The Law and Politics of Religious Freedom:
A Revolution in the Making

A review of Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom By Steven D. Smith (Oxford University Press, 1995) and Mere Creatures of the State? Education, Religion, and the Court By William Bentley Ball (Crisis Books, 1995)

Phillip E. Johnson

Steven D. Smith is a University of Colorado law professor who deals with abstract intellectual issues; William Bentley Ball is a practicing lawyer who represents religious groups and individuals seeking freedom from dominance by government entities committed to secularism. Both men have valuable insights into a revolution that is currently under way in the interpretation of constitutional law regarding freedom of religion and religious establishment.

This revolution involves a changing understanding of what it means for the government to be "neutral" on religious questions, neither favoring nor opposing either particular religions or religion-in-general. For at least the last 25 years the dominant principle (occasionally ignored in practice) has been that neutrality means "no aid" to religion. The competing principle, which now seems to have five votes on the Supreme Court, is that neutrality means giving "equal treatment" to religious and nonreligious entities alike.

In a context where the government is giving substantial subsidies or benefits to nonreligious entities--such as secular educational institutions or student activities--the two principles have radically different consequences. Under the "no aid" principle it is unconstitutional (as an establishment of religion in violation of the First Amendment) for the government to broaden the subsidy to include religious schools or groups; under the "equal treatment" principle it is unconstitutional for the government to discriminate against those same religious entities by not broadening the subsidy.

The latest statement by the Supreme Court on the question is a 5-4 decision in Rosenberger v. Rector, in June of this year. The case involved the Student Activities Fund (SAF) at the University of Virginia, which receives money from mandatory student fees and uses it to subsidize student activities, including the printing costs of student publications. Those publications are free to advocate all sorts of political and social causes, but the university invoked the "no aid" standard and refused reimbursement to a Christian student organization because its newspaper "primarily promotes or manifests a particular belief in or about a deity or an ultimate reality."

Four Supreme Court Justices agreed with the university, citing cases holding that to provide public money for religious advocacy violates the no-establishment rule even if the same subsidy is given to all student publications regardless of their content. The majority of five Justices cited other cases which followed the equal treatment rationale and held that, by denying a subsidy only to those student publications that advocate "religion," the university violated the right of the religious students to freedom of expression.

In his wonderfully clarifying book, Steven D. Smith explains why it is impossible to resolve this clash of principles either on the basis of the language of the Constitution, or on the basis of historical evidence that the First Amendment was intended to prefer one principle or the other. Sometimes the "intent of the Framers" is ambiguous, but Smith explains that in the case of the First Amendment's religion clauses the original intention is perfectly clear, and the post-World War II Supreme Court has simply chosen to disregard it.

The whole point of the First Amendment religion clauses was to deny jurisdiction over religious questions to the federal government, and leave such matters to the discretion of the individual states. That is why the amendment was drafted to say that "Congress shall make no law respecting an establishment of religion." The national legislature was not to meddle in matters of religious establishment at all, whether by instituting such an establishment at the national level or by interfering with the religious establishments (e.g., state payment of clergy stipends) that existed in some of the states.

The question of the proper relationship of government and religion was controversial in the late eighteenth century just as it is now, and there is no way of knowing how it would have been resolved if the Framers had decided to tackle it. That is why Smith's title declares the quest for a national constitutional principle of religious freedom to be a "foreordained failure": the point of the religion clauses was precisely to prevent the formation of such a principle by leaving the matter to the states. When the twentieth-century Supreme Court declared that the religion clauses were "incorporated" into the Fourteenth Amendment's due process clause, and hence were applicable to state and local governments, the Court effectively reversed the intent of the Framers and declared itself to be the national religious lawmaker that the First Amendment was expressly intended to forbid.

If the intent of the Framers were to be our guide, then what is clearly unconstitutional is practically everything that the Supreme Court has done in this area since 1947. Yet it is unlikely that the Court will ever repudiate its usurpation of authority, especially since the public has grown accustomed to thinking of religious questions as matters to be resolved at the national level.

The mere fact that five Justices currently support the "equal treatment" principle does not imply a well-established new outlook, since the next appointment might shift the balance back the other way. (The two Clinton appointees, Justices Breyer and Ginsburg, joined Justice David Souter's dissent in Rosenberger.) A possibly more enduring change in the ideological climate, however, is that the philosophical bottom has dropped out of the notion that there is a secular rationality that is truly "neutral" between theism and agnosticism. Just about everybody in academia now understands that controversial and politically loaded value choices usually lie concealed behind the purportedly neutral rationalizing of power holders such as Supreme Court Justices.

