Religious Liberty Fireworks at the Supreme Court

By | 2017-06-02T18:30:05+00:00 July 7, 2017|
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Legal fireworks concerning religious freedom exploded in what some commentators hailed as the most important case of the term, Trinity Lutheran Church v. Comer, decided a week before July 4. Though it’s hard to tell for all the squabbling over the meaning of precedents, the justices’ opinions point to the great themes of western civilization embodied in the First Amendment: religion, speech, and association.

Let’s review the three parts of the First Amendment, separated by semicolons:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The First Amendment can be understood from the various perspectives of the free exercise of religion, the freedom of the mind, and the freedom to form associations, both civil and political. Each freedom relies upon and expands the others.

Thus, the serious endeavor of religion was never meant simply to protect an individual belief but also to protect a communal undertaking, in the form of associations known as churches. The American Revolution was defended and justified in lengthy sermons citing Scripture for authority. Many preachers cited natural law to reinforce what the Bible revealed to them. The concern for religion runs through the entire amendment: religious freedom is a form of free speech employed in political and civic associations. There is a symbiotic relationship between religious and political freedom.

In addition to the Bible, Greek philosophy is also present. Aristotle defined man as the being with logos or rational speech and also as by nature the political animal, a social being. Just as western civilization synthesizes the Bible and Greek philosophy, so does the First Amendment.

In it we see the three elements of human happiness: the religious heart, the inquisitive mind, and activity with fellow citizens in associations. Religion, discourse, and political life were all to be given fundamental, constitutional recognition in the way we think of ourselves as citizens and therefore in the way we govern ourselves.

The founding generation had anticipated these themes in the laws they enacted and the lives they lived and there is no more succinct an example of this than in the pre-constitutional Northwest Ordinance of July, 1787:

Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.

The Ordinance also banned the introduction of slavery into the States formed from that new territory, now the Midwestern States, from Ohio to Wisconsin.

Though such fundamental issues are observed only murkily in the court’s latest battle over religious freedom, the clarity that emerges marks an important step in  public recovery of  them.

The court approved the right of Trinity Lutheran Church to compete for and win state-funded resources for its playground, but the legal struggle to reach this eminently reasonable and equitable conclusion is perilous. For the court has been proceeding for almost 100 years in ignorance of the original understanding of religious liberty. Its decisions were hijacked by bad laws (the notorious Blaine Amendments, in force in 40 States), bad precedents, Justice Hugo Black’s anti-Catholicism (reinforced by his time as a Klansman), and generally anti-religious liberalism and Progressivism of the academic elite.

In [the First Amendment] we see the three elements of human happiness: the religious heart, the inquisitive mind, and activity with fellow citizens in associations. Religion, discourse, and political life were all to be given fundamental, constitutional recognition in the way we think of ourselves as citizens and therefore in the way we govern ourselves.

As legal historian Philip Hamburger describes it, the late 19th-century Liberals were a secularist movement that anticipated the Progressives. The Liberals argued that the Blaine Amendments, while written in facially neutral language, would be used to restrict only the rights of Catholics by hindering them from having schools. Unsatisfied, they wanted sterner, more sweeping measures that would eliminate religious liberty via a constitutional amendment commanding separation of church and state. The triumph of the “moderate,” merely anti-Catholic Blaine legislation in the states left Liberals disappointed, but their secular views lived on and prospered in triumphant Progressivism.

So what later became known as liberalism has nothing to do with tolerance for a diversity of opinions, as has often been asserted—it has everything to do rather with condemning religion on behalf of so-called “reason” and “science.” As Marx reviled Judaism as a means of attacking religion in general, so liberals mocked Catholicism as a respectable means of confining all faiths to mere freedom of worship, not full religious freedom, as we see in this New Republic editorial published in 1916: “We deny the right of any one, be he Catholic or Protestant or Jew, to remain consistently ignorant of the march of the human mind, as defined by secular liberalism.

