman and I were able to persuade the young scholar John Whitty, a recent graduate of Harvard, to come down here and join us in our law and religion program. A mere 18 years ago, it's phenomenal what John Whitty has done, both for our program, for the law school, for the university, indeed for the study of legal history, law and religion across the country and now across the world. Hardly anything like a native southerner, John hails from across the northern border. He's a Canadian by birth. He speaks more languages than I can count. And the thing that's most amazing about John's language ability is that his books have now been translated into more languages than he speaks. He has authored more than 20 books in recent years. He has authored over 120 articles in just a few years. He doesn't set the standard, thankfully, for those of us in the academy. He is so far beyond what the rest of us do collectively in any given year. Part of the way he accomplishes this, I give him grief, is he only needs to sleep four hours a night. And those of you in his classrooms know this well because he is up at 4.30 every morning preparing his lectures. John teaches more students than any other professor in the law school, more effectively than any other professor in the law school. He has won more teaching awards than all the rest of the faculty combined. Not just here at the law school, but every teaching award that this university gives, John has been recognized with. His scholarship is known not just here at Emory, but in every major university in the United States. On a weekly basis, virtually, John is speaking to audiences, law school, theology, philosophy groups throughout the United States, distinguished lectureships at schools such as Princeton, Harvard, Chicago, and increasingly abroad, distinguished professorships and lectureships in England and just next month in Tel Aviv. So there's little I can say that's good that you perhaps wouldn't already be aware of about my brother John. But the most important thing that I can share with you is how proud I am of my little brother John. I present to you today Professor John Witte to speak on Fact and Fictions of Separation of Church and State. My goodness. Thank you very much, my dear friend and brother and colleague, for that very warm and remarkably generous introduction. Good afternoon to each of you. It's a privilege to see all of you here. Thank you so much for taking the time to be with us today. I want to join Professor Alexander in offering a very special word of thanks to Mr. Alonzo McDonald for sponsoring this new lecture series and the accompanying project on Christian Jurisprudence. Mr. McDonald, as you heard, has been a model leader of church and state and society and has long lavished every university ample portions of his time, of his talent and of his treasure. And I consider it a great personal privilege to be standing at a lectern that bears his good name and that of his wonderful family. I thank you, Mr. McDonald, for taking the time to be with us today and I think it would not be inappropriate, albeit embarrassing for you to ask you to perhaps take a little bow and to receive the applause of appreciation from our colleagues who are gathered here. Al McDonald. In the past decade, a veritable cottage industry of important new books and articles and briefs and judicial opinions has emerged devoted to the history of separation of church and state. We now know a great deal more than we did about the history of separationist rhetoric from Thomas Jefferson's famous 1802 letter to the Danbury Baptist Association to Justice Hugo Black's famous opinion in 1947 in the case of Everson versus Board of Education. We now know more about the odious manipulation of separationist rhetoric by the Ku Klux Klan and other nativist groups against Catholics and Jews and other minority faiths and new emigrants in the later 19th and early 20th centuries. And we now see much more clearly than we did before that Justice Black drew some of his inspiration from these nativist teachings particularly those of the Ku Klux Klan of which he was a ranking member in crafting his famous Everson opinion mandating universally in the United States the separation of church and state. For peculiar souls like me who labor on the history of law religion and the First Amendment this has all been a rather sobering but edifying corrective to the traditional story. But the newly corrected history of religious liberty is quickly beginning to create its own ample distortions of the historical record. The first distortion is the argument that the principle of separation of church and state was an invention of 19th century anti-clerical and anti-religious elites starting with Thomas Jefferson. The second distortion is the argument that this principle was hijacked by later 19th century anti-catholic and then anti-religious nativists who introduced all manner of prejudicial changes in American law in the name of separation of church and state but to the detriment if not the bankruptcy of religious liberty for all. Because of its recent pedigree and because of its odious origin it is now argued we should jettison the principle of separation of church and state and some of the harsher laws that it occasioned including some of those old laws from religious schools and religious institutions. I respectfully disagree with this new history. My reading of the sources leads me to conclude that separation of church and state has a much longer history and a much more complex and wholesome pedigree than some recent history writing allows. And today I'd like to argue that long before the famous 1802 letter to the Danbury Baptists the purported source of separationist teachings long before that the 18th century American founders had at least five distinct understandings of separation of church and state several of them with millennium long western roots. Each of these understandings made important contributions to the protection and prosperity in the 19th century and each of these understandings still holds enduring lessons for us today as I'd like to argue 36 and a half minutes from now as I move into my conclusion. Separation of church and state is often regarded as a distinctly American and a relatively modern invention. In reality separationism is an ancient modern teaching rooted in the Bible. The Hebrew Bible repeatedly commanded the chosen people of ancient Israel to remain separate from the Gentile world around them and to separate the Levites and other