The courts are trying to protect the public from the very sources of morality and justice on which they stand.
Christian students at the University of Missouri at Kansas City are prohibited by the administration from meeting together on campus in their free time or distributing literature of a religious nature to other students. At the university’s Saint Louis campus, speaking of religious matters from the “free speech platform”—established to allow students to express themselves on miscellaneous issues of common interest—is forbidden.
• A student court at the University of Nebraska convicts four student ministry groups of violating a board of regents policy that prohibits “testimony in any of its various forms.”
• Religious students at Western Washington University are limited to two meetings of a religious nature per quarter and, unlike nonreligious student groups, must pay rent to use university facilities. Any funds raised by such groups, irrespective of their source, are subject to strict administration control.
• The First Orthodox Presbyterian Church of San Francisco, a congregation of about 50, is forced to incur substantial expense in order to defend its right to release the church organist when it becomes known that he is a practicing homosexual who does not intend to change his lifestyle. According to the church’s attorneys, John Whitehead and Thomas Neuberger, the discharged organist stated in his deposition that his intention in the lawsuit, brought under a local “gay rights ordinance,” is “to force the church to change its religious beliefs and to punish it for teaching that homosexuality is a sin.”
• The Department of Building and Safety for a major West Coast city (undisclosed due to the sensitive nature of present negotiations) issues a “cease and desist order” forbidding two home Bible study groups to meet because the houses in which they gather are not zoned for “church purposes.” Both groups, each involving about 20 persons, volunteer to eliminate singing—reportedly neither loud nor boisterous—and to disperse the cars that brought them to the residences. A department supervisor, however, states at a hearing that it will be the department’s policy to issue cease and desist orders against any religious meeting in a private home not zoned as a church even if “just one nonresident” is present.
• Two Harvard law students bring a lawsuit as “taxpayers” against the Secretary of the Army, asking the U.S. District Court for the Eastern District of New York to declare unconstitutional the chaplaincy program, charging it constitutes an establishment of religion in violation of the First Amendment. Meanwhile, another U.S. District Court in New York holds that a woman’s “free exercise of religion” includes the constitutional right to a federally funded abortion.
Other cases and controversies before courts and legislatures include such diverse issues as whether parents have a right to object to “amoral” (immoral) sex education or humanistic “values clarification” courses being taught in the public schools; whether adoption and foster care agencies can employ religious criteria in selection of homes for the placement of children; whether religious camps can be closed for failure to comply with burdensome and much criticized Occupational Safety and Health Administration regulations; whether or to what extent private Christian schools are subject to governmental regulation and control; and whether individuals or organizations involved in student ministry can constitutionally be granted access to public high school or college campuses.
A primary reason such cases and controversies are being considered owes to a relatively recent change in interpretation of the First Amendment, the part of the U.S. Constitution that governs and guarantees religious freedom. Even proponents of radical secularization would have to concede that the positions they take in such issues would have been unthinkable 25 years ago.
Certain legal and political commentators are becoming increasingly vocal in criticism of the trend to restrict religious expression entirely to the personal level. A recurring theme is that theological differences, not legal or political disagreements, lie at the root of present cases and controversies. It is as if fundamentally different belief systems are at war with one another—but most involved in the fray do not realize the true identity of the combatants.
Leading conservative Russell Kirk analyzes our predicament in the new Journal of Christian Jurisprudence: “In the domain of Law today, as in all other realms of human endeavor, there is waged a battle between those who believe that we human creatures are made in the image of a Creator, and those who believe that you and I are not much more than fleshly computers. Even within the courts of law, created to keep the peace, this war is fought to the knife.”
One commentator after another observes the danger intrinsic in relegating religious conviction to strictly private concerns. In an article on democratic pluralism, recently published in The Annals of the American Academy of Political and Social Science, authors Theodore M. Kerrine and Richard John Neuhaus call for a reevaluation of the accepted role of churches in modern American society: “The view that the public sphere is synonymous with the state has been especially effective in excluding religion from considerations of public policy. Two assumptions in modern social thought, deriving from secular Enlightenment traditions, have operated to minimize the role of religion. The first assumption is that religion will inevitably decline in the face of the processes of education and modernization. The second is that, even if religion continues to thrive, it deals purely with the private sphere of life and is therefore irrelevant, if not hostile, to public policy. Both assumptions need to be reexamined.”
Harold J. Berman, Story Professor of Law at Harvard Law School, is one who decries the compartments into which the world has been divided, thus estranging everything religious from everything public. He warns in his book, The Interaction of Law and Religion, that “if they [the compartments] are not opened up to each other they will imprison and stifle us.”
Professor Berman, along with a growing number of other concerned commentators, concludes that the problem is serious: “Western man is undergoing an integrity crisis—the kind of crisis that many individual men and women experience in their early fifties when they ask themselves with utmost seriousness, and often in panic, what their lives have stood for and where they are headed.… Our whole culture seems to be facing the possibility of a kind of nervous breakdown.”
