Dan Rather Reports

Episode Number: 241

Episode Title: Church & State: Separation Anxieties

Description: A panel discussion with legal scholars about how the Constitution governs the balance of religion and government in American life.

Transcript:

TONIGHT, FROM ROCKEFELLER COLLEGE AT PRINCETON UNIVERSITY, AND SPONSORED BY THE WOODROW WILSON SCHOOL OF PUBLIC AND INTERNATIONAL AFFAIRS, A SPECIAL EDITION OF DAN RATHER REPORTS. WE PRESENT A ROUNDTABLE DISCUSSION RECORDED IN FRONT OF A LIVE AUDIENCE, FEATURING THE NATION'S LEADING LIGHTS ON THE ROLE OF RELIGION IN GOVERNMENT UNDER THE UNITED STATES CONSTITUTION. AND NOW, HERE IS YOUR HOST, DAN RATHER. GOOD EVENING. THE FIRST TEN AMENDMENTS OF THE UNITED STATES CONSTITUTION ARE KNOWN AS THE BILL OF RIGHTS. AND WHAT ARE THE FIRST TEN WORDS OF THOSE TEN HALLOWED FREEDOMS? THAT PRIME LOCATION BELONGS TO RELIGION. " CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT OF RELIGION." THE DRAFTERS OF THE BILL OF RIGHTS IN 1789 THOUGHT THE SURVIVAL OF THE NEW REPUBLIC RESTED ON CHURCH AND STATE FINDING THEIR APPROPRIATE ROLES. THESE TEN WORDS, KNOWN AS THE " ESTABLISHMENT CLAUSE," CREATE THE SO-CALLED " SEPARATION OF CHURCH AND STATE" AND ARE WHAT COURTS ARE INTERPRETING WHEN THEY RESOLVE CONTENTIOUS ISSUES LIKE PRAYER IN SCHOOLS AND NATIVITY SCENES ON VILLAGE GREENS. BUT DOES IT MAKE SENSE TO SPEAK OF SEPARATION, WHEN RELIGION IS SO INTERTWINED WITH AMERICAN LIFE? NOW THE WORD DOESN'T APPEAR IN THE CONSTITUTION; IT WAS THOMAS JEFFERSON WHO FIRST USED THE PHRASE IN A LETTER, IN 1802. HE WAS TRYING TO CALM THE FEARS OF A GROUP OF BAPTISTS - RELIGIOUS MINORITIES AT THAT TIME - WHO WORRIED ABOUT GOVERNMENT INTERFERENCE. WE'VE INVITED FOUR PEOPLE TO SPEAK WITH US TONIGHT, FROM ACROSS THE SPECTRUM OF VIEWS ON THE TOPIC. AND DESPITE HOW CHURCH/STATE ISSUES ARE PORTRAYED IN THE MAINSTREAM MEDIA, THESE VIEWS DON'T FALL CLEANLY ALONG ANY LEFT-RIGHT LINE. NOW WE'LL BE HEARING FROM, YOU'LL BE HEARING FROM, THE BEST. JUDGE MICHAEL MCCONNELL IS ONE OF THE COUNTRY'S MOST IMPORTANT SCHOLARS OF THE BILL OF RIGHTS. HE'S A FORMER CLERK TO JUSTICE BRENNAN ON THE U.S. SUPREME COURT AND PROFESSOR AT THE UNIVERSITY OF CHICAGO, THE UNIVERSITY OF UTAH, STANFORD, AND HARVARD. HE WAS APPOINTED BY PRESIDENT BUSH TO THE U.S. 10TH CIRCUIT COURT OF APPEALS IN 2002. HOLLY HOLLMAN IS A PROMINENT FIRST AMENDMENT LAWYER AND GENERAL COUNSEL FOR THE BAPTIST JOINT COMMITTEE. THAT'S A GROUP THAT CONSIDERS ITSELF THE VOICE FOR THOSE WHO BELIEVE SEPARATION OF CHURCH AND STATE IS THE BEST WAY TO PROTECT RELIGIOUS LIBERTY. RICK GARNETT IS A YOUNG STAR OF THE LEGAL ACADEMY. HE'S AN ASSOCIATE PROFESSOR AT NOTRE DAME LAW SCHOOL TEACHING CONSTITUTIONAL LAW WHO, AFTER SERVING AS A CLERK TO SUPREME COURT CHIEF JUSTICE WILLIAM H. REHNQUIST, HELPED DEFEND CLEVELAND'S SCHOOL-VOUCHER PROGRAM FROM FIRST AMENDMENT CHALLENGE. AND FINALLY, CHRIS EISGRUBER - A RHODES SCHOLAR, A CLERK FOR JUSTICE STEVENS OF THE SUPREME COURT, PROVOST OF PRINCETON UNIVERSITY, AND THE MAN GENEROUS AND FOOLHARDY ENOUGH TO INVITE US TO HOLD THIS PROGRAM HERE TONIGHT. HE'S ALSO COAUTHOR OF THIS YEAR'S RELIGIOUS FREEDOM AND THE CONSTITUTION, A BOOK UNIVERSALLY PRAISED, OR DAMNED, AS ONE OF THE MOST IMPORTANT WORKS ON RELIGIOUS LIBERTY IN MANY YEARS. NOW WE'RE GOING TO START TONIGHT'S DISCUSSION WITH HISTORY. WHAT WAS HAPPENING WITH THE FOUNDING FATHERS, AND BEFORE THE FOUNDING? THEN WE'LL SAY, HISTORY ASIDE, HOW SHOULD WE APPROACH THE CLAUSE TODAY? SO NOW LET'S GET TO IT. WHETHER WE SHOULD BE FAITHFUL TO THE FOUNDERS' VIEW OF WHAT THEY WROTE OR NOT IS A MATTER OF LEGITIMATE DISPUTE, BUT TO BE IGNORANT OF HISTORY CONDEMNS US TO A HALF-BAKED UNDERSTANDING OF OURSELVES AND OUR INSTITUTIONS. IT'S EASY TO FORGET WHAT THE REALITIES OF CHURCH AND STATE WERE LIKE AT THE FOUNDING OF THESE UNITED STATES. SO LET'S START AT THE BEGINNING, FIRST JUDGE MCCONNELL WITH YOU. SET THE SCENE FOR US, IN THE LATE 1700'S AS THIS COUNTRY WAS BEING FOUNDED. WELL BEFORE INDEPENDENCE, WE HAD ESTABLISHED CHURCHES IN ALMOST ALL OF THE COLONIES, THAT IS ALL OF THE SOUTHERN COLONIES, PLUS NEW ENGLAND. PENNSYLVANIA, RHODE ISLAND, NEW JERSEY, WERE EXCEPTIONS TO THAT. WITH INDEPENDENCE, THE CHURCH OF ENGLAND IN THE SOUTHERN COLONIES WAS DISESTABLISHED, BECAUSE ONE OF THE PRINCIPAL TENETS OF THE CHURCH OF ENGLAND WAS THE SUPREMACY OF THE KING, AND OF COURSE THAT WAS NOT ACCEPTABLE IN A NEWLY REPUBLICAN AMERICA. FAIR OR UNFAIR TO SAY THAT IT WAS AT THAT TIME, A QUOTE, " CHRISTIAN COUNTRY? CHRISTIAN NATION?" WELL IT WAS CERTAINLY PREDOMINANTLY CHRISTIAN; THERE WERE PROBABLY FEWER THAN 3,000 NON-CHRISTIAN CITIZENS, AND VERY FEW CATHOLICS, VERY FEW JEWS. IT WAS A PREDOMINANTLY PROTESTANT COUNTRY. THERE ARE REALLY TWO CLAUSES OF THE FIRST AMENDMENT. BACK UP. AND THOSE TWO CLAUSES, FOR PURPOSES OF OUR CONVERSATION HERE, THE FREE EXERCISE CLAUSE, AND THEN THE ESTABLISHMENT CLAUSE. WELL RIGHT AFTER THOSE FIRST TEN WORDS, OF " CONGRESS SHALL MAKE NO LONG RESPECTING AN ESTABLISHMENT OF RELIGION," THEY SAY, " OR PROHIBIT THE FREE EXERCISE THEREOF." SO THOSE TWO CLAUSES, WRITTEN TOGETHER IN THE BEGINNING OF THE BILL OF RIGHTS, AND ARE GENERALLY SEEN AS TOGETHER, BOTH PROTECTING RELIGIOUS FREEDOM. FIRST, IN THE ESTABLISHMENT CLAUSE, THE GOVERNMENT SHOULDN'T BE ADVANTAGING A PREFERRED FAITH IN AN INAPPROPRIATE WAY, AND THEN IN THE FREE EXERCISE CLAUSE, IT SHOULDN'T BE DISADVANTAGING OR BURDENING THE PRACTICE OF RELIGION, AND THE TROUBLE COMES IN AS YOU TRY TO MAKE EITHER OF THOSE TWO IDEAS MORE SPECIFIC. WHAT COUNTS AS AN INAPPROPRIATE ADVANTAGE? WHAT COUNTS AS AN INAPPROPRIATE BURDEN? ONCE WE GET THERE, WE'RE ALL GOING TO START DISAGREEING. AND THE CHALLENGE HAS ALWAYS BEEN, TO FIGURE OUT WHAT EXACTLY DOES IT MEAN TO SAY THE FREE EXERCISE OF RELIGION IS PROTECTED? WHAT ABOUT THE FREEDOM TO DO WHATEVER YOU WANT IF YOU SAY IT'S MOTIVATED BY RELIGION? YOU CAN THINK OF ALL KINDS OF HYPOTHETICALS ABOUT RELIGIOUSLY MOTIVATED HUMAN SACRIFICE AND THE LIKE. IF WE'RE COMMITTED TO RELIGIOUS FREEDOM, AS WE ARE, WHAT ARE THE IMPLICATIONS OF THAT FOR GENERAL LAWS THAT REGULATE CONDUCT? WHEN DO RELIGIOUS BELIEVERS GET A PASS, GET AN EXEMPTION, BECAUSE OF THEIR RELIGIOUS MOTIVATIONS? THERE WAS DISAGREEMENT ABOUT IT AT THE FOUNDING; THERE'S BEEN DISAGREEMENT ABOUT IT EVER SINCE. MOST OF US WERE TAUGHT THAT ONE OF THE REASONS THAT THE EUROPEANS CAME, PARTICULARLY FROM BRITAIN BUT FROM OTHER PLACES, CAME TO THIS COUNTRY, WAS FOR RELIGIOUS FREEDOM. DOES HISTORY BEAR THIS OUT? MANY PEOPLE CAME TO THIS COUNTRY BECAUSE THEY