“No Establishment” and the Loss of State Neutrality

The principle of “no establishment of religion,” firmly emblazoned in the mind of the American public from Supreme Court decisions of recent decades, beginning with the Everson decision of 1947, which established “strict separation” of church and state, seems to assert state neutrality with respect to individual religions and their values, but in fact has been developed to favor irreligion as against religion in general or any particular religion. This was the general conclusion drawn by Robert A. Destro of Columbus Law School at the Catholic University of America, in a presentation at the Truth, Conscience, and Religious Freedom conference at Franciscan University in early April.

Destro held that “constitutional lawsuits are the politics of power.” What the Supreme Court has offered in two of its important areas, religion and race, is “a mass of hopelessly confused and deeply contradicting” rulings, he claimed. Those doctrines that in fact influence society really constitute the truly established religion, Destro claimed. While religious affiliation is left out of qualifications for citizenship by our written constitution, political correctness, “the religion of civility,” has in fact become the state religion. This is seen particularly in U.S. Supreme Court decisions, which side with what the court believes is the “enlightened sentiment of mankind.” Although there are strong constitutional guarantees of liberty, political equality, and pluralism, they are sacrificed to achieve desired balance between competing interests in society, and this seems to involve a center of gravity well to the left of political and social opinion in America.

The rights of dissenters are believed to be aided by secularism, understood as the exclusion of religious considerations from public space, Destro maintained. Essentially secularist arguments were advanced by Protestants as part of an ongoing struggle for control of public schools from the late nineteenth century to the Pierce decision in 1925, which recognized a right to religiously based education. Against this right, Arch Everson of Ewing, N.J., wanted a national institution made out of the state-level Blaine Amendments, dating from the nineteenth century, which prohibited state support for religious schools. He lost that battle in the seminal Everson decision (1947), but won the more basic battle (establishing strict separation of church and state).

Since then, Destro said, the Supreme Court majority has used its power to advance secularization through “a comparative structural burden,” changing the legal landscape to exclude the influence of religious beliefs and practices. A common secularist strategy is to use the Establishment Clause as a “heckler’s veto,” in which one or a few people who are “offended” at public accommodation for traditional religious beliefs may object to it, requiring society to bend to their wishes. This formed by the basis of the school prayer decision in 1962, while the Lemon decision (1971) required secular justification for laws with religious motivation, and recent decisions on homosexuality (Romer (1996), Lawrence (2003), and recently Windsor (2013)) essentially declared Judeo-Christian morality, and laws motivated by it, to be contrary to the constitutional guarantee of personal liberty. The Romer decision, and more recently a 6th Federal Circuit decision pertaining to affirmative action, in staggering reasoning, said that state constitutional amendments that are inconsistent with enlightened opinion deprive those who lose of equal protection, because of the effort that would be required to repeal them. Additionally, the claim that “animus” renders laws unconstitutional, appealed to in Romer and Windsor, really portends an ideological state, in which ideas deemed oppressive are formally excluded from law and public policy, as noted by the present writer in an earlier article. Although the “heckler’s veto” is not the intent of the Establishment Clause, Destro noted, secularists use this form of argument to “sanitize” the public space, ostensibly so we can all get along.

But in fact, in the “sanitized” public square, Christians must fund abortifacients, while secularists do not have to fund Christianity. With the HHS mandate that requires contraceptive/abortifacient coverage, the Obama Administration is making another effort to change the political landscape (to the disadvantage of religious organizations). In a panel discussion on the “Frontline in the Struggle for Religious Liberty,” Sean Sheridan, President of Franciscan University and four other panelists discussed the mandate, which defines religious organizations qualifying for a religious exemption extremely narrowly. In the mandate’s original version, organizations need to meet three tests, specifically, 1) that the organization exists principally to inculcate religion, 2) it primarily serves the adherents of the religion to which it is affiliated, and 3) its employees are primarily of the religion to which it is affiliated. Most religious educational and social service organizations cannot satisfy these requirements, and so are bound by the mandate. Noncompliance carries a penalty of $200 per day per employee or $2,000 per year per employee if the organization chooses not to provide coverage. Some religious non-profit organizations have received additional accommodation, but must certify their status as religious non-profits and take action to cause a third party to provide contraceptive/abortifacient coverage for them (still involving them in causing immoral activity). For-profit enterprises with religious objections get no accommodation.

The legal situation which has developed led the panel to consider the question of what religious liberty is for (to protect religion from the state, not to protect the state or society from religion). It was noted that religious liberty is not merely part of individual liberty, but should protect religious bodies. For the purpose of genuine religious liberty, state neutrality is important, the panel asserted, and there should be no government interference in religious affairs. Believers should be protected from violence. And there should be few exceptions to religious liberty. Yet where religious ideas are held to be contrary to the supreme consideration of the “enlightened opinion of mankind,” they are disadvantaged in court decisions even when they have good rational and popular support. And civil rights laws are held by courts to override religious liberty. Local churches face lawsuits from aggrieved persons. Effectively a strong “no establishment” doctrine has threatened “free exercise of religion,” resulting in a state which is not neutral, but hostile, to traditional Christian viewpoints.

Because secularist court decisions have become so firmly entrenched in the American mind, with part of the public and especially its most influential sectors accepting them, traditional Christians face many years in which they will be disadvantaged in American society. Their viewpoints will be excluded as far as possible from public space, they will suffer penalties or exclusion from business or the professions to live in accordance with traditional Christian morality, and even state interference in church or family life where the Christian morality of obedience and self-denial collides with the state’s secular morality of self-determination. Over time, persistent refusal to comply with state standards that violate Christian morality, coupled with a strong apologetic of religious liberty, may eventually move the state toward true neutrality or at least accommodation for religious belief, but we must be prepared to suffer in a state where irreligion is effectively established as state policy, as noted at the recent Catholic Prayer Breakfast by Prof. Robert George of Princeton University.

A model for Christian obedience needed in our time was discussed in another presentation on “The Search for Religious Pluralism in America,” by Prof. Randy Lee of Widener University Law School in Harrisburg, Pa. He considered the faithfulness of Thomas More, among others, with respect to the current situation for religious freedom. The battle, Lee said, is about hearts. While the law tells you the consequences of being Christian, the Christian must depend on God instead of Caesar. Thomas More was heroic because there was “a center of himself that he could not give up.” More gave up everything for his God. It is surrender of our lives to God that makes us free. In the midst of a war, we need to remember what that war is about. More’s motto at death was: “I die the king’s good servant, but more than that, God’s servant.” Religious freedom from Christ, Lee said, is intended to save.