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local "buy a brick" program, designed to raise money for a new playground at their local park. They were told, however, by Chicago Park District officials that the message they submitted for their family brick -- which included the words, "Jesus is the Cornerstone" – was too religious to be included.

Another example: When several residents of Oak Park, Illinois, sought permission to use the Village Hall for a ceremony connected to the National Day of Prayer, their application was denied, even though the Hall was generally available to citizens and community groups for a wide range of activities, on the ground that the proposed ceremony was "religious," not a “civic program or activity," and would not "benefit the public as a whole."

Finally: The School District in Scottsdale, Arizona had a general, community-service policy of permitting non-profit groups to distribute literature promoting events and activities of interest to students, such as summer camps, art classes, sports leagues, and artistic performances. However, the District refused to distribute the brochure for one particular summer camp, citing the fact that the camp offered two courses on "Bible Heroes" and "Bible Tales.""

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Now, MR. CHAIRMAN, the "good news" is that in these particular cases - and also in many others - courts of law eventually vindicated the basic constitutional rule that governments may not discriminate against “religious ideas [and] religious people.” What's more, although some government officials continue to misunderstand their obligations and authority with respect to private persons' religious expression, the United State Supreme Court continues to re-affirmed that the Constitution neither requires nor permits state actors to single out religious expression and activities for unfavorable or unequal treatment. As Justice Scalia once put it, “private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression."

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7 Tong v. Chicago Park District,

F. Supp. 2d

2004 WL 943446 (D. Ill., April 29, 2004).

8 DeBoer v. Village of Oak Park, 267 F.3d 558 (7th Cir. 2001).

9

Hills v. Scottsdale Unified School District, 329 F.3d 1044 (9th Cir. 2003).

10 Board of Educ. of Kiryas Joel v. Grumet, 512 U.S. 687, 717 (1994) (O'Connor, J., concurring in part and concurring in the judgment). See also, e.g., Employment Div. v. Smith, 494 U.S. 872, 877 (1990) (noting the bedrock principle of First Amendment jurisprudence that the government "may not... impose special disabilities on the basis of religious views or religious status"); McDaniel v. Paty, 435 U.S. 618, 639 (1978) (Brennan, J., concurring in the judgment) (insisting that government "may not use religion as a basis for classification for the imposition of duties, penalties, privileges or benefits").

11 See, e.g., Good News Bible Club v. Milford Central School, 533 U.S. 98 (2001); Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995); Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995); Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384 (1993). See generally, e.g., Eugene Volokh, Equal Treatment Is Not Establishment, 13 NOTRE DAME J. L. ETHICS & PUB. POL'Y 341 (1999); Michael A. Paulsen, Religion, Equality, and the Constitution: An Equal Protection Approach to Establishment Clause Litigation, 61 NOTRE DAME L. Rev. 311 (1986).

12 Capitol Square, 515 U.S. at 760 (“[G]overnment suppression of speech has so commonly been directed precisely at religious speech that a free-speech clause without religion would be Hamlet without the prince.").

And so, a question for this Committee is, why does state-sponsored discrimination against religious expression continue? What's the problem? To be clear: I am confident that the public officials involved in these cases do not harbor ugly prejudices or deep hostility toward religious believers. Nor do I believe that they are willfully neglecting their obligations under the Constitution. Instead, I am convinced that the officials in these cases and also, unfortunately, too many well-meaning Americans today - fail to understand and appreciate the text, history, and purpose of the Religion Clause of the First Amendment, in several important and related ways.

