Why church and state should be separate

William and Mary Law Review, May, 2008 by Erwin Chemerinsky

A couple of years ago, I argued a case at the United States Supreme Court involving the constitutionality of the Ten Commandments monument that sits between the Texas State Capitol and the Texas Supreme Court. (1) The monument is six feet high and three feet wide, (2) and atop it in large letters and words it states, "I am the Lord, thy God." (3)

In the days before the argument at the Supreme Court, the case received a great deal of media attention. (4) Some of the reports mentioned that I was the attorney who would be arguing the case against the monument before the Court, (5) and as a result, I received a large amount of what can only be described as hate mail. (6) Some of it, in its viciousness, was shocking.

By itself, what this showed me was that there are some people who care very deeply about having religious symbols on government property. But there were also more subtle lessons to be learned. The State of Texas was arguing in front of the U.S. Supreme Court that it wanted the Ten Commandments monument to remain because of the historical importance of the Ten Commandments as a source of law. (7) I was easily and quickly convinced, however, that this was not at all the reason why the people who were sending me hate mail wanted the monument there. They wanted the Ten Commandments there because it was a religious message and a religious symbol. After all, it was not that long ago that the Chief Justice of the Alabama Supreme Court, Roy Moore, was removed from office because of a two and a half ton Ten Commandments display in the Alabama State Courthouse. (8) He defied a court order to keep the Ten Commandments there, (9) obviously not because he thought it was an important historical symbol. Rather, he wanted it there because it was a religious symbol, and it had come to be taken as a symbol of his religion. (10)

As a result of my experience in the Ten Commandments case, I was saddened but not surprised when I heard of the controversy surrounding President Gene Nichol's decision to remove the cross from the Wren Chapel at the College of William & Mary. (11) The people who had wanted to keep the Ten Commandments at the Texas State Capitol were, at least philosophically, the very same people who would want to keep the cross atop the altar in the chapel at William & Mary. Their goal was not to keep the cross because of some historical message, but rather because they believed that as a religious symbol, it should be on display. (12)

What underlies the debate, whether it is over the Ten Commandments at the Texas State Capitol grounds or the cross in the chapel at William & Mary, is the profound question of whether to have a secular government or whether to have a government that affiliates with and advances religion. The underlying issue is that stark. The reason that I agreed to handle the Ten Commandments case is that I believe deeply that our government should be secular. It should not be affiliated with any religion and it should not advance any religion. But I also know that those who are on the other side believe just as deeply that they want their government to be religious, not secular.

This Essay will discuss the role of religion in a public university. In order to do that effectively, I will begin by discussing more generally the appropriate role of religion in the government, and then, based upon those principles, I will address the role of religion in public universities.

This Essay is divided into three Parts. In Part I, I will discuss the competing visions of the First Amendment's Establishment Clause. Part II then suggests what I believe is the preferable vision: one that tries, to the greatest extent possible, to separate church and state. In this context, I will move to a discussion in Part III of the appropriate role of religion in a public university.

I. COMPETING VISIONS OF THE ESTABLISHMENT CLAUSE

The controversy over the cross in the chapel at William & Mary is obviously part of a larger constitutional and cultural debate. The provision of the Constitution at stake is found in the First Amendment. It says: "Congress shall make no law respecting an establishment of religion...." (13) In 1947, the United States Supreme Court held that although the provision refers to Congress, it applies equally to state and local governments. (14) There is an ongoing debate among the Justices and among constitutional scholars regarding the best understanding of the Establishment Clause. What I find interesting is that each of the Justices--and each of the scholars--can invoke quotes from Framers of the Constitution to support a particular conception of the clause. I think that Justice Robert Jackson got it right, albeit in another context, when he said, "Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh." (15) Research will reveal little more than competing quotations that each side cites to support its position.