It is getting harder and harder to tell the difference between the separation of church and state and the elevation of state over church. The doctrine of separation, which some scholars call a peace treaty, is at its best when the church acts in one sphere of authority and the state acts in another. The doctrine is at its worst when the state uses its considerable power to sterilize every trace of religious activity or language. Then, the doctrine is less a peace treaty than war by other means.

Many Christians rail against the courts for their efforts to kick God out of the classroom or, more generally, out of the nation's public life. Certainly, the courts have handed down some terrible decisions.

One example occurred last year when the U.S. Supreme Court ruled that the state of Washington could fund scholarships for nearly every college major but theology. A program of this kind penalizes students who pursue theology by making their choice more expensive, but the justices saw it otherwise.

On the other hand, the news is not all bad. Atheist Michael Newdow's efforts to exclude the words under God from the Pledge of Allegiance, and, more recently, to prevent spoken prayer at the presidential inauguration, have so far been unsuccessful.

And the Supreme Court ruled two terms ago that a state may, consistent with the First Amendment, offer aid to the parents of children in private schools, even when those schools are religious.

Against this background, let us consider the recent decision of a Georgia federal court. Three weeks after Christmas, the judge struck down an effort by the Cobb County board of education to lend balance to the treatment of human origins. Specifically, the board had required that the following sticker be placed in certain science texts: "This textbook contains material on evolution. Evolution is a theory, not a fact, regarding the origin of living things. This material should be approached with an open mind, studied carefully, and critically considered."

Of course, the statement is literally true, and no serious scientist would dispute it. After all, nobody now living on Earth was present when any evolution actually occurred. On the other hand, nobody doubts that the court's conclusion is true: The board only inserted the statement into the books to meet the objections of Christian parents who believe in the literal truth of the Genesis creation account. The court, and the many commentators who lauded its decision, argued that by compromising with unhappy Christian parents, the school board in effect took a religious position on a disputed issue.

Not so fast. One of the great virtues of politics is the possibility of compromise. But one of the difficulties with much litigation on church-state issues is that it is uncompromising and, in that sense, radical.

I doubt these stickers convinced evolutionist students to suddenly become creationists. Indeed, if the students of Cobb County are like most students I know, the stickers largely escaped their notice.

On the other hand, books unadorned with the stickers might well influence creationist students to suddenly doubt the Bible's creation account. In that case, an authority figure (the school) backed by the state is pressing upon them a version of "truth" that varies from what their parents had raised them to believe. In other words, the books without the stickers, not the books with the stickers, should raise a constitutional worry. That is, unless one supposes that the state should wean children away from the religion of their parents.

One need not be a skeptic on evolution to be a Christian, and one need not be a Christian to be a skeptic on evolution. According to Frank Newport of the Gallup Poll, "Public acceptance of Charles Darwin's theory of evolution is well below the 50 percent mark." Only 35 percent say evolution is well supported by the evidence.

But, whatever one's view on that controversy, it seems reasonable to enforce a central rule: The state should not, without very strong reason, interfere with the religious choices of parents. Where the state feels it must do so—for example, by teaching evolution in the science curriculum—a cautionary sticker of the sort struck down in Cobb County seems a reasonable compromise between church and state.

When reasonable compromise becomes unconstitutional, it is time to worry that perhaps the peace treaty is being violated.

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Civil Reactions
Stephen Carter is the William Nelson Cromwell Professor of Law at Yale University. He is the author of The Impeachment of Abraham Lincoln (2012), The Violence of Peace, The Emperor of Ocean Park, and many other books. His column, "Civil Reactions," ran from 2001 until 2007.
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