The View From 1776The Religion Clause Upside Down

George Goldberg has written one of the best non-technical reviews of Supreme Court contortions over the First Amendment’s two religion clauses.

-----------
Recently and happily I encountered a short and very readable analysis of Supreme Court activism that has led to today’s cultural warfare of secular liberal-socialists against Christians and religious Jews.

George Goldberg, a Harvard-trained lawyer born in 1935, published “Church, State and the Constitution: The Religion Clause Turned Upside Down” in 1984, but his analysis and conclusions remain fully applicable. He covers the history of judicial activism in religion by sticking to the essential points in Supreme Court cases, without becoming entangled in details of legal theory. I urge everyone to find a copy and read it.

Recounting all the book’s ins and outs regarding the Court’s interpretations of the First Amendment is beyond the scope of this posting. But it is possible to suggest the nature and effects of the Court’s wavering in the changing winds of “social justice” after President Franklin Roosevelt’s notorious court-packing scheme in 1937 (see Echoes of FDR’s Court-Packing Scheme). That effort to make the Supreme Court a rubber-stamp for Presidential policies failed, but the Court was sufficiently frightened to begin ruling in favor of secular, social-justice theories, particularly after several vacancies were filled by Mr. Roosevelt with liberal-socialist appointees like Hugo Black.

To begin, let’s look at the specific words of the First Amendment’s two religion clauses:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;”

Several points are to be noted: first, the First Amendment originally applied only to Congress, not to state legislatures and local governments; second, it refers to"an establishment,” not to a more generalized “promoting or supporting religion;” and, third, most of what the Supreme Court has prohibited since the 1930s is what was originally considered to be the free exercise of religion, duly authorized by public will, expressed through enactments of representative legislative bodies.

Let’s start with Mr. Goldberg’s conclusions, then sketch the path to them:

“The essence of religious freedom in a multisectarian society is, as our Founding Fathers perceived, twofold: (1) freedom from government compulsion to worship in any particular way, and (2) freedom to worship in one’s own particular way.....It is clear that the religion clauses of the First Amendment were never meant to apply to the states......Nearly all of the conflict [since the 1940s] over the meaning of the religion clauses was the result of the Supreme Court’s unilateral and unjustified extension of them to the states.”

Given, however, the vast changes created solely by judicial interpretation in the process of overturning state and local laws, he continues:

“We may therefore rephrase the religion clauses of the First Amendment to read: ‘Government authority, whether federal, state, or local, shall take no action promoting an establishment of religion or inhibiting the free exercise thereof.’......There is, however, significant disagreement over what is an “establishment of religion” and “the free exercise thereof.”

“....... One additional question has caused much trouble, and it may be desirable to deal with it before tackling the big questions. It is: What is “religion?” and: Is “religion” in the establishment clause the same concept as “religion” in the free exercise clause?........

“There is little question but that to the Founding Fathers “religion” did essentially have one meaning: the beliefs and practices associated with the worship of God, whether the Christian God, the Jewish God, nature’s God, or Divine Providence. With that broad definition, and with the concomitant understanding, which the Founding Fathers also shared, that the only thing prohibited by the establishment clause of the First Amendment was compulsion of worship or preferential treatment of one religion over competing religions, there would be little trouble today over interpretation and application of the establishment clause, and little “tension” between it and the free exercise clause.

“But the Supreme Court greatly expanded both the definition of “religion” and the scope of the prohibitions of the establishment clause, with the result that an impasse, the classical irresistible force meeting immovable object, was created. As phrased by the Court, “tension inevitably exists between the Free Exercise and the Establishment clauses.” But there was nothing inevitable about it.........The “tension” only appears when the definition of religion is broadened for free exercise purposes and it is held that any government aid of religion, no matter how evenhanded, is prohibited by the establishment clause. Then it is inevitable that there will be tension between what the free exercise clause requires and what the establishment clause forbids.”

Now to sketch my thoughts regarding the background to Mr. Goldberg’s conclusions:

In 1787 when the Constitution was written, the meaning of “an establishment of religion” was crystal clear, and there was only one meaning: to prevent an American version of the English Test Acts that had restricted holding public office to members of the Anglican Church, as well as the requirement that all citizens, regardless of their religious faith, pay taxes to support the Anglican Church.

