Mark David Hall, Author at Law & Liberty https://lawliberty.org/author/mark-david-hall/ Thu, 05 Jun 2025 19:01:43 +0000 en-US hourly 1 https://wordpress.org/?v=6.8.1 226183671 Pierce at 100 https://lawliberty.org/pierce-at-100/ Fri, 30 May 2025 10:00:00 +0000 https://lawliberty.org/?p=67437 This weekend marks the hundredth anniversary of Pierce v. Society of Sisters, a decision that should be celebrated by everyone committed to liberty and limited government. In this ruling, the Supreme Court declared there to be an unenumerated but judicially enforceable constitutional right for parents to “direct the upbringing and education” of their children. This […]

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This weekend marks the hundredth anniversary of Pierce v. Society of Sisters, a decision that should be celebrated by everyone committed to liberty and limited government. In this ruling, the Supreme Court declared there to be an unenumerated but judicially enforceable constitutional right for parents to “direct the upbringing and education” of their children. This right is as relevant—if not more relevant—in 2025 as it was in 1925.

Pierce is usually treated as a substantive due process case, and we are aware that many readers of Law & Liberty oppose this approach to constitutional interpretation. Since the mid-twentieth century, progressive justices have treated it as a magic wand that can conjure new rights into existence. We completely reject this approach. However, when justices rely on history and tradition to identify rights long held by legislators and jurists to be possessed by English and American citizens and then protect these rights against improper state intrusion, they act consistently with America’s constitutional order. We return to this issue later, but first, we should discuss the case that we believe should be celebrated today. 

Pierce’s History and Progeny 

Pierce arose because voters in Oregon passed an initiative in 1922 that effectively banned private schools. The law required children between the ages of 8 and 16, with a few narrow exceptions, to attend public schools. Most private schools in the state were Roman Catholic, and anti-Catholic animus was undoubtedly a major reason the initiative passed. The measure was drafted by a Scottish Rite Mason, it was sponsored by prominent Masons, and it was heartily endorsed by the resurgent Ku Klux Klan in Oregon. 

Unfortunately, our nation has a long history of anti-Catholic animus. As Philip Hamburger explained, this animus nearly resulted in an amendment to the US Constitution in 1875, known as the Blaine Amendment, that would have prevented states from funding “sectarian” schools. Everyone in the era understood “sectarian” to mean Roman Catholic. The House of Representatives passed the amendment by a vote of 180–7, but it fell just short of the two-thirds necessary for approval in the Senate. Shortly thereafter, at least 31 states adopted similar amendments (often called “Baby Blaines”). 

Even in the 1920s, when the Supreme Court was not known for protecting the rights of individuals against the state, the justices recognized and protected parental rights as applied to unpopular minorities. 

The Society of Sisters contended that the Oregon law was unconstitutional, and a unanimous Supreme Court agreed. Justice James McReynolds held that a “child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations” and that the act “unreasonably interferes with the liberty of parents and guardians to direct the upbringing of children under their control.” Such a right isn’t spelled out in the Constitution, but the justices held that it was part of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause. 

The outcome of Pierce shouldn’t have come as a surprise in light of Meyer v. Nebraska, a 1923 decision declaring Nebraska’s law prohibiting school teachers from teaching any child not past the eighth grade in a foreign language or teaching him/her a foreign language unconstitutional. The Nebraska law, like similar laws in 22 other states, was passed during the First World War and was primarily concerned with the German language.

Meyer arose after a teacher was fined for teaching Bible stories in German. Justice McReynolds, writing for the seven-Justice majority, argued that the exact content of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause was not specified, but that it certainly includes:

the right of the individual to contract, to engage in any useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

McReynolds conceded that the state may “do much” to “improve” citizens of the state, and that this power certainly includes compelling “attendance at some school or to make reasonable regulations for all schools.” But the state’s power is limited; it may not, for instance, take children from their parents and raise them communally, as Plato proposed and Sparta did. Such measures “have been deliberately approved by men of great genius,” but they are inappropriate in our constitutional order, which puts limitations on the power of the state. He concluded that Nebraska’s statute violated the Due Process Clause of the Fourteenth Amendment and thus was unconstitutional. 

Building on Meyer and Pierce, the Court in Farrington v. Tokushige (1927) struck down a Hawaii law prohibiting schools from teaching foreign languages without a permit. The opinion, based on the Fifth Amendment’s Due Process Clause (as Hawaii was a federal territory), was again authored by Justice McReynolds, who observed that the “Japanese parent has the right to direct the education of his own child without unreasonable restrictions; the Constitution protects him as well as those who speak another tongue.”

(By now, readers who are not legal historians may well think that McReynolds was a progressive jurist ahead of his time. In fact, he was one of the “Four Horsemen,” conservative jurists who regularly declared unconstitutional FDR’s New Deal legislation until the famous “switch in time that saved nine” in 1937—a switch that did not affect his voting, but which shifted him from being in the majority to being a dissenter.)

Pierce in Action Today 

Nebraska, Oregon, and Hawaii all presumably believed that their restrictive educational policies would help form “better” citizens. Today, the estimated 1,215 school districts with “parental preclusion policies,” whereby school district officials transition children to a different gender without parental knowledge or consent, undoubtedly believe the same. And likewise, the Montgomery County School Board, which adopted a policy of refusing to permit parents to opt their young children out of instruction using LGBTQ storybooks and teaching “sexuality and gender identity during English class,” believes that its curriculum is necessary to promote “equity, respect, and civility.”

But many parents disagree with these school districts, and they have been filing lawsuits challenging them across the nation, asserting the fundamental right that Pierce articulated 100 years ago. While the Supreme Court has yet to take a case regarding the constitutionality of parental preclusion policies, the court recently heard oral arguments in Mahmoud v. Taylor, a case challenging the Montgomery County curriculum. Parents from a variety of religious traditions objected that this instruction violates their religious convictions and asked for an opt-out. They were denied. 

Although Mahmoud is being litigated exclusively as a Free Exercise Clause case (and we agree that the parents should win on these grounds), they should also win because parents have a constitutional right to direct their children’s education, a right firmly established in the trinity of education cases discussed above. 

Protecting Unenumerated Fundamental Rights 

Finding judicially enforceable rights in the Fourteenth Amendment’s Due Process Clause has, since the 1940s, been referred to as substantive due process. In the early twentieth century, progressives were highly critical of this approach because it was used to protect “liberty of contract” by striking down legislation aimed at improving working conditions. Today, conservatives are not fond of it because of its association with cases finding a right to abortion and legal recognition of same sex marriage. 

Properly conceived, however, substantive due process offers important protection for fundamental rights that are not clearly enumerated in the Constitution. We believe that Chief Justice William Rehnquist was correct when he observed in Washington v. Glucksberg (1997) that:

Our established method of substantive due process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, “deeply rooted in this Nation’s history and tradition.” … Second, we have required in substantive due process cases a “careful description” of the asserted fundamental liberty interest.

