Déjà Vu, All Over Again: The Supreme Court Revisits Religious Liberty

The Supreme Court is at it again. The Justices are looking this term at two church-state questions which have long perplexed them. One is the yuletide baby-Jesus-in-the-public-square problem. This time, in the case of Pinette v. Review Board, a private group set up a Latin cross near the Ohio state capitol. This public space has long been used by all sorts of private speakers, including, it would seem, people with religious messages. The Knights of the Ku Klux Klan, Ohio Realm put up a sign disclaiming all public sponsorship. Was this still an “establishment” of religion? Federal appeals court Judge James Ryan opined that only a “dolt” would think so. He ruled that it was not an establishment. It really is an open question, given the Court’s precedents, whether the dolts will prevail.

After the holidays, the Justices return to school. To be exact, they are considering yet another religion-in-public-schools case. A University of Virginia regulation authorizes disbursement of activity fees to a range of student groups — except those engaged in “religious activities.” The aggrieved parties in Rosenberger v. Rector and Visitors are student editors of a periodical, Wide Awake, that offered “a Christian perspective on both personal and community issues, especially those relevant” to university students. The district court agreed with the University that this exclusion presumptively violated the constitutional principles of free press. The University nevertheless prevailed. The lower court said that inclusion of groups engaged in “religious activities” would have violated the Establishment Clause.

Pinette and Rosenberger are about the same troubling aspect of our constitutional law on religious freedom: the subordination of free speech, free press and (most critically) free exercise principles, which would require at least equal treatment for religious speakers, by an Establishment Clause licensing hostile treatment of them. The constitutional text, history, and common sense indicate that it should be precisely the other way around. They indicate that religious liberty is an especially important freedom, protected by a Free Exercise Clause to which the Establishment Clause is instrumental.

The Supreme Court’s (in)version of the constitutional order is just a bit more perverse than it is laughable. This is the domain of legendarily inconsistent applications of a doctrinal “test,” — named after the case of Lemon v. Kurtzman — for which no one (even on the Court) has a kind word. Justice Scalia lampooned Lemon in a 1993 opinion after, it seems, watching the cult movie, Night of the Living Dead. “Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks over Establishment Clause jurisprudence once again, frightening the little children and school attorneys.”

Scalia’s rhetoric may seem overheated, but it really is too kind. Church-state is the jurisprudence of the adjective and adverb — is there a “principal” or “primary” effect that advances religion; is there an “excessive entanglement” between church and state; is there too much “divisiveness” engendered?

A majority of the Justices (including, I here assume, the recently appointed Stephen Breyer) are prepared to specify this assemblage of signs by using the “endorsement” test. But this, as Judge Ryan indicated in his Pinette opinion, really is in the eye of the beholder. Schools may discriminate against student religious activities, and the public square may be opened to everyone except believers, if the alternative would “endorse” religion. The endorsee, by the way, is not necessarily one religion, say, Christianity, over another. Such a preference does violate the Establishment Clause, soundly interpreted. The Court says, “endorse” religion, as such, over against an undefined “nonreligion” or “irreligion.”

“What a strange notion,” Scalia wrote in 1993, “that a Constitution which itself gives ‘religion in general’ preferential treatment (I refer to the Free Exercise Clause) forbids endorsement of religion in general.” Strange indeed. But make no mistake about it: the Establishment Clause is master of Free Exercise. Because the Establishment Clause requires that state efforts to promote and protect the free exercise of religion not prefer religion over nonreligion, we have effectively mandated this constitutional command: equal religious liberty for atheists.

What’s going on here?

Consider first the history of the Establishment Clause. Its meaning was for a very long time rooted in an insight that the Founders had at the end of the eighteenth century: the common good of their society did not depend upon the truth of those matters that distinguished the Protestant sects. What distinguished Methodists from Presbyterians, the Founders concluded, could be safely declared beyond the competence of public authority. The law knew no heresy, no dogma, and established no sect.

An aside: this settlement may be inconsistent with Dignitatus humanae. Whether it is inconsistent depends upon whether the obligation to recognize the true religion of which Dignitatus humanae speaks can be fulfilled by civil society, or whether it must include recognition of the true religion by the state. The latter prospect is definitely inconsistent with the fundamental positive law of this civil society.

