Instead of separation, how about fair play?

Martha C. Nussbaum

is Ernst Freund Distinguished Service Professor of Law and Ethics at the University of Chicago

In the current presidential campaign, we hear a great deal about the place of religion in the public square. On one side are Christians who would like a public affirmation that our nation is essentially Christian. (Mike Huckabee takes that position; Mitt Romney modifies it to include the other monotheistic religions.) On the other side are people who champion "separation of church and state." Both sides seem to have forgotten values at the heart of the idea of nonestablishment in our nation's history: values of equal respect and equal standing in the political community. Maybe a focus on these values can help us find common ground.

We hear a great deal of what I'd call "the language of separation" - sturdy insistence on keeping church and state apart. I'd argue such language is not always helpful and can leave millions of people feeling devalued. I favor, instead, the language of equal respect and fair play. Not only can it clarify why we do not "establish" religion(s) in this country; it can also help explain why some public displays of religion are compatible with our democracy's basic values, and others are not.

The American colonists loved liberty of conscience. But they also understood that liberty had to be granted on equal terms to all, if we were to have a democracy based on the idea that all human beings have equal worth. As James Madison observed in "Memorial and Remonstrance Against Religious Assessments" (1785), "All men are to be considered as entering into society on equal conditions."

He then argued that taxing people for the support of an established church violates that equality, setting up - in effect, an in-group and an out-group. The Virginia tax Madison disliked was very benign: Non-Anglicans could divert their payments to a church of their choice, and Quakers and Mennonites did not have to pay at all. Nonetheless, Madison felt that the bare public statement that the colony was "officially" Anglican was a violation of citizens' equality. Madison's view won out: The remaining state establishments of religion were voted out in the early 19th century.

Madison and others understood that citizens in a democracy are often asked to pay taxes for enterprises they may not support. The state takes definite stands on matters such as war, peace and economic policy. People who don't like paying tax for such programs can use the democratic process to elect people whose views are more agreeable to them.

Madison saw, however, that religion is different: It touches on people's most intimate search for the meaning of life, something that affects their very self-definition and sense of worth. If a state asks people to pay to support a particular church, or even declares that a particular church is the one that "defines us as a nation," that

very statement

creates two tiers of citizens, making the rights of the minority hostage to the good will of the majority.

Christians feel an understandable desire to declare their faith in public, through public displays, monuments and ceremonies. As mentioned, they feel marginalized by the insistent emphasis on "separation" of church and state. It suggests to them (not without reason) that religion is peripheral rather than central.

So let us use the language of "equal respect" and "fair play" - it avoids the coldness of "separation" and can help determine why some public displays of religion are more compatible with our democracy's values than others.

Consider a 1989 U.S. Supreme Court case that made these difficult issues clearer.

The Allegheny County Courthouse stands on public property in downtown Pittsburgh. In the late 1980s, the county set up two holiday-season displays. The first, inside the courthouse, consisted of a Nativity scene, donated by a local Roman Catholic organization, and labeled to that effect. Placed on the grand staircase of the courthouse, with no other displays around it, the Nativity scene bore a sign - carried by an angel above the manger - saying "Gloria in Excelsis Deo" ["Glory to God in the highest"].

The second display, on the courthouse lawn, consisted of a Hanukkah menorah 18 feet tall, standing next to the city's 45-foot Christmas tree. At the foot was a message from the mayor saying that the display was a "salute to liberty." (In fact, the menorah is a symbol of liberty, since Hanukkah commemorates the Maccabees' courageous rebellion against political oppression. It is difficult to say whether a Christmas tree represents liberty, but it is such an all-purpose symbol that the mayor can probably declare this without implausibility.) Local residents took both displays to the Supreme Court, alleging that they violated the Establishment Clause.

In this difficult case, a split court judged that the first display violated the Establishment Clause and the second did not.

The crucial question the court asked was whether each display communicated a message that the county was

endorsing

a particular set of religious beliefs and practices, thus threatening equality. The first display seemed to the majority to communicate such an endorsement: The Christian display stood alone, in a position of special prominence and honor. The second display was different: More than one religion was honored, and the theme connecting the tree with the menorah was that of liberty, a theme that could include all citizens, whatever their religion or nonreligion.

These differences meant to at least the court's center that the people of Pittsburgh would not be likely "to perceive the combined display of the tree, the sign, and the menorah as an 'endorsement' or 'disapproval . . . of their individual religious choices.' "

A difficult case, a controversial decision - yet we can agree about the immense importance of the principle involved. Some religious symbols, set up by government, do threaten the equal standing of citizens in the public realm. They attach the imprimatur of orthodoxy to Christian observance, while demoting the beliefs and practices of others.

According to the Madisonian "endorsement test" - formulated, above all, by former U.S. Supreme Court Justice Sandra Day O'Connor - the right question is: Would an objective observer, acquainted with all the historical and contextual facts, view the policy in question as one that makes a public statement of endorsement or disapproval, sending a message of inequality?

Almost nobody supports a complete church-state separation - which, in modern terms, would mean denying churches the aid of the public sewer system, the fire department, and the police. Nobody would support such policies: They would be unfair and put the lives of religious people unequally at risk.

The question we should ask is: What types and degrees of separation are required by our guiding ideals? We can answer it only by focusing on our deeper ideals, in particular equality, and equal liberty.

The term refers to the first 10 words of the First Amendment to the U.S. Constitution: "Congress shall make no law respecting an establishment of religion . . ."