Rather than continuing to apply the Lemon Test the Court should rely on an accurate account of the founders’ understanding of the Establishment Clause.
In May some of us were waiting, with apprehension and hope, for the outcome in the Hobby Lobby case; but we were lifted with relief–and with an unexpected delight—by the Supreme Court’s decision in Town of Greece v. Galloway. We would have been grateful if the Court had been willing to do no more than sustain the practice of having invocations to God as the prelude to the town meeting in this small town in New York. As Justice Kennedy noted, the First Congress had moved to appoint chaplains only days after approving the language for the First Amendment. To pronounce those prayers as illegitimate now under the Establishment Clause would have marked a telling moment in driving religion entirely out of the public square. But instead of settling the case on that ground, the Court did far more: Justice Kennedy made it clear that these prayers did not have to be watered down to something so generic, so purged of the possibilities of offending, that they would be scrubbed of any identifiable religious character. They did not have to be submerged in vague “non-sectarian” prayers offered merely to the “divine,” whether that was the God of the Bible or “forces in the universe.”
The decision was celebrated by many of my friends then as a notable win. For at the very least, it put up a breaker against one current of political and legal erosion for the religious in this country. The decision has been celebrated also as a landmark victory for the cause of “religious freedom.” But we may be diverted by a trick-of-the-eye here. The decision in Town of Greece should bring the ringing of bells and some decorous dancing in streets, but if we attend closely to the holding of the Court, it is simply untenable to take the meaning of this case as a defense of “religious freedom.” But like Zorba the Greek, the case has a redeeming touch of madness: It did not offer a defense of religion as a distinct body of conviction and practice, which deserved to appreciated and celebrated, especially in the life of a republic. But it offered a deeper, wider protection of religion, running well beyond the matter of prayers before legislative assemblies.
In his opinion for the Court, Justice Kennedy managed to protect Christians with an expansive gesture: He would place them in the circle of a protected class that ran well beyond the religious. The authorities in the Town had anticipated the criticisms aroused these days by prayers publicly offered. And so they had already sought to invite a wider diversity of views in the sounding of those opening appeals to high sentiments. As Justice Kennedy noted, “the town at no point excluded or denied an opportunity to a would-be prayer giver. …[A] minister or layperson of any persuasion, including an atheist, could give the invocation.” [Italics added.] A Wiccan priestess who had read about the case quickly tested the waters by offering her services—and they were accepted.
But no understanding of “religion” even faintly acceptable to the seriously religious in this country could encompass, in its definition, the rejection of theism. Large-natured the decision in Town of Greece certainly was, but taken strictly on its own terms, it cannot be represented coherently as defense of a “religious” liberty, without emptying religion of its meaning.
And yet, the four liberal justices in dissent in the Town of Greece were willing to strike down even this scheme for not being even more ecumenical in its sweep. Apparently, something lurking in the Constitution should have enjoined the authorities to move further afield to nearby towns in the search for a “diversity” of views even wider yet. But let us imagine a program of this kind designed to “honor religion”: two days a week we might pray to the God of Israel, or receive the Eucharist of the Lord who died on the cross, while on other days we burned incest to local divinities, invited in animists to sacrifice chickens, and wiccans to cast their spells of the season. Could this scheme be represented to the world as a civic ritual manifesting our “respect” for “religion”? Or would it be quite the opposite?: Would the whole spectacle be grounded on the premise that these devotions could be equally “respected” or honored because none of them could be truer, with a higher claim to our respect, than any of the others? Which is to say, the whole project begins by refusing to respect the way in which these devotions and teachings have been understood, and found compelling, by those who hold to them.
Many of the religious, in their euphoria over the outcome, may not have noticed that Justice Kennedy moved in an expansive sweep by reducing “religion” to encompass atheism or the rejection of gods and God. And yet the atheists surely did notice. In different parts of the country atheists have experienced a new surge of energy as they’ve sought to take advantage of this new license conferred by the Court in Town of Greece. The Wall Street Journal, in the middle of July, noted the initiatives springing up in the land: Mr. David Williamson, of the Central Florida Freethought Community came forward to offer an invocation at the meeting of the Osceola County, Florida, board of commissioners. Attendees bowed their head as Williams appealed to a “spirit of goodwill” rather than the God of the Bible. Williamson has sent letters to 20 other counties, offering the same benign service. The Journal reports that in Portage, Michigan, south of Kalamazoo, Mr. Tim Earl, a self-described atheist, has already delivered three recent invocations. And as though we could have doubted it for a moment, even our friends at the Church of the Flying Spaghetti Monster are flying again: They are getting in gear to field members on a broad field to offer themselves for invocations and their parody of religion. Truly, the holding in Town of Greece has brought us Springtime for Atheists.