The majority in this case found that there was no substantive due process right to physician-assisted suicide. Far from being a right “deeply rooted” in American history, helping someone to commit suicide was and still is illegal in most states.

There is a long history and tradition of civic leaders and jurists in America protecting the fundamental rights of parents to control the education of their children. To be sure, states and territorial governments have attempted to interfere with this right, but it is telling that even in the 1920s, when the Supreme Court was not known for protecting the rights of individuals against the state (except for liberty of contract), the justices recognized and protected this right as applied to unpopular minorities (German and Japanese speakers and Roman Catholics). 

The right of parents to control the education and moral formation of their children surely includes the right to send them to private schools, to teach them at home, and to opt them out of offensive instruction in public schools. And it is certainly improper for schools to hide important life-altering decisions their children desire to make from their parents. But few families have the resources to send their children to private schools or to homeschool them, and fewer have the time to vigilantly monitor the day-to-day instruction in public schools. By far and away, the best way to protect the right of parents to oversee the education of their children is to enable them to send their children to schools of their choice. We are heartened by strong movements in many states to make school choice a real option. Whether through charter schools, educational savings accounts, or vouchers, giving parents real choices in education is the best way to protect the right articulated so well in Pierce v. Society of Sisters.

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Was the Founding Generation “Churched”? https://lawliberty.org/was-the-founding-generation-churched/ Wed, 16 Oct 2024 10:00:00 +0000 https://lawliberty.org/?p=62161 George Hawley is one of the best students of contemporary political conservativism and the Alt-Right. His recent Law & Liberty piece on American Christian nationalism does not disappoint. He and I are in full agreement that “the notion that the United States is on the precipice of a fundamentalist theocracy”—as so many critics of Christian […]

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George Hawley is one of the best students of contemporary political conservativism and the Alt-Right. His recent Law & Liberty piece on American Christian nationalism does not disappoint. He and I are in full agreement that “the notion that the United States is on the precipice of a fundamentalist theocracy”—as so many critics of Christian nationalism assert—is, in his word, “risible.”

To be sure, there are racist nationalists in America, but as Hawley observes in his Alt-Right: What Everyone Needs to Know, “Most prominent Alt-Right leaders are also non-Christians, and they are highly critical of Christianity, although there are Alt-Right Christians. However, unlike earlier white nationalists, the Alt-Right is mostly indifferent to religious questions.” Tobias Cremer persuasively argues that this is also the case with French and German religious nationalist leaders.

But I write not to praise Professor Hawley, but to take issue with a widely-used but inaccurate statistic that he included in his essay. Utilizing the usually reliable work of the sociologists Roger Finke and Rodney Stark, he references their calculation in The Churching of America: 1776–2005 that “[a]s of 1776,” perhaps as low as 17 percent of “Americans belonged to a church.” 

Hawley’s use of this figure is almost irrelevant for the purposes of his argument, and I agree with the connection he makes between religious liberty and religious vitality. But this figure is regularly used by those who would deny that Christianity was an important influence in America’s founding. For instance, Isaac Kramnick and R. Laurence Moore apparently rely on Finke and Stark’s work in their book The Godless Constitution when they claim that “Americans in the era of the Revolution were a distinctly unchurched people. The highest estimates from the late eighteenth century make only about 10–15 percent of the population church members.” (I write “apparently” because Kramnick and Moore don’t bother to cite their sources). 

Similarly, Jon Butler, in an essay entitled “Why Revolutionary America Wasn’t a ‘Christian Nation,’” utilizes Finke and Stark’s figures to support his claim that “it is all but impossible to calculate church membership at more than 20% of colonial adults before the American revolution.” Geoffrey Stone, Steven Green, Alan Dershowitz, and many others have reiterated these figures, often simply ignoring studies that suggest the percentage of church adherents is far higher. 

Finke and Stark were not the first academics to suggest that few Revolutionary-era Americans attended church. In 1935, the church historian William Warren Sweet published an article asserting that there were “more unchurched people in the American colonies, in proportion to the population, than were to be found anywhere else in the world.” Variations of this claim, often setting church adherent rates at 5-10 percent, were repeated by students of American history including Franklin Hamlin Littell, Sydney Ahlstrom, Richard Hofstadter, and Martin Marty over the next fifty years. They provided little to no evidence to support their claims.

In 1988, Finke and Stark published a widely cited article entitled “American Religion in 1776: A Statistical Portrait,” which argued that “only 10 to 12% of the population in 1776 was churched.” They claimed to use social science to arrive at their conclusions as opposed to historians whom they essentially accused of guessing. They arrived at this percentage by multiplying the 3,228 churches in America in 1776 by their estimate that each church had 75 members and dividing this figure by the nation’s white population (2,524,296). Their article focused on whether individuals formally joined a church, but by their 1992 book The Churching of America (and its 2005 second edition) they switched to “adherence rates,” which included individuals who regularly attended church but did not formally join. Shifting from membership to adherence rates enabled them to reach the 17 percent figure cited by Hawley. 

In 2003, James Hutson, then Chief of the Manuscript Division at the Library of Congress, offered compelling criticisms of Finke and Stark’s analysis. He showed that they make numerous factual and historical errors. For instance, they misstate Yale President and early demographer Ezra Stiles’s estimate of the population of New England in 1760 and they ignore the best calculations of the American population in 1776—inflating the figure by 300,000.

More significantly, Finke and Stark drew from records of the fledgling Methodist and Baptist churches and from an 1826 Presbyterian figure to conclude that the average church in 1776 had only 75 members. But there are good reasons to believe that many older, more established churches had far larger congregations. For instance, Ezra Stiles calculated that New England’s Congregational churches averaged 160 families each. Given that the average family in the era contained six people, each church ministered to roughly 800 souls. Using a similar methodology, accurate population figures, and better membership numbers, Hutson calculates that 71 percent of Americans were “churched” in 1776. 

Hutson’s conclusion fits well with figures derived by Patricia U. Bonomi and Peter R. Eisenstadt in an important 1982 William and Mary Quarterly article. Utilizing a definition of “churched” that includes “member, adherent, parishioner, and auditor,” these historians calculated that in late eighteenth-century America, “56 to 80 percent of the [white] population were churched, with the southern colonies occupying the lower end of the scale and the northern colonies the upper end.”

Unless one is ideologically committed to deemphasizing the influence of Christianity in the American founding, there is no good reason to assert that church adherence rates were 17 percent or lower in the era.

Remarkably, Finke and Stark did not even address Bonomi and Eisenstadt’s figures in their 1988 article even though it was published in one of the most prominent history journals six years before their study. They register their disagreement with it in a footnote in their 1992 book where, among other things, they challenged Bonomi and Eisenstadt’s estimate of congregation size based on their “informal tours of colonial churches [which] reveal them to be exceptionally small.” They don’t say how many churches they toured, but one suspects it was not a representative sample of the estimated 3,600 church buildings (v. the 3,228 congregations referenced by Finke and Stark) in late eighteenth-century America.

