“The Boundary Between Church and State”
Second Annual Sacramento Court/Clergy Conference
Sacramento, California
October 20, 2015
     Elder Dallin H. Oaks     

       I appreciate the invitation to speak to this distinguished audience of religious leaders, judges, and lawyers.
                                                                               I.
       My purpose is to advance this conference’s objective to be “a forum for mutual support, understanding, edification and collaboration between the judiciary and regional communities of faith.” I will, therefore, refrain from advocating my strongly held views on various issues affecting religious freedom. Instead, I will focus my remarks on two of your objectives: “mutual … understanding” and “edification.”


       I enjoyed reading the Sacramento Lawyer’s report of the prior court-clergy conference. I was easily persuaded by Presiding Justice Vance W. Raye’s description of the importance of judges’ understanding the role that religion plays in the lives of the American people, the importance of values—whether religious or secular—in shaping behavior, and the fact that churches—as institutions—offer an amazing panoply of resources to help people involved in the judicial system.[1] I will speak later of my appreciation for the remarks of Father Rodney Davis, retired appellate court justice, who spoke of “how deeply held religious beliefs of judges and litigants impact one’s experience with the judicial system.”[2]


       While I was unable to attend this morning’s welcome addresses, presentations, and breakout sessions, I hope that my remarks will further your discourse on our important concerns.


II.
       I begin by speaking of the inevitable relationship between two different realms: the laws and institutions of government on the one hand and the principles (or “laws”) and institutions of religion on the other. (By “religion” I refer to churches, synagogues, mosques, and others and to their adherents and affiliated organizations.) I will suggest how these inevitable relationships should affect the behavior of believers and nonbelievers toward one another and toward the two different sets of laws to which all must relate in one way or another.


       My thesis is that we all want to live together in happiness, harmony, and peace. To achieve that common goal, and for all contending parties to achieve their most important personal goals, we must learn and practice mutual respect for others whose beliefs, values, and behaviors differ from our own. As Justice Oliver Wendell Holmes observed, the Constitution “is made for people of fundamentally differing views.”[3]


       Differences on precious fundamentals are with us forever. We must not let them disable our democracy or cripple our society. This does not anticipate that we will deny or abandon our differences but that we will learn to live with those laws, institutions, and persons who do not share them. We may have cultural differences, but we should not have “culture wars.”


       There should be no adversariness between believers and nonbelievers, and there should be no belligerence between religion and government. These two realms should have a mutually supportive relationship. In that relationship governments and their laws can provide the essential protections for believers and religious organizations and their activities. Believers and religious organizations should recognize this and refrain from labeling governments and laws and officials as if they were inevitable enemies. On the other hand, those skeptical of or hostile to believers and their organizations should recognize the reality—borne out by experience—that religious principles and teachings and their organizations are here to stay[4]and can help create the conditions in which public laws and government institutions and their citizens can flourish.


       That perceptive observer of America, Alexis de Tocqueville, wrote that what sustained the unique American democracy were the voluntary associations like churches—today often called “mediating institutions”—that lead citizens to choose to obey laws that governments cannot enforce.[5] Even today, our society is not held together primarily by law and its enforcement but most importantly by those who voluntarily obey the unenforceable because of their internalized norms of righteous or correct behavior. Some call this “civic virtue.” It has various sources, but all should recognize the vital contribution of religion because religious belief in right and wrong by a large number of citizens is fundamental to producing this essential voluntary compliance.


       Of course there will be differences that must be resolved by the rule of law. But these occasional differences must not obscure the basic fact that we are in this together, we need each other, and we can resolve our differences through mutual respect, mutual understanding, and the collaboration you advocate as the purpose of this gathering.


       When I first studied this subject in law school about 60 years ago, the popular metaphor of the relationship between church and state was that of a “wall of separation.” Introduced into Supreme Court jurisprudence in the 1879 case Reynolds v. United States[6] and brought into mainstream vernacular in its 1947 Everson case,[7] this metaphor dominated discussions of the day.[8] It even found its way into the title of a book I edited in 1963.[9] That book is long out of print, but the unfortunate connotations of the “wall of separation” metaphor persist to the present day. Those connotations inhibit the desirable collaboration that brings us together in this conference.


       I reject the idea of a wall between church and state. The more appropriate metaphor to express that relation—reinforced by various decisions of the United States Supreme Court—is a curtain that defines boundaries but is not a barrier to the passage of light and love and mutual support from one side to another.


