The Difference Between What Is and What Should Be: What the Joint Statement on Religious Expression in American Public Life Gets Wrong


Mar. 03, 2010

Last week, I had the opportunity to discuss the publication Religious Expression in American Public Life: A Joint Statement of Current Law with the leader of the group that drafted the 32-page statement, Melissa Rogers. The statement, which was released on January 12, brought together a number of leaders from religious and civil liberties organizations to provide a consensus on the complex legal issues relating to the separation of church and state and freedom of religion.

Achieving a consensus among a large group of attorneys that represent a diverse array of organizations was a daunting task. Or was it? It achieved the consensus without the participation of representatives from secular organizations, such as the American Humanist Association, American Atheists, Center For Inquiry and the Freedom From Religion Foundation.

I accept Melissa Roger's explanation for the non-invitation. Ms. Rogers, the director of Wake Forest University School of Divinity's Center for Religion and Public Affairs, which produced the document, said that she wasn't networked into nontheist groups. And the good news is that after an hour and a half lunch with Wendy Kaminer and myself, Melissa is now networked into the secular community.

But my concerns about the Joint Statement remain.

The purpose of the Joint Statement, which will be sent to schools and government agencies, is "to provide a summary of how the law currently answers some basic questions regarding religious expression and practice in public life." There's a caveat–the "document describes what is legally permissible, not necessarily what is desirable."

Quite frankly, there are many established laws and court decisions that are not consistent with the principles of separation or church and state or religious neutrality, the legal principle that government may not favor one religion over another or religion, or religion over nonreligion.

Let me give a couple of examples. First, the current law permits a lot of ceremonial deism and religious acknowledgements that members of the secular community find offensive. Examples include the Pledge of Allegiance, which includes the phrase "under God;" coins and currency bearing the words "In God We Trust;" city council meetings with invocations praying "in Jesus' name;" and passers-by being accosted by Christian crosses and Ten Commandment monuments on public property. While these practices may seem inconsequential to some, such endorsements of religion at any level of government will not end until we end religious practices in Congress, the White House, and that temple of American justice, the Supreme Court of the United States.

And here's another example. The Joint Statement answered a question about whether public schools may teach about religion this way: "School officials may teach about religion if they are neutral in their treatment of faith, neither promoting nor denigrating religion. … [S]uch teaching should be fair, objective and based on sound scholarship …" The problem with this answer is "teaching about religion" in the public schools has become a code word for teaching the Bible as "the word of God."  So while the Joint Statement's answer is legally correct, many school administrators will read the Joint Statement as a green light for teaching the Bible in an indoctrinating manner.

Thus, being an accurate statement of current law is not good enough. What is really needed is for government officials to be faithful to the Constitution and the principles of separation of church and state and religious neutrality embodied in the First Amendment. These principles serve as my legal compass and guide me as legal coordinator for the Appignani Humanist Legal Center.


Bob Ritter is the legal coordinator of the Appignani Humanist Legal Center, the legal arm of the American Humanist Association.