First Principles

A Resource for Religious Liberty

Religious Liberty is the latest in the Ashbrook Center’s series of document collections covering major periods, themes, and institutions in American history and government. 

For anyone interested in the fate of religious freedom in America Religious Liberty: Core Court Cases may be the most important guide to contemporary controversies over religion in the public square a nonspecialist can own. At least the price is right; the text of the 244-page book is also available free on the internet, in keeping with the civic education mission of the publisher, the Ashbrook Center. Nonetheless, many readers will prefer the inexpensive paperback, as they may prefer to spare themselves the cost of replacing a destroyed computer or cell phone, which is likely to come after reading some of the court’s opinions.

By selecting a diverse array of opinions on religion and the law, we at the Ashbrook Center produced a book that encourages non-specialist readers to examine the legal strife surrounding issues such as the constitutionality of “under God” in the pledge of allegiance or a prayer recited before a football game at a public school, whether a law may violate the conscience of a religious business owner, or whether a cross may be erected on public land. 

The need for this collection was striking even before the Supreme Court accepted for argument a case involving a Philadelphia law requiring the inclusion of same-sex couples as adoptive parents and faith-based adoption agencies who have rejected them. Is the law discriminatory against religious institutions or are the religious adoption agencies violating a general law against discrimination?  

How has America come to such a situation, one might ask, where the fate of children is dependent on the constitutionality of laws restricting charitable religious institutions? After all, churches have always been involved in children’s welfare, including adoptions.

Moreover, one might ask, how is that such a law does not restrict the “free exercise” of religion, as the First Amendment to the Constitution states: “Congress [or any government] shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” The texts in our book permit the reader to explore how the courts as interpreters of laws and our fundamental law, the Constitution, have come to such conclusions, which seem so contrary to common sense. 

As the principal editor, I did not seek to produce a book of advocacy leading to one conclusion or another but rather to offer the strongest arguments for the various sides of the controversies under scrutiny. Throughout Religious Liberty the modest study guide raises questions that encourage skepticism of all the justices’ arguments. These questions and the selection of opinions pit Supreme Court justice against justice not only within each case but over the decades. 

Contrary to most case books, we recommend that beginning readers start their inquiry from the most recent cases we include, where the controversies are clear and most striking, and then move on to the earlier precedents. To illustrate our approach, we deploy Trinity Lutheran v. Comer (2017), where the court decided, 7-2, that Missouri had violated the First Amendment by failing to permit a religious school, Trinity Lutheran, to compete for a state recycling grant to pave its playground. 

Our abridged version contained only excerpts from Justice Neil Gorsuch’s concurrence and Justice Sandra Sotomayor’s vociferous dissent. Gorsuch argued that Missouri discriminated against the school’s constitutional right to freely exercise its religion and compete for state funds. 

Sotomayor defended Missouri’s power to prevent an unconstitutional establishment of religion. The state, in her view, was trying to prevent “an unlawful fostering of religion.” Because the church school has a religious mission, its “playground surface cannot be confined to secular use….”  

Sotomayor’s puzzling attitude reflects one conclusion of almost 70 years of cases that would confine religious liberty to mere “freedom of worship,” which exists pretty much within the walls of a religious institution. Reflecting the thrust of the most recent cases, Gorsuch was arguing for a far more robust conception of religious free exercise, a pillar of a free society.   

Clashing interpretations of free exercise and establishment have led to this odd confrontation between parts of the First Amendment. Instead of taking prohibition on the establishment of religion to mean no official or established church, and all the implied political, legal, and financial advantages that go along with that, it has come to mean permitting no advantage to religion generally. Religions may not be discriminated against, but they may not, even in general, be given any advantage by government, either. The late Justice Stevens argued that the “religious neutrality” demanded by the establishment clause means neutrality between religion and non-religion. (But has any president failed to say “God bless America”?)

Furthermore, the free exercise clause has come to mean a free exercise preference for minority sects, such as Jehovah’s Witnesses, the Amish, and the animal sacrificing religion of Santeria—all victors in free exercise cases. Might “free exercise” justify these religions’ seeming defiance of general laws involving flag salutes at school, compulsory school attendance, and sanitation? 