III.
       I have viewed the boundary between church and state from both sides. I viewed it from the state side as a law clerk to Chief Justice Earl Warren of the United States Supreme Court, as a prosecutor in the state courts in Illinois, and still later as a justice on the Utah Supreme Court. From the church side, I have been a lifelong believer, teacher, counselor, and leader in my denomination. For me, questions about the relationship between government and religion are not academic, any more than the fate of Christian martyrs or the events of the Holocaust are academic to persons associated with them. My great-grandfather Harris—through whom I have my middle name—served time in the Utah territorial prison for violation of a federal law intended to punish him for acting on his religious belief. Before that, my wife’s great-great-grandfather Hyrum Smith was murdered in Illinois by an anti-Mormon mob.


       Rejecting a “wall of separation between church and state” but affirming the need for a boundary, I will discuss that boundary and invite you to walk that center path with me.


       I begin by suggesting a few general principles.


       First, parties with different views on the relationship between church and state should advocate and act with civility. In this country we have a history of tolerant diversity—not perfect but mostly effective at allowing persons with competing visions to live together in peace. We all want effective ways to resolve differences without anger and with mutual understanding and accommodation. We all lose when an atmosphere of anger or hostility or contention prevails. We all lose when we cannot debate public policies without resorting to boycotts, firings, and intimidation of our adversaries.


       Second, on the big issues that divide adversaries on these issues, both sides should seek a balance, not a total victory. For example, religionists should not seek a veto over all nondiscrimination laws that offend their religion, and the proponents of nondiscrimination should not seek a veto over all assertions of religious freedom. Both sides in big controversies like this should seek to understand the other’s position and seek practical accommodations that provide fairness for all and total dominance for neither. For example, an influential article by Martha Minow of the Harvard Law School concludes that “accommodation and negotiation can identify practical solutions where abstract principles sometimes cannot.”[10] She observes that this approach “is highly relevant to sustaining and replenishing both American pluralism and constitutional protections for minority groups.”[11] Thus, in a head-on conflict over individual free exercise and enforced nondiscrimination in housing and employment, for example, the Utah Legislature crafted a compromise position under the banner of “fairness for all.” It gave neither position all that it sought but granted both positions benefits that probably could not have been obtained without the kind of balancing that is possible in the lawmaking branch but not in the judiciary.


       Third, it will help if we are not led or unduly influenced by the extreme voices that are heard from contending positions. Extreme voices polarize and create resentment and fear by emphasizing what is nonnegotiable and by suggesting that the desired outcome is to disable the adversary and achieve absolute victory. Such outcomes are rarely attainable and never preferable to living together in mutual understanding and peace.


       The Supreme Court bowed toward this principle in its majority opinion in Obergefell, the 5-4 case establishing a federal constitutional right to same-sex marriage. It implicitly rejected several argued bases for its decision, such as alleged animus in traditional marriage laws and the need for establishing a new suspect class for laws affecting those with same-gender attraction. Either of those bases for the decision would have complicated the kind of accommodation I advocate here. Just as important, the majority opinion also included some teachings that are particularly welcome to those who argued the losing position. Writing for the majority, Justice Kennedy acknowledged the reasonableness of the religious and philosophical premises of those who argue that marriage should be limited to a man and a woman and assured that the First Amendment will protect religious organizations and persons who continue to teach them.


IV.
       In addition to these general principles, I have some suggestions for each contender in current struggles over the proper boundary between the different realms of church and state. I believe these suggestions advance the mutual understanding and collaboration we seek in this conference.


A.
       I speak first to my fellow believers—those advocating the maximum free exercise of religion. I begin with the reminder that for believers there are two different systems of law: divine and civil. While all believers revere divine law, most also acknowledge that civil law is also ordained of God. The Lord Jesus Christ directed, “Render therefore unto Caesar the things which are Caesar’s; and unto God the things that are God’s” (Matthew 22:21). So taught, we must, to the extent possible, obey both systems of law. When there are apparent conflicts, we must seek to harmonize them. When they are truly irreconcilable, we should join with others of like mind in striving to change the civil law to accommodate the divine. In all events, we must be very measured before ever deciding—in the rarest of circumstances—to disregard one in favor of the other.


       In that context, I say to my fellow believers that we should not assert the free exercise of religion to override every law and government action that could possibly be interpreted to infringe on institutional or personal religious freedom. As I have often said, the free exercise of religion obviously involves both the right to choose religious beliefs and affiliations and the right to exercise or practice those beliefs. But in a nation with citizens of many different religious beliefs, the right of some to act upon their religious principles must be circumscribed by the government’s responsibility to protect the health and safety of all. Otherwise, for example, the government could not protect its citizens’ person or property from neighbors whose intentions include taking human life or stealing in circumstances purportedly rationalized by their religious beliefs.


