INTRODUCTION
In
Wolman v. Walter,1 a 1977 case finding state aid to nonpublic
schools in the form of textbooks and standardized testing services constitutional,
Justice Powell noted the following in his concurrence:
At this point in the 20th century
we are quite far removed from the dangers that prompted the Framers
to include the Establishment Clause in the Bill of Rights. The risk
of significant religious or denominational control over our democratic
processes—or even of deep political division along religious lines—is
remote, and when viewed against the positive contributions of sectarian
schools, any such risk seems entirely tolerable in light of the continuing
oversight of this Court.2 (internal citation omitted)
Only
thirty years removed from Justice Powell’s cavalier dicta,3
the dangers warned of by Madison and Jefferson—the chief proponents
of the religion clauses of the First Amendment—have been at least
partially realized, to the detriment of religious liberty, equal protection,
and due process. Each branch of government shares a proportionate
degree of guilt in facilitating this gradual lurch toward the establishment
of religion. The most aggressive transgressor has been the Executive
branch, which bypassed Congress to establish the Faith Based Community
Initiative,4 a reallocation of the United States social
welfare scheme, deliberately skewed to favor proselytizing and discriminating
religious groups. Congress’s passage of RLUIPA5
has subjected property owners and towns to the mercy of religious organizations,
who can challenge any law they deem inconvenient as presumptively unconstitutional.
While the elected branches of government might be accused of pandering
to a demanding religious constituency, the courts have no such excuse,
and yet it was the Rehnquist court’s reconception of neutrality—from
a tool prohibiting the government from either aiding or discouraging
religion, to a tool merely prohibiting the government from discouraging
religion, but permitting aid6—that has chiefly enabled this establishment
of religion.
These
constitutional encroachments are justified by their proponents by way
of a constitutional looking glass—one sharply at odds with history,
precedent, and the principles underlying the religion clauses.
Indeed, these encroachments have only become possible by an aggressive,
bad faith campaign to misrepresent this country’s history and principles.
There
are multiple culprits responsible for this costly interpretive shift
toward accommodation, and even more casualties. The main culprits
are Christian nationalist special interest groups,7
who monopolize public debate on religious issues, and whose lobbying
has facilitated a radical reconceptualization of “religious liberty.”
The Legislature and the Executive Branch are also to blame for this
shift, as both have aggressively catered to Christian nationalist demands
in return for “values voters” support. RFRA, RLUIPA, the Faith
Based Initiative program, and the proposed Public Expression of Religion
Act evidence a constitutionally impermissible deference to religion.
Finally, the courts, to a lesser extent, share some blame. Legal
disputes over the meaning of the religion clauses only faintly resemble
the rhetoric that dominate our national discourse, but the shift toward
deference, even if less pronounced, follows the same trend. This
is seen most dramatically in the evolution of the supposed “touchstone”
of the religion clauses—neutrality—
The
rhetoric and recent decisions sound all encompassing: religious liberty
is available to adherents of all belief systems and discrimination is
not to be tolerated. “Genuine Choice.” But a darkly
inclusive reality underlies this overbroad conception of religious liberty.
Christians, as a matter of sheer demographics, enjoy the benefits of
government largesse disproportionate to other belief systems, many which
decline government endorsement and exemptions as a matter or principle.
The beneficiaries of this new liberty go on to conflate the liberty
itself with the content of their own belief systems, seeking an explicit
endorsement for their values, when endorsement is constitutionally impermissible.
While the Constitution protects religious beliefs and exercise, they
are not inherently benign and often even malignant, despite that religion
and secular law sometimes share a common genesis.8
Many popular religious beliefs contradict entrenched secular law—and
legislative and judicial carveouts are no longer exceptional, but expected.
The
response to this type of criticism is remarkable for its hypocrisy.
In essence, accommodationists assert that secular society, or an overly
separationist view of the religion clauses, trivializes and compartmentalizes
religion in such a way that religion is excluded from the larger public
debate.9 This assertion is patently untrue: religious
figures play a vast role in the cultural landscape, and its speech is
doubly protected by the free exercise and speech clauses. The
allegation of exclusion is rather part of an effort to rig the game,
as it were; to unleash religious arguments and justifications into public
debate while simultaneously girding its contents from criticism.
Thus, Christian nationalists can be heard to passionately argue the
secular liberal value of tolerance as a vehicle to elevate their views
in the public forum, even as the content of their own views is
rabidly intolerant. We should be tolerant of their right to exercise
intolerance, in other words. While no one suggests that intolerant
beliefs should be legislated against—it becomes constitutionally
problematic where the government aggressively accommodates and partners
with intolerant religious entities, and is doubly insidious when the
government exempts or accommodates agents of intolerance in the name
of equality, tolerance, or religious liberty. How long would
these values last if the matter was left to the entities whose belief
systems explicitly deny those same values? At the risk of hyperbole,
it should be recalled that no elections took place after Hitler himself
was elected.
This
paper defends an interpretation of the religion clauses that admittedly
compartmentalizes religion, but warns that government accommodation
beyond the incidental results in an inequitable skewing of political
power toward particular religious entities (the ones seeking accommodation),
inherently favors Christianity over other religions, and indeed tends
to establish a homogenized state religion of sorts. I go farther
than warning against this occurrence—it can be demonstrated that we
are already at this point, even though we are admittedly not near a
theocracy. Whether this can be reversed is a difficult question—it
may be a case similar to Brennan's ratchet—rights granted beyond
what is required by the Constitution cannot be easily rescinded.10
That is, once the expectations of religious individuals and institutions
gel, it may be too late to interpret those rights more narrowly than
where they were last 'set.' But the overall dispute is not necessarily
between religion and irreligion; the prime casualty where religious
liberty is so affirmatively interpreted is often minority religious
groups and adherents. In this zero sum game, one adherent's religious
liberty is another's persecution.