Dignitatus humanae says that public authority should promote the religious life of the people. The Founders did, and raised no constitutional question when they did. That all religions be treated equally — the doctrinal command that issued from the Founders’ insight — does not imply or provide an important premise for inferring that religion is something that is bad for persons, or that it is something to be kept out of public life because it is dangerous to politics.

The central command of the Establishment Clause, as interpreted by the Supreme Court over the last generation or so, is this: public authority must not promote, encourage, foster, aid, or endorse religion, even if public authority would do so without a trace of partiality, either for or against any religion. Why? Because promoting or encouraging religion would violate the Constitution’s command of “neutrality.” What “neutrality” is this?

The most recent Supreme Court opinion Grumet v. Kiryas Joel — says that the constitutional clauses protect “religious liberty” by what I call “superneutrality”: public authority may not favor “one religion over others nor religious adherents collectively over nonadherents.” Kiryas Joel was a classic case of special care to assist believers to live out their commitments. By a special act the New York legislature carved out a village-size school district to accommodate Hasidic Jewish children who could not conscientiously go to public schools, where they could get special education which federal statutes guaranteed them.

The revised accommodation was declared an unconstitutional establishment. Why? Because the Justices were not sure that the legislature would be equally solicitous of other “religious (and nonreligious) groups.” The same principle was expressed by Justice O’Connor in her concurring opinion: “Religious needs can [only!] be accommodated through laws that are neutral with regard to religion.”

The Justices have begun to wonder how, and on what grounds, to protect a religious liberty which treats religious and nonreligious persons equally. The rationale for this religious liberty cannot be what it was for the Founders — that religion is good. What then is the doctrine — and the coherent rationale — for religious liberty these days?

The most careful attempt to answer that question was Justice Souter’s opinion (for O’Connor and Stevens) in a 1992 public school graduation prayer case, Lee v. Wiseman. Souter wanted to justify special “accommodation” of religious believers, as such. He opined that “accommodation” of believers, without equal concern for the irreligious, was constitutionally acceptable because “accommodation” showed only “respect” for religion. He distinguished a permitted “respect” from a prohibited “endorsement” of religion. If that sounds contrived — and if you think Souter is in trouble — you are right on both counts.

“Respect,” Souter continued, allows us “to act without expressing a position on the theological merit of those values.” Fair enough — we do not necessarily affirm the truth of some Islamic tenet when we say that Muslims have a right to religious worship. As the new Catechism makes clear, there is religious value in acts of worship by Muslims and Jews. Dignitatus humanae teaches that public authority must respect their right to worship. So far so good. Except that Souter then added, “or of religious belief in general.” Souter is back where he began: on what basis do we act in some special way to “respect” or “accommodate” persons’ “religious” practices without “endorsing” religion. How do we “respect” religion, completely apart from any judgment about the value of religion?

“What makes accommodation permissible, even praiseworthy,” Justice O’Connor said in Kiryas Joel, “is not that government is making life easier for some religious group as such. Rather, it is that government is accommodating a deeply held belief‘ (my emphasis). Souter says more revealingly: “in freeing the Native American Church from federal laws forbidding peyote use . . . the government conveys no endorsement of peyote rituals, the church, or religion as such; it simply respects the centrality of peyote to the lives of certain Americans.” But only “certain” Americans, because, presumably, Native American sacramental use has a value or is good in a way that peyote use in a non-sacramental context is not.

Clearly enough, the Justices are going to use the “R” word religion where the most obvious, as well as the traditional, explanation for religious liberty places it. This stubborn refusal to affirm the objective value of religion, even where the constitutional text (Free Exercise) requires it, is forced upon the Justices by the same neutrality which first brought you abortion, is now bringing you assisted suicide, and which pretty soon will bring you homosexual marriage. This is liberalism’s “neutrality” about the good. It has seized our constitutional law of civil liberties, and will not let go.

