A few years ago, the American Constitution Center conducted a poll to assess the country’s constitutional literacy and drew a depressing conclusion: Americans revere the Constitution but have virtually no idea what it says or means.
If that conclusion seems a bit over the top, consider some of the more indignant reactions to two recent court opinions applying the religion clauses of the First Amendment . In a case close to home, Judge Sarah Evans Barker ruled that a public high school’s graduating class could not vote to have prayer at its official ceremony. A decision with more national scope held that a presidential designation of a Day of Prayer is improper. I found the homegrown case particularly ironic, since I invented a virtually identical fact situation a few years ago as part of my midterm exam. Unlike the school officials involved, my students almost always recognize that the issue is not whether students may pray, but whether the government can sponsor prayer.
In a recent column, The Star’s Russ Pulliam declared that the Founders did not want to eject religion from the public square. True. There is an important difference, however, between the public square and the public sector — a difference that evidently eludes many Americans.
There are two religion clauses in the First Amendment. One, the Establishment Clause, prohibits government from sponsoring, endorsing, favoring or otherwise getting involved with religion. The second, the Free Exercise Clause, forbids government from interfering with individuals’ voluntary expression of religion. Together, those clauses send a message to government: hands off.
If you want to take religion into the public square, you are absolutely free to do so. You can post religious verses on your house, wear T-shirts with religious messages, hand out religious handbills on the public streets, place religious messages in newspapers or magazines, or hold revivals in public parks. If you have the means, you can buy a network and broadcast religious messages. You can engage in innumerable other religious activities in the public square and agencies of government will be constitutionally prohibited from interfering.
If, however, you want the public sector to weigh in — if you want a publicly owned building to post a Bible verse, a government official to endorse or lead your prayer, or a legislative body to ensure that your neighbors are behaving in accordance with your religious beliefs — you have a constitutional problem, because the Establishment Clause prevents any group of citizens, no matter how numerous, from using the power of the state to impose their religious beliefs on other citizens. Your neighbors cannot take a vote to make you an Episcopalian or a Baptist or a Muslim, and the senior class cannot vote to have the public schools impose a religious observance on those attending the graduation ceremony.
We should all have learned the difference between the public sector and the public square in Government 101. Unfortunately, too many of us skipped class.
Kennedy is professor of law and public policy at the Indiana University School of Public and Environmental Affairs in Indianapolis..
Source: IndyStar Editorial