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May/June 2005

Discover more articles from this issue.

The Ten Commandments

Download the High Resolution Graphic of the Ten Comandments

Thou Shalt Not Be A Hypocrite

One of the most famous scenes in American cinematic history unfurls near the end of Casablanca, when the police inspector declares to Rick Blaine...

Finding Sinai

According to the narrative in Exodus, Moses came down from Mount Sinai with two tablets of stone engraved by the finger of God Himself. The words on the stone were a visualization of the words that God had previously thundered out to the multitude gathere

The Two Tables of the Law

For centuries Protestants have found a convenient division between the first and second tables of the ten-commandment law. Roger Williams, the founder of Rhode Island, was the first American to associate two concepts: the separation of church and state an

The Bill of Freedoms A Christian looks at the meaning of God’s ten rules. . .

The legal conflict over the public display of the Ten Commandments provides a wonderful opportunity to examine the content of the commandments. Although...

The Ten Commandments in the Courts

Twenty-five years ago the Supreme Court held that public schools could not post the Ten Commandments in classrooms for the asserted purpose of demonstrating the origins of American law.

Government Displays Problematic

Whenever the government becomes involved in religion, it is problematic, and the posting of the Ten Commandments is no exception.

Showing Proper Respect

Efforts by government officials to display the Ten Commandments on public property is one of the most divisive church-state issues experienced in the United States for the past 25 years. Perhaps second only to state-sponsored prayer in the public schools,

Church-State Relations in America What’s at Stake and What’s Not

It seems religious freedom has become an object of perpetual litigation. As a consequence, the struggle over church-state relations is vulnerable to a high level of crisis-mongering-especially in those ubiquitous fund-raising appeals. It is difficult to s

Magazine Archive »

Published in the May/June 2005 Magazine
by Carl H. Esbeck


It seems religious freedom has become an object of perpetual litigation. As a consequence, the struggle over church-state relations is vulnerable to a high level of crisis-mongering-especially in those ubiquitous fund-raising appeals. It is difficult to sort out real threats from mere shadows, and even harder to know where best to invest one's time and other resources for the long term. Although few people have been as free to practice their religion as present-day Americans, there are still crucial jurisprudential matters at stake. These matters get elbowed into the background when the spotlight is thrown on hot-button issues such as eliminating "under God" from the Pledge of Allegiance or removing the Ten Commandments from a courthouse lawn.

Free exercise clause litigation is about the conscience-driven actions of individual believers. The lawsuits often involve small sects that have religious practices out of step with the dominant culture. Because America has a large and stable civil society, the nation can accommodate a goodly amount of this countercultural behavior.

Establishment clause litigation is different, more fractious. Establishment clause lawsuits, unlike free exercise cases, are at bottom a struggle over the question "Who's in charge?"-that is, which worldview (religious or secular) will hold the mantle of cultural authority? Such culture war is high stakes for those in power, as well as those who want power, and thus it is divisive.

In this article I identify those truly important issues that, in my judgment, will prove crucial to securing religious freedom well into mid century. I will close with two highly emotional issues of mere superficial importance-except that they rile the masses and cause them to reach for their checkbooks to finance the wrong battles in the culture war.

1. There are those attempting to make of the establishment clause a constitutional right to be free from the religion of others. This is illustrated by the continued resistance to grant equal access to student religious clubs at public school facilities during noncurricular and after-school hours, as well as by restrictions placed on these clubs' use of school bulletin boards and other channels of communication enjoyed by similar secular clubs.

When equal treatment within a government-created forum is denied, the students sue, claiming a denial of their rights under the free exercise clause (religious discrimination) and the free speech clause (viewpoint discrimination). While the discriminatory nature of these school policies is not denied by authorities, these educators insist that the unequal treatment is required by the establishment clause in order to preserve the school's secular character for other students.

School officials thus argue that there is a constitutional "right" to not experience unwanted exposure to the religion of others, and that this supposed right must be balanced against the free exercise and free speech rights of students desiring to attend the religious club. The resulting "conflict in the clauses" tips (in the opinion of school officials) in favor of secularity.

With the issue so framed, the situation is inevitably one of analytical confusion. Fortunately, the U.S. Supreme Court has sided with the religious students in the four cases it has taken up, but the High Court has made a muddle of its rationale. Moreover, many lower courts, federal and state, have been downright insubordinate-looking for loopholes to evade Supreme Court precedent.