WERE PERSECUTED FOR THEIR FAITH. THAT DOES NOT NECESSARILY MEAN THAT WHEN THEY ARRIVED HERE THAT THEY BELIEVED IN FREEDOM OF RELIGION. PURITAN MASSACHUSETTS, FOR EXAMPLE, WAS NOT A BASTION OF RELIGIOUS FREEDOM. IT WAS- THEIR VIEW WAS THAT PEOPLE OF OTHER FAITHS WERE HAD A RIGHT TO GO SOMEWHERE ELSE AND FOUND THEIR OWN COLONIES SO THAT THEY COULD HAVE A CHRISTIAN COMMONWEALTH. NOW THERE WERE SOME WHO CAME SPECIFICALLY FOR RELIGIOUS FREEDOM. PENNSYLVANIA WAS FOUNDED DELIBERATELY BY WILLIAM PENN AS A HAVEN FOR RELIGIOUS DISSENTERS, PREDOMINANTLY QUAKERS, BUT OPEN TO EVERYONE. MARYLAND WAS SPECIFICALLY FOUNDED BY THE- ITS CATHOLIC PROPRIETORS. ROGER WILLIAMS, AN EARLY BAPTIST, FLED MASSACHUSETTS AND FOUNDED RHODE ISLAND FOR SIMILAR REASONS. I THINK THAT THERE WAS A LOT OF RELIGION, WHICH I THINK MAKES IT ALL THE MORE INTERESTING THAT WHAT THEY DID WHEN IT CAME TOWN TO WRITE THE FOUNDING DOCUMENTS, AND HOW THEY TREATED RELIGION THERE - THAT THEY MADE A DISTINCTION BETWEEN RELIGION THAT THEY PRACTICED IN THEIR INDIVIDUAL LIVES AND IN THEIR COMMUNITY, AND WHAT THEY EXPECTED FOR THE GOVERNMENT. FOR ME ONE OF THE THINGS THAT STAND OUT WHEN YOU LOOK AT THE RELEVANT HISTORY IS HOW THE FOUNDING GENERATION'S NOT SO DIFFERENT FROM YOU AND I. THEY WORE DIFFERENT CLOTHES, BUT THERE WERE DIFFERENT OPINIONS ABOUT CHURCH-STATE RELATIONS, JUST AS THERE ARE TODAY. WE HAVE TO BE REALISTIC ABOUT LOOKING FOR UNANIMITY. THEY DISAGREED RESPECTFULLY, AND WE CAN DISAGREE RESPECTFULLY ABOUT IT AS WELL. I WOULD ADD ONLY TWO THINGS TO WHAT MY FELLOW PANELISTS HAVE SAID ABOUT THIS, AND ONE IS THAT NOT ONLY WAS THERE A GREAT DEAL OF DIVERSITY IN VIEWS ABOUT RELIGIOUS FREEDOM, BUT THERE WAS A LOT OF RELIGIOUS DIVERSITY. IT MAY HAVE BEEN A PREDOMINANTLY - ALMOST ENTIRELY CHRISTIAN COUNTRY, BUT ON THE OTHER HAND, THE FOUNDING GENERATION WAS VERY AWARE OF THE DIFFERENT KINDS OF CHRISTIANITY THAT WERE PRESENT, AND THEY REALIZED THAT THEY NEEDED TO CRAFT CONSTITUTIONAL PRINCIPLES FOR A RELIGIOUSLY DIVERSE PEOPLE. THE SECOND THING I WOULD NOTE WAS THAT THE GENERATION REALIZED THAT THEY WERE LAUNCHING AN EXTRAORDINARY EXPERIMENT IN CONSTITUTIONAL GOVERNMENT, AND THAT THEY DIDN'T KNOW WHAT WAS GOING TO COME IN THE FUTURE, AND THEY HAD THAT VERY MUCH IN MIND WHEN THEY WROTE THE CONSTITUTION AND WHEN THEY DEFENDED IT IN THE FEDERALIST PAPERS. IT'S KIND OF FUNNY FOR THOSE OF US WHO TEACH AND WRITE IN THIS AREA, THAT I THINK WE'VE PROBABLY MULLED OVER THE WORDS MORE THAN THEY DID. BUT I DO THINK IT'S FAIR TO SAY THAT EVEN THOUGH A GREAT MANY OF THE EARLY AMERICANS WOULD HAVE HAD RELIGIOUS COMMITMENTS OF THEIR OWN, THAT THERE WAS A SENSE - THERE WAS AN EMERGING SENSE THAT THE FREEDOM OF CONSCIENCE HAD TO BE PART OF THE OVERALL PICTURE IN RELIGIOUS LIBERTY. FREEDOM OF CONSCIENCE, NOT NECESSARILY OF RELIGION ITSELF, BUT OF CONSCIENCE. WELL I WOULD SAY, AND THERE'S GOING TO BE DISAGREEMENT ON THIS POINT PROBABLY, THAT THEY THOUGHT PRIMARILY IN TERMS OF RELIGIOUS CONSCIENCE. MY SENSE IS THAT THE FOUNDERS DIDN'T HAVE AS WELL DEVELOPED A SENSE AS WE DO NOW OF KIND OF FREEDOM OF CONSCIENCE IN THE ABSTRACT. FREEDOM OF CONSCIENCE FOR THEM TENDED TO BE TIED TO THESE QUESTIONS OF RELIGIOUS PROFESSIONS. WOULD THE FOUNDING FATHERS AND THE PEOPLE WHO WERE CITIZENS AT THAT TIME BE SURPRISED, OR PERHAPS EVEN ASTOUNDED THAT WE'RE HAVING THIS CONVERSATION ABOUT SEPARATION OF CHURCH AND STATE? I THINK THEY MIGHT BE VERY GRATIFIED IN MANY CASES THAT THEIR HANDIWORK ACTUALLY LAUNCHED A PROJECT THAT'S BEEN SUSTAINED NOW FOR OVER 200 YEARS AND THAT REALLY HAS STRUGGLED WITH THIS QUESTION IN A WAY THAT I THINK THEY WOULD HAVE WANTED US TO DO. BUT I THINK AS OTHERS HAVE ALREADY SAID, THERE WAS A GREAT DEAL OF DIVERSITY IN THE SET OF OPINIONS THAT THEY HAD, AND SOME OF THEM MIGHT BE PLEASED BY THE DIRECTIONS THAT WE'VE TAKEN OVER TIME; MANY OF THEM MIGHT BE SHOCKED BY THE EXTENT OF RELIGIOUS DIVERSITY THAT THEY HELPED TO BUILD BY CREATING THIS KIND OF FREEDOM ON OUR SHORES. WELL HOW SOON DID THEY BEGIN DISCUSSING THE ROLE OF THE FEDERAL GOVERNMENT AS OPPOSED TO THE ROLE OF THE STATES WHEN IT COMES TO FREEDOM OF RELIGION AND FREEDOM OF CONSCIENCE? WELL THIS IS ONE THING ALMOST EVERYONE COULD AGREE ON IS THAT THEY DIDN'T WANT THE NEW FEDERAL GOVERNMENT TO HAVE MUCH OF A ROLE WITH RESPECT TO RELIGION, SO THE FIRST AMENDMENT WAS SPECIF ICALLY DRAFTED SO THAT THE FEDERAL GOVERNMENT WOULD NEITHER INTERFERE WITH THE PRACTICE OF RELIGION, NOR INTERFERE WITH THE STATES' EXISTING ARRANGEMENTS WITH RESPECT TO RELIGION. IT IS TRUE, THOUGH, THAT THE STATES WITH ESTABLISHMENTS GRADUALLY DISESTABLISHED THEM SO THAT DISESTABLISHMENT OF RELIGION CAME EARLY IN THE REPUBLIC; IT JUST DIDN'T COME WITH THE FIRST AMENDMENT; IT CAME GRADUALLY, STATE-BY-STATE, AND WITH EVERY STATE HAVING ITS OWN PECULIARITIES AND ITS OWN REASONS. IT GOES BACK TO THIS IDEA THAT WE HAVE THESE DIFFERENT PRINCIPLES THAT INFORMED THE DRAFTING OF THE FIRST AMENDMENT. AND WE SHOULDN'T FORGET THAT THEY HAD NEVER SEEN AN EXPERIMENT, THEY HAD NEVER SEEN A CONSTITUTION THAT DIDN'T HAVE RELIGION BEING ESTABLISHED IN IT, SO THE VERY FACT THAT OUR CONSTITUTION WAS DRAFTED WITHOUT HAVING AN ESTABLISHED CHURCH, OR GIVING RELIGION A PROMINENT PLACE, I THINK IS A STATEMENT IN AND OF ITSELF, THAT THEY WERE THINKING ABOUT RELIGION. IT WAS NO ACCIDENT THAT THE ONLY MENTION OF RELIGION IN THE CONSTITUTION BEFORE THE BILL OF RIGHTS WAS THAT THERE SHALL BE N O RELIGIOUS TEST FOR ANY PUBLIC OFFICE. IT'S AN INTERESTING KIND OF STATEMENT, BECAUSE THE SAME PEOPLE WHO ARE SAYING, " WE DON'T WANT A NATIONALLY ESTABLISHED CHURCH" - MANY OF THE SAME PEOPLE - ARE ENTIRELY COMFORTABLE WITH WHAT MANY PEOPLE TODAY ANYWAY WOULD REGARD AS AN ESTABLISHMENT IN THEIR STATES, SO I THINK IT'S DANGEROUS TO ASSUME THAT BECAUSE PEOPLE STRONGLY WANTED DISESTABLISHMENT AT THE FEDERAL LEVEL, THAT THEY WERE, THAT THEY THEREFORE HAD SOME STRONG PRINCIPLED OPPOSITION TO GOVERNMENT RELATIONSHIPS WITH RELIGION. SURELY THE CONCERNS ABOUT PERSECUTION AND NOT WANTING TO UNITE CHURCH AND STATE AREN'T EVAPORATED JUST BECAUSE THE FEDERAL GOVERNMENT'S NOT DOING IT, SO ALL OF THOSE WHO CARED ABOUT THE BAPTISTS - JOHN LELAND, THE LEGACY OF ROGER WILLIAMS IN RHODE ISLAND - I THINK THEY WERE CONCERNED ABOUT A BROADER CONCEPT OF RELIGIOUS FREEDOM. AND VIRGINIA. VIRGINIA IS WHERE WE LEARN SO MUCH OF THE HISTORY - VIRGINIA HAD AN ESTABLISHED CHURCH, AND THERE WERE BAPTISTS WHO WERE JAILED AND WHIPPED BECAUSE THEY OPPOSED THE ESTABLISHED CHURCH. WHAT WAS THE ESTABLISHED CHURCH OF VIRGINIA? IT WAS