The most common judicial defense of “superneutrality” is the necessity to keep all Americans on the “inside” of our polity. Should public authority promote religious liberty because religion is a good thing, public authority would, according to some Justices, convey a message of disapproval or “outsider” status to “nonadherents.” These folks, so the story goes, would be “second-class citizens.” The aspiration is therefore some kind of solidarity.

If the objective of the Court’s religious liberty corpus is to cement social bonds and, in no precise sense, to “bring us together,” then their project could hardly be more wrongheaded. Given simple demographic realities, if the idea is to stress what we have in common, the Court ought to celebrate religion, especially as instantiated in Christianity.

Besides, “superneutrality” raises the question, what is the genera of which religion is one species, to be treated equally with other species? What is this mysterious “nonreligion” that stalks the cases? There are relatively few genuine atheists and agnostics in America. In none of the cases, moreover, has any interested party been identified as a nonbeliever. For all we know, every single person who received funds at the University of Virginia and every person who ever spoke or demonstrated outside the Ohio State capitol, was and is a devout religionist. What you have in these cases is not a struggle between “believers” and “nonbelievers.” You have a contest about the rights of believers, some of whom surface in the law under the description “religious,” others of whom surface in the law under another description.

Among the student groups who received funding at University of Virginia were the Muslim Students Association, and the C. S. Lewis Society. Would these groups have been “nonreligionists” consigned to second-class citizenship if Wide Awake had been funded? They rather seem to be believers who happened not to apply for funds to underwrite specifically “religious activities.”

Here is the story. The law of religious liberty has been gobbled up by a wider civil liberty, which is determined by the morally autonomous self, the colossus which exercises sovereignty over good and evil. The Court began about three decades ago surrounding the subjectivist self with impregnable constitutional defenses. On one flank the Justices upgraded moral decisions like contraception and abortion to the status of religion, without actually calling it such. They grounded pro-choice decisions in the “autonomy” of persons, glossed by a dreamy rhetoric of spiritual imperatives.

On the other flank they downsized religion from monotheism to any belief or “ultimate concern,” such that belief and disbelief are now equally protected as self-defining choices. The coherent rationale for a “superneutral” religious liberty is this: it’s about liberty, not religion.

“Religious liberty” is, more exactly, that autonomy which defines a private sphere in which everyone gets to do as he or she pleases, so long as there is no tangible harm to nonconsenting third parties. In the eyes of the law, Billy Graham, Cardinal O’Connor, Shirley MacLaine, the village atheist, and people who express themselves by listening to the Rolling Stones are all doing the same thing. They are doing their thing.

These developments were consummated in June 1992, in the Supreme Court decision which bears the name of the most courageous political figure in America. In what I call the “mystery passage” of Planned Parenthood v. Casey, a plurality of Justices — Kennedy, O’Connor, Souter — spoke effectively for a majority. “At the heart of liberty is the right to define one’s own concept of existence, of meaning, the universe, and of the mystery of human life.” Beliefs about these matters could not define the attributes of personhood were they formed under the compulsion of the state. The State must not try to direct persons toward the good.

The mystery passage provided a solution to the religious liberty dilemma. The dilemma, you recall, is how to make religious liberty equally available to atheists and the “irreligious.” Casey has the solution. Define religion in a way that includes everyone. Make “religion” out of existentially inevitable questions. Then everyone is religious, even atheists and agnostics.

Where do Pinette and Rosenberger fit into this scheme? They indicate that the situation for believers is worse than I have described. Those cases are about how much worse state authorities may treat religious activities than they treat assertedly comparable “nonreligious” actions. To avoid the appearance of evaluating religion favorably, states have been authorized by the Supreme Court to discriminate against believers. That is precisely what the lower court in Rosenberger did, and what Judge Ryan refused to do in Pinette. There is reason to think that the Justices will use these two cases to tighten up this margin of discrimination, to rebuke courts (like Rosenberger) which have too readily condoned treating believers as second-class citizens. If the Justices do so, we should be happier than if they do not. But little good can come from our law of religious liberty until it throws off the shackles of superneutrality. That, I rather think, will not happen anytime soon.


  • Gerard V. Bradley

    Gerard V. Bradley is Professor of Law at the University of Notre Dame Law School and a senior fellow of the Witherspoon Institute.

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