Religious Liberty Fireworks at the Supreme Court

By | 2017-07-12T14:56:31+00:00 July 7th, 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, Ph.D., is a senior fellow of the Claremont Institute. He has been a speechwriter for two cabinet members, as well as for Clarence Thomas when he was chairman of the Equal Employment Opportunity Commission. Masugi 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.