       Religious persons will often be most persuasive in political discourse by framing arguments and explaining the value of their positions in terms understandable to those who do not share their religious beliefs. All sides should seek to contribute to the reasoned discussion and compromise that are essential in a pluralistic society. And none should adopt an “us vs. them” mentality.


       Believers should also acknowledge the validity of constitutional laws. Even where they have challenged laws or practices on constitutional grounds, once those laws or practices have been sustained by the highest available authority, believers should acknowledge their validity and submit to them. It is better to try to live with an unjust law than to contribute to the anarchy that a young lawyer named Abraham Lincoln anticipated when he declared, “There is no grievance that is a fit object of redress by mob law.”[12]


       Clear cases for the application of this principle are the public officials in the executive or judicial branch who enforce and interpret the laws. All such officials take an oath to support the constitution and laws of their jurisdiction. That oath does not leave them free to use their official position to further their personal beliefs—religious or otherwise—to override the law. Office holders remain free to draw upon their personal beliefs and motivations and advocate their positions in the public square. But when acting as public officials they are not free to apply personal convictions—religious or other—in place of the defined responsibilities of their public offices. All government officers should exercise their civil authority according to the principles and within the limits of civil government. A county clerk’s recent invoking of religious reasons to justify refusal by her office and staff to issue marriage licenses to same-gender couples violates this principle. Far more significant violations of the rule of law and democratic self-government occur when governors or attorneys general refuse to enforce or defend a law they oppose on personal grounds—secular or religious. Constitutional duties, including respect for the vital principle of separation of powers, are fundamental to the rule of law. Government officials must not apply these duties selectively according to their personal preferences—whatever their source.


       This insistence that the constitutional and legal duties of the office override the religious or other moral scruples of the office holder implies no compulsion on the office holder’s conscience. The operation of the government can continue when attorneys or other administrators delegate the performance of their duties and when judges disqualify themselves. Government operations can accommodate the conscience of individual officials, but neither the government nor its citizens should tolerate veto of a law (either its text or its operation) by officials not formally authorized to do so.


       After I wrote those words to share here, I was pleased to read a similar position being advocated by Judge William H. Pryor Jr. of the United States Court of Appeals for the Eleventh Circuit. In a notable article in the Yale Law and Policy Review nine years ago, he wrote:


             “There is a limit to the relevance of religion in the performance of my judicial duty. That limit is defined by the very nature of my judicial authority. Properly understood, the exercise of my authority as a federal judge is governed by the law alone. …
             “As a judge, I am not given the authority to use a personal moral perspective to update or alter the text of our Constitution and laws. The business of using moral judgment to change the law is reserved to the political branches, which is why the officers of those branches are regularly elected by the people. …
             “For centuries, members of Congress have supported a variety of new laws on [moral bases, informed by religion,] whether to abolish slavery, withdraw troops from foreign wars, abolish child labor, guarantee civil rights, provide assistance to the poor and sick, protect marriage, or prohibit the sale of intoxicating liquors. The changing of laws enacted by political authorities is not a judge’s task; the duty of a judge is the application of those laws in controversies within the jurisdiction of the courts.”[13]


       Here I wish to record my agreement with former appellate justice Father Rodney Davis’s wise observation that we should “forthrightly face up to how [religious judges’] deeply held religious perspectives impact their decision-making.”[14] Father Davis observes persuasively that in “discretionary decision-making,” like sentencing and custody arrangements, “judges bring their life experiences to the process and with it the perspectives, religious and otherwise, that are part of that experience.”[15] He reminds us of “the inescapable fact that a judge’s religious perspective influences how he or she sizes up and measures the complicated conduct and motivations presented and how, if given some level of discretion, he or she reacts to them.”[16]


       How can it be otherwise? Surely a constitution that grants unique guarantees to the “free exercise” of religion cannot deny religious judges the application of their religious experiences while inevitably granting other judges the application of their secular experiences.


       Of course it is different, as Father Rodney Davis observes, when a judge is required to “enforce a rule or standard or apply the analytical skill-set needed to find and follow an analogous case.”[17] Thus, in their role to interpret or apply legal rules, judges must apply the same standards of decision, whether believers or not.


B.
       I have been speaking to those for whom religious faith—to one degree or another—is the key to their human dignity. In recent years our society has increased its recognition that many look on race and gender, including sexual orientation, as a basis of their human dignity. As these other bases have been accommodated in the law, some have placed freedom from discrimination on these grounds above the constitutional guarantee of free exercise of religion.[18] The collision of these two values is the cause of many of the so-called “cultural wars.” These conflicts inevitably undermine the kinds of mutual support and collaboration of the judiciary and communities of faith that we are seeking in this conference.


C.
       Having given some advice to the religious side, I also have some suggestions for those who have other keys to or nonreligious values for their human dignity.


