Immoral Maxim #6: Religious Freedom

IMMORAL Maxim & Repartee #6. Religious Freedom versus the purveyors’ of priviledge

Constitutional Issue #6. The Establishment Clause

“Congress shall make no law respecting an establishment of religion...”
[First 10 words of Amendment I, the “Establishment Clause.” [F 6-1]

Immoral Maxim #6.

“[It is] impossible to interpret the Establishment Clause in such a way as to provide no favor whatever to religion.” Antonin Scalia (1981) [F 6-2] [F 6-3]{Cf. Special Footnote VI-A}

A Most Fundamental Principle and an Honest Maxim

“Religion, or the duty which we owe to our creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and this is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.” Thomas Jefferson, Virginia Bill of Rights (1776).

“[It is] idle to pretend [that] we can find in the Constitution one word to help us act as judges to decide where the secular ends and the sectarian begins in education.”
Justice Robert Jackson in McCollum v. Board of Education (1948).

While citizens of the United States are often proud of their religious freedom, there has never been a time when the meaning and scope of the “Religious Freedom” supposedly ensconced within our Bill of Rights has not been a matter of controversy. The source of that tension is readily identifiable. On the one hand, most of us believe that no person shall have special advantages because he or she belongs to a particular church, denomination, synagogue or other religious denomination. On the other hand, many members of religious groups seek to effectuate in the public, political domain what they believe to be the proper implications of their faith and beliefs. If, some of these persons will say, we have religious freedom — well, then, we have the right to openly discuss and profess our beliefs without penalty. Thus, for example, many persons point to the Civil Rights Movement, which grew out of the Afro-American churches of the American South, as a proper involvement of religion in the affairs of state. Others today think that the move to abolish abortions is a righteous and divinely sanctioned cause. In the public domain, then, we may see references to Jesus Christ or Martin Luther King in public discussions, political protest, and in acts of civil disobedience. Sometimes clouding these already contentious issues are two additional features of religious-political debates which I believe have particular possibilities for mischief and malice. One frequently hears “historical references” such as “We are a Christian Nation,” “Our nation was founded under God,” or “We are a religious people.” [F 6-4] All too often these historically articulated ‘principles’ are accompanied by aspersions on the rights and/or the actions of various religious and/or unreligious groups — Jews, Muslims, and/or atheists. Clearly, we need to approach these issues with some care.

As for the historical record, there were several ‘established’ State churches at the time of the adoption of the Original Constitution and the Bill of Rights. These establishments did not have the exclusive powers of the Church of England or of the earlier colonial churches. Nevertheless, when the Bill of Rights was adopted, several states provided financial support for the clergy of priviledged, normally protestant denominations. [F 6-5] Several other states which did not which did not favor particular denominations still barred non-Protestants or non-Christians from holding office. But the issue of direct government support for religion was in flux - Madison’s “A Memorial and Remonstrance against Religious Assssments (1785)” was widely circulated, Virginial passed its “Bill for Establishing Religious Liberty” in 1786, older establishment statutes and practices were formally or informally abandoned, and the states were including freedom of religion and disestablisment clauses in new constitutions. Over the next four decades the states gradually removed their remaining financial and doctrinal support for religious establishments. Even Massachusetts formally separated state and religion in 1833. Ideologically speaking, after two centuries the country’s religious landscape is not that different. While people continue to debate sometimes contentious issues — issues which are inevitably colored by participants’ religious beliefs —, there has been a general legal and political consensus that “freedom of religion” is not to provide any of us with preferentially favorable governmental treatment. Again, as a general proposition, many citizens will articulate Madison’s argument that — on religious grounds alone — a believer prefers a situation where his own beliefs can be accepted or rejected by others free of unholy coercion from any source.