temple officials from the rest of the people. The Hebrew Bible also made much of building and rebuilding walls to protect the city of Jerusalem from the outside world and to separate the temple from its priests, from the commons and its peoples. Traditions still recognized and celebrated in the prayers and rituals that occur at the western wailing wall. The New Testament warned Christian believers to remain separate from the world not to conform to the world and its temptations and ever mindful that their true citizenship lies in heaven. Echoing the Hebrew Bible St. Paul spoke in Ephesians 2 literally of a wall of separation between Christians and non-Christians interposed by the law of God. These Biblical passages have inspired a long history of western reflection on separation and the wall of separation between church and state. The archives hold a massive fair ago of patristic medieval and early modern sermons and Biblical commentaries that call for a separation between the faithful and the fallen the religious and the political the clergy and the laity the spiritual and the temporal the prelate and the magistrate and the church and the state. At the same time churchmen and statesmen over the centuries forged countless treaties, statutes and other constitutional texts to define and to delimit their respective offices and powers and to determine their mutual duties and rights. And these theological and political teachings were distilled into powerful models of separationism known as two ways two cities, two powers, two swords two kingdoms and other dualistic constructions. Many of these models were transmitted across the Atlantic to the American colonies and then transmuted to accommodate local colonial conditions. The 18th century American founders called on this European and colonial legacy to press at least five concerns at once. First, the principle of separation was invoked as a means to protect the church from the state. This had been a common Christian understanding of separation since the first century of the common era. And it was captured in the Christian clergy's perennial call in subsequent centuries for freedom of the church or what the edict of Milan of 313 had called for the first time in the West the free exercise of religion and religious groups. The 18th century American founders principle concern was to protect church affairs from state intrusion church properties from state encroachment, church rules and rights from political coercion and control. This understanding of separation of church and state was prominent in 18th century America. Elisha Williams, the great New England jurist, spoke for many churchmen when he wrote every church has the right to judge in what manner God is to be worshiped by them and what form of discipline ought and what clergy ought to be elected by them from all of which the state must be utterly and completely separate. George Washington wrote in 1785 of the need quote to establish effectual barriers so that there was no threat to the religious rights of any religious society including beleaguered minorities like Jews and Catholics and Quakers whom Washington favored with a number of special letters pledging his support. Thomas Jefferson called in his 1784 notes on Virginia for government to resist what he termed intermeddling with religious institutions their doctrines, disciplines or exercises. Every religious society said Jefferson has a right to determine for itself the times for these exercises and the objects proper to them according to their own peculiar tenets and none of this can involve in any way the state or the magistrate. This first understanding of separation of church and state was captured especially in state constitutional guarantees of the free exercise rights of peaceable religious groups the right of religious bodies to incorporate and to hold authority to appoint and remove clergy and other officials to have sites and rights of worship education charity mission burial to maintain standards of entrance and exit for their voluntary members and more all of which the state constitutions passed in the 1770s and 1780s delineated in great detail. This understanding of separationism was also at least implicit in the First Amendment free exercise guarantee. Earlier drafts of the First Amendment and the cryptic house debates of 1789 that have survived about these drafts spoke repeatedly of the need to protect religious sex denominations groups and societies to guarantee their rights to worship property practice. None of this concern for detailing the rights of religious groups was rejected in the house debates and can at least be plausibly read into the generic free exercise guarantee that was ultimately passed Congress shall make no law prohibiting the free exercise of religion. Second the 18th century founders invoked the principle of separation of church and state to protect not only the church from the state but also the church. This was a more recent Western understanding but it became increasingly prominent in the 17th and 18th centuries. The sores tyrannies have been those who have united the royalty and the priesthood in one person wrote the authors of Cato's letters in 1723. Churchmen when they ruled states had not only double authority but also double insolence and mercy and regard to conscience property and the domains and demands of statecraft. In the same vein John Adams devoted much of his 1774 dissertation on the canon and the feudal law to documenting what he called the tyrannious outrages that the medieval Catholic church and early modern Protestant churches had inflicted through their control of the state. A wicked confederacy between two systems of tyranny Adams wrote with ample bitterness. This second understanding of separation helped to inform the movement in some states to exclude ministers and other religious officials from participating in political office. Such exclusions had been commonplace among 17th century American Puritans and various evangelical and anabaptist groups. But arguments for such clerical exclusions became more commonplace in 18th century America. Seven of the original 13 states and 15 later states banned ministers from serving in political office. State constitutional provisions not formally outlawed until the 1978 Supreme Court case of McDaniel v. Patty which held that the per se exclusion of ministers from political office was a violation of their free exercise rights. Third the principle of separation of church and state was invoked as a means