ANGLICANISM, I THINK. THIS IS ONE OF THE THINGS THAT MADE AND MAKES AMERICA A NEW THING IN HISTORY, THIS IDEA THAT WE'RE GOING TO HAVE A CONSTITUTION, BUT IT'S A CONSTITUTION, NOT ONLY IS THE CONSTITUTION NOT GOING TO SAY THERE'S AN ESTABLISHED CHURCH, BUT IT'S GOING TO SAY SPECIFICALLY WE ARE NOT TO HAVE AN ESTABLISHED CHURCH. WELL I THINK SO. ALTHOUGH I HAVE TO SAY, I ALWAYS WORRY, WHEN ONE GETS A PANEL OF LAWYERS DISCUSSING HISTORY, I'M KEENLY CONSCIOUS THAT I'VE GOT SOME COLLEAGUES OVER IN THE HISTORY DEPARTMENT HERE WHO COULD REALLY ANSWER YOUR QUESTION. BUT IT CERTAINLY WAS AN EXTRAORDINARY THING TO THINK THAT WE COULD HAVE A REPUBLIC FOUNDED IN THIS KIND OF SECULAR WAY IN ITS GOVERNMENT, AND ENCOMPASSING SUCH A TREMENDOUSLY DIVERSE PEOPLE, INCLUDING A RELIGIOUSLY DIVERSE PEOPLE. I WAS THINKING OF THE DRED SCOTT DECISION IN- BEFORE THE CIVIL WAR, WHICH IN DEALING WITH THE ISSUE OF SLAVERY GAVE THE STATES A LOT OF LEEWAY TO MAKE THEIR OWN DECISIONS. DOES THAT PLAY INTO THIS IN ANY WAY? WELL IT CERTAINLY DOES. THINK OF THE IMPLICATIONS OF THE FREE EXERCISE OF RELIGION FOR A, FOR A SLAVE SOCIETY. THAT MEANS YOU HAVE ABOLITIONIST PREACHERS - YOU EVEN HAVE BLACK ABOLITIONIST PREACHERS WITH A RIGHT TO PREACH IN PUBLIC. THIS IS AT A TIME WHEN MAKING SPEECHES IN FAVOR OF ABOLITION OR OPPOSED TO SLAVERY IS A CRIMINAL OFFENSE IN THE SOUTHERN STATES, SO IT'S REALLY INCONCEIVABLE THAT YOU COULD HAVE APPLICATION OF THE BILL OF RIGHTS TO THE SOUTHERN STATES IF THEY'RE - AS LONG AS THEY WERE GOING TO MAINTAIN A SLAVE SYSTEM. SO PICK UP THE STORY THERE. THE CIVIL WAR WAS A BREAK-OVER POINT, AS IT WAS WITH SO MANY THINGS IN OUR SOCIETY -- THAT AFTER THE CIVIL WAR WE HAD THE FOURTEENTH AMENDMENT. BRIEFLY BRING US UP TO DATE ON WHAT THE FOURTEENTH AMENDMENT SAYS. WELL I THINK THE MAIN THING ABOUT IT IS THAT THE IDEA OF WHERE O UR LOCUS OF INDIVIDUALS RIGHTS AGAINST THE GOVERNMENT RESTS. A T THE FOUNDING, THEY TRUSTED THEIR STATE GOVERNMENTS; THEY CREATED A NEW FEDERAL GOVERNMENT IN ORDER TO BE ABLE TO FIGHT WARS EFFECTIVELY, TO DEFEND OURSELVES INTERNATIONALLY, TO BE ABLE TO REGULATE INTERSTATE COMMERCIAL AFFAIRS, BUT THE BASIC GOVERNMENTS THAT WERE GOING TO BE HANDLING ORDINARY CITIZENS' LIVES WERE STILL GOING TO BE THE STATE GOVERNMENTS, AND THOSE WERE THE GOVERNMENTS THAT PEOPLE TENDED TO TRUST. SO WHAT THEY DID WAS THEY PROTECTED OUR LIBERTIES AGAINST THIS NEW, SOMEWHAT SCARY, DISTANT NATIONAL GOVERNMENT, BUT ONE OF THE GREAT MESSAGES OF THE / CIVIL WAR WAS THAT MAYBE THEY GOT IT BACKWARDS, THAT THE STATES COULD BE AS GREAT A THREAT TO INDIVIDUAL LIBERTIES, AND PERHAPS EVEN MORE SO. THE FOURTEENTH AMENDMENT REFLECTS THE VIEW THAT NOW IT'S- THE FEDERA L GOVERNMENT IS TO BE A PRIMARY PROTECTOR OF INDIVIDUAL LIBERTIES. JEFFERSON WAS THE FIRST TO POPULARIZE THAT PHRASE, " SEPARATION OF CHURCH AND STATE." WHY HAS THIS HAD SO MUCH RESONANCE THROUGH AMERICAN HISTORY? WHAT DO YOU THINK, PROFESSOR GARNETT? WELL THE IDEA OF SEPARATION GOES BACK TO THE BIBLE, RIGHT? " RENDER UNTO CAESAR WHAT IS CAESAR'S, AND WHAT IS GOD'S UNTO GOD." JEFFERSON POPULARIZED A CERTAIN METAPHOR, THE WALL OF SEPARATION. I THINK IT'S FASCINATING TO THINK THAT THAT METAPHOR, THAT IMAGE, THE WALL OF SEPARATION, HAS COME TO DOMINATE OUR DISCOURSE ABOUT CHURCH-STATE RELATIONS SO MUCH, WHEN IT PROBABLY OBSCURES MORE THAN IT CLARIFIES. THERE ISN'T A WALL BETWEEN RELIGION AND POLITICS BECAUSE WE'RE REGULAR HUMAN BEINGS WHO PARTICIPATE IN THE PUBLIC SQUARE, WE PARTICIPATE IN POLITICS, AND SOME OF US ARE FORMED BY RELIGION, AND SOME OF US AREN'T. I THINK IT'S BETTER TO THINK IN TERMS OF RELATIONS THAN A WALL. NOW, IN THE CONTEMPORARY CONTEXT, SOME PEOPLE PUSH BACK AGAINST THE IDEA OF SEPARATION BECAUSE THEY THINK IT MEANS A GOD-FREE PUBLIC SQUARE, AND IF THAT'S WHAT IT MEANT, I'D PUSH BACK ON IT, TOO. I THINK PROPERLY UNDERSTOOD, AND MAYBE THIS IS SOMETHING FOR LATE R SEGMENTS, THE IDEA OF SEPARATION IS A CRUCIAL ONE, BECAUSE IT REMINDS US THAT THE STATE ISN'T EVERYTHING, THAT THE STATE AND THE CHURCH ARE AND OUGHT TO BE DISTINCT, DIFFERENT. BUT THAT REMINDER THAT THEY'RE SEPARATE IS CRUCIAL TO POLITICAL FREEDOM, BECAUSE IT'S A CONSTANT REMINDER TO THE GOVERNMENT THAT THE STATE'S NOT EVERYTHING, THAT THERE'S SOMETHING ELSE. AND ACTUALLY, IN THE- THAT REMINDS US THAT THE METAPHOR, THE " WALL OR HEDGE BETWEEN THE GARDEN OF THE CHURCH AND THE WILDERNESS OF THE WORLD," WAS SOMETHING THAT WAS SEEN IN ROGER WILLIAMS' WRITINGS IN THE 1600'S. WE'RE GOING TO TAKE A SHORT BREAK NOW, BUT WE'LL BE COMING BACK AND WHEN WE RETURN, HOW SHOULD THE RICH AND CONFLICTED HISTORY WE JUST DISCUSSED BEAR ON TODAY'S CHURCH-STATE DEBATE? OR SHOULD IT AT ALL? THAT DISCUSSION IS COMING RIGHT UP.

WELCOME BACK TO OUR DISCUSSION OF SEPARATION OF CHURCH AND STATE, THE U.S. CONSTITUTION, THE BILL OF RIGHTS, AND WHERE WE ARE TODAY. PROFESSOR EISGRUBER, LET'S PICK UP IN THIS PERIOD AFTER THE CIVIL WAR. HOW DID THAT AFFECT THE STATES, AND HOW DID IT AFFECT INDIVIDUALS WITHIN THE STATES, AND PARTICULARLY HOW DID IT AFFECT THE NATIONAL DEBATE ABOUT FREEDOM OF RELIGION? WELL IN SOME WAYS WE HAVE TWO PERIODS THAT WE MOVE THROUGH. ONE IS THE PERIOD BETWEEN THE CIVIL WAR AND THE NEW DEAL, WHER E THE NATIONAL GOVERNMENT AND THE NATIONAL COURTS DO BECOME MUCH MORE INVOLVED IN POLICING THE STATES, BUT A LOT OF THE FOCUS I S ON ECONOMIC RIGHTS IN THE SUPREME COURT AND ECONOMIC LEGISLATION COMING FROM CONGRESS. AFTER THE NEW DEAL, YOU GET W HAT I THINK OF AS THE CASES THAT LAUNCHED THE CIVIL LIBERTIES ERA - TWO CASES ABOUT FLAG SALUTES IN SUPREME COURT. MINERSVILLE V. GOVITIS, WHERE THE COURT HOLDS THAT JEHOVAH'S WITNESSES ARE NOT ENTITLED TO ANY KIND OF EXEMPTION FROM A REQUIREMENT THAT THEY SALUTE THE FLAG, EVEN THOUGH FOR THEM THAT'S A BURDEN THAT REQUIRES THEM TO VIOLATE THE DICTATES OF THEIR RELIGION, BECAUSE IT'S PAYING OBEISANCE TO A GRAVEN IMAGE IN THEIR VIEW. AND THEN JUST A FEW YEARS AFTER THAT, WEST VIRGINIA V. BARNETT, WHERE THE COURT REVERSES FIELD AND, MOTIVATED PARTLY BY WHAT WAS HAPPENING IN WORLD WAR TWO AND PARTLY BY REPORTS OF PERSECUTION OF JEHOVAH'S WITNESSES AROUND THE UNITED STATES BEGINS TO CARVE OUT FOR ITSELF THIS ROLE AS A PROTECTOR OF RELIGIOUS LIBERTIES AND AN INSTITUTION CONCERNED ABOUT RELIGIOUS FREEDOM. BUT IN THE INTERIM, BETWEEN THE CIVIL WAR AND THE NEW DEAL, YOU HAVE THE CASES WHERE THE SUPREME COURT IS CONFRONTING STRONG LEGISLATIVE ATTACKS AGAINST THE CHURCH OF JESUS CHRIST OF LATTER DAY SAINTS, THE MORMONS. AND THEY ALSO CONFRONTED TWO CASES INVOLVING ANTI-CATHOLIC PREJUDICE