I am myself in the main moderately comfortable with this situation. What I believe has happened is that — in the large — those of us who wish to serve Christ or The God of Abraham or Allah or Truth or our own (religious or atheistic) Free Conscience and/or Our Nation’s Honor do not seek the Aid of Caesar in getting our voice heard. Or, more specifically, we certainly do not want Caesar to aid us in having our voice drown out the voices of others. Furthermore, I would add that we had better begin to respect and hear the voices of those others with varying religious beliefs and ideologies — because if we are to survive as either a nation or as a species we must accomodate ourselves to the extraordinary diversity of beliefs and practices of those humans we encounter and affect. {Cf. Special Note VI-B}

I do not wish to overstate the case. Our ideal of religious freedom and respect for others is usually more of an Aspirational Goal or an American or Religious Dream than a fully realized institutional objective. (Cf. Special Note VI-C} Jackson's words (above) remind us that while we can separate Church and State formally and institutionally, we cannot actually separate Faith and Politics in the body politic. If either a majority or significant minority of a nation thinks its religious beliefs are politically important, those beliefs will be reflected in the nation’s political institutions. At the present time, some important ostensible indicators of Religion’s influence upon the State include the following: (A) Congress and the Court open their sessions with prayers, (B) several holidays associated with religious traditions are widely celebrated, and (C) buildings for Worship (Churches, Synagogues, Mosques) are not taxed. Currently, a very vocal religious minority wishes to outlaw abortion. An even smaller religious minority, usually working with secular allies, is trying to abolish the death penalty. In this short space, I do not wish to propose a general solution to these issues because (1) I do not have a general solution, (2) even if the country reaches a rough consensus on some state-and-religion issues, other controversies will arise, and (3) I find that very reasonable persons of good will cross mental swords over religious-political issues. [F 6-6] {Cf. Special Note VI-D} However, I am confident enough to say that I am particularly upset and angered by the rhetoric of Antonin Scalia which is so frequently used to preferentially advantage the partisan interests or ideologies of our larger religious ‘publics’ against the interests of our smaller religious groups. [F 6-7] Antonin Scalia has managed to convince himself that he should work to secure preferential treatment for his political-religious ideology. As he speaks and writes with such self-confident flair that others who are waiting to have their own preferential predilections validated become enthusiastic admirers. Before getting to the issue of the defects of his views on Separation of Church and State or the Establishment Clause it would be helpful to look at some historical matters.

“Religion, morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” The Northwest Ordinance, July 23, 1787

In 1787 religious institutions provided most of the educational opportunities in the former colonies. Religious institutions have continued to promote educational and charitable ends which promote the public good. {Special Footnote VI-E}. When tax exemptions for Churches were challenged in the Walz v. New York Tax Commission (1970), Warren Burger note that New York “has granted exemption to all houses of religious worship within a broad class of property owned by nonprofit, quasi-public corporations which include hospitals, libraries, playgrounds, scientific, professional, historical, and patriotic groups.” So, there is not much new here.

Scalia, then, can find examples of religious belief, piety, bigotry or zeal during the epoch of the ratification of the First Amendment. However, there is no tension - no intellectual honesty - in his approach. He has very little appreciation for Madison’s A Memorial and Remonstrance Against Religious Assessment:

"We hold it for a fundamental and undeniable truth, 'that Religion or the duty which we owe to our Creator and the Manner of discharging it, can be directed only by reason and conviction, not by force or violence.' The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. ... We maintain therefore that in matters of Religion, no man’s right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance."

Scalia simply cannot countenance Thomas Jefferson’s [F 6-8] “Wall of Separation between Church and State” or Hugo Black’s use of this principle. [F 6-9] He continually refers to the positive effects of religion — coveting, as it were, preferential treatment for his ‘principles’ — but we hear precious little about the misuses of religion which were clearly on the minds of many Framers and Ratifiers of OUR CONSTITUTION and OUR BILL OF RIGHTS.

