The Naked Public

Mon, 01 Nov 2004 00:00:00 -0500

The Naked Public Square: Religion and Democracy in America by Richard John Neuhaus was published in 1984. Herewith, twenty years later, reflections on the influence of the book and contemporary problems raised by its argument, with a response by Father Neuhaus.

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The Supreme Court 1997

Wed, 01 Oct 1997 00:00:00 -0400

To help the reader understand the background of the following commentaries, we asked Robert P. George of Princeton University for a brief summary of the 1996-97 cases related to questions of morality and religion. Herewith his pulling together of the pertinent facts. His own commentary appears later in the symposium.
—The Editors

The first key decision of the Supreme Court’s most recent term was Agostini v. Felton , handed down June 23, 1997, concerning the proper interpretation and application of the First Amendment’s prohibition of laws “respecting an establishment of religion.” Since 1947, the Court has held that this “establishment clause” forbids government aid to religion. And so with Aguilar v. Felton in 1985, the Court halted a New York City program that sent public school teachers into religiously sponsored private schools to provide congressionally mandated remedial education to disadvantaged children. The effect was to force schools across the nation to locate, at great expense, remedial programs at public schools or in vans parked outside religious schools.

Aguilar became an emblem of the Court’s “strict separationist” interpretation of the First Amendment. By 1994, however, a majority of Justices had indicated their willingness to reconsider the ruling, and with Agostini , New York revived the case—winning, in a 5-to-4 decision, a reversal of Aguilar . The Agostini majority did not question the general ban of aid to religion, but they argued, in an opinion by Sandra Day O’Connor, that providing remedial education for parochial students in purely secular subjects does not constitute such aid. O’Connor repudiated Aguilar ‘s presumption that the presence of public employees at parochial schools “inevitably results in the impermissible effect of state-sponsored indoctrination or constitutes a symbolic union between government and religion.” O’Connor further rejected the idea, central to Aguilar , that an excessive entanglement of church and state arises either from the need to “monitor” public school teachers to ensure that they do not inculcate religion or from the “administrative cooperation” necessary when public school teachers work in a parochial school setting. The four dissenting Justices (David Souter, Ruth Bader Ginsburg, John Paul Stevens, and Stephen Breyer) insisted that Aguilar had been rightly decided and that nothing in law or fact had changed to authorize a reconsideration of the case. Though Agostini does not decide the further question of the constitutionality of publicly funded vouchers to enable students to attend religiously affiliated schools, it seems to strengthen the case in favor of such programs.

In the second and third key decisions, Washington v. Glucksberg and Vacco v. Quill , handed down June 26, 1997, the Justices unanimously rejected claims that state laws forbidding assisted suicide violate the Fourteenth Amendment’s guarantees of “due process” and “equal protection.” Chief Justice William H. Rehnquist, delivering the opinion for the Court in both cases, denied that the Constitution contains a “right to die.” Antonin Scalia, Clarence Thomas, and Anthony Kennedy joined the Chief Justice’s opinions. O’Connor joined these opinions as well, but filed an additional concurring opinion in each case that Ginsburg and Breyer joined in part. Breyer also filed separate concurring opinions, as did Souter and Stevens.

In Glucksberg , the Ninth Circuit Court of Appeals invalidated a Washington State prohibition of assisted suicide. Invoking the “mystery passage” from the 1992 abortion case of Planned Parenthood v. Casey —“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”—Judge Stephen Reinhardt reasoned that constitutional liberty includes the right of terminally ill persons to have a physician’s assistance in ending their lives. Rejecting this view, however, Rehnquist argued that the language from Casey had not declared an all-purpose right to do as one pleases but merely described “those personal activities and decisions that this Court has identified as so deeply rooted in our history and traditions, or so fundamental to our concept of constitutionally ordered liberty, that they are protected by the Fourteenth Amendment.” A study of history and tradition, Rehnquist suggested, reveals that suicide, and certainly assisting in suicide, have always been considered legitimate objects of state prohibition. Moreover, the interests asserted in prohibiting assisted suicide—preserving life; maintaining the integrity of the medical profession; protecting the poor, elderly, disabled, and other potential victims of prejudice and abuse; and avoiding the slippery slope to euthanasia—easily meet the basic due process requirement that laws have a “rational basis.”

In Quill , the Second Circuit Court of Appeals—though explicitly rejecting the “due process” claims on which the Ninth Circuit relied in Glucksberg —held that a New York law against assisted suicide violated the Fourteenth Amendment’s “equal protection” clause. The Second Circuit claimed that New York lacked a rational basis for, on the one hand, permitting terminally ill patients to demand the removal of life support systems, while, on the other hand, forbidding terminally ill patients to obtain a physician’s prescription for lethal drugs. In reversing the Second Circuit, Rehnquist argued that the distinction between committing suicide and removing life support or administering painkilling drugs with the side effect of shortening life is perfectly rational—the latter consistent with the physician’s ethical mandate never to kill, while (quoting medical ethicist Leon Kass) a doctor who assists a suicide “must, necessarily and indubitably, intend primarily that the patient be made dead.”