In a 2020 study, Lyman Stone offers a sweeping account of American religiosity from the early colonies to the present day and compares it to various European countries. His focus is not on the late eighteenth century, but he does engage the differences between Finke/Stark and Bonomi/Eisenstadt and offers criticisms of both before concluding that his approach yields “an estimate that is considerably nearer to Bonomi and Eisenstadt’s higher counts of pre-independence religiosity.”

Finke and Stark accused earlier historians of simply guessing at church membership rates, so it is perhaps only fair to quote one of the best students of American church history in his review of their 1992 book. According to George Marsden, with respect to church size in the founding era, Finke and Stark “take the lowest possible estimate [of church adherence rates] and then become dogmatic about it, even though it is based largely on guesswork.” This seems about right to me. Unless one is ideologically committed to deemphasizing the influence of Christianity in the American founding, there is no good reason to assert that church adherence rates were 17 percent or lower in the era.

Scholars and popular authors intent on showing that founding-era Americans were not religious don’t simply rely on church adherence rates, they sometimes also reference contemporary accounts to support their position. For instance, Jon Butler quotes the French visitor Hector St. John de Crèvecoeur’s Letter to an American Famer (1782), where he observed that in the United States “all sects are mixed” and that “religious indifference is imperceptibly disseminated from one end of the continent to the other.” Complaints of this nature were common among visiting and recently immigrated European ministers, but rather than a lack of piety they may have indicated, as the Lutheran immigrant Henry Muhlenberg eventually concluded, the “European standards … do not always fit the complicated conditions in America.” In other words, these visitors interpreted the lack of religious establishments, commitment to specific denominations, and/or concern for the finer points of theology to reflect indifference rather than charity.

Relatedly, one must be careful not to read too much into laments by indisputably pious clergy about the troubles besetting Christianity in the era. For instance, Ezra Stiles wrote in his diary that only thirty of the eighty-five men receiving more than one hundred votes in Connecticut’s 1792 election were “religious characters.” Similarly, Charles Nisbet, the Presbyterian minister and president of Dickinson College, thought Christianity in Pennsylvania would be destroyed by the “equality and indifference of religious opinions that is established by our political constitutions.” Based on my extensive study of both states for my books on Connecticut’s Roger Sherman and Pennsylvania’s James Wilson, I can confidently say that reports of Christianity’s demise were greatly exaggerated by these men. More likely, it seems to me, Christians in these states did not believe, worship, and act exactly like Stiles and Nisbet thought they should. This hardly makes them “irreligious” or “unchurched.”

Estimating the percentage of Americans in the late eighteenth century who were “churched” is extremely difficult. But there is no excuse for scholars and popular writers to reiterate unsubstantiated estimates that grossly undercount the percentage of Americans who regularly went to church. There is every reason to believe that late eighteenth-century Americans were a churched people, and the percentage who attended evangelical churches would increase in the nineteenth century as a result of the Second Great Awakening.

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Evaluating Religious Liberty in the States https://lawliberty.org/evaluating-religious-liberty-in-the-states/ Thu, 13 Jul 2023 10:00:00 +0000 https://lawliberty.org/?p=48077 Religious liberty was so important to America’s founders that they often referred to it as a “sacred right.” Virtually all state constitutions adopted after America’s break from Great Britain contained provisions protecting this freedom, but the federal constitution of 1787 did not. Federalists insisted that such limits were not necessary because the national government was […]

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Religious liberty was so important to America’s founders that they often referred to it as a “sacred right.” Virtually all state constitutions adopted after America’s break from Great Britain contained provisions protecting this freedom, but the federal constitution of 1787 did not. Federalists insisted that such limits were not necessary because the national government was one of enumerated powers, but the Anti-Federalists were not convinced and so insisted on the addition of a bill of rights, one that begins with these now famous words: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . ..”

Because the second of these two provisions, the Free Exercise Clause, did not apply to the states until 1940, the extent to which citizens and organizations were free to act upon their religious convictions was primarily protected (or not) by state and local governments. Since the mid-twentieth century, Americans have often looked to the United States Supreme Court to protect their rights, but the Court’s 1990 decision in Employment Division v. Smith severely limited the Free Exercise Clause’s reach. Simply put, the justices announced that so long as a law is neutral and of general applicability, it does not violate the First Amendment even if it keeps someone from acting upon a sincerely held religious conviction.  

So, for instance, a law banning all adults from providing alcohol to minors is constitutional, even if it prevents a priest from celebrating the Eucharist with a sixteen-year-old. Similarly, a law prohibiting anyone from using peyote does not violate the First Amendment, even if it keeps some Native Americans from participating in traditional religious ceremonies.

In some important instances, the federal government has attempted to protect religious liberty against the states through statutory law, but by and large protections depend upon the states themselves. How well have they done?

To answer this question, the Center for Religion, Culture, and Democracy launched the Religious Liberty in the States project, with Sarah Estelle, an economist at Hope College, engaged to create an objective index that measures and compares how well states protect religious freedom. The first edition of the index and report was released last September, and the second edition of the index releases today, with a full academic report to come later this year. In its second year, the index considers 34 distinct items and 14 safeguards that are available in some but not all states. States are given a simple score of 1 for each item they protect, and a 0 if they fail to protect an item.

So, for instance, states that exempt clergy from prohibitions against serving alcohol to minors receive a single point on that item, whereas states that don’t receive a zero. Similarly, states that provide a religious exemption from vaccination requirements for school children receive a point, and states that do not receive no points. Aggregating fourteen safeguard scores produces one RLS index score per state. (An extensive discussion of the methodology is online at the RLS website and in the first year’s full report, available for download).

Significantly, the methodology of the RLS project is to allow states to identify for themselves when laws are religiously significant. Rather than starting with a checklist of what states ought to ideally do to protect religious liberty put together by a group of experts or advocates, RLS instead takes an inductive approach. When a state has taken action to protect the free exercise of religion and that action can be checked and verified against other states, that area becomes a candidate for inclusion in the RLS index. In this way, the frontier of safeguards measured by RLS is set by the states themselves. A score of 100% is thus eminently feasible, since any item included in the index is something that has been enacted by at least one, and most often many, other states.

Perhaps the most striking finding of RLS 2023 is how greatly states differ. Illinois does the best job of protecting religious liberty, having adopted 85% of the possible protections identified in RLS 2023. West Virginia, on the other hand, does the worst job, having adopted just 14% of potential safeguards. Most states are somewhere in the middle, although a majority of them are doing less than half of what they could be doing.

The inductive methodology of the RLS project also means that there are existing resources for states to improve their protections of free exercise. The RLS dataset includes links to specific laws that have been identified and scored for each state. This permits legislators in a state that lacks a particular protection to easily consult laws in other states if they desire to adopt a similar protection for their state.