       First, please respect the laws that provide unique protections for believers and religious institutions, and please accept the fact that this grants religion an honorable place in our public life. Most notable is the uniquely positioned First Amendment in the Bill of Rights, which singles out the “free exercise” of religion for special protection, along with free speech, free press, and freedom of assembly. This favored constitutional status that a unanimous United States Supreme Court recently described in part as “special solicitude to the rights of religious organizations”[19] should be acknowledged in all controversies over the meaning of “free exercise” and how to balance it against contrary cultural preferences.


       Surely this unique constitutional guarantee of the “free exercise” of religion was intended to grant unique protections to those acting in accordance with religious belief. This was intended in our nation’s founding. As Professor Michael McConnell has observed, when the First Amendment was drafted, several formulations were considered, the two final ones being the protection of “rights of conscience” or the “free exercise of religion.”[20] The ultimate “choice of the words ‘free exercise of religion’ in lieu of ‘rights of conscience,’ is,” as Professor McConnell notes, “of utmost importance.”[21] First, it made clear that the First Amendment protected more than just belief. It protected action in accordance with belief.[22] Second, while “conscience” emphasizes individual judgment, “religion” also encompasses the “institutional aspects of religious beliefs.”[23] Finally, the framers’ preference for “free exercise of religion” over “rights of conscience” means that religiously based scruples are given more solicitude than nonreligiously based ones. As the framers thoughtfully reasoned, “The free exercise clause accords a special, protected status to religious conscience not because religious judgments are better, truer, or more likely to be moral than nonreligious judgments, but because the obligations entailed by religion transcend the individual and are outside the individual’s control.”[24]


       Treating actions based on religious belief the same as actions based on other systems of belief is, therefore, not enough to satisfy the special place of religion in the United States Constitution. Understanding this reality is important to advancing this conference’s purposes to further mutual understanding, edification, and collaboration.


       Second, we must take notice of current theories asserting that religious speech is more dangerous and therefore less deserving of protection than other types of speech. Without detailing the obvious, I merely maintain that the constitutional freedom of religion is intended to be guaranteed—and is guaranteed—not only by the First Amendment’s free exercise clause, but is also protected by the companion guarantees of freedom of speech and freedom of assembly. The United States Supreme Court reaffirmed that principle in a near-unanimous 1981 case, declaring that “religious worship and discussion” are “forms of speech andassociation protected by the First Amendment.”[25] Thus, these great guarantees are cumulative, strengthening and building upon one another.


       Of course there are extremist and even terrorist groups that attempt to use religious beliefs to justify illegal incitements or violent or destructive actions. Those excesses can and should be rejected by our understanding of the limits on any constitutional right. Similarly, we all understand the common-sense principle that the prospect of abuse of a constitutional right must not be used to veto that right. We resist that tendency for speech and press, and we must also resist it for religion.


       For the reasons just stated, the extreme adversaries of churches should refrain from violating or ignoring the fundamental freedoms of speech and assembly that are also enjoyed by religious persons or institutions. Why do I say this? There are strong movements in our country to crowd religious voices, values, and motivations from the public square.[26] One way this is done is to shout down such arguments as irrational or reflective of hatred or bigotry, thus forestalling consideration of the very real secular as well as religious reasons supporting their positions. Even less extreme forms, like the “principled toleration” argument advocated by some mainstream academics,[27] subvert common understanding and have a chilling effect on speech and public debate on many important issues. This jeopardizes not only the freedom of religious exercise but also the associated freedoms of speech, press, and assembly.


       Since such efforts have surfaced on the campuses of various colleges and universities,[28] I cannot refrain from referring to the widely publicized policy on free expression in the academy put forth by my alma mater, the University of Chicago.[29] I am also heartened by President Barack Obama’s recently declared support for free speech on the campus[30] and for broader respect for religion in speech.[31]


       Such expressions are encouraging examples of recent reaffirmation of the vitality of freedom of speech on religious subjects and for religious leaders. As my time is up, I will not cite further examples but only affirm the basic principle that religious leaders and religiously motivated persons should have at least the same privileges of speech and participation as any other persons or leaders when they enter the public square to participate in public policy debates.


       On this occasion I conclude by urging upon those attending this conference the importance of remembering the vital constitutional rights of free exercise of religion and free speech and assembly when considering controversies involving religion and religious expression. That perspective is vital to advancing our desired collaboration between the judiciary and religious institutions.