Concurring in the result in Glucksberg and Quill , Justice Stevens stated that the Court’s denial of a categorical right to commit suicide does not imply that all state statutes forbidding assisted suicide are constitutional. Noting that Washington’s death penalty means that the state’s commitment to the sanctity of life “does not require that it always be preserved,” Stevens asserted that the state “must acknowledge that there are situations in which an interest in hastening death is legitimate.” “Indeed,” he added, “not only is that interest sometimes legitimate, I am also convinced that there are times when it is entitled to constitutional protection.”

Also concurring in the result, Justice Souter defended “substantive due process,” a doctrine that the Supreme Court has invoked in some of its most controversial cases: Dred Scott v. Sandford (1857), denying the power of Congress to restrict slavery in federal territories; Lochner v. New York (1905), invalidating state limitations on the number of hours industrial laborers could be required or permitted by their employers to work; and Roe v. Wade (1973), nullifying the abortion laws of fifty states. Though substantive due process has been severely criticized as a pretext for the judicial usurpation of legislative authority, Souter argued for a “non-absolutist” doctrine that calls for courts to “stay their hands” in circumstances in which legislatures demonstrate the “institutional competence” to handle an “emerging issue” such as assisted suicide. But he held out the possibility of the Court later finding a right to assisted suicide: “While I do not decide for all time that respondents’ claim should not be recognized, I acknowledge the legislative institutional competence as the better one to deal with that claim at this time.”

The fourth key decision, City of Boerne v. Flores , reached June 25, 1997 by a vote of 6-to-3, invalidated the Religious Freedom Restoration Act (RFRA), passed by overwhelming majorities in both houses of Congress in 1993. Certain constitutional standards—standards that governments were required to meet in cases where laws, though religiously neutral and general in their applicability, impinged upon the religious freedom of citizens—had been removed by the Supreme Court in the 1990 Smith decision. In response to Smith , a broad coalition lobbied the Congress to protect the free exercise of religion, and the result was RFRA’s restoration of the requirements that laws adversely affecting religious practice be (1) supported by a “compelling state interest” and (2) employ the “least restrictive means” of achieving that interest.

The Boerne case arose when St. Peter’s Catholic Church in Boerne, Texas, was denied a construction permit on the grounds that the church is subject to the City’s Historic Landmark Commission. In response to the church’s lawsuit under RFRA, the city asserted that RFRA was an unconstitutional imposition upon legitimate state and local authority.

Invoking its power under Section 5 of the Fourteenth Amendment “to enforce, by appropriate legislation” that Amendment’s substantive guarantees of due process, Congress sought with RFRA to restore the broader protections for religious freedom that the Court had abandoned in Smith . Writing for the majority in Boerne , Justice Kennedy argued that Section 5 enforcement power is merely “remedial”—Congress not being given the power to decide what substantive rights people have under the Fourteenth Amendment or what actual restrictions that Amendment places on the states. Its authority limited to enacting laws to remedy constitutional violations where the courts have determined they exist, Congress may not, under its own understanding of free exercise, require the states to meet a compelling interest standard before passing laws of general applicability that may burden religious practice.

In a concurring opinion, Justice Scalia, the author of Smith , defended his claim that the framers and ratifiers of the First Amendment did not intend to create “conduct exemptions” for religious believers. Justice Stevens, who joined Scalia’s concurrence, also filed a separate concurring opinion (in which no other Justice joined) making the claim that RFRA was unconstitutional as a violation of the First Amendment’s prohibition of laws respecting an “establishment of religion.”

Justice O’Connor, the Court’s leading critic of the Smith case, dissented in Boerne on the ground that the majority’s use of Smith “as a yardstick for measuring the constitutionality of RFRA” was misguided, since Smith itself should be reconsidered. On the central question at issue in Boerne , however, she expressed agreement with the majority’s claim that Congress’ enforcement authority is remedial rather than substantive. “If I agreed with the Court’s standard in Smith ,” she wrote, “I would join the opinion.” This left only Justices Breyer and Souter open to the possibility that congressional power under Section 5 is more than merely remedial. And neither actually asserted substantive congressional power or made an effort to rebut Kennedy’s argument against such power. They argued merely that Smith should have been reconsidered and the question of Congress’ power under Section 5 put off to another day.

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The Gospel of Life: A Symposium

Sun, 01 Oct 1995 00:00:00 -0400

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First Things RSS Feed - A Symposium

The Naked Public

The Supreme Court 1997

The Gospel of Life: A Symposium