Religious liberty must protect more than the freedom to worship, but freedom to worship must be protected. Five of the thirty-four items considered in this year’s study involve clergy or religious ceremonies: (1) protecting the ability of clerics to decline to officiate at a marriage ceremony to which they have religious objections, (2) exempting clergy from mandatory reporting laws to protect clergy-penitent privilege, (3) permitting clerics to serve alcohol (wine) to minors in religious ceremonies, (4) protecting the ability of minors to consume alcohol in such ceremonies, and (5) permitting students to miss school for religious holidays.

Even though federal laws and judicial decisions tend to dominate the news cycle, there is a great deal of room for individual states to act to safeguard the free exercise of religion.

Most religious liberty cases do not involve worship, but instead concern neutral laws or policies that keep citizens from being able to act on their religious convictions or require citizens to violate those beliefs. One way states have attempted to protect these citizens is by passing Religious Freedom Restoration Acts. These statutes prohibit governments from restricting religious liberty unless they have a compelling reason and do so in the least restrictive means possible. Currently, 23 states have this important safeguard.

In an ideal world, protections against state action in addition to a RFRA would not be necessary, but in the actual world they are important as activist judges are far too prone to identify compelling interests where they do not exist. For instance, in no reasonable universe did Washington State have a compelling interest in requiring a florist, Barronelle Stutzman, to participate in a marriage ceremony to which she had sincere religious objections. Nevertheless, from the lower court judge to the state supreme court, jurists in the state identified such an interest. (Washington does not have a RFRA, but it ostensibly continues to interpret the religious liberty provision in its constitution to require strict scrutiny. The recent case 303 Creative interprets the Free Speech Clause to protect Stutzman and other creative professionals, but similar conflicts not obviously involving speech will still arise).  

A virtue of specific protections is that they leave little room for judicial discretion. Must a cleric in Washington State participate in a same-sex wedding ceremony if he or she has religious objections to doing so? One can easily imagine an activist judge determining that the State has a compelling interest in forcing them to participate, but fortunately Washington specifically protects his or her ability to decline to do so: “No regularly licensed or ordained minister or any priest, imam, rabbi, or similar official of any religious organization is required to solemnize or recognize any marriage.”

It is possible, of course, to quibble with individual items or safeguards in Religious Liberty in the States. That is why the Center for Religion, Culture, and Democracy has made the full data set available and manipulable. We encourage others with an interest in comparing religious liberty to add to or subtract from the index, or perhaps to give different safeguards different weights. The project will continue to evolve, with the next report being released a year from now. We plan to continue to identify and add protections, and welcome suggestions about additional items that states may protect.

Even though federal laws and judicial decisions tend to dominate the news cycle, there is a great deal of room for individual states to act to safeguard the free exercise of religion. The RLS project focuses on identifying and tracking these safeguards through time, thereby creating opportunities for this critically important, and too often overlooked, space to be better understood. Religious Liberty in the States is an academic project, but it is not only an academic project. It is our hope it will encourage states to better protect what the founders called the sacred right of conscience for all Americans.

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Supreme Failures from the Court https://lawliberty.org/supreme-failures-from-the-court/ Thu, 26 Jan 2023 11:00:00 +0000 https://lawliberty.org/?p=41808 It should come as no surprise that many conservative legal thinkers consider Roe v. Wade to be among the worst decisions ever handed down by the Supreme Court. The fiftieth anniversary of Roe is also the first since it was overturned by Dobbs v. Jackson Women’s Health. But many terrible decisions remain. The anniversary prompted […]

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It should come as no surprise that many conservative legal thinkers consider Roe v. Wade to be among the worst decisions ever handed down by the Supreme Court. The fiftieth anniversary of Roe is also the first since it was overturned by Dobbs v. Jackson Women’s Health. But many terrible decisions remain. The anniversary prompted us to ask: What are the worst of the worst?

We decided to ask self-identified conservative and libertarian legal scholars to send us their own lists of what they considered to be the Court’s worst opinions. We then compiled a list of the twenty cases mentioned the most often and sent it back to scholars, asking them to rank the worst opinion, the second worst, etc. We gave every first-place vote ten points, every second-place vote nine points, and so forth. In all, we surveyed more than 100 leading conservative and libertarian legal scholars and received about fifty responses. There were some disagreements among the respondents, but there was strikingly widespread agreement about the very worst opinions. 

Overall, our Dishonor Roll of opinions fell into four broad conceptual groups, the first of which included decisions that denied the full humanity of others. A second group represented the abuse of judicial power through the creation of nonexistent constitutional rights. Opinions in the third group failed to recognize or enforce limits on government power that actually are in the Constitution. And a final group consisted of opinions fundamentally misunderstanding the relationship of church and state and the contours of religious freedom. There is some overlap of opinions that could fit into more than one of these groups. Arguably all, or nearly all, could be said to fall into either the second or third—imposing what is not in the Constitution or failing to enforce what is. But we invited participants in the survey to comment, if they wished, on why they thought these were judicial blunders, and our groupings represent the reasons they gave. 

Dred Scott is widely considered to have exacerbated the sectional conflict that Taney and the majority probably thought they were ameliorating, and to have hastened the onset of the Civil War.

Leading the first group was the worst disaster in the Court’s history: Dred Scott v. Sandford (1857). The majority opinion, by Chief Justice Roger Taney, held that African-Americans “are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.” In other words, African-Americans, whether enslaved or free, could never be citizens of the United States and their rights need not be respected as a matter of federal law. Moreover, Dred Scott held that Congress had no power to prohibit the spread of slavery into federal territories. As Abraham Lincoln recognized, the ruling jeopardized the nation’s commitment to its founding principles of equality and liberty and threatened even the people’s right to rule themselves. Dred Scott is widely considered to have exacerbated the sectional conflict that Taney and the majority probably thought they were ameliorating, and to have hastened the onset of the Civil War.

Fortunately, Dred Scott was overturned by the Thirteenth and Fourteenth Amendments to the Constitution (one of four Supreme Court decisions to be overturned in this way). These amendments did much to recognize the majestic principles, articulated in the Declaration of Independence, that all persons are “created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.” 

Alas, the justices ignored this principle again when they decided what our scholars considered to be the second worst majority opinion ever handed down by the Supreme Court: Roe v. Wade (1973). In addition to conjuring a virtually unlimited right to abortion out of its own musings about “privacy,” the majority again determined, as in Dred Scott, that some citizens are not quite human and therefore unworthy of being protected as a matter of law. And, in Planned Parenthood v. Casey (1992, number 4 on our list), the controlling “joint opinion” of Justices O’Connor, Kennedy, and Souter incomprehensibly conceded Roe’s lack of coherence as an exercise of constitutional reasoning, yet doubled down on the essential holding, shoring up the fatally flawed precedent with the bizarre statement: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” This inanity proved to have far-reaching implications over the next quarter century.