The
answer, in this author’s opinion, is to reframe the debate over the
religious clauses in normative terms that are still supported by their
text and original meaning:11 each individual has within them a capacity
and natural right toward religious belief and exercise, broadly defined
to include matters touching on the conscience; the conscience is protected
by the free exercise clause of the first amendment. But every
individual also has a secular obligation
independent of their religious belief, regardless of how all-encompassing
the individual’s belief is. Accommodationists often wrongly
pitch the debate as an either/or proposition—usually as the godless
secularists against the “people of faith.” But this simplistic
argument ignores evidence that religious liberty as conceived by the
framers was intended to benefit every individual, not merely those who
affirmatively assert it. Similarly, secular obligations are not
swallowed whole by religious belief and exercise that otherwise permits
the religious adherent to lead a lawful life. The resulting conception
of religious liberty is one that focuses on the individual's natural
right of conscience as opposed to present day model, which resembles
an affirmative action program for religious entities.
EXTREMELY ACCOMMODATING
Faith-Based Community Initiative
The
shift in the government’s role as protector to protector-provider
perhaps best explains why disputes over the religion clauses arose so
infrequently from the time of the Constitutional Congress until around
1940.12 Controversies touching on questions
of religion liberty, to that point, were mostly decided under the 14th
Amendment.13 This
timeframe coincides, perhaps not coincidentally, with another significant
First Amendment development—incorporation of the religion clauses
to the states through the Fourteenth Amendment.14 Since that time, disputes over the religion
clauses have been a staple of the Supreme Court calendar, and many of
these disputes derive from confusion over the government’s new provisioner
role—government was subsuming societal functions that had, to that
point, been filled by religion—namely, education and charity.
The
present administration’s Faith Based and Community Initiative (“FBIC”)15
is mindful of religion’s historical role in delivering charitable
services, and has effectively outsourced its “safety net” obligations
to religious entities, while simultaneously maintaining what can only
be described as a profound disregard for performance, success, and monitoring.16
Religious entities have actually been administering charitable services
through government contracts for decades,17 but those religions groups collaborating with
the government had effectively segregated the aid delivered from their
religious message, by separately incorporating.18
The Faith Based Initiative purported to remove “the existing barriers
to the participation of faith-based and other community organizations
in the delivery of social services,”19 paving the way for smaller, non-denominational
religious groups to participate in the delivery of charitable services.
When the bill stalled in Congress,20 President Bush signed an executive order in
December 2002, that accomplished the same goals as would have been enacted
by the bill—the establishment of a program that delivers billions
in government funding to religious entities through an incomprehensible
myriad of bureaucratic sluices.21 These funds come with few strings attached
as to how the charity can be delivered,22 but the executive order bolstered hiring rights
and instituted protections for religious autonomy,23
effectively permitting government recipients to discriminate in their
hiring practices, and religiously coerce aid recipients.24
These provisions cannot be reconciled with President Bush’s empty
promise that “government money is not to fund religious activities,”25
because that is precisely what these provisions intend to ensure, and
in fact accomplish—indeed, a provision protecting “religious autonomy”
is only necessary if a religious entity chooses to proselytize and coerce
while administering aid.
Many
FBCI grants have triggered litigation, but one case, Anne Lown v. Salvation
Army,26 is particularly emblematic of the discrimination
and coercion that have become the hallmark of the constitutionally suspect
Faith-Based Initiative. Soon after the FBIC office was established,
it approached charity behemoth Salvation Army, and encouraged it to
discriminate against gays and non-Christians in its hiring practices.27
Anne Lown was a Jewish Salvation Army employee who quit in 2004, citing
a hostile work environment and retaliation after her and co-plaintiffs
complained about a policy ordering employees to “name” other homosexuals
within the organization.28 The Salvation Army, originally called
The Christian Mission,29 is an ostensibly religious organization, familiar
to most for their sidewalk Santa Clauses sprinkled throughout various
cities during Christmastime—but prior to the FBCI’s overture, the
Salvation Army had been effectively secular, hiring across religious,
sexual orientation, and racial lines and rarely proselytizing.
Whether it was the promise of faith-based funds that caused them to
“heighten [their] evangelical aspect”30 is unclear, but its coincidental transformation
toward a more evangelical model suggests coercion by the federal government.
While this shift would ordinarily be constitutionally permissible—the
free exercise clause understandably permits religious organizations
to discriminate in hiring31—entities who deliver services to the poor
on behalf of the government cannot be exempted from the Civil Rights
Act.32
Author
Michelle Goldberg hints at an additional unconstitutional flipside of
the Faith-Based Initiative: “The Christianization of the safety
net has created a kind of affirmative action for the born again.”33
Although the Faith-Based Initiative is facially non-discriminatory—any
religion can apply to receive funds—the vast majority of applicants
are Christian entities.34 The enormity of this “faith-based
gravy train”35 (billions, not millions) assures that
the effects felt from this program will be substantial, and non-Christians
need not apply for these new federally created jobs. As the Salvation
Army example shows, a particularly politicized brand of Christianity
is being favored by the government, further narrowing the pool of likely
“gravy train” beneficiaries. Indeed many religious entities
wisely decline faith-based funds, wary of the ideological strings that
apparently posed no obstacle to the Salvation Army, which permitted
the alteration of its religious character in exchange for government
money.36
The
FBCI is not funded, contrary to its advanced billing, from a suddenly
appearing wellspring of “Compassionate Conservatism,”37
but rather a reallocation of already earmarked social welfare
funds.38 This reality coerces secular charities
to either “become” religious, or get out of the way. One of
the largest secular providers of aid to Africa is CARE, a long time
receiver of U.S. government funds. Amid charges from Republican
Senator Rick Santorum that CARE was “anti-American” and “promoted
a pro-prostitution agenda,” CARE’s funding was slashed.39
CARE’s mistake, referred to by Senator Santorum, was to convince African
prostitutes to use condoms, to help curb the spread of AIDS. Abstinence
is the touchstone of the Bush Administration’s foreign policy initiative
on Africa, and CARE’s distribution of condoms to prostitutes, despite
evidence of that particular tact’s success in fighting AIDS,40
made it a “liberal cancer,” as Focus on the Family’s James Dobson
put it. The U.S. Agency for International Development (USAID),
the government agency charged with distributing funds to charity providers
working abroad, has excised similar “liberal cancers” in deference
to evangelical groups promoting abstinence, many who see Africa primarily
as a platform on which to proselytize.41 Unfortunately, it is difficult to tell
precisely how the aid is ultimately being spent because, stunningly,
the money is barely accounted for by the government,42
leaving it to the media to piece together the various parts.43
While
the absence of fiscal monitoring is a hindrance to understanding the
FBCI, more stunning is the obstinate lack of scrutiny as to the efficacy
of the funded programs.44 Professor Gerald Bradley, of Notre Dame
Law School, typifies the mindset that may explain the absence of objective,
results oriented data: faith-based programs cannot be measured with
secular yardsticks, Bradley suggests, since people “who welcome Jesus
into their hearts” will simply be better off.45
This rejection of reason by the evangelical right is a recurring theme
to those familiar with the “culture wars,” especially where scientific
data contradicts literal biblical interpretations.46
But establishing a conduit through which Jesus can reach the hearts
of Africans is not only a constitutionally impermissible endorsement
of religion by the government; it endangers the health of aid recipients.