DURING THIS PERIOD, IN ONE CASE PLAINTIFFS CLAIMING THAT IT WAS UNCONSTITUTIONAL FOR THE DISTRICT OF COLUMBIA TO PROVIDE MONEY TO A HOSPITAL BECAUSE IT WAS OWNED AND OPERATED BY A ROMAN CATHOLIC RELIGIOUS ORDER, AND THE SUPREME COURT UNANIMOUSLY SAID " NO, IT'S FINE; IT'S A HOSPITAL AND THE FACT THAT IT'S OPERATED BY A RELIGIOUS ORDER DOESN'T MAKE ANY DIFFERENCE." AND THEN PIERCE V. SOCIETY OF SISTERS, IN WHICH A STATE TRIED TO MAKE IT ILLEGAL TO HAVE RELIGIOUS PRIVATE SCHOOLS, AND REQUIRE ALL CHILDREN TO GO TO PUBLIC SCHOOLS, AND THAT WAS AGAIN AN OVERTLY ANTI-CATHOLIC MEASURE, AND THE SUPREME COURT AGAIN HOLDING THAT THAT WAS UNCONSTITUTIONAL. QUESTION FROM A LAYMAN: IF WE HAVE RELIGIOUS FREEDOM, AND THE RELIGION SAYS, " WE BELIEVE IN POLYGAMY," BLUNTLY STATED, WHERE DOES THE FEDERAL GET OFF COMING IN AND SAYING " NO, YOU CAN'T DO THAT IN TERMS OF THE FIRST AMENDMENT, IT RAISES THAT VERY HARD QUESTIO N THAT RICK GARNETT MENTIONED BEFORE, WHICH IS, DOES THE FREE EXERCISE OF RELIGION ACTUALLY PROTECT THE EXERCISE OF RELIGION, OR DOES IT MERELY PROTECT AGAINST LAWS WHICH DISCRIMINATE AGAINST RELIGION IN SOME WAY, THAT SINGLE OUT RELIGION FOR SOME SPECIAL BURDEN. AND SO THE ARGUMENT WHICH THE COURT SORT OF ACCEPTS, ALTHOUGH NOT ENTIRELY IN THE POLYGAMY CASE, IS BECAUSE POLYGAMY IS MADE ILLEGAL FOR EVERYONE, NOT JUST THE MORMONS, NOT JUST FOR RELIGIOUSLY MOTIVATED POLYGAMY, BUT FOR ACROSS THE BOARD, THAT IT'S NOT AN EXERCISE OF RELIGION, THAT AS LONG AS A LAW APPLIES ACROSS THE BOARD, IT DOESN'T OFFEND THIS ASPECT OF THE FIRST AMENDMENT, AND THAT IS THE QUESTION WE'VE GONE BACK AND FORTH ON AS A PEOPLE AND IN THE COURTS, MANY TIMES. IT'S A HARD QUESTION. WELL SOME PEOPLE ARGUE, SOME LEGAL SCHOLARS, SOME JURISTS ARGUE, THAT WE SHOULD INTERPRET THE CONSTITUTION WITH THE VIEW OF " WHAT WAS THE INTENT OF THE FOUNDERS?" . OTHERS SAY " NO, THE CONSTITUTION IS A LIVING, BREATHING DOCUMENT THAT HAS TO ADJUST TO THE TIMES." NOW BOTH VIEWS ARE REPRESENTED ON THIS PANEL. LET'S DISCUSS THAT. DAN LET ME SAY SOMETHING ABOUT THAT, BECAUSE I'M ONE OF THE PEOPLE WHO OFTEN GETS PUT IN THE " LIVING, BREATHING" CATEGORY IN YOUR DICHOTOMY, AND I'M A CRITIC OF CERTAIN KINDS OF ORIGINALISM, BUT I USUALLY THINK THE QUESTION IS BETTER PUT IN TERMS OF WHAT KINDS OF INTENTIONS OF THE FRAMERS MATTER TO CONSTITUTIONAL INTERPRETATION, SO I THINK THEY INTENDED TO USE THOSE KINDS OF WORDS, TO USE WORDS AS ABSTRACT AS " RESPECTING AN ESTABLISHMENT OF RELIGION" PRECISELY BECAUSE THEY KNEW THEY WERE LAUNCHING A PROJECT IN WHICH THEY WANTED THE NATION TO CONTINUE TO STRUGGLE WITH ISSUES THAT THEY HAD IDENTIFIED AND DIDN'T WANT TO BIND US TO THE PARTICULAR CONCEPTIONS THAT THEY MIGHT HAVE HAD ABOUT RELIGIOUS LIBERTY. WE'RE MUCH BETTER OFF AS A RESULT OF HAVING THESE ABSTRACTIONS IN THE CONSTITUTION. LET ME GIVE YOU A COUPLE OF EXAMPLES OF THAT. ONE IS A MATTER OF SOME DISAGREEMENT, BUT JOSEPH STORY IN HIS CONSTITUTIONAL COMMENTARIES, AND HE WAS ONE OF THE MOST EXTRAORDINARY CONSTITUTIONAL SCHOLARS, PROBABLY THE MOST EXTRAORDINARY CONSTITUTIONAL SCHOLAR OF THE 19TH CENTURY, SAID, " LOOK, WHATEVER ELSE WAS TRUE ABOUT THE PROTECTIONS OF THE FREE EXERCISE OF RELIGION, IT WASN'T INTENDED TO COUNTENANCE JUDAISM OR ISLAM; IT WAS ABOUT CHRISTIANITY." HE MIGHT BE RIGHT ABOUT WHAT MANY OF THE FRAMERS THOUGHT AT THE TIME THAT THEY WROTE THE PRINCIPLE, BUT WHAT THEY WROTE WAS THE PRINCIPLE AND NOT THE MORE SPECIFIC EXPRESSION THAT WOULD TAKE INTO ACCOUNT THAT PARTICULAR PRO-CHRISTIAN VIEW. IN THE DEBATE AMONG CONSTITUTIONAL THEORISTS ABOUT THE RELEVANCE OF HISTORY, THERE'S A SHARP DISTINCTION BETWEEN TH E INTENTIONS OF THE PEOPLE WHO WERE LIVING AT THE TIME AND WRITING THESE DOCUMENTS, WHICH ARE TOUGH TO KNOW, AND THE MEANING OF THE WORDS. SO THE ORIGINAL INTENTION IS ONE THING, I THINK A LOT OF US WOULD THINK THAT'S KIND OF HARD TO PIN DOWN, BUT THE ORIGINAL MEANING IS SOMETIMES MORE ACCESSIBLE. FOR THOSE OF US WHO WORRY ABOUT THE LIVING CONSTITUTION METAPHOR, IT'S NOT THAT WE DON'T THINK THE WORLD CHANGES - OF COURSE IT DOES, AND THE RULES NEED TO CHANGE AS WELL - BUT WHO DO YOU WANT TO CHANGE THE RULES? DO YOU WANT IT TO BE DONE BY COURTS AND CONSTITUTIONAL CASES, OR DO YOU WANT IT TO BE DONE THROUGH THE DEMOCRATIC PROCESS, THROUGH THE LEGISLATURES AND SO ON. THAT'S ONE OF THE ISSUES THAT IS OFTEN KIND OF AT THE ROOT OF THIS DEBATE ABOUT ORIGINAL MEANING, IS WHO'S GOING TO BE THE ENGINE OF CHANGE? CHANGE IS GOING TO HAPPEN; WHO'S GOING TO MAKE IT HAPPEN. I KNOW THAT JUDGE MCCONNELL AND I DISAGREE ABOUT THIS QUESTION, SO LET ME SEE IF I CAN STATE MY VIEW IN A WAY THAT FORCES HIM TO DISAGREE OR BRINGS OUT THE DISAGREEMENT BETWEEN US. I WOULD SAY THIS: THAT THE WAY JUDGES HAVE GONE ABOUT INTERPRETING THE CONSTITUTION IS BY RECURRING TO THEIR OWN MORAL JUDGMENTS IN ORDER TO FIGURE OUT WHAT THESE ABSTRACT CONCEPTS MEAN, AND INDEED THERE'S NO OTHER WAY REALLY TO BE FAITHFUL TO A CONSTITUTION THAT SPEAKS IN TERMS OF MORAL PRINCIPLES. IT DEMANDS THAT KIND OF USE OF JUDGMENT. WE DISAGREEING YET? AND I NOPE? THINK THAT IS SIMPLY YES AN EXAGGERATION AT BEST, THAT MANY JUDGES, AND YOU CAN SEE THE DECISIONS, AND YOU THINK ABOUT WHO THE JUDGES ARE INVOLVED - MANY JUDGES COME TO THE CONCLUSION THAT IT IS NOT UP TO ME TO DECIDE THIS FOR THE NATION. THIS IS SOMETHING WHICH HAS BEEN LEFT TO THE PEOPLE TO DECIDE. IT'S OKAY FOR THEM TO DO ONE WAY; IT'S OKAY FOR THEM TO GO THE OTHER WAY, AND THE SUPREME COURT'S FUNCTION IN OUR NATIONAL LIFE IS NOT TO BE SOME KIND OF FREEWHEELING MORAL GUARDIANS, DECIDING ALL THE MORALLY FRAUGHT QUESTIONS, BUT ONLY TO ENFORCE THOSE LIMITATIONS ON THE POWERS OF THE GOVERNMENT THAT ARE ACTUALLY IN THE DOCUMENT. BUT WHEN A JUDGE HAS TO DECIDE, AS ALL OF THEM HAVE DONE, THAT A PARTICULAR LAW DOES OR DOESN'T CROSS THE LINE INTO AN ESTABLISHMENT, OR DOES OR DOESN'T CROSS THE LINE INTO AN ABRIDGEMENT OF FREE EXERCISE, WHAT THEY HAVE TO RELY ON IN PART IS THEIR OWN BEST UNDERSTANDING OF WHAT RELIGIOUS FREEDOM IS, AND THERE'S NO GETTING AWAY FROM THAT WHEN THEY'RE INTERPRETING THESE CLAUSES. AS WE DISCUSS THE SUBJECT OF SEPARATION OF CHURCH AND STATE, WHAT THE CONSTITUTION GUARANTEES, WHAT IT DOESN'T, IS IT WITHIN THE BOUNDS OF THE CONSTITUTION TO TAKE FEDERAL TAX MONEY AND PUT IT INTO PAROCHIAL SCHOOLS? IT IS ILLEGAL FOR GOVERNMENT TO DIRECTLY FUND RELIGIOUS EDUCATION. I GET AGREEMENT HERE? DIRECT FUNDING? I'M NOT SURE THE JUDGE AGREES WITH THAT. DIRECT FUNDING OF DEPENDS OF COURSE ON WHAT THE WORD " DIRECT" MEANS. GOVERNMENT CHECK TO NEIGHBORHOOD BAPTIST SCHOOL.