In a pivotal case involving a state law against drug use, Employment Division of Oregon v. Smith (1990), Justice Antonin Scalia denied that religious freedom created “a private right to ignore generally applicable laws” and permit drug use for religious observers. Dissenters insisted that his opinion undermined religious liberty, and Congress passed a law, the Religious Freedom Restoration Act, limiting the court’s decision. 

So how should we apply these cases from our book to the Philadelphia adoption agency? Oddly, the late Justice Scalia, hero of conservatives, seems to have supplied ammunition to both sides, with his limitation on religious liberty claimants against general laws, on the one hand, and with his emphasis on “history and tradition” in understanding the meaning of religious establishment, on the other, from his powerful dissents in school prayer and religious monuments cases. 

We can see how Sotomayor would adopt Scalia’s Oregon v. Smith argument against religious exemptions from valid general laws and emphasize Supreme Court opinions such as Obergefell v. Hodges (2015) that made same-sex marriage a constitutional right. Her argument that allowed Missouri to prevent religious schools from receiving state funds would also prevent adoption agencies (or bakeries or other businesses, such as Hobby Lobby) from restricting their services based on their religious beliefs. She would use Scalia against the court’s most recent decisions, which have expanded free exercise and restricted the meaning of establishment, as Gorsuch advocates. This is just one element of the arguments that the court is likely to use in deciding the adoption agency case.

Religious Liberty is the latest in the Ashbrook Center’s series of document collections covering major periods, themes, and institutions in American history and government. When complete, the series (45 volumes in all) will be comprehensive, and also authoritative, presenting America’s story in the words of those who wrote it. These primary document works will be invaluable resources for undergraduate and secondary school instructors, as well as for engaged citizens.

First Principles

The March for Life Proves that Cowering on ‘Social Issues’ Is Politically Stupid

Conservatives need to stop letting progressives define the limits of acceptable viewpoints and start “fighting for those who have no voice.”

This past weekend, along with an 800-person contingent from the University of Notre Dame, I marched in the 47th annual March for Life. It was my second time at the event and truly an historic occasion. I say this not simply because the march is the largest, regular demonstration in America (and probably the world) but because, for the first time, the president of the United States addressed the crowd in person—a crowd that was several hundred thousand strong.

President Trump spoke powerfully and to great applause about how “every human soul is divine, and every human life—born and unborn—is made in the holy image of Almighty God.” He declared his explicit support for the central claim of the pro-life movement, one rooted in our founding—in the Declaration of Independence, specifically—that every single person has the inalienable, God-given right to life.

Given the massive political debt the Republican Party owes to ordinary pro-life Americans—in the form of their precious votes, campaign contributions, myriad volunteer hours, grassroots mobilization and organization, and day-to-day rhetorical advocacy for nearly 50 years—one would think that, by now, we would have seen significant movement on the question of abortion. Public opinion is largely pro-life. But abortion remains legal and is becoming ever more monstrous in its reach and application. Why?

Because, by all appearances, the swamp of “conservative” politicians, strategists, and think tanks—i.e., “Conservatism, Inc.”—would prefer to milk the issue in perpetuity so as not to lose support.

Think about it: If the issue disappears completely—if the Supreme Court, say, were to overturn its 1973 decision in Roe v. Wade—so-called pro-life conservatives might actually have to work for their daily bread (quelle horreur!). Then how would these sort of Republicans—unable to offer their opportunistic, polished, but hollow pro-life rhetoric—fund their campaigns and win elections?

They wouldn’t—and a GOP populated primarily by these kinds of hucksters would probably collapse.

Why doesn’t Conservatism, Inc. have the stomach or the spine to push hard on this issue, an issue central to the justice of the American project and hearts of the people they claim to represent? Why do they only dust off pro-life talking points and gin up faux outrage come election season, never translating much of it into concrete political victories? Why have we only just now, in 2019, graduated from legislating mandatory (hours-long) waiting periods to heartbeat bills and outright bans?

Because movement conservatism is trapped in an elite ecosystem that is rabidly pro-abortion, and this has blunted their sense not only of what’s possible but of what’s right. Their friends, neighbors, and colleagues in all the wealthiest zip codes view access to abortion as the summum bonum of liberty and (economic) life. The prestigious universities they attended all teach bodily autonomy as a sacred doctrine. And their fellow attendees at fancy D.C. cocktail parties are sure that abortion on demand and without apology is the moral, enlightened position.