Despite every indication that distributing condoms decreases the spread
of AIDS47 and that preaching abstinence is profoundly
ineffective at doing the same,48 our foreign policy has actively discarded
secular evaluation in deference to faith while aid recipients pay with
their lives.49
Land Use
Less
medically detrimental but no less unconstitutional is the aggressively
accommodationist approach to land use taken by Congress, tracing back
to the City of Boerne case,50 where the Supreme Court invalidated the Religious
Freedom Restoration Act as an improper exercise of Congress’ enforcement
power under the 14th Amendment. The facts of the much-discussed
City of Boerne case are mostly ignored in deference to the sexier separation
of powers issues, but are worth briefly reiterating, as they typify
an all too common scenario: the San Antonio archdiocese sought to demolish
a church built in 1923 and located in historic district in order to
replace it with a larger “box like structure.”51
The city brought suit to protect the economic value of property within
the historic district, and the Archdiocese responded that the Religious
Freedom Restoration Act (“RFRA”) exempted it from local zoning laws—and
indeed, it did—but RFRA impermissibly altered the meaning of the free
exercise clause and the court properly invalidated the law.52
Congress responded quickly to the court’s rebuke by drafting the Religious
Land Use and Institutionalized Persons Act (“RLUIPA”),53
which had goals similar to RFRA, but a narrower focus, limiting its
subject matter eponymously. But like RFRA, RLUIPA treats generally
applicable laws as presumptively unconstitutional and thus requiring
a strict scrutiny analysis,54 despite holdings in Employment Division
v. Smith55 and Church of the Lukumi Babalu Aye v.
Hialeah,56 upon which the City of Boerne decision partially
rested.
As
written, RLUIPA requires the religious claimant to show that a law imposes
a “substantial burden” on the claimant’s religious exercise;57
but as practiced, Professor Marci Hamilton persuasively argues, substantial
burden has been taken to mean the slightest expense or inconvenience.58
RLUIPA favors the interests of religious landowners over residential
landowners by the inclusion of a clever procedural mechanism that makes
nearly every zoning law presumptively unconstitutional: if a regulation
permits the government to make an “individualized assessment” of
the property, the regulation presumably burdens religious exercise.59
The language apes the holding in Sherbert v. Verner, which held
that the government may not make a law that substantially burdens religion
unless it is narrowly tailored to achieve a compelling state interest.60
But Sherbert was distinguished by Smith, which rightly
saw Sherbert not as providing a cause of action for every generally
applicable law burdening religion, but rather limited to instances where
the government has structural exemptions in place, and then impermissibly
denies an exemption for religious reasons. RLUIPA stacks the deck
for religious claimants based on this idea, requiring strict scrutiny
analysis for all land use claims where the government not only makes,
but “is permitted to make” individualized assessments.61
Thus, a land use law under RLUIPA is a presumptive burden on religion
so long as it permits the government to make a case-by-case determination,
even before any determination has been made affecting religion one
way or the other.62 As the government—either state or
federal—never lacks the capacity to make a case-by-case determination
in any hypothetical land use case, strict scrutiny has effectively been
mandated by Congress in all land use cases.
Like
RFRA, RLUIPA impermissibly defines the parameters of religious freedom.63
It affirmatively grants religious entities rights not granted to secular
entities or persons often at their expense. When a religious entity
decides it has a religious mandate to expand,64
it is the neighboring landowners who will suffer the consequences—land
use is generally a zero sum game. When religious entities can
simply choose to ignore applying for variances and permits, the consequences
are real: sudden architectural incongruence in historic district devalues
the district and the neighboring property; homeless shelters and drug
rehabilitation centers can be brought into residential neighborhoods
without debate;65 civic planning (considerations of parking,
traffic, etc.) is subject to the whims of the religious entity;66
RLUIPA has even been used by at least one private homeowner, who filed
a claim after receiving an order to cease using his home, located within
a residential cul de sac, for weekly prayer meetings after neighbors
complained of the number of cars that prevented them from parking each
week.67
THE ILLUSIVE WALL AND NEUTRALITY
Framers
and Meaning
The
concessions to religion in the areas of land use and charity may simply
be examples of political pandering—after all, the loudest defender
of RLUIPA and the FBCI is a self-identified voting constituency, and
not coincidentally is RLUIPA and the FBCI’s greatest beneficiary.
While the appointed federal judiciary is less influenced by religious
special interest groups, it has nevertheless followed a path similar
to that of its sister branches of government, by slowly stripping away
the principles that gird the religion clauses in favor of a populist
model sharply at odds with history. It may be impossible to derive
a truly fixed meaning of the religion clauses—perhaps no other constitutional
provision’s meaning is so disputed, with some justification.