HOLLY, AS PART OF A PROGRAM THAT BENEFITS ONLY RELIGIOUS SCHOOLS OR AS PART OF A PROGRAM THAT WOULD BENEFIT A WIDE RANGE OF PRIVATE SCHOOLS? HOW ' BOUT I PUT IT THIS WAY - I WAS TRYING TO START WITH THE THING THAT WE MOST AGREE UPON. (LAUGHTER) BUT I'VE FOUND THAT IT'S MORE DIFFICULT THAN I THOUGHT. WE WOULD AGREE THAT THE GOVERNMENT CAN'T DECIDE, " WOULDN'T IT BE GOOD IF KIDS WENT TO SUNDAY SCHOOL MORE; LET'S GO PAY A BUNCH OF SUNDAY SCHOOL TEACHERS." GOOD, WELL WE DO AGREE ON - WE DO HAVE AT LEAST A BASELINE AGREEMENT, OKAY, SO FIRST OF ALL, THE CONSTITUTION DOES NOT ALLOW GOVERNMENT TO PAY FOR RELIGIOUS EDUCATION, YEAH, TO PAY FOR PEOPLE TO GO TO CHURCH. THE GOVERNMENT IS ALLOWED TO DECIDE THAT EDUCATING KIDS IS A GOOD THING - THAT'S AN ENTIRELY APPROPRIATE PURPOSE OF GOVERNMENT. THE GOVERNMENT'S PERMITTED TO LOOK AROUND AND SEE THAT PAROCHIAL SCHOOLS AND HOMESCHOOLING PARENTS AND LUTHERAN SCHOOLS ARE DOING A GOOD JOB, JUST LIKE AT LEAST IN SOME PLACES THE PUBLIC SCHOOLS ARE, AND SO THE GOVERNMENT'S ENTITLED TO SAY " IT SERVES A VALID PUBLIC SECULAR PURPOSE TO REIMBURSE PARENTS FOR TUITION EXPENSES, BECAUSE AFTER ALL, THESE CATHOLIC SCHOOLS OR THESE LUTHERAN SCHOOLS ARE PROVIDING A PUBLIC SERVICE; THEY'RE EDUCATING KIDS." THOSE KINDS OF CASES I THINK NEED TO BE DISTINGUISHED FROM THE SORT OF SUNDAY SCHOOL HYPOTHETICAL. IT'S TRUE THAT IN SOME SENSE PUBLIC MONEY IS GOING TO PAY FOR RELIGIOUS STUFF HAPPENING IN CATHOLIC SCHOOLS IF THOSE SCHOOLS ARE TAKING VOUCHERS, AND IN MY VIEW ANYWAY, THAT'S NOT A CONSTITUTIONAL PROBLEM BECAUSE IT'S PART OF AN OVERALL PROGRAM DESIGNED TO EDUCATE KIDS; IT'S NOT PART OF A TARGETED, STATE- FUNDED EVANGELIZATION PROGRAM, OR SOMETHING LIKE THAT. SO I THINK THERE ARE TWO PRINCIPLES. ONE IS THAT IN ORDE R TO BE CONSTITUTIONAL, THE FUNDS HAVE TO BE PROVIDED ON A NEUTRAL BASIS, THAT IS, NOT FAVORING ANY ONE RELIGION, NOT FAVORING RELIGIOUS EDUCATION OR RELIGIOUS SERVICES OVER SECULAR, BUT ON THE BASIS OF NEUTRAL CRITERIA, AND THE SECOND IS THAT THE PARTICIPANTS, THE PEOPLE WHO TAKE ADVANTAGE OF THE GOVERNMENT AID TO ATTEND ONE OF THESE INSTITUTIONS HAVE TO BE MAKING THAT AS A MATTER OF THEIR OWN CHOICE, OR THE FAMILY'S CHOICE. RELIGION CAN'T BE FORCED DOWN PEOPLE'S THROATS, BUT THERE IS NOTHING WRONG WITH THE GOVERNMENT NEUTRALLY SUPPORTING ALL EDUCATION, BOTH RELIGIOUS AND NON-RELIGIOUS, AND THIS WOULD EXTEND NOT JUST TO EDUCATION, BUT TO MEDICAL CARE, AND SOCIAL SERVICES, AND HOUSING, AND IT'S A GENERAL PRINCIPLE. IT'S MOSTLY ABOUT THIS DIFFERENCE BETWEEN DIRECT AND INDIRECT FU NDING, AND WHEN I SAY INDIRECT, I MEAN SOMETHING LIKE WHAT YOU D ESCRIBE, WHERE THERE IS A CHOICE THAT SOMEONE CAN ACTUALLY MAKE S O THERE'S A DISTANCE BETWEEN THE GOVERNMENT PAYING FOR THE RELIGION. IT'S MORE AKIN TO SOMEONE MAKING THEIR OWN RELIGIOUS CHOICES. AND THAT'S A SIGNIFICANT DIFFERENCE IN THE PROGRAMS THAT WE SEE AND WE WILL CONTINUE TO SEE IN THE COURTS, AND THAT'S " TO WHAT EXTENT IS THE LAW THAT'S PROVIDING THE FUNDING GENERAL?" ONE THING THAT GETS LOST IN THIS DEBATE A LOT OF TIMES ARE THE CONSEQUENCE OF GOVERNMENT FUNDING RELIGIOUS SCHOOLS OR GOVERNMENT BEING INVOLVED IN THE FUNDING WHETHER IT'S INDIRECT OR DIRECT. IT'S ALWAYS IMPORTANT FIRST TO STOP AND THINK ABOUT WHAT IMPLICATIONS THAT HAS FOR RELIGION ITSELF AND THE RELIGIOUS INSTITUTIONS THAT DO TAKE GOVERNMENT MONEY, ' CAUSE OFTEN WITH GOVERNMENT MONEY COMES GOVERNMENT REGULATIONS. LET'S MOVE THIS DISCUSSION FOR AT LEAST THE MOMENT INTO SOMETHING THAT'S AS CURRENT AS SOME OF THESE OTHER SUBJECT ARE, AND THAT IS, WHAT'S TAUGHT IN SCHOOLS, AND IN PUBLIC SCHOOLS. IS IT LEGAL, IS IT CONSTITUTIONAL, TO TEACH FROM THE BIBLE, OR DO WE KNOW? WELL I THINK IT'S VERY DIFFICULT FOR THEM, FOR SCHOOLS TO DO IT PROPERLY, BUT I THINK PROPERLY DONE, THAT THE BIBLE IS A LEGITIMATE PART OF A CURRICULUM, NOT TO BE STUDIED AS A RELIGIOUS TEXT, BUT FOR ITS LITERARY- HISTORICAL, EVEN COMPARATIVE- RELIGION-TYPE VALUE. THE BIBLE IS AFTER ALL ONE OF THE MOST INFLUENTIAL TEXTS IN WESTERN CIVILIZATION. IT WOULD BE VERY ODD IF IT WERE CONSTITUTIONALLY REQUIRED THAT PUBLIC-SCHOOL STUDENTS BE MADE IGNORANT OF IT. THAT SAID, IT'S VERY HARD TO DO, AND I THINK THAT PUBLIC SCHOOLS OFTEN SHY AWAY FROM INCLUDING ANY BIBLICAL COMPONENT EVEN WHERE IT WOULD BE LAWFUL, BECAUSE OF, YOU KNOW, HOW INTENSELY PEOPLE FEEL ABOUT IT, AND JUST HOW HARD IT IS TO WALK THAT LINE, BETWEEN TAKING THE BIBLE SERIOUSLY ON ITS OWN TERMS, WHICH I THINK IS LEGITIMATE, AND TEACHING IT AS A RELIGIOUS MATTER, WHICH IS NOT, AND IT'S JUST A VERY DIFFICULT LINE. PROFESSOR EISGRUBER, YOU WERE SHAKING YOUR HEAD IN SOME DIRECTION. I WAS ACTUALLY NODDING; I AGREE WITH EVERYTHING THAT JUDGE MCCONNELL SAID ABOUT THIS. I THINK WE'VE SEEN SOME OF THESE DIFFICULTIES IN RECENT CONTROVERSIES THAT HAVE ARISEN BOTH IN GEORGIA AND TEXAS, WHERE THERE HAVE BEEN EFFORTS BOTH BY LEGISLATURES AND SCHOOL DISTRICTS, TO PUT IN PLACE BIBLE CURRICULA. I THINK IF A SCHOOL DISTRICT WANTED TO DO WHAT THE JUDGE JUST RECOMMENDED TO THEM IN ORDER TO PRODUCE A VALUABLE, CONSTITUTIONALLY VALID COURSE ON THE BIBLE, THE SCHOOL DISTRICT WOULD BE WELL ADVISED TO DELIBERATELY INCLUDE MULTIPLE RELIGIOUS TRADITIONS, AND INDEED I WOULD SAY MULTIPLE RELIGIOUS TEXTS, IN THAT COURSE, IN ORDER TO ENSURE THAT WHAT THEY'RE DOING IS NOT PURSUING IN A KIND OF PROSELYTIZING FASHION, ONE TRADITION. IF YOU SEE A BIBLICAL REFERENCE IN SHAKESPEARE, AND THE STUDENT SAYS, " I DON'T UNDERSTAND THAT," CAN THE TEACHER UNDER THE CONSTITUTION, UNDER THE LAWS OF THE LAND, SAY, " WELL LET ME SHOW YOU WHERE THAT IS IN THE BIBLE." CAN THEY DO THAT? I THINK SO, YES OR NOT OF COURSE. I THINK IT'S UNFORTUNATE THAT SOME PEOPLE REACTED TO THE SCHOOL-PRAYER DECISIONS OF THE 60'S THAT OUTLAWED GOVERNMENT-SPONSORED PRAYER, GOVERNMENT-WRITTEN PRAYERS, GOVERNMENT-LED BIBLE- READINGS. THEY DID NOT OUTLAW RELIGION IN THE PUBLIC SCHOOLS WHERE IT ARISES NATURALLY IN CURRICULUM, IN LITERATURE CLASSES, AND THE COURT ACTUALLY WENT TO PAINS TO SAY THAT, THAT YOU COULD SAY THAT KNOWLEDGE OF THE BIBLE AND ITS PLACE, ITS LITERARY WORTH, AND ITS PLACE IN HISTORY, IS PART OF A WELL ROUNDED EDUCATION. SO, THERE'S LITTLE CONTROVERSY I THINK ABOUT TEACHING ABOUT RELIGION IN NORMAL PLACES WHERE IT COMES UP IN THE CURRICULUM. IT BECOMES A LITTLE BIT HARDER WHEN YOU HAVE A WHOLE CLASS FOCUSED ON THAT, FOR THE REASONS THAT PROFESSOR EISGRUBER SAID. THIS MIGHT BE AN AREA WHERE LAWYERS HAVE CAUSED SOME TROUBLE, IN THE SENSE THAT MANY WELL MEANING TEACHERS AND SCHOOL-OFFICIALS, AS THE JUDGE NOTED, OVERREACT. THEY FIGURE THAT THE SAFEST THING FOR US TO DO MIGHT BE JUST TO NOT TALK ABOUT RELIGION AT ALL. IT IS GENUINELY HARD TO DO WELL, THOUGH, AS I THINK YOU SAID EARLIER, SO IF YOU IMAGINE PASSAGES FROM THE BIBLE COMING INTO THE COURSE AS A RESULT OF A DISCUSSION OF SHAKESPEARE OR FOR SOME OTHER REASON AND THEN SOME KID IN THE CLASS PUTS HIS HAND UP, AND THE TEACHER CALLS ON HIM, AND HE SAYS, " YOU KNOW, THAT PASSAGE REALLY DOESN'T MAKE ANY SENSE," OR " I THINK THAT'S A TERRIBLE IDEA," AND THEN ALL OF A SUDDEN SOME OTHER KID ON THE OTHER SIDE OF THE CLASSROOM IS APPALLED BY THAT REACTION, AND NOW THE TEACHER'S INTO A DISCUSSION OF