The liberal worldview that would confine freedom of religion to freedom of worship is at the core of the dissenting opinion of Justice Sonia Sotomayor (joined only by Justice Ruth Bader Ginsburg). She defended Missouri’s argument, based on its constitution, that Trinity Lutheran, solely because it was a church, could not compete for state funds to purchase rubber playground surfaces made from recycled tires. The Establishment Clause does not allow Missouri to grant the Church’s funding request because the Church uses the Learning Center, including its playground, in conjunction with its religious mission.” After all, “everything a church does is religious.”

Sotomayor’s opinion represents the most extreme view of the Establishment Clause, as modified over the years by Justices Black, Brennan, and Stevens:  A religion is “established” when government is less than neutral toward it. Thus, a government may not even promote the benefits of religion in general. It follows that religion must be restricted to individuals’ worship. Freedom of religious speech and of association would be severely curtailed. Perhaps scared off by the extremism of her opinion, more temperate interpreters, the generally liberal Justices Kagan and Breyer, voted for Chief Justice John Roberts’ decision rather than dissent.

The concurring opinions of Justices Thomas and Gorsuch underscore that this case might well encourage more examples of free-exercise rights further restricting establishment claims. In objecting to the limited applicability of the case as the Chief Justice tried to present it, Gorsuch, with Thomas, noted: “… the general principles here do not permit discrimination against religious exercise—whether on the playground or anywhere else.”

In what may open up a path to reforming the court’s tangled First Amendment interpretations, Roberts cut through them by arguing that Missouri’s exclusion of churches from competing for state funding improperly burdens churches and therefore violates the free exercise of religion. Missouri cannot use the establishment clause or its own Blaine Amendment to limit religious liberty.

The concurring opinions of Justices Thomas and Gorsuch underscore that this case might well encourage more examples of free-exercise rights further restricting establishment claims. In objecting to the limited applicability of the case as the Chief Justice tried to present it, Gorsuch, with Thomas, noted: “… the general principles here do not permit discrimination against religious exercise—whether on the playground or anywhere else.”

Hillsdale College professor Thomas G. West summarized  the background of these arguments in a 2003 review of Philip Hamburger’s book on religious liberty: “To what extent government should promote religion was a matter of controversy among the founders, as is well known. Hamburger’s book (with the partial exception of the treatment of Jefferson) brings out what is not so well known: that in spite of their conflicts over the proper extent of government support of religion, all sides agreed that the right kind of religion was vital for the success of republican government, and that government should in some appropriate ways take a stand in favor of religion rightly understood.”

As it stands, the Trinity Lutheran opinion should shake the 40 states with Blaine Amendment language in their constitutions and refocus attention on the breadth of religious free exercise. But none of the opinions went as far as Hamburger did when he described the Blaine Amendments as establishing “a theologically liberal vision of religion”—which is indeed the war being fought here: against the imposition of a secular religion of strange gods. The recovery of the original First Amendment with its connections between freedom of religion, free speech, and free association must remain a principal object of our governments and citizens.

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About the Author:

Ken Masugi
Ken Masugi, PhD, has been a speechwriter for two Cabinet members and for Clarence Thomas, when he was Chairman of the Equal Employment Opportunity Commission. He is co-author, editor, or co-editor of seven books on American politics. He has taught at the U.S. Air Force Academy, where he was Olin Distinguished Visiting Professor; James Madison College of Michigan State University; the Ashbrook Center of Ashland University; and Princeton University.
  • I’m still confused.
    Does this ruling give Constitutional sanction for “…the breadth of religious free exercise…” to Islamic terrorism in America, or not?
    Muslims seem to live for the unique moment they are permitted to express their right to “free speech” by committing suicide by exploding themselves in a shopping mall filled with innocent, non-participating, secular, women and children.
    Does this ruling signify “less than neutral” status toward the practice of Islam for the U.S. Government?

    • JaffaneseAmerican

      no, a terroristic Islam is no more protected than any other murderous cult. The problem is that the Court’s jurisprudence has left huge gaps for, e.g., Amish, Santarilla, Jehovah’s Witnesses, and other religions, contrary to its other Establishment clause rulings. It’s a mess, as I hoped the case and my comments conveyed.

