"The Law and Politics of Religious Freedom:
A revolution in the making."
by Phillip E. Johnson
A review of
The Quest for a Constitutional Principle of Religious Freedom
By Steven D. Smith (Oxford University Press, 1995)
Mere Creatures of the State? Education, Religion, and the
By William Bentley Ball (Crisis Books, 1995)
Steven D. Smith is a University of Colorado law professor who deals
with abstract intellectual issues; William Bentley Ball is a practicing
lawyer who represents religious groups and individuals seeking freedom from
dominance by government entities committed to secularism. Both men have
valuable insights into a revolution that is currently under way in the interpretation
of constitutional law regarding freedom of religion and religious establishment.
This revolution involves a changing understanding of what it means
for the government to be "neutral" on religious questions, neither
favoring nor opposing either particular religions or religion-in-general.
For at least the last 25 years the dominant principle (occasionally ignored
in practice) has been that neutrality means "no aid" to religion.
The competing principle, which now seems to have five votes on the Supreme
Court, is that neutrality means giving "equal treatment" to religious
and nonreligious entities alike.
In a context where the government is giving substantial subsidies or
benefits to nonreligious entities--such as secular educational institutions
or student activities--the two principles have radically different consequences.
Under the "no aid" principle it is unconstitutional (as an establishment
of religion in violation of the First Amendment) for the government to broaden
the subsidy to include religious schools or groups; under the "equal
treatment" principle it is unconstitutional for the government to discriminate
against those same religious entities by not broadening the subsidy.
The latest statement by the Supreme Court on the question is a 5-4
decision in Rosenberger v. Rector, in June of this year. The case
involved the Student Activities Fund (SAF) at the University of Virginia,
which receives money from mandatory student fees and uses it to subsidize
student activities, including the printing costs of student publications.
Those publications are free to advocate all sorts of political and social
causes, but the university invoked the "no aid" standard and refused
reimbursement to a Christian student organization because its newspaper
"primarily promotes or manifests a particular belief in or about a
deity or an ultimate reality."
Four Supreme Court Justices agreed with the university, citing cases
holding that to provide public money for religious advocacy violates the
no-establishment rule even if the same subsidy is given to all student publications
regardless of their content. The majority of five Justices cited other cases
which followed the equal treatment rationale and held that, by denying a
subsidy only to those student publications that advocate "religion,"
the university violated the right of the religious students to freedom of
In his wonderfully clarifying book, Steven D. Smith explains why it
is impossible to resolve this clash of principles either on the basis of
the language of the Constitution, or on the basis of historical evidence
that the First Amendment was intended to prefer one principle or the other.
Sometimes the "intent of the Framers" is ambiguous, but Smith
explains that in the case of the First Amendment's religion clauses the
original intention is perfectly clear, and the post-World War II Supreme
Court has simply chosen to disregard it.
The whole point of the First Amendment religion clauses was to deny
jurisdiction over religious questions to the federal government, and leave
such matters to the discretion of the individual states. That is why the
amendment was drafted to say that "Congress shall make no law
respecting an establishment of religion." The national legislature
was not to meddle in matters of religious establishment at all, whether
by instituting such an establishment at the national level or by interfering
with the religious establishments (e.g., state payment of clergy stipends)
that existed in some of the states.
The question of the proper relationship of government and religion
was controversial in the late eighteenth century just as it is now, and
there is no way of knowing how it would have been resolved if the Framers
had decided to tackle it. That is why Smith's title declares the quest for
a national constitutional principle of religious freedom to be a "foreordained
failure": the point of the religion clauses was precisely to prevent
the formation of such a principle by leaving the matter to the states. When
the twentieth-century Supreme Court declared that the religion clauses were
"incorporated" into the Fourteenth Amendment's due process clause,
and hence were applicable to state and local governments, the Court effectively
reversed the intent of the Framers and declared itself to be the national
religious lawmaker that the First Amendment was expressly intended to forbid.
If the intent of the Framers were to be our guide, then what is clearly
unconstitutional is practically everything that the Supreme Court has done
in this area since 1947. Yet it is unlikely that the Court will ever repudiate
its usurpation of authority, especially since the public has grown accustomed
to thinking of religious questions as matters to be resolved at the national
The mere fact that five Justices currently support the "equal
treatment" principle does not imply a well-established new outlook,
since the next appointment might shift the balance back the other way. (The
two Clinton appointees, Justices Breyer and Ginsburg, joined Justice David
Souter's dissent in Rosenberger.) A possibly more enduring change
in the ideological climate, however, is that the philosophical bottom has
dropped out of the notion that there is a secular rationality that is truly
"neutral" between theism and agnosticism. Just about everybody
in academia now understands that controversial and politically loaded value
choices usually lie concealed behind the purportedly neutral rationalizing
of power holders such as Supreme Court Justices.