Dred Scott, Roe, and Casey stand for the proposition that some citizens do not need to be fully protected as a matter of law. According to our conservative and libertarian scholars, four additional cases reflect the kindred failure to honor the fundamental principle of equal human dignity:

Plessy v. Ferguson (1896, our number 3), permitting states to segregate and discriminate against African Americans;

Buck v. Bell (1927, number 8), upholding involuntary sterilization because “three generations of imbeciles are enough”;

Korematsu v. United States (1944, number 9), upholding the internment of Japanese-Americans, including U.S. citizens, during the Second World War; and

Regents of the University of California v. Bakke (1978, number 12), in which the decisive opinion of Justice Lewis Powell brought about 45 years of chicanery about race-based university admissions in the name of “diversity.”

One would expect conservative and progressive legal scholars to differ widely on the Court’s worst decisions, but we think it striking that progressives would almost certainly rank Dred Scott, Plessy, Buck, and Korematsu as among the justices’ worst opinions—while they are almost certainly undisturbed by Bakke and its progeny, and fear it will be overturned in the Court’s current term. To be sure, many jurisprudential liberals disagree with conservatives about whether there is a constitutional right to abortion, but many progressives have long recognized that Roe had no sound basis in the Constitution.

The second group of cases in our Dishonor Roll comprises five opinions in which the Court invented rights nowhere to be found in the Constitution, or (in one case) presaged a jurisprudential hierarchy in which certain “preferred freedoms” of the left would outrank others, notwithstanding their equal status in the Constitution. (Dred Scott, Roe, and Casey could all fit in the “invented rights” group too, of course.) In chronological order, the first of these “invented rights” cases, which ultimately gave its name to a whole era in Supreme Court history, is Lochner v. New York (1905), in which the majority (per Justice Rufus Peckham) averred that a substantive reading of the Due Process Clause protected a “liberty of contract” capable of defeating “unreasonable” regulations of employer–employee relations. (We are certain that some of our more libertarian respondents do not disapprove of Lochner, yet overall it came in at number 14.) 

Conservatives also rank three cases involving privacy and LGBT rights as among the Court’s worst decisions: Griswold v. Connecticut (1965, our number 6), Lawrence v. Texas (2003, number 10), and Obergefell v. Hodges (2015, number 5). The first two rulings invalidated statutes prohibiting the use of contraceptives and homosexual sodomy, and the third required legal recognition of same-sex marriages. Some of our respondents are surely opponents of same-sex marriage; few would wish to criminalize anyone’s sexual activity; fewer still (perhaps none) would seek to restore the prohibition of contraceptives. We surmise that our respondents’ criticism of these decisions probably has less to do with the outcomes and far more to do with the fanciful legal reasoning used by the justices who reached them.

A final case in this group is United States v. Carolene Products Co. (1938, our case number 18), an otherwise obscure case well-known among scholars for its seminal footnote 4, where Justice Harlan Fiske Stone sketched a jurisprudence of the future in which the Court’s usual presumption of the constitutionality of challenged laws and policies would be relaxed, or even substantially reversed, in cases involving civil liberties and “insular minorities.” 

The third group in our Dishonor Roll consists of those opinions in which the Court, in our scholars’ view, failed to enforce constitutional rights or other limits on government power (a category into which Plessy, Buck, and Korematsu could also fall). One case here made the top ten, Wickard v. Filburn (1942, our number 7). The majority opinion expanded Article I, Section 8’s Commerce Clause to include practically all economic activity, thus opening the door to permit Congress to regulate almost anything it desires. Acting similarly with respect to state power, Home Building & Loan v. Blaisdell (1934, number 15) gutted the protections of the Contract Clause of Article I, section 10, while Kelo v. City of New London (2005, number 17) made a mockery of the “public use” requirement that the Takings Clause of the Fifth Amendment imposes on the use of eminent domain.

A final case, and the oldest in this group, is the opinion of Justice Samuel Miller in the Slaughterhouse Cases (1873, our number 11). Whatever their views of the decision’s holding that Louisiana could establish a corporate monopoly in the butcher trade in New Orleans, Miller’s opinion is widely viewed as having fatally obscured the intended meaning of the then-new Fourteenth Amendment’s Privileges or Immunities Clause.

The last group of cases identified as among the Twenty Worst are those in which the majority, in our scholars’ view, misconstrued the religion clauses of the First Amendment: Everson v. Board of Education (1947, our number 13), Engel v. Vitale (1962, number 19), Lemon v. Kurtzman (1971, number 16), and Employment Division v. Smith (1990, number 20). The Everson opinion of Justice Hugo Black, while upholding a New Jersey town’s reimbursement of parents for bus fare to their children’s parochial schools, laid down a “strict separationist” understanding of the First Amendment’s Establishment Clause that many scholars today recognize as textually and historically insupportable. Engel took the predictable next step, following Everson’s logic, of overturning the practice of teacher-led prayer (however nonsectarian) in public schools; and Lemon established an unworkable, ahistorical three-part test for assessing challenged legislation under the Establishment Clause. Finally, Smith—a case whose low score shows how much it still engenders disagreement among conservatives today—made the final position in our Worst Twenty for Justice Antonin Scalia’s rejection, in a case involving religious use of the drug peyote, of the jurisprudence of exemptions from generally applicable laws under the Free Exercise Clause.

Reasonable people, including legal scholars, disagree about which Supreme Court decisions are to be praised and which are to be condemned. And yet it seems clear that history will not judge well those jurists (and legislators) who have denied that all persons are created equal and deserve the full protection of the law. Nor will it be kind to justices who invented rights not found in the Constitution, failed to protect those that are in it, or misunderstood the proper relationship of religious faith and public policy under our Constitution.

Survey Results – Twenty worst Supreme Court decisions of all time.

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Breaking Faith https://lawliberty.org/breaking-the-seal-of-confession/ Wed, 27 Jan 2021 11:00:00 +0000 https://lawliberty.org/?p=20732 Citizens have a general duty to testify if called as a witness in a civil or criminal case. Individuals who refuse to do so may find themselves in contempt of court and incarcerated until they agree to take the stand. However, the common law has long recognized that some relationships require confidentiality, including attorney-client, spousal, […]

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Citizens have a general duty to testify if called as a witness in a civil or criminal case. Individuals who refuse to do so may find themselves in contempt of court and incarcerated until they agree to take the stand. However, the common law has long recognized that some relationships require confidentiality, including attorney-client, spousal, doctor/psychologist-patient, and clergy-penitent. Usually, the person communicating information may prohibit the recipient from divulging it. So, for instance, a client may prohibit her lawyer from testifying about a crime she committed and described to the attorney. But the client may testify about what she told her attorney, or permit the attorney to testify about what she told him. 

Clergy-Penitent Privilege

Many religious traditions encourage members to confess sins to religious leaders, but few take the practice as seriously as the Roman Catholic Church. Indeed, Catholics believe that the Sacrament of Reconciliation is, as the name makes clear, a sacrament. Moreover, contemporary Catholic canon law states that “the sacramental seal is inviolable; therefore it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason.” The penalty for purposefully violating this law is automatic excommunication. Canon law also prohibits a priest from breaking the seal of confession even if the penitent gives him permission to do so. (As a matter of state law, the person who “owns” this privilege and when varies.)