The clauses are broadly and somewhat abstractly written and in tension
to one another. Both are prohibitions on state conduct, the first
limiting government activity on behalf of religion, and the second limiting
the government in actions taken against religion. Thus, an expansive
interpretation of one clause might detrimentally affect rights under
the other.68
It
is also noteworthy that they were written over 200 years ago—since
then our country has grown exponentially, causing the federal government
to balloon in size and complexity, trading old problems for new ones
along the way.69 Consequently, the highly interactive
regulatory model of today is unrecognizable next to the skeletal caretaker
model in place around 1789. The Framers, hypothetically shuttled
through time to present-day Washington D.C., would likely be at a loss
to apply the religion clauses to current disputes without being briefed
for a considerable time on how government and the population to which
the religion clauses would apply differ from the time they were written.
They
would need to know, for instance, of the increased influence of the
federal government relative to state governments, due largely to innovations
permitting greater ease of travel between the states. They would
need to know that the United States is a far more religiously and racially
pluralistic, despite that a majority of Caucasian Christians remains.70
And they would need to know that blacks and women now share equal legal
footing as the white male Framers. I recite this minor litany
of now and then differences merely to demonstrate that Historical Originalist
ideas of Constitutional application are structurally unworkable—we
cannot be instructed by the religious conduct of the Framers because
local, no longer applicable, and inappropriate considerations may have
guided their personal decisions. Likewise, whatever agreement
arrived at by the Framers as to the government’s role with regard
to religion has to be considered in light of the relatively limited
role government played at that time.
Thus,
questions posed as to whether the Framers intended to permit government
aid to religion so long as the aid was non-preferential must consider
at the outset how to deal with this historical disparity of the purpose
of government then and now. An Originalist would respond to this
critique by noting that the Constitution has a mechanism by which it
can be amended.71 The notoriously difficult step of amending,
however, cannot be the answer every time the winds shift the societal
landscape one way or the other, or uncovers that certain natural rights
also belong to a class previously thought of as suspect.72
Besides being unrealistic, amending would sweep aside a vast body of
case law surrounding the religion clauses and with that, the settled
expectations of individuals. The “amend” suggestion also begs
the question: amend it to what? Abstraction is inherent
to constitutions generally—absent a detailed writing that more closely
resembles a statute, we would be trading in old interpretative problems
for new. Most importantly, altering the text of the religion clauses
is unnecessary, because the text rather perfectly reflects the Framers’
deeply held principles on the nature of governance and natural rights
that led to their passage. A persuasive model for Constitutional
interpretation, then, is one that considers the text in light of the
text’s underlying principles.73 [a model I will use after discussing Neutrality]
A Brief History of Neutrality
The
first modern attempt to extract an applicable constitutional principle
resulted in the separation doctrine, relying on the visceral metaphor
of Jefferson’s wall of separation.74 But Jefferson’s wall was always porous—even
in Everson v. Board of Education of the Township of Ewing (hereinafter
Everson),75 where the wall had its rebirth, the majority
permitted state aid to religion in the form of busing.
Everson’s wall came with a built-in door, it would seem, and subsequently
fashioned doors would spell doom for the wall’s utility as a constitutional
metaphor.76 Its greatest present-day utility, in
fact, appears to be as a political rallying cry for religious conservatives
who rarely hesitate to allege its non-existence.77
Everson is popularly recalled for its conjuring of Jefferson’s
wall, but Everson’s more crucial and lasting legacy was the introduction
of neutrality, sometimes referred to as the “touchstone”
of the religion clauses.78 Justice Black read the First Amendment
as meaning that the state could neither aid
nor discourage religion, nor favor religion over irreligion.79
This appears to be a sensible approach—it accurately reflects the
text of the religion clauses, and comports with other writings of the
Framers.80 For example, in a passage favorably
cited to in Everson, Madison wrote to criticize "A Bill
establishing a provision for Teachers of the Christian Religion”:
“As the Bill violates equality by subjecting some to peculiar burdens,
so it violates the same principle, by granting to others peculiar exemptions.”81
Justice Black similarly finds support for his neutrality principle in
the words of Thomas Jefferson, who believed that a state recognized
concept of religious freedom relies not only on a “wall” separating
the church from the state, but in a mechanism that would protect the
natural right of conscience from major religions influential enough
to ascend to temporal power:
But is the spirit of the people
an infallible, a permanent reliance? Is it government? Is this the kind
of protection we receive in return for the rights we give up? Besides,
the spirit of the times may alter, will alter. Our rulers will become
corrupt, our people careless. A single zealot may commence persecutor,
and better men be his victims.82
Jefferson wisely saw the religion clauses
as necessary not only to protect religion from government, but to protect
individuals from religion, a factor Justice Black recognized in constructing
a neutrality requirement that considers the church-state relationship
from both ends: if the government is prohibited from discouraging religion
or favoring “irreligion,” religion is protected from the government;
if the government is prohibited from aiding or favoring religion, individuals
are protected from religion acting alongside the state or with its endorsement.
Justice Black’s neutrality identifies religion as a natural right
but remains cognizant of the Framers’ warning that religion, when
it acts with state endorsement, threatens the liberty of non-adherents
to the favored religion.83
Justice
Black’s neutrality gradually solidified into a touchstone, and tests
emerged under it, typified by Abington School Dist. v. Schempp,84
which boiled the neutrality requirement down to the following two part
question: What are the purpose and the primary effect of the enactment?
A law is valid if it has a secular legislative purpose and a primary
effect that neither advances nor inhibits religion, noted the majority
in Abington,85 where plaintiffs successfully challenged a
public school’s practice of opening each day with the Lord’s Prayer.
