The dissent in Telescope Media Group v. Lucero offers a glimpse at the progressive vision for the future of the First Amendment.
‘Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice… The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.’
So Justice Abraham Fortas declared in delivering the Supreme Court ruling in Epperson vs. Arkansas. That ruling struck down an Arkansas statute, enacted in 1928, prohibiting Darwinian evolution from being taught in its state schools and universities. In explaining the reasons for the Court’s ruling, Justice Fortas stated:
There is and can be no doubt that the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma.
However true that statement might have become by the time it was made in 1968, less than three decades had lapsed since the Supreme Court had incorporated the religious clauses of the First Amendment into the Fourteenth, thereby extending their scope beyond the federal government to states. Shortly after having crossed that jurisdictional Rubicon, the Court launched a veritable Blitzkrieg against religion in America’s public schools and elsewhere in the public domain. By the time it had half completed its demolition work, little of any religious import remained standing in the public square beyond a few remnants of ceremonial Deism that the Court allowed to remain having judged that they no longer held any religious significance, and now only served a purely civic function.
As well as prohibiting Congress from making any laws ‘respecting the establishment of religion’, the First Amendment also forbade Congress from making any laws ‘prohibiting the free exercise of religion’. By bringing states under this latter constraint too, the Court opened the flood-gates to law suits brought by religious believers and organizations seeking exemption from otherwise burdensome laws and ordinances which, they argued, unduly constrained their freedom to practice religion. These suits yielded another set of important Supreme Court rulings, some favoring the religious litigants, others not.
The more the Supreme Court sought to accommodate religious believers by according them exemptions from otherwise burdensome laws, the more it seemed to others they and their religions were being favored by the Court in contravention of the No Establishment clause of the First Amendment. Few have been altogether happy with how in recent decades the Supreme Court has interpreted and applied these clauses, not least some its own members, most notably, Justices Rehnquist, Thomas and Scalia. Disgruntled believers have tended to consider the Court unduly indifferent, if not downright hostile, to religion. Secularists have tended to consider many court rulings overly accommodating of religion. Some have even questioned the mutual consistency of the two clauses. They doubt whether, especially in such a diverse and secular age as the present, they any longer can provide a suitable basis for a principled legal stance towards religion.
At this point in the proceedings enter Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University. In his new book, he seeks to rescue the religious clauses of the First Amendment, and to defend how the Court has interpreted and applied them in recent decades, from charges of inconsistency and being less than even-handed between different religions and between them and irreligion. The key to their rescue, he argues, is to understand that, since their incorporation, the Court has construed them as demanding of it and every other branch of government nothing short of strict neutrality as between different religions and between them and lack of any. As Koppelman opens his book by remarking:
The American law of freedom of religion is in trouble, because growing numbers of critics, including a near- majority of the Supreme Court, are ready to cast aside the ideal of religious neutrality… A growing number of writers, including several Supreme Court judges, have argued that religion clause doctrine is both incoherent and substantively unattractive. They propose to replace it with a new set of rules… far friendlier to official endorsement of religion… There is [however] a logic to the law that its critics have not understood… The key is understanding the precise level of abstraction at which American law is neutral towards religion.
The remainder of Koppelman’s book is given over to his explaining and defending the high level of abstraction at which he maintains the Supreme Court has sought to uphold neutrality towards religion. Koppelman’s first task is to specify the kind of neutrality he claims the Supreme Court has sought to uphold through construing it as demanded by the religion clauses of the First Amendment, a task he undertakes in the first chapter. His second task is to defend the Court’s derivation of that ideal from that source, undertaken in the second chapter. The next stage in the rescue operation involves Koppelman explaining and defending how the Supreme Court has sought to uphold the ideal in its various rulings in cases invoking the two religion clauses. Koppelman’s final task is to explain and defend the singling out of religion for the special protection that the religion clauses offer, a task undertaken in the final pair of chapters of the book.
Specification of the desiderated form of religious neutrality, according to Koppelman, is relatively straightforward. He writes:
The idea of neutrality holds that government ought to avoid… tak[ing] a position on some question that it should abstain from deciding. The classical example is… which (if any) religion is true… Contemporary Establishment Clause doctrine requires both neutrality of aim and neutrality of justification [of state policies and laws], albeit only with respect to religion.
In Koppelman’s view, it is to such an ideal that America has become committed by adoption of its Constitution along with its various amendments. This puts Koppelman at odds with those, including, among others, Justice Antonin Scalia, who have denied that the Establishment Clause forbids all public manifestations of religion, most notably those that favor theism over polytheism and atheism. Koppelman vehemently disputes their constitutionality, writing:
Scalia’s position is essentially that the state may take one side in modern religious controversies, in favour of traditionalists and against modernists. This kind of religious division… is one of the central evils that the religion clauses have from the beginning sought to prevent.
