The Pfefferian inversion.

THE PFEFFERIAN INVERSION 

LEO PFEFFER, now rich in years and honors, has done more than anyone else to shape the law regarding religion and the state in America. School prayer, religious symbols in the classroom, aid to parochial schools -- for forty years he has argued against them all before the Supreme Court and, more often than not, he has won. In a recent memoir, Pfeffer describes himself as an "absolutist for strict separationism." For him, the "wall of separation" between church and state can never be high enough. He knows that being an absolutist is an extreme position, but his idea of democracy is that absolutists on one side contend agains absolutists on the other, and somehow something like justice emerges from the battle. Looking back, he seems puzzled that the absolutists on "the religious side" just weren't there when they should have been. Again and again, his absolutism prevailed, as though by default.

Leo Pfeffer is not against religion. He is regularly to be found in synagogue. But for him religion is an exclusively private thing: what he is against is religion in public. But with the expansion of the modern state "public" and "governmental" are increasingly interchangeable. Therefore it is increasingly possible to construe the separation of church and state as the separation of religion from public life. As the government increasingly absorbs all public space, and a good deal of private space, religion gets squeezed into an ever tighter corner of privacy. In recent years we have witnessed a new assertiveness of religion in public. For example, the Religious Right and the Roman Catholic bishop's pastoral letters have attracted widespread and often worried attention. Religion is struggling to get out of the corner in which it has been confined by Court rulings and by habits of mind that were, in large part, crafted by the formidable Leo Pfeffer.

Pfeffer sold the Court, important sectors of religious leadership, and almost the entirety of "enlightened" public opinion on one key idea. That idea might be called the Pfefferian Inversion of the First Amendment. Recall what the first Amendment says: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The record leaves no doubt that the Framers were concerned for religious freedom, including the freedom of conscience. They were adamant in their belief that the national government had no business messing with that freedom. One way the government might mess with it is by establishing one religion over others. The proscription of such establishment is designed to protect religious freedom. "Free exercise" of religion is the goal; "no establishment" is one important instrument in the service of that goal.

Now comes the Pffefferian Inversion. (Admittedly, he did not do it single-handedly, and there were precedents on which he built.) Instead of a two-part religion clause ("no establishment" and "free exercise"), it was urged that there were two religion clauses, and they had somehow to be "balanced" one against the other. This ignored the fact that the two parts of the clause do not work against each other; "no establishment" is in the service of "free exercise." The inversion was completed when lawyers became accustomed to talking about he religion clause as "the establishment clause." Thus the means ("no establishment") is given priority over the end ("free exercise"). An extreme expression of this inversion is to be found in the much used treatise on constitutional law by Laurence Tribe of Harvard. Professor Tribe writes that there is a "zone which the free-exercise clause carves out of the establishment clause for permissible accommodation of religious interests. This carved-out area might be characterized as the zone of permissible accommodation." One doubts if the Framers would be grateful to Professor Tribe for his gracious allowance of a "zone of permissible accommodation" for what was their entire purpose in the first place -- the free exercise of religion.

Once we identify the Pfefferian Inversion, the Court decisions of the last forty years become easier to understand. The premise is that any government involvement in or support for religion violates the "no-establishment clause." Therefore everything that government touches must be free of religion. And, of course, government increasingly touches everything. One consequence among many is that religious social agencies and colleges have in many cases traded their religious identities for governmental dollars. It is their shame that they did so; it is a great injustice that they were required to do so. Here and elsewhere, the Pfefferian Inversion has supported a government-imposed conformity against the genuine pluralism including the religious puralism, of our society. It is time to reassert the elementary truth that the purpose of the religion clause of the First Amendment is to protect, not prohibit, the free exercise of religion.

PHOTO: "I've never been to Miami."