'That Godless Court'? An interview with church-state scholar Ron Flowers.

Ronald B. Flowers is the John F. Weatherly Emeritus Professor of Religion at Texas Christian University in Fort Worth and a former member of the Americans United Board of Trustees. A second edition of his book, That Godless Court?: Supreme Court Decisions on Church-State Relationships, has just been issued by Westminster John Knox Press. In this Q&A, Flowers outlines his views on the state of religious liberty in America today and what may lie ahead for advocates of church-state separation.

Q. The title of your book is provocative. Who says the Supreme Court is "godless" and why do you believe they are wrong?

A. I have to confess that I am not sure I ever heard anyone call the court "godless," but many have criticized it for being hostile to religion. This was particularly true when the school prayer decisions came down in 1962 and 1963. There was a tremendous protest that the court was hostile to religion and to religious freedom because it prohibited state-required prayer in the public schools. The same has been true when the court denied government aid to church-related schools. In 1975, after the court had soundly rejected a Pennsylvania plan to give aid to parochial schools, a Catholic school superintendent said, "I don't believe the court would give Catholics anything, no matter what they would come up with." I summarized such sentiments with the term "godless."

Q. You have been active in a Christian church all of your life and taught religious studies at a church-related college. How do you reconcile your support for strict separation with your religious beliefs?

A. I am not only a Christian, I am an ordained minister. People regularly ask me why a Christian should be such an advocate for separation of church and state. I reply that I support separation BECAUSE I am a Christian. I take my faith very seriously. I believe for faith to be insulated from the corroding influences of government and politics is a good thing. Part of the concept of the separation of church and state is the Founders' explicit command that government should not prohibit the free exercise of religion. So separation of church and state enables faith to flourish without interference from government power. Separation of church and state has allowed religion to be as vibrant, dynamic and lively as it is in American society. Separation of church and state is not hostile to religion but rather is the enabler for religions to grow and prosper in America.

Q. Your chapter on government aid to religion discusses the phenomenon of tax aid leading religious schools to secularize. Some religious leaders today seem to think they can get state aid and still run sectarian programs. Why in your view is this unrealistic?

A. This is unrealistic because the Establishment Clause prohibits government from. advancing religion. One of the most direct ways of advancing or promoting anything is to finance it. Even under the current court's lax interpretation of the no-establishment principle, government cannot constitutionally advance or promote religion. Consequently, under the current "show me the money" attitude of many religious leaders, they are busy trying to minimize their religious distinctives so they can receive government funds. This is the insidious nature of seeking government assistance to conduct religious activities. Because direct government funding of sectarian religion is impermissible, religious groups are busy either trying to hide their religious distinctives, which is dishonest, or doing away with them, which is unfortunate and unfaithful to their traditions. The process reminds one of the lesson Jesus taught in Mark 8:36 by means of a rhetorical question: "For what shall it profit a man, if he shall gain the whole world, and lose his own soul?"

Q. You note that school-sponsored, coercive programs of religious worship have been struck down by the courts but that truly voluntary student religious expression is permitted. In light of this, why does the myth of public schools as "religion-free zones" persist?

A. Those of us who know the true nature of the court's decisions have not done a good job of getting the message out. Americans United has tried for a long time; I try in this book. But many still live under the impression that was formed when the decisions came down, that they were hostile to school prayer. This myth has gained a life of its own. But the myth's "life" has been perpetuated by many who do not want the truth to be known. Many on the Religious Right are hostile to the public schools. They actually believe, or at least want their constituents to believe, that the public schools are inefficient, not teaching well, infected with discipline problems, purveyors of galloping secularism, in short, evil. So, it is in their interest of discrediting the public schools to make the claim that the schools are "religion-free zones."

Q. Some religious freedom advocates believe the Supreme Court has narrowed the scope of the Free Exercise Clause since 1990. What is your view?

A. It has virtually always been the rule that government could interfere with religious behavior if that behavior was harmful to individuals, groups, or the society as a whole. Although the standard has shifted some, one can generalize that prior to 1990 the government had a high standard to meet before it could interfere with religious activity. That is, it had to show that the government had a compelling interest in preserving public welfare and that it had no alternative means of reaching that objective, before it could interfere with or prohibit religious exercise. In 1990, in Employment Division of Oregon v. Smith, the court discarded the "compelling state interest test" in favor of a "law of general applicability test." Now all the government has to show is that a law exists that does not specifically prohibit religious behavior as a justification for prohibiting religious exercise. If the law is generally applicable, it will trump religious freedom no matter how destructive it may be to the religious activity of an individual or community. The effect was to narrow the possibility of religious exercise and increase the possibility of government interference with it. I have sometimes said that after Smith the free exercise of religion "is on life support." That may be hyperbolic, but it is not too far off.

Q. We know that justices like Clarence Thomas and Antonin Scalia would like to overturn some existing cases and refashion church-state law. What would separation of church and state look like under the Scalia-Thomas model? How likely is it that their vision could come to pass?

A. Unfortunately, the hypothetical quality of this question is misplaced. The court has already changed its church-state jurisprudence. It has already declared a voucher plan for government aid to parochial schools constitutional. It has already ruled that a state university can use student activity fees (essentially the money of the university) to pay the expenses for printing a highly sectarian student newspaper. It has already approved government support for a religious club for young children, a club that includes worship in its activities, in a public school building after hours. It has already held constitutional a stand-alone display of the Ten Commandments on the lawn of a state capitol building. It has already declared that government provision of computer hardware and software for parochial schools does not violate the Establishment Clause. Their vision has come to pass.

Q. We know you are not psychic, but do you have any thoughts on how new Chief Justice John Roberts and new Associate Justice Samuel Alito might rule on church-state issues?

A. Sometimes when judges come onto the Supreme Court, they surprise the presidents who appointed them. Chief Justice Earl Warren and Justice David Souter come to mind. President Bush and his handlers have made no secret that they wanted to appoint justices in the mold of Justices Scalia and Thomas. My guess is that they have satisfied themselves that they have picked people who meet that standard. Apparently, the judicial records of both Chief Justice Roberts and Justice Alito confirm that they have. Let us hope that they are judges of independent mind and read the Constitution's religion clauses as the Founders intended. If so, they will surprise and disappoint President Bush.

Q. Your book discusses "flash points and the future." What do you see as the major challenges ahead for advocates of church-state separation?

A. One of the greatest challenges to church-state separation and the independence of religious institutions is the provision of government funds for their charitable activities, known variously as "charitable choice" or the president's "faith-based initiative." It is a plan that ignores many of the traditional safeguards of keeping denominational or theological dimensions out of those church-related charitable activities that have received government funds. Another flash point is the attempt to teach religion in public school science classes under the guise of "creation science" or "intelligent design." Although the advocates of such plans have a dismal record in courts, including the Supreme Court, they seem to be determined to push ahead. That will not go away for a long time. Aside from specific programs, however, is the relentless activity by leaders of the Religious Right to push their agenda on the American political system. Their agenda is to utilize law, the power of government, to impose their understanding of religion on the country as a whole. My belief is that these people are fearful of true freedom. They are not willing to trust the people to practice their religion as they choose, which is what the separation of church and state, with its corollary of religious freedom, are designed to allow. Rather, they want the government to somehow promote religion.