Freedom of religion, freedom from religion.

On March 8, 1993, a committee of the Maryland Senate held a hear, ing on a bill that would compel public-school teachers and principals to "require all students to be present and participate in opening exercises on each morning of a school day and, voluntary . . . to meditate and pray silently." I presented testimony against this bill (for reasons which I will return to later) on behalf of organizations dedicated to defending freedom of religion.

Some people would undoubtedly say that I testified on behalf of freedom from religion, not freedom of religion. They would probably argue that freedom of religion is not the same thing as freedom from religion, that the former but not the latter is a fundamental right. On the other hand, some secularists who object to certain public manifestations of traditional religion might express a mirror-image viewpoint--that freedom of religion is not enough and that freedom from religion is a right that should be specifically protected.

It seems to me that freedom of and freedom from religion cannot and should not be distinguished. Let me explain.

Puritans and pilgrims were Protestants who immigrated to New England largely because they desired freedom from the Anglican establishment in England. (They disliked Anglicanism because it was, to them, too much like Roman Catholicism.) So, too, Roger Williams and his followers set up shop in Rhode Island because they sought freedom from the Puritan establishment in Massachusetts. Sephardic Jews settled in Rhode Island to escape various European religious establishments. Anglicans and Baptists in Connecticut opposed that colony's Puritan establishment.

English Catholics settled Maryland to get away from Protestant establishments in their home country, while French Protestants came here to escape the Catholic establishment in France. Many British Anglicans came to Virginia and the Carolinas because they did not like Cromwell's Puritan establishment, while Quakers settled in Pennsylvania to avoid impositions on their freedom in England. In 1825, a boatload of Norwegians--many of them Quakers --arrived here for freedom from the Lutheran establishment in their land. In short, many of the early immigrants came here for freedom of religion, which was, to them, the same thing as freedom from the imposition on them of someone else's religion. Unfortunately, many of those who came here for freedom of religion for themselves were reluctant to extend that freedom to others. As one wag put it: the Puritans so loved religious freedom that they wanted to keep it all to themselves. Monuments to transplanted European establishmentarianism and intolerance are the statues on the lawn of the Massachusetts state capitol of Anne Hutchinson, expelled from the colony in 1638 for the crime of holding unauthorized religious gatherings in her home (and, though the legend on her statue's pedestal does not mention it, being of the wrong gender to lead religious discussions), and Mary Dyer, executed on Boston Common in 1660 for the crime of being a Ouaker.

To a great many Americans of the colonial and immediate postcolonial periods, freedom of religion was equivalent to freedom from someone else's relgion. And by the time of our armed struggle for independence from Great Britain (1775 to 1783), substantial numbers of Americans were ready to break with colonial and European establishmentarianism. They traded in the outworn "divine right of monarchs" for the Jeffersonian republican view that "governments are instituted among men" in order to secure inalienable and fundamental rights, that governments "derive their just powers from the consent of the governed," who have the right to "alter or abolish" a government that does not protect their rights or enjoy their consent.

When the state delegations met in Philadelphia in 1787 to--as it turned out--design a national government based upon the principles articulated in the Declaration of Independence, they carefully crafted a constitution for a secular government of bmited and delegated powers, one which gave to government no authority whatsoever to meddle in religious matters and which specifically prohibited mandatory oaths of office and religious tests for public office. Thus, the Constitution itself implied the separation of church and state, the theoretical basis for which had been spelled out in the 1785 Memorial and Remonstrance Against Religious Assessments (in Virginia) by james Madison, who emerged as the principal architect of the Constitution and the 1789 Bill of Rights.

The adding of the Bill of Rights to the Constitution, begun in 1789 and finished in 1791, made the separation principle an explicit part of the Constitution, as Jefferson noted in his famous letter to the Danbury Baptists in 1802, when he wrote: "I contemplate with solemn reverence that act of the whole American people {the First Amend, ment) which declared that their legislature should make no law respecting an establishment of religion or prohibiting the free exercise thereof, thus building a wall of separation between church and state." While the First Amendment was initially applicable only to the federal government, the Fourteenth Amendment, proposed and ratified shortly after the Civil War, applied it to state and local government as well.

There are, generally speaking, two schools of thought about precisely what the First Amendment means. Accommodationists argue that the First Amendment was intended only to bar government preference for one religion or some religions over others, while permitting nonpreferential aid" to all. Separationists argue, in contrast, that "nonpreferential" or "accommodationist" language for the First Amendment was considered and rejected by the First Congress, and that the amendment was aimed not merely at barring European-style establishments of religion--which had disappeared from the United States by 1789-but, rather, the types of multiple or nonpreferential establishments which lingered in some states until the early nineteenth century.

Since the 1940s, the federal and state courts have generally taken the separationist position, though some decisions in recent years have moved toward the accommodationist stance.

There is ample evidence that there has been a consistency of support in our country for separationism from Madison's day until our own. Not only have the courts generally supported separation but legislatures and the people have also.

With only rather minor deviations, Congress and the state legislatures have remained separationist. Congress has never approved an amendment to the Constitution to authorize government, sponsored or mandated devotions in public schools and has never approved direct or substantial tax aid to pervasively sectarian private schools. State laws (in Arkansas and Louisiana) requiring schools to include the fundamentalist doctrine of creationism in science classes were readily struck down by federal courts during the 1980s. State laws or proposed amendments to provide tax support for sectarian schools have been defeated in referenda in Massachusetts, New York, Maryland, the District of Columbia, Michigan, Missouri, Nebraska, Colorado, Idaho, California, Oregon, Washington, and Alaska since 1967. It is worth noting that at the time the Supreme Court struck down school-sponsored prayer as unconstitutional in 1962 and 1963, the practice was only found in about one-half of the nation's school districts. In 1952, Congress considered and approved a constitution for the Commonwealth of Puerto Rico that not only reiterates the religious-freedom clauses of the First Amendment but explicitly stipulates that "there shall be complete separation of church and state" In 1959, Congress approved the constitutions of the last two states admitted to the Union, Alaska and Hawaii, both of which bar tax aid to religious institutions and require public education to be religiously neutral, the pattern set by the other 48 states.