 
[1] Hon. Rodney Davis, “Religion’s Place in Judicial Decision Making,” Sacramento Lawyer, May-June 2015 at 16, available at http://issuu.com/milenkovlais/docs/final_saclaw_may_june_2015_web.
[2] Id., at 18.
[3] Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting).
[4] See Mary Beth McCauley, “Why Religion Still Matters,” The Christian Science Monitor Weekly,October 12, 2015, p. 26.
[5] Alexis de Tocqueville, Democracy in America, 489-92 (Mansfield & Winthrop eds. & trans., University of Chicago Press, 2000) (1835).
[6] 98 U.S. 145 (1879).
[7] Everson v. Board of Education, 330 U.S. 1 (1947).
[8] E.g., see Paul M. Butler & Alfred L. Scanlan, “Wall of Separation—Judicial Gloss on the First Amendment,” 37 Notre Dame L. Rev 288 (1962).
[9] The Wall Between Church and State (Oaks, ed., The Univ. of Chicago Press, 1963).
[10] Martha Minow, Should Religious Groups Be Exempt from Civil Rights Laws?, 48 B.C.L. Rev. 781, 849 (2007)
[11] Id., at 783.
[12] Abraham Lincoln, “Address Before the Young Men's Lyceum of Springfield, Illinois” (Jan. 27, 1838), reprinted in Collected Works of Abraham Lincoln 113 (Roy P. Basler ed. 1953) available at http://quod.lib.umich.edu/l/lincoln/lincoln1/1:130.1?rgn=div2;view=fulltext.
[13] William H. Pryor, Jr., “The Religious Faith and Judicial Duty of an American Catholic Judge,”Yale Law & Policy Review, Vol. 24:347, 2006, 355, 357-58.
[14] Hon. Rodney Davis, note 1, supra at 20.
[15] Id. at 21.
[16] Id.
[17] Id.
[18] See, e.g., Chai Feldblum, “Moral Conflict and Liberty: Gay Rights and Religion, 72 Brook. L. Rev. 61, 115 (2006).
[19] Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., 565 U.S._, 132 S. Ct. 694, 706 (2012).
[20] Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1488 (1990).
[21] Id. at 1489.
[22] Id.
[23] Id. at 1490.
[24] Id. at 1497.
[25] Widmar v. Vincent, 454 U.S. 263, 269 (1981).
[26] See, e.g., Ronald A. Lindsay, “Religion Has No Place in Government,” 24 Secular Humanist Bulletin, No. 4 (Winter 2008/2009).
[27] See Brian Leiter, Why Tolerate Religion? (Princeton Univ. Press 2013).
[28] See, e.g., Timothy Larsen, “No Christianity Please, We’re Academics,” Inside Higher Ed., July 30, 2010, https://www.insidehighered.com/views/2010/07/03/larsen.
[29] See Geoffrey R. Stone et al, “Report of the Committee on Freedom of Expression,” The University of Chicago Magazine, July-Aug. 2015, pp. 26-27.
[30] See Foundation for Individual Rights in Education, “President Obama: College Students Shouldn’t be ‘Coddled and Protected from Different Points of View,’” FIRE, Sep. 15, 2015.
[31] See, e.g., Ashley Alman, “Obama Calls For Balancing Free Speech With Respect For Religion,” Huffington Post, Feb. 5, 2015, http://www.huffingtonpost.com/2015/02/05/obama-religious-freedom_n_6622006.html.

By WILLIAM A. GALSTON
Dec. 30, 2014 6:57 p.m. ET

In this year-end holiday season, it is timely to reflect on American exceptionalism. Although this phrase is much abused in partisan polemics, it should not be discarded. The United States does continue to differ from most other developed democratic countries. And the heart of that difference is religion. The durability of American religious belief refutes the once-canonical thesis that modernization and secularization necessarily go hand in hand.

This is all the more remarkable because our Founders drafted a deliberately secular constitution. In 20 quietly revolutionary words, Article VI declares that “[N]o religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” Consistent with that prohibition, newly elected officials—from the president on down—may choose either to “swear” (that is, to take a religious oath) or simply to “affirm” their loyalty to the Constitution.

In 1789, this secular national constitution perched uneasily atop a Christian population residing in states the majority of which had established an official religion. These establishments have disappeared. But despite the enormous growth in the nation’s diversity over the past 225 years, Christian conviction remains pervasive.

If you doubt this, take a look at the survey the Pew Research Center released without much fanfare two weeks ago. Among its principal findings: 73% of U.S. adults believe that Jesus was born to a virgin; 81%, that the baby Jesus was laid in a manger; 75%, that wise men guided by a star brought gifts of gold, frankincense and myrrh; and 74%, that an angel announced the birth of Jesus to shepherds. Fully 65% of Americans believe all four of these elements of the Christmas story, while only 14% believe none of them.