Abington is an instructive and fascinating case on the topic of
neutrality, as for the first time, different strains of neutrality become
clearly visible. Justice Clark, writing for the majority, rejects
the defense’s contention that neutrality collides with the Free Exercise,
prophetically noting that free exercise “has never meant that a majority
could use the machinery of the state to practice its beliefs.”86
Justice Brennan’s concurrence searched for nuance in offering a hypothetical
where neutrality would collide with free exercise: “hostility, not
neutrality, would characterize the refusal to provide chaplains and
places of worship for prisoners and soldiers cut off by the State from
all civilian opportunities for public communion[.]”87
Justice Goldberg concurred with stronger foreboding words: “untutored
devotion to the concept of neutrality can lead to […] brooding and
pervasive devotion to the secular and a passive, or even active, hostility
to the religious.”88 Justice Stewart rounds out the neutrality
continuum in his dissent, agreeing with the defendants that the refusal
of the state to allow the Lord’s Prayer to be read each school morning
establishes a “religion of secularism.”89
Justice
Clark’s purpose and effect inquiry in Abington was brought
together with the principal concept in Walz v. Tax Com. of New York,90
which upheld the government’s property tax exemption for religious
organizations, finding that the exemption fostered greater separation
between church and state than would taxation, which would cultivate
an impermissible entanglement between the two,91
to form a single, now infamous test, in Lemon v. Kurtzman.92
The Lemon test is essentially a restatement of Justice Black’s neutrality—each
prong of Lemon acts as a gatekeeper at Jefferson’s wall, limiting
government interaction with religion to the incidental. Lemon
codifies in the form of a practical inquiry the otherwise abstract concept
of neutrality. Lemon is still considered good law, but it is frequently
ignored by the Supreme Court, and often castigated by social conservatives
on the bench.93
216
years after Jefferson’s warning, and 50 years after Everson,
the Rehnquist court, reconceived neutrality entirely. Phase One
of the overhaul came in 1997, courtesy Agostini v. Felton, where
Justice O’Connor validated a New York City subsidized “shared time”
program in which public school teachers were sent into private school
to supplement the religious education of the private school students.
Despite adverse precedent on precisely the same fact pattern, the program
was upheld when Justice O’Connor (historically less predictable on
religion clause issues than her fellow justices) dismissively invalidated
three “assumptions” that the now overruled Aguilar v. Felton94
and Grand Rapids SD v. Ball95 rested upon:
(i) any public employee who works
on the premises of a religious school is presumed to inculcate religion
in her work; (ii) the presence of public employees on private school
premises creates a symbolic union between church and state; and (iii)
any and all public aid that directly aids the educational function of
religious schools impermissibly finances religious indoctrination, even
if the aid reaches such schools as a consequence of private decisionmaking.96
O’Connor then couched the issue of
affirmative aid to religion in economic terms, holding that a “financial
incentive to undertake religious indoctrination (presented to aid recipients)
is not present where the aid is allocated on the basis of a neutral,
secular criteria that neither favor nor disfavor religion, and is made
available to both religious and secular beneficiaries on a nondiscriminatory
basis.”97 This extremely important passage reads
like a distillation of a host of important Supreme Court holdings on
religion to that point: Justice Black’s neutrality is present (“neither
favor nor disfavor religion”), as is Lemon’s “secular purpose”
prong. But Justice O’Connor obfuscates their singular importance
by subjugating them to her own assumptions: (1) that religious indoctrination
can only occur in the presence of certain economic incentives; and,
(2) that the economic formulation she posits can be realistically satisfied.
The “assumptions” in Ball and Aguilar which Justice
O’Connor invalidates are more accurate described as prudential barriers,
properly invoked by a Burger court rightly cognizant of the threat religion
posed to individuals through government, and not merely the threat government
posed to religion. If any questions remained as to the fortitude
of those assumptions, they were foreclosed five years later, in Zelman
v. Harris,98 where Chief Justice Rehnquist validated a
Cleveland school district voucher program in which 96.6% of the program
funds went to religious schools, primarily because voucher holding parents
possessed a “genuine choice” as to where the money would go.
The Cleveland school district voucher structure puts Justice O’Connor’s
economics to the test: how can parents not be coerced to choose a religious
option when a mere 3.4% of their allegedly “genuine choice” is not
religious? The answer involves an awkward bit of voodoo economics
to make Justice O’Connor’s formulation work out correctly: the parents—and
not the schools—receive the money in the form of a voucher, which
they are free to apply as tuition toward any school within a pool of
predominantly religious schools (96.6%). Zelman’s import is
essentially a total recapitulation of Black’s neutrality—the government
may now freely aid religion, so long as it does so neutrally.
Zelman appears to suggest that neutrality can be accomplished through
clever use of financial proxies and statistically insignificant nonreligious
options.
Neutrality Unleashed
Today,
C.J. Rehnquist’s neutrality continues to be achieved through similar
sham accounting models, circumventing the Constitution in other arenas.
For example, one of the many delivery mechanisms in the complex OFBCI
arsenal is Access to Recovery (“ATR”), a federal agency99
through which vouchers are distributed to drug addicts (via third party
intermediaries), who can then exercise their “genuine choice”100
to purchase either religious or secular rehabilitation or drug treatment.
Putting aside the interesting question of whether drug addicts can generally
make informed choices between religious and secular services (I’ll
graciously assume they can),101 a look behind ATR’s curtain reveals the
same sham neutrality present in Zelman. Licensing and certification
requirements have virtually disappeared for ATR grantees, permitting
religious grantees to compete untethered by costly bureaucracy,102
while they endanger the lives of those they treat with unqualified,
ineffective care.103
Creative
accounting intending to avoid violating the constitution is nothing
new; Catholic, Lutheran, and Jewish
charities comprise the three largest religious charities, and each has
received millions from the federal government. But each, in return
for grant money, separately incorporated and administered the charities
as secular arms, cognizant of the impermissibility of administering
federal aid in the form of a religious “bargain” with the aid recipient.
The FBCI not only permits the FBOs to barter the aid for religious services,
the order creating the office insures the protection of each FBO’s
religious character,104 practically guaranteeing that aid is
delivered in concert with proselytization.105 This is not the type of coercion that
Justice O’Connor had in mind in Agostini,106
but still demonstrates how easily her incentive model is circumvented,
or at least limited to the facts in Agostini (if that). The government
and religious charities have approached neutrality the same way a tax
lawyer and her client approach an income bracket—a technical requirement
to be worked out on paper by shuffling sources and assets, but in substance,
avoided with methodical diligence.