The reason also was abundantly clear: everyone wanted to avoid the religious conflicts that in England had produced the 1644 English Civil War, fomented among other things by the Stuart kings’ intriguing to reinstitute Roman Catholicism. Victory by Oliver Cromwell’s Puritan army led to the beheading of Charles I and instituting the Puritan Protectorate, followed by the post-Restoration bloodless civil war of 1689 that ousted James II.

The intention to confine prohibition of an establishment of religion to Congress was equally clear. In 1787, six of the thirteen states had officially established state religions that were in no way affected by the Constitution. Such matters were left to the voters of each state.

Free exercise of religion was essential, because by 1787 the United States had more Protestant denominations than anywhere else in the world, as well as Roman Catholicism and the Jewish faith.

Back to Mr. Goldberg’s analysis:

Not until 1876 were the religious clauses of the First Amendment revisited. In that year, James G. Blaine, then Speaker of the House of Representatives, proposed the Blaine Amendment, which would have extended the religious establishment prohibition of the First Amendment to the states. Blaine’s proposed amendment passed in the House, but failed in the Senate, so was never submitted to the states for ratification. As Mr. Goldberg notes, the important point was that both supporters and opponents of the Blaine Amendment agreed that the First Amendment did not apply to the states.

In 1908, in a case before the Supreme Court, the argument was first made that the 14th amendment “incorporated” the Bill of Rights (the first ten amendments to the Constitution, passed shortly after ratification of the Constitution), and thereby made the states also subject to the various prohibitions placed upon Congress.

For the purposes of the First Amendment religion clauses, the relevant clauses of the 14th Amendment, which was passed by Congress June 13, 1866. and ratified July 9, 1868, are in Section 1, which reads: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. “

The second clause of Section 1 is the notorious “due process” clause, which has become one of the most frequently employed general-purpose tools for subverting the intent of the delegates who wrote the Constitution.

The Constitution was intended to create a government of limited powers, one that left nearly all day-to-day activity to regulation by state and local laws. The due-process clause of the 14th Amendment has been progressively interpreted by the courts to bring all activity of any kind under the purview of what is effectively a legislative oversight by the Federal judiciary, thereby furthering the socialistic collectivization of power at the national level.

Ironically, the only ones of the Bill of Rights that the Federal judiciary have ignored are the Ninth and Tenth Amendments, which state: Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Amendment X The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

In the 1908 Supreme Court case, however, the Court rejected the argument that the 14th Amendment had made the Bill of Rights applicable to the states. The Justices opined that a lengthy and unbroken series of cases involving various parts of the Bill of Rights had been held inapplicable to the states and that these precedents remained the law. While this case involved application of the Fifth Amendment, it was generally considered that it applied to the First Amendment as well.

But, in 1925, the dike was breached by a case involving New York’s criminal anarchy statute. Benjamin Gitlow, a member of the Socialist Party, had endeavored to incite action to overthrow the constitution and to institute a socialist government, if necessary, by means of violent revolution. In this case (Gitlow vs. New York, 268 U.S. 652, 666) the Supreme Court completely reversed field and held that the New York statute infringed Gitlow’s First Amendment rights of free speech. Apart from the fact that the Justices were making a legislative decision that revolutionary socialism is no threat to Constitutional government, they had at a stroke abandoned 136 years of case law and arbitrarily redefined the Bill of Rights.

Let’s dwell for a while on the implications of the Gitlow case (which is my speculation and not to be attributed to Mr. Goldberg). Understanding the background of events is necessary. World War I, which had ended only seven years earlier, had dampened the liberals’ comforting faith that socialism was moving humanity inevitably along the path of Progress toward social perfection. It was a period of pessimism, in academic and literary circles at least, about the viability of constitutional democracy.

Three years earlier, in 1922, Mussolini had staged his “march on Rome” that established his Fascist dictatorship. Fascism was a reaction against the Italian Socialist party’s attempt to sabotage Italy’s entry into World War I as a British ally against socialist Germany. Fascism was nonetheless a nationalistic form of socialism. By 1925, Mussolini was getting favorable press in the United States as an example of restoring social and political order after the earlier Socialist Party turmoil. Americans noted approvingly that under Mussolini the trains ran on time and mail delivery was dependable. Simultaneously academics like John Dewey and the Greenwich village literati were singing the praises of Soviet socialism under Lenin and Stalin. Socialism was increasingly becoming a subject of sympathetic attention among the general public, even from the pulpits of Christian ministers who should have known better.

