James Madison noted indignantly in 1774 that several "well-meaning men" in his part of Virginia had been jailed because of their "religious sentiments." Thanks to the First Amendment, which Mr. Madison largely designed, no one could be so imprisoned now unless he were to act on the claim that his religion mandated, say, human sacrifice.
But the dissonance generated by religious differences -- particularly over the separation of church and state -- has become so resounding that God has appeared at more rallies in this year's presidential campaign than in any other during this century. The other side has invoked Mr. Madison and Mr. Jefferson.
Unless Armageddon comes, this fierce domestic dispute is going to continue. The Supreme Court keeps adding to the church-state cases before it this term, and more keep moving up from below. For instance, in what appears to be the first case of its kind, a special-education teacher's aide, Mary May, is suing the board of education and the superintendent of schools in Evansville, Ind., for prohibiting her and seven teachers from exercising their religious beliefs before classes begin at the Harper Elementary School.
Starting in 1981, Mary May and her co-believers had met voluntarily every Tuesday morning from 7:25 to 7:45 for prayer, Bible-reading, hymn-singing and conversations about religion. Students were not allowed to participate.
In September 1983 the principal of the school told Mary May and the seven teachers that the Tuesday sessions had to stop or they would be fired. They were violating the Establishment Clause of the First Amendment, which forbids the state to support or prefer a particular religious belief. And those 20-minute sessions were all about Christianity. "I wouldn't care if it was Buddhism or secular humanism, if you want to call that a religion," a representative of the school board told me. The practice of religion has no place on public property, especially public school property.
The teacher's aide and the seven teachers moved their weekly devotions to the school parking lot. They were rousted from that space, too, because the parking lot is also school property.
Mary May claims before the U.S. District Court in Evansville that it is the school board that has abused the First Amendment -- namely her rights to free speech, free association, equal protection of the laws and the free exercise of religion. And, she emphasizes, those 20-minute weekly sessions did not interfere with her work in the classroom and did not disrupt the regular operation of the school. Moreover, before school, other teachers and aides discuss politics, economics and sports. Why should she be penalized for having coffee and doughnuts with God.
In her court papers, she reminds one and all that the 1969 Tinker case, the Magna Carta of student liberties, also includes members of the faculty. "It can hardly be argued," the Supreme Court said, "that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."
But did the court also mean that Mary May does not have to shed her personal Bible at the schoolhouse gate? Most of the civil-liberties lawyers with whom I have discussed this church-state battle in Indiana say it is a closed case. But they hope the courts will tell Mary May to pray somewhere else. They talk worriedly about the "imprimatur effect" of her religious meetings -- even though they are closed -- on the impressionable elementary-school kids and on other teachers, for that matter.
"Of course," one lawyer said, "some of the kids see her in church on Sunday and that's an imprimatur, but it's not the same as seeing her carry a Bible to and from a meeting in their school, even if it is before classes. To children, teachers are very strong authority figures."
A representative of the Evansville School Board added with some exasperation that there would be excessive church-state entanglement if Mary May's meetings resumed because it would be up to school officials to make sure that no Bibles and other religious materials were left behind. "We don't want the children exposed to them," he said.
A further problem, says school board attorney Jeffrey Frank in the Evansville Courier, is that "once we have one (religious group), we have to allow them all. And find rooms for them all."
Well, the late Justice William O. Douglas used to say that the Bill of Rights takes precedence over administrative convenience. If rooms can be found, under the new Equal Access law, for student-initiated meetings involving religion and for all other voluntary student clubs, it's hard to come up with a clear and convincing reason for denying religiously minded teachers a meeting place before classes start. So long as they represent only themselves, not the school; so long as they keep students out; and so long as they don't break the furniture.