Ramblings

 Allan C. Brownfeld

Allan C. Brownfeld covers Washington, D.C.

Religion and Public Life: Where Should the Line Be Drawn?

      In September, the granite engraving of the Ten Commandments was removed from the Alabama Supreme Court and Chief Justice Roy Moore, who had it placed there, was suspended from the office. The Supreme Court will, once again, have an opportunity to sort out the question of exactly what place religion should have in our public life. At the present time, there is much confusion. The intent of the framers of the Constitution seems to stand in opposition to the wishes of those who seek to excise all religious expression from the public arena. There must be a common-sense solution that would not totally please Judge Moore or his adversaries in groups such as the American Civil Liberties Union.

      It is often forgotten that the “establishment” clause of the First Amendment not only enjoins Congress from any measure “respecting an establishment of religion,” but also from any measure “prohibiting the free exercise thereof.” When a ban on religious activity in a pubic place appears to be a prohibition of people’s freedom to exercise it, difficulties arise.

      Since 1971, the Court has been guided by the so-called Lemon Test, named for the case of Lemon v. Kurtzman, in which the Supreme Court declared unconstitutional laws in Rhode Island and Pennsylvania that provided state money for parochial schools for the sole purpose of secular instruction. Chief Justice Warren Burger, for a unanimous court, declared that, to be constitutional, a law touching on religion must

. . . have a secular legislative purpose . . . neither advance nor inhibit religion . . . and not foster excessive government entanglement with religion.

This flexible language has permitted whatever outcome a majority of justices prefer.

      In 1984, in the case of Lynch v. Donnelly, Justice Burger himself wrote an opinion upholding the right of the city of Pawtucket, Rhode Island, to sponsor a crèche in a Christmas display that included other seasonal symbols. Sponsoring the crèche, he said, is an example of a legitimate exercise of legislative power that simply happens to coincide with the practices of a particular religion.

      Those efforts to remove the very mention of God from public life—such as the court decision declaring that the phrase “under God” in the Pledge of Allegiance violates the First Amendment—would shock the authors of the Constitution. A look at history will show that this is not what they had in mind.

      Reference to God has been present in our public life from the very beginning. The Declaration of Independence acknowledges God in four separate places. The framers of that instrument announced that the colonies were assuming “the separate and equal station to which the laws of nature and nature’s God entitle them.” The Declaration states:

We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator, with certain inalienable rights: that among these are life, liberty, and the pursuit of happiness.

Those who signed the Declaration proclaimed:

And for the support of this Declaration, with the firm reliance in the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.

      The Continental Congress opened its sessions, beginning in 1774, with prayer delivered by a clergyman. In 1776, regular chaplains were authorized and subsequently appointed by congress. In 1778, Congress provided an annual salary for chaplains. In 1787, congress adopted the Northwest Ordinance, for the governance of the Northwest Territory. Article 3 proclaimed:

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

      The intent of the First Amendment was to make government neutral among religious sects, not neutral between religion and non-religion. Professor Charles Rice, in his book “The Supreme Court and Public Prayer,” noted

. . . the public life of the American states was based upon the unapologetic conviction that there is a God who exercises a benevolent providence over the affairs of man. This is not to say that all Americans then recognized God, or that there was agreement on all the details of his attributes. But to those who assert that the First Amendment was designed to prevent the government from recognizing God and praying His aid, it can rightly be said that they will have to find evidence for their claim elsewhere than in the history of the period prior to 1787.

      In 1992, the Supreme Court ruled 5-4 that the widespread practice of prayers at public school graduation ceremonies was unconstitutional. The case, Lee v. Weissman, was brought by a Rhode Island middle-school student who argued that a non-sectarian prayer delivered by a rabbi at an official public school graduation violated the Constitution.

      The event in question took no more than two minutes. Rabbi Leslie Gutterman thanked the “God of the free, hope of the brave” for “the legacy of America where diversity is celebrated and the rights of minorities are protected.”

      In his dissent Justice Antonin Scalia declared:

The officially sponsored non-denominational invocation and benediction read by Rabbi Gutterman . . . are so characteristically American that they could have come from the pen of George Washington or Abraham Lincoln himself.

He further noted that,

From our nation’s origin, prayer has been a prominent part of governmental ceremonies and proclamations. . . . In his first Inaugural address, after swearing his oath of office on a Bible, George Washington deliberately made a prayer a part of his first official act as President. . . . There is simply no support for the proposition that the . . . nondenominational invocation and benediction read by Rabbi Gutterman—with no one legally coerced to recite them—violated the Constitution.

