The argument of these last several Friday postings is that the no-establishment provision of the first freedom of the First Amendment is entirely in the service of the free exercise provision. I should note, at least in passing, that those devoted to the “original meaning” of the First Amendment argue that it was intended to be no more than a guarantee that the federal government would not interfere with the religious arrangements of the states, some of which had legally established churches. They are right about that.
The tangled and incoherent church-state jurisprudence of the last half century, they say, is the product of a misguided effort to produce elaborate legal doctrine from what was no more than a pragmatic guarantee. They are largely right about that, too. As Philip Hamburger, Clarence Thomas, and others have noted, that misguided effort was powerfully driven by anti-Catholic bigotry. All this is true enough, but our necessary concern is with the religion clause as it has been formed and deformed in the past half century.
The deepest deformation is the subordinating of free exercise to no-establishment. Once we forget that no-establishment is a means and instrument in support of free exercise, it is a short step to talking about the supposed conflict or tension between the two provisions. And from there it is a short step to the claim, as it has been claimed in numerous court decisions, that the two parts of the religion clause are “pitted against one another” and must somehow be “balanced.”
And from there it is but another short step to the idea that the no-establishment provision protects “secular liberty” while the free exercise provision protects “religious liberty.” When the religion clause is construed according to this curious inversion, it is no surprise that religious liberty comes out the loser. Any impingement of religion upon public life is taken to violate the secular liberty of the non-religious. Thus has no-establishment become the master of the free exercise that it was designed to serve.
We need not speculate about the practical consequences of this curious inversion of the religion clause. The consequences are plainly to be seen all around us. In the name of no-establishment, wherever government advances religion must retreat. And government does inexorably expand its sway over the entire social order. In education, social services, and other dimensions of public life, it is claimed that, for the sake of the non-establishment of religion, Americans must surrender the free exercise of religion.
Those who insist upon the exercise of religious freedom in education, for example, must forgo the government support that is available to those who do not so insist. Thus is religious freedom penalized in the name of a First Amendment that was designed to protect religious freedom. Thus has the constitutionally privileged status of religion been turned into a disability. Thus has insistence upon the free exercise of religion been turned into a disqualifying handicap in our public life.
The plain statement of the religion clause is that “Congress shall make no law . . . .” That is a limit placed upon the state, not upon religion. Jeffersons metaphor of “the wall of separation,” which, with mischievous consequences, has been “constitutionalized” by the courts, cannot be violated by religion. Churches and other religious actors are free to do their best, or their worst, to influence the state. What is forbidden by the First Amendment is for the state to interfere in the life of the church. In the Catholic tradition we speak of libertas ecclesiae ¯the freedom of the Church to govern her own faith, life, and mission in the world. This understanding, too, has been subverted by the inversion of the two provisions of the religion clause, the subordinating of free exercise to no-establishment, with the result that the state discriminates against the very freedom that the First Amendment is designed to protect.
The argument that public policy should not discriminate against citizens and institutions that are religious is said to be an instance of special pleading on the part of those who have an interest in religion. The use of the term special pleading seems very odd in a society in which all but a small minority claim to be religious. It is more than odd, it is nothing less than grotesque, that we have become accustomed to the doctrine that public policy should not be solicitous toward religion.
What is this religion that is viewed as constitutionally suspect? It is the individually and communally expressed opinion of a free people. To say that government should not be responsive to religion is to say that government should not be responsive to the opinion of the people. Again, the argument of extreme separationism is, in effect, an argument against democratic governance.
Once more, Jeffersons underlined sentence: “The opinions of men are not the object of civil government, nor under its jurisdiction.” The state of current First Amendment jurisprudence is such that the opinions of men and women, when they are identified as religious, have been placed under the jurisdiction of the government. According to the inverted construal of the religion clause, wherever the writ of government runs the voice of religion must be silenced or stifled¯and the writ of government runs almost everywhere. As we shall see, this gross distortion of the religion clause of the First Amendment is coming under sharp challenge today.
Richard John Neuhaus is editor in chief of First Things .