This environment has neutered their ability to understand that the average American recoils in disgust at the horrendous procedure, one in which an innocent human being is always sacrificed for some lesser end. They fail to recognize the vast majority of the rest of the country instinctively intuits that a monstrous injustice is wrought each time an abortion is committed—the horror of which is compounded by the mind-boggling reality that since 1973, our nation has been the site of a consistent slaughter of the most innocent among us on a scale several orders of magnitude greater than the Holocaust.

Truly, what good is a roaring economy erected atop a mound of babies’ corpses?

Conservatism, Inc. has been so browbeaten by the constant, inane refrain of “my body, my choice” that the best its members can do is act like they really want abortion gone. Sadly, I submit that they don’t really, deep down in their gut, want that world to arrive. But they’ll say whatever they need to say to fill their campaign bank accounts and cash their checks.

The most basic right is the right to life; the very concept of “rights” is rendered nonsensical without it. Life is the prerequisite for the exercise of any other rights—be they natural, political, or civil.

President Trump understands this, which is why he spoke at the March. In his telling, the Democratic Party “ha[s] embraced the most radical and extreme positions taken and seen in this country for years, and decades—and you can even say ‘for centuries.’” Awkward phrasing aside, he is indisputably correct on this point, and he offered a series of examples to illustrate the claim:

“Nearly every top Democrat in Congress now supports taxpayer-funded abortion, all the way up until the moment of birth.”

“Last year, lawmakers in New York cheered with delight upon the passage of legislation that would allow a baby to be ripped from the mother’s womb right up until delivery.”

“The Governor [of Virginia] stated that he would execute a baby after birth.”

Finally, “Senate Democrats even blocked legislation that would give medical care to babies who survive attempted abortions.”

The crowd vocalized its displeasure at being reminded of these ghoulish events with loud boos.

Conservatives need to stop letting progressives and the “professionals” gaslighted by them define what are and are not acceptable positions for them to take and start “fighting for those who have no voice.” They need to get over their squeamishness about boldly tackling “controversial” social issues; after all, the Left will oppose them tooth and nail no matter how hard they fight, so they may as well go all in. They need to recognize their political duty to “protect, cherish, and defend the dignity and sanctity of every human life” and then stand with the “strong women, amazing faith leaders, and brave students who carry on the legacy of pioneers before us who fought to raise the conscience of our nation and uphold the rights of our citizens.”

If that isn’t a winning message, what is?

First Principles

Remembering the Farming Way

We need to pause sometimes and remember who these dinosaurs were and what they have contributed. For a while longer, a few are still with us, a sort of collective keyhole through which we can look back into a now unremembered American past, whose codes and mores we simply abandoned—and to our great and present loss.

Almost all the pragmatic agricultural wisdom that my grandparents taught me has long ago been superseded by technology. I don’t anymore calibrate, as I once did when farming in the 1980s, the trajectory of an incoming late summer storm by watching the patterns of nesting birds, or the shifting directions and feel of the wind, or the calendar date or the phases of the moon. Instead, I go online and consult radar photos of storms far out at sea. Meteorology is mostly an exact science now.

Even the agrarian’s socio-scientific arts of observation that I learned from my family are seldom employed in my farming anymore. Back in the day, when a local farmer’s wife died, I was told things like, “Elmer will go pretty soon, too. His color isn’t good and he’s not used to living without her”—and tragically the neighbor usually died within months. Now I guess I would ask Elmer whether his blood tests came back OK, and the sort of blood pressure medicine he takes. I don’t think we believe that superficial facial color supersedes lab work. Farmers did because in an age of limited technology they saw people as plants, and knew that the look and color of a tree or vine—in comparison to others in the orchard or vineyard—was a sign of their viability.

I grew up with an entire local network of clubs and get-togethers, and ferried my grandparents to periodic meetings of the Walnut Improvement Club, Eastern Star, the Odd Fellows, Masons, the Grange, and Sun-Maid growers. They exchanged gossip, of course, but also vital folk and empirical information on irrigation, fertilizers, and machines.

The point was to remind us that “we” (i.e., the vanishing rural classes) needed to stick together—especially given glimpses of what the country would be like in the 21st century. When one of us died or got sick, people showed up with flowers, food, and offered help—whether the use of a tractor, or truck or hired man to “get you through this.”

Now? Zilch.