to protect the individual's liberty of conscience from the intrusions of either the church or the state or worse both of them together. This had been an early and enduring understanding of separationism among colonial quakers and anabaptists. This argument became more prominent in 18th century America. Every man has an equal right to follow the dictates of his own conscience in the affairs of religion. Elisha Williams wrote this is an equal right with any rulers be they within the church, within the state or within a combination of the same. James Madison put this case in his 1785 memorial and remonstrance calling for what he termed a great barrier between church and state to defend the religious rights of the individual. And Thomas Jefferson's famous 1802 letter to the Danbury Baptist Association also tied the principle of separation of church and state directly to the principle of liberty of conscience. After his opening salutation, Jefferson's letter reads as follows believing with you that religion is a matter which lies solely between a man and his god that he owes a count to none other for his faith or his worship that the legitimate powers of government reach actions only and not opinions. I contemplate with sovereign reverence the act of the whole American people which declared that their legislature shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, thus building a wall of separation between church and state adhering to this expression of the supreme will of the nation in behalf of the rights of conscience. I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man their natural rights convinced he has no natural right in opposition to his social duties. In Jefferson's formulation here, separation of church and state assured individuals of their natural rights of conscience which could be exercised freely and fully to the point of breaching or shirking their social duties. Jefferson is not talking here about separating religion from human rights altogether. Indeed, in the very next paragraph of his letter, President Jefferson performed an avowedly religious act of offering prayers on behalf of his Baptist correspondence. He wrote, I reciprocate your kind prayers for the protection and blessing of the common father and creator of man. Fourth, the principle of separation of church and state was originally used to argue for the protection of individual states from interference by the federal government in governing local religious affairs. Jefferson used the principle of separation in this federalist jurisdictional sense as well. Jefferson said many times that the federal government had no jurisdiction over religion. Religion was an entirely democratic and local matter in his view. As he put it in his second inaugural, quote, in matters of religion, I have considered that its free exercise is placed by the constitution independent of the federal government. I have therefore undertaken on no occasion to prescribe the religious exercises suited to it, but have left them as the constitution found them under the direction and discipline of the local church. The separation that Jefferson had in mind here was between local church state relations and the federal government. The federal government could not interfere in the affairs of local churches and the federal government could not interfere in the affairs of local states vis-à-vis those local churches. Under this federalist jurisdictional reading of separationism, state institutions were not allowed to recognize and protect religion or to prohibit or abridge religion as their own state constitutions allowed or dictated, but the federal government was entirely foreclosed from the same. Some scholars have imputed this fourth understanding of separation of church and state into the First Amendment provision that says Congress shall make no law of religion. The argument is that Congress shall make no laws respecting a state establishment of religion. In 1789, when the First Amendment was being drafted, six states still had religious establishments, which both their state legislatures and constitutional conventions had defined and defended often against very strong opposition by religious dissenters or nonconformists. Moreover, Congress passed Jefferson's bill for the, quote, establishment of religious freedom, also against firm opposition now proffered by traditional establishment terrians. Having just defended their state establishments of whatever sort at home, the new members of Congress were not about to relinquish them to the new federal government, especially this most dangerous branch, the Congress. This is a plausible reading of this mysterious respecting language in the First Amendment establishment clause. This Federalist, but the evidence for it is demonstrably thin in the surviving House debates. But this Federalist reading of the establishment clause is becoming more and more prominent today. It was given very strong expression in a very recent concurring opinion by Justice in the New Dau Pledge of Allegiance case as part and product of the court's neo-Federalist revolution of many areas of constitutional law in the past decade and seemingly as part of the court's broader effort to selectively unincorporate the religion clauses from the due process clause of the Fourteenth Amendment. Fifth, and finally, the principle of separation of church and state was induced as a means to protect society and its members from unwelcome participation in and support for religion. Already in later colonial America, several religious groups used separationism to argue against the established church's policies of mandatory payments of ties or required participation in swearing oaths or forced at religious services, compulsory registration of their church properties and more. At the turn of the 19th century, the language of separation of church and state also began to fuel broader campaigns to remove traditional forms and forums of religion in law, politics and society and to remove special state protection, patronage and participation in religion. This was the most novel and the most controversial understanding of separation of church and state in the young American Republic but it began to gain rhetorical currency in the course of the 19th century. The first notorious instance came in 1800 during the heated election debates between Thomas Jefferson's Republican Party and John Adams' Federalist Party. This was a clash of propaganda machines that made the recent Bush carry campaigns look like child's