Henny Youngman once sympathized with the plight of the atheists: they have no holidays. But they have had, nevertheless, a roaring good time, and why begrudge them? For in the meantime, the joys of the atheists come with grounds of joy for the rest of us as well. For surely there has been no harm in many of these people, rising to the new spotlight, and yet trying, much in the way that clergyman have tried, to shape appeals that will not offend. And so they appeal, as clergymen often do, to notions of a common good, for the muting of self-interest, and the ties of civility among fellow citizens. The holding in Town of Greece did not exactly offer a vindication of religious freedom, but the justices wrought better than they knew. For without offending the irreligious, the Court has put in place protections for the religious that move well beyond the matter of invocations at public assemblies.
The Court is protecting now a freedom available to the religious, the atheists, and even to the enemies of religion. And what is it? A freedom to do what? Perhaps to offer public-spirited appeals in official settings dealing with the public business? Appeals directed to a common good, meant to cast its benefices on all? We would seem to have here a holding that, on matters of public business, in the life of the community in the public square, there should be no religious disability. There should be no exclusion marked off distinctly for religion, as though religion was somehow less salutary or legitimate in the life of a republic than any other legitimate associations that have standing in the life of this polity.
When the matter is cast in that form, it may supply the doctrine that would yield a clearer and more intelligible decision on many other cases. We may think here of the condition of young James Zobrest in a case from the 1990’s: Zobrest, as a student hindered with deafness, had the support of an interpreter at times in the public schools in Tucson, Arizona. That benefit flowed to him through both federal and State law. And yet in the judgment of a County Attorney he lost that support when his family shifted him for the 9th grade to the Salpointe Catholic High School, a private school. Chief Justice Rehnquist wrote for the Court in striking down that judgment, but in going to the aid of the Zobrests, he let his judgment hinge on such questions as whether the grants to the school relieved the school of anything it was otherwise funding. For in that case, the public aid would not subsidize any religious programs. Rehnquist found some value in arguing that the aid here flowed to the students and his parents. When the case was seen in that way, the aid flowing to a religious school, in its religious mission, was negligible. Still, he preserved the lurking premise that there was something immanently questionable or possibly illegitimate in public monies supporting, even indirectly, a private religious school.
But why the need to treat the support of religion as though it were something corrosive, or detrimental, in the life of a republic? The holding in Town of Greece could possibly firm up the spine of the justices and augment their confidence in taking a line now far clearer: James Zobrest had benefits coming to him through federal and local law. In the absence of these benefits conferred by the law, there was no principle that made it necessary for government at any level to spend public monies for private schools. But when those benefits were conferred by law, State and federal, it was nothing other than a disability based on religion that those benefits should be withheld from James Zobrest because his family shifted him to a Catholic school. In the same way we might say that if public funds may be granted to private schools such as Exeter and Andover, why should it not be available to a Catholic school? What is there in the ethic pervading a Catholic school that makes it somehow less fitting for the life of a republic than the ethic prevailing at Exeter and Andover?
What we may be seeing engaged here is nothing more than what we have seen in many other instances in our law: Lawyers and judges come to understand the holding in the case as so closely tied to the circumstances in the case that they have a hard time seeing the principle that may apply quite as aptly to other cases more remote, with far different circumstances. I think here of the late, redoubtable Philip Kurland, at the law school at the University of Chicago, musing aloud in the early 60’s: How would that holding in Brown v. Board of Education, on racial segregation in public schools, possibly entail any judgment on segregation in public swimming pools? After all, weren’t we told that the wrong engaged in Brown v. Board depended critically on impairing the motivation and performance of black children in public schools? Was the argument now that, by barring black children from public swimming pools, the authorities were impairing the capacity of black children to learn?
If we were clear on why it was wrong, in principle, to create benefits and disabilities based on race, it would have been clear to us that we did not need a new principle when it came to racial segregation in a public swimming pool. There was no need to invoke a “constitutional right to swim.”
But the example bearing most directly on this argument may be that case so often cited by the Supreme Court to establish a “right to procreation”: Skinner v Oklahoma (1942). In that case the Court struck down a law in Oklahoma that provided for the sterilization of “habitual criminals,” people who seemed to be driven irresistibly to commit felonies of “moral turpitude.” The legislature, in a time of high confidence in eugenics, threw off any hesitations in pronouncing on the crimes quite likely to have a genetic basis. As the legislature drew the line, three convictions for felonies were taken to mark a recidivism so pronounced that it could be explained most likely by a genetic cause. In this particular case, one would have to suppose, with a straight face, that there was a genetic disposition to steal chickens.