      • No contempt was intended for such excellent commentary.
        I was being intentionally facetious about the phrases used to define these rulings, because it appears that ambiguity is included for the sole purpose of continued legal dispute.
        Indeed, “a mess”! But, intentional.
        There is good reason that English has been used for the primary communication between scientists, professionals, and educators. Even in foreign countries studying science.
        It has the inherent ability to be more precise than any other language.

  • tz1

    The first error is for the state to be subsidizing anything unrelaated to its prime mission of securing the peace and order.
    The problem is when the state decides to create a subsidized tire to playground program, they can’t only subsidize white schools and exclude black schools, or not include religious schools.
    If the state wants to mind its own business and leave tire-to-playground programs to the private sector including charities, the question doesn’t come up at all.
    If the state wishes to get involved, they can’t exclude places just because they are religious or a church.
    If the state can force Little Sisters of the Poor to pay for Contraception, they must subsidize playground improvements for churches.
    I’m all for pushing the wall of separation of church and state from the 10 yard line of the church back to the 10 yard line of the state but few agree.

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    • Deplorable Incisor

      How’s about we let people say what they want, preach what they want and let the people who hear what they say and preach decide who they want to listen too and who they don’t? I have never understood the argument for separation of church and state nor the acceptance of government censorship (coercion) by the church. I understand the money end of it but seems to me that paying taxes would be a small price to pay for the freedom to call the government out from the pulpit once in a while. After all, they tax me and I say whatever I want. I even preach occasionally.

      • tz1

        And how about the government stop stealing for money – taxation is theft -except for the very small, limited powers government should have, and let me decide to spend it helping recycled tires be used for parks or not depending on what I decide, not some politician or bureaucrat.

        Money speaks louder than words, that is why they will try to steal as much of my money as possible and then say I can say what I want (as long as its not racist, sexist, homophobic, antisemitic, etc!).

  • ek ErilaR

    The truth of the matter is that from 1789 to 1941 the states could have established churches and the states were free to require religious education.

    It is disappointing that in Trinity Lutheran Sotomayor and Ginsburg track closer to original intent than Gorsuch and Thomas.

    • JaffaneseAmerican

      You misread the dissent, which constricts religious liberty in the name of a weird version of establishment, not the form you rightly note the States could protect.

      • ek ErilaR

        My reading of the Constitution is that the states are free to establish a church, dis-establish a church and are also free, following Roger Williams’s notion of the church as a garden, to deny all public assistance to any or all churches.

        The Blaine Amendment recognized this which is why the amendment was sought.

        The present judicial obsession with freedom of religion was born in the mid-20th C., a time when the ashes of the religious fervor and secular militancy associated with the 17th C., were quite cold and long forgotten. But this doctrine is very ill suited to deal with a militant church such as modern Islam which claims secular as well as religious authority.

        Liberty of individual conscience is one thing and broad tolerance is fine but elevating organized religion to a constitutionally protected right is very dangerous.

        I think the correct position is that the Federal government can make no law regarding religion. It cannot discourage religion or encourage it and churches’ income and property must be taxed in the same way as all income and property.

        • JaffaneseAmerican

          But religion in America has always been organized–that’s the argument early in my piece. The three parts of the 1st amendment belong together–freedoms of religion, speech, and association.

          • ek ErilaR

            That is not my reading of American history. On its face, the First and Second Amendments to the Constitution simply forbids the Federal government from meddling with speech, religion, association and the right of the people to bear arms..

            But it does seem to be true that a sovereign, like the states, that possessed the general police power can freely meddle in all these unless the state constitution limits the state’s authority in these areas or the Federal Constitution has been amended giving the Federal government the authority to meddle in these areas. The 14th Amendment gave the Federal government some authority in the area of equal protection and due process to meddle on its own. I believe Article IV § 4 does give the Federal government the authority to require the several states to adhere to the own constitutions (“republican form of government).

