Despite the gravity of the problem, I believe there is an answer. Put simply, it is this: offer greater latitude for religious speech and symbols in public debate, but also impose a stricter ban on state financing of religious institutions and activities. This approach, the mirror image of O'Connor's compromise, is drawn from the framers' vision and the historical experience of separating church and state in America. The framers might well have been mystified by courthouse statues depicting the Ten Commandments, but they would not have objected unless the monuments were built with public money. Having made a revolution over unfair taxation, they thought of government support in terms of dollars spent, not abstract symbols.
From this logic, it follows that a moment of silence to begin the school day should not be invalidated just because it is intended to let children pray if they wish. Though it will never be easy to determine when schoolchildren are being coerced by peer pressure, at least some older students at optional events like a Friday-night football game surely are not being forced to pray when others are doing so voluntarily. Intelligent-design theory, itself a product of the ill-advised demand that religion disguise itself in secular garb, should be opposed on the educational ground that it is poor science, not on the constitutional reasoning, which some secularists have advanced, that it is a cover for religious creationism. If its advocates can persuade a local school board to put it in the curriculum, the courts need not strike it down as an establishment of religion. On the other hand, charitable choice, which permits billions of dollars in federal money to support faith-based organizations, should not be a vehicle for allowing government to pay for programs that treat alcoholics by counseling them to accept Christ. Schools that teach that Shariah (or Jewish rabbinic law or canon law) is the ultimate source of values should not be supported by tuition vouchers.
Such a solution would both recognize religious values and respect the institutional separation of religion and government as an American value in its own right. This would mean abandoning the political argument that religion has no place in the public sphere while simultaneously insisting that government must go to great lengths to dissociate itself from supporting religious institutions. It would mean acknowledging a substantial difference between allowing religious symbols and speech in public places (so long as there is no public money involved) and spending resources to sustain religious entities like churches, mosques and temples. Public religious symbolism expressed in statues, oaths and prayers reflects citizens' desires to see their deeply held beliefs expressed in those public situations where moral commitments are relevant: legislatures, schools and, yes, courthouses and statehouses. Religious proclamations or prayers may open sessions of Congress without costing anyone a dime.
But government money, even when nominally available equally to all, inevitably creates political competition between religious groups over how and where scarce money will be spent. Zero-sum appropriations drive zero-sum politics. A tuition voucher is never priced out of thin air: its amount is set by a political process that favors some schools (for example, Catholic schools that already have infrastructures and support from a centralized church) at the expense of others.
In the courts, the arrangement that I'm proposing would entail abandoning the Lemon requirement that state action must have a secular purpose and secular effects, as well as O'Connor's idea that the state must not ''endorse'' religion. For these two tests, the courts should substitute the two guiding rules that historically lay at the core of our church-state experiment before legal secularism or values evangelicalism came on the scene: the state may neither coerce anyone in matters of religion nor expend its resources so as to support religious institutions and practices, whether generic or particular. These constitutional principles, reduced to their core, can be captured in a simple slogan: no coercion and no money. If no one is being coerced by the government, and if the government is not spending its money to build religious-themed monuments or support religious institutions and practices, the courts should hold that the Constitution is not violated.
Admittedly, this approach goes against the trends of the last several decades, which are for stricter regulation of public religious symbolism and more permissive authorization of government financing and support for religion. At first blush, then, the proposal may strike both sides of the current debate as mistaken, since it requires each to give up some victories in exchange for an alternative solution. Nonetheless this approach is not only faithful to our constitutional traditions; it also stands a chance of winning over secularists and evangelicals alike and beginning to close the rift between them.
