Is the separation wall crumbling between church and state?

Thomas Jefferson famously urged a “wall of separation between Church and State.� Recently, ordinary American taxpaying citizens lost ability to enforce that separation when the Supreme Court decided (5 to 4) in Hein v. Freedom from Religion Foundation that taxpayers do not have “standing� (the right to sue) to challenge the Bush administration’s use of government funds to facilitate its Faith-Based and Community Initiative Program to channel funds directly to faith-based institutions, such as churches, synagogues and mosques.

In general, taxpayers do not have standing to sue to challenge government actions as violating the U.S. Constitution, but there is an important exception in the 1968 case of Flast v. Cohen, which established the principle that taxpayers have standing to challenge government expenditures as violating the “Establishment Clause� of the First Amendment, which declares that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.�

Justice Alito’s opinion in Hein did not try to overturn Flast directly. Instead, it distinguished Flast as a challenge to spending under a federal legislative statute, whereas Hein involved spending under general executive funds (albeit under original congressional authorization). To state the matter with more pointed clarity: the court is saying that Congress cannot freely violate the Establishment Clause of the U.S. Constitution, but the U.S president can, and ordinary tax-paying citizens cannot do anything about it in the courts of law!

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Professor Erwin Chemerinsky of Duke University summarized the above at the Ninth Annual Supreme Court Review of the Practicing Law Institute on Aug. 2, 2007, which concluded: “It should make no difference whether it is Congress or the president; both are equally constrained by the Establishment Clause of the First Amendment. The dollars come from exactly the same place, the federal treasury, so there is no meaningful reason for allowing taxpayer standing in one instance and not the other.�

What we are seeing in the Hein case is the coming together of two extreme ideological tendencies: (1) The desire to remove the barrier distinction between religion and secular democratic government; and (2) the assertion of imagined “unitary� presidential executive powers placing the U.S. president above the law (as, for example, the president’s claimed right to authorize torture in explicit violation of the U.S. Constitution and international treaties the United States has signed into law).

The meaning of the Establishment Clause is not a simple black-or-white matter of interpretation. At its narrowest, “establishment� would appear to refer to the creation of a state religion, such as the Church of Rome or the Church of England. That is beyond dispute. At the wider extreme, it has been maintained that under no circumstance should religion be financially supported by (involuntary) public taxation. The problem deserves a closer look.

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On the face of it, it would seem feasible and even desirable for government to fund social benefit or charitable projects performed by religious groups who are good at what they do — if the action is born of social, not religious, intent. The practical problem is this: It is virtually impossible to keep separate or distinguish between the project’s public social purpose and its supporting or proselytizing benefit for the particular religious group.

Such financing risks denominational preference, and/or favoritism of one religious group over others. Thus the courts have held that advancement of a church and its charitable work should come only from the voluntary support of its followers, and not from the political (involuntary) tax support of the state.

More generally, the purpose of the wall of separation is to avoid domination by any one or group of religions, and to avoid “cross-incursion� between religion and secular democratic government. The framers of the U.S. Constitution were not opposed to religion; to the contrary, they protected “the free exercise thereof.�

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Contrary to some current revisionist thinking, the framers were not fundamentalist Christians. Nor were they atheists. Some were 18th-century Enlightenment “deists,� meaning they believed in a creative supreme power in the universe, on the basis of reason, without resort to traditional authority, dogma or revelation. For the framers, the best way to protect religion and the state was to keep them “separate but equal.� Thus emerged a consensus, repeated in the courts of law, that there must be “government neutrality� toward religion.

Today, however, there is a growing divide between traditional secular democracy on the one hand and revivalist fundamentalism within Christianity, Judaism and Islam on the other. While adherents may war on each other, they do agree on one thing: to tear down the wall of separation between church and state. How ironic!

The terms liberal and conservative do not begin to convey what is at stake here. The stakes are high. In this country we see them played out in controversial settings, such as the debate over prayers in our public schools, or the Ten Commandments in our courts of law.

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The Bush White House is definitely on one side of the ideological divide — the wrong one in my view. So are Bush’s appointees to the Supreme Court: Roberts and Alito, who now join Scalia and Thomas on the so-called right. That’s four already committed to the ideological wrong side of many key social issues, and it only takes one swing vote on any particular case to change the course of justice.

This is an acid reminder that Bush’s historical legacy to our country is not only a failed intervention in the Middle East, but also the prospect of continued hell-bent-for-leather violations of rational principles of American jurisprudence, now and for many years to come. The process of nomination, confirmation and appointment of judges in the U.S courts is clearly the Achilles heel of the system of justice in this country. But which mouse can bell the cat — and how?

Sharon resident Anthony Piel is a former director and legal counsel of the World Health Organization.