Reading former Supreme Court Justice David Souter's commencement address at Harvard last week (wow, feels weird to refer to him as a "former" Justice), I couldn't help but think of the tension inherent in so much religious liberty law. He didn't refer directly to them, but the two religion clauses of the First Amendment exhibit all of the same kinds of challenges in constitutional interpretation he describes here while discussing the Pentagon Papers argument. Here's a snippet, via EJ Dionne (my emphasis):
Even the First Amendment, then, expressing the value of speech and publication in the terms of a right as paramount as any fundamental right can be, does not quite get to the point of an absolute guarantee. It fails because the Constitution has to be read as a whole, and when it is, other values crop up in potential conflict with an unfettered right to publish, the value of security for the nation and the value of the president’s authority in matters foreign and military. The explicit terms of the Constitution, in other words, can create a conflict of approved values, and the explicit terms of the Constitution do not resolve that conflict when it arises. The guarantee of the right to publish is unconditional in its terms, and in its terms the power of the government to govern is plenary. A choice may have to be made, not because language is vague but because the Constitution embodies the desire of the American people, like most people, to have things both ways. We want order and security, and we want liberty. And we want not only liberty but equality as well. These paired desires of ours can clash, and when they do a court is forced to choose between them, between one constitutional good and another one. The court has to decide which of our approved desires has the better claim, right here, right now, and a court has to do more than read fairly when it makes this kind of choice.
Read the whole thing. Those who would undo the "separation of church and state" like to stake their claim on the fact that the exact phrase does not appear in the U.S. Constitution. That objection though misses the point, the conflict, and the challenge involved in maintaining the careful balance of religious liberty that has served us well for more than 200 years. If the explicit words solved disputes all by themselves, we wouldn't need judges, we would just need a search engine. Instead, we have high values and an esteemed purpose: to make real the promise of liberty and equality for all Americans. They are not just words.
