FREE NOT TO SPEAK (via Mike Daley):

Establishing Free Exercise (Vincent Phillip Muñoz, December 2003, First Things)

Given the public and political outcry, it is not surprising that the Supreme Court agreed to hear the case on appeal. It may be more difficult than it seems, however, to save the amended Pledge. For starters, the Ninth Circuit’s decision is remarkably cogent, follows established Supreme Court precedents, and does not possess any of the characteristics typically associated with judicial mischievousness. The carefully crafted opinion demonstrates that under any and all of the Supreme Court’s three leading Establishment Clause precedents—“Endorsement,” “Lemon,” and “Coercion”—the 1954 Pledge violates the Constitution.

The Ninth Circuit began with the “Endorsement” test, a doctrine championed by Justice Sandra Day O’Connor and most recently employed in 2002 by Chief Justice William Rehnquist to uphold the use of school vouchers at private religious schools. As its name suggests, the test prohibits the state from “endorsing” religion over irreligion. The Ninth Circuit concluded that “under God” implicitly endorses a particular religious concept, the existence of a singular deity. The facts in Newdow, moreover, closely parallel those in Wallace v. Jaffree (1985), one of the first and most seminal “endorsement” precedents. In that case, the Supreme Court struck down an Alabama moment of silence law because the state legislature added the words “for prayer or meditation” to the original statute, which said only that the public school day should begin with a “moment of silence.” The Ninth Circuit reasoned that if adding words suggesting that students may pray impermissibly advances religion, then adding explicitly religious words to a teacher-led recital clearly constitutes an endorsement.

The Ninth Circuit then moved to analysis under the first prong of the “Lemon” test, a three-part test originally set forth by Justice Warren Burger in the 1971 case Lemon v. Kurtzman. Justice O’Connor’s “Endorsement” doctrine was designed to replace “Lemon,” but Burger’s framework has shown remarkable staying power despite being frequently ignored. The test’s first prong requires legislation to have a valid secular purpose—that is, the state must be able to offer a nonreligious rationale for its action. Because the words “under God” were not a part of the original text, the Ninth Circuit examined the reasons for the addition instead of looking at the Pledge as a whole. The legislative history of the 1954 Act, they found, clearly indicates that Congress intended to acknowledge America’s dependence on God and to distinguish American republicanism from atheistic communism. Such intentions patently violate “Lemon’s” secular-purpose prong.

The Ninth Circuit concluded with analysis under the “Coercion” test, Justice Anthony Kennedy’s proposal for establishment jurisprudence. Teacher-led recitations of the Pledge coerce religious practice, the Ninth Circuit explained, because they place students in the untenable position of choosing between protesting or participating in an exercise with religious content. Given that students did not have to recite the Pledge, the Ninth Circuit seems to be taking an extremely expansive view of coercion, interpreting it to include actions that could make a student feel psychologically uncomfortable. Yet this is the exact interpretation set forth by Justice Kennedy in his precedent-setting Lee v. Weisman (1992) opinion. In that case, the Supreme Court held that exposing a junior high student to an officially approved nondenominational graduation prayer constitutes undue psychological coercion of religious practice. The Ninth Circuit reasoned that if merely being present while others pray at a single, non-mandatory, end-of-the-year school function is coercive, so too is listening to a daily recital containing religious language.

Given the rules that the Supreme Court has laid down and how they have been applied, the Ninth Circuit’s decision is not outlandish. A candid evaluation must admit that it lies within a fair reading of Establishment Clause precedents. Therein lies the problem and the opportunity for the 2003-2004 Supreme Court.

The Pledge case reveals that something has gone drastically wrong with Establishment Clause jurisprudence. If the Pledge is unconstitutional, so too are teacher-led recitations of the Gettysburg Address. Lincoln claimed “that this nation, under God, shall have a new birth of freedom.” Teaching public school students that the Declaration of Independence is true—that our rights are, in fact, “endowed by our Creator” and that the American Revolution was just according to the “Laws of Nature and of Nature’s God”—would violate the Constitution. Even an invited performer signing “God Bless America” at a government-sponsored event, like a local county fair, would be constitutionally suspect. Newdow confirms what critics have long claimed: that pushed to its logical conclusion, the various “wall of separation” constructions of the Establishment Clause are hostile toward religious sentiment and drive religion out of the public square. The case demonstrates that the current interpretations of the Establishment Clause are not neutral and are unworkable and thus fit the criteria for being overturned.

If the Supreme Court does rethink its establishment jurisprudence, it should do so with an eye toward religious free exercise. In the past, the First Amendment’s two religious provisions (note, there is only one clause) have been read independently of one another. If the First Amendment is internally consistent, however, any plausible interpretation of establishment ought to be consistent with free exercise. Free exercise, in fact, is the more fundamental value. Too often it is forgotten that the reason why Congress and the states (since incorporation) are prohibited from making an establishment is that religious establishments tend to abridge religious liberty.

