Chipping Away at the Wall

by DAHLIA LITHWICK

Nearly 80 years ago in Dayton, Tenn., an epic trial pitted the literal truth of the Bible against modern science. And when the Scopes monkey trial concluded, the presiding judge closed the proceedings as he'd opened them each day - with a prayer.

In his wonderful book, "Summer for the Gods," Edward J. Larson paints a picture of America in the mid-1920's that's oddly familiar: torn between modernism and religious fundamentalism, Americans felt an old-time burning need for a burning bush. Horrified by the moral and cultural declines of the Jazz Age, they turned away from internationalism and intellectualism.

Welcome to 2004 and "Summer for the Gods Part 2: Revenge of the Public Officials." In a new wave of religious fervor, we resent that secular courts have chased God out of the public square. Again we want public institutions to carry water for our churches. And again, public officials happily flout the law to advance personal religious agendas. Consider:

In Horry County, N.C., last week, local officials opened their council meeting with a prayer to Jesus, despite the fact that the United States Court of Appeals for the Fourth Circuit had ruled the practice unconstitutional. "This is a nation that gives us great freedoms: freedom of religion, not freedom from religion," said the council chairwoman.

A Republican congressman called for a civil rights investigation last week, after the University of North Carolina at Chapel Hill declined to recognize a Christian fraternity for refusing to accept non-Christian members. Every other student group on campus is held to the university's nondiscrimination policy. The basis of the complaint: Such policies discriminate against Christians' right to religious freedom and association.

During the recent confirmation hearing of a federal judge, J. Leon Holmes, several senators - concerned by his religious writings - questioned whether his extreme views would prevent him from applying existing civil rights and abortion law. Holmes's supporters countered that the Senate is anti-Christian, that federal judges cannot constitutionally be subject to "litmus tests."

The Defense Department confirmed last week that a senior military intelligence official violated internal rules by giving speeches, mostly at Baptist or Pentecostal churches, in which he said that America is a "Christian nation," depicted President Bush as having been anointed by God, and described the war on terror as a battle against "Satan."

Add these incidents to the national furor over the amputation of "God" from the Pledge of Allegiance, and the president's decision to hobble stem cell research for religious reasons, and it's clear there is a growing wave of public officials convinced that their own, personal religious freedom renders the notion of a wall between church and state personally offensive and legally irrelevant.

The twin religious protections enshrined in the First Amendment - that one can freely exercise one's religion, and that the government cannot establish a state religion - are forced onto a collision course when public officials insist their personal religious freedom allows them to promote sectarian views in office. Yet with ever-increasing shrillness, we hear from elected or appointed officials that it's religious persecution to ask them to suspend sectarian prayer or practices on the bench, in the legislature or at the schoolhouse gate.

To be sure, the courts have made a hash of the First Amendment religion jurisprudence. A crèche on government property is constitutional so long as the manger includes a Malibu Barbie; and state aid to religious schools is constitutional if it's triangulated through the alchemy of parental choice. But the courts have not backed down from the principle that imposing sectarian religion in the public square violates the Constitution. Religious Americans have every right to insist they shouldn't have to be religious in the closet. But that doesn't give public officials some free-floating constitutional right to exercise their religion at the expense of everyone they ostensibly serve.

At the end of the monkey trial, H. L. Mencken wrote that Tennessee had seen "its courts converted into camp meetings and its Bill of Rights made a mock of by its sworn officers of the law." We are there again. Maybe the judge and the jury were right to convict Mr. Scopes for teaching something so absurd as Darwinism. We haven't evolved one bit.

Dahlia Lithwick, is a senior editor at Slate.