In 1916 President Woodrow Wilson had appointed Louis Brandeis to the Supreme Court, where he joined fellow Massachusetts liberal-socialist Oliver Wendell Holmes (it sometimes seems that whatever is rotten in American politics and social views emanates from Massachusetts). Brandeis had gained fame before joining the Court for what came to be known as the “Brandeis brief,” arguments before the Supreme Court based, not on existing law, but on sociological theories and reams of statistics collected by academic researchers. Both Brandeis and Holmes were predisposed to reach judicial opinions on the basis of what seemed to them to be the socially desirable outcome of the case, regardless of existing law or legal case precedent.

Theirs was a view that was part of the climate of opinion developing among liberal Republicans, as well as Democrats. Enough of their fellow Justices shared the views of Holmes and Brandeis to decide the Gitlow case, not on the basis of law, but on the basis of what they thought the New York legislature ought to have done.

Another point to be noted is the shift away from a traditional principle of jurisprudence: wariness about unforeseeable effects of broad-based decisions. The Supreme Court traditionally had rendered decisions on the narrowest possible basis, preferably linked to specific facts of a case, as opposed to rendering a decision on the basis of a sweeping principle.

As an example, when the Court decided against a challenge to the Federal Tennessee Valley Authority (TVA), it hung the the decision on a relatively obscure law and a highly specific set of facts. The challenge to TVA was that it authorized the government to go into business, competing directly against private electric utility companies that lacked the Federal government’s immense financial resources and its low interest rates on borrowed money. Rather than ruling that the Federal government can compete in this fashion with private businesses, the Court noted that the original TVA hydroelectric power dam at Mussel Shoals, Alabama, had been built during World War I to provide power to a munitions plant, which the Court said was a legitimate exercise of Federal power.

The change wrought by Justices Holmes and Brandeis and their sympathizers was to assert broad principles, such as unlimited rights of free speech, and then to decide cases on the basis of whether they thought a particular law coincided with the asserted right. The problem is that, once this process begins, there is literally no end to it. After nearly eighty years of such judicial activism, almost any action short of murder can be construed as lawful expression of private opinion that is to be protected by the First Amendment’s free speech clause.

In fairness, it must be noted that later, during the New Deal, the Supreme Court invalidated many of President Roosevelt’s socialistic regulatory and control schemes. It was the liberals’ turn to scream at the top of their lungs against what they called judicial activism. President Roosevelt’s response was the 1937 court-packing plan referenced above.

Let’s return now to Mr. Goldberg’s analysis. Skimming over several specific cases described by him, the net effect was a continuation of this trend. Rather than issuing decisions that said, if people wanted different answers, they should pressure their representatives in the legislatures to change the laws, the Justices with increasing frequency infringed the legislatures’ prerogatives by making up their own law. None of these cases, however, involved the First Amendment’s religion clauses.

During the 1920s there were many unsuccessful challenges in state courts to legislation authorizing things like school prayers or aid to parochial schools. None of these challenges succeeded, and no plaintiff ever suggested that such laws were violations of the First Amendment.

The first Supreme Court cases involving restrictions on religious activities appeared in the 1930s, mostly involving Jehovah’s Witnesses. A typical case involved a local ordinance that prohibited use of a loudspeaker in public places without a license having been obtained to do so. Jehovah’s Witnesses were refused such permits, but violated the law by blaring scurrilous loudspeaker denunciations of the Catholic Church on Easter Sunday morning as Catholics entered their church.

Building upon the Gitlow case, the Justices generally decided in favor of the Jehovah’s Witnesses on the grounds that avoiding local disturbances of the peace (which in some cases precipitated riots) was an insufficient ground for interfering with free speech. As in Gitlow, they ruled that the 14th Amendment had brought states and local governments under the prohibitions of the First Amendment.

In light of present-day doctrine, this seems extraordinary. In the 1930s, Jehovah’s Witnesses were permitted to insult anyone’s religious belief in any way they desired, in public places like city streets or parks, in the name of free speech. Today, the mere mention of God in a public setting can be halted on the grounds that permitting such utterances of personal religious faith constitutes establishing a state religion.

Finally, in 1940, the Court ruled explicitly on religious grounds. In Cantwell v. Connecticut (310 U.S. 296, 1940), the challenge was to a New Haven law that prohibited the solicitation of religious, charitable, or philanthropic donations without a license, from people not members of the solicitors’ denomination or organization. The city official issuing such licenses was ordered to make a determination whether the group applying for a license was a legitimate religious, charitable, or philanthropic organization. The intent, of course, was to keep criminals from claiming a legitimate purpose for what was only a scam.

