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The First Amendment: Collision of Two Freedoms?

By Tamika Thompson

Melissa Rogers

Journalists should not feel guilty about struggling with religious issues that even the Supreme Court finds difficult, said Melissa Rogers, Visiting Professor of Religion and Public Policy at Wake Forest University Divinity School.

But they do need to work to cover religious issues with the same persistence and depth of knowledge as any other area, she said.

Rogers, who is also a Founding Executive Director of the Pew Forum on Religion and Public Life, said the First Amendment is “not the only game in town,” and that looking at the other sources of church-state law will help journalists come up with important stories.

Rogers suggested that journalists look to federal statutes such as Title VII of the 1964 Civil Rights Act, which contain some prohibitions on religious discrimination in the workplace.

She also encouraged journalists to look at federal regulations which are particularly significant when covering President Bush’s faith-based initiative.  “He has made a wealth of changes to regulations,” Rogers said.  “He hasn’t been able to pass statutes through the Congress, but they have been able to change a lot of regulations in the agencies to change the way church and state relate to one another.”

State constitutional provisions are also important for journalists to consider when covering religious issues such as the school voucher debate, Rogers said.  One flashpoint to consider in the voucher debate involves state constitutional limits on government aid to religious elementary and secondary schools.

Studying state laws, such as a state’s Religious Freedom Restoration Act, can also lead to important stories, she said.

Over the next few years, Rogers said, journalists should keep an eye on several key religious issues including a statutory issue related to the Internal Revenue Code, which restricts religious organizations from participating in partisan politics.  This is particularly important with regard to elections, Rogers said.

Another important issue is the equal access concept “which the court has embraced,” Rogers said.  This concept allows student religious clubs at state universities to use school facilities to meet for prayer and religious activities, Rogers said. 

While the court extended the equal access concept to secondary schools and to community religious clubs that can meet after school hours, Rogers said that a new hot topic has emerged from that extension. 

“When a school sends home… flyers for the Red Cross and the Shakespeare Theatre, do they also have to include flyers for religious clubs that meet on school facilities or elsewhere?” Rogers asked, adding that the courts general answer to that question is “yes.”

Other areas that Rogers suggested journalists probe are:

1. Religious displays in public places such as state mottos and seals or prayer at city council meetings and school board meetings;
2. Religion in the workplace;
3. Religious autonomy from government for religious organizations;
4. Federal judicial and executive appointments; and
5. Conscience clause issues which include religious hospitals that don’t want to provide abortions or abortion referrals.

Next, when covering the appointment of the next Supreme Court justice, journalists should give church-state issues the same prominence in stories as abortion issues, Rogers said. Journalists should not assume that church-state issues are a battle between the “godless” and the “god-fearing,” nor should they assume that a government ban is a manifestation of hostility toward religion, Rogers said.

Rogers encouraged journalists to use terminology that accurately describes the issues and beware of frequently used language that is not specific enough, such as “public” and “private,” which many journalists assume translates to governmental and non-governmental.

Journalists have a tendency to see only two positions in the area of church-state issues and push all sources and spokespersons into the two camps, said Stephen V. Monsma, Research Fellow at the Henry Institute for Study of Religion and Politics at Calvin College.

“It’s a disservice to democratic discourse,” said Monsma, who is a former Blanche E. Seaver Chair in Social Science and Professor of Political Science at Pepperdine University. 

Moving away from journalists’ tendency to polarize the debate into a “strict wall-of-separation” vs. “government support for religion” framework, Monsma offered three approaches to the church-state debate:

1. Nonpreferentialism and “Christian Nation”, which holds that “government may recognize, accommodate and assist religion, as long as it does not single out any particular religion,” Monsma said.  The “Christian Nation” approach says that government may not “single out any particular Christian creed” unless it is part of the nation’s tradition or heritage. 

   A person who subscribes to the Christian Nation philosophy would probably agree with school vouchers “as long as they go to all religious schools equally,” school prayer as long as one denomination or religion is not favored, the “under God” language in the Pledge of Allegiance because it “is part of our nation’s heritage” and the Ten Commandments in public places because “it is part of our religious tradition,” Monsma said.

2. Strict separation, which does not allow “government financial assistance to houses of worship, clergy, or to faith-based schools or social service programs unless all religious elements are removed,” Monsma said. 

   The strict separation approach does not allow recognition of religion in “public action” or the enactment in public policy of “religiously rooted beliefs,” Monsma said.  Strict separationists would not agree with the Ten Commandments in public places, school prayer, or school vouchers because “some go to religious schools and this is government supporting religion,” Monsma said.

3. Neutrality or equal treatment, an oft-neglected school of thought that believes that government can recognize, assist or fund “religious organizations and activities, if it is recognizing, assisting, or funding similar or parallel secular organizations,” Monsma said.
   
   Adherents to this approach would agree with school vouchers “as long as parents can freely select among public secular, private secular and private religious schools,” government funding of faith-based organization, and the “under God” language in the Ten Commandments, “as long as participation is not required and is interpreted as a statement of fact and not as a petition to a Divine being,” Monsma said.  While the equal treatment approach does not allow school prayer that is “spoken and led by the teacher,” it does allow a moment of silence or reflection, Monsma said.

   “Neutrality is a legitimate player out there,” Monsma said, adding that there are advantages to the neutrality or equal treatment approach.  “Government neither encourages nor discourages ... persons’ choices for or against religion or any particular religious faith,” Monsma said.