Zelman
is remarkable for its result—for the first time, significant non-incidental
government aid to religion was found permissible. But its greater
significance lies in Rehnquist’s semiotic thievery—the wealth of
meaning that had attached to Justice Black’s neutrality was washed
away even as CJ Rehnquist relies on the word throughout the opinion.107
In this way, precedent is merged seamlessly with the Orwellian present;
neutrality remains the touchstone of the religion clauses—but it now
means something entirely different. Stripped to its core, neutrality
signifies a positive, benign quality—a neutral referee, judge,
or arbitrator, then, is a good
referee, judge, or arbitrator. As an end in itself, neutrality
is practically a certification mark, used by in legal circles to signify
a desirable fairness and judiciousness—a proper compromise.
Splitting the neutrality atom in the context of the religion clauses
is a popular scholarly pastime, with many labelers eager to append the
good will inherent in the term to their own theory of what the religion
clauses should mean. The following (inexhaustive) variants of
neutrality have been proposed by commenters or judges: “strict,”108
“formal,”109 “substantive,”110
“noninterventionist,”111 “equal promotionist,”112
“Benthamine,”113 “proceduralist,”114
“positive,”115 and “benevolent.”116
That the term is prone to so many titular modifiers might be, in itself,
enough to conclude that neutrality lacks any real utility, since
each of these retains a slightly different meaning.117
Linguistically, the term by itself solves nothing, as it naturally begs
for either a modifier or modified—or a comparison between competitors;
neutrality hinges entirely on the interpreter’s baseline.118
The
key to understanding any of the flavors of neutrality with regard to
their application to the establishment clause, then, is to discover
which competing elements form the commenter’s baseline. Justice
Black’s baseline would appear to be the fragile relationship between
the government, individuals, and religion. Black’s neutrality
springs from the recognition that individuals can only be protected
if the government and religion are prevented from empowering or undermining
each other, an idea supported by the Framers.119
At the opposite end of the “neutrality” spectrum, Rehnquist’s
neutrality is informed by government and religions—plural—and
effectively eliminates the individual from consideration. By this
view, religion is less a natural right of the individual than an unmitigated
public good in and of itself, and neutrality is satisfied when the government
simply declines to favor one religion over the other. Rehnquist
implicitly rejects Jefferson’s warning that religion could be corrupted
by government largesse—religion either needs no such patronizing help,
this view would hold, or is kept in check by the simultaneous government
support for all religions, thereby preventing a monopoly by one.
The elimination of the individual from the baseline carries over to
the free exercise clause, which is informed almost entirely by the affirmatively
asserting religious entity,120 as opposed to the individual, who has traditionally
asserted free exercise as a shield against arbitrary state targeting.121
Rehnquist’s
neutrality rests on the assumption that religion is a public good unto
itself—permitting the government to aid religious entities begets
a trickle down benefit to the public at large. This idea is closely
tied to another assumption, advanced by Mark Tushnet: that religion
is necessary to develop communal principles of morality and justice.122
The notion does have some facial appeal—religious entities and religiously
motivated individuals have traditionally engaged in charitable endeavors.
Why can’t the government advance the interests of religious entities
if the public yields the benefit? Even if we presume the dubious
notion that religion, generally, is a prerequisite to community morality,
it cannot be said that all religions positively contribute to
community morality. For instance, many religions practice “excommunication”123
and “disconnection,”124— objectively anti-democratic policies whose
secular parallel would be patently discriminatory. Most mainstream
religions exclude women and gays from holding certain jobs—behavior
that would be sanctioned in the public realm.125
Many religions are not charitable and intensely insular; advancing the
goals of the Church of Scientology, for instance, benefits a small pool
of individuals only—Scientologists.126
So
even if it is conceded that religion generally produces a public good,
adopting a policy on that presumption presents a problem: the government
can either pick and choose to promote only religions whose policy goals
overlap its own (and impermissibly favor Religion A over Religion B),
or partner with all religions, and thus promote a grab bag of
policies, many which would naturally conflict with the public good (not
to mention each other). The notion that religion is a necessary
component of public order is hardly settled, and further, reveals a
bias against law-abiding atheists and agnostics—beliefs that, although
uncommon, were as present during this country’s early days as they
are today.127 There is simply no evidence that religion
alone holds title to some theoretical wellspring of morality, and indeed,
the evidence points to the contrary.128 That religion is the sole barrier between
our civic character and unrestrained vice is also easily controverted
by a long historical litany of atrocities committed under the influence
of religious belief.129 The solace individuals realize through
religious belief and practice is undoubtedly a “public good” worthy
of constitutional protection, but that solace should not be confused
with the values themselves, which could easily be either a public good
or public poison.
In
the case of many FBCI grantees, it is less a question of quid pro quo
religious indoctrination (where the grantee delivers tangible aid in
exchange for a religious audience) because the indoctrination is
the deliverable aid. “Teen Challenge,” a program lauded by
FBCI proponents and presented before Congress130
as an exemplar of treatment through the “life-changing power of Jesus,”131
relies on an unproven connection between drug rehabilitation and acceptance
of its religious message. Asked by a congressman whether Teen
Challenge accepts clients from other religious persuasions, Teen Challenge’s
Reverend/Executive Director John Castellani replied that some of the
Jews who finish Teen Challenge become “Completed Jews,” an evangelical
term of art referring to Jews who have become Born-Again Christians.132
Teen Challenge typifies the types of entities the government actively
seeks to fund through the FBCI, and typical of the new neutrality, under
which the government can actively promote entities whose primary goal
is religious conversion so long as the funds are routed in a manner
that cloaks the source.
