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Lawyers aren't very good at keeping things simple. Look at any legal-type document such as bank statements and phone bills, and you'll notice the small words usually outnumber the big ones.

We can't really blame the lawyers for this. When asked, they will tell us all the fine print actually exists to make things simpler. If every contingency weren't spelled out, we would risk ambiguity, which definitely complicates things.

It has been 212 years since the Bill of Rights was ratified, and we're still trying to figure out the exact meaning of the first two clauses of the first sentence.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ..." That, in a nutshell, is the freedom of religion.

Except, we don't live in a nutshell. That brief and ostensibly clear statement has been prodded and interpreted by numerous courts, to appear as what we perceive today as both the law and ethos of religious freedom.

For example, the amendment specifically refers to "Congress," yet somehow we have interpreted this to mean that no government entity at all can make people do religious stuff.

A certain crazy Alabama State Supreme Court judge who wants to have a giant Ten Commandments monument in the courthouse is an entirely different organism than the Congress of the United States, but the rule apparently still applies.

Somewhere along the legal line, a Supreme Court must have decided that all government bodies are ruled by the establishment edict, and thus precedent was established.

Once precedent is established, there is a Constitutional basis for just about anything that can be imagined, whether it is in the original document or not.

That is how the law expands and adapts.

We also have popular opinion, which seems to both lead and follow the law in a strange dance. There is a popular equivalent to legal precedent, which we simply call tradition.

An example of both exists in the recent Pledge of Allegiance case before the 9th U.S. Circuit Court of Appeals. An atheist from California challenged the reciting of the Pledge of Allegiance in schools because it contains the phrase "under God."

Legally this can be described, as the 9th Circuit did, as an illegal establishment of religion. Or, it could be interpreted, as the 7th Circuit Court had previously, as an instance of "ceremonial deism."

That concept, created by another previous Supreme Court case, basically means that in government, certain mildly religious rituals by government are alright, as long as we've been doing them awhile.

That isn't in the First Amendment, but its been repeated many times and thus is cloaked in both precedent and tradition.

But imagine how we would judge the Pledge de novo today. The Pledge was originally published in 1892. It was changed shortly after in the same year to correct a grammar mistake, and twice again in 1923 and 1924 to make "my flag" into "the Flag of the United States of America." Then, finally, the words "under God" were added in 1953 to affirm our nation's Christian values to contrast with the Communists.

If this latter action, to add the words "under God," had been proposed in 2004 instead of 1953, there is no way we would put it in.

It would be clearly legally prohibited by our stricter contemporary interpretation of the First Amendment's establishment clause. And, it would be offensive to our modern traditional concept of secular government. But because it is already so, over 80 percent of Americans feel it is legally and ethically correct.

This is what psychologists refer to as "anchoring bias"; the comfort people have with the status quo and the desire to accept it without consideration.

This is also, I believe, why polls show most Americans do not accept gay marriages, just as polls in the 1950s showed most Americans did not accept interracial marriages. Although, I'm certain we will eventually.

To expedite the process, I have a legal theory to argue for marriage rights. If any lawyers out there want to use it, go ahead, I just want a footnote.

Most lawyers for gay marriage rights will argue that the "equal protection" 14th Amendment, which was designed to give slaves equal rights after the civil war, is the one that provides for gay marriages. Either that, or various extemporaneous versions of this amendment that have been added to state constitutions, as in California and Massachusetts.

But I think the First Amendment addresses this issue. It starts with the recognition of marriage as a right to be recognized by the state, rather than a privilege to be granted by the state.

Therefore, if the state legislature wants to deny someone that right, it is the state's obligation to demonstrate a compelling public interest.

Then, if and when it is argued gays should be denied the right to marry, it must be demonstrated how it is any of the state's business who marries whom.

When all they can argue is that it is "immoral" or "unnatural," then it can be clearly observed this amounts to the imposition of the majority's religious views on morality, specifically Christian prohibition of homosexuality, onto everyone else. This is clearly the establishment of religion by the state, and thus forbidden by the First Amendment.

Boo-ya!

Fortunately for us, we don't always have to fight over these things. In America, we have developed some consensus over what religious freedom means.

In France, as in the United States, they claim to have secular government. In their form, they recently banned "conspicuous religious symbols" in public schools, although it is widely known the law intends to target head scarves worn by Muslim women.

In our version of secular government, we don't abhor the public display of religion; we only ban the government from participating in it. That is why our law allows anyone to wear whatever religious symbol they want, so long as nobody directly imposes religion on his or her fellow citizens.

Similarly, in Iraq recently, on the order of Administrator L. Paul Bremer, the United States has forbidden the Iraqi government from codifying Islamic law into their constitution. From our tradition, we've learned the only way to be free is to not let government power be controlled by a church.

Especially in Iraq, with its three large and distinct cultural groups, religious law would only be a recipe for tyranny by the majority.

You can pray in school, but you can't be forced to pray. You can believe what you want, but you can't force others to do so. And, the government's job is to stay out of spiritual matters altogether.

Basically, everyone is free to make his or her own spiritual choices. The law will mutate over time, but as long as we stick to that principle, we'll be alright.

Sanjai Tripathi is a columnist for The Daily Barometer. The opinions expressed in his column, which appear every Wednesday, do not necessarily represent those of The Barometer staff. Tripathi can be reached at sanjaitripathi@netscape.net.

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