Religion and the First Amendment: some causes of the recent confusion.

• Jurisdiction: United States
• Date: 01 March 2001
• Author: Esbeck, Carl H.

The United States Supreme Court is surely guilty of making the matter of religion and the First Amendment harder than it ought to be. But it is others who have kept the debate over church/state relations either poisoned with culture-war rhetoric or so shrouded in mystery that seemingly only experts can untangle the jurisprudential snarls. By surrounding this venerable Amendment with a pseudocomplexity concerning the matter of religion these disinformation specialists create confusion, and confusion begets opportunities for further distortion and manipulation. Disagreements over the free exercise of religion and the noestablishment thereof are far simpler to resolve than these spindoctors make them out to be. Bringing clarity to the juridicial settlement, both in the proper ordering of church/state relations and in the protection of individual religious conscience, is best begun by first bringing to mind foundational principles.

1. THE FIRST AMENDMENT VESTED NO NEW POWER IN GOVERNMENT

   A primary cause of discontent with the Constitution of 1787, adopted over stiff opposition by Anti-Federalists, was the danger that powers implied from its more open-ended phrases (the Necessary and Proper Clause was an oft-cited example) would be relied on by an overly ambitious Congress to enact legislation that infringed on individual rights.(1) The Constitution's foremost political theorist, James Madison, acknowledged as much in a June 8, 1789, speech before the House of Representatives. As he introduced his draft of a bill of rights, Madison described the bill's purpose as having "the great object ... to limit and qualify the powers of Government, by excepting out of the grant of power those cases in which the Government ought not to act."(2) Federalists gave little resistance to Madison's enterprise because their position all along was that the national government had not, in the first instance, been delegated the power to interfere with fundamental rights.(3) In late September of 1789, a resolution listing twelve Articles of Amendment was settled on by both congressional houses and sent to the states along with a preamble explaining that the submission was initiated because "conventions of a number of the states [had] ... expressed a desire, in order to prevent misconstruction or abuse of ... powers, that further declaratory and restrictive clauses should be added.(4) The third of these Articles contained the now familiar passage "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."(5) The ten successful Articles of Amendment, popularly referred to as the Bill of Rights, were thought to have altered the status quo very little, but they did calm the fears of many citizens while serving as a useful hedge against possible future encroachments.(6)

   The foundational proposition that flows from the foregoing is that the First Amendment, indeed, each of the first eight Amendments, further limited the existing enumerated powers of the national government while adding to its powers not at all.(7) This proposition has ready application in sorting through some of the present-day pseudocomplexities. For example, it is often said that the First Amendment guarantees a "freedom from religion."(8) This claim has a surface plausibility, at least if one purpose of the First Amendment is to hold religion in check. But we have seen that the Amendment was tasked to further limit the government, not to restrain believers, churches, a particular religion, the majority religion, or religion in general. Thus the role of the First Amendment is not to protect the nonreligious from the religious. Neither is it to protect minority religions from the majority religion. Neither is it to protect government from a particular church or duster of churches, nor to protect government from religion in general. Rather, the Amendment is a check on government and government alone. As Richard John Neuhaus has written: "As wrongheaded as it would be, religions are perfectly free to agitate to have themselves established, for that too is part of religious freedom. What is prohibited by the First Amendment is the [use] of government power in giving in to such agitations."(9) Accordingly, the First Amendment guarantees a "freedom from religion" only in the limited sense that the Amendment is a restraint on what government may do by way of either succumbing to popular agitations to sponsor religion or appropriating the authority that religion commands among people of faith and applying this power to advance the temporal aims of state.

   1. Is Free Speech at War with No-Establishment?

      A more pervasive pseudocomplexity is the oft-repeated claim that there is a "tension" between the Free Speech and Establishment Clauses. Given that the Establishment Clause restrains government and government alone, not private individuals, this "clash-of-the-Clauses" argument is completely nonsensical.