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First, many public officials and citizens misunderstand the meaning of the phrase, "separation of church and state," and the place of this idea in our constitutional tradition. To be sure as thinkers from St. Augustine to Pope Gregory VII to Roger Williams have taught us - the "separation of church and state," properly understood, is an important component of religious freedom. That is, the institutional and jurisdictional separation of religious and political authority, the independence of religious communities from government oversight and control, respect for the freedom of individual conscience, government neutrality with respect to different religious traditions, and a strict rule against formal religious tests for public office - all these "separationist" features of our constitutional order have helped religious faith to thrive in America. Properly understood, the separation of church and state is not an anti-religious ideology, but a "means, a technique, [and] a policy to implement the principle of religious freedom."14

"15

However, too many have confused Thomas Jefferson's "figure of speech" about a "wall of separation between church and State" with a novel and unsound rule that would obligate public officials to scrub clean the public square of all “sectarian" residue. Professor Kathleen Sullivan, for example, has argued forcefully and prominently that the First Amendment's Establishment Clause was designed not simply to end official sponsorship of churches but also to affirmatively establish a secular “civil order for the resolution of disputes." This view of church-state separation is seriously mistaken. It is untrue to the vision of our Founders and to the text of our Constitution." As John Courtney Murray lamented more than 50 years ago, arguments like this stand the First Amendment "on its head. And in that position it cannot but gurgle nonsense.'

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In fact, our Constitution separates “church” and “state” not to confine religious belief or silence religious expression, but to curb the ambitions and reach of governments. In our

13

See generally, e.g., John Witte, Jr., Book Review, That Serpentine Wall of Separation, 101 MICH. L. REV. 1869 (2003).

14 John Courtney Murray, Law or Prepossessions?, 14 J. L. CONTEMP. PROBS. 23, 32 (1949).

15

See McCollum v. Board of Education, 333 U.S. 203, 247 (1948) (Reed, J., dissenting) (“A rule of law should not be drawn from a figure of speech.").

16 Kathleen Sullivan, Religion and Liberal Democracy, 59 U. CHIC. L. Rev. 195, 197 (1992).

17

See generally, e.g., PHILIP HAMBURGER, SEPARATION OF CHURCH ANd State (2002); JOHN WITTE JR., RELIGION AND THE AMERICAN CONSTITUTIONAL EXPERIMENT (2000); STEVEN D. SMITH, FOREORDAINED FAILURE: THE QUEST FOR A CONSTITUTIONAL PRINCIPLE OF RELIGIOUS FREEDOM (1995); GERALD V. BRADLEY, CHURch-state RelatIONSHIPS IN AMERICA (1987). See also, e.g., Wallace v. Jaffree, 472 U.S. 38, 91-113 (1985) (Rehnquist, J., dissenting).

18

John Courtney Murray, Law or Prepossessions?, 14 J. L. CONTEMP. PROBS. 23, 23 (1949).

laws, "Caesar recognizes that he is only Caesar and forswears any attempt to demand what is God's. (Surely this is one of history's more encouraging examples of secular modesty.) The State realistically admits that there are... limits on its authority and leaves the churches free to perform their work in society.”

,19

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Second, and relatedly, too many of us have forgotten that the First Amendment limits government conduct only. It has nothing to say about private action, other than to confirm that religious expression, exercise, and worship are worth protecting. The First Amendment's Establishment Clause is not a sword, driving private religious expression from the marketplace of ideas; rather, the Clause constrains government, precisely to serve as a shield, and to protect religiously motivated speech and action. Judge McConnell captured the idea succinctly: "If a group of people get together and form a church, that is the free exercise of religion. If the government forms a church, that is an establishment of religion. One is protected; one is forbidden.”

9,21

Third, nothing in our political morality or constitutional traditions mandates or implies a duty of self-censorship by religious believers. Nothing in the First Amendment suggests that religious expression is somehow unwelcome or out of place in civil society and public debate. And yet, many in America appear to share the view - expressed bluntly by one of our leading public intellectuals – that it is in "bad taste to bring religion into discussions of public policy.' On this view, as Stephen Carter memorably put it, religion is "like building model airplanes, just another hobby: something quiet, something trivial-not really a fit activity for intelligent... adults."23

,,22

Now, as you know, MR. CHAIRMAN, scholars are and have long been wrestling with the question of the appropriate place for religiously grounded arguments in public life.

