Painting The Church-State Line

Washington — The Anti-Defamation League and the Southern Baptist Convention may butt heads over where the line ultimately should be drawn on the separation of church and state, but representatives of both organizations say they agree on where the law now stands — and with more than two dozen other experts they have come together to help explain it to the rest of the country.

After nearly four years of work, the organizational representatives have issued a 32-page document titled “Religious Expression in American Public Life: A Joint Statement of Current Law.”

Written in a question-and-answer format and including extensive endnotes, the document explains the state of the law on religious expression, answering queries such as “Are individuals and groups permitted to use government property for religious activities and events?” “May employees express and exercise their faith within secular nongovernmental workplaces?” and “Does the First Amendment place restrictions on the political activities of religious organizations?”

(The short answers: Yes with restrictions, sometimes and no.)

Members of the 28-person drafting committee say they plan to distribute the document to state and local governments, civic and religious organizations, and other grass-roots groups. Having the document as a reference, the members say, can defuse many controversies over religious expression before they ever start.

“Frankly, a lot of the discussion of religion in public life in America when it hits the front pages or 24-hour cable shows is often presented in a hysterical mode that either a theocracy is being imposed” or that anyone expressing religious beliefs “is being run out of town on a rail,” said Nathan Diament, the Orthodox Union’s director of public policy and a member of the drafting committee.

The significance of the document is “showing that there really is a lot of common ground and common understanding” on these issues, said Diament, whose organization favors a lowering of the church-state wall on certain issues. “It has the potential to bring more sanity and civility to this area of the law.”

The document also has the backing of the Anti-Defamation League, which generally sides with those fighting to maintain a robust separation of church and state. It “shows that religious expression “is very much a welcome part of public life, but there are also lines we draw and shouldn’t cross,” said the ADL’s director of legal affairs, Steven Freeman, another member of the committee.

The drafting committee included religious scholars; representatives of strict separationist organizations such as the American Civil Liberties Union and People for the American Way; and leaders of a number of religious groups, including Jewish, Muslim, Sikh and Christian groups spanning the political spectrum — from the National Council of Churches on the left to the American Center for Law and Justice on the right. In addition to the ADL and the OU, the panel included representatives from the Reform movement, the American Jewish Committee and the American Jewish Congress.

The drafters stressed that the document outlines the consensus on how the U.S. Supreme Court has defined current law, not the law as various groups would like to see it.

“There are things in the document that we’re not necessarily pleased by, but they’re current law,” Freeman said.

“Sometimes the state of the law is not what we would like it to be, but we agree on what the current state of the law is,” said drafter Richard Land, president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention, which favors a more prominent role for religion in American public life.

Land quipped that if the report dealt only with the areas on which the groups agreed what they would like the law to be, “it would be a much shorter document.”

Drafter Marc Stern, acting co-executive director of the American Jewish Congress, noted, for instance, a disagreement among committee members about whether the Internal Revenue Service restrictions on the political activities of nonprofit organizations is constitutional — but they can agree that those are the rules it has laid out.

And while there was disagreement on how much a supervisor can say about religion in the workplace to his employees, the members could agree on general principles.

The wide breadth of drafters should give the document credibility with both the left and the right, participants said.

“The drafters are as important as the draft itself,” said Melissa Rogers, director of the Wake Forest University Divinity School’s Center for Religion and Public Affairs.

Rogers led the effort after suggesting the idea at a Freedom Forum conference on religious issues in late 2005.

The document was modeled after a similar effort to clarify permissible religious expression in the schools that some of the same experts worked on in the mid-1990s. It was distributed by the U.S. Department of Education.

The committee never met formally in the same room, but exchanged drafts via e-mail over the past four years in a process that members described as cooperative despite the differences in opinions on the issues.

The committee did not have the time to confront every controversial religious question — the hot topic of federal funding for religious groups is not included, and such heated controversies as same-sex marriage and abortion are not addressed. And some sections of the document may not be entirely clear because the Supreme Court has not been clear, such as its muddled decisions on public display of the Ten Commandments.

But, Stern said, having a resource available that offers an informed view on the issues should help to cool the slogans and epithets that often are part of the debate on religious issues.

“The impact is not necessarily in a visible way,” he said, but “in the fact that they show people what they’re fighting about may not be worth fighting about” and “a lot of times what seems like a controversy goes away.”