Influenced by canon law, early common law judges held that a priest could never be forced to violate the confessional seal. The Protestant Reformers reduced the number of sacraments from seven to two (baptism and the Lord’s Supper, the only ones for which they found biblical warrant). Because they associated the Sacrament of Reconciliation with Catholicism, English common lawyers abandoned clergy-penitent privilege in the seventeenth century. The privilege was not recognized in early American common or statutory law.

In 1813, a New York City priest was ordered to testify about a thief who had confessed his crime. The priest refused to do so, and the Court of General Sessions of the City of New York ruled in People v. Phillips that the religious liberty provision of New York’s constitution protected him. Four years later, a different New York court held that the privilege did not apply to a Protestant minister, in part because confession is not considered to be a sacrament by Protestants. In 1828, the New York State legislature passed a law protecting clergy-penitent privilege for Catholics and Protestants alike—the first statute of its kind in the United States. Today, every state and the federal government recognize this privilege.

Mandatory Reporters

Over the past two decades, many states have expanded the number of professionals who are mandated to report child abuse. Currently, clergy are mandatory reporters in 28 states, and 18 states require any person (including clergy) who suspects child abuse to report it. These requirements present little cause for concern if a minister observes child abuse in the course of ordinary life, but matters get complicated if a parishioner reveals information related to child abuse when receiving religious counseling or participating in the sacrament of confession. In 24 states, clergy are exempted from the reporting requirement if, in the language of a North Dakota statute, “the knowledge or suspicion is derived from information received in the capacity of spiritual adviser.” 

Such religious exemptions are controversial. Indeed, legislators in North Dakota recently introduced a bill to remove this religious accommodation. If this bill passes, North Dakota will become the seventh state to remove this sort of exemption. This means that priests and other clerics who learn of child abuse in the course of their religious duties will be forced to report the abuse or face fines or imprisonment. Although the sacrament of confession is often associated with the Roman Catholic Church, most religious traditions have analogous practices. The movement to require clergy to reveal information confessed to them raises important religious liberty concerns. 

The Sacred Right of Conscience

Unlike other confidential relationships, the clergy-penitent privilege is mandated by the First Amendment and related state constitutional provisions and statutes (as the Court of General Sessions of the City of New York recognized as early as 1813). Surely religious freedom requires that churches and other religious entities must be able to determine for themselves what sacraments they will administer, how they will administer them, and what a cleric may or may not do with information received during the Sacrament of Reconciliation and related practices. 

Protecting the denominations that value the confessional seal may run afoul of the Court’s ahistorical Lemon test, but in no way, shape, or form does it violate the original understanding of the Establishment Clause. 

These protections, like the Supreme Court’s church autonomy doctrine, are grounded in both the Free Exercise and Establishment Clauses (see, for instance, Hosanna-Tabor v. EEOC [2012]). United States Supreme Court justices have mentioned the clergy-penitent privilege in dicta three times, but have never ruled that it is required by the First Amendment (see, for instance, Totten v. United States, 92 US 105, 107 [1875]). 

Under Employment Division v. Smith (1990), a neutral law of general applicability that requires everyone without exception to bring forward evidence of child abuse may survive a Free Exercise Clause challenge. But several states, including Rhode Island and Tennessee, reject clergy-penitent privilege but continue to honor attorney-client confidentiality in cases involving child abuse, so the laws in these states may not be considered to be neutral and would be subject to strict scrutiny. And if the clergy-penitent privilege is protected by a hybrid right (Free Exercise and Establishment Clauses), strict scrutiny should be required under the Smith standard. Even so, governments might successfully argue that they have a compelling interest in requiring clergy to reveal confidential communications with respect to child abuse and other serious crimes. 

Not all religious traditions hold the seal of confession to be as absolute as the Roman Catholic Church. Some Protestant clergy have no objection to reporting evidence of child abuse obtained during the course of religious counseling, prayer meetings, etc., and some Jewish religious leaders have argued that rabbis have an obligation to reveal such information. One creative compromise is to protect only clergy who believe they have a sacred obligation to preserve confidentiality. Louisiana, for instance, requires clergy to report cases of child abuse, but a cleric

is not required to report a confidential communication … from a person to a member of the clergy who, in the course of the discipline or practice of that church, denomination, or organization, is authorized or accustomed to hearing confidential communications, and under the discipline or tenets of the church, denomination, or organization has a duty to keep such communications confidential.

In other words, clergy have a general duty to report confidential communications that give evidence of child abuse unless they are strictly prohibited from doing so by their churches, denominations, etc. Separationists may object that this protection violates the Establishment Clause, but it is no more problematic than exempting only religious pacifists from military service. Such practices may run afoul of the Court’s ahistorical Lemon test, but in no way, shape, or form do they violate the original understanding of the Establishment Clause

Prudential Concerns

Attempting to require priests to break the confessional seal could have the unintended consequence of deterring child abusers from seeking spiritual guidance or forgiveness. If someone feels compelled to confess this sin, he may well accept guidance from the priest to sin no more and even to turn himself in. Even if some clerics refuse to obey these mandates, their mere existence may deter would-be penitents.

Religious liberty is not a trump card that wins every time. If states can demonstrate that they have compelling reasons to violate the ancient protection of clergy-penitent privilege—a protection required by the religion clauses of the First Amendment—they could legally justify doing so. But with respect to priests and other clerics who refuse to obey them, these mandates will do no good and may produce added harm.

Religious liberty is a central principle of America’s constitutional order. State officials should not interfere with the clergy-penitent privilege unless they have excellent reasons for doing so, and even in this case they should follow Louisiana’s example of protecting clergy, such as Roman Catholic priests, who are “absolutely forbidden” to “betray in any way a penitent in words or in any manner and for any reason.”

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The Little Sisters Win—For Now https://lawliberty.org/the-little-sisters-win-for-now/ Mon, 13 Jul 2020 10:00:00 +0000 https://lawliberty.org/?p=15645 Some of the reactions to the Supreme Court’s recent decision in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania could lead unsuspecting observers to believe that the Trump administration has managed to bring America into the sort of dystopian world envisioned by Margaret Atwood’s The Handmaid’s Tale. But does the decision […]

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Some of the reactions to the Supreme Court’s recent decision in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania could lead unsuspecting observers to believe that the Trump administration has managed to bring America into the sort of dystopian world envisioned by Margaret Atwood’s The Handmaid’s Tale. But does the decision really “endanger [the] reproductive health of millions,” as the National Organization of Women claims? Such a conclusion ignores many facts, including the reality that the Trump administration built on protections enacted or supported by earlier Democratic administrations and that the rules in question may be altered by Congress or future presidents. Most importantly, no one is attempting to deny anyone access to birth control; the only issue is whether some employers must pay for or be complicit in providing contraceptive coverage when they have religious or moral objections to doing so.

Brief History of the Contraceptive Mandate

In 2010, Congress passed the Patient Protection and Affordable Care Act (ACA). In the constitutional order envisioned by America’s founders, the law clearly exceeds Congress’s delegated powers. But that ship sailed in 1937. Even so, America’s founders would have expected Congress to specify what the law required. Alas, that ship has sailed as well.