19 William Clancy, Religion as a Source of Tension, in RELIGION AND THE FREE SOCIETY 27-28 (1958). Cf., e.g., Thomas C. Berg, The Pledge of Allegiance and the Limited State, 8 TEX. REV. L. & POL. 41, 76 (2003) (suggesting, among other things, that "Under God" in the Pledge "is a means for the state to declare that it is a limited institution that is subject to, and does not interfere with, higher commitments and norms"); McConnell, Why Is Religious Liberty the "First Freedom," supra, at 1244 (“The division between temporal and spiritual authority gave rise to the most fundamental features of liberal democratic order: the idea of limited government, the idea of individual conscience and hence of individual rights, and the idea of civil society, as apart from government, bearing primary responsibility for the formation and transmission of opinions and ideas.”).

20

See, e.g., Capitol Square, 515 U.S. at 767 (“By its terms [the Establishment] Clause applies only to the words and acts of government. It was never meant, and has never been read by this Court, to serve as an impediment to purely private religious speech[.]"); Board of Educ. v. Mergens, 496 U.S. 226, 250 (1990) (O'Connor, J., concurring) (“[T]here is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.").

21 Michael W. McConnell, “God Is Dead and We Have Killed Him!": Freedom of Religion in the PostModern Age, 1993 BYU L. REV. 163, 184.

22 Richard Rorty, Religion as Conversation-Stopper, 3 Common Knowledge 1, 2 (1994). See also William Marshall, The Other Side of Religion, 44 HASTINGS LAW JOURNAL 843, 844 (1993) (Religion and religious conviction, on the other hand, “are purely private matters that have no role or place" in the political arena).

23

STEPHEN L. CARTER, THE CULTURE OF DISBELIEF: HOW AMERICAN Law and POLITICS TRIVIALIZE RELIGIOUS DEVOTION 22(1993).

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This is a rich and important conversation, but — in my view - the bottom line is clear: Our Constitution does not demand a Naked Public Square, nor does it tolerate efforts by government to create one. The Constitution imposes no "don't ask, don't tell" rule on religious believers presumptuous enough to venture into public life,” and the Establishment Clause imposes no special obligation on devout religious believers to "sterili[ze]" their speech before entering the public forum. Active and engaged participation by the faithful is perfectly consistent with the institutional separation of church and state that the Constitution is understood to require.

26

What's more, and going beyond constitutional law for a moment, the political morality of liberal democracy, rightly understood, does not require self-censorship on the part of persons who are believers and citizens. In fact, it would seem more than a little bit illiberal, to assert the peculiar unsuitability for public discourse of one source-i.e., religious faith-of morality, "values," and commitment.27 To force religious believers to concede, as the price of admission to the political community, that "religious reasons are not good reasons for political action," is, as my colleague Paul Weithman has observed, to deny religious believers "full membership" in that community."

29

28

True, some courts and officials have at times seemed more worried about the "divisiveness"9 thought to attend public manifestations of religious commitment than about the threats posed to authentic religious freedom and pluralism by their own over

24 See RICHARD JOHN NEUHAUS, THE NAKED PUBLIC SQUARE: RELIGION AND DEMOCRACY IN AMERICA (2d ed. 1996).

Jean Bethke Elshtain, How Should We Talk?, 49 Case WESTERN RES. L. REV. 741, 744 (1999) ("To tell religious believers to keep quiet, else they interfere with my rights simply by speaking out is an intolerant idea. It is, in effect, to tell folks that they can not really believe what they believe or be who they are: Don't ask. Don't tell.").

26 Good News Club v. Milford Central School, 533 U.S. 98, 124 (2001) (Scalia, J., concurring). See also, e.g., Michael J. Perry, Why Political Reliance on Religiously Grounded Morality Does Not Violate the Establishment Clause, 42 WILLIAM and Mary Law Review 663 (2001).

