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Religious Liberty in the Supreme Court: 

The Cases that Define the Debate over Church and State

terry eastland 

november 1995, eerdmans, $31.50

For all their concern about the rise of anti-democrats in post-Soviet Russia, when it comes to the decisive excellence of the American regime our chattering classes strangely forget self-government and the will of the people. Instead they proffer for praise the wise guidance of the Supreme Court, our government's most antidemocratic branch. Indeed, given the wrenching national struggle we witness each time a seat on the High Bench must be filled, it sometimes seems that the primary function of our Senate and presidency is the filling of openings among the Nine Oligarchs.

Of course, there is truth to the claim that constitutional democracy is recognized by its special respect for law. One might also observe that our Nine represent a needed aristocratic element in an American “mixed regime”—this despite the Founders' boast of having achieved a government wholly republican in character. Such an aristocracy would probably not be objectionable were there less divergence between the moral and social intuitions of these oligarchs and those of the people, a divergence particularly acute on the question of the social role of religion. Surely the “spirit of the laws” is violated when courts decree a theory of justice that so completely contradicts the character of a people as does our case law concerning the Religion Clause(s) of the First Amendment.

The current awkwardness of the Court's position on church and state has resulted from the intrusion of political theory into jurisprudence. Rather than understanding the Constitution as a set of procedures designed to elicit the “deliberate sense” of the American people and to see that sense prevail democratically, contemporary legal theorists—and the judges who read their books—apparently believe that the Constitution is an early “attempt” at creating a liberal political and social order. It is a document that intends to “achieve” liberalism. On this basis, justices believe themselves authorized to reflect abstractly on what a “liberal society” might entail, and having ascertained this, to decree it as our fundamental law, regardless either of popular will or of the actual text of the Constitution.

So steeped in theorizing rulership did the Court become during the Warren years that certain dubious novelties at first escaped notice. For example, it had long been held that the First Amendment committed the federal government to exercising a “lofty neutrality” among religious sects; by 1968, it seemed obvious that liberalism also demanded neutrality between religion and irreligion. Only in a 1985 dissent in Wallace v. Jaffree did Justice O'Connor point out that the Free Exercise Clause itself sometimes mandates exemptions for religious observers from otherwise generally applicable legal obligations. She concluded that “a government that confers a benefit on an explicitly religious basis is not neutral toward religion,” nor was it ever intended to be. While neutrality between religion and irreligion may be required by liberal theory, something very different is required by the United States Constitution. But since what we might call an accommodating separationism is a deeply engrained American moral habit, many informed Americans have not been able to articulate the reasons for their sense that something has gone awry in the Court's religion decisions.

Terry Eastland's new book—an edited collection of the key religion cases of the past half century, with short commentaries by Mary Ann Glendon, Michael Sandel, and Michael McConnell—aims to provide its readers with a sophisticated understanding of these highly controversial matters. For those who have followed the debates about the Court's religion decisions in this journal, little new ground is covered, though the excellent Sandel essay deserves the wider audience this book may offer.

In light of their changed political fortunes in the 1990s, the book might be considered a summa of unrealized “neoconservative” hopes in this field, but some of the arguments may now have only an historical importance. For as Eastland himself has noted elsewhere (“Religion, Politics, and the Clintons,” Commentary, January 1994), a major shift in the “conservative” approach to church-state issues may be occurring, a result of the growing recognition among Evangelicals that the Protestant hegemony of the past is beyond retrieval. Consequently, clothing the public square with the decent drapery of Protestant Christianity (for example, by returning prayer to the public schools, a Reagan-era staple) now seems a politically unrealizable goal. A new conservative consensus may now form, however, around the project of shrinking the public square, or at least the state sphere—in part by recognizing that public purposes are pursued not only through state action but also through intermediate institutions, the classic American case being the parochial schools. Such an approach to delimiting the spheres of church and state was pioneered by John Courtney Murray and has heretofore found expression primarily in Catholic political practice. A growing Evangelical orientation toward such a view marks an important development.

All this is a matter of speculation, however. In the meantime, the texts of the decisions in Eastland's collection present a fascinating insight into American liberalism's confused struggle with religion's failure to wither away on these shores.

The first oddity that this anthology brings to light concerns the issue of originalism. In some of these decisions, the “Founders” are understood to mean Madison simply, and at least twice his “Memorial and Remonstrance” is appended to a decision or a dissent as if that pamphlet alone settled the question at bar. Jefferson's opinions are also explored to illuminate American founding principles, and his phrase about a “wall of separation” between church and state is ritually repeated. This is an odd business, however, for Jefferson was in Paris during the Constitutional Convention, and he did not sign the document. To undermine Justice Burger's indulgence of Pawtuckett's display of a Christmas creche scene, Justice Brennan was even willing to repair to the Massachusetts Bay Colony's historic intolerance of all things Popish to illustrate the “true” American tradition on the subject of Christmas creches.

The experience of virtually no state other than Massachusetts and Virginia is adduced to establish the controlling American history of church-state relations. Yet none of the early decisions that set the tone for the Court's great secularizing project shows awareness of the fact that the First Amendment, as ratified, is the work of the fiery Massachusetts Puritan, Fisher Ames; its wording was intended specifically to protect his state's established church from federal interference. Only in the 1980s do we begin to see a more sophisticated understanding of American history applied to church-state questions, especially in the dissents of Justice Rehnquist. He provides a detailed account of the debates in the First Congress over the wording of the First Amendment, notes that the Northwest Ordinance recognized the government's obligation to address the religious needs of a democratic people, and considers that the U.S. Congress funded even avowedly sectarian schools for Indians as late as 1897. Such history indicates that the American Way in matters of church and state simply does not coincide with contemporary liberal theories of political sovereignty.