Scalia is well known for his criticism of the “Lemon Test” articulated by Chief Justice Warren Burger in Lemon v. Kurtzman (1971). In Scalia’s concurrence in Lamb’s Chapel v. Center Moriches (1993) he invokes an image of the Lemon Test as a “Ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after repeatedly killed and buried.” [F 6-10] The histrionic passage is given a great deal of coverage by Scalia’s admirers, but the substance of Scalia’s remarks is rather thin. What Scalia has siezed on is that the various justices with whom he was sitting had used the Lemon precedent in several cases, but not always enthusiastically or with complete consistently. That is to be expected. Just like Scalia, the other justices have also developed their own jurisprudence over time according to the dictates of their consciences. Furthermore, unlike Scalia, the other justices are not as inclined to be searching for one more opportunity to fully explore their own agenda. Burger’s criteria have been a useful starting point for several of the justices on several occasions, but these criteria do not dispose of the inherent difficulties of Religious establishment clauses. Every generation seems to have a couple of cases which have appeared to be quite similar in their impression on the general public, but which are distinguished in the Court’s final judgment.
In the post-World War II period the Court allowed the use of public funds to support transportation to parochial schools in Everson (1947) and allowed students to receive religious instruction outside the school during school hours in Zorach (1952), but prohibited the use of religious teachers in public classrooms in McCollum (1948) and prohibited prayer in the classroom in Engel v. Vitale (1962). A generation later in Lynch v. Donnely (1984) the court allowed the city of Pawtucket to display a nativity scene during the Christmas holidays, but 5 years later in Allegheny Co. v. ACLU (1989) the court found that a somewhat similar crèche display violated the “establishmnent clause.” In the last decade, the court in Van Orden v. Perry (2005) by a 5-4 vote allowed the state of Texas to continue displaying on the grounds of the state capitol in Austin a monument with the Ten Commandments engraved on it. However, in a companion case, McCreary County v. ACLU (2005), the Court banned a courthouse display of the Ten Commandments in Kentucky. Part of the differences in outcomes of these and similar cases during the past several decades is due to different approaches of different judges and the cases themselves have significant differences. However, one constant theme of the majority opinions is that several Justices are usually quite resistant when the hand of public officials is openly or, worse, secretly involved in pushing a partisan religious symbol into a new venue. Where exactly to draw the line between “an establishment” and an acceptable public expression of religion is an issue which each justice tends to approach somewhat differently.

In Scalia’s dissent in McCreary County he writes that “the Court acknowledges that the ‘Establishment Clause doctrine’ it purports to be applying ‘lacks the comfort of categorical absolutes.’ What the Court means by this lovely euphemism[my boldface] is that sometimes the Court chooses to decide cases on the principle that government cannot favor religion, and sometimes it does not.” Scalia’s disparaging and distorting simplification of the issues lacks judgment, subtlety, and humility. Entering in where angels fear to tread, Scalia’s insistence that there is a bright-lined clear and single identifiable correct meaning in many of these Constitutional disputes about religion is often intellectually naive, morally offensive, and religiously shallow.


FOOTNOTES; CASES; BOOKS (Religious Freedom and the Establishment Clause)

FOOTNOTES

Footnote 6-1. Ratified Dec, 15, 1791.
Footnote 6-2. Antonin Scalia, Speaking to Subcommittee on Taxation, and Debt Management in 1981. Cited on page 32 of Brisbin (1997).
Footnote 6-3. Similarly, “ Those who wrote the Constitution believed that morality was essential to the well-being of society and that encouragement of religion was the best way to foster morality. (Antonin Scalia, dissenting in McCreary County v. ACLU of Kentucky (2005).
Footnote 6-4. The “We” here usually means either a majority of U.S. citizens or some favored subset of the same.
Footnote 6-5. Which denomination or denominations were favored varied with the particular state.
Footnote 6-6. I do not mind saying that, as a general rule, I am very critical of those who spend most of their political capital on behalf of the unborn while making powerful political alliances with those who are largely indifferent to the needs of the poor, the weak, and the strangers among us who have already been born. Cf. SPECIAL FOOTNOTE VI-C for more explicitly religious criteria.
Footnote 6-7. Technically, Scalia favors majoritarian or large minoritarian religious publics, including his own religious flavor of Roman Catholicism.
Footnote 6-8. From Jeffferson’s letter to Danbury Baptists (1802) - “Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State.” [boldface supplied by LCHj]
Footnote 6-9. Hugo Black’s Opinions in Everson v. Ewing Board of Education, (1947); Engel v. Vitale (1962); and Abington Schools v. Schlempp (1963) were enormously important in establishing Supreme Court interpretations of the meaning of religious freedom and the establishment clause for the entire second half of the 20th Century.
Footnote 6-10. The “Lemon Test” stipulates that constitutionally acceptable laws trenching upon religious practice (1) should have an identifiable secular purpose, (2) should neither advance nor inhibit religion, and (3) should not involve excessive entanglement by the state into religious affairs.
Footnote 6-11. There are a number of books with a well-defined point of view on the First Amendment religious establishment clause. I myself am quite partial to Derek Davis’s 1992 book. However, the 2007 book by Peter Irons (God on Trial) does a good job of presenting the various parties and is a good place to start exploring such cases. This is in spite of the fact that he has been a litigator in the Mount Soledad Cross controversies of San Diego. See Bibliography.