Is a school district neutral on religious questions when it leaves
all mention of God and the Bible out of the curriculum--while purporting
to teach students just about everything they need to know, from "values
clarification" to how to use a condom? Smith quotes University of Chicago
Law School Professor Michael McConnell to the contrary: "If the public
school day and all its teaching is strictly secular, the child is likely
to learn the lesson that religion is irrelevant to the significant things
of the world, or at least that the spiritual realm is radically distinct
and separate from the temporal." Protestants are at last realizing
what Catholics understood all along: the notion that a religion-free secular
knowledge is all we really need is anything but neutral on religious questions.
William Bentley Ball looks at the religious liberty issue from the
perspective of a Pennsylvania lawyer who has represented religious groups
and individuals in a variety of significant cases. These include his victory
in Wisconsin v. Yoder (1972), in which the Supreme Court upheld the
right of the Amish to keep their children out of public high school, and
especially his stunning loss in Lemon v. Kurtzman, the 1971 Supreme
Court decision that most firmly entrenched the "no aid to religion"
principle into constitutional law. As a litigator, Ball feels that the voluminous
writings of the theoreticians in the law schools need to be balanced by
some input "from below," to illuminate how the constitutional
rules feel to the people who are most affected by them. Speaking as one
of those theoreticians, I thoroughly agree with him.
The issue in Lemon v. Kurtzman was whether the state of Pennsylvania
could subsidize the purely academic side of education in religious schools,
such as teachers' salaries and other expenses relating to math, foreign
languages, and so on--and excluding religious instruction, which would continue
to be financed entirely from private sources. The rationale for allowing
the subsidy was that education in these subjects was not substantially different
in religious and secular schools, that the religious schools were providing
a public benefit by educating pupils who would otherwise have to be educated
entirely at public expense, and that parents exercising their right to choose
religious schools for their children are also taxpayers and ought to get
some benefit from their taxes.
Ball was at first confident of victory because the Supreme Court had
previously upheld provision of bus transportation and textbooks to religious
schools, thus indicating that the purely secular side of their activities
could receive public money. The Pennsylvania program led to a pitched legal
battle, however, in which the religious schools were on the defensive for
three reasons. First, almost all the schools that would benefit were Catholic
schools; second, the public school lobby vigorously opposed the subsidy;
and third, the subsidy was also opposed by both the Pennsylvania Council
of (Protestant) Churches and the largest Jewish organizations in the state.
Believers in God were thus thoroughly divided, and many influential
people saw no good reason for Catholics to be so determined to avoid a public
school system that seemed to satisfy everybody else. In the circumstances
the secularists persuasively characterized the measure as a sop to the political
power of the Catholic Church. The Supreme Court Justices in turn regarded
that Church with undisguised suspicion. The Court held that the subsidy
was unconstitutional because the "secular" teaching in religious
schools could not realistically be separated from religious indoctrination
without a pervasive state supervision that would itself entangle the state
in controversial religious affairs.
Ball's analysis suggests that the Supreme Court might well have approved
a similar measure in a different context, and no doubt he is right. One
needs only to look at the contrasting decision Wisconsin v. Yoder,
in which the same Court granted Amish families an extraordinary exemption
for compulsory school attendance laws, to see that the Justices had no absolute
objection to conferring a protective benefit on a religious group regarded
by everyone as appealing rather than threatening. On the other hand, the
"balanced treatment for creation-science" legislation never had
a chance of success in the Supreme Court, because the fundamentalists who
were thought to be the only people opposed to "evolution" were
as politically isolated as the Catholics in Lemon v. Kurtzman.
Christian and Jewish theists can draw at least two important lessons
from the sad story related in these two books. First, we should never be
impressed by arguments that "the Constitution" absolutely forbids
some sensible measure that treats religious and secular interests fairly.
What doomed the religious school subsidy was not a document locked up in
the National Archives building, but the dominant attitude toward Catholic
schools at the time among the groups that Supreme Court Justices take most
seriously. Second, the people of God need to learn to unite on first principles
before we start arguing over what follows. The Pledge of Allegiance that
we all recite tells us that this is one nation under God. If that language
rings hollow today, it is not primarily the fault of the agnostics, but
of the people who know God but who have preferred to fight over what divides
them rather than to unite over what they have in common.
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