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Two hundred years later, Jefferson's church-state `wall' is still under siege

It was just 200 years ago tomorrow -- Jan. 16, 1786 -- that the State of Virginia adopted its Act for Establishing Religious Freedom. This document, written by Thomas Jefferson, was later used by James Madison to frame the so-called religious ``establishment clause'' of the First Amendment of the United States Constitution. Now, as constitutionalists celebrate the signing of the Virginia document, debate heats up as to just what the Founding Fathers intended by the establishment clause.

Indicative of the current argument is the rationale behind the majority and minority opinions of the Supreme Court of the United States in the Alabama school prayer case last year. The court struck down that state's ``moment of silence'' law by a 6-to-3 vote. The justices held that the law's specific objective was in conflict with the establishment clause's ban on state endorsement of religion.

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In dissent, Justice William Rehnquist argued that the drafters of the Constitution only intended to bar the creation of a national church, not to force government into a ``neutral'' position toward religion.

This theme has been taken up by President Reagan, Attorney General Edwin Meese, and other political and religious conservatives who hold that religion is a linchpin of American democracy and should not be excluded from the public sector. Consequently, this faction would allow prayer in public classrooms, public aid to parochial schools, and religious displays on municipal property, among other things.

It is further argued that the intent of the First Amendment was not to ``dis-establish'' religion. In recent years, the Supreme Court has philosophically adopted a so-called ``three-prong test'' which outlaws only that which would set up a state religion, favors one faith over another, or entangles the secular and religious sectors.

In recent cases, the court has allowed chaplains in state legislatures and public displays of Christmas imagery on the basis that they ``accommodate'' religion but do not entangle it with the state.

A key test of accommodation may be established in a matter now before the Supreme Court involving the right of student religious clubs to meet on public school campuses. First Amendment purists insist that neutrality toward religion necessarily bans any concessions to religion. But advocates of extracurricular religious clubs say that since such meetings do not favor one religion over another, they should be allowed. By banning them, an atmosphere hostile to religion is created and student rights are illegally curtailed, they add.

More important, another concept which would challenge the so-called Jeffersonian wall of separation between church and state is Attorney General Meese's questioning the doctrine of incorporation, which subjects the states to federal constitutional interpretations.

Under Mr. Meese's theory, states would be free to decide for themselves whether the decisions of federal courts on First Amendment issues, such as school prayer, apply to them.

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All this has rallied civil libertarians and other defenders of the separation of church and state to the First Amendment's establishment clause and to its precursor, Virginia's Act for Establishing Religious Freedom.

The former states that ``Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .''

The latter says ``no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief . . . but all men should be free to profess and by argument to maintain their opinions in matters of religion. . . .''

Some contemporary scholars call the Virginia statute one of the most important documents in American history. They point out that neither Jefferson nor Madison was anti-religious but both felt that entangling of church and state would be detrimental to both institutions.

``Justice'' columnist Curtis J. Sitomer writes frequently on church and state issues.

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