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June 30, 2005
McConnell
RealClearPolitics has highlighted an article that Judge Michael McConnell wrote in The American Enterprise back in 1995. In the article he argued that the Establishment clause was being used as a sword against religion. McConnell's thesis:
History shows clearly that the establishment clause of the First Amendment was designed to ensure that no religion is given a privileged status in American public life. It was certainly not intended to require the secularization of society. The First Amendment has been turned on its head today: from a guarantee of freedom for religion, to an excuse for official hostility to religion. It is time that the equal rights of religious citizens to speak and participate in public life be clearly recognized and protected in the law.
In the same article McConnell lays the groundwork for a "Religious Liberty Amendment." I strongly agree with Justice Rehnquist's recent statement that "our cases, Januslike, point in two directions in applying the Establishment Clause." But I don't think that the recent Ten Commandments cases changed that fact, or much of anything related to public displays. For that reason, I think McConnell's reasoning still applies. However, in my view, amending the Constitution is unnecessary--at least until Janus's gaze begins settling in one direction.
Given the Zelman line of cases--permitting public funding in the form of vouchers for religious schools, and similar uses by religious programs characterized by "private choice"--I'd say the Constitution has, in some respects, become much friendlier to religious folks. (Not for lack of dissenters though.) I tend to think that amending the Constitution is rarely necessary, but even when it isn't necessary I'd rather see an amendment than a 5-4 ruling. So while I disagree that we've reached the point of needing a religious liberties amendment, I'd probably support it.
I will be more inclined to agree with the need for an amendment if we do indeed take the slippery slope and rid the public square of religious expression a la France. It will take a while for scholars to fully debate--through scholarship--the meaning of the recent decisions. But, when they do, my best guess is that most will conclude that with regard to public displays we are pretty much where we were after Allegheny v. ACLU in 1989: A creche alone violates the Constitution, but a creche next to a plastic Santa is fine.
Posted by Jonathan Bunch at June 30, 2005 09:35 PM
Religion and Government just aren't two great tastes that taste great together.
I think that quote from McConnell does something I've noticed more and more recently -- it conflates government with the public square: "It is time that the equal rights of religious citizens to speak and participate in public life be clearly recognized and protected in the law." Nobody has been trying to prevent religious worship in public. Just keep the government out of it.
Keeping government and religion separate is not the same as prohibiting religious citizens from participating in public life. However, I would argue very strongly that our Constitution guarantees me a secular government. That government may well be made up of religious individuals whose actions are guided by their sense of morality, and that's excellent. All I'm asking is that you wait until you step outside of city hall before you put up your monuments or say your group prayer.
Posted by: Doug at June 30, 2005 11:14 PM | permalink
I can't help but observe that a secular government would be a far lesser menace to religion if the government itself were smaller.
But I think you are doing a disservice to the idea of school vouchers by suggesting that they are a form of government funding for religion. They are a form of government funding for education, and individuals have the right to choose among many different educational alternatives. It only stands to reason that as vouchers become more widespread, other choices in private education will also emerge, not all of which will be religious. (Currently, religious schools are operated largely as charities, but a more extensive voucher system would make for-profit educational ventures possible as well, as one example.)
Posted by: Jason Kuznicki at July 1, 2005 08:46 AM | permalink
Jason,
Zelman, now considered a landmark case, specifically addressed the issue of whether vouchers for religious schools violated the Est.Cl. The decision has also been used to justify, as a legal matter, funding for churches that have soup kitchens or prison ministry etc. I do not intend to say that vouchers are a religious issue; simply pointing out that Zelman was/is viewed as a favorable decision by many religious folks, including conservative Christians--particularly evangelicals. Considering that it allowed them to enter into the marketplace on these issues, as religious institutions, I’m not sure how it is a disservice to acknowledge the cases’ favorability.
Posted by: Jonathan Bunch at July 1, 2005 08:57 AM | permalink
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