I don’t know any of my neighbors. Most are recent immigrants from south of the border, many here illegally. The land is almost all leased out to or has been purchased by large corporations. The old farmhouses are also rented and often poorly maintained: a sort of rural skeleton, with the flesh gone and the bones flaking apart. I hear from our coastal elites all about diversity, community, and caring. But out here, no one believes there is much diversity. Community does not exist. And as for caring, it is about making sure you get home at night without a drunk driver forcing you off the road—or worse.

So Much for Diversity or Community

I don’t know where exactly all my Armenian, Greek, Japanese, Mexican, Portuguese, Scandinavian agrarian friends of my childhood went, but they and their offspring are all long gone. And it is mostly rich versus poor left now, with little in between in California. I’m not sure massive illegal immigration is going to lead to the sort of communities that legal immigration and family farming once built. I once remember locals saying things like, “We can’t find the damn key to our house. Never had a need for it,” and, “Say, did you see that stranger two weeks ago prowling around the ditch bank?”—as if such a rare occurrence demanded neighborhood consultation.

Now? Rural houses have walls, fences, barbed wire, cameras, and fierce pit bulls. I feel like it is North Africa circa AD 430, and the world is retreating into rural makeshift fortifications. And the occupants—few of them farmers—are armed to the teeth. The local sheriffs by needs appear in raids against the Norteños and Sureños gangs, equipped like the 82nd Airborne.

[Hiatus: I was just interrupted writing this by a loud noise outside the front door at 6 a.m. A drunk driver swerved off the road—as is an almost a monthly occurrence—tore out an almond tree in our orchard, and tried to keep driving for a bit before his car conked and law enforcement appeared. A kind and professional highway patrolman, speaking Spanish, is now booking him in the front of the house. The driver seems quite drunk (in the early morning no less), doesn’t speak English, and, along with his passengers, gave me a nice frown when I walked out, in apparent recognition that he destroyed my property and has not a bit of contrition, much less any intention of paying me anything.]

The science and culture of family farming are about gone. I used to worry when my grandfather got the flu: who will run the farm? And how without him, given his stored wisdom that was never written down? He himself used to lecture about the bankruptcy of a neighbor, “He was a good enough farmer, but no one counted on his son getting killed in that accident and a cancer in his lung.” I learned that often just health and constitution meant success while fragility and illness failure. Continuance was always in the balance.

The Solid Constitution of the Farmer

To extend the farming logic, one ingredient in Donald Trump’s success appears to be his underappreciated constitution that somehow defies the logic of septuagenarian preventive medicine.

I had a Swedish grandfather like that whose lungs and esophagus were scarred and shriveled from gassing in World War I, who made a hardscrabble living by raising what he ate and breaking horses, and yet his constitution made it to 80—before the ancient scar tissues and cysts in his gassed mouth finally went malignant. We pried him off his 40-acre pasture and took him to an oncologist in 1968, the first doctor he had visited in 30 years.

Agribusiness wisely does not depend on the health of a paterfamilias, much less the regimens it once took to keep him going. Protocol is on the internet and managers are university trained in the sciences of hydrology, genetics, and plant chemistry. I can often spot a rare vestigial family-owned and operated 100-acre almond orchard by its less impressive, less tidy look, in comparison to the garden-like corporate-operated tesserae of the same size as part of huge 10,000-acre mosaics.

So the health of a single middle-aged male farmer used to determine whether the farm thrived or failed. The males I grew up with used all sorts of creams, balms, ointments, folk remedies, and embraced strange regimens about eating, when to go to bed, and when to get up. These habits were felt essential to ensuring trees were pruned or grapes picked. I never could figure out why locals wore either railroad engineer overalls, or matching khaki pants and shirt, or blue shirts and jeans that variously reflected their own idiosyncratic theories about how to endure the scorching summer heat, or frosty winter mornings, or to protect from wasp stings or sand burrs.

I don’t particularly miss the endemic grouchiness of agrarians, reflective I suppose of the tragic nature of family farmers. Even when a neighbor produced three tons of raisins per acre and in a rare year of good prices no less, he would sigh when complimented, “Well, I did alright, at least good enough.” And when the rain took his crop and the market prices dropped even in the midst of shortages, you would hear, “I’m done for and about had it with this farming business.”