      This false complexity developed slowly over a span of almost two decades. During the 1980s and 1990s, in an unbroken line of victories for freedom of speech, the Supreme Court held that religious expression by private individuals was entitled to the same high protection accorded nonreligious expression (e.g., speech of political, artistic, or educational content).(10) No-aid separationists,(11) who lost the ultimate judgments in these cases, framed their contention as a clash of two First Amendment Clauses: a right under the Free Speech Clause to freedom of religious expression without discrimination versus a right under the Establishment Clause to a government that does not aid religion (the aid taking the form of the use of government property to convey a religious message). With the issue so framed, no-aid separationists invited the Supreme Court to "balance" the conflicting Clauses, hoping to tip the scale in the direction of their bias for a naked public square, that is, a marketplace of ideas denuded of all religion. They lost. However, as no-aid separationists had urged, the Court did frame the issue in such a way that Establishment Clause compliance could supply a "compelling interest" for overriding the Free Speech Clause.(12)

      Capitol Square Review and Advisory Board v. Pinette(13) is a recent illustration of the Supreme Court's framing of the issue in a manner that creates this "tension" between the Free Speech and Establishment Clauses. In Pinette, the State of Ohio created a public forum in a park by allowing citizens to erect temporary displays symbolizing each group's message.(14) But when the Ku Klux Klan sought permission to erect a Latin cross during the Christmas season, state officials balked.(15) The Klan then sued for impairment of its free speech rights and ultimately won.(16)

      The Pinette Court held that on these facts the Establishment Clause was not violated by the presence of the Latin cross in the park.(17) Accordingly, the state was ordered to permit the religious display on the same basis as all other citizen displays allowed in the park.(18) However, in the course of holding that religious speech by private individuals (the Klan) was protected by the Free Speech Clause from content and viewpoint discrimination, the Court indicated that on different facts the Establishment Clause could require suppressing private speech.(19)

      This makes no sense. It is fundamental that the Establishment Clause restrains government and government alone. The Clause does not restrain the activities of nongovernmental actors, that is, private citizens. Thus, the proper question to be asked is whether the speech in question is government speech or private speech. If the speech is government speech (including private speech that has the government's imprimatur)(20) and the content is inherently religious, then the Establishment Clause prohibits the speech. This is borne out in the case law. The Supreme Court has found that prayer,(21) devotional Bible reading,(22) veneration of the Ten Commandments,(23) classes in confessional religion,(24) and teaching the biblical creation story as science(25) are all forms of inherently religious speech by the government. As such, it was correct to hold that the government's speech violated the Establishment Clause. Moreover, there could be no conflict with the Free Speech Clause because the government--unlike a private individual--has no rights.

      On the other hand, if the speech is private speech, then not only is it not subject to restraint by the Establishment Clause, but the speech is affirmatively protected by the Free Speech Clause. Cases such as Pinette have reached the correct result in this regard,(26) but the Court made its resolution far more difficult than necessary had the Justices been attentive to the fundamentals of 1787-1789.

   2. Is Free Exercise at War with No-Establishment?

      The Free Exercise Clause cuts a different channel(27) than the Free Speech Clause at issue in cases such as Pinette. The Free Exercise Clause prohibits intentional discrimination against a particular religion or religion in general,(28) as well as discrimination that disfavors specific religious beliefs or practices.(29)

      The current practice in the courts is to regard compliance with the Establishment Clause as a duty that, if applicable, is a "compelling interest" overriding the commands of the Free Exercise Clause.(30) Again, this makes no sense. The Supreme Court's "pervasively sectarian" test(31) is illustrative of this pseudocomplexity. The test causes state educational bureaucracies to discriminate against religious schools dubbed "pervasively sectarian."(32) Conceding, as they must, that such intentional discrimination is prima facie violative of the Free Exercise Clause, no-aid separationists respond by putting the Free Exercise Clause at war with the Establishment Clause. They do so by arguing Clauses-in-conflict and suggesting that the clash be resolved by the no-establishment principle...