Is a school district neutral on religious questions when it leaves all mention of God and the Bible out of the curriculum--while purporting to teach students just about everything they need to know, from "values clarification" to how to use a condom? Smith quotes University of Chicago Law School Professor Michael McConnell to the contrary: "If the public school day and all its teaching is strictly secular, the child is likely to learn the lesson that religion is irrelevant to the significant things of the world, or at least that the spiritual realm is radically distinct and separate from the temporal." Protestants are at last realizing what Catholics understood all along: the notion that a religion-free secular knowledge is all we really need is anything but neutral on religious questions.

William Bentley Ball looks at the religious liberty issue from the perspective of a Pennsylvania lawyer who has represented religious groups and individuals in a variety of significant cases. These include his victory in Wisconsin v. Yoder (1972), in which the Supreme Court upheld the right of the Amish to keep their children out of public high school, and especially his stunning loss in Lemon v. Kurtzman, the 1971 Supreme Court decision that most firmly entrenched the "no aid to religion" principle into constitutional law. As a litigator, Ball feels that the voluminous writings of the theoreticians in the law schools need to be balanced by some input "from below," to illuminate how the constitutional rules feel to the people who are most affected by them. Speaking as one of those theoreticians, I thoroughly agree with him.

The issue in Lemon v. Kurtzman was whether the state of Pennsylvania could subsidize the purely academic side of education in religious schools, such as teachers' salaries and other expenses relating to math, foreign languages, and so on--and excluding religious instruction, which would continue to be financed entirely from private sources. The rationale for allowing the subsidy was that education in these subjects was not substantially different in religious and secular schools, that the religious schools were providing a public benefit by educating pupils who would otherwise have to be educated entirely at public expense, and that parents exercising their right to choose religious schools for their children are also taxpayers and ought to get some benefit from their taxes.

Ball was at first confident of victory because the Supreme Court had previously upheld provision of bus transportation and textbooks to religious schools, thus indicating that the purely secular side of their activities could receive public money. The Pennsylvania program led to a pitched legal battle, however, in which the religious schools were on the defensive for three reasons. First, almost all the schools that would benefit were Catholic schools; second, the public school lobby vigorously opposed the subsidy; and third, the subsidy was also opposed by both the Pennsylvania Council of (Protestant) Churches and the largest Jewish organizations in the state.

Believers in God were thus thoroughly divided, and many influential people saw no good reason for Catholics to be so determined to avoid a public school system that seemed to satisfy everybody else. In the circumstances the secularists persuasively characterized the measure as a sop to the political power of the Catholic Church. The Supreme Court Justices in turn regarded that Church with undisguised suspicion. The Court held that the subsidy was unconstitutional because the "secular" teaching in religious schools could not realistically be separated from religious indoctrination without a pervasive state supervision that would itself entangle the state in controversial religious affairs.

Ball's analysis suggests that the Supreme Court might well have approved a similar measure in a different context, and no doubt he is right. One needs only to look at the contrasting decision Wisconsin v. Yoder, in which the same Court granted Amish families an extraordinary exemption for compulsory school attendance laws, to see that the Justices had no absolute objection to conferring a protective benefit on a religious group regarded by everyone as appealing rather than threatening. On the other hand, the "balanced treatment for creation-science" legislation never had a chance of success in the Supreme Court, because the fundamentalists who were thought to be the only people opposed to "evolution" were as politically isolated as the Catholics in Lemon v. Kurtzman.

Christian and Jewish theists can draw at least two important lessons from the sad story related in these two books. First, we should never be impressed by arguments that "the Constitution" absolutely forbids some sensible measure that treats religious and secular interests fairly. What doomed the religious school subsidy was not a document locked up in the National Archives building, but the dominant attitude toward Catholic schools at the time among the groups that Supreme Court Justices take most seriously. Second, the people of God need to learn to unite on first principles before we start arguing over what follows. The Pledge of Allegiance that we all recite tells us that this is one nation under God. If that language rings hollow today, it is not primarily the fault of the agnostics, but of the people who know God but who have preferred to fight over what divides them rather than to unite over what they have in common.