Although Republicans are more likely to espouse these beliefs than are Democrats and Independents, each group endorses them by a two-thirds majority or more. As expected, conservatives are more likely to espouse them than are moderates and liberals. But here again, majorities of each group endorse each belief. Among liberals, 54% profess a belief in the virgin birth.

What about the growth of secular thought in young Americans? As the Pew report dryly notes, there “is little sign of a consistent generation gap on these questions.” That’s an understatement. Seventy percent of adults age 18 to 29 believe that Jesus was born to a virgin; 69% that an angel announced his birth; 80% that he was laid in a manger; and 74% that the wise men made their gift-laden trek.

To be sure, the most-educated Americans are less likely to profess belief in the Christmas story. But even among adults with postgraduate degrees, 53% affirm the virgin birth of Jesus, with comparable or larger majorities for the story’s other elements.

These public beliefs have constitutional consequences. When it comes to church and state, many Americans are soft rather than strict separationists. When asked whether religious symbols like Christian nativity scenes should be permitted on government property, 44% said yes, whether or not the symbols of other religions are present. An additional 28% said that Christian symbols would be acceptable only if accompanied by symbols of other faiths. Only 20% took the position that no religious symbols should be allowed.

Democrats should pay careful attention to these findings. In reaction to the excesses of the religious right in recent decades, many secularists and strict separationists took refuge in the Democratic Party. Their voices are important. But if the party takes its bearings only from their concerns, it risks serious misjudgment.

Many Americans believe that religion has a legitimate if limited role in public life—including politics. Many Americans believe that it is wrong—not always, but usually—for laws and regulations to coerce individuals contrary to their conscientious beliefs. As Democrats pursue new policies in areas from health care to equal rights, they should work hard to minimize their intrusion on these convictions.

This will not be easy. According to the Public Religion Research Institute 2014 American Values Survey, the country is split down the middle. Forty-six percent of Americans are more worried about “the government interfering with the ability of people to freely practice their religion” than they are about “religious groups trying to pass laws that force their beliefs on others,” while 46% of Americans feel the reverse. Each group offers strong arguments and poignant anecdotes. A political party that wants to build a durable majority should listen carefully to both sides and seek policies that acknowledge the legitimacy of their concerns.

In this era of hyperpolarized politics, we are tempted to believe that everything right is found in our preferred party—and everything wrong in the other. It would improve the content of our policies as well as the tone of our politics to recognize that many issues are not like that. The relationship between religion and public life would be a good place to start.

By MICHAEL I. MEYERSON Americans of all political stripes invoked the Declaration of Independence this Fourth of July week. Some read the document and found, as Harvard Prof. Alan Dershowitz has, that it "rejected Christianity, along with other organized religions, as a basis for governance." Others saw the same language proving the opposite, that our nation was founded on "Judeo- Christian values." Such definitive statements do not tell the full story. The American Framers, in their desire to unite a nation, were theologically bilingual—not only in the Declaration of Independence but beyond.

That document was the work of many hands. As is well known, the first draft was written by Thomas Jefferson. That version began with a religious reference that largely remained in the final version, stating that the United States were assuming the independent status, "to which the laws of nature and of nature's god entitle them."

The phrase "Nature's God" is not a product of traditional religious denominations, but is generally associated with 18th-century Deism. That philosophy centered on what has been called "natural theology," a belief that while a "Creator" started the universe and established the laws of nature, the modern world saw no divine intervention or miracles.

The most famous religious phrase in the Declaration—that people are "endowed by their Creator with certain inalienable rights"—was not included in Jefferson's original draft. He had written that people derive inherent rights form their "equal Creation." The iconic language was added by a small committee, including Benjamin Franklin and John Adams.

"Creator" was a theologically ambiguous word. Most Deists used it, but it was also commonly spoken by the most orthodox religions of the day. Timothy Dwight, a Congregational minister who served as president of Yale College from 1795-1817, delivered a sermon stating that the Bible contained "as full a proof, that Christ is the Creator, as that . . . the Creator is God."

Often overlooked in discussing the Declaration of Independence are two more religious references, both added to its closing paragraph by other delegates in the Continental Congress. The delegates described themselves as "appealing to the Supreme Judge of the world for the rectitude of our intentions," and they affirmed their "firm reliance on the protection of divine Providence."

These phrases were widely regarded as being far more traditionally religious than the earlier language. Ashbel Green, a Presbyterian minister and Jefferson critic who served as chaplain of the House of Representatives in the 1790s, cited these sections to assert that had they not been added, Jefferson would have permitted the American call for independence to be "made without any recognition of the superintending and all disposing providence of God."

But even after the congressional editing, the language of the Declaration wasn't limited to a particular faith. Deliberately designed to be as inclusive as possible, it was a quintessentially American achievement—specific enough to be embraceable by those with orthodox religious views but broad enough to permit each American to feel fully included and equally respected.