Many early settlers saw their pilgrimage, prior to our nation’s independence, as deeply religious. John Winthrop could thus write in A Model of Christian Charity (1630): “Wee must Consider That wee shall be as a City upon a Hill. The eies of all people are upon us …” America’s first education laws, enacted in Massachusetts in 1642 and 1647, reflect a similar self-understanding in authorizing schools to teach children “to read and understand the principles of religion” and thereby to counter “ye ould deluder, Satan, to keep men from the knowledge of ye Scriptures.”
In the following centuries, particularly in the early nineteenth century, many states enacted constitutional or statutory provisions that had the effect of establishing Christianity—usually Protestant Christianity—as the religion of the state. Professor Berman articulately makes this point in his essay “The Interaction of Law and Religion” (published in the Spring 1979 issue of Humanities in Society, not to be confused with his book by the same title), where he cites as evidence of this historical trend state laws “declaring it to be ‘the duty of all men to worship the Supreme Being, the great Creator and Preserver of the Universe’; regulating membership in Christian denominations; imposing fines for failure to attend worship services on the Lord’s day; requiring elected officials to swear that they ‘believe the Christian religion, and have a firm persuasion of its truth’; and establishing public education for the purpose of ‘religion, morality, and knowledge.’ ”
The return to an intolerant system where religious beliefs or practices are legislated and dissenters are banned or punished is certainly not espoused. These historical enactments and the following cases are offered primarily to show the vast ideological distance to be traversed in order to connect today’s radical secularism with its opposite historical counterparts. Neither extreme appears to accomplish the “benevolent neutrality” this writer believes to be the proper relationship between church and state.
Courts have historically been equally zealous in upholding what they regarded as “true religion” with respect to its influence upon public life. Typical is an 1811 New York case approving a criminal indictment of an individual charged with blasphemous utterances against Christ. Justice Kent reasoned authoritatively for the court that “we are a Christian people and the morality of the country is deeply engrafted upon Christianity.” Similarly, in 1822 a Pennsylvania man was convicted of blasphemy for stating that “the Holy Scriptures were a mere fable” and “they contain many lies.” In 1890 the Supreme Court of Illinois upheld the expulsion of a student from the University of Illinois for refusing to attend daily chapel exercises.
Even the Supreme Court of the United States, which in large measure has been the battleground upon which the secularization of public policy and life has been won, has engaged in similarly enthusiastic pronouncements in the not-so-distant past. For example, in Church of the Holy Trinity v. United States (1892), after reviewing some of the major features of American history, our highest court concluded: “These, and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation.” In 1931, in United States v. MacIntosh, Justice Sutherland wrote similarly for the Court that “we are a Christian people.” Even as recently as 1952, in Zorach v. Clauson, the court again observed that “we are a religious people whose institutions presuppose a Supreme Being.”
The enactments and decisions that historically had the effect of establishing Christianity as the religion of many states have not been described for their current authority; all except the two most recent Supreme Court decisions have been overruled. They have been cited rather to give perspective to the current constitutional framework, which many believe has become antagonistic or even hostile to religious expression.
It is important to recognize how young an offspring is the current interpretation of the First Amendment, that ultimate provision governing all aspects of church-state relations. In Wall of Separation, Frank J. Sorauf, professor of political science at the University of Minnesota, effectively shows the recent vintage of constitutional law in this area. He observes: “Church and state came very late to the U.S. Supreme Court. The entire body of major precedents in the area contains only two [cases] decided before 1951, and both of them were decided in the 1940s.…”
The First Amendment was adopted and became a part of the U.S. Constitution on December 15, 1791. The section of the amendment that regulates and protects religious expression contains only 16 words: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …” Hardly self-explanatory in the host of different factual situations that arise, it is the Supreme Court’s responsibility to apply and interpret the amendment in the cases and controversies of contemporary American life. Once decided, these holdings become precedents to be followed and form what we call the “constitutional law” of church-state relations. In other words, contrary to what most nonlawyers probably believe, most of our constitutional law is not found in the Constitution!
It would be nice to be able to assume impartial benevolence and wisdom on the part of the nine justices of the U.S. Supreme Court. This is certainly a warranted assumption much of the time and this article is not a new conspiracy theory. However, in light of what many view as the increasingly restrictive interpretation of the First Amendment religion clauses, it is important to examine carefully the legal bases upon which the Supreme Court and state legislatures and judicial tribunals must depend for authority.
Almost 150 years passed before the Supreme Court systematically confronted the First Amendment, because it was assumed and accepted for as many years that the amendment applied only to actions of the U.S. Congress. In the mid-1920s, however, by a process known as “selective incorporation,” the Court began to hold that provisions of the Bill of Rights were applicable to official actions by the states. In 1940, the “free exercise clause” of the First Amendment was first held to apply to state actions, and in 1947 the “establishment clause” was similarly incorporated.
Although the authors of the amendment adopted in 1791 probably intended little more than to prohibit the establishing of a national church (such as the Anglican church in England), the intent of the constitutional framers is considered largely by most jurists and legal commentators today to be irrelevant to current litigation. Those who argue for “strict construction” of the amendment—based even roughly upon what was originally intended—are regarded with disdain as anachronistic, comparable to formerly prevailing attitudes toward those advocating a balanced federal budget before that issue was popularized by 1976 presidential politics.