{Special Footnote VI-A} [“And when thou prayest, enter into thy closet, and when thou has shut the door, pray to thy Father which is in secret...” KJV]
But thou when thou shalt pray, enter into thy chamber, and having shut the door, pray to thy Father in secret: and thy Father who seeth in secret will repay thee. Douay-Rheims Bible
Jesus of Nazareth, Matthew 6:6
{SPECIAL FOOTNOTE VI-B } In religious terms, in both the strangers and neighbors of our world, God has presented us all with a “Coat of many Colors”
{SPECIAL FOOTNOTE VI-C } The United States is my present Home. I was born here and expect to die here. It is, however, but one of many Homes on God’d Green Earth. It is certainly not the Beloved Community.
{SPECIAL FOOTNOTE VI-D } The Christian standard for justice tempered with mercy, I believe, is best articulated in Matthew 25: 35,36: “For when I was hungry, you gave me food; when thirsty, you gave me drink; when I was a stranger you took me into your home, when naked you clothed me; when I was ill you came to my help, when in prison you visited me.” [NEB] Others may have a different reference and all of us have fallen short. However, as Christian believers we certainly must not be traveling in the other direction. Both Jewish and Christians are frequently drawn to Micah’s short phrase, “What does the Lord require of thee, but to do justice, love mercy, and walk humbly with thy God?”
[Special Footnote VI-E] As a liberal protestant in the Quaker tradition I have no reluctance about praising the work of Roman Catholic nuns in poor urban neighborhoods nor in praising the work of religiously conservative members of the Salvation Army in feeding and housing the poor. I myself have been housed and fed at a Salvation Army Center. I do not subscribe to the political agenda of the religious right, but I certainly believe that faith-based institutions can serve the public good. Properly vetted, it seems to me that faith-based charities could be and, indeed, sometimes are proper channels of public funds. {There continue, however, to be too many instances of 'bad faith' in various settings in which toleration of other religions and atheism is not practiced.}

CASES CITED
Abington Schools v. Schlempp, 374 U. S. 203 (1963)
Allegheny County v. ACLU, 492 U. S. 573 (1989)
Engel v. Vitale, 421 U. S. 370 (1962)
Everson v. Ewing Board of Education, 330 U. S. 1 (1947)
Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993)
Lemon v. Kurtzman, 403 U. S. 602 (1971).
Lynch v. Donnely, 465 U. S. 668 (1984)
McCollum v. Board of Education, 333 U.S. 203 (1948)
McCreary County v. ACLU of Kentucky, 545 U.S. 845 (2005)
Van Orden v. Perry, 545 U.S. 677 (2005)
Walz v. New York Tax Commission, 397 U. S. 664 (1970)
Zorach v. Clausen, 306 U. S. 343 (1952)

BIBLIOGRAPHY
Davis, Derek (1991). Original Intent: Chief Justice Rehnquist and the Course of American Church/State Relations. Prometheus Books: Buffalo, New York. 202 pages.
Irons, Peter (2007). God on Trial: Dispatches from America’s Religious Wars. Viking Penguin Books: New York. 362 pages.