In other words, much of the natural and human knowledge I picked up on a five-generation small farm in Central California is no longer applicable to the 21st century in the age of social media, the internet, huge wealth, globalization, open borders, and the transformations of the arts of farming into the sciences of agribusiness.

Or is that assessment entirely true? Aren’t there occasional vestigial insights?

Vestigial Insights of a 20th-Century Farmer

Call them philosophical reflections or perhaps reminders of the tragic view of human existence of the last 2,500 years in the agrarian West since Hesiod that still remain invaluable in our rich and faceless society.

One is the idea of hubris incurring nemesis. Farmers taught me to save in good times, because they would not, could not last. If religious—and most were—they assumed an omniscient God watches over us and tempers the good with the bad. A healthy son, a banner plum year, a new shed meant “watch out!” Such good luck could not last, especially if one took such good times as a referendum on one’s own talent or brilliance—which, human nature being what it is, one usually and catastrophically did.

Nemesis then followed haughtiness. The wise instead sought balance (to hide from the jealous roaming pagan goddess Nemesis): to remain cautious and humble when things were good, and defiant and resolute when they turned awful.

I still remember their wisdom of unintended consequences, irony, and paradox. Sometimes farmers who never smoked, drank, or ate too much dropped dead of strange cancers or wasting diseases. Model peach orchards of hardy stock on occasion were sickened by bacterial gummosis. Beautiful two-story Victorian farmhouses of the 19th century burned down right after expensive restorations. That edged legacy still haunts me. I’m as afraid of good times as of bad, as if the two faced off on some baleful teeter totter, each having a commensurate turn, raising us higher and then taking us down.

I still cannot shake agrarian wisdom even in our suburbanized world. Watch out for fast-talkers and know-it-alls whose speech substitutes for real accomplishment, a lore that I guess evolved from the solitary nature of farming when people worked days alone, had few with whom to talk, and failed or succeeded by how much they got done—all and only visible to the naked eye. Not talking to a single person for an entire day while pruning or tractor driving or irrigating is no longer a normal experience.

Sometimes agrarian genes are outright curses. Why cannot a person lodge a legitimate excuse? Aren’t there extenuating circumstances?

Excess of Independence as Corrective to Today’s Acedia 

Most of my near own disasters over the last 60 years were needless and self-inflicted and came from foolishly “pressing on” in order that I didn’t “let someone down”—as if one always had to finish pruning the entire vine row with the flu, or disc the entire 20 acres with pink eye.

I would hear in my farming brain “You gave your word.” “You said you’d do it.” “What if everyone did that?” Or rather I heard what had been instilled by others.

And so when I had a dull ache in my groin, I went to fulfill a speaking engagement for an educational consortium touring in Muammar Gadaffi’s nightmare of a country and ended up in shock with a ruptured appendix in Libya, in a desperate search for a surgeon. (I found one 26 hrs. later).

A reluctance long ago in Greece to tell the archaeological director of an excavation that my urine was turning pink soon led to a staghorn calculus, a severed ureter, and an iffy flight back to the United States for an emergency operation.

Getting Middle East malaria or dysentery was usually because I didn’t want to seem to “house up” as they said on the farm. Farmers believe, apparently, that there is some natural force in the universe that rewards continuance when in fact they often make their own plight worse by not taking simple precautions. I remember a 70-year-old farmer showing me a “small” bruise on his back from falling out of his cab: his entire back from neck to belt was bright purple.

I once begged my 66-year old father not to patch old telephone wire (the remnants of a shared rural country line) on a 25-foot high, 70-year-old shoddy extension ladder. He badly broke his foot. When one does that in his sixties, and is a bit too heavy, it can devolve into all sorts of other imbalances. But he did fix the wire and the phone.

By the early 5th-century AD, “Rome”—already a crumbling Mediterranean hegemony—was a world away from the Italian agrarian state of the 3rd-century BC, in customs, values, and outlook: richer and more cosmopolitan, but unsustainable in its excesses, disunity, and rootlessness.

In our own late imperial days, honor the independent truck driver, the farmer, the guy who runs the 24-hour 7-Eleven store, and the owner-welder in a fabrication shop. We need to pause sometimes and remember who these dinosaurs were and what they have contributed. For a while longer, a few are still with us, a sort of collective keyhole through which we can look back into a now unremembered American past, whose codes and mores we simply abandoned—and to our great and present loss.