Jehovah’s Witnesses did not apply for a license, but took to the streets of a heavily-Catholic part of the city to sell their literature and to denounce the Catholic Church. A hostile crowd greeted them, police were called to arrest the Witnesses, who were convicted of violating the city ordinance.

The Supreme Court’s decision reversed the arrest and conviction of the Witnesses on the grounds that the law giving a city official the duty to determine the legitimacy of the applying organization constituted censorship of free speech and an abridgment of the First Amendment’s freedom of religion. The Court also declared that the First Amendment’s freedom of religious worship clause applied to states and local governments.

As Walter Berns noted in “Freedom, Virtue, and the First Amendment” regarding the Cantwell case, “The Supreme Court is permitted to define what is and what is not a bona fide religion, but when local officials are given this authority it is censorship forbidden by the Constitution.”

Having come down emphatically against the city of New Haven, the Justices nonetheless wavered in the following years, deciding some cases in favor of, and others against, Jehovah’s Witnesses, who seemed to have a monopoly on religion cases coming before the Supreme Court. Their opinions sometimes directly contradicted other decisions that had been rendered within the same decade. The only common thread appeared to be whether the Justices saw the particular local or state law as unreasonable.

Needless to say, historically that is not the stuff of justice. Law and order, when people have no clear idea of what the Court will rule or its reasons for its rulings, is replaced by what resembles a casino where one places his bets and hopes to win. Ultimately, as we saw in the riots, burnings, looting, murders, and drug dealing in central cities after the start of the Great Society in the late 1960s, this moral relativism degenerates into fearful anarchy. In Thomas Hobbes’s words, life becomes nasty, brutish, and short.

Everson v. Board of Education of Ewing Township (330 U.S. 1), a 1947 case, finally brought the Justices’ attention to the sort of issue plaguing American society today: can public funds or use of public facilities be in any way related to an expression of religion, even when there is no discrimination in favor of one religion over another? Previous First Amendment religion cases had involved questions of freedom of religious expression. Everson, for the first time, presented an issue involving the establishment of religion clause.

Mr. Everson objected to a law permitting New Jersey school boards to defray the bussing costs of all children within their districts, even for children attending Catholic parochial schools. He argued before the Supreme Court that any public benefit to any religion, whether discriminatory or not, was prohibited by the First Amendment’s establishment clause.

The Court’s majority opinion was written by Justice Hugo Black, a Franklin Roosevelt appointee who appears never to have encountered an example of scatological or treasonous speech, or actions defined broadly as speech, which he did not wholeheartedly embrace. Not only did Justice Black’s opinion extend the establishment clause to the states and local governments, but it also broadened the definition of establishment to mean something entirely unrelated to the intent of the First Amendment when it was written.

His opinion was typical of the 1930s pattern of deciding cases, not on the narrowest possible issues of law or fact, but of gratuitously issuing sweeping pronouncements of principle, even when the facts of the case did not require them. Justice Black wrote:

“The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.”

No previous Federal judicial opinion ever had advanced the theory that no governmental body can do anything to aid any religion or all religions. Henceforward, however, this was to become the accepted doctrine of the First Amendment religion clauses:

No restriction of any kind could be placed, at any level of government, on any speech or action purporting to be an expression of religion, yet no level of government could do anything to support such freedom of religious expression or to permit it to take place on public property. In effect, the establishment clause had swallowed the free expression clause.

After Everson, it was only a matter of time before school prayers, moments of silence, performances of religious music by composers like Bach, Christmas decorations (but not decorations for Hanukah or Kwanzaa) would be banned as unconstitutional establishment of religion.

In the years following Everson, the Court flip-flopped on matters relating to interpretation of the two religion clauses. For a while the Justices seemed to have recognized the impossible bind in which they had placed themselves. More recently, they have returned to the strident anti-religion that characterized the high point of the 1970s.

Recent challenges of Michael Newdow to the “under God” phrase inserted by Congressional act into the Pledge of Allegiance and to the inclusion of a prayer at the President’s inaugural ceremony were put off on technical grounds or were simply deferred for later decision. Sooner of later those challenges will come again to the Supreme Court.

The United States, if liberal-socialists prevail, will become firmly committed to an anti-religious, secular materialism, because it is now the Federal courts, not Congress, that ultimately make the laws.