The
Negative Argument for Neutrality
Scholars
such as Stanley Fish and Stephen Carter have long advanced
the view that secularity operates as a religious belief in itself, and
only by advancing religion can the government level the playing field
between secularism and religion. Carter senses a conspiracy
amongst cultural elites to treat “religion […] like building model
airplanes: something quiet, something private, something trivial —
and not really a fit activity for intelligent, public-spirited adults,”133
and urges a standard that takes more seriously views informed by religion
that contradict reason. Stanley Fish echoes the postmodernist
view hinted at by Justice Stewart in Abington (alleging that
secularism is a religion – see note x), only Fish identifies a broader
culprits: liberalism and tolerance. Fish laments what he sees
as a gamed system, where liberalism immediately compartmentalizes ideologies
that do not rely on reason, which Fish believes is as much a matter
of faith as a faith in God. To Fish, liberalism is merely a hypocritical
variant of fundamentalism: “Liberalism is tolerant only within the
space demarcated by the operations of reason; any one who steps outside
that space will not be tolerated.”
There
are many ways to answer Fish and Carter: Stephen Gey distinguishes reason
from the immutability of religion, and notes that “when a government
places its imprimatur on principles derived from an extra-human source
[…] it implicitly places certain political questions beyond human
control.”134 In other words, reason is the only common
denominator that does not invoke uncounterable supernatural explanations
(a contention at the heart of the evolution vs. intelligent design debate).
Another response would be that religion is not discriminated against—the
playing field is already level (or was, until recently), and religious
ideas rise or fall on their own merit. Intelligent Design has
not been accepted as a valid scientific explanation for the existence
of life forms because of the evidence stacked against it, not because
of liberalism’s hostility toward religion, for example.135
Carter would explicitly democratize the science classroom (and presumably,
like the Kansas Board of Education, alter the definition of science
to do it) to include creationism because of the “sincerity” of a
large contingent of believers.136 Arguments alleging an American faith in reason
to the exclusion of religious ideas usually fail to mention that the
majority of Americans consider themselves religious, or that discussions
on religion dominate the cultural landscape—there is no idea marketplace
conspiracy to exclude. Indeed, the religion experiment in America
is largely viewed as a success137—religion thrives here despite the shackles
complained of by Carter and Fish. Their argument does not seek
a level playing field, but rather a religious exceptionalism, an implicit
admission that religion requires the help of the government in competing
with reason.
To
Carter and Fish, neutrality is a desirable end in order to undo the
idea marketplace monopoly tolerance and reason have long held—an affirmative
action program for religious ideas, in order to expand that marketplace.
As scholars, Carter and Fish have no dog in the hunt, as it were—but
religious stakeholders advance those same arguments with a bold hypocrisy,
persistently arguing for an expansive tolerance to insure its own intolerant
practices.138 These stakeholders have no interest
in expanding the idea marketplace—they merely want to dominate and
control it.139 Fish would respond that liberalism already
dominates and controls the marketplace, and excludes religious voices
on the basis of their non-liberal orthodoxy. Even if we accept
this as an underlying premise (ignoring, too, that the religious voices
dominate our cultural landscape), the liberal orthodoxy Fish and Carter
eschew is a far more accepting baseline than the traditionally religious
alternatives, were one to be “freed up” in the way Fish and Carter
imagine. The Framers recognized, unlike Fish and Carter, that religious
freedom is a zero sum game with multiple interlocking parts, and designed
the religion clauses with the countermajoritarian goal of preventing
the ascent of a single winner. The tolerance Fish and Carter dismiss
as exclusionary is a centerpiece of democracy—a core American value
that protects the political process and religious minorities.140
Thus, even if we ignore the practical difficulties in application and
concede that Fish’s postmodern utopia offers the promise of something
greater, what he offers is not American.
The
Non-Denominational Establishment
Ultimately,
Rehnquist’s neutrality fails less on tenuous logic, but on practice.
Only ten years have passed since Zelman, but two major developments—the
FBCI, and RLUIPA—both relying on the presumptions that inform Zelman
amply demonstrate that the casual scrutiny demanded by Rehnquist’s
analysis is profoundly inadequate to protect the religious liberty of
Americans. Formal neutrality relies on the presumption that no
one denomination can gain over others so long as they enjoy equal access
to government funds and exemptions.141 But reality has played itself out to
a degree which we can at least conclude that the assumptions upon which
formal reality were built were incorrect, and the eagerness of the Rehnquist
court to accommodate religion has resulted in an establishment of religion.
Historically,
religion has been an important element of the United States character.
At the time of the Constitution, various strains of Protestantism were
the dominant faiths; rarely was there a need for a court to interpret
the religion clauses, whether because of theological homogeneity, the
limited role government played in individuals’ lives, and/or the fact
that the religion clauses were not incorporated through the 14th Amendment
until 18xx. The religion clauses only became “necessary”
when the religious makeup of the country broadened to include many more
Catholics. Laws motivated by bigotry, such as the Blaine Amendment,
were passed by the Protestant majority with the intent of preventing
Catholicism from gaining any foothold in government (more specifically,
the fear centered on the influence of the Papacy). A broadly construed,
accommodating First Amendment would inevitably lead to gains by Catholicism
that the Protestants could not live with.142 [Whether motivated by bigotry or
not, a separationist doctrine grew; decisions such as X, Y, Z are each
indicative.] But the influence of mainstream Protestantism
has waned in recent years, and has effectively been replaced as the
majority religion by a non-denominational, politically energized, socially
conservative, fundamentalist brand of Christianity, which claims the
American President as a member. Unlike the Protestantism out of
which it grew, evangelical Christianity exhibits no fear of Papal influence,
which, largely due to the 28 year reign of Pope John Paul II, had become
sharply conservative. Wisely ignoring the theological differences
between themselves and the Vatican, evangelicals have instead stressed
their shared political goals, and gained a powerful ally on issues like
abortion and gay marriage. [FN:Old line protestants were mostly
silent during this changing of the guard, but some have begun to speak
out in recent days, such as ex Senator Danforth]
Bolstered
by the strength of the executive and legislative branches behind it,
evangelical Christianity has effectively become established as the state
religion. True, a national evangelical church has not been erected,
nor are we directly taxed to subsidize evangelical churches. But
our Constitution requires far less than those blatant violations, and
evidence abounds that both the legislative and executive branches, enabled
by Rehnquist’s green light in Zelman, constantly, and without
apology, engage in activity that respects an establishment of the evangelical
Christian belief, to the detriment of the secular framework intended
by the Constitution, and religious and non-religious minorities.
