Russell and Duenes

Squeezing Religion Out of the Public Square

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religionIn doing some research on the Religion Clauses of the Constitution, I happened upon an article in the William & Mary Bill of Rights Journal, entitled: Squeezing Religion Out of the Public Square — The Supreme Court, Lemon, and the Myth of the Secular Society. 4 Wm. & Mary Bill Rts. J. 223 (1995). The author argues that “the church and state should be separate because the separation of church and state is good for religion, religious institutions, and the religious liberty of believers.” Id. at 224. However, the author also argues that our courts have badly mangled the proper understanding of the separation of church and state. He writes:

I submit that properly understood, “separation of church and state” means separation between ecclesiastical institutions and the apparatus of government. It means that government should not set up an official sect or denomination on which it bestows its special blessing. It means that governments should not control or intervene in the internal affairs of religious institutions. And it means churches, as is the case of the Anglican Church in the United Kingdom, should not have official representation in government. It should never mean, however, that religious ideals and ideas are to be excluded from the political and lawmaking processes. Nor should it mean that government is (or should be) disabled from generally endorsing, promoting, or encouraging religious belief and practice, from acknowledging God, or even from giving certain forms of aid (including financial) that advance the cause of religion. In the history of the American experiment, “separation of church and state” has never meant that American citizens would be forced to live by judicial fiat in a completely secular state.Id.

The author’s thesis is that “the religious worldview is beneficial — indeed crucial — to representative government and human liberty” and therefore “should be included in the political process and public debate.” Id. at 229. Further, he argues that the Supreme Court’s jurisprudence, “if rigorously applied” will scrub the political process clean of religion and “disenfranchis[e] religious believers.” Id. Finally, he seeks to demonstrate that a proper, historically contextual, understanding of the Constitution’s Establishment Clause “does not compel the notion that religion and politics are to be kept separate, or that government may provide no encouragement or aid to religion.” Id.

In order to demonstrate the value of the religious worldview to the advancement of political success and human liberty, the author culls evidence from state constitutions, all of which reference God. Id. at 230. He holds that “the concept of ‘unalienable rights’ — including rights to life, property, liberty, and the pursuit of happiness — is traceable back to medieval Christian theological and legal thought, and ultimately to Scripture.” Id. at 231. Indeed, “[m]oral relativism, which denies both transcendent truth and objective morality, can lead in the legal order to a crude legal positivism in which law is essentially just an assertion of the lawmaker’s will.” Id. at 232. Further, many men of the founding generation saw the benefit of religion to our political life, with the Northwest Ordinance stating that “religion” is “necessary to good government and the happiness of mankind,” id. at 233, Washington stating that “Religion and morality are indispensable supports” to “political prosperity,” id. at 233-34, and Adams holding that “our (C)onstitution was made only for a moral and religious people.” Id. at 234. Finally, Dr. Martin Luther King, Jr. is held up as one who used an explicitly religious worldview and standard to oppose discrimination, “asserting a religious belief in the inherent dignity of every human being as a child of God.” Id. at 235. Doubtless, Christian faith should stand or fall upon its truthfulness, and not mainly upon its utility. Yet a faith that is true would also have to prove a blessing and benefit to human societies.

The author addresses the Supreme Court’s Establishment Clause jurisprudence by showing that, with the so-called “Lemon test, the Court radically departed from the Constitution and in so doing has created a hodge podge of illogical and inconsistent standards which are bewildering to laymen and a source of continuing embarrassment to the four-member minority led by the Chief Justice [i.e., Rehnquist, at the time] and Associate Justice Scalia.” Id. at 243. Indeed, if one wades into Supreme Court decisions regarding religion, one finds a dizzying array of concurrences, part concurrences, dissents and part dissents among the justices. One glazes over just looking at who agrees with what. Geometric proofs are more easily untangled.

Perhaps the author’s most cogent analysis comes through pointing up the flaw in the Supreme Court’s holding that even the perception that the government is giving “aid” to or “endorsing” religion violates the Establishment Clause. Id. at 250. He quotes a Second Circuit decision, Brandon v. Board of Education, to make his point:

“To an impressionable student, even the mere appearance of secular involvement in religious activities might indicate that the state has placed its imprimatur on a particular religious creed. This symbolic inference is too dangerous to permit. An adolescent may perceive “voluntary” school prayer in a different light if he were to see the captain of the football team, the student body president, or the leading actress in a dramatic production participating in communal prayer meetings in the “captive audience” setting of the school.” Id. (emphasis mine).

In other words, students are so “impressionable” and vulnerable that they might not be able to think for themselves, and worse, if they think the state is “endorsing” religion, they might even come to believe it. Id. We can’t have that. It’s this anti-religion attitude that is lurking beneath our Supreme Court’s jurisprudence, and it’s not that far beneath it. As the author writes:

“The perceived endorsement argument’s war . . . is really a war with public manifestations of religion . . . This war is a manifestation of the attitude that religion is ‘divisive’ and therefore must be kept private, lest the public manifestations offend and cause strife. The concern with ‘divisiveness’ runs through Establishment Clause jurisprudence since Everson. Lemon picked up on the theme, explaining that while vigorous and partisan political division are ‘normal and healthy manifestations of our democratic system of government, (the) potential divisiveness (caused by religion) is a threat to the normal political process.’ Talk about divisiveness is really just a way of disguising hostility toward believers who take their faith seriously enough to bring it with them into their public lives. It is a way of telling those believers: ‘Believe if you wish, but do it in private.’ The hoped-for consequences of this privatization are that (f)aith communities will more likely be loose associations of the already converted, and attempts at unified public action will be stymied not only by the overt entrance barriers thrown up by the Court, but by the believer’s own sense that public religion ‘imposes’ one’s ‘values’ on others–values that the believer has no reason to expect will be welcome in others’ lives.” Id. at 253-54.