Beyond this, Justice Scalia noted,

The founders of our Republic knew the fearsome potential of sectarian religious belief to generate civil dissension and civil strife. And they also knew that nothing, absolutely nothing, is so inclined to foster among religious believers of various faiths a toleration—no, an affection—for one another than voluntarily joining in prayer together, to the God who all of them worship and seek. Needless to say, no one should be compelled to do that, but it is a shame to deprive our public culture of the opportunity, and indeed the encouragement, for people to do it voluntarily. The Baptist or Catholic who heard and joined in the simple and inspiring prayer by Rabbi Gutterman on this official and patriotic occasion was inoculated from religious bigotry and prejudice in a manner that cannot be replicated. To deprive our society of that important unifying mechanism, in order to spare the nonbeliever what seems to be the minimal inconvenience of standing or even sitting in respectful nonparticipation, is as senseless in policy as it is unsupported in law.

      In the view of the Rev. Richard John Neuhaus, editor of the journal First Things, courts and policymakers have tried to solve religious differences by imposing secular value systems in public institutions: “The modern state is advancing on every front, and we are in a situation that whenever the state advances, religion must retreat.” But, he said, this secular approach is not “authentic pluralism” because it suppresses religious viewpoints and denies that there are majority and minority views. “A minority does not have a special right to not be reminded that it is a minority,” Father Neuhaus said.

      The overwhelming majority of Americans—more than 90 percent—are believers. They attend church and synagogue with greater regularity than people in any other Western country. Those “elites” who dominate so much public discourse, however, are decidedly secular, if not hostile to religion.

      Indeed, sociologist Peter Berger of Boston University notes that India is the most intensely religious country in the world and Sweden the least. He declares that America “is a nation of Indians ruled by an elite of Swedes.”

      It may be no coincidence that as religion has been removed from our society, the vices religion has always sought to combat in a pagan world have grown, now to a threatening level. Many lament the decline of values, but few seek to understand the reasons for that decline.

      Several years ago, discussing the decline in the value of life in our cities, Senator Daniel Patrick Moynihan (D-NY) asked,  “What in New York City is better than it used to be?” Fifty years ago, he said, there were 44 handgun murders in the city. In 1992, there were 1,499. In 1943, there were 73,000 people on welfare, compared with more than a million in 1993. Only three percent of children were born to single mothers, compared with a citywide average of 45 percent in 1992. In some neighborhoods, among minorities, the number is as high as 80 percent. “In 1943, Moynihan declared,

We were a city that had a social structure and an infrastructure. We had the best schools, the best housing stock, and in many ways the best-behaved citizenry. But today the decline of social institutions is really without equivalent.

      In his book, The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion, Yale Law Professor Stephen Carter argues that over the past thirty years religious devotion has been mistakenly trivialized in public life. And because the U.S. was founded on the concept that our very liberties come from God, the official banning of God “delegitimizes the basis on which we believe in other people’s rights,” declares the Rev. Neuhaus.

      What the First Amendment really was saying has been all but forgotten. Judge Thomas Cooley, a leading constitutional scholar of the 19th century put it this way in his Principles of Constitutional Law:

By establishment of religion is meant the setting up or recognizing of a state church, or at least the conferring upon one church of special favors and advantages which are denied to others. It was never intended by the Constitution that the government should be prohibited from recognizing religion, or that religious worship should never be provided for in cases where a proper recognition of Divine Providence in the workings of government might seem to require it, and where it might be done without drawing invidious distinctions between different religious beliefs, organizations or sects. The Christian religion was always recognized in the administration of the common law; and so far as that law continues to be the law of the land, the fundamental principles of that religion must continue to be recognized in the same cases and the same extent as formerly.

      Some fundamentalists want to impose their own religion on the American society—declaring America a “Christian” country. Some secularists want to excise any mention of God or religion from public life. Surely, the Supreme Court can move toward a standard that rejects both of these positions, but which reflects the Founding Fathers’ considered approach. Recent lower court decisions concerning the Ten Commandments in Alabama and the Pledge of Allegiance in California provide an opportunity to move toward a more nuanced position.     Ω

“When there is a lack of honor in government, the morals of the whole people are poisoned.” —Herbert Hoover ++ “To sit home, read one’s favorite newspaper, and scoff at the misdeeds of the men who do things is easy, but it is markedly ineffective. It is what evil men count upon the good men’s doing.” —Theodore Roosevelt ++ “He serves his party best who serves his country best.” —Rutherford B. Hayes ++ “Money will not purchase character or good government.” —Calvin Coolidge