To return to the Maryland Senate committee hearing on March 8, 1993, the bill would have compelled teachers and principals to "require all students to be present and participate in open, ing exercises" at which they would meditate or pray silently." In my testimony to the committee, I pointed to the inconsistency between the bill's word voluntarily and its stating that teachers shall require students to do something. I added that the bill, if passed, would put the state and its employees in the position of deciding when students should pray or meditate; that the state would be deciding that it is best that students pray or meditate at the same time; that the state prefers certain religious acts, such as praying or meditating, to other sorts of religious acts, such as doing good deeds, assisting the less fortunate, comforting the afflicted, and so on; and that the bill would intrude the state into the province of the family and the church or synagogue.

My argument, in short, was that students and teachers should be free from government coercion, however mild or heavy-handed, in the area of religion --free even from the sort of government-sponsored, watered-down, lowest-common-denominator religious activity envisioned by the sponsor of the bill. I concluded by citing Benjamin Franklin's statement to the effect that there is something wrong with any religion that must call for the help of "the civil power."

Views similar to mine were expressed by a wide spectrum of religious leaders in 1984 when President Reagan tried to get Congress to approve a "voluntary prayer amendment" to the Constitution. One prominent church leader even denounced government-sponsored prayer as "blasphemous."

In pleading that a "naked public square" results when government remains respectfully neutral toward religion, advocates of government support or religious activities or symbols overlook the fact that government neutrality has proven to be the best guarantor of individual religious freedom and interfaith harmony. When government shows preference toward some religions, it cannot help but discriminate against others and create resentment or even fear among adherents to nonpreferred groups. Have we learned nothing from the experiences of other countries and of our own colonial period? Can anyone really believe that the free exercise of religion requires government assistance? Is religion so weak and fragile that believers cannot celebrate sacred days or seasons without special recognition from government? Reasonable adjustment of work or school schedules to accommodate free exercise should be possible without involving actual sponsorship.

How much controversy and ill will has been stirred up by what is supposed to be the annual celebration of the birth of Jesus? Colonial New England strongly disapproved of celebration of a "Romish" holiday. Non-Christian children are often upset and feel left out when their public schools have a religious Christmas celebration. Even many Christians are upset by Christmas celebrations because they do not believe there is a biblical warrant for celebrating Jesus' birth on December 25.

It is argued by some that govern, ment neutrality toward religion is really hostility. But neutrality is not hostility, and anything other than neutrality is, ipso facto, government preference toward some and discrimination against others.

Public schools have been criticized for inadequate attention to religion. Yes, it is quite legitimate for public schools to present instruction about religion, as long as it is objective, academic, and balanced. But agreeing on the necessity of objectivity and balance in the abstract is far from achieving it, as anyone familiar with public education should well know.

I would therefore maintain that each persons freedom of religion, freedom of conscience, and free exercise of religion necessarily involves freedom from government preference for any other religion and freedom from any discrimination against that person's religion.

Considerable discussion on this subject has been stimulated by the Supreme Court's June 24, 1992, ruling in Lee v. Weisman, in which the Court held that public-school graduation prayers coerced students into participating in religious exercises in violation of the First Amendment's prohibition of government acts "respecting an establishment of religion' " As justice Anthony Kennedy wrote, "The Constitution forbids the state to exact religious conformity from a student as the price of attending his or her own high-school graduation. This is the calculus the Constitution demands." Government, Kennedy held, may never coerce the religious opinions of individuals, even indirectly. "The undeniable fact is that the school district's supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the invocation and benediction. This pressure, though subtle and indirect, can be as real as any overt compulsion. . . . The state may not, consistent with the Establishment Clause, place primary and secondary students in this position'"

Not only did the graduation prayers in Lee v. Weisman put pressure on students, but the school district, in an effort to try to minimize possible student or parent discomfort over the prayers, issued guidelines to participating clergy to get them to be as nondenominational as possible. Presumably, a cleric not amenable to offering as bland a prayer as possible would be disqualified from participating. Not only would subjecting the person invited to offer the prayer to a content-based test offend the constitutional clause barring religious tests for public office, but it certainly ought to be interpreted as insulting to the cleric.

But what about the freedoms or rights of the majority of students who presumably might want to have a prayer at their graduation? There is no bar to any student's praying silently at his or her graduation ("Thank God it's over; now on to Harvard") or his or her attending a special graduation service at a church or synagogue where no one questions the right of those present to participate in a lengthy and totally religious exercise.

What is needed, finally, is a little clarity of thought. Short of activity that would violate the equal rights of others --such as hurling maidens into a volcano to appease a thunder god--individuals are free to exercise their religions privately, as Jesus recommended in the Sermon on the Mount, or publicly, as in an outdoor pageant. But government sponsorship of religious activity cannot avoid preferring some religions over others, thereby rendering some or many people second-class citizens.

This is why your freedom of religion necessarily implies your freedom from my religion.

Edd Doerr is executive director of Americans for Religious Liberty (P.O. Box 6656, Silver Spring, MD 20916) and coauthor with Albert Menendez of Religion and Public Education: Common Sense and the Law (Centerline Press, 1991) and Church Schools and Public Money: The Politics of Parochiaid (Prometheus Books, 1991).