In his second chapter, Koppelman explains how and why the religious clauses were intended to prevent the state from becoming embroiled in such divisive controversies by requiring from it scrupulous neutrality as between all religions and none. There, he seeks to show that:
American neutrality… [embodies] an aspiration [deeper than political compromise and accommodation] that antedates the founding, that animated the framers of the First Amendment, and that has had a powerful influence on the Supreme Court when it laid the foundations of contemporary doctrine… This is the idea that religion can be corrupted and degraded by state control.
Like the US army major who said it was necessary to destroy a Vietnamese village in order to save it, Koppelman contends that it was necessary for the Supreme Court to banish religion from the public square, to the extent in recent decades it has, in order to protect it and its adherents from its baneful influence. It is not, therefore, because of hostility towards religion that the Court has done so, according, but rather amity towards it. He writes:
The corruption argument was pervasive during the period of the founding… Its proponents consisted of two very different religious factions. By far the more numerous were the Baptists… But the principal spokespersons… were Enlightenment Deists such as Jefferson, Paine and Madison… the principal author of the First Amendment…
It was not only at the time of the founding, so Koppelman maintains, that concerns about the corrupting effects of state involvement in religion have weighed heavily with constitutional law-makers and justices. He writes:
The corruption argument has remained a powerful force in the interpretation of the religion clauses. It certainly was part of the legal culture at the time of the framing of the Fourteenth Amendment, and there is powerful evidence that the framers of that amendment intended the disestablishment norm to apply to the states…
The architect of modern Establishment Clause law is Justice Hugo Black, who wrote the most important early opinions interpreting the Clause…[H]e does not rely on arguments… about the secular benefits of disestablished religion. Rather he echoes Baptists dissenters…when he declares that “religion is too personal, too sacred, too holy, to permit its ‘unhallowed perversion’ by a civil magistrate.” [Engel v. Vitale]
Armed with this historical narrative, it becomes a relatively straightforward task for Koppelman to explain and defend how the Court has come to operationalize the demand for religious neutrality in its rulings. He writes:
With respect to… why the framers thought establishment was a bad thing, the corruption argument is indisputably relevant… and so the [Establishment] Clause should be read in light of it… That… is what the Court has done… For decades the Supreme Court has… held that, to be constitutional, a law must have a secular legislative purpose… What… the doctrine properly forbids… is [for the state] to declare any particular religious doctrine to be true, or enact laws that clearly imply such a declaration… It means that the state may not declare articles of faith… express an opinion about religious matters… [or] encourage citizens to hold certain religious beliefs… [It also] entails restrictions on government conduct.
Koppelman is aware that such pursuit of religious neutrality, a rightful pursuit in his view, presupposes that, in its unsullied form, religion is a good thing and worthy of state efforts to keep it free from its corrupting influence by any entanglement with it. His final task, therefore, is to explain why religion should be so thought, at least in all the moderate forms in which a liberal state should only be willing to tolerate it. The benefits of religion, he argues, are several. They include:
salvation (if you think you need to be saved), harmony with the transcendent origin of universal order (if it exists), responding to the fundamentally imperfect character of human life (if it is imperfect), courage in the face of heartbreaking aspects of human existence (if that kind of encouragement helps), a transcendent underpinning for the resolution to act morally (if that that kind of underpinning helps), contact with that which is awesome and indescribable (if awe is something you feel), and many others…. There are enough good things in the sack… [to give] warrant for deeming the contents of the sack, the whole set of beliefs and practices that constitute “religion” to be worthy of … the special treatment of religion by law.
That vindication by Koppelman of the worth of religion, and of the state’s strictly hands-off friendliness towards it, allows him to conclude his book by remarking:
The American regime of religious neutrality refuses to adjudicate… theological disputes… [thereby] implicitly recogniz[ing] the value of religion… American religious neutrality demands that the state be silent about religious truth, but the silence is eloquent and highlights the importance of what is not articulated… like a rest in music.
Koppelman’s central thesis that the Establishment Clause prohibits all public endorsement of religion is less than convincingly argued for. So too is Koppelman’s associated thesis that: ‘Originalism is fundamentally about a narrative of rhetorical self-identification with the achievement of a founding historical moment.’