          • JaffaneseAmerican

            I see, I don’t disagree. Your last statement opens up the discussion: ” I believe Article IV § 4 does give the Federal government the authority to require the several states to adhere to the[ir]own constitutions (“republican form of government).” But who defines what is republican? “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.”

          • In case you are not aware:
            You were quoted and referenced by Clarice Feldman at American Thinker in her article of July 2.
            She is quite the highly respected and consummate professional writer at American Thinker.
            http://www.americanthinker.com/articles/2017/07/like_haman_being_hung_on_the_scaffold_he_built_for_mordechai.html

          • JaffaneseAmerican

            thanks, I did see that. It’s great to be taken seriously. See my latest above.

          • ek ErilaR

            Immediately after the Declaration of Independence, Congress asked the 13 colonies to draft and ratify their own constitutions. Connecticut and Rhode Island did not. Connecticut retained the Fundamental Orders of 1639, which were based on circulating drafts of the Massachusetts Body of Liberties which was formally adopted in the Bay Colony in 1641. Rhode Island retained the charter granted by Charles II in 1663 – which was essentially the same as the one granted by Cromwell in 1653. The other colonies produced new constitutions that were generally similar except that the Northern states tended assert that “all men are created equal” while the states with plantation economies tended to omit the phrase – just as it is also absent in the Federal constitution.

            New states added after the revolution, including Vermont which adopted its constitution as an independent republic in 1777, had to present their constitutions for approval by Congress prior to admission into the Union. All of the states, including Rhode Island, had constitutions or a charter that created constitutional democratic republics, that is to say all of the states adopted a republican form of government.

            The experience of Utah is instructive; Congress refused to admit Utah into the Union until its constitution renounced polygamy

            Art. IV, § 4 can be easily be read as making the Federal government the guarantor of the individual rights and liberties identified in the several state constitutions.

          • JaffaneseAmerican

            The Declaration is to the Constitution as the first section of the Massachusetts Constitution is to the rest of the document. I understand the only case to interpret the guarantee clause–but see Justice Thomas in a recent concurrence–as a political question issue was an attempt to separate republicanism from the equality principle. Roger Taney authored that opinion.

          • ek ErilaR

            I think the main point I wanted to make is that by raising religion to a constitutionally protected natural right, the Supreme Court has, in effect, established all religions when the plain language of Article I is that the Federal government can make no law – and, per force, the Court can issue no ruling – that establishes any religion.

          • JaffaneseAmerican

            How can there be more than one established religion in a State? I think that is the problem with Yoder and the Jehovah’s Witnesses cases. This seems to be Sotomayor’s argument, following Souter, Stevens, Brennna, Black: robust protections of religious liberty amount to establishing that particular religion.

          • ek ErilaR

            The experience in Massachusetts after 1703 is instructive. The 1641 Body of Liberties made all “true churches” established churches. For 60 years after 1630 that had meant theologically Presbyterian Independent (Congregational) congregations.

            But Baptists, Quakers and, ultimately, Unitarians were also well within the well the Anglo-American Independent tradition that evolved after 1600. See: Henry Dunster, Anne Hutchinson, Henry Vane, Thomas and William Rainborowe, Hugh Peter, Roger Williams and many others. Their views were suppressed by the Presbyterian leaning majority that emerged in Massachusetts after 1640.

            After the English Revolution of 1688, the Massachusetts Bay Colony became the Province of Massachusetts and it was required to recognize the Anglican, Baptist, Quaker and Unitarian congregations as “true churches” and so established churches. This worked simply because all of the churches that had been excluded were very technically “Reformed” and purported to accept the line between civil and religious authority that was drawn in England and the American colonies after 1649. It also encompassed Jewish congregations because the American low church reformed congregations were consciously mimicking very early christian and late Jewish models of church organization and because Jewish congregations had never formally asserted any political views or claimed any excepts to the rules that had been established.