There are obvious flaws in the conflict-between-the clauses position. First, to regard the free exercise and free speech clauses as affording an individual right held by student A to practice her faith, and the establishment clause as a second and different individual right vested in student B to be free of unwanted exposure to A's religious exercise, makes no sense. It places constitutional rights on a collision course. Under such a treatment, attempts to reconcile the conflicting rights, or to subordinate one to the other, are tortuous and unpersuasive. This supposed tension between the clauses falls away, however, when the establishment clause is regarded not as an individual right, but as an aspect of the Constitution's overall structure of limited government, one policing the boundary between civil government and organized religion. A school's like treatment of student clubs, secular and religious, is religion-neutral and thus does not transgress this boundary.

Second, the framers who drafted these clauses laid them next to each other in the First Amendment. It makes no sense to suppose they wrote back-to-back provisions that conflict. Modesty requires that school lawyers concede the absence of any hermeneutical logic to their position. Third, the Bill of Rights was adopted because the founding generation feared an overly powerful government. Thus the establishment clause, like all other provisions of the Bill of Rights, operates only to limit the actions of government. The clause cannot work to limit the actions of private parties, such as students desiring to attend a religious club.

2. There is a move to thin out the meaning of "religion" in the First Amendment so that its definition sweeps far beyond any normative understanding of what counts as religion. There are those who would water down the definition of "religion" so that it means little more than a deeply held conviction, religious or not. This is an argument for constitutionally protecting religious liberty without the necessity of subscribing to a religion. True, it is entirely proper that "religion" in the First Amendment is taken to include more than just theistic faiths. But the "religion" of the First Amendment entails rich communal traditions of ultimate belief and practice, not radically individualized belief.

It is wildly extravagant to insist that every person's religion is self-constructed. The Supreme Court came dangerously close to falling for this little trick in the military draft cases during the Vietnam War. In the 1960s and 1970s the Court construed the federal selective service statute-not the First Amendment-in a manner that tortured the text of the legislation so as to exempt all conscientious objectors, the nonreligious as well as those with beliefs rooted in religion. The free exercise clause, however, cannot be deemed to protect any and all beliefs that pass for someone's serious concern irrespective of its nonreligious foundation. Trying to protect too much (the consequence of a broad and indeterminate definition of "religion") will surely cause the courts to overcompensate by protecting minimally elsewhere (for example, less protection for the "exercise" of religion).

Perhaps most important, this movement to thin out "religion" is at odds with the text of the free exercise clause, which states that "Congress shall make no law . . . prohibiting the free exercise [of religion], not the exercise of one's personal philosophy. To be sure, those who reject adherence to any identifiable religion are exercising freedom, but they are not exercising religion. The free exercise clause safeguards only the latter.

3. Still others argue for ways of shrinking the meaning of "religion" in the First Amendment. This argument attacks the all-important definition of "religion" from a different direction. It is illustrated by judges who read the free exercise clause as protecting religious practice only if its exercise is "mandated" as opposed to merely "motivated" by faith. This does violence to the text, of course, which speaks only of "free exercise." Such judicial hostility is especially detrimental to a religion such as Christianity, which emphasizes not outer conduct or legalism but a heart attitude from which a convert willingly responds in love because he or she has first received grace.

Similarly, some judges have insisted that only "central" tenets of a faith are constitutionally protected. However, judges are ill-equipped to dissect the religion in question (a complex undertaking and one outside judicial experience) with an eye to discerning a sliding scale of doctrine, and then to protect only the top-drawer tenets of that religion. Most anyone would rather trust such theological undertakings to a minister or rabbi instead of relying on results produced by the steady diet of pragmatic instrumentalism that constitutes most on-the-job judicial training.

Yet a third variant of this definitional finagling is to drive a wedge between the meaning of "church" (and other houses of worship) and nonchurch religious organizations, protecting only the former. This leaves faith-based charities, schools and colleges, and health-care institutions without full First Amendment protection. The strategy is for the government to first "tame" the nonchurch religious organizations, then later turn its regulatory sights on churches.

An illustration of this is the recent case involving Catholic Charities of Sacramento. California enacted a law that required all religious organizations (except for churches and the most insular of ministries) that offer their employees prescription drug plans to include coverage for artificial contraception. When challenged, the courts held that the state legislation bound Catholic Charities notwithstanding Catholic teaching against the use of contraceptive devices. In the state's estimation Catholic Charities was not "religious enough" to enjoy the right to religious freedom. This whole line of argumentation makes little sense, of course, for the text of the First Amendment protects "religion," and not merely "churches."