play. Adams' Party accused Jefferson of being the antichrist, the whore of Babylon, a Jacob and infidel and secularist bent on destruction of the necessary religious foundations of law and necessary alliances between church and state. Jefferson's Party accused Adams of being a Puritan Pope, a religious tyrant bent on subjecting the whole nation to his suffocatingly narrow beliefs and to his smug self-serving ministers who stood for square against liberty and progress. These proved to be only opening shots in a century-long American battle over the means and the meaning of separating church and state. The battles broke out thereafter over dueling, freemasonry, lotteries, drunkenness, Sunday laws, slavery, marriage, divorce, women's rights, religious education, blasphemy, prosecution, enforcement of Christian morality and much more. These were battles fought in Congress and in the courts, in states and on the frontier, in churches and in the schools, in clubs and at the ballot box. They were largely wars of words, occasionally wars of arms. The battles included many familiar foes, Republicans and Federalists the North and the South, Native Americans and New immigrants. They also included a host of newly established political and ideological groups, the Know Nothing Party, the American Protective Association, the National Liberal League, the American Secular Union, the Ku Klux Klan and dozens of other ideological and political groups right and left. Let me just focus on one running episode in this great 19th century battle, namely the repeated clashes between Protestants and Catholics over separationism. The long and the sad story of the anti-Catholicism of 19th century Protestants is well known. In 1800, American Protestants and Catholics had seemed ready to put their bitter and bloody battles of prior centuries behind them. But with the swelling tide of Catholic emigres into America after the 1820s, all demanding work, building schools, establishing charities, converting souls and gaining influence, native born Protestants and Patriots began to protest. Catholic bashing became a favorite sport of preachers and pamphleteers. Then rioting and church burnings broke out in the 1830s and 40s followed by even more vicious verbal piltering and repressive actions against Catholics. What several recent studies have made clear is that the principle of separation of church and state became one of the strong new weapons in the anti-Catholic arsenal. Foreign Catholics were for the union of church and state the propagandists claimed. American Protestants were for the separation of church and state. To be a Catholic was to oppose separationism and American-style liberties. To be a Protestant was to defend separationism and American-style liberties. To bash a Catholic was thus not a manifestation of religious bigotry, but a demonstration of American patriotism. Protestants and patriots began to run closely together often tripping over each other to defend separationism and to decry and to deny Catholics for their failure so to do. All this is a proper corrective and amendment to the traditional story that students of American religious liberty need to hear. But it's important that this corrected story not now be read as a simple dialectic of Protestant separationist hawks versus Catholic unionist doves as several recent writings and briefs and judicial opinions have done. And it's important to be clear that Protestant Catholic battles over separation of church and state had two sides with Catholics giving as well as taking winning as well as losing. First it must be remembered that many American Catholic clergy were themselves separationists building their views in part on ancient and medieval formulations of two communities two cities, two swords, two powers. These American Catholic clergy saw separation of church and state as an essential principle of religious liberty particularly as a religious minority and they embraced the difference of a without evident concern or cavill. Both Alexis de Tocqueville and Lord Acton, two foreign observers of American life made note of this at some length. Secondly many Protestant anti-Catholic writings started not so much as gratuitous attacks upon American Catholics as counter attacks to several blistering papal condemnations of Protestantism, democracy, religious liberty and separation of church and state. The papacy charred by the savagery of the 1789 French Revolution had a quite different view of separationism than prevailed among many American Catholics. In the 1832 papal document Morori Vos for example Pope Gregory the 16th condemned in no uncertain terms all churches that deviated from the church of Rome and all states that granted liberty of conscience free exercise and free speech rights to their non-Catholic citizens. For the pope it was quote an absurd and erroneous proposition to claim that liberty of conscience must be maintained for everyone. The pope denounced what he called freedom to publish any writings whatsoever and disseminate them to the people. The church has always taken action to destroy the plague of bad books and the state should too. The pope declared anathema against what he called the detestable insolence and probity of Luther and other Protestant sons of the devil. Those sores and disgraces of the human race who joyfully deemed themselves free of all. Even worse the pope argued were the plans of those who quote desire to leave the church from the state and to break the mutual concord between temporal authority and the priesthood. The reality the pope insisted was that state officials quote received their authority not only for the government of the world but especially for the defense of the Catholic church. In the blistering syllabus of errors of 1864 the papacy condemned as cardinal errors the proposition that quote Protestantism is nothing more than another form of the same true Christian religion. It was likewise a cardinal error that quote the church ought to be separate from the state and the state from the church. Six years later the 1870 Vatican Council declared the pope's teachings to be infallible and condemned Protestants anew as quote heretics who dared subordinate the divine magisterium of the church to the judgment of each individual's conscience. It is perhaps no surprise that American Protestants repaid such alarming comments in kind and then with compounding interest. The pope as Americans heard him had condemned the very existence of Protestantism and the very fundamentals