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In the ongoing intra-conservative debates, some have argued that it is the role of government to enforce and protect moral truths in the public square to promote the common good. Others have objected, skeptical of the idea of using government to “reorder” the public square. But this objection is inconsistent with the founding; moreover, it ignores how the left is already radically and arbitrarily exercising authority to reorder the public square.

Reordering society to achieve the common good is what the American Revolution was all about. Government authority exists to promote the good and enforce a public order under which that good can be obtained. This is the message of the Declaration of Independence, which states that “to secure these [God-given] rights, Governments are instituted among Men.” It is also the purpose of government from a Christian perspective:

For princes are not a terror to the good work, but to the evil. Wilt thou then not be afraid of the power?... For he is God's minister to thee, for good. But if thou do that which is evil, fear: for he beareth not the sword in vain. For he is God's minister: an avenger to execute wrath upon him that doth evil (Romans 13:3–4).

In his second inaugural address, Lincoln framed the Union as being firm in “the right as God gives us to see the right.” Lincoln would be surprised to hear that government cannot use coercive force to order society toward that good. The Civil War and the postwar effort were intended to reorder the South—not just physically, but morally.

The congruity between the American and Christian perspectives on government is no coincidence. America is a Christian country. In Church of the Holy Trinity v. United States (1892), the Supreme Court pointed out that Christianity—not just religion—is at the center of the American story. The Court stated: “These, and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation.” The framers considered states that are explicitly Christian—including those with established churches—to be fully republican and a part of the national government and character.

Modern lawyers and judges have departed from this understanding without any legal support, with no pretense of adhering to the American understanding of religion as found in the Constitution. Justice Souter, in McCreary County v. American Civil Liberties Union of Kentucky, claimed it was impossible to know what “establishment” meant at the founding. As a result, he decided that the Court should continue implementing its modern policy of neutrality, a policy he happened to favor:

Historical evidence thus supports no solid argument for changing course (whatever force the argument might have when directed at the existing precedent), whereas public discourse at the present time certainly raises no doubt about the value of the interpretative approach invoked for 60 years now. . . . This is no time to deny the prudence of understanding the Establishment Clause to require the government to stay neutral on religious belief, which is reserved for the conscience of the individual.

Souter’s approach echoes that of many liberals and some conservatives, who say that while perhaps the First Amendment does not require neutrality between religion and irreligion, it’s prudent for us to require it now. By arguing that the political and legal history of the First Amendment cannot provide grounds for determining its meaning, Souter admits there are no grounds for a court to render a legal judgment. Instead, the protections granted religion—under this approach—are questions of pure policy, not law. But if this is so, then religious freedom becomes a question for the legislature.

Nonetheless, justices adopting this approach have refused to cede power over these questions—while admitting they cannot find any objective meaning in the religion clauses. Religion jurisprudence is a self-admitted embarrassment of the federal judiciary—because no legal principles are being applied. As Justice Scalia put it in Van Orden v. Perry: “I join the opinion of THE CHIEF JUSTICE because I think it accurately reflects our current Establishment Clause jurisprudence — or at least the Establishment Clause jurisprudence we currently apply some of the time.”

This policy exercise played out again in American Legion v. American Humanist Association. Justice Alito explained how the monument in question—the Peace Cross—did not offend against policies of neutrality and secular purpose. But there was little focus on principles and more on history and tradition: “Familiarity itself can become a reason for preservation.” The justices in the majority argued that the “passage of time” would make the Peace Cross’s removal seem hostile instead of neutral, and decided to let the Peace Cross stand. Justice Thomas tried to bring the case back to the legal question: In his concurring opinion, he starts by establishing the rule of law, and then applies that law to the facts to reach a result—a legal judgment. But rather than join him, the justices in the majority decided to engage in policy analysis instead.  

The justices are clearly lost at sea, relying on their preferred policy preferences. In this situation, we must ask: Who is reordering the public square and using the power of government to do it—without reference to law? And does it make any sense to adhere to a policy of neutrality in the face of this effort?

The idea that this country’s laws—that have incorporated so many religious principles and are explicitly founded on God’s laws—require neutrality between religion and irreligion is laughable. What is not laughable is that a leftist hermeneutic—which results in judgments favoring leftist policy goals—is masquerading as neutral legal judgments. Neutrality has been exposed for what it really is: a post hoc interpretation of the Establishment and Free Exercise Clauses—with no significant roots in the founding or Civil War eras—that is useful for producing pro-left judgments. It is brute force masquerading as law.

Gunnar Gundersen is an Affiliated Scholar and member of the Fellowship Faculty at the James Wilson Institute on Natural Rights and the American Founding.

Photo by Phil Roeder via Creative Commons. Image cropped. 

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