George Washington maintained this adroit balance when he became president. In his first inaugural address, written with the assistance of James Madison, Washington declared that it would be "peculiarly improper to omit in this first official Act, my fervent supplications to that Almighty Being who rules over the Universe."

Even Jefferson and Madison, often described as believing in a total separation of religion and government, continued the practice of using inclusive religious language. Jefferson urged in his first inaugural, "May that infinite power, which rules the destinies of the universe, lead our councils to what is best," while Madison stated that, "my confidence will under every difficulty be best placed . . . in the guardianship and guidance of that Almighty Being whose power regulates the destiny of nations."

The Framers didn't see such nondenominational language as divisive. They believed it was possible—in fact desirable—to have a public expression of religion that is devout, as long as it recognizes and affirms the variety of belief systems that exist in our pluralistic nation.

Mr. Meyerson, a professor of law at the University of Baltimore School of Law, is author of "Endowed by Our Creator: The Birth of Religious Freedom in America," recently published by Yale University Press.

By DAVID GELERNTER Presidential elections are America's season for serious chats around the national dinner table. The sick economy, health care and the scope of government are the main issues. But another is even more important. Who are we? What is the United States? Recently Gov. Mitt Romney urged us to return to "the principles that made America, America." But too many of us don't know what those are, or think they can't work.

Yes, Americanism evolves, and by all means let's change our minds when we ought to. We should always be marching toward the American ideals of freedom, equality and democracy, as we did when we ended slavery, granted women the right to vote, and finally buried Jim Crow. But if we forget our basic ideals or shrug them off, as we are doing today, we no longer deserve to be great. Without our history and culture, we have no identity.

Almost no one believes that our public schools are doing a passable job of teaching American and Western civilization. Modern humanities education starts from the bizarre premise that students must be cured of the Europe-centered, misogynist, bigoted ideas of the past. Many American children have never heard a good word for the United States, the West, Judaism or Christianity their whole lives.

Who are we? Dawdling time is over. We have failed a whole generation of children. As of fall 2012, let all public schools be charter schools, competing for each tax dollar and student with every other school in the country. Of course this is a local issue—but a president's or would-be president's job is to lead. There are wonderful teachers, principals and schools out there, and a new public-school system based on the American ideal of achievement will know how to value them.

No principle is more American than equality. Every generation has strained closer to the ideal. We have seen the near eradication of race prejudice in a mere two generations—an astounding achievement. We are a nation of equal citizens, not of races or privileged cliques. Affirmative action has always been a misfit in this country. A system that elevates individuals because of the color of their skin, their race or their sex has no place in America.

Yet a boy born yesterday is destined to atone (if he happens to be the wrong color) for prejudice against black women 50 years ago. Modern America is a world where a future Supreme Court justice, Sonia Sotomayor, can say publicly in 2001, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [on the bench] than a white male who hasn't lived that life."

Once a justice has intuited, by dint of sheer racial brilliance, which party to a lawsuit is more simpatico and deserving, what then? Invite him to lunch? Friend him on Facebook? This is not justice as America knows it.

Next Independence Day let's celebrate the long-overdue end of affirmative action, and our triumphant return to the American ideal of equality.

Modern American culture is in the hands of intellectuals—unfortunates born with high IQ and low common sense. Witness ObamaCare, a health-care policy, now somehow deemed constitutional, that forces millions of Americans to buy something they don't want.

Bilingualism was the intellectuals' response to one of the best breaks America ever got, a common language to unite its uncommon people. Resolved: The federal government will henceforth conduct its business and publish its statements in English, period. There is plenty of room in this country for new immigrants of all races and religions who want to learn America's culture and be part of this people; none for those who dislike all things American except dollars. Resolved: The federal government will henceforth enforce its own immigration laws.

America's creed is blessedly simple. Freedom, equality, democracy and America as the promised land, the new Jerusalem. What Thomas Jefferson had in mind when he invoked "the favor of that Being in whose hands we are, who led our fathers, as Israel of old, from their native land and planted them in a country flowing with all the necessaries and comforts of life."

President Obama rejects this creed. He doesn't buy the city-on-a-hill stuff. He sees particular nations as a blur; only the global community is big enough for him. He is at home on the exalted level of whole races and peoples and the vast, paternal power of central governments.

The president has revealed no sense of America's mission to move constantly forward "with malice toward none, with charity for all, with firmness in the right, as God gives us to see the right." Lincoln's sublime biblical English uses the parallel stanzas of ancient Hebrew poetry. That is who we are: a biblical republic, striving to live up to its creed. The dominion of ignorance will pass away like smoke and we will know and be ourselves again the moment we choose to be. Why not now?