Consider, for example, prayer in public schools and other public venues of the sort Justice Scalia has argued is in accord with the Constitution, notwithstanding twentieth century Court rulings. Koppelman’s principal objection to such prayer seems to be, not that it is corrupts religion and its adherents, but rather that it is divisive, given how many America are not monotheists in any form. He writes:
Justice Scalia… [like John Rawls] is also concerned about the terms of cooperation in a pluralistic society… [and] thinks the answer is a generalised monotheism…. [H]e thinks that there is… no other way to foster civic unity… Scalia’s solution has a fatal flaw. It discriminates among religions… [N]ot all religions involve a belief in a “benevolent, omnipotent Creator and Ruler of the world.” Christians, Jews and Muslims are in, Buddhists, and atheists are out. And the outs are a lot of people… This kind of religious division, with the imprimatur of the state… is one of the central evils that the religion clauses have from the beginning sought to prevent.
There is no warrant, although there might well once have been a Warren, for such a contention. Scalia’s form of conservative ‘original public meaning’ originalism allows negative inferences to be drawn from the behavior and other writings of the Constitution’s framers and ratifiers, as well as from that of their contemporaries, as to its original publicly understood meaning. On that basis, it is possible to say definitively that, whatever the original meaning of the Establishment Clause was, both before and after incorporation it never was intended or understood to rule out public prayer, especially in public schools, provided it was voluntary, which, indeed, it was in the schools that gave rise to the 1962 case of Engel vs. Vitale that banished prayer from the nation’s public schools.
As was remarked just after that ruling in a letter to the New York Times, written by the rabbi of New York’s Fifth Avenue Synagogue, who would later become the Chief Rabbi of the United Kingdom where he was elevated to the House of Lords during the premiership of Margaret Thatcher who called him her ‘favorite cleric’ (it was once quipped of her Cabinet it contained more old Estonians than old Etonians):
For many centuries, devout Jewish parents have taught their children, long before they could read or even speak properly for themselves, to include in their simple morning prayers the verse from the Hebrew Bible: “The beginning of wisdom is the fear of the Lord.”, so as to instil in them the conviction that knowledge or education without a religious foundation is worthless. The United States is now probably the only country in the world outside the Iron Curtain to brand as an offence the public acknowledgement of God in schools… Freedom cannot be maintained without religion, just as the brotherhood of man requires the Fatherhood of God. A generation of heathen hedonists, worshipping the idols of happiness and material success, will be unable to evoke the Herculean strength necessary to contain the mighty tide of godlessness in the defence of liberty… The “wall of separation” between State and Church must be constructed with ample gateways to prevent the divorce of education from religion if that wall is not to lay siege to our civilisation and starve it to death.
As to Koppelman’s misgivings about such public prayer excluding non-monotheists, it is equally worth quoting the words of that former British Chief Rabbi’s successor, the present incumbent (who, incidentally, was also ennobled under the premiership of Tony Blair). In recalling his own experience, and that of fellow Jewish pupils at the Church of England primary school that he attended, Rabbi Jonathan Sacks drew different lessons:
The effect of this schooling on our Jewish identity was curious. It made us, of course, acutely aware that we were different. But because those around us were taking their religion seriously, it made us consider our Judaism seriously too.
Moreover, Koppelman’s claims that Hinduism is polytheist might be far more complicated with regard to its interaction in the American public square than he knows. In the petition sent to President George W. Bush by the American Hindu umbrella organization, Hindu International Council Against Defamation, following the events of September 11, 2001, complaining about their exclusion from a national prayer service held five days after the attacks, the organization declared:
Mr President, Hindus are a peace-loving people… Non-violence, pluralism, and respect (not just tolerance) of other traditions of worship to the One Almighty God, are integral parts of its basic tenets… We urge you to henceforth include Hindus when you list the religiously pluralistic traditions of our country and include Hindus your list of places of worship in our great nation. God bless America!
That plea by the American Hindu organization seems not to have gone unnoticed by organizers of the service held in the Washington National Cathedral to commemorate the 10th anniversary of the terror attack on that day. In addition to the President, and the president of the Islamic Society of North America, invitations to participate were sent to a Hindu priest as well as to a Buddhist nun.
Ultimately, there is little to commend the ideal of religious neutrality as Koppelman propounds it, or his thesis that it is what the founders were seeking to realize. Rather it was freedom, including the freedom of parents and citizens to decide how to order their lives together in a republic that guided the enactment of the religion clauses, which were only meant to prevent the federal government from establishing a national church. The states as states, it was assumed, would continue to be governed by laws of profound moral direction that would be heavily influenced by the theistic orientation of the people. In truth, there seems good reason why the default position in the public square and in public schools should be one of such religious accommodation rather than official religious exclusion.