Let us pray? - the link between excessive church-state prohibitions and the US's increasing problems - On The Right

National Review, Oct 10, 1994 by William F. Buckley, Jr.

Alan Dershowitz was one of four advocates of a rigid wall between church and state at the New York University Law School on the same day Dan Quayle spoke at San Francisco's Commonwealth Club about the continued deterioration in American life. One would not have thought the two men were speaking about the same country. Dershowitz - better known as a defense attorney who specializes in impossible clients CO. J. Simpson is his most recent@ than as a professor of constitutional law at Harvard - was specifically defending the lengths to which the Supreme Court has gone since 1947 in erecting a wall between church and state. He said that the adamant division forced by the Court beginning in the Fifties has given us a glorious modus vivendi. The Court ruled back then that no state funds could be used by religious institutions and, most recently, that the rabbi in Rhode Island who pronounced a benediction on the graduating class was engaged in unconstitutional activity. If you haven't read the very latest version of the crime bill, you will need to speculate whether if he prays three times over the students, he will go to jail for life.

It is an expression of the tightness of the division even among sitting members of the Court that many of their rulings on the church/state question come in at @ to 4. If the rules of a jury trial were to apply, any such division would mean: Mistrial. But for the Supreme Court 5 to 4 is the equivalent of 9 to 0.

Church/state is a complicated question having to do with the paradoxes of freedom. If the guarantee by the First Amendment against Congress's making laws respecting an establishment of religion or prohibiting the free exercise hereof translates into a prohibition against hanging the Ten Commandments in a public-school building, what would a commensurate construction on free speech mean? Presumably it would protect shouting "Fire!" in a theater. And what would happen when your refusal (Fifth Amendment) to testify runs into OJ's right to compel testimony Sixth Amendment? Or, for that matter, how do you square the Fourth Amendments guarantee against unreasonable search and seizure with the gentlefolk who, without a warrant, open your briefcase and handbag before you enter an airplane?

But all of the abstract paradoxes above are subject to prudential accommodations. What catches the attention is the satisfaction Professor Dershowitz exudes over how splendid have been the accomplishments of the Court. He speaks as though civil strife has been averted. It does not appear to have suggested itself to the separationists that there might be a connection between the exorcism of religion from public-school life, and the deterioration in family spotted by Dan Quayle and others.

Commenting on Mr. Quayle's speech the same night was William Bennett, former Education chief, drug czar, and professor (of philosophy). He spoke extraordinarily tough language on the MacNeil-Lehrer program. "We have become the kind of society that civilized countries used to send missionaries to." Mr. Bennett spoke about porn and incivility and violence and mayhem. It has become very bad very quickly, in the past 25 or 30 years - the undoing of a part of America."

Now everybody knows all about the causal fallacy. That the sun set after you ate dinner doesn't mean the sun set because you ate dinner. And that there has been a 300 percent increase in white illegitimacy since the termination of religion the public schools doesn't mean the Warren Court's decision brought in illegitimacy. But chronological sequences aren't necessarily unrelated. If you had a stomach ache after eating dinner it could be that you ate too much.

And those who believe that the status quo in the matter of the wall between church and state is a permanent DMZ should be advised that the American Civil Liberties Union never sleeps. Professor Dershowitz and his colleague Norman Dorsen, former head of the ACLU, acknowledged that they have other targets in mind. Churches should not get tax exemptions, chaplains should not be paid out of government funds, God should be removed from coinage and from the oath of allegiance. And anything else you can think of to make that wall higher and stauncher.

But hold on! It isn't that Professor Dershowitz is complacent about crime. He advises that if he had been on the scene he'd have arrested Abraham the moment he raised his sword against Isaac. Ah,, a commentator observed, "but then you would have defended Abraham, right@,,

Right," said Alan Dershowitz. He smiled. Everybody else laughed.