of American democracy and liberty. Many Protestants saw the papacy's favorable references to its past medieval powers specters of the church's tyrannical rule and a unified Christendom. This simply could not be for Protestants. Conveniently armed with new additions of the writings of Martin Luther and John Calvin American Protestants repeated much of the vitriolic anti-Catholic and anti-clerical rhetoric that had clattered so loudly throughout the 16th century Protestant Reformation. At least initially the loud commendation of America's separation of church and state and loud condemnation of the Catholic Union of church and state was more of a rhetorical quid pro quo to the papacy than a political low blow to American Catholics. But inevitably there was plenty of political imitation and plenty of cheap shots taken at American Catholic clergy particularly those who stood up in defense of the papacy. And inevitably this rhetoric brought anti-Catholicism and pro-separationism into close association especially in the minds of the right and left wing propagandist groups. A third and a final caveat to the corrected story is that when local anti-Catholic measures did pass as they too often did in the later 19th and early 20th centuries both the U.S. Supreme Court and the Congress sometimes provided Catholics with relief using the very principle of separation of church and state to protect their religious liberty. And thus in Cummings versus Missouri in 1866 the court held that a state may not deprive a Catholic priest to preach for failure to take a mandatory oath disavowing his support for the Confederate States. Separation of church and state, said the court, exists for the sake of protecting the conscience particularly of the clergy. In Watson versus Jones in 1871 in three subsequent cases the court required civil tribunals to defer to the judgment of the highest religious authorities in resolving inter-church disputes explicitly extending this principle to Catholics in the name of separating church and state. In Church of the Holy Trinity versus the United States in 1892 the court refused to uphold a new federal law forbidding contracts with foreign clergy a vital issue for the Catholic Magisterium and in Pierce versus Society of Sisters in 1925 the court invalidated a state law making public school attendance mandatory thereby protecting the rights of Catholic parents and schools to educate children in a religious school environment. These, and a dozen other Supreme Court holdings were in part expressions of the principle of separation of church and state and there were many more such Catholic victories in state courts with separation of church and state used repeatedly as a means to protect religious consciences clerics and corporations from overreaching state or local authorities. All this changed rather dramatically with the Supreme Court case of Everson versus Board of Education in 1947. This case made two major moves at once. First, the court applied the First Amendment Establishment Clause to the states Congress shall make no law respecting an establishment of religion now became in effect government of whatever sort shall make no law respecting an establishment of religion the federalist understanding of separationism was ipso facto jettisoned. Second, Justice Black speaking for the majority in the Everson court read into the Establishment Clause a strict separationist logic that was amply coated and coated with the anti-religious sentiments that Black had absorbed as a former ranking member of the Alabama Ku Klux Klan. What had been fringe anti-religious rhetoric in the 19th and early 20th century was suddenly lifted to constitutional mandate universally binding on the nation. The Establishment Clause of the First Amendment Justice Black wrote for the Everson court means at least this. Neither a state nor the federal government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion or another. No tax in any amount large or small can be levied to support any religious activities or institutions whatever they may be called. Neither a state nor the federal government can openly or secretly participate in the affairs of any religious organizations or groups or vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to create a wall of separation between church and state. Religion Justice Black said a bit later is just too powerful, too sinister and too greedy to permit its unhindered perversion or perversion of the civil majesty. The same powerful religious propagandists who are allowed to succeed in making one in road on the state in its laws doubtless will continue their propaganda looking toward complete domination and supremacy of their particular brand of religion. It is nearly always by insidious approaches that the citadels of liberty are most successfully attacked. The First Amendment has thus erected a wall of separation between church and state. That wall must be kept high and impregnable. It cannot approve the slightest breach. The Supreme Court applied this newly minted strict separationist logic primarily in cases challenging traditional state patronage and participation in religious education. In more than two dozen cases after Everson, the court purged religion from the public school and removed religious schools for most of their traditional state support. In the 1971 case of lemon versus curtsman the court distilled the separationist logic of its earlier cases into a general test to be used in all future establishment clause cases whether applied to education or anything else. Henceforth every law said lemon challenged under the establishment clause would pass constitutional muster only if it had first a secular purpose second a primary effect that neither advances nor inhibits religion and third fosters no excessive entanglement between church and state and their officials. This lemon test rendered the establishment clause a formidable obstacle to many traditional forms and forums of church state cooperation particularly the lower courts used the lemon test to outlaw all manner of government subsidies for religious charity social services, mission works and government use of religious services, facilities, publication language, rituals, symbols and more. Some of these establishment clause cases in the name of separation of church and state helped to extend the ambit of religious liberty particularly for minority faiths. But some of these cases also helped to erode the province of religious liberty by effectively empowering a single