4. There is an attempt to reduce religious freedom, as protected by the First Amendment, to a matter solely between individuals and government. This is perhaps the most threatening, because it ignores the ontological status of institutional religion. The claim reduces a religious organization to a mere aggregation of its individual members, an association connected only by consent and contract. Such argumentation is the logical implication of Enlightenment liberalism, which would vest all final authority either in the individual or in the state. Should contemporary liberalism have its way, the juridical status of a church would be no different than that of the Rotary Club or the Girl Scouts.

Since at least the Peace of Westphalia (1648), however, Western civilization has viewed the pattern between church and state as one of dual authority. Each of these institutions is understood as independent of the other, competent within its own sphere of authority. Expressing this in terms of the familiar biblical text, each renders unto Caesar the things that are Caesar's and unto God the things that are God's. To be sure, where to draw the line between Caesar and God still provokes dispute at the edges, but that there is a juridical line dividing these two jurisdictions is not doubted.

Eighteenth-century Anglo-Americans recoiled at the prospect of the Leviathan (an autocratic state proposed by Thomas Hobbes), which viewed the church as a mere tool of government. Should liberalism succeed in displacing the dual-authority pattern of church and civil government, the state will increasingly interfere in the ecclesiology and internal governance of churches.

For example, liberalism portends greater entanglement in the administration of religious organizations, with courts entertaining lawsuits by clergy suing their own churches for job discrimination in their ecclesiastical advancement or discharge. We are just beginning to see church members filing tort actions against their own church for defamation (must sermons first be cleared by legal counsel?) and intentional infliction of emotional distress (can excommunicated members recover jury verdicts for mental anguish and loss of good name?).

In the not-so-distant past such lawsuits were summarily turned away by the civil courts because it was self-evident that the claim involved a matter over which Caesar has no jurisdiction. Such summary dismissals must continue, and for two reasons. The first has to do with freedom, the second with peace. Nonintervention by the courts with respect to matters within the province of a church is essential if the church is to be free to be the church. This is the most elemental meaning of the separation of church and state.

Additionally, summary dismissals yield increased peace for the body politic. Peace follows when the machinery of state is powerless to take sides in disputes over religious doctrine, which means Caesar must be restrained from making religious questions the state's business. Denying court jurisdiction over church affairs will not stop the culture war. But it will contain it, thus keeping the culture war from blowing its lid.

5. There is a push to characterize as a "preference"-and thus as unconstitutional-all religious exemptions from regulatory and tax legislation. Until recently such exemptions were widely acknowledged as a means of not unduly entangling the operations of church with the operations of state. This new push radically recharacterizes religious exemptions as "preferences" that discriminate in favor of religion and thereby violate the establishment clause. Ignored in this revisionism is that the free exercise clause itself is a preference favoring religious exercise. Surely those adopting this line of argumentation are not so crazy as to claim that the free exercise clause violates the establishment clause!

Religious groups are unlike other voluntary associations. The very reason religious institutions are separated from government is to keep each within its proper sphere-thereby protecting church autonomy while preventing doctrinal questions from defining one's status in the civic community. The word "exemption," as applied to regulatory and tax legislation, is merely a rubric for accomplishing these twin purposes. Thus religious exemptions from regulatory and tax burdens do not violate the establishment clause-rather, they reinforce the dual-authority pattern that distinguishes church-state relations.

To date, the U.S. Supreme Court has rejected the claim that religious exemptions are unconstitutional.

For example, the Court upheld property tax exemptions for religious organizations and allowed Congress to exempt religious groups from civil rights laws prohibiting employment discrimination on the basis of religion. A similar issue is before the Supreme Court this term in Cutter v. Wilkinson. An appeal to the High Court was granted in Cutter when a federal circuit court struck down congressional legislation requiring an exemption for religious practices from otherwise applicable rules that would be followed by those in prison. The circuit court ruled that the religious accommodation was a "preference" in violation of the establishment clause.

Surely the Supreme Court will reject the lower court's rationale in Cutter. Such exemptions are easily distinguishable from government funding or similar benefits. Government benefits increase a religious organization's overall resources (albeit, this alone doesn't make the aid unconstitutional), whereas regulatory exemptions leave religious organizations no better off than if government had not imposed the regulation in the first place. As law professor Douglas Laycock has written, a government does not establish a religion by leaving it alone. That organized religion is left undisturbed when similar secular organizations are burdened by new regulations or taxes is a mere consequence of the desired distinction between these dual centers of authority, church and state.