Mr. Gelernter, a professor of computer science at Yale, is the author of "America-Lite," out on July 4 by Encounter Books.

A version of this article appeared July 2, 2012, on page A11 in the U.S. edition of The Wall Street Journal, with the headline: What Is the American Creed?.

• OPINION: HOUSES OF WORSHIP
• APRIL 14, 2010

A Shining Target on a Hill That Nobody Tries to Hill

• 
  

By EUGENE KONTOROVICH The First Amendment prohibits any "law respecting an establishment of religion," and in recent years the Supreme Court's Establishment Clause cases have focused on religiously themed public displays. Yet the court has failed to develop clear rules for deciding such cases, ensuring further litigation. There is something picayune about these disputes, over courthouse Ten Commandments displays or school-yard crèches. In this term's Establishment Clause case, Salazar v. Bruno, for instance, the justices will soon decide whether an eight-foot cruciform war memorial in a park in the Mojave Desert violates the Constitution.

All the while, the court has never come to grips with the existence of a literal established church on a hill just across town—the National Cathedral. Although the Cathedral helps put issues like those in Salazar in proper perspective, it seems the court can't see the Cathedral for the crosses.

The Cathedral's parent body, the Protestant Episcopal Cathedral Foundation, was "constituted" by an act of Congress in 1893, and the cornerstone was laid in the presence of President Theodore Roosevelt in 1907. The charter Congress issued on the Feast of the Epiphany called on the Foundation to "establish…within the District of Columbia a cathedral . . . for the promotion of religion" and other worthwhile causes.

No one has ever challenged the constitutionality of the Cathedral, and rightly not. The Establishment Clause, as understood for most of the nation's history, does not concern itself with such passive ceremonial nods to religion.

The Cathedral is a private entity. It stands on private land and no public money has ever been used for its construction, maintenance or for any other expenses. Congress has no say in its operations (although the first board of trustees, named in the charter, included the sitting vice president and chief justice). The Cathedral has no formal governmental role.

Yet the chartering had clear religious dimensions. The recognition of the Cathedral's special status has since been abundantly confirmed in practice, with it hosting the inauguration of four out of five of the latest presidents, as well as state funerals, memorial services and, under FDR, "annual national patriotic services." At the Cathedral's final dedication in 1990—private funds take a long time to raise—President George H. W. Bush called it "a house of prayer for the nation."

To be sure, the Cathedral's charter gives it no special prerogatives. Yet its generally undisputed status as the "national" cathedral is owed to the charter, and to its subsequent use for official ceremony. By contrast, when a Washington synagogue dubbed itself the "National Synagogue" several years ago, its claim was not accepted by others and it enjoys no particular distinction.

This setup—official recognition, private management and funding—was arrived at specifically because neither Congress nor the clerics of the time wanted an established church. As Bishop Henry Satterlee, the first head of the Cathedral, put it: "The Framers of the Constitution . . . held, from religious conviction, the necessity of the separation of Church and State. . .Unlike the Medieval Cathedrals of Europe. . .Washington Cathedral will stand on the firm foundation of a Free Church in a Free State—free from any entangling alliance with the government; free to declare the whole Word of God without fear or favor of any political party."

The Cathedral's presumptive constitutionality suggests some broader points about Establishment doctrine. When the Supreme Court attempts to reconcile its increasingly broad prohibition against Establishment with the ubiquity of religious symbolism in public life, it resorts to some dubious distinctions. When the court sustains a particular religious display, it says that the symbols in question do not "endorse" religion, or are denatured—essentially "secular." Yet the governmental use of religious symbols, from among all possible symbols, necessarily reflects a favorable view of faith. To call such displays secular either trivializes the faith of those for whom they are meaningful, or simply underscores that their spiritual message is widely subscribed to.

The existence of the Cathedral illustrates the weaknesses of these tests. "Religious and patriotic associations have [always] been intertwined," Satterlee wrote, and thus some public religious forum is needed to give full scope to peoples' national feeling. (Consider the national motto, or the Pledge of Allegiance.) The Cathedral's charter suggests Congress agreed. It would be hard to pass off a working cathedral as predominantly secular.

While the ACLU and other plaintiffs have scoured public spaces for religious symbols to challenge under the First Amendment, no suit has questioned the Cathedral's constitutionality. That in 120 years Americans of all and no creeds have not found it obnoxious is excellent evidence that it is not. In deciding Salazar, the court would do well to be aware of the full extent and rich history of governmental use of religious symbols, such as the Cathedral. A decision against the Mojave cross could have larger implications than the justices might desire.

Mr. Kontorovich is a professor at Northwestern University School of Law.