secular party to veto popular laws touching religion that caused him or her only the most tangential and attenuated constitutional injury. It must be remembered that separation of church and state is only one principle that the establishment clause teaches and the establishment clause is only one guarantee that the First Amendment embraces for the protection of religious liberty the other being the free exercise clause. The First Amendment says Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. These two religion clauses hold complimentary guarantees of religious freedom. The free exercise clause outlaws government proscriptions of religion. Actions that unduly burden the conscience, unduly restrict religious expression, unduly discriminate against religion or invade the autonomy of churches and other religious bodies. The establishment clause in turn outlaws government prescriptions of religion. Actions that coerce the conscience, that mandate forms of religious expression that discriminate in favor of religion or improperly ally the state with churches and other religious bodies. No undue burden on, no undue coercion of conscience, no undue restrictions on, no undue mandating of religious expression, no discrimination against, no discrimination for religion, no government intrusions within, no government alliances with religious bodies. Read together this way the free exercise and establishment clauses afford reciprocal and complimentary protections of multiple principles of religious liberty, liberty of conscience, freedom of religious expression, religious equality for a plurality of faiths and yes, separation of church and state. When it's viewed in isolation therefore, the principle of separation of church and state serves religious liberty best when it is used prudentially and not categorically. James Madison, a rather firm proponent of separationism in his later life, warned already in 1933 that quote, it may not be easy in every possible case to trace the line of separation between the rights of religion and the civil authority with such distinctness as to avoid collisions and doubts on unessential points. Madison's caveat has become even more salient today. For better or for worse the modern American welfare state and now the modern American security state reaches very deeply into virtually all aspects of modern life through its vast network of education, charity, welfare, childcare, healthcare, construction, zoning, workplace, taxation, immigration and sundry other regulations. Madison's preferred solution was what he called an entire abstinence of government from interference with religion in any way whatsoever beyond the necessity of preserving public order and protecting each sect against trespasses on its legal rights by others. This traditional understanding of a minimal state role in the life of society in general and of religious bodies in particular. However alluring a classic libertarian theory is simply no longer realistic in practice. Some level of confrontation some level of cooperation between church and state are almost inevitable in our modern polity. It is thus even more imperative today than in Madison's day that the principle of separation of church and state not be pressed to reach what Madison called potentials. Government must strike a balance between coercion and freedom. The state cannot coerce citizens to participate in religious ceremonies and subsidies that they find odious. But the state cannot prevent citizens from participation in public programs and forums just because they happen to be religious. It is one thing to outlaw affairs and broadcasted Bible readings from the public school classroom after all students are compelled to be there. It's quite another thing to ban moments of silence and private religious speech in these same public schools. It's one thing to bar direct tech support for religious education quite another thing to bar text deductions for parents who choose to educate their children in religious schools. It's one thing to prevent government officials from delegating their core police powers to religious bodies. Quite another thing to prevent them from facilitating the charitable services of voluntary religious and non-religious associations alike. To press separationist logic too deeply into the unessentials not only trivializes religion as Stephen Carter has saged it also trivializes the Constitution converting it from a coda of cardinal principles of national law into a codex of petty precepts of local life. Individuals should exercise a comparable prudence in seeking protection from the public expressions of religion that they cannot abide. In the constitutional schemes of 19th century America it was not so much the courts as the frontier that provided this freedom a place away from it all where one could escape with one's conscience and co-religionists. Today the frontier still provides this freedom if not physically in small towns and in wild mountains then virtually in our ability to sift out and to shut out the public voices of religion that we do not wish to hear. Both modern technology and modern privacy doctrine make escapes to this virtual frontier considerably easier than in the days of covered wagons and mule trains. Just turn off Pat Robertson or Jerry Falwell. Turn away the missionary at your door close your eyes to the city and the politics that offends. Cover your ears to the public prayer that you can't abide. Forgo the military chaplain's pastoral counseling. Skip the legislative chaplain's prayers. Walk by the town halls menorah and star. Don't join the religious student group at your public university. Don't vote for the collared candidate. Don't browse the evangelical's newspapers. Avoid the services of the Catholic and religious leaders. Don't rush on the readings of the Scientologists. Turn down the trinkets of the coal porters. Turn your back on the ministries of the hate mongers. All these escapes to the virtual frontier. The law does and will protect with force if necessary. Such voluntary self-protections from religion will ultimately provide far greater support for the public. And we will be discussing yet another tried and tired constitutional case. Thank you for your kind attention. We've got about ten minutes for questions. I encourage any of you that have questions. We do ask that we've got mics set up. And that you speak your questions into the mic for purposes of our government. I didn't know the microphone was on quite that loud. Congress is the one