Is this not what has happened to our Christian communities? It would be difficult to find a better description of the current “public/ private” distinction that so dominates our schools, universities, public institutions and culture in general; yea, even our churches. Christians in particular are cowed into silence because their faith is viewed with a jaundiced eye as “divisive.” And why is it so considered? Because our educational system and political leaders tell us that Christian faith is just “opinion,” and not “fact,” and therefore, is subjective and value-laden and perhaps even superstitious. You see, over here in secular world, as Douglas Wilson says, we just “know stuff,” and therefore, our voices rightly dominate. But your opinions are pushy, and should be kept in your little Bible clubs and so forth, to be thought of as on a par with knitting, as one wag put it. As D.A. Carson notes, Christian faith is privatized without one of its central tenets being overturned. These days, no public school teacher or university professor need bother himself with demonstrating that Christianity isn’t true. That question would require actual thought and consideration. By definition, it can’t be true because it’s “a faith position,” and therefore, has no business influencing decisions in a technocratic society ruled by “experts.” The Supreme Court simply embodies this view, its protestations to the contrary notwithstanding. This is the point the author drives home with such articulate force.

Finally, the author sets out to ground a proper understanding of the Establishment Clause in its historical context. In other words, the Supreme Court’s “modern conception of the Establishment Clause as mandating completely separate realms of religion and government and prohibiting the state from giving aid or encouragement of any sort to religion–not to mention even more recent efforts to prevent government from even allowing private religious speech on government property– is not supported by the Clause’s language or history.” Id. at 257.

A significant part of the problem is the modern tendency to equate “the Establishment Clauses’ meaning with the views Madison and Jefferson had expressed in fighting general assessments in Virginia four years before the Establishment Clause was even proposed.” Id. at 261. Madison’s views have been badly distorted as it is, id. at 262, and even were we to accept the mythology surrounding them, “it is practically inconceivable that late eighteenth-century Americans would have ratified an amendment to the Constitution that would have required religion to be kept strictly separate from government or that would have prohibited any aid or encouragement for religion.” Id. at 263.

The author points to laws at the time that punished Sabbath-breaking, id. at 265, and that further punished blasphemers. Id. Indeed, the government provided funds for Christian charter schools, and created tax exemptions for the same. Id. at 266. Importantly, the author claims that “[M]adison was not on a crusade to write his personal views regarding church-state relationships (or what the Court in Everson considered to be his views) into the Constitution.” Id. at 267. Indeed, “[m]ost, if not all, members of Congress were hostile to Madison’s personal views on church-state relations.” Id. They believed in government aid to churches and religious institutions, id. at 268, and thus, modern Supreme Court notions about the original understanding of the Establishment Clause would have those who ratified it “effect[ing] a revolution in church-state relations,” id. at 269, something utterly untenable. Id. Early American laws regarding government aid to religion “are compelling evidence against the secularist interpretation of the First Amendment.” Id. at 271. Justice Joseph Story’s assessment sums things up:

“Probably at the time of adoption of the Constitution, and of the amendment to it, now under consideration, the general, if not the universal sentiment in America was, that christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation if not universal indignation.” Id. at 273.

What is upshot of all this? According to the author: “Government officials should not have to fear that their legislative work will necessarily be invalid because they were honest about their religious motives or purposes, or that the legislation ‘promotes’ or ‘endorses’ a religious point of view.” Id. at 275. The Establishment Clause, properly understood, does not necessitate government “neutrality” toward religion, as if such a thing were possible. Id. Rather, “[l]egislators may – and in some cases, should – enact laws that specifically encourage or accommodate religious practice, even if they are not neutral with regard to non-religious practices.” Id. Such a view does not promote theocracy, but simply acknowledges that religion is central to good government, and ultimately to freedom. Id. at 276. The Establishment Clause was never intended to establish “a secular public society,” id, and thus, “believers [ought not] be afraid to speak out in the public square for fear of being ‘divisive’ (although charity and prudence require that believers not set out intentionally to offend).” Id.

There is much in this article to commend, not least of which is the helpful introduction to the history of the formation of the Establishment Clause. I heartily endorse the author’s thesis that religion ought not be privatized as it is in our nation today, and that our Supreme Court has a warped understanding of proper church-state relations under our Constitution, a distortion that is not abated by our public school system, which only reinforces such tropes. The arguments put forth above will not be well-received given our current state of inquiry in schools and universities, but Christians should at least take it as a requirement that they will not just go along with “what we all know” about our religious history in this country. Would that more evangelical pastors and youth leaders would train God’s people on such things.

One final point: You may have noticed that, till now, I’ve not mentioned the author’s name. All to a good purpose, for had you known his name, you may have been sorely tempted to stop reading. Pat Robertson wrote the article, (Yes, that Pat Robertson) and I make no apologies for finding it persuasive. (Robertson has a J.D. from Yale Law School. Who knew?) I make no defenses either of some of the foolhardy, misguided, and hurtful things that have come out of Pat Robertson’s mouth over the years, nor do I subscribe to many points of his Christian theological persuasion. But when it comes to the proclamation of Christian truth in the public square as he argues for it, I’m happy to say “Amen.”

-D

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Written by Michael Duenes

January 27, 2013 at 8:46 pm

Posted in Uncategorized

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