THE MERITS OF THE TEXT. ISN'T THAT TRUE IF WE'RE TEACHING THE VIETNAM WAR, YOU KNOW, THE TEACHER MIGHT HAVE A VIEW ON THAT, AND SOME KID MIGHT HAVE HEARD AT HOME A DIFFERENT VIEW, AND YOU GET A FIGHT GOING? PEOPLE ARGUE ABOUT ALL KINDS OF THINGS. I'M NOT DISAGREEING WITH YOU THAT IT'S HARD TO DO WELL, BUT I DO THINK THAT THERE'S A - WE DON'T WANT TO BE OVERSENSITIVE TO THE POSSIBILITY OF DISAGREEMENT, ' CAUSE DISAGREEMENT IS ALWAYS GOING TO EXIST. YEAH ARGUMENT IS HARD TO DO WELL, AND WE CAN SEE LOTS OF PLACES THAT WE WISH IT WAS BETTER IN THE PUBLIC SCHOOLS, AND IN SCHOOLS MORE GENERALLY, BUT WHEN THESE ARGUMENTS GET TO BE ABOUT RELIGION, I THINK THEY GET TO BE ABOUT IDENTITY IN A DIFFERENT KIND OF WAY. ALL OF A SUDDEN SOMEONE IS FEELING THREATENED BECAUSE THEY'RE NOT PART OF THE MAJORITY GROUP. THE TEXT IS ONE THAT HAS DIVINE STATUS FOR ANOTHER GROUP IN THE CLASS, AND I THINK MANY TEACHERS FEEL AT THAT POINT THEY'RE WALKING ON EGGSHELLS, AND NOT JUST BECAUSE LAWYERS MAKE THEM FEEL THAT WAY. AND, AND YOU KNOW, LAWYERS ACTUALLY - LEMME TAKE UP FOR THE LAWYERS. LAWYERS IN THIS AREA ACTUALLY HAVE COME QUITE A LONG WAY. THIS IS ONE OF THE AREAS WHERE THINGS ARE RATHER SETTLED. THERE ARE GUIDELINES ABOUT TEACHING ABOUT RELIGION IN THE PUBLIC SCHOOLS THAT HAVE BEEN ENDORSED BY A VARIETY OF GROUPS. WE WERE INVOLVED IN DRAFTING AND ENDORSING THESE PRINCIPLES AND THEY'VE BEEN APPROVED BY PEOPLE FROM EITHER END OF THE ADVOCACY SPECTRUM, AND FROM PROFESSORS ACROSS THE BOARD. WELL IT'S ONE THING TO SAY, " JUST TAKE THIS PHRASE IN SHAKESPEARE THAT REFERS TO THE BIBLE AND TEACH ' EM ABOUT THAT," BUT SAY THE STUDENT IS READING SOMETHING OF SALMAN RUSHDIE OR SOMEBODY, AND SOMEONE SAYS, " WELL, THAT'S A REFERENCE TO THE KORAN." I THINK, I THINK THE ANSWER IS THE SAME. I THINK YOU REMIND ME OF SOMETHING I'VE HEARD PEOPLE SAY IN THIS CONTROVERSY OVER BIBLE CURRICULUM, THAT A LOT OF THE IMPETUS FOR HAVING THESE BIBLE CLASSES COME FROM THESE COMMUNITIES WHERE THERE'S ALREADY A LOT OF PEOPLE WHO KNOW ABOUT THE BIBLE AND ARE HIGHLY CHURCHED AND HOMOGENOUS COMMUNITIES, WHERE THEY MIGHT BE BETTER SERVED TO HAVE A CLASS ON COMPARATIVE RELIGIONS OR ON SOME OTHER FAITHS THAT PEOPLE REALLY NEED TO KNOW ABOUT. SO, ONE OF THE KEYS IN THESE KIND OF GUIDING PRINCIPLES, IS THAT THERE BE AN EDUCATIONAL REASON, NOT A DEVOTIONAL REASON, THAT YOU NOT MAKE VALUE JUDGMENTS ABOUT THE RELIGION, BUT TEACH ABOUT IT, SO THAT CHILDREN - THE STUDENTS, HAVE A WAY TO UNDERSTAND THESE REFERENCES. WE WANT TO MOVE TO QUESTIONS FROM THE AUDIENCE FAIRLY SOON, BUT BEFORE DOING SO, AND LET ME START WITH YOU, PROFESSOR, AND WE'LL MOVE OVER TO THE JUDGE, IN YOUR OPINION, AT THIS MOMENT, WHAT IS THE MOST IMPORTANT THING FOR CITIZENS OF THE UNITED STATES TO HAVE IN MIND AND TO THINK ABOUT WHEN THEY CONSIDER THE SEPARATION OF CHURCH AND STATE? I THINK THE MOST IMPORTANT THING TO HAVE IN MIND IS FIRST OF ALL WHAT A SUCCESS WE'VE BEEN AS A COUNTRY THAT IS RELIGIOUSLY DIVERSE. ALTHOUGH WE HAVE DEBATES ABOUT SECULARISM AND RELIGIOSITY, RIGHT NOW WE HAVE AN EXTRAORDINARY VARIETY OF FAITHS REPRESENTED IN OUR COUNTRY, AND AN IMPORTANT SET OF PEOPLE WHO ARE NON-BELIEVERS AS WELL, AND I THINK THAT THAT DIVERSITY, AND THE NEED TO RESPECT THE EQUALITY OF ALL THOSE PERSONS AND DIFFERENT VIEWS, INCLUDING THE VIEWS OF PEOPLE WHO ARE NON-BELIEVERS, IS AN EXTRAORDINARY FOUNDATION FOR OTHER THINGS THAT NEED TO BE THOUGHT ABOUT IN THIS AREA. PROFESSOR GARNETT? I THINK THE THING I ALWAYS HOPE PEOPLE WILL TAKE AWAY FROM DISCUSSIONS ABOUT SEPARATION IS THAT RELIGIOUS BELIEVERS WON'T THINK IT'S AN ANTI-RELIGIOUS PRINCIPLE, THAT THEY'LL UNDERSTAND THAT SEPARATION IS ACTUALLY A CRUCIAL PART OF RELIGIOUS FREEDOM BECAUSE IT'S A REMINDER TO THE GOVERNMENT THAT THE GOVERNMENT'S LIMITED. I ALSO THINK IT'S CRUCIAL THAT WE REMEMBER THAT THE SEPARATION OF CHURCH AND STATE DOES NOT MEAN THAT WE HAVE TO HAVE A NAKED PUBLIC SQUARE, WHERE RELIGION HAS BEEN PUSHED OUT OF CIVIL SOCIETY AND PUSHED OUT OF OUR PUBLIC CONVERSATIONS. IT'S POSSIBLE TO HAVE RELIGION THAT'S A PART OF OUR PUBLIC CONVERSATION AND YET NOT A PART OF OUR GOVERNMENT. AND THAT'S THE IMPORTANT SORT OF MIDDLE WAY THAT'S AT THE HEART OF SEPARATION PROPERLY UNDERSTOOD. THOSE ARE GREAT COMMENTS, AND I ENDORSE BOTH OF, ALL OF THOSE COMMENTS, AND WOULD ADD TO THAT, ALSO SPEAKING TO THOSE RELIGIOUS INDIVIDUALS, AND I'LL SPEAK SPECIFICALLY TO RELIGIOUS INDIVIDUALS WHO FEEL EMBATTLED AND CONCERNED ABOUT THINGS THAT THEY SEE WRONG IN THE CULTURE, THINGS THAT NEED TO BE ADDRESSED, TO FOCUS ON HOW WE CAN ADDRESS THOSE, AND BE CAREFUL NOT TO USE THE LACK OF AN ESTABLISHMENT OF RELIGION OR GOVERNMENT BEING INVOLVED IN RELIGION AS THE WAY TO CORRECT THINGS THAT BOTHER THEM, AND TO REALLY APPRECIATE THAT THE RESULT OF OUR CONSTITUTIONAL EXPERIENCE HAS BEEN SO MUCH RELIGION, SO MUCH FREE RELIGION, FREE EXERCISE OF RELIGION, AND GENERALLY PEOPLE GETTING ALONG DESPITE RELIGIOUS DIFFERENCES. YOUR HONOR, YOU GET TO BAT CLEANUP ON THIS. THERE'S WAY TOO MUCH AGREEMENT ON THIS PANEL, BUT I CAN'T, I CAN'T DISAGREE WITH ANY OF THOSE THREE STATEMENTS, TRY THOUGH I AM TO COME UP WITH SOME FLAW. I THINK THAT PEOPLE, AND THIS IS FOSTERED BY, ESPECIALLY BY THE MEDIA, BUT ALSO A LOT OF POLITICAL ADVOCACY GROUPS, PEOPLE IN AMERICA THINK THAT WE HAVE MUCH GREATER DIFFERENCE THAN WE ACTUALLY HAVE ON THESE ISSUES. TO READ SOME OF THE SKY-IS-FALLING WARNINGS ABOUT, SOME PEOPLE THINK THAT WE'RE ABOUT TO INTRODUCE A THEOCRACY, AND OTHER PEOPLE THINK THAT ATHEISM HAS BECOME THE NEW ESTABLISHED RELIGION IN AMERICA. NEITHER OF THOSE THINGS IS EVEN CLOSE TO BEING TRUE. WHEN YOU TRAVEL IN INTERNATIONAL CIRCLES AND YOU TALK TO PEOPLE IN OTHER COUNTRIES, YOU REALIZE JUST HOW UNITED AMERICANS REALLY ARE ON THE FUNDAMENTAL IDEA THAT RELIGIOUS EXERCISE IS A LEGITIMATE AND IMPORTANT MATTER, BUT NOT ONE TO BE IMPOSED BY THE GOVERNMENT, AND WE ARE, OUR SOCIETY IS A BIT DIFFERENT FROM THE REST OF THE WORLD, BUT WE SHOULD FEEL BETTER ABOUT OURSELVES AND ABOUT ONE ANOTHER ON THESE THAN WE DO. WE ARE NOT APPROACHING A CRISIS ON THIS ISSUE, AND YET I SENSE THAT THERE'S A LOT MORE PANIC AMONG AMERICANS THAT SOMETHING'S REALLY GOING AWRY, WHEN I DON'T THINK IT IS. NOW - WELL, THANK YOU, JUDGE, AND THANK YOU ALL FOR THAT. STICK AROUND, BECAUSE WHEN WE COME BACK, WE'RE GOING TO OPEN THE FLOOR TO OUR AUDIENCE HERE AT PRINCETON UNIVERSITY'S ROCKEFELLER COLLEGE. WE'LL BE TAKING QUESTIONS FROM THE AUDIENCE, AND SEE WHAT OUR PANEL HAS TO SAY IN RESPONSE TO THOSE QUESTIONS, SO STICK IN HERE WITH US. (APPLAUSE)