One
of the OFBCI’s most telling actions came at the launch of the program,
when it failed to include three of the four largest faith-based recipients
of government money,143 Lutheran Social Services, Catholic Charities,
and Jewish Family Services; the fourth, the Salvation Army, having agreed
to the government’s request to discriminate against non-Christian
employees,144 was present. Through the FBCI, the government
is indicating an explicit preference for one type of Christianity over
another, rewarding the type willing to discriminate, and punishing the
ones who refuse. This is government coercion on a macro, policy-wide
level—essentially bribing organizations like the Salvation Army to
“evangelize” their Christian character in exchange for money. It
is difficult to imagine a more lucid violation of the establishment
clause.145
Another
telling event was then-Attorney General John Ashcroft’s refusal to
investigate a sharp spike in violence against abortion clinics—790
in 2001, including 554 packets of fake anthrax. Ashcroft, an avowed
evangelical, had promised to end a task force established by his predecessor
Janet Reno to address violence against abortion clinics. Also
under Ashcroft, the Justice Department created a “religious rights”
department within the Civil Rights Division, where the focus switched
away from racial inequality to defending suits brought against FBCI
entities. One of those suits, the PRISON CASE IN IOWA,
saw the Justice Department defending a program in which the constitutional
injury was to other Christians, such as Catholics [find precise quote].
The legislative and executive branch infamously passed an 11th hour
law benefiting the parents of Terry Schiavo, mandating that the Eleventh
Circuit review the case de novo and Ms. Schiavo’s life support be
left on pending the outcome.146 This unprecedented law was rejected
by a nearly unanimous Eleventh Circuit, sitting en banc, and even though
the staunchly conservative Judge Stanley Birch wrote the majority opinion,147
the decision was met with accusations of judicial tyranny and calls
for violence against “activist judges” that were met with encouragement
by evangelical politicians like then-House Speaker Tom DeLay.148
Most
telling, however, is the sharp surge of reported incidents throughout
the country involving majorities of evangelical citizens exercising
the expansively defined “religious freedom” that the executive branch
has signaled is theirs, to the very real detriment of religious or non
religious minorities. One such incident occurred in southeastern Delaware,
where schools throughout the Indian River School District have regularly
begun football games, banquets, potlucks, etc. with Christian prayers,
usually led by school officials or local religious leaders. One
elementary school distributed bibles to students;149
District employees led “Bible Clubs,” and participating students
were treated preferentially;150 and school board meetings regularly began
with Christian prayer. The final straw for one Jewish student came
during the 2003 graduation exercise, after she was targeted—in
a prayer given at the graduation—for extra spiritual attention.151
The Indian River School District had institutionalized its constitutional
violations, and its reaction when challenged was to inflame the mob
mentality that had set in.152 Eventually the Dobrich’s were forced
to move after receiving numerous threats, and a second set of plaintiffs
joined as John and Jane Does, fearing for their safety. The Rutherford
Institute, self described “advocates of civil liberties and human
rights,”153 quickly emerged to provide the school district
with legal assistance, and has reportedly154 urged Indian River to view the case as a Supreme
Court test on the issue of school board prayer.155
The Justice Department has repeatedly lined up on same side as groups
like the Rutherford Institute [call into Jewsonfirst]
Some
have cynically suggested that the government’s courtship of evangelicals
is purely a matter of opportunistic politics and some evidence suggests
as much: [Garry Wills article on Black Ministers. Quotes Bob
Wineburg book.] Perhaps the “faith based gravy train” will cease
operating after the next electoral cycle, but it would be a mistake
to assume it will. “Rights” granted are not easily removed,156
and the next Administration, whether it be Democrat or Republican, will
be eager to appease the politically savvy evangelicals. The difficulty—if
not impossibility—of disestablishing evangelical Christianity at the
political level will continue to force religious minorities into the
courts, where their fate, after Zelman, is precarious.
CONCLUSION
I
hold little hope at the present that the court will return to the principled
approach of Lemon, on life support as we ponder these questions.
The all-important game of semantics has been played and Jefferson’s
wall lost: not only was “neutrality” reconceived by CJ Rehnquist,
but defenders of secularism are routinely painted as “hostile to religion,”
a monstrous accusation to defend against—“secular” and “secularist”
has likewise become a slur. Even more common words like “family”
and “values” have been used repetitively by evangelicals and pandering
politicians in a way that refixes their meaning to signify evangelical
opposition to homosexuality. The immediate challenge is semiotic
in nature, then, and involves not only removing the demonic patina from
“secular,” but in challenging the supporting assumptions on the
nature of secularity.
Plainly
stated, each individual is at once both religious and secular; even
an atheist or agnostic is not without a "religious liberty"
interest.157 Conversely, every individual also has
a duty that can only be described as purely secular. Most religious
adherents devoutly believe that their religion compels them to answer
to a higher power—but only where the law arbitrarily targets religious
behavior can this negate one’s secular obligations.158
Mostly, this is a moot point—religions rarely compel disobedience
to the law and indeed mostly promote a cooperative, law-abiding social
order. But where that higher power compels indifference to generally
applicable laws, the secular obligation must carry the greater authority.
The
other challenge is also somewhat semantic, and involves pinpointing
who—between the individual and the entity—is the possessor of the
constitutional interest. An exploration of the neutrality baselines
used by different Justices reveals that at one end, Justice Black sees
the interest as belonging to the individual while Justice Rehnquist
sees the interest as primarily belonging to the entity or community.
The text of the Constitution is broad, preventing Congre