Trumping Religion: The New Christian Right, The Free Speech Clause, And The Courts by Steven P. Brown is an interesting short accout of a matter particularly important after an election in which moral values (and a government, including courts, that promote them) was an important focus. It focuses on the relatively recent movement (c. 1980) to use public policy, and the courts in particular, in a way familiar to liberal groups, but to generally promote quite different ends. [Dr. James Dobson, whose name has come up lately on the matter of moral values and the Republican victory, was a founding member of the Alliance Defense Fund, a key fundraising branch of this movement.] Finally, it discusses the importance of lower federal courts and strategies outside the courtroom.
They have had quite some success lately in the courts, largely by using the Free Speech Clause to protect religious activities (including school clubs, public displays, funding religious publications at colleges, and student led prayers). Though some of the votes were rather close, and sometimes they lost, many of their cases were nearly unanimous.
This suggests that not only is the movement a useful one to provide a full public debate, but their cause in particular is a worthy one. For instance, though allowing afterschool religious meetings on public school grounds right after regular classes ends for elementary students (upheld 6-3) seems to me a bit much, high school students should be allowed to have a religiously themed club if so desired. And, national legislation so dictates, along with various court decisions.
But, at some point we must remember that we are talking about religious activity here. A religious club or organization is not exactly the same as a secular one, and trying to say it is cheapens religion, and not only liberal atheists think so. The core point of being wary of mixing church and state is that it in some way harms religion, since in the long run only certain religious beliefs of our diverse nation are favored.
Our current policies do not tend to "establish" a certain religion per se, unless it is some vague watered down multicultural one that reflects "our" heritage by being somewhat more Judeo-Christian (emphasis on Christian) than not. All the same, it involves the state in areas it is better not being involved in. And, lest you forget, people like James Madison (strongly supported by the Baptists of the day) furthered such principles to protect religion.
So, yes, in some way the government can discriminate against religion by not supplying it with its largesse in many cases. The government has the right to promote many beliefs that an individual need not believe in, but not the right to promote a certain religion. The First Amendment singles out religion in this regard as do state constitutions as does the Fourteenth Amendment (to the degree it "incorporates" the First).
It is only by ignoring that "religion is different" that it suddenly becomes but another speech interest or equal protection category. This is not anti-God, but pro-religious freedom, and thus should be honored by the Christian Right and others. "Give unto Caesar what is Caesar's and unto God what is God's" should be a principle to their liking.
Such basic principles might be hard to put into practice in particular cases, but if "the wall between church and state" metaphor is of limited value without more, so is the idea that all the New Christian Right desire is for religion to be treated equally. For instance, a core concern behind the First Amendment is funding religious institutions to assist the the promotion of their faiths as compared to general secular benefits. So, let's put aside the overused "but do you want to deny them fire protection" line.
No, let's consider such things as using public funds toward scholarships for the education of ministers (state ban upheld) or college publications set up to spread the gospel (state ban struck down). Do those who want cry "discrimination" want their tithes to be spread around to all churches?
Or, how about the convoluted holiday display cases, that entangle church (sacred symbols) and state as long as the right amount of secular symbols are tossed in? If the symbols (like the religious speech discussed in the book) are only allowed because they are just one more cultural item among many, is this exactly a good thing? Does this benefit private religious belief?
Finally, we can note a matter soon to be back to the Supreme Court -- public display of the Ten Commandments. Putting aside the fact that there probably is some sort of contexts in which such a display is allowed, ignoring the sacred importance of the Decalogue as we try to argue that it is just another part of our history that should be honored is in some core way counterproductive to the ends of those defending it.
Words are not pebbles in alien juxtaposition; they have only a communal existence; and not only does the meaning of each interpenetrate the other, but all in their aggregate take their purport from the setting in which they are used, of which the relation between the speaker and the hearer is perhaps the most important part.
-- Learned Hand
The First Amendment's protections are interconnected -- the free speech and assembly rights of religious groups are surely a major concern, even if this might seem to be redundant given the protection of free exercise of religion. But, not only does the Establishment Clause color such protections, focusing on one part in isolation is liable to get you in trouble.
And, this is ultimately the core difficulty with the New Christian Right's Free Speech and religious equality arguments, even if they have been quite successful up to a point (this includes the appointments of the such advocates as Michael McConnell and William Pryor to federal appellate courts). This is not to say that other groups do not have similar difficulties (the NCR's success in part arose out of the other side underemphasizing certain protections over others), which also ironically quite arguably results in them burdening the values they are promoting.
[Realistically, the "wink and nod" quality of their strategy cannot be totally ignored. So, yes, to some extent, many of those involved do not really believe that religious speech etc. is exactly the same as secular materials. And, they do not care. Thus, to the degree a religious display promotes a certain doctrine (and many feel theism vs. a particular sect is "neutral" enough in such cases), the advocates aren't crying in their coffee.
Also, I have long been of the mind that religious freedom is a broad matter, thus such things as the abortion debate are ultimately religious questions. Thus, value conservatives at times tend to selectively favor state support of disputed moral/religious (often the same thing) questions. And, in the process, dishonor religious freedom. Again, this is not really my concern at this time.]
Hopefully, a proper balance will be reached, one that requires both sides to be present to put forth their own points of view. And, as noted by the book as well, sometimes even join forces. Ultimately, after all, quite often our agreements are fundamentally superior in scope to our debates. Strange as this might seem to some these days!