The Next Battle for Religious Freedom

by Gerald Russello - September 18, 2007

Reprinted with permission.

This year marks the 60th anniversary of one of the most unfortunate and controversial Supreme Court decisions, Everson v. Board of Education. While the case had a good result, in that the Court ruled that Catholic parents could be reimbursed for their children using public buses to get to parochial school, the case has a more troubled legacy. It is best remembered for two things (in addition to the fact that the author of the opinion, Justice Hugo Black, was well known for his antipathy toward Catholics). The first is the Court's introduction of a "wall of separation between church and state" that allegedly was established in the Constitution. Of course, that phrase never appears in the Constitution, or in any other governing document. Instead, it comes from a letter written by Thomas Jefferson to a Baptist congregation years after the Constitution was enacted and represents, at most, only Jefferson's views on the subject. In other words, there is not, and was never intended to be, a "wall" between church and state.

The Court compounded this historical error with some constitutional sleight-of-hand. Prior to Everson, most religious liberty controversies remained at the state level, because the Constitution did not explicitly govern this issue. What has made the opinion's legacy so damaging is the Court's application of the First Amendment to the way individual state governments treat religion.

The First Amendment, of course, refers only to Congress; it states that the national legislature shall "make no law respecting the establishment of religion," or infringing upon the free exercise of one's faith. The Constitution says nothing about prohibiting – or allowing, for that matter – the states from enacting laws that assist religion. Indeed, at the time of the enactment of the Constitution and for decades afterward, numerous states had established churches, and almost every state supported religion in some way. The Constitution was directed at concern for national interference in the religious practices in the various states; as a nation of numerous faiths, no one wanted to risk a national majority imposing one faith on the nation. Without any real historical or logical support, the Court upended the plain meaning of the phrase and used it to rule on state action concerning religion.

Nevertheless, the phrase – and the misguided understanding of the relationship between church and state that it reflects – has stuck, despite a growing body of scholarship uncovering a more productive and historically accurate account of the role of religion in American life. And while Everson and its influence among the federal courts may yet be reduced by future court decisions, it has provided the groundwork for a new phase of the battle for religious liberty, one that is potentially more dangerous than a discredited metaphor.

The Creeping Wall

By its nature, the wall metaphor creates two separate camps, one of faith and one of the state. While the Founders' vision was of a fruitful interrelationship between faith and public life, the Everson vision is a zero-sum game. At the beginning, this vision was not clearly evident. In general, the post-Everson cases were concerned with what the government could or could not do to avoid endorsing or supporting religious faith in an unconstitutional way. Courts, for example, have long denied their ability to look into religious doctrine or pass on whether a particular faith makes sense.

Recent years, however, have seen a subtle but significant shift in the way the law sees religious liberty. The growth in the activities of state and federal government in areas of public life formerly covered by private institutions has dramatically increased the conflicts between religious institutions providing services that the government seeks to regulate and control. The "wall" is now seen to encompass more territory, and in areas where both the state and religion operate, religion must yield and be pushed further away from public life.

Instead of merely monitoring the wall, therefore, now courts are ruling whether to trump religious liberty with other values states might deem important. A recent run of cases illustrates a worrying trend among state and federal courts that prejudice the rights of religious persons and institutions in the name of other values that the state wishes to promote. For example, courts in California and New York have forced Catholic hospitals to provide contraceptive coverage as part of their health care plan, finding that the state's visions of "equality" can force institutions to act in ways contrary to their religious charters. These laws were upheld despite pretty clear evidence that they were passed explicitly to target Catholic institutions. More recently, a federal court in Massachusetts rejected claims by parents who objected to the presentation of homosexuality to their public grade-school children. The court opined that the First Amendment fosters a contentless "mutual respect" rather than protecting the ability of people to believe what they consider to be true. And again in Massachusetts, the state basically closed down Catholic adoption agencies because the state government would have forced them to place children with same-sex couples.

The "new orthodoxy" treats religion as a somewhat suspicious ground for action, and one that deserves no special consideration under our constitutional system. Now the law requires religious institutions to bow to the will of the state, in the name of whatever principle the legislature may find paramount at the moment: equality, "death with dignity," funded access to contraceptives, and so on.

The shift should be of special concern to Catholics. For ecclesial and historical reasons, the Church in America has developed a strong and extensive network of hospitals, schools, and institutions such as Catholic Charities. Moreover, the Catholic understanding of the person requires men and women of faith to act in accordance with Church teaching; Catholicism is meant to be in the world, even if not of it. These laws – sometimes quite explicitly – strike directly at Catholic self-understanding, in favor of a desiccated view of religion that is completely private and which cannot be acted upon without the permission of the state.

There is no constitutional principle here, just the will to power and elite antipathy toward religious belief. This secularist vision is at odds with our constitutional history, which understood that religious belief was essential to a free republic. Recognizing the danger this vision poses before it is too late will be the challenge for those supporting religious liberty in the coming years.

Gerald J. Russello is a fellow of the Chesterton Institute at Seton Hall University. He is working on a book on Christopher Dawson.