Rather than delineating ACA’s requirements, Congress left many details up to administrative agencies. Congress did mandate that organizations with 50 or more employees provide women with “preventive care and screening” without “any cost sharing requirements,” but it charged the Health Resources and Services Administration and other agencies with the task of spelling out the details. Under Obama-era rules, employers were required to offer 20 contraceptive methods, including four that may cause abortions. Recognizing that some organizations had religious objections to providing such coverage, the Obama administration exempted religious houses of worship and denominations from these requirements.

Many religious organizations did not fall under this first exemption, including the Little Sisters of the Poor, an “international congregation of Roman Catholic women” that runs homes for the elderly. In response to complaints that such groups should be protected, Obama administration officials issued additional rules exempting them from the contraceptive mandate provided they self-certify that they meet certain criteria. The Little Sisters of the Poor challenged this certification requirement, arguing that it forced them to take “actions that directly cause others to provide contraception or appear to participate in the Departments’ delivery scheme.” Doing so, they contended, would violate their sincerely held religious beliefs.

The Obama administration was willing to protect churches and religious organizations, but not businesses. It argued that such entities do not have the right to religious liberty. The United States Supreme Court rejected this position in Burwell v. Hobby Lobby Stores (2014). The majority held that the Religious Freedom Restoration Act of 1993, which was passed without objection in the House, 97-3 in the Senate, and was signed into law by President Bill Clinton, protected the owners of a closely held corporation from having to provide abortifacients to employees (the protestant owners of Hobby Lobby did not object to other forms of birth control).

Two years after this decision, the Supreme Court remanded the Little Sisters case to lower courts in the hopes that the parties could find a compromise. Litigants were unable to reach an agreement, so in 2017 the Trump administration resolved the conflict by issuing new rules exempting organizations that had religious or moral objections from the contraceptive mandate. The states of Pennsylvania and New Jersey objected that these rules violated both the ACA and the Administrative Procedure Act (APA), the federal statute that regulates administrative lawmaking.

Opinions of the Court

In Little Sisters of the Poor v. Pennsylvania, five justices, in an opinion authored by Justice Thomas, held that “the plain language of the statute [ACA] clearly allows the Departments to create the preventative care standards as well as the religious and moral exemptions.” As well, they found no reason to believe that the Trump administration violated the Administrative Procedure Act. Justices Kagan and Breyer concurred with the majority, although they suggested that lower courts might later find the rules to be “arbitrary and capricious” and thus violate the APA.

The majority’s decision is good news for organizations that have objections to providing, or being complicit in providing, certain forms of contraception to their employees. But celebrations may be short-lived as nothing prohibits Congress or, more likely, a future presidential administration, from revising these rules to require religious organizations to choose between their religious convictions and their ministries.

Religious liberty is not a trump card that must win every time. But it is difficult to imagine an interest compelling enough to force the Little Sisters of the Poor to violate their religious convictions regarding birth control.

More encouraging for those who believe that religious liberty should be robustly protected is Justice Alito’s concurring opinion, which was joined by Justice Gorsuch. He relied heavily on the Religious Freedom Restoration Act, which stipulates that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” except “if it demonstrates that application of the burden to the person” is “in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.”

Justice Alito contended, accurately in my estimation, that the regulations in question created a substantial burden on the ability of Little Sisters to freely exercise their faith. It is also difficult to show that there is a “compelling interest” in requiring every employer to provide free contraceptive coverage, as both Congress and the Obama Administration exempted many businesses from this burden. And even if there was a compelling interest, there are far less restrictive ways of providing such coverage. In the final analysis, RFRA clearly requires “an exemption for the Little Sisters and any other employer with a similar objection to what has been called the accommodation to the contraceptive mandate.”  

Justice Ginsburg, in a dissent joined by Sonia Sotomayor, complained that “[t]oday, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.” She emphasized that 70,000 to 126,000 women could lose administratively mandated contraception coverage as a result of the new rules (126,000 is a far cry from the “millions” that NOW thinks are in danger, but what are a few decimal points among friends?). Yet no one is forced to work for these organizations and, at worst, these women are returned to the situation they would have found themselves in 2009. This is nowhere near the Margaret Atwood-inspired headlines and coverage offered by NOW, Slate, NBC, and other organizations.

This decision points to a dysfunctional constitutional order. If Congress respected the founders’ Constitution, it wouldn’t pass legislation in this area. That Pennsylvania and New Jersey used valuable resources to challenge federal administrative rules rather than to provide free contraception directly to women whom they believe need it suggests that something is amiss with our current understanding of federalism.

It is perhaps too late in the day to complain about Congressional overreach or the rise of the administrative state. Fortunately, from the early colonies to the present day, many civic leaders have dedicated themselves to protecting the ability of Americans to act upon their religious convictions. When neutral laws of general applicability keep citizens or organizations from acting on their sincerely held religious convictions, these leaders have crafted exemptions or accommodations to allow them to freely exercise their faiths. With respect to the ACA, exemptions were created by the Obama administration, and they were expanded by the Trump administration. One may argue that the latter went too far, but it was hardly doing something unprecedented.

Third Party Harms?

It has become increasingly popular for progressive law professors and activists to complain that religious liberty protections are inappropriate and, perhaps, violate the Establishment Clause if they cause “third-party harms.” Justice Ginsburg picked up this torch in her dissent. But concerns about third-party harms are nothing new. For instance, religious pacifists have been granted exemptions from military service since colonial times, and surely increasing non-pacifists’ chances of being drafted constitutes a harm to non-pacifists who do not want to serve in the military. Yet over a hundred years ago, the Supreme Court held that such exemptions do not violate the Establishment Clause. Indeed, justices have rejected Establishment Clause challenges to every religious accommodation case to reach the Court, with one exception—Estate of Thornton v. Caldor (1984). It may come as no surprise that this is the only precedent Justice Ginsburg cited to support her position.

Consider as well the relative weight of “harms” in other areas of law, such as freedom of speech. The Supreme Court has said there is a constitutional right to burn the American flag as a form of political protest and has protected demonstrations by members of the Westboro Baptist Church at military funerals despite the great harm such acts cause to veterans and other citizens. We should grieve and object to such actions, but we would lose much if we sacrificed the freedom of speech to protect sensitive observers from these offensive acts.  

Religious Liberty Should be Robustly Protected

Religious liberty is not a trump card that must win every time. Legislatures should ban religiously motivated actions when they have a compelling reason to do so. And they may mandate positive acts, such as requiring parents to provide medical treatment for their children even if they have religious objections to doing so. But it is difficult to imagine an interest compelling enough to force the Little Sisters of the Poor to violate their religious convictions regarding birth control. If state governments believe strongly that all women should have access to free contraception, they should provide it for them at their own expense rather than attempt to coerce organizations like the Little Sisters of the Poor.