WE'RE BACK NOW AT ROCKEFELLER COLLEGE IN PRINCETON UNIVERSITY. WE'RE GOING TO OPEN OUR DISCUSSION UP TO MEMBERS OF THE AUDIENCE. YES, MADAME. MY NAME IS SOPHIE JIN AND I'M A FRESHMAN HERE AT PRINCETON. SO, UH, THE PANEL'S TALKED ABOUT HOW THE PUBLIC EDUCATION MEANS THAT GOVERNMENT HAS TO DECIDE WHERE THE LINE BETWEEN, SAY, THE TEACHING OF HISTORY RELIGION AND THE TEACHING OF RELIGION IS. I'M FROM UTAH WHERE A COUPLE OF YEARS AGO THE LEGISLATURE TRIED TO PASS A BILL REQUIRING THAT INTELLIGENT DESIGN BE TAUGHT IN BIOLOGY CLASSES ACROSS THE STATE, WHICH MEANS THAT GOVERNMENT ALSO HAS TO DECIDE WHERE THE LINE BETWEEN RELIGION AND SCIENCE IS. HOW DOES THE PANEL THINK THE GOVERNMENT OUGHT TO DRAW THE LINE? INTELLIGENT DESIGN HAS TWO PROPOSITIONS TO IT. ONE PROPOSITION IS THAT THERE ARE HOLES IN THE EVOLUTIONARY RECORD THAT THE THEORY OF EVOLUTION CAN'T EXPLAIN. AND THE SECOND PROPOSITION IS THAT THEREFORE WE SHOULD BELIEVE THAT AN INTELLIGENT DESIGNER IS RESPONSIBLE FOR IN SOME SENSE FILLING THE GAPS. THE SECOND PROPOSITION IS VERY HARD TO DISTINGUISH FROM A RELIGIOUS PROPOSITION. BUT IF YOU IMAGINE A LAW THAT SAID WELL, IT'S A GOOD THING TO LEARN SOMETHING MORE ABOUT THIS CONTROVERSY AND WE REALIZE THAT THE CRITICS OF EVOLUTION ARE CONSTANTLY LOSING IN THE SCIENTIFIC JOURNALS, BUT NEVERTHELESS WE THINK THAT TEACHERS OUGHT TO BE TEACHING THE CASE AGAINST THE THEORY OF EVOLUTION FRAMED IN SCIENTIFIC TERMS ALONG WITH THE CASE FOR IT, WOULD THAT LAW BE CONSTITUTIONAL? SO I THINK THE QUESTION OF WHETHER THIS WAS AN EFFORT TO SNEAK IN A RELIGIOUS VIEWPOINT WOULD BE A COMPLICATED CASE. I THINK THAT IT IS A GOOD THING THAT STUDENTS IN A BIOLOGY CLASS ARE TAUGHT SOMETHING ABOUT THE CONTROVERSY OVER EVOLUTION. I DO THINK THAT WE MAKE A MISTAKE IN NOT TAKING ADVANTAGE OF THE FACT THAT PEOPLE REALLY CARE ABOUT THIS ISSUE TO BE ABLE TO EDUCATE THE STUDENTS ABOUT PHILOSOPHY OF SCIENCE AND WHAT THE DIFFERENCE ARE, AND SO FORTH. I THINK WE'RE MISSING THE BALL. WHAT'S YOUR UNDERSTANDING OF WHERE THE LAW ON THIS IS NOW. I'M LOST AND I THINK A LOT OF PEOPLE ARE LOST. WHEN IT COMES TO INTELLIGENT DESIGN, THE INSISTENCE OR SUGGESTION IF YOU WILL, THAT IT SHOULD BE TAUGHT ALONGSIDE - IS THAT CONSIDERED A RELIGIOUS ISSUE? IT IS, AND IN FACT, THE MOST PROMINENT CASE WE'VE SEEN IN THI S AREA CAME OUT OF DOVER, PENNSYLVANIA, AND FOUND UNCONSTITUTIONAL A POLICY THAT TAUGHT THE THEORY OF INTELLIGENT DESIGN, AND A JUDGE HAD A PRETTY LENGTHY TRIAL, BROUGHT IN EXPERT S AND EXAMINED WHAT THEY WERE TEACHING, AND FOUND THAT INTELLIGENT DESIGN WAS A RELIGIOUS THEORY, AND IT WAS NOT SCIENCE TO BE TAUGHT IN A SCIENCE CLASSROOM, AND SAW IT AS A CON TINUATION OF EFFORTS TO TEACH CREATIONISM, AND BASICALLY GET AWAY FROM SCIENCE TO MORE RELIGIOUS UNDERSTANDINGS OF ORIGINS OF LIFE. SCIENCE CLASS IS SCIENCE CLASS, AND UNTIL THESE THEORIES WORK THROUGH THE ACADEMY, THROUGH THE PEER- REVIEWED JOURNALS, AND PASS NORMAL ACADEMIC RIGOR STANDARDS, THEN I THINK THEY WILL ALWAYS RAISE THESE OBJECTIONS THAT THEY'RE A WAY OF TEACHING RELIGION WHERE THEY SHOULD BE TEACHING SCIENCE. OF COURSE, PART OF THE QUESTION IS OF COURSE, WHO'S MAKING THE DECISION. WHEN WE TALK ABOUT LEGISLATURES' PASSING THIS LAW, IT'S VERY LIKELY GIVEN THE REALITIES OF POLITICS, THAT WHAT'S ON THEIR MIND REALLY ISN'T THE TEACHING OF SCIENCE, WHEREAS IF A CURRICULUM WERE DEVELOPED THAT DEALT WITH THIS ISSUES I THINK IN A MUCH FRANKER, FULLER, MORE STRAIGHTFORWARD WAY, AND IT WERE DEVELOPED BY PEOPLE WHO WERE INTERESTED IN SCIENCE EDUCATION, ADOPTED BY TEACHERS WHO WANTED TO DO THAT, THEN I THINK IT WOULD LOOK ENTIRELY DIFFERENT. YOU KNOW, LEGISLATURES DON'T GET INTO THE DETAILS OF CURRICULAR DESIGN, USUALLY, AND SO THE FACT THAT THEY DO IT IN THIS PARTICULAR CONTEXT, JUST MAKES IT LOOK SUSPICIOUS; IT LOOKS LIKE THEY HAVE AN AGENDA OTHER THAN SCIENCE EDUCATION. WHAT ARE THE CHANCES IT LOOKS THAT WAY BECAUSE THAT'S THE WAY IT IS? AH, WELL THAT'S A VERY GOOD WE NEVER - COURTS NEVER KNOW HOW IT IS; ALL WE CAN TELL IS WHAT IT LOOKS LIKE. YES SIR. GOOD EVENING. I'M LARRY STRATTON; I'M A PH.D CANDIDATE AT PRINCETON THEOLOGICAL SEMINARY, AND MY QUESTION HAS TO DO WITH PRESIDENT BUSH'S FAITH- BASED INITIATIVE PROGRAM, WHICH HE PROPOSED SOON AFTER TAKING OFFICE IN 2001, IN WHICH HE ALLOWED FOR THE DIRECT FUNDING OF CHARITABLE INSTITUTIONS WHICH ARE RELIGIOUS INSTITUTIONS. AND IN LIGHT OF COMMENTS BY JAMES MADISON THAT EVEN THREE PENTS OF GOVERNMENT FUNDING WAS A STEP TO THE INQUISITION, IN THE DEBATES IN VIRGINIA, I WAS CURIOUS WHAT THE PANEL THOUGHT OF THE CONSTITUTIONAL WISDOM OF THE PROGRAM. JAMES MADISON NOTWITHSTANDING, I THINK IT'S NOT THE CASE THAT BY THE FEDERAL GOVERNMENT'S SAYING THAT RELIGIOUSLY AFFILIATED SOUP KITCHENS MAY, LIKE NON- RELIGIOUSLY AFFILIATED SOUP KITCHENS, GET FEDERAL MONEY TO HAND OUT SOUP TO THE POOR, THAT WE'RE ACTUALLY GETTING ANY CLOSER TO THE INQUISITION. THAT SEEMS UNLIKELY TO ME. A POINT WAS RAISED EARLIER THOUGH WHICH ACTUALLY DOES GO TO THE WISDOM OF THE FAITH BASED INITIATIVE, WHICH IS THE POSSIBILITY THAT THERE WILL BE STRINGS ATTACHED TO THE MONEY THAT WILL COMPROMISE THE RELIGIOUS MISSION OF THESE SOCIAL SERVICE AGENCIES. I MEAN, RELIGIOUS GROUPS HAVE BEEN HELPING THE POOR A LOT LONGER THAN GOVERNMENTS HAVE. AND THEY'RE PROBABLY PRETTY GOOD AT IT, AND THEY MIGHT WELL WORRY THAT IF THEY GET TOO TIED TO GOVERNMENT MONEY, THAT THE UNIQUE RELIGIOUS CHARACTER OF THEIR SERVICE MIGHT BE UNDERMINED OR COMPROMISED. THAT'S A SERIOUS DEBATE, BUT IN MY MIND ANYWAY, IN TERMS OF CONSTITUTIONAL TERMS, AS LONG AS THE GOVERNMENT'S PURPOSE IS TO FEED THE POOR, CLOTHE THE NAKED, EDUCATE THE KIDS, I DON'T REALLY THINK THE INQUISITION IS IN OUR FUTURE. IT'S IMPORTANT TO REMEMBER THAT DIRECT AID HAS BEEN GOING TO RELIGIOUSLY BASED SOCIAL SERVICES FOR WELL OVER A HUNDRED YEARS; THIS IS NOT A NEW THING. AND PRIOR TO 2000, THE PROBLEM WAS THAT THERE WAS NO PARTICULAR - EVERY AGENCY HAD ITS OWN SET OF RULES; IT WAS VERY UNCERTAIN. THE DEVIL IS IN THE DETAILS ON THE FAITH-BASED INITIATIVE. PLENTY OF THINGS THAT MIGHT BE DONE MAY BE FOUND UNCONSTITUTIONAL, BUT I THINK THE GENERAL IMPULSE TO REGULARIZE THIS, TO GET THE RULES WRITTEN DOWN ACROSS THE BOARD SO EVERYONE CAN SEE WHERE THEY STAND, AND THEN YOU CAN WORK ON THOSE DETAILS, IS ACTUALLY A VERY GOOD MOVE. NOW, WHETHER THE PARTICULAR - YOU KNOW, WE'RE GOING TO HAVE A LOT OF LITIGATION OVER THE DETAILS. I'VE SEEN THAT FIGHT UP CLOSE IN WASHINGTON, AND THE DEVIL IS IN THE DETAILS AND THAT'S WHY THERE WAS NEVER LEGISLATION PASSED TO PROMOTE THE FAITH-BASED INITIATIVE. THERE WAS THIS BIG QUESTION OF, IF GOVERNMENT HAS ALWAYS DONE THIS, WHAT'S BROKEN, WHAT ARE WE TRYING TO FIX? AND I WOULD ARGUE THAT A LOT OF THE INITIATIVE HAS GONE TOWARD BEING MORE CONFUSING, BLURRING LINES THAT HAVE PROTECTED THE INSTITUTIONS OF RELIGION AND GOVERNMENT AND MADE SURE THAT THE MONEY DID FOCUS ON THE SECULAR SERVICE THAT GOVERNMENT WAS PROVIDING, AND INSTEAD HAS CREATED AN ENVIRONMENT WHERE MANY PEOPLE THINK THAT ANYONE SHOULD BE ABLE TO GET GOVERNMENT MONEY IF THEY'RE DOING GOOD, EVEN IF THEY WAY THEY'RE DOING GOOD IS BY TELLING PEOPLE THAT THEY MUST UNDERGO A TRANSFORMATIVE PROCESS ACCORDING TO A VERY PARTICULAR RELIGIOUS VIEW, AND THAT'S NOT ALLOWED UNDER OUR CONSTITUTION. I THINK WE HAVE TIME FOR ONE MORE QUESTION. YES, SIR? THANK YOU. MY NAME IS TOM NIBLOCK. I'M A GRADUATE STUDENT IN THE WOODROW WILSON SCHOOL HERE AT PRINCETON, STUDYING INTERNATIONAL RELATIONS, AND MY HOMETOWN IS NEVADA, IOWA. NOW, BACK HOME IN IOWA, WE GET THE CHANCE TO ASK LOTS OF QUESTIONS TO LOTS OF PRESIDENTIAL CANDIDATES THIS TIME OF THE YEAR. BUT MY QUESTION IS, FOR YOU GUYS, IF YOU COULD ASK ONE QUESTION TO EACH OF THE PRESIDENTIAL CANDIDATES ABOUT RELIGION IN PUBLIC LIFE, WHAT WOULD IT BE, AND WHY WOULD YOU ASK IT? GOOD QUESTION, GOOD QUESTION.