            Still, Catholic and Islamic congregations were excluded. First because they were not reformed and second because they purported to possess authority in areas that the reformed churches had decided were purely secular.

          • JaffaneseAmerican

            Thanks, it seems that “established” here means legally approved, or “reformed”? Were there really Islamic congregations? About the Catholics I think I understand.
            Was this the meaning of “establish” in the First Amendment?

          • ek ErilaR

            Sadly, what I have written is the product of my own reading.

            I began by going back from 1790 trying to distinguish American republicanism from English Whiggism. That led me to concluding that American history should begin in 1533 with the dissolution of the monasteries. That led to the English civil wars of the 1640s which necessarily entrained Sir Edward Coke’s appreciation of the English common law, the 1628 Petition of Right and the contemporaneous creation of the Massachusetts Bay Colony, Winthrop’s Journal, the early colonial records of the Bay Colony and Connecticut, the Leveller movement in England, New England’s support of the Parliament in the English civil wars.

          • JaffaneseAmerican

            If you can point me to some publications, I would be grateful. Thanks.

          • ek ErilaR

            Well, I began by questioning the liberal Whig narrative of the American Revolution which traced its roots to the Enlightenment and to the English Glorious Revolution of 1688 and the associated myth of “the Miracle at Philadelphia” and the Framers of the Constitution as divinely inspired. The facts on the ground in 1775 simply did not support this interpretation. While the urban elite in the coastal cities were certainly liberal Whigs to a man and woman they were a very small minority who had managed to thrive under the royal government that had been imposed after 1703. The fact seems to have been that none of them, be they engaged in trade or in planation economies, were popular in the hinterlands.

            This is demonstrated by the events in Massachusetts in 1774-5. While the folks in the countryside were somewhat sympathetic to the Boston merchants’ difficulties with the new Navigation Acts, the tension between the countryside and the coastal elites had been building since 1690 and it was only in the 1760s that the Boston Town Meeting under the direction of Sam Adams and the Boston Caucus began distancing itself from the royal government. What turned the militia out in the Spring of 1775 was the Massachusetts Government Act, which closed down the open town meetings which had been continuously functioning since 1630. Similar unrest was evident in all the colonies.

            On the Boston Caucus, the best and as far as I know the only book on the subject is “Boston 1689-1775” GB Warden (1970). On the countryside and militia in 1775: “The Embattled Farmers” by Lee Nathaniel Newcomer (1953); “The Minutemen” by John R. Galvin (1989); “Bunker Hill”” by Nathaniel Philbrick (2013) develop this point quite well.

            This raised the question where did the militia come from? Galvin and Newcomb are good on this point going back to 1630 and Fred Anderson’s “Crucible of War” (2000) and his earlier “A Peoples’ Army” (1989) place the development of the organized provincial militia in the context of the wars between England and France between 1740-60.

            On the early colonial history of New England the best I’ve found is the first three volumes of John Gorham Palfrey’s “History of New England” published between 1854-68. Volumes I and II are particularly good as he makes it a point to relate the events in the Bay Colony to the developing Puritan Revolution in England between 1628-60. Palfrey’s “History” is on line on several sites.

            Of course Palfrey was a charter member of the “Cod Fish Aristocracy” and had little interest in the doings of the ordinary folk. Happily, the is a large body of British history on the English Civil War and the 17th C. as a century of revolution in the Anglo-Sphere. Christopher Hill and the associated marxist historians of the mid-20th C. took a particular interest in the radical republican faction of Puritan Independents that drove and won the Civil War after 1645. As it turns out, these actors were the same lesser gentry and freeholders who also settled New England and much of the rest of the American colonies. Hill and company have fallen out of favor in the UK but from an American perspective they are very good and very instructive.

            If one reads the “Leveller” historians; HN Brailsford, Hill, Joseph Frank, Ian Gentles (“The New Model Army) and Adrian Tinniswood (“The Rainborowes’) it becomes clear that one can easily argue that New England between 1630-70 was a collection of Leveller republics. Only Tinniswood makes the connection explicit but it is clear from Palfrey and other sources that the New England conducted itself as a free state with only nominal and sentimental connections to the government in England between 1630-89.