Religious free exercise, including the right not to exercise a religion, is the end; no-establishment is a means toward fulfilling that end.

The Court should really discard all of its absurd superstructure of Establishment law, but can get around this case by just having a more realistic coercion test. Let the kids who don't want to say the Pledge leave the room. Sure, some kids might make fun of them, but freedom of speech and conscience isn't supposed to be cost free. If it is it isn't worth much.

MORE (via Mike Daley):
Religious Liberty: The Most Precious of Our Liberties (J. Kenneth Blackwell, December 2003, On Principle)

Over the last decade one of the great shames of Africa is the Sudan. In Africa's largest country, over a million people have died, and millions of others have been displaced due to the violent repression of Sudanese Christians by the National Islamic Front. To call this a civil war, as much of the Western media does, is not accurate. It is a reign of aggression and conquest by the Muslim majority against Christians and other non-Muslims.

Since the fundamentalist revolution in Iran, that country has established a repressive theocracy and engaged in a policy of oppression against members of the Bahai faith. Throughout Africa and the Middle East, radical Muslims today not only repress Christians and other non-adherents, but have also persecuted moderate Muslims. Many say that this conflict is nothing less than a battle for the soul of Islam.

North Korea had been called "Asia's Jerusalem" because of its strong Christian influence. But Kim Il Sung replaced Christianity with a cult of personality. All church buildings were closed and every Bible destroyed. Ministers and other religious leaders were murdered or sent to concentration camps.

Vietnam continues to repress both Buddhists and Christians.

In terms of sheer numbers, China has been the worst violator of religious freedom. There are as many as 100 million Christians in China. And, there are more Christians in prison for their religious beliefs and activities than anywhere else in the world. Religious believers of all faiths are branded "counter-revolutionaries" and sentenced to prison or labor camps.

In all of these tragedies we see the danger of melding the church and state, especially when the state is the church, as it is in communist countries. Our Founders, inspired by Enlightenment teaching and Christian faith, wisely separated the two. In part because of that, we remain a nation of believers. Yet we, in the United States, are not immune to religious intolerance.

Our dominant indigenous form of persecution is perversely legalistic. America was founded on the principles of religious freedom. The First Amendment to our Constitution protects freedom of expression, and it was the Founders' belief that the most important and protected expression was that of religious faith. However, the First Amendment has now become an instrument of religious intolerance. Through what Harvard Professor Mary Ann Glendon calls, "a judicial pincer movement," courts have decided: 1) that government bodies, particularly schools, must be rigorously secular; and, 2) that people and organizations that are not rigorously secular will be denied aid and assistance from the government.

Let us remember the First Amendment contains not one but two limits on congressional power over religion—the establishment clause and the free exercise clause. When the First Amendment was ratified in 1791, the establishment clause prevented a national church, but it also protected states' rights.

That changed. The 14th Amendment allowed the Supreme Court to scrutinize how states protected "due process." What Jefferson once casually in a letter called a "wall of separation" became, mistakenly, a constitutional principle. The establishment clause became hostile to religion rather than to establishment.

I saw the terrible effects of this narrowly secular reading of the First Amendment in the early 1970s while I was an urban policy academic at Xavier University, and later as a city council member and mayor of Cincinnati.

In my city, some alcoholics and drug addicts received federal supplemental Social Security payments that they then could have sent to a trustee. I found some of them were using bar owners as their trustees, and the trustees would allow them to run up tabs until their Social Security checks came.

These people needed help. They needed treatment for their addiction. They needed to change their lives. Many of them were not going to get clean or sober without a profound spiritual change. Local churches and other faith-based organizations were the best source of treatment for these people, whether they eventually joined the church as worshipers, or whether they used the church as a social service. The treatment programs of faith-based organizations had much better recovery rates and cost one fourth to one half as much as less-effective government rehabilitation programs.

However, because these faith-based organizations were religious institutions, they could not receive federal funding. It wasn't until some twenty years later when, after a long series of court battles, faith-based organizations were able to receive federal money and expand their treatment facilities.

If we root out our transcendent beliefs from our politics, we will weaken, if not destroy, the moral foundation of our democracy. A politics devoid of morality does not meet the essential human needs. A purely secular politics does not address people's deepest concerns, nor does it offer any vision beyond the short-term goals of comfort and expediency.

In his excellent book, Father Richard Neuhaus calls the result of a politics of aggressive secularization, The Naked Public Square. Father Neuhaus understands, and I wholeheartedly agree with him, that our political values are informed by our spiritual values. Americaís founders understood the importance of faith and morality in politics.

In his farewell address to his troops, George Washington said, "Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports." And, Dr. King called the church the conscience of the state.

Posted by Orrin Judd at December 6, 2003 8:52 AM