Religion, the public square, and the presidency.

• Author: Treene, Eric W.

1. INTRODUCTION

   In addressing what advice on issues of religious liberty a practitioner in the religious liberty field might give to the new President, it almost seems rude to dwell on another branch of government. It would seem more appropriate that advice to the Chief Executive on furthering religious liberty focus on the executive branch, entailing questions such as those which faced the Clinton Administration: whether military chaplains are free to preach about partial-birth abortion,(1) whether to retain a display about Native American worship in a national park visitor's center despite an Establishment Clause challenge,(2) or how to deal with the suppression of student religious speech in public schools.(3) Another proper area of focus would be the President's legislative opportunities, such as whether to support school vouchers and charitable choice as measures that enhance the freedom and equality of religious people and institutions, or to adhere to the view that they are threats to religious freedom.

   Try as I might to focus on these issues, one clause of Article II, Section 2 refuses to be ignored: "[A]nd he shall nominate, and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by law." Two powers within this clause-the power to appoint Justices of the Supreme Court and the power to appoint other federal judges (hidden in the catch-all "other Officers" language) -- have arguably become the primary engine of the federal government's policy on religious liberty issues.

   Things were not supposed to be so. The Framers certainly intended the Constitution to be the supreme law of the land and the legislative will subservient to it. As Hamilton wrote, "[T]he constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."(4) But the Framers nevertheless conceived of the judiciary as "the least dangerous" branch.(5) Madison observed in Federalist No. 68 that because of the specificity with which the judiciary's role is defined in the Constitution "projects of usurpation ... would immediately betray and defeat themselves"(6) Hamilton was even more optimistic. He remarked in Federalist No. 81 that

   the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is, in reality, a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system.(7) Experience has not been kind to Madison and Hamilton's prognostications. As Abraham Lincoln observed in response to the Dred Scott decision: "[T]he candid citizen must confess that if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court ... the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."(8) Nor have the Federalists' predictions held true in the twentieth century, particularly on the issue of religion in public life. Since the incorporation of the Establishment Clause in Everson v. Board of Education,(9) it has been the federal courts that have largely determined national, state, and local policy on the proper role of religion in public life. The issues of whether prayers(10) or moments of silence(11) are appropriate in school, what types of holiday decorations will be seen in towns each December,(12) and whether disadvantaged children attending parochial schools will receive the same special educational services public school children receive(13) are but a sampling of areas in which the Supreme Court has co-opted the field.

   The Supreme Court's influence is not limited to directly determining what practices are permitted and which are forbidden under the Constitution. As Judge John Noonan has observed: "Through its pronouncements current conventions about the Constitution take compact shape, decide cases, provide guidance to public officials, and stimulate debate, reaction, and the development of further pronouncements."(14) The law is a great moral teacher; Hadley Arkes has remarked, "As the ancients knew, and the moderns confirmed, the laws may reshape the attitudes of the public, and they may instruct people in new understandings of the duties they owe one another."(15) And the decisions through which the Court is instructing the public -- not to mention delivering edicts that have the force of law -- rest on the narrowest of margins.(16)

   Despite the compelling reason to start with-and remain on -- the subject of judicial appointments, there are good reasons to refrain from doing so and to first discuss the President as Executive and as participant in the legislative process. The first such reason is the importance of tone. The President through myriad subtle means controls the debate on, and shapes public perception of, the complicated and often divisive issue of religion's proper role in public life. Second, the President oversees a vast network of governmental interactions with religion through such diverse agencies as the Department of Housing and Urban Development, the Department of the Interior, and the Department of Defense, not to mention independent agencies over which the President exercises some degree of control, such as the Equal Employment Opportunity Commission (EEOC) and the Federal Communications Commission (FCC). Through implementation of Administration policy by these agencies, the President has the power to create positive examples of the proper accommodation of faith in public life and to shape perceptions of the public and the courts. Third, as overseer of the Department of Justice, the President has significant control over which cases will be brought to court, what theories will be advanced when the United States is a party or an amicus curiae to an action, for which cases the Solicitor General will seek certiorari, and what legal guidance will be given to various agencies.

   The President also has the power under the Constitution to propose (and thereby to champion in the public arena) legislative measures to protect religious freedom. This is particularly important in the realm of Free Exercise Clause protections, in which the Supreme Court has cut back on the scope of the Free Exercise Clause and simultaneously invited the federal and state legislatures to take on the role of accommodating religious practices.(17)

   As both Chief Executive and Persuader-in-Chief, the President can thus do much to influence positively the federal government's policy toward religion. This Article explores are five areas in which the next President can and should do so, followed by a discussion of how the appointment power ultimately frames the debate in each of these areas.

2. FRAMING THE CONTOURS OF THE PROBLEM

   Both major-party candidates for the Presidency in the 2000 election publicly articulated a compelling portrait of how faith's place in the public square has been devalued, and have made thoughtful statements suggesting a better approach. Vice President Al Gore derided the "hollow secularism" of the left while also criticizing "[s]ome on the right [who] have said for too long that a specific set of religious values should be imposed."(18) He recognized that our Founders, who "believed deeply in faith ... created the Bill of Rights in large measure to protect its free expression."(19) And, noting that the greatest need at the time of the Founding "was to protect believers of one faith from religious coercion by others [, t]oday, we also need to ensure that believers of all faiths are free to engage in national dialogue and community action-without feeling that they must hide their religious beliefs."(20)

   The former Vice President called for faith-based organizations "to have a seat at the national table when decisions get made,"(21) and has proposed "carefully-tailored partnerships"(22) with them for the delivery of social services.

   Our new President George W. Bush has similarly criticized the exclusion of religion from public life and has called for change. In his Republican Party nomination acceptance speech, he highlighted the important role that faith-based social service providers play, and explained why government should support them: "[Government] can feed the body, but it cannot reach the soul. Yet government can take the side of these groups, helping the helper, encouraging the inspired."(23) Bush has supported greater freedom for student religious expression in public schools.(24) In 1996, then-Governor Bush signed an executive order prohibiting state agencies from discriminating against religious charities or imposing regulations that secularize. He also took actions as governor to reduce excessive regulatory interference with religious organizations.(25)

   Gore and Bush were not, of course, the first to recognize a hostility in many quarters to religion in public life. In his influential 1984 book, The Naked Public Square,(26) Richard John Neuhaus expressed alarm at the degree to which religion had been banished from the public square in the United States. By public square he meant not only government activities but also work, entertainment, education, and everyday interactions among individuals and communities. He argued that "in the public arena ... in order to gain admittance, we are told to check our deepest beliefs at the door."(27) Neuhaus emphasized that "[t]he public square is not limited to Government Square. At the same time-and for reasons that may be nearly unavoidable -- government impinges upon all public squares."(28)

   In...