Supreme Myth

In an article recently published in the Phoenix Law Review , my oldest son, Woelke, explores how the Supreme Court has deployed what William Cavanaugh has called The Myth of Religious Violence: Secular Ideology and the Roots of Modern Conflict .

The Court first mentioned the “myth” in Everson v. Board of Education, and since then Everson has been cited several times in support of the notion that religion promotes violence. In the landmark Lemon v. Kurtzman, Woelke writes, “Chief Justice Burger argued that the government must be careful to avoid the establishment of a state church because it would be ‘fraught with great dangers.’ Chief Justice Burger noted that ‘[t]he history of many countries attests to the hazards of religion’s intruding into the political arena.’ The majority opinion neither cited the history of any particular country nor referenced violence. Instead, Justice Douglas’s concurrence continued the thought and explicitly tied the same dangers to violence: ‘The contests between Protestants and Catholics, often erupting into violence including the burning of Catholic churches, are a twice-told tale.’ In other words, Lemon was intended to prevent religious dangers that include (at least according to Justice Douglas) religious violence. Proper constitutional boundaries are the savior, protecting us from the violent division of religion.”

What would happen if the Court abandoned the Myth?

From one angle, not much. “Even if the Court retreated from the Myth as a rationale for applying the Establishment Clause, the Establishment Clause would remain in effect. Congress would still be prevented from making a law that establishes religion. The Supreme Court is fond of utilizing outside rationales when it is applying the Constitution to a particular set of facts, but at the end of the day, the law remains the law.” Abandoning the Myth would also not touch the use of the criterion of fairness applied to religion. And, Woelke argues, even without the Myth, the court might still appeal to a “prevention of violence” rationale to rule out certain kinds of religious activities.

Yet, with the US becoming more religiously diverse, it’s important to give First Amendment jurisprudence “a solid, justifiable rationale.” Woelke concludes that “the Supreme Court’s use of the idea that religion inherently causes violence—the Myth—is sufficiently incoherent that any jurisprudence based upon that idea ought to be questioned.”