            By way of illustration, the New England governments denied that either Parliament or the Crown could review any judicial decision made in the colonies; they denied that the Church of England had any authority in the colonies; they denied that English laws superseded colonial laws. They argued that under the terms of their charter colonial need only be generally consistent with English laws.

            During the English civil wars of 1640s, the Boston Artillery Company acted as a recruit depot for the Eastern Association and the New Model Army. The famous Col. Thomas Rainborowe (See; the Putney Debates) moved to Boston with his brother William (a very radical republican and founding member of the Boston Artillery Company in 1638) and his sister Martha. Martha became John Winthrop’s forth and last wife. Winthrop’s son, Stephen returned to England, joined the New Model Army and rose the rank of colonel. He died in Scotland in 1653. Hugh Peter had been pastor of the Salem church in 1636 and Henry Vane, the Younger, was briefly governor of the Bay Colony in 1638. Both were ultimately executed for regicide by Charles II. After the Restoration, John Leverett, a veteran of the New Model Army, became governor of the Bay and, along with the governors of New Haven and Connecticut, sheltered three more regicides between 1662-80.

            The glue that held them all together was Reformed religion. A good introduction to this is “The Reformation of Rights” by John Witte, Jr. (2007) but Diarmaid McCulloch’s “The Reformation” (2003) contains exceptional insights on the Church of England and its attempts to encompass both high church Anglicanism and low church Presbyterian and Congregationalism within the Westminster Confession. This attempt dominated New England politics between 1636-60. Also indispensable is ASP Woodhouse’s “Puritanism and Liberty” (1938). This is an anthology of examples of Puritan radical republicanism but his 100 page introduction is spectacular although you have to become something of a puritan to completely understand it.

            It is quite a long story but, with respect to freedom of religion, it culminates in Cromwell’s Commonwealth and Protectorate where the notion of latitudinarianism represented the religious settlement. It basically copied the model of the Dutch Republic, which itself had strongly influenced the Parliamentarians in England after 1580. Cromwell’ latitudinarianism was always highly conditional. The charter of Charles II granted to Rhode Island uses the same language concerning religion toleration as did Cromwell’s earlier charter.

            The notion of constitutionally protected freedom of religion was an invention of the US Supreme Court in the 1940s-50s. It immediately infected the constitutions of post-WWII Europe but it is something that has never been tried before and is certain to prove to impossible when confronted by a very militant religion from an alien culture such as Islam.

          • JaffaneseAmerican

            Your history is fascinating. It’s detail far beyond what I know. But I wonder about your conclusion about the invention of religious liberty. Here’s Lincoln from 1838: ” We find ourselves under the government of a system of political institutions, conducing more essentially to the ends of civil and religious liberty, than any of which the history of former times tells us.” What do you think he meant by “religious liberty”?

          • ek ErilaR

            I have no idea but the Mormon were driven from one state to another after 1830, forcibly expelled by Missouri in 1838 and were at swords points with the US Army in the Utah Territory in 1857.

            What, if anything, did Lincoln have to say about that in the context of religious liberty?

            Further, Lincoln was a very careful lawyer and so I assume he would naturally distinguish between a liberty and a right and could easily argue that a liberty becomes a right only when it is secured as such in the Constitution. I believe the Consitution is silent on the point of religious liberty.

  • JaffaneseAmerican

    Thanks again to my thoughtful credits. I have to admit I tried to make an originalist argument in the context of non-originalist (14th amendment) jurisprudence. I still hold to my interpretation of the 1st amendment, which is actually a more general description of the situation of religion and law at the time of the founding. I concede that the States were given considerable latitude, even to the point of allowing established religions. But minority sects (with some major exceptions) had considerable religious liberty nonetheless. I didn’t want to bring it up in the article, but I think Tocqueville has much to add here.