that legislated under God into the Pledge of Allegiance. Not some state government. And don't you think that the court should have agreed with Michael Newdell that the federal Congress should not have the right to demean and to coerce atheists. I'd also like to hear what you have Frank. The Pledge of Allegiance Newdell case raised several issues at once when the court was trying to address them all at once. The constitutional issue that's central to this discussion is the establishment clause question. Does Congress's addition of the under God language to the Pledge of Allegiance result in an establishment of religion? There are alternative constitutional considerations and concerns that the court was also addressing. One was how generous do we want to be in the recognition of standing? When parties press a constitutional case, how active do we want to be in allowing them to represent interests which are distant from their own interests but maybe recognized in a party whom they represent? And the second issue that was implicated besides the establishment clause was the question of how much deference are we going to be giving to state domestic relations law which dictated in the particular Newdell case what relationship the father Mr. Newdell had toward his non custodial child. The court took the case in part because of the collision of these three lines of cases and had to resolve it. What the court's majority chose to do is to focus on the standing issue and to coat it with a federalist reading. That is, it's interested in curbing undue standing as it had said several times in prior cases Lujan and its many progeny and there is also interested in underscoring the new federalism that the court had engineered under various other constitutional provisions and which was being threatened by a lack of recognition of the domestic relations issue and what legal representation meant with respect to the custodial versus the non custodial parent. I think the court took the case not because it wanted to punt on the establishment clause issue but because it couldn't figure out which of the three important constitutional questions it wanted to make the driving engine of the case. Ultimately what the court did in its majority opinion was punt on the establishment clause question but ultimately in punting on the establishment clause question and finding as it did reversing the Ninth Circuit creating again a uniform application of Congress's mid-1950s laws under God. Now that ducks the hard question which is is the imposition of the oath that says the Pledge of Allegiance excuse me that says one nation under God a an establishment of religion especially as the questioner underscores this is Congress doing it not the states where a federalism argument might obtain. I think in this instance you have to read the issue of under God together with the Barnett case of 1943 where the U.S. Supreme Court there said quite clearly parties may if they have conscientious scruples because of worries of language or worries of symbol or failure to want to participate in the religious ritual can escape participation in the ritual and the Barnett case gives a release valve and tries to provide a free exercise ground to deal with the constitutional issue at hand when Congress passes a law there is also a 1961 case Tercoso V Watkins where the Supreme Court says quite clearly we are interested in protecting the rights of atheists and forcing an atheist to profess an oath alleging his belief in God is a violation of his free exercise rights with those two constitutional precedents in place providing free exercise relief from those who are minorities with respect to Congress's mandated conduct requiring a pledge of allegiance including under God I think the court could quite easily in the pledge of allegiance case come to the conclusion this is not an establishment of religion that would be the way it would resolve that conflict whether satisfactory or unsatisfactory in open question there is one other avenue of argumentation which I think is going to have to come up in subsequent cases and that is the Supreme Court has repeatedly said on issues of tax exemption on issues of the use of religious symbols on issues of the use of legislative chaplains in state legislatures long standing practices themselves may by reason of their long standing quality become de-religionized or if you will secularized and you get the argument that Justice O'Connor presses especially in Lynch v. Donnelly in the concurring opinion where she talks about ceremonial deism long standing practices largely escape establishment clause scrutiny because by reason of their long standing secular practice they lose the odious religious taint that without it would result in establishment of religion the problem is those arguments from history have always to date been predicated by ancient practices tax exemption goes back to the Jewish law issues of legislative chaplains goes back to 1774 the first session of Congress the use of religious symbols by government goes back to the earliest times in the colonies here we have an instance of the importation of language 50 odd years ago driven by political calculus in the cold war to the communists and saying we are engaging in a crusade here we have God on your side and you affirmatively profess you don't have God on your side the court is going to have to decide how long is long enough to de-religionize an issue it does not have clear guidance so far in its case law to resolve that dispute other question here in the cases of teaching of creationism or intelligent design in public schools it's direct it's directly related to this 1947 supreme court case and you said in your closing arguments that it's one thing to prohibit prayers in the public schools but then when you get to teaching mandating and teaching intelligent design you're essentially coercing public students that are controlled by local boards not by the federal government or by congress you're mandating that they be instructed in religious ideas in a science class so how do you feel that that the wall of separation church and state should come down when it comes down to a local school board mandating teaching intelligent design we have three supreme court precedents on point which are more pertinent than what I think the supreme court precedents on point are number one the dicta of the shamp case in 1963 where the supreme court says quite clearly even while banning the use of the bible and prayers in the public