VERY GOOD. WELL PROFESSOR, WE'LL START ON YOUR END THIS TIME. OKAY. BOY, THAT'S NOT AN OPPORTUNITY I'VE HAD. I GREW UP IN OREGON, AND THE PRESIDENTIAL CANDIDATES, BY THE TIME IOWA AND NEW HAMPSHIRE WERE DONE, WEREN'T TOO INTERESTED IN OUR ELECTORAL VOTES. BUT I THINK I WOULD SAY THIS TO THEM. FOR A LONG TIME IN AMERICA'S HISTORY, THE KINDS OF ISSUES THAT WE WERE FACING AROUND RELIGIOUS FREEDOM, OFTEN SEEMED TO BE ISSUES THAT WERE CAST IN DENOMINATIONAL TERMS. WE WORRIED ABOUT ANTI- CATHOLICISM, FOR EXAMPLE, OR DISCRIMINATION AGAINST MEMBERS O F THE JEWISH FAITH. NOWADAYS, A LOT OF THE TENSION WITHIN OUR SOCIETY INVOLVES A TENSION BETWEEN GREATER AND LESSER DEGREES OF RELIGIOSITY. IT IN SOME WAYS OFTEN TAKES PLACE WITHIN FAITH GROUPS, AND BETWEEN MORE LIBERAL AND MORE CONSERVATIVE VERSIONS OF A PARTICULAR FAITH, OR BETWEEN MORE SECULAR AND MORE ORTHODOX VERSIONS OF A PARTICULAR FAITH, AND I THINK THE QUESTION I'D WANT TO PUT TO THE CANDIDATES IS, " WHAT COULD YOU DO TO UNITE AMERICA RATHER THAN DIVIDING US AROUND THAT TENSION," BECAUSE I THINK A LOT OF WHAT WE SEE FROM THE CANDIDATES IS A LOT OF DIVISION AROUND THAT ISSUE, WHICH IS A MATTER OF REGRET FOR THE REASONS THAT JUDGE MCCONNELL SAID EARLIER. I MIGHT SAY (THIS WOULD BE TO ALL OF THEM, NOT TO ANY PARTICULAR ONE) I'D SAY, LOOK, THERE'S BEEN A LOT OF DEBATE ABOUT THE PLACE OF RELIGION AND RELIGIOUS COMMITMENTS IN POLITICS, SO HERE'S MY QUESTION TO YOU, MS. CANDIDATE, " IF SOMEONE LIKE ME OPPOSES CAPITAL PUNISHMENT, OR OPPOSES ABORTION BECAUSE WE BELIEVE IN THE DIGNITY OF EVERY HUMAN PERSON, IS MY VIEW ILLEGITIMATE, DO YOU THINK, BECAUSE IT'S INFORMED BY MY RELIGIOUS FORMATION?" I WOULD HOPE THE PERSON WOULD SAY NO. OH, I LIKE THIS. I WOULD PROBABLY AS THE CANDIDATES TO AFFIRM THE PROPOSITION PROFESSOR GARNETT SAID, AND IN ADDITION TO AFFIRM THAT WE HAVE A SECULAR GOVERNMENT, WHERE IN MATTERS OF POLITICS AND GOVERNANCE AND CITIZENSHIP, RELIGIOUS AFFILIATION, RELIGIOUS BELIEF IS IRRELEVANT, AND AFFIRM THAT OUR TRADITION OF RELIGIOUS FREEDOM IN AMERICA MEANS THAT ALL OF US ARE EQUAL CITIZENS, WHETHER WE CHOOSE TO HAVE A PARTICULAR FAITH, OR WHETHER WE REJECT THAT. AND YOUR QUESTION TO THE CANDIDATE WOULD BE? WILL THEY AFFIRM THESE CORE PRINCIPLES, THESE PRINCIPLES THAT I THINK ARE CORE VALUES OF THE RELIGION CLAUSES? WELL YOUR HONOR, I RECOGNIZE THAT (LAUGHS) NO, NO. I DON'T WANT TO PLACE YOU IN AN UNCOMFORTABLE POSITION, AS YOU HAVE A QUESTION? IF YOU'RE COMFORTABLE SAYING, " I'D ASK A CANDIDATE ," BUT IF YOU WANT TO TAKE A PASS, I'LL GIVE YOU THAT. WELL, I CAN'T ASK CANDIDATES ANY QUESTIONS, SO I GUESS I WON'T. (LAUGHTER) WELL THE INDEPENDENCE OF THE JUDICIARY IS A VERY IMPORTANT PART OF OUR CONSTITUTION AND WHERE WE STAND, AND WE WILL RESPECT THAT, YOUR HONOR. THANK YOU. THANK YOU FOR THIS WIDE-RANGING DISCUSSION, EACH AND EVERY ONE OF YOU. OUR SPIRITED DEBATE SEEMS APPROPRIATE IN THESE SURROUNDINGS. WHEN PRINCETON UNIVERSITY, THEN THE COLLEGE OF NEW JERSEY, WAS FOUNDED IN 1746, IT WAS TO TRAIN PRESBYTERIAN MINISTERS. BUT IT SOON BRIDGED THE WORLDS OF CLERGY AND STATESMEN. IN 1776, THE PRESIDENT OF THE COLLEGE, ORDAINED MINISTER JOHN WITHERSPOON, WAS AMONG THE SIGNERS OF THE DECLARATION OF INDEPENDENCE. ABOUT ONE OUT OF EVERY FIVE MEMBERS OF THE CONSTITUTIONAL CONVENTION OF 1787 WAS A PRINCETON GRAD. IN THE YEARS AROUND THE REVOLUTION, PRINCETON PRODUCED A PRESIDENT AND A VICE-PRESIDENT AND THREE JUSTICES OF THE SUPREME COURT, A S WELL AS SIXTY CONGRESSMEN AND TWELVE STATE GOVERNORS. THE DRAFTER OF THE ESTABLISHMENT CLAUSE ITSELF, THE ONE WE DISCUSSED SO MUCH HERE TONIGHT, WAS JAMES MADISON. HE GRADUATED HERE IN 1771. " BETTER PROOF OF REVERENCE FOR [GOD]," HE LATER WROTE, WOULD BE " NOT TO PROFANE IT BY MAKING IT A TOPIC OF LEGAL DISCUSSION." (LAUGHTER) WHEN IT COMES TO UNDERSTANDING THE ESTABLISHMENT CLAUSE, THE FOUNDERS PROVIDE US WITH TOO MUCH TO GO ON, AND NOT ENOUGH; HISTORY IS A DISPUTED INHERITANCE. THE MEMBERS OF THIS ILLUSTRIOUS PANEL HAVE DIFFERENT IDEAS ABOUT OUR ROOTS, AND DIFFERENT VIEWS OF HOW MUCH ROOTS MATTER, IN SOME CASES. BUT TOGETHER THEY ARE DOING THE NEVER-ENDING WORK OF ENSURING THAT THE AMERICAN PEOPLE'S MOST INSPIRING QUALITY - OUR ASTONISHING DIVERSITY OF BELIEF - BRINGS US TOGETHER INSTEAD OF RIPS US APART. IT'S A WORK WE SHOULD BE ESPECIALLY GRATEFUL FOR AS RELIGIOUS STRIFE REARS ITS HEAD WITH EVER MORE VIOLENCE ON THE WORLD STAGE. FINALLY, I EXTEND A HEARTFELT THANKS TO OUR SPONSORS HERE AT PRINCETON, THE WOODROW WILSON SCHOOL OF PUBLIC AND INTERNATIONAL AFFAIRS, AND TO OUR GENEROUS HOSTS HERE AT ROCKEFELLER COLLEGE AT PRINCETON. THANKS ALSO TO OUR WONDERFUL PANELISTS FOR THEIR SACRIFICE IN TIME AND TOIL IN PREPARING FOR AND TRAVELING TO THIS EVENT. AND AS ALWAYS, MY GRATITUDE GOES TO YOU, OUR VIEWERS, AS WELL. FROM PRINCETON, FOR HDNET, DAN RATHER REPORTING. GOOD NIGHT (APPLAUSE)

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