6. There is a concerted attempt to break down the public/private distinction in society when it comes to religious organizations, such as colleges, charities, and health-care facilities, that apply for government grants. One of the most long-standing public/private distinctions is that government alone is bound by the restraints in the Bill of Rights. Hence, for the establishment clause (one provision in the Bill of Rights) to be invoked, there must be "state action," which is to say that the offender must be a government agency or public official, not someone operating in the private sector.

Certain voices of an illiberal liberalism are seeking to void this public/private distinction. They aim to impose on religious organizations receiving government grants the duty to conform to the establishment clause. Hence these voices would require religious oraganizations to be neutral with respect to religion, in the same sense that government must be neutral as to religion.

To insist that a religious school or provider of social services should be compelled to secularize its operations as a condition of receiving a grant to educate children or help the poor is alien to the American tradition of church-state separation. To alter the public/private distinction in this way would compel religious organizations either to forfeit the right to compete on an equal basis for funding to provide services or to recant the beliefs that form their essential religious character. That is a cruel choice: either suffer discrimination or deny one's self. No other private sector group or organization, regardless of its ideology, is asked to self-destruct in this way.

Currently, the Supreme Court has rightly said that neither pervasive regulation nor the receipt of government funding causes an organization (secular or religious) to be regarded as a "state actor" with all the constitutional duties of the government. To bulldoze through the public/private distinction and treat faith-based charities receiving government grants, as well as K-12 religious schools enrolling publicly subsidized students, as having the same constitutional duties as the government will crush religious autonomy. For example, no Christian school deserving of that name would accept vouchers if it meant not being able to consider religion when hiring its classroom teachers. President Bush's faith-based legislation is currently bogged down in Congress over just such an issue, namely, whether religious charities can participate in federal programs to help those who are poor and needy if they continue to insist on staffing with those of like-minded faith. Yielding to such a hiring restriction would turn government dollars into an engine of secularization.

7. There are those who would render the establishment clause a rule of "federalism," thus not binding on state governments. The establishment clause reads, "Congress shall make no law respecting an establishment of religion." By the clause's terms Congress remains free to legislate on matters about religion generally, so long as the legislation does not advance a matter "respecting an establishment of religion." For example, consistent with the clause, Congress could excuse religious pacifists from military service. A few scholars (and increasingly, others) argue that the prohibition on making a "law respecting an establishment" means that Congress is affirmatively restrained from legislating in a manner that interferes with state establishments. And, by extension, the federal judiciary is affirmatively restrained from adjudicating in a manner that interferes with state establishments.

The First Amendment was adopted in the years 1789-1791. At that time (and for several years thereafter) the original states of Massachusetts, Connecticut, and New Hampshire had Congregational Church establishments, as did the soon-to-be-admitted state of Vermont. These scholars claim that the immediate reason for adopting the establishment clause was to prevent the federal Congress from bringing down these New England establishments. This position is termed the "federalism" interpretation of the establishment clause. If correct, it would mean that the establishment clause affirmatively protects states from interference by the national government.

There is no doubt that in 1789-1791 the establishment clause was intended to run against only the new national government-not the governments of the several states. (It is for this reason that the First Amendment had no bearing on disestablishment in America, which was entirely a state-by-state affair.) But all of the provisions of the Bill of Rights-not just the establishment clause-were intended to run against only the national government. There's nothing unique about that. However, the "federalism" interpretation goes much further. The scholars claim that the establishment clause was intended to affirmatively erect a shield around each state, a shield that protected the state's religious establishments from federal law-even from federal law otherwise proper under an enumerated power delegated to the national government. If true, the establishment clause had a wholly unique role among all the provisions in the Bill of Rights-it not only limited federal power to the incidental benefit of residual state sovereignty, but it conferred an expressed immunity on states with respect to their establishmentarian laws.

Such a wholly singular operation for the establishment clause, just one of several substantive clauses in the Bill of Rights, seems highly improbable. It makes far more sense to suppose that the establishment clause was meant to be applied like the other substantive clauses in the Bill of Rights. Certainly nothing in the congressional drafting or state-by-state ratification of the establishment clause in the years 1789-1791, nor in its final text, supports such a specialized role. By all rights, the clause's purpose was straightforward, that is: to ensure that federal laws that relate to an establishment of religion never got a foothold in the new national government. The "federalism" interpretation, attributing as it does a uniqueness to the operation of the establishment clause, is logically improbable and without historical support.