27

See, e.g., Michael W. McConnell, Five Reasons to Reject the Claim that Religious Arguments Should Be Excluded from Democratic Deliberation, 1999 UTAH L. REV. 639, 654 n. 56 (“Some views-such as advocacy of slavery or cruelty-may be treated by a liberal society as beyond the pale. But to treat religious views, which have been, and are, entertained by a large majority of the people, including many people of eminent reasonableness and good sense, as within this category, is surely illiberal."); Nicholas Wolterstorff, Audi on Religion, Politics, and Liberal Democracy, in ROBERT AUDI & Nicholas WOLTERSTORFF, RELIGION IN THE Public Square 147 (1997) (“[T]he ethic of the citizen in a liberal democracy imposes no restrictions on the reasons people offer in their discussion of political issues in the public square.... If the position adopted, and the manner in which it is acted upon, are compatible with the concept of liberal democracy, and if the discussion concerning the issue is conducted with civility, then citizens are free to offer and act on whatever reasons they find compelling."); Michael J. Sandel, Political Liberalism, 107 HARVARD LAW REVIEW 1765, 1772-73 (1994) (“Why must we 'bracket'... our moral and religious convictions, our conceptions of the good life? Why should we not base the principles of justice that govern the basic structure of society on our best understanding of the highest human ends?") (reviewing JOHN RAWLS, POLITICAL Liberalism (1993)).

28 Paul Weithman, Religious Reasons and the Duties of Membership, 35 WAKE FOREST L. REV. 511, 532 (2001).

29

See, e.g., Lemon v. Kurtzman, 403 U.S. 602 (1971).

31

reactions.30 And, as a result, their pronouncements have, in Chief Justice Rehnquist's words, at times seemed to "bristle[] with hostility to all things religious in public life.” The recent decision by Los Angeles County, bowing to the threat of a meritless law suit, to remove a tiny gold cross from the County Seal is a reminder that such regrettable overreactions continue. We should remember, as Professor Jean Bethke Elshtain has warned, that "if we push too far the notion that, in order to be acceptable public fare, all religious claims... must be secularized, we wind up de-pluralizing our polity and endangering our democracy.'

,,32

Finally, many Americans misunderstand the significance of the Supreme Court's observation that, under our Constitution, “religion must be a private matter for the individual, the family, and the institutions of private choice[.]"33 Clearly, few would disagree with the claim that "religion is private," if the claim is taken to refer to institutional disestablishment or an entirely appropriate respect on government's part for individual freedom of conscience and the autonomy of religious institutions. But this claim should not be taken to mean that religious expression and witness has no place in civil society or that religious faith does not speak to questions of public policy and the common good.

William James once quipped, “in this age of toleration, (no one] will ever try actively to interfere with our religious faith, provided we enjoy it quietly with our friends and do not make a public nuisance of it[.]"34 Sometimes, though, religious people are called precisely to "make a public nuisance” – and also to engage respectfully their fellow citizens in dialogue about how we should live and live together. Nothing in our constitutional text and traditions implies that religious citizens should not speak and act as though their faith had consequences for state and society. As Justice Thomas has insisted, it would be a “most bizarre" reading of the First Amendment that would "reserve special hostility for those who take their religion seriously, [and] who think that their religion should affect the whole of their lives.'

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The Constitution protects our right to keep our faith private. However, it does not require us to privatize our faith before entering into the public square, or taking up the responsibilities of citizenship. Indeed, it would be highly- and unconstitutionally – presumptuous for government to instruct religious believers and communities as to the limited scope of religion's concerns.

30

36

Cf. Good News Club, 533 U.S. at 118 (“[W]e cannot say the danger that children would misperceive the endorsement of religion is any greater than the danger that they would perceive a hostility toward the religious viewpoint if the Club were excluded from the public forum.").

31 Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 318 (2000) (Rehnquist, J., dissenting).

32

Jean Bethke Elshtain, State-Imposed Secularism as a Potential Pitfall of Liberal Democracy (Prague 2000).

33 Lemon, 403 U.S. at 625.

34 WILLIAM JAMES, THE WILL TO BELIEVE AND OTHER ESSAYS IN POPULAR PHILOSOPHY xi (1897) (Dover ed. 1956).

35 Mitchell v. Helms, 530 U.S. 793, 827-28 (2000) (plurality op.).

36 See generally, e.g., Richard W. Garnett, A Quiet Faith? Taxes, Politics, and the Privatization of Religion, 42 B.C. L. REV. 771 (2001); Gerard V. Bradley, Dogmatomachy: A “Privatization" Theory of the Religion Clause Cases, St. Louis U. L. J. 275 (1986).

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