On issues of church and state, Americans appear conflicted.

In polls, a strong and consistent majority say the U.S. Constitution requires a separation between the two. Yet when presented with specific scenarios, survey respondents often side with religion. They want religious symbols in public buildings and prayers at public school events.

Two law professors took up the issue at a recent forum at UW Law School sponsored by the Federalist Society, a student group of conservatives and libertarians. Specifically, the forum tackled the meaning of the Establishment Clause. That’s the initial 10 words of the First Amendment: “Congress shall make no law respecting an establishment of religion.”

Although the event was billed as a debate, the participants, UW-Madison law professor Ann Althouse and University of South Dakota law professor Patrick Garry, were collegial and agreed on the big stuff. They both advocate limited government, and neither wants government and religion directly connected.

They differed, however, on how they think the courts are doing in refereeing disputes involving church and state.

Garry offered the more negative critique, arguing there’s been an “over-application” by courts of the Establishment Clause, which has led to stripping the public sphere of most things religious. The problem dates back to the 1800s, he said, when courts became overly influenced by Thomas Jefferson’s reference in a letter that the Establishment Clause “builds a wall of separation between church and state.” Garry does not think the metaphor is apt.

The Establishment Clause’s great aim was to prevent a state religion, Garry said. Instead, the clause “is being used to confront any momentary interaction between government and religion,” and courts have become bogged down in minutia over such things as public Christmas tree displays, he said.

Does the offering of a prayer at a public school graduation ceremony really constitute government coercion, Garry asked, or are we just talking about the kind of mild, social discomfort people occasionally should be able to endure when they encounter views other than their own?

“If (religion) drifts into the public arena because of the activities of private individuals, I don’t think governments need to say, ‘Wait a minute. That’s crossing the line. We need to keep it separate,’” he said.

He thinks the courts need to come up with a clearer, more consistent interpretation of the Establishment Clause, if only to reduce all of the First Amendment cases clogging the system.

Althouse agreed that court doctrine involving the Establishment Clause has been “messy and confusing” over time, but she finds a certain comfort in that, she said. Essentially, the court system has done a pretty good job with a very difficult task by rejecting extreme positions and seeking a pragmatic middle ground case by case, even if that means less overall clarity, she said. Proof that the Establishment Clause is working can be seen in the kinds of disputes, she said.

“We’re fighting over things like whether a city can display a creche in a commercial district or whether there can be a voluntary prayer at a football game,” she said. “We’re not fighting over major controversies, we’re not coercing people, we’re not having an established religion. We’re fighting around the edges, and we’re doing it with a court that’s trying to be moderate so that some little efforts at including God, like saying ‘under God’ in the Pledge of Allegiance, are permitted.”

She concluded her remarks by forcefully arguing against such things as prayers at public school graduations.

“Sing ‘The Star-Spangled Banner’ or do something else to make it a grand occasion,” she said. “Don’t appropriate religion for that purpose. Keep religion separate and special and have the sphere of government be religion-free so that everyone feels equally included. I think that is the American tradition.”

You can reach reporter Doug Erickson at derickson@madison.com or 608-252-6149.

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