To be sure, years later the modern Supreme Court applied most of the provisions in the Bill of Rights to the states via the Fourteenth Amendment. The Court did so in the middle third of the twentieth century, notwithstanding that the Fourteenth Amendment was adopted in the years 1866-1868. The modern Court's historical basis for doing so is quite a stretch, but this is no truer of the establishment clause than it is of any of the other substantive provisions in the Bill of Rights. It would take a separate article to examine whether the Fourteenth Amendment of 1866-1868 was intended by the post-Civil War Congress to apply the entire Bill of Rights to the states. For present purposes it is enough to observe that the "federalism" interpretation-a specious claim about the founders' intent in 1789-1791-should not overturn en masse the mid-twentieth-century work of the Supreme Court on which is laid the foundation of all modern church-state constitutional law.

The favorable resolution of the foregoing seven issues is crucial to the long-term health of religious freedom in America. There are other issues that ought not to be the focus of activity by those good folks who care about religious freedom. Such issues are more than simply a waste of energy and resources, although they are that as well. Rather, the efforts demonstrate a serious misunderstanding of the American church-state settlement. Two examples, both very much in the popular news, illustrate the concern:

A. The effort to put prayer back into public school athletic events, as well as to prevent the removal of the Ten Commandments from government buildings, is seriously misguided. Notwithstanding loud and persistent claims to the contrary, the free exercise clause does not give citizens a right to seize the levers of government and employ the machinery of state in praying one's prayers and expounding one's scriptures. Prayer and the veneration of scripture are inherently religious activities. Such practices are within the sole province of churches and individual believers. Government activity, including teacher-led school prayer and the official veneration of religious symbols such as the Ten Commandments, is an example of Caesar acting outside his proper jurisdiction.

That government has no authority to speak on inherently religious matters is a venerable First Amendment rule designed to protect organized religion-religion that should not want its prayers composed and symbols appropriated by Caesar. A religion that does not resist the state co-opting its sacred objects is flirting dangerously with becoming a civil religion, that is, a subordinate and uncritical booster of American nationalism.

B. Presently before Congress is legislation to lift restrictions in the Internal Revenue Code on churches supporting candidates for elective office, and on churches spending a substantial part of their resources lobbying. Presently, these two restrictions apply equally to all nonprofit organizations, religious and nonreligious, that are tax-exempt under code section 501(c)(3). Section 501(c)(3) status with the IRS permits an organization's donors to claim a deduction on their individual income tax returns, which is a valuable subsidy for taxpayers.

The proposed legislation would do more harm than good. Part of the idea behind the current tax law is that Congress should not "pay" donors to nonprofits (via the tax deduction) only to have the charity turn around and lobby Congress with its newfound resources. Partly, the idea is that if donors to nonprofit groups want to take sides in a partisan election, then donors (like everyone else) should do so on their own nickel rather than via a tax-favored nonprofit. More fundamentally, the virtue of the restriction on taking sides in partisan elections is that houses of worship will experience harm should their pulpits be aflame with electioneering and party endorsements.

Currently, if churches and other nonprofits desire to use a substantial part of their resources to lobby, they may establish a separate section 501(c)(4) corporation to do so. The ACLU does this, as does a subsidiary of the evangelical group Focus on the Family. Of course, donors to a 501(c)(4) nonprofit may not claim a deduction on their individual returns. This is a prudent trade-off.

What is needed by liberals and religious traditionalists alike is fidelity to the text of the free exercise and establishment clauses, as well as to the historic American church-state settlement. It is in the long-term interest of both organized religion and the body politic-a win-win situation.



________________________
Carl H. Esbeck is the R.B. Price Distinguished Professor of Law and Isabelle Wade & Paul C. Lyda Professor of Law, University of Missouri-Columbia. He recently published "Dissent and Disestablishment: The Church-State Settlement in the Early American Republic," Brigham Young University Law Review 2004, no. 4.

________________________

Liberty has always warned of the problems inherent in state aid for church institutions and has opposed the so-called Faith-Based Initiative on First Ammendment grounds. Professor Esbeck very accurately describes the present church-state situation and the risks to church autonomy these developments have presented. The almost total national rethink of the First Amendment and a passing of power over religion to the state, makes Professor Esbeck's statement that "because America has a large and stable civil society, the nation can accomodate a goodly amount of this countercultural behavior" (i.e. minority religious free exercise) so chilling. If free exercise by minorities has passed from consitutional dicate to indulgence by a non-threatened society, we must fear for it in times of economic downturn and post 911 threats. Editor.

Author: Carl H. Esbeck

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