The Long View 2002-07-01: Don't Pick Fights about God

John talks a lot of sense here. It is pretty easy to get wrapped around the axle on issues of religious freedom, but the most important take-away here is that First Amendment law as applied to the states is a very recent invention, and the overt purpose of it was to keep Catholic primary and secondary schools from getting public money. Some of the states were actually ahead of the courts on this, the Arizona constitution forbids the use of public money to support parochial schools. Clever legislators have managed to find a way around this that has been challenged all the way to the State and United States Supreme Courts and survived.

This was perhaps the biggest favor the Federal government has ever done to the Catholic Church in America. If you look at the schools in European countries that are supported by tax dollars, you find Catholic schools that are not notably Catholic, or well-attended. One might also note that the behavior of most Catholic universities in the United States can probably be explained by the exception in this First Amendment jurisprudence that allowed public money to flow to post-secondary institutions. They have behaved accordingly.

Don't Pick Fights about God

 

 

Few federal appellate court decisions have been repudiated as widely and swiftly as Newdow v. U.S. Congress. In that decision, a panel of the 9th Circuit held last week that the phrase "under God," inserted into the Pledge of Allegiance in 1954, was unconstitutional. The panel also held that it was unconstitutional for a local school board to require that the Pledge be recited at the beginning of each school day, even if students who did not wish to join the recitation were not required to do so.

This decision is something of a practical joke. The Supreme Court has repeatedly used the amended Pledge as an example of a constitutional use of theism. The suit itself is an odd duck, one of those badly pled public-interest suits that no court hears unless it has an ax to grind. The plaintiff, a doctor who is also a member of the California bar, is an irate atheist and parent who represented himself. He named the "U.S. Congress" as a defendant, under the misapprehension that the courts could order Congress to amend the text of the Pledge. The district court did in fact just throw the complaint out, but the panel resurrected it. Judges can be shockingly whimsical.

There is not really a lot of doubt that the opinion will be over turned, either by the full 9th Circuit or by the US Supreme Court. The question is on what grounds the decision will be reversed. The First Amenment really does say, in part, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." On the face of it, there does seem to be some problem with Congress creating a Pledge that says the US is "one nation, under God." The fact is that courts that have allowed official allusions to God to stand, such as the motto "In God We Trust" on currency, have usually fudged the matter. Conservatives have appealed to tradition, and liberals to the somewhat insulting theory that these evocations of the Almighty are too trivial to outlaw.

At the risk of spoiling the fun, I should point out that references to God are not necessarily to a supernatural entity. In Kant's philosophy, the concept of God is posited as a necessity of practical reason, in rather the way that cartographers have to posit a point of 90 degrees latitude in each hemisphere. God in that sense is an objective standard against which the morality of behavior may be judged. Kantians would argue that the attributes of this God are not merely conventional, but fixed by necessity, like the attributes of a mathematical theorem. Phrases like "In God We Trust" could then be interpreted along the lines of Mr. Spock's paeans to logic. Such a God could not be an object of worship, and so would not fall under the ban of the First Amendment. This God might be adopted as the referent of America's famous "ceremonial Deism." Since this God is really an idol, however, it's probably just as well that the possibility has been overlooked.

Back on Earth, there is a principled argument for the use of the Pledge in public schools. As we have seen, the constitutional text refers only to what Congress can't do. The Bill of Rights, of which the First Amendment is a part, was written and adopted to apply only to the federal government. The Bill of Rights was applied to the states after the Civil War, by the 14th Amendment. Even then, the application was piecemeal, and always with the recognition that the provisons of the Bill of Rights had to be customized when applied to the states. The Supreme Court did not "incorporate" all the provisions of the First Amendment in this fashion until well into the 20th century. First Amendment law regarding religion is actually almost wholly a creature of the last fifty years. It was invented chiefly to keep public money out of the hands of Catholic schools below the college level. It really is as simple as that.

At the time the First Amendment was adopted, several states had established churches, or otherwise gave preference to some kind of belief. The religion clauses of the First Amendment were intended to prevent the federal government from disturbing these arrangements. Even at the federal level, the First Amendment was not taken to mean much more than that Congress could not establish a church: the early federal government granted a charter to a Jesuit institution in the District of Columbia, Georgetown University, and quickly made provision for military chaplains, though under some protest.

There is a great deal to be said for the proposition that, whatever else the religion clauses of the First Amendment are supposed to do, they are not supposed to change the way that people live their everyday lives. They were designed not just to make sure that people are left alone in this regard, but that communities are, too. The religion clauses of the First Amendment are not supposed to direct the way that communities keep festivals, or organize public space, or especially to educate children. Education is intrinsically intrusive.

It is quite possible for parents to want their children educated to be completely secular or anti-theist. There is no doubt some constitutionally minimum requirement of non-coercion. Also, the First Amendment today clearly means that no level of government, federal, state or local, can establish an official church. The religion clauses, however, are probably best regarded as injunctions to the federal courts to leave these matters as untouched as possible.

What I have said here is pretty much what Justice Thomas said in his concurrence to Zelman v. Simmons-Harris, also decided last week, which held that the states could fund student vouchers that can go to private religious schools as well as to public and private secular ones. The problem with concurrences, however, is that they sometimes highlight what the majority opinion did not say. In this case, Chief Justice Rehnquist's majority opinion took pains to emphasize the continuity of Zelman with the trend of First Amendment law over the past 20 years, which has in fact been allowing more aid to flow to religious institution, provided the aid is for a secular purpose. What he did not mention was Justice Thomas's historically sensible notion that the states should have more leeway to experiment in this area. Neither did the dissenting opinions. The Supreme Court, perhaps wisely, does not like to talk about incorporation.

Aside from Justice Thomas, the only opinion that tried to address history seriously was Justice Breyer's dissent. He noted correctly that the First Amendment law in this area is just two generations old, and that it was created to manage the growth of a large Catholic minority. He did not, however, quite get a handle on the fact that the "neutrality" the Supreme Court adopted by 1950 was actually a bit Orwellian, with religion becoming almost the only area of human discourse against which public bodies could discriminate. He also seems to have conceived the odd idea that the repressive 20th-century jurisprudence had a pacific effect. The removal of prayer from the public schools in fact persuaded millions of Americans that their government must really be run by Martians. It was one of those progressive policies that contributed to massive alienation from government. Whatever else Zelman may do, it is not going to exacerbate the culture war. Rather the opposite, I should think.


Why post old articles?

Who was John J. Reilly?

All of John's posts here

An archive of John's site