school the use of religion as part of civic education is perfectly appropriate there's nothing wrong with teaching the history of the middle ages and mentioning the catholic church there's nothing wrong with talking about the settlement of new england and talking about the puritans and their covenant theology as long as it's part of civic education it's appropriate say the dicta of shamp in a case of 1968 called eppers and verses arkansas where there was an attempt by a state legislature to ban the teaching of evolution the supreme court not only was inventive in its standing doctrine but concluded that would be unconstitutional simply to ban a scientific theory because of religious offense it might cause to the teacher of the student or the local school board was insufficient to meet establishment clause concerns and then in a 1987 case edwards versus agalar there was a circumstance where a state sought to get equal time for the teaching of creationism alongside evolutionism the notion being that an evolutionary theory if it gets 20 minutes in discussion should have a corresponding alternative theory of creationism that's proffered a state had created that as what it thought to be an equal time opportunity for theological as well as scientific theories of origins and the supreme court and edwards the agalar said very sorry that's a violation of the establishment clause with those three rather firm precedents in place and with the predicate of the last two at least being that evolution is a scientific theory creationism is a theological theory one would be very hard pressed to find a constitutionally local school board or state order that would say we ask you to teach in your science classes evolution and creation slash intelligent design if you can coat your creationism or intelligent design theory as a scientific theory and question the premise of the last two cases a person and egg yard then you got an argument but the place for the teaching of creationism would not be in a science course on the history of origins per shamp it would be where in the teaching of literature with the Bible being used as a literary text and Genesis one and two being in that context that would be constitutional but the teaching of it in a science class would not be any other questions I thank you so much for your kindness oh we have the good judge the good judge don't know anything about anything but you know much about much madame could you talk for about a half an hour on the the new mantra that's running around the state and the federal government to on faith services executive programs legislation and even now a possible state constitutional provision permitting the same whatever you choose to answer that regard I haven't been following the local colloquies so my answer is going to be predicated on ignorance but that's never stopped me before I should say that at this lectern in September my colleague Steve Tipton stood here and gave a long lecture on issues of faith based initiatives that the congress was excuse me the white house was pressing and there's a long learned speech that's available on our center website which I would commend to your bruise if you haven't seen it already this move toward the reintegration of church and state authorities at the federal and at the state level has been encouraged in part by the gradual fracturing of the supreme court in its separationist stand the supreme court over the last 15 years has been using separation of powers arguments federalism arguments and alternative understandings of the establishment clause that do not sound in separation of church state terms but talk instead about a coercion endorsement and other things and has softened the rigor of establishment clause scrutiny those trends in recent establishment clause jurisprudence have encouraged both congress and the white house but also states both executive and legislative branches to become more experimental again in the church state cooperation that historically obtained and which ever sent in its immediate progeny outlawed the court so far has been relatively generous in allowing new kinds of church state cooperation for the delivery of secular services the issue is always to what extent is the religious body in receipt of state or federal funds using those funds for religious purposes if that is the case those actions are automatically unconstitutional even under the current fractured opinion making by the supreme court but when religious bodies choose to receive state or federal money and to use that state or federal money for the sake of delivering educational charitable or other kinds of services to a general population against whom no religious test oath or screen is used the issue is an appropriate efficient way of getting stuff done why should the state spend all of its money all of its time doing these things why should the state create a variety of new institutions when we have communities of faith that are prone that are primed and that are eager to take this on and so in my view these are healthy experiments healthy experiments in rethinking whether in the post-Eversonian age some level of cooperation is again appropriate not for the sake of helping the church or other religious bodies but for the sake of helping those poor folk out there 40 million of whom live below the poverty line and who are in desperate need of social services hitherto foreclose to them because of the ineptitude of the government officials delivering same there's a lot of negotiation and policing that has to go on with respect to the propriety of the use of the funding but the generic issue of whether it's appropriate to use religious bodies alongside non-religious like position bodies to deliver basic services as a private sector activity I personally have no reservation about thank you so very very much thank you Professor Whitty for your words of clarity thank you Professor Whitty for your words of conviction and your words of commitment thank you Al McDonald for making this lecture possible for your commitment to us here at Emory Law School I ask that all of you take a look in your program you'll see a form that we'd like you to fill out just so that you can give us information on how you found out about today's presentation and turn in that form to one of our staff members as you leave and also take note of our future lectures and finally simply give me in one final round of thanks to Professor Whitty and Mr. McDonald The preceding program is copyrighted by Emory University