Thus, in the 1940s the Supreme Court took the significant step of expanding its jurisdiction in First Amendment cases to enforce the “separation of church and state” on the state level. Professor Sorauf in The Wall of Separation effectively shows how three national separationist groups—The American Civil Liberties Union, the American Jewish Congress, and Americans United for Separation of Church and State—then proceeded to dominate “several decades of increasingly feverish litigation,” choosing specific cases in an overall agenda intended to dismantle the “American religious establishment.” Radical secularism in public life was strongly preferred over policy that allowed religious influence a broader role; the Supreme Court decisions that resulted, and not anything in the Constitution itself, became our current constitutional law of church-state relations.
Although the Supreme Court has held that “benevolent neutrality” should be the government’s attitude toward religious matters, and that “only those interests of the highest order … can overbalance the legitimate claim to the free exercise of religion,” relevant cases and controversies hardly testify to the dominance of benevolence or neutrality in the current process. An increasing number of legal scholars are questioning both the wisdom and the authority of the Court’s policy decisions in this vital area. Raoul Berger, for example, who until 1976 was the Charles Warren Senior Fellow in American Legal History at Harvard University, criticizes the Court’s “continuing revision of the Constitution under the guise of interpretation” in his recent book, Government by Judiciary.
The controversy is not new. In 1907, Chief Justice Charles Evans Hughes surprised many with the candid relativism of his often quoted statement, “We are under a Constitution but the Constitution is what the Judges say it is.” Many cases in a host of different areas of the law have since been decided pursuant to this prevailing theory of jurisprudence. This moved philosopher Morris R. Cohen to write to Prof. (later Supreme Court Justice) Felix Frankfurter that “the whole system is fundamentally dishonest in its pretensions (pretending to say what the Constitution lays down when they [the Justices] are in fact deciding what [they think] is good for the country).”
Mr. Berger of Harvard agrees. This, and his strong conviction that policy making was intended to be the business of legislatures and not courts, causes him to ask rhetorically, “How long can public respect for the Court, on which its power ultimately depends, survive if the people become aware that the tribunal which condemns the acts of others as unconstitutional is itself acting unconstitutionally?”
A review of recent cases and controversies that have arisen under the First Amendment religion clauses can be deeply troubling. Besides what appears to be increased incidence of discrimination against traditional religious expression, more disturbing is the underlying assumption of many judges, opinion leaders, and policy makers that any religious influence on governmental or other public affairs should be eliminated by constitutional decree.
Historically, Western law has been immensely influenced by religious individuals and groups. This is true from the conversion of the Roman emperors in the fourth century through the veritable marriage of law and religious beliefs and values in seventeenth-, eighteenth-, and nineteenth-century America. One wonders, for example, whether the civil-rights movement would ever have gained sufficient momentum to be effective without the key leadership of religious individuals or groups—groups such as those the ACLU attorney in the recent Hyde Amendment case disparagingly referred to as “pervasively religious.”
The current interpretation of the First Amendment by the Supreme Court, and by other governing bodies attempting to apply the Court’s decisions, is not sacrosanct. In fact, as has been pointed out, an increasing number of experts object strongly to the principles of law articulated by the Court in this vital area. Moreover, if anything is gleaned from a study of recent Supreme Court history it is that the nine justices are not free from personal, political, or jurisprudential philosophies that often influence the way they vote.
These case studies are not hypothetical. Christian students are being denied the right to meet on public college and university campuses for any religious purpose, based upon a confused and distorted view of the separation of church and state, although the University of Missouri case was decided favorably in the Eighth U.S. Circuit Court of Appeals. Churches and seminaries are having to go to court to defend their right to terminate or refuse to ordain practicing homosexuals. There are increasing reports of the use of zoning power to prevent religious meetings in private homes. Each of the other case studies also represents an existing or recent controversy where religious freedoms were directly at issue. And for each identified situation there are literally thousands of others festering across the country.
Concern is justified when one as qualified as Raoul Berger warns that the Supreme Court’s recent expansion of its jurisdiction “perilously resembles the subordination of ‘law’ to the attainment of ends … the hallmark of Hitlerism and Stalinism.” Perhaps even more prophetic is the injunction of William Penn in 1681: “If you are not governed by God, you will be ruled by tyrants.” In a pluralistic society we may not enjoy the theocracy envisioned by Penn. But to allow discrimination against religious individuals, including rejection of their involvement in public affairs, is a dangerous step toward totalitarianism.
For the Turn of the Year
This year is all my years together: laced
and twined and interwoven younger years.
Sunbonnets, pigtails. Oxford, Chartres. These ears
first tuned to Handel. Once, four-year-old haste
to read my sister’s schoolbooks. Feet brisk-paced
across high Alpine trails. “The cup that cheers”
poured to dear hordes of students. Altared tears
in formal church, in silent pillows.
Graced
with this new year, I give praise for the old;
acknowledge folly, weakness, fears, delays;
rue-wonder which months I would now unmake
if I were able; touch new tasks I hold
with pristine awe. In lilting voice, I praise
the One Who keeps on saying, “For My sake.”
ELVA McALLASTER