In later years, looking back on this case, the Supreme Court would cite it to mark a “right to procreation.” In that way, this case could be arrayed among others citing a right to familial privacy (Meyer v. Nebraska) or a “right to marriage” (Loving v. Virginia), and they would all somehow sum up to entail the right to an abortion (Roe v. Wade). But of course a “right to procreation” was on its face bizarre. Could that “right” be invoked by a rapist?: Could he plea that he had a right to beget children, but that no woman would willingly agree to join him in the conjugal act of begetting? And we may forget all too readily that, in his concurring opinion, Chief Justice Stone had not been willing to rule out policies of compulsory sterilization if it could be proven in any case that a prisoner bore the potential to generate “criminal tendencies” in the offspring he might produce.
If the case were seen with a strictness that ran beyond the slogans, it could be seen more aptly as a case that put a severe burden of justification on laws that subject people to compulsory and irreparable surgery. If the holding had been seen in that way, it could have applied to many things apart from procreation and sterilization. It could have applied, for example, to the cases involving surgery on frontal lobes to induce quiescence in the violent. Or perhaps even to certain forms of operational conditioning, ordered up to diminish the libido of people who are—shall we say?–sexually hyperactive.
If we see the holding in Town of Greece with a different lens, the holding works to protect the religious as it casts protections on us all, the religious and non-religious. In that respect it could deliver some of the same advantages that I’ve suggested for an alternative line of reasoning in the Hobby Lobby case. I’ve argued in that vein, following the lead of Judges Janice Rogers Brown and Diane Sykes in other cases, that Hobby Lobby could have been won without putting the main and decisive accent on the “theology” of the litigants or the “sincerity” of their “beliefs.” Indeed, most critically, the case could have been resolved without reducing our understanding of “religion” to a cluster of “beliefs” detached from the claims of truth.
What was engaged there, as I have argued in this space, was a classic problem in our constitutional law: The government was imposing on private persons to bear, at their own, private expense, the burdens of what the government regarded as a public obligation. A Court that spotted this classic violation would not need to embark on a long voyage of “activism,” for it would not need to keep intervening to gauge and fine-tune the measures that formed the “least restrictive means” of accomplishing the ends of the government. The Court could simply invoke the discipline of constitutionalism and send the matter back to the Congress: The judges would not have to pronounce on the rank-order of interests of the government of United States and decide whether the government had a “compelling interest” in diffusing abortifacients and contraceptives in the land. That judgment would be left, as it should be, to the Congress. If Congress thought there was a compelling interest in distributing widely these products and services, then it could promote them with tax incentives, or even give them away and pay for them with public monies. But in that case the Congress would have to take on the political responsibility of justifying to the public the taxes that would be necessary in raising the money. A vexing matter, to be sure, but it is precisely by assigning these political burdens that the Constitution works to limit the reach of the government.
The late Fr. Neuhaus once raised the question of whether atheists could be good citizens. And by that he didn’t mean whether atheists could obey the laws. His question rather was whether atheists could give a moral defense of that regime that contained their rights. In his recent invocations, the aforementioned atheist David Williamson does not appeal to God, but to “we the people”: “Through the millennia we as a society have learned the best way to govern the people is for the people to govern themselves.” But where did that doctrine of natural rights, and government “by the consent of the governed,” come from?
Williamson may set up possibilities quite instructive—and delicious—for the religious who invite him in. The town fathers and mothers could simply provide, as a prelude to the invocations, a reading of the beginning of the Declaration of Independence. They could invoke the “Creator” who “endowed” us with “unalienable rights,” the Author of the Laws of Nature, including the moral laws. And in doing that, they might offer a gentle reminder that the notion of natural rights has been bound up since the beginning of the American regime with the recognition of the inequalities in nature: We make our way to the things that make human beings by nature equal by separating human things from the things that are either subhuman or superhuman. As James Wilson had written, supreme power would be eminently justified for “Him who is Supreme.” But among human beings, those sublunary creatures, there could be “neither superiority nor dependence.” If those rights did not arise from nature, did “We the people” just give ourselves these rights as rights of positive law? And if so, would we not be quite as free to remove those rights, including those rights we may settle upon the atheists?
If my reading here is correct, the holding in Town of Greece wrought better than we had reason to hope, and accomplished even more than our friends have lauded it for doing. The lesson, and the case, may finally be put in this way: Can we not see the ingredients of a better jurisprudence, and a jurisprudence running deeper, in a jurisprudence that would protect the religious as it would protect us all?