Given the Court's embrace of liberal theory, however, it is not surprising that the contest over religion's role in American society should focus on the schools, both public and parochial. For liberal theories of politics begin with the conceit that we can presume the existence of rational adults. Such theories seek to do these adults justice by respecting their autonomy. What was conspicuously missing from the early liberals' accounts of the state of nature was any mention of children; what is thus absent from liberal political theorizing is an account of education, the rearing of children, something which had been a central concern for classical political philosophy. It is no exaggeration to say that liberalism by itself has no idea what to do with children.

But this lacuna cannot easily be remedied, for liberalism's boast is that it prescinds from any thick theory of the Good, and thus uniquely does not need to indoctrinate (or train, or habituate) its citizens with controversial orthodoxies. Insofar as the rearing of children was a local, (semi-)private matter, there was something to this boast. But when the liberal state appropriated to itself the business of education, it seized the responsibility of soul-formation. An avowedly liberal state would appear to have two choices: either it can relinquish its claims to hold the right prior to the good—and thus its privileged position over other political possibilities—or it can extricate itself from its control of education, relinquishing this responsibility to other social bodies. The latter option would seem preferable, for as former Krakow Mayor Jacek Wozniakowski has noted, the state in our century has proven to be a bad patron of education-which is why school choice programs are a salient feature of all the post-Communist societies in the East.

Liberalism's difficulty in justly accommodating the fact of children is amply evident in the Court's school prayer decisions, collected here, all of which exhibit a fumbling psychological rationale for school secularism. The majority opinions examine with great sensitivity the subtle pressure that public prayer might impose upon impressionable youngsters; formal prayer would not be neutral. But these same opinions insist that in eliminating public prayer from the schools, the freedom of the religious child is in no way infringed, for the child is “free” to pray privately. Simultaneously, children are understood as vulnerable, conformist, incompletely formed egos and as confident adults, prepared and equipped to cleave to their faith and religious practice regardless of the pressure of indifferentism communicated by the school environment.

Likewise and ironically, in the 1948 McCollum case, while deciding that in-school but privately funded religious instruction nonetheless violated the “wall of separation,” Justice Frankfurter himself explained most convincingly why after-school extracurricular religious education is an inadequate substitute: the secularity of the common school program coupled with the school's monopoly of a child's “business hours” effectively marginalizes such after-school programs. If religion were important, it would be a subject in “real” school. Anyone involved in religious education today can attest to the powerful effect on children's minds of this official exclusion of religion from the formal curriculum: there is nothing neutral in it.

Conversely, a similarly unconvincing psychology is found in the justices' worry about an impression of state endorsement of religion in programs that send state-funded teachers into parochial schools to teach remedial secular subjects. In his 1985 Grand Rapids v. Ball decision, Justice Brennan writes that a child in a government-funded program within a parochial school might perceive a “symbolic union of church and state.” Brennan believes that this is “likely to influence children of tender years, whose experience is limited and whose beliefs consequently are the function of environment as much as of free and voluntary choice.” This reasoning seems compelling, until we realize that it presumes that a school child has even the slightest notion of where a teacher's salary comes from, which is dubious, if not incredible.

And perhaps this is what is fundamentally missing in the Court's attempt to adjudicate the role of religion in the schools, namely, an account of how both public and parochial schools are actually experienced by the communities that make use of them. It seems clear that the public schools are not immediately and simply understood as an activity of the state. In the minds of most Americans, the status of the local public school is not equivalent to that of the IRS. On the contrary, the school is closer to the people than is the state; it is “owned” in a way the state is not. The public school thus presents something of a private face. This perhaps explains why so many Americans who affirm the separation of church and state nevertheless cannot understand the prohibition of prayer in the public schools. Conversely, it also seems that parochial schools are not usually experienced as wholly private institutions, for they certainly perform as much a public service as the so-called public schools.

The Court, however, has been unable to recognize anything “private” about the common school. For the Court, the public—which it uniquely superintends—is an undifferentiated unity extending to anything touched by any level of government in the United States: the same laws of right must be applied in the “public” sphere everywhere. Thus, the smallest public school in the most homogeneous village in the nation must be administered in as “public” a fashion as the largest school in New York City. The austerely and justly neutral state, once comfortably distant, now by Court order thrusts itself into local communities, which in a significant sense are no longer self-governing.

To some this may seem an unmitigated good, the simple achievement of just and progressive social institutions. Others remain unconvinced by such an account of justice, and perceive that we have been losing something that has been praised as a signal American excellence since Tocqueville: the self-governing nature of towns, free from the oversight of the central power, the King's Justice. In the name of controversial interpretations of individual rights, the Court's religion decisions often appear as nothing but a usurping expansion of the sphere of secular liberal sovereignty. Yet because contemporary liberal theory is unreflective about the danger of its own drive to totalism—the paradoxical destruction of the private sphere in the name of privacy rights—this social reality remains unacknowledged in our constitutional law.

Justice Brennan once wrote that “the Establishment Clause seeks that . . . no American should at any point feel alienated from his government because that government has declared or acted upon some ‘official' or ‘authorized' point of view on a matter of religion.” Ironically, the Court's point of view on religious matters has increasingly alienated a sizable American minority. That alienation can only grow, so long as the Court fails to recognize the limits of liberal justice—limits that must in large part be structured by religion's rival claim to sovereignty in human life.

Mark C. Henrie is a doctoral candidate in Political Theory at Harvard University. 

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