I hear so much about the "Wall of Separation" between church and state that I think the matter needs to be clarified. Not only the liberal side, but the conservative side have made some pretty outrageous statements on this matter (the liberals much more so).

First,t he basic history. The first amendment says nothing more than that congress shall make no law concerning the establishment of a national church. It applies only to congressional action. Presumably, when the fourteenth amendment extended constitutional protections to state laws, this applied to the state legislatures as well. This is one of only two constitutional mentions of religion, the other being the prohibition on religious tests for office. Other than these two statements, the Constitution has nothing to say about religion.

Those are facts upon which both sides can agree. So let us look at how both sides misapply those facts.

Logically, the conservative position, being mostly a response to the liberal position, should come second. However, as their errors are more easily summarized and dismissed, I shall deal with them first.

Mostly as a response to the liberals' very expansive view of what constitutes an "establishment", the conservatives have adopted an overly narrow reading of the first amendment, arguing that the establishment clause means only that, unless congress explicitly enacts a law establishing a state religion, then any act is permissible. Now, I am as much of a strict constructionist as you will find, but even I find this an overly narrow position, for two reasons.

First, even with a strict constructionist position, the wording of the Constitution still needs to be interpreted. For example, the first amendment only explicitly protects speech. Does that mean that the written word is afforded no protection? You do not need to go as far as the courts, allowing actions to constitute "speech", but you still have to agree that sometime staying to the literal wording only does nto capture even the original intent. Obviously speech was intended to include writing, and it is equally arguable that the establishment clause could have banned actions that were short of an explicit establishment of a "Church of the United States."

Second, just because a law does not explicitly violate the Constitution in its entirety, that does not make constitutional. For example, if the law did not establish a Church of the United States, but did found a sect which was not declared the official religion, I think the founders would have opposed that as a violation of the Constitution. On the other hand, banning a religion would not have been opposed on the grounds of the establishment clause, but likely on the grounds of the right to speech and assembly.

Since even strict construction positions still require interpretation and must allow that acts can be prohibited which do not constitute a full and explicit violation of the amendment, conservatives must admit that liberals are not wrong in asking whether acts could violate the establishment clause, even if they do not explicitly establish a religion. To say that a law must say "We establish the Church of the United States" in order to be unconstitutional is just absurd. I understand it as a reaction to liberal excesses, but it is still wrong. Not one of the founders would have seen the law as being as narrowly construed as the position of many conservatives today.

Having said that, let us now turn to the liberal position.

Well, first, to be fair, I suppose I should clarify that there are a number of liberal positions. As with any political movement, there are a range of views on the matter. However, for purposes of this essay, I will pick what is as close as I can come to the middle of the road liberal position, ignoring the more extreme positions. Obviously there are liberals who adopt a more hard line position, but their errors are essentially the same as the more moderate position, being more a matter of degree than being an entirely different position.

The liberal position is basically this, that any government action which can be seen as an endorsement of a specific faith can be viewed as an establishment of religion. And, on the face of it, this is not an untenable position. For example, were the state to exempt only Lutheran Churches from taxation or pay subsidies to the Baptists, I think even many conservatives would agree that those acts skirted dangerously close to establishment of a religion. Where the liberals go wrong is not so much in their basic tenet, but in the application.

What the liberals choose to see as favoritism is usually the subject that upsets conservatives. We are not talking about giving a single sect legal favors, instead we usually see the liberals attacking any display of religion at all. From court house monuments displaying the ten commandments to nativity scenes in town squares to prohibiting bible study groups on school property, the liberals have attacked those who show any religious feeling at all, rather than taking on efforts to prevent favoritism being shown to a single faith. And, while I think even conservatives would join in opposing tax breaks for Lutherans, I don't think anyone but a die hard liberal thinks allowing a private prayer in school will lead to the birth of a theocracy.

The problem is not so much with the liberal belief, as the application of that belief. I don't think anyone is advocating that the state should grant preference to a faith, or should enact legal rules favoring a single sect. The problem is that liberals take that to mean that the state cannot allow any religious display at all, and then goes even farther to prohibit religious displays by government workers, or even by private citizens on government property. It is this unwarranted expansion that tends to upset conservatives and lead to the excessively narrow reading of the first amendment I mentioned above.

So, what is the answer?

The easiest answer is not very likely in the foreseeable future. Most of these problems arise because the state has exceeded its original scope, and intruded into areas where it should not be. The founders did not address school prayer because they never thought the federal government would have anything to do with schools. If the state would get out of education, all such questions would end. Similarly, if there were no public parks, then there would be no question whether nativities could be in one. Private parks can be used however the owners wish. If the state stuck to its original mission of providing protection against force, theft and fraud, and providing civil courts, most of these questions would go away.

Of course, this is not going to happen any time soon, and even if it did there would still remain some question about pictures of Moses in court houses and such. So, in the interest of settling such questions, let us adopt a more modest solution.

Let us all agree that the state should not create a state religion, nor show favoritism to any specific faith or sect. On the other hand, decorative touches such a monuments, murals, and so on, do not constitute an establishment of faith. Should the legislature vote the funds for such, then putting them up does not establish a religion. There is simply no cause of action in court to remove such things. It is not a violation of any atheist's rights that a cross exists on public land, and my Jewish faith is not threatened because of it either.

Of course, the left will ask "So, what if we don't want our money paying for a cross? Don't we have any rights?" And I reply, of course! Every such decoration was put up by legislative vote. If you don't like the thought of public monuments with religious content, then go out and vote. Just stop trying to legislate through the courts.