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Beyond the shouting, what the law really says about religion

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Charles C. Haynes
January 16, 2010

Because good news is all too rare in our culture wars, Americans should welcome a common-ground agreement released this week titled “Religious Expression in American Public Life: A Joint Statement of Current Law.”


Drafted by a diverse group of religious-liberty advocates, educators and scholars, the document represents the first-ever consensus on how the law addresses the role of religion in the public square in the United States.


The strange bedfellows on the drafting committee—ranging from Colby May of the American Center for Law and Justice to Marc Stern of the American Jewish Congress—don’t agree on what the law should be. But the group did reach agreement on what the law actually says. (Disclosure: I served on the drafting committee.)


Lasting many months, the long and winding drafting process was guided by the very able and diplomatic Melissa Rogers, director of Wake Forest University Divinity School’s Center for Religion and Public Affairs. The end product provides Americans with consensus answers to 35 key questions on the law governing religion in the workplace, religion and politics, religious displays on government and private property, religion in public schools and more. (The statement is posted online at divinity.wfu.edu/pdf/DivinityLawStatement.pdf)


As the document points out, much of the ignorance and confusion surrounding the role of religion in public life would likely dissipate if more Americans understood the First Amendment’s distinction between “government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect,” to quote the U.S. Supreme Court (Santa Fe Independent School District v. Doe, 2000).


Contrary to the charge from some on the right (and the wish of some on the left), religious expression hasn’t been banished from America’s public square. In the words of the joint statement, “individuals and groups have the right to practice and promote their faith, not only within their homes and houses of worship, but also publicly in places such as parks, street corners, the airwaves, open meetings and many other places subject to the same time, place and manner limits that apply to other nongovernmental speech.”


This new agreement on what is and isn’t permissible under current law is modeled on common-ground statements produced over the past two decades—nine in all—on the place of religion in public schools. The earlier documents have been widely used in school districts across the country to resolve conflicts and avoid litigation, thereby demonstrating the potential of national consensus statements to help local communities find their own common ground.


Debate and disagreement are vital in a democracy. But when people shout past one another using distorted or false interpretations of the law, debate can quickly degenerate into bitter and often personal attacks—and lead to unnecessary lawsuits. If we are going to fight over religion in public life, we should at least get the facts straight.


Of course, one agreement on the state of current law, even one supported by people from all sides, won’t ensure civil discourse overnight—but it’s a start. When people who often face off in court come together and treat one another with fairness and respect, there’s renewed hope that America still works.


Charles C. Haynes is senior scholar at the First Amendment Center, 555 Pennsylvania Ave., N.W., Washington, D.C. 20001. Web: firstamendmentcenter.org. E-mail: chaynes@freedomforum.org.

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