Putting God on Trial

The never-ending march of court cases about church and state sometimes seems so rapid that they blur together. But Peter Irons, a longtime professor of political science at the University of California, San Diego, and a member of the Supreme Court bar, has slowed down time to take in-depth looks at several highly symbolic disputes in his new book God on Trial: Dispatches from America's Religious Battlefields (Viking $26.95). He talked to TIME's David Van Biema about swing votes, death threats, and the rule of law.

TIME: Your book treats six First Amendment religion cases, several of which went to the Supreme Court. Briefly, what were they?

There was the San Diego case against a 43-foot Latin Cross erected in a veterans cemetery in San Diego; the football-game prayer case from Santa Fe, Texas, two Ten Commandments cases, the attempt to remove "under God " from the Pledge of Allegiance and the Intelligent Design case in Dover, Pa.

TIME: You taught constitutional law for 22 years, but the book is more journalistic. The cases include first-person oral histories of partisans on both sides as well as narrative by you, and you limited yourself to issues where people challenged concrete religious symbols or language. Why?

Well, there are other cases around government establishment of religion, such as the ones challenging government-funded faith-based charities. But they're not as dramatic, because they don't involve concrete objects, or in some case language, that is seen as symbolic of the country's Christian heritage, and where people feel they are being challenged at the very root of their value systems: 'You can't take down MY cross. You can't take away MY 10 Commandments.' The people who bring these cases usually feel just as strongly that they have to take a stand for "the system " of the law, even though they may not start out being able to articulate what they mean by that system and they may end up facing tremendous hostility and antagonism.

TIME: From the public servants who put up the cross or the monument?

Not necessarily — they simply believed that the majority in their communities wanted this display, which was true. But when you get into issues around the Bill of Rights, there are countervailing values. When those are pressed, some members of the majority take personal offense.

TIME: You say that most of these cases begin in small towns.

In cities, the authorities tend to be advised by savvy attorneys who know that if they do things like that they will be in trouble. So you're more likely to see them in small towns that are, say, 95% Southern Baptist, where the town fathers were unlikely to be thinking about diversity but a small minority was upset by what seems like a civic religious gesture. Then the cases were picked up by ideologues on both sides — The ACLU or the American Center for Law and Justice (ACLJ), which is affiliated with Pat Robertson — to further their own agendas. And the people on both sides often just got swept along.

TIME:And you are opposed to this.

I'm in favor of it. The groups are essential to seeing that the issues are brought to the bar and they are often highly skilled.

TIME: Doesn't the little guy get lost in the process?

That's the only way the little guy can get heard.

TIME: You were directly involved as a lawyer in one of the cases.

Yes. The San Diego Cross case, which was brought in 1989 and is still going on. The city lost each round in the legal battle. But each time they came up with a new strategy, most recently persuading members of Congress and President Bush to take over the site as a federal property. It's now back in federal court. I finally dropped out because we were getting threats and my wife was concerned for our children.

TIME: So, you too are a partisan. Do you have any sympathy for the argument made by Christian activists that our culture and courts favor non-belief, and that Christians need redress to re-establish a level playing field?

No. In most cases it is the atheists or non-evangelical Christians whose rights have historically been trampled on , and for the court to restore them is not overshooting the mark at all.

TIME: With views like that, how were you able to present both sides?

I tried to listen closely and be fair. I haven't heard from anyone who thought I was unfair or unbalanced. Jay Sekulow, the chief council for the ACLJ, blurbed the book as a "must-read."

TIME:Why write about two 10 Commandments cases?

Because the Supreme Court outcomes were different. One involved a recently-installed display in a Kentucky courthouse, and the other was about a monument that had been outside the state capital in Texas for 40 years. The Court struck down the courthouse display and upheld the Texas monument. Both decisions were five-to-four, and Justice Stephen Breyer, who was my administrative law professor at Harvard, was the swing vote. It baffled me, but I finally boiled it down to a philosophy of 'if it's old and outside, it's okay, and if it's new and inside, it's not okay.'"

TIME: Which was the most compelling story?

The Texas football game prayer case. The community was torn apart. The small group of parents and students who challenged the prayer were subjected to tremendous harassment. All the people involved were religious. But there were threats of shootings and cross burnings, and the minister of one of the girls who was in the case got up and berated her family from the pulpit. At the same time, I have a very eloquent interview with an engineer at DuPont who fought for the prayer. I've been to Northern Ireland, and it was a little like that: people on both sides who would not back down despite their similarities.

TIME:Your book is subtitled, "Dispatches From America's Religious Battlefields." Yet in your introduction you refer to the Bible riots of the 1840s that killed 13 people in Philadelphia. Should we distinguish between that kind of violence and contemporary abortion clinic killings, which you also mention?

Yes. We've reached a pretty general accommodation in this country between different religious denominations and sects, such as Protestants and Catholics, between whom conflicts like the Bible Riots arose. I do see more bifurcation, a shrinking of mainstream Christian religion and a separation between conservative Christian groups and more secular groups on the left. Both use the terminology of "culture war, " which I appropriated. But thankfully, these wars are by and large rhetorical or legal, which distinguishes us from other cultures where violence seems to be the inevitable outcome of religio-political divisions.

TIME: Will the changes on the Supreme Court affect cases like the ones you looked at?

Not much in the short term. As far as I know, there aren't any significant establishment-clause cases due to be decided in the next couple of years that would allow the Court to, say, overrule the school prayer cases of the 1960s. But the longer term is something else. There is a body of cases moving forward. The Pledge of Allegiance case will come back to the court. There are 10 or 20 10 Commandments cases in the federal courts right now, one or more of which will go all the way. The next Presidential election will have a tremendous effect, because the likelihood is that more Justices will die or retire.