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Can Blaine’s Descendants Block School Choice? https://lawliberty.org/can-blaines-descendants-block-school-choice/ Wed, 29 Jan 2020 00:00:00 +0000 https://lawliberty.org/can-blaines-descendants-block-school-choice/ There is every reason to conclude that Montana's Blaine Amendment violates the Free Exercise Clause.

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Last Wednesday, the United States Supreme Court heard oral arguments in Espinoza v. Montana Department of Revenue. The case has many moving parts, but at its core, it requires justices to determine if a state may discriminate on the basis of religion. The litigation centers on Montana’s Blaine Amendment—a constitutional amendment which forbids state funds from going to religious organizations; but this is a Blaine Amendment with an interesting twist.

Blaine Amendments: Born in Anti-Catholic Bigotry

In his wonderful book Separation of Church and State, Philip Hamburger demonstrates that anti-Catholic animus contributed significantly to the post-Civil War movement to separate church and state. As I have noted in this space, in the 19th century, this separation was usually between states and “sectarian” Catholic institutions and programs. “Non-sectarian” Protestant institutions and programs were largely exempt.

At the national level, the most notable manifestation of this anti-Catholic animus was the constitutional amendment proposed by Representative James Blaine (R-Maine) to prevent, among other things, public funding of schools “under the control of any religious sect.” Proposed in 1875, the amendment passed overwhelmingly in the House but did not receive the necessary two-thirds majority in the Senate. However, many states soon amended their constitutions to include similar amendments, and Congress sometimes required states admitted to the Union after 1875 to include Blaine Amendments in their constitutions. Such was the case with Montana.

Montana’s 1899 constitution contains a Blaine Amendment that stipulates:

The legislature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.

There are excellent reasons to conclude that anti-Catholic animus was a driving force behind this amendment. But here is the twist: in 1972, Montana held a convention that revised its constitution, and the state’s voters approved it in the same year. In doing so, they reauthorized the amendment, adding only a line stipulating that it “shall not apply to funds from federal sources provided to the state for the express purpose of distribution to non-public education.” There is little evidence that these convention delegates or voters were motivated by anti-Catholic animus.

Discriminating Against Religious Schools

Espinoza v. Montana involves a 2015 program created by the Montana legislature “to provide parental and student choice in education.” It allowed citizens and businesses to make donations to organizations that would then provide scholarships to students attending private schools. Donors received a tax credit equal to the amount they donated—up to a limit of $150 per year. Students attending 13 private schools, 12 of which are religious, benefited from this program. Shortly after the program began, the state’s Department of Revenue determined that the use of these scholarships at religious schools violated the state’s Blaine Amendment. Parents of students participating in the program appealed this rule to the Montana Supreme Court, which invalidated the entire program because of this amendment.

In oral arguments, Justice Kavanaugh noted that Blaine Amendments were rooted “in grotesque religious bigotry against Catholics.” Adam Unikowsky, who argued on behalf of the state, agreed that “in the 1880s, there was undoubtedly grotesque religious bigotry against…Catholics.” However, he contended that when the amendment was reauthorized in 1972 that there was no “evidence whatsoever of any anti-religious bigotry.”

Justice Sotomayor made a similar point, contending that the Blaine Amendment’s 1972 advocates were joining:

a long history of people [including the founding fathers and James Madison] who for non-discriminatory reasons, but for reasons related to their belief in the separation of church and state…have taken the position that the state should not give money to religious institutions.

Supporters of the 1972 amendment may not have been motivated by anti-Catholic animus, but neither were they principled supporters of church-state separation. Recall that they added a provision to the 1899 amendment that permits federal funds flowing through the state to go to private schools. (As an aside, Justice Sotomayor, like other separationist justices, mischaracterizes the founders’ approach to church-state relations. I have addressed such arguments in this space and in Did America Have a Christian Founding?)

In Masterpiece Cakeshop v. Colorado Civil Rights Commission, seven justices agreed that a state commission acted with such obvious animus against a baker’s religious convictions that it violated the First Amendment’s Free Exercise Clause when it fined him for refusing to provide a cake for a same-sex wedding celebration. Presumably, a state constitutional provision motivated by similar animus would be likewise unconstitutional. This logic would invalidate many Blaine Amendments, but perhaps not the one in question as justices might conclude that its reenactment in 1972 “cleanses” it from its unsavory origins.

But is discrimination on the basis of religion permissible in the absence of animus? In the 2017 case of Trinity Lutheran v. Comer, the Supreme Court ruled 7-2 that Missouri’s Blaine Amendment could not be used to prohibit a Lutheran preschool from participating in a state program that provides safe playground surfaces. Although the anti-Catholic origins of the Blaine Amendments were raised in briefs filed in that case and in its oral arguments, they played no role in the Court’s opinion. Instead, the Court held that the Free Exercise Clause does not permit a state to discriminate on the basis of religion unless it has a compelling interest to do so

This opinion was referenced multiple times in the Espinoza oral arguments. Indeed, Richard Komer, representing the parents, opened by observing that “the Blaine Amendment discriminates against religious conduct, beliefs, and status in violation of the free-exercise clause under Trinity Lutheran.” Jeffrey Wall, Principal Deputy Solicitor General of the United States who argued as an amicus in favor of the parents, regularly referenced the decision as well.

Mr. Unikowsky understandably tried to distinguish the present case from Trinity Lutheran, most notably by arguing that the latter case involved a “completely non-religious purpose” whereas Montana is refusing to fund a religious activity. This distinction did not seem to convince justices Alito and Kavanaugh who observed, respectively, that “it’s hard to see that that’s much different from Trinity Lutheran” and “isn’t [Montana’s action] a straight violation of the Trinity Lutheran principle?” Similarly, in their concurrence in Trinity Lutheran, Justices Gorsuch and Thomas called into question the usefulness of this sort of distinction.

Based on their comments in this case and their votes/opinions in Trinity Lutheran, it seems likely that Justices Alito, Kavanaugh, Gorsuch, and Thomas will extend this case to prohibit states from discriminating against religious schools. Chief Justice John Roberts’ opinion in Trinity Lutheran (in)famously limited the decision to religious discrimination “with respect to playground resurfacing.” He will now have to decide if states can discriminate on the basis of religion with respect to schools. It seems unlikely that he will answer that question with a “yes.”

Perhaps seeing the handwriting on the wall regarding the merits of the case, Justices Ginsburg, Sotomayor, and Kagan pushed Mr. Komer repeatedly on whether the petitioners had proper standing to challenge the Montana Supreme Court’s decision. The parents, they suggested, are not the proper parties to bring the case as it was the children and/or schools that received the benefits. Moreover, they noted that the parents in question are not taxpayers.

In a similar vein, Justice Breyer seemed to sense that the state would lose on the merits and so appeared to be looking for a way to limit the scope of the decision. He repeatedly asked if a state would have to fund religious schools if it also funded public schools. Both Mr. Wall and Mr. Komer insisted that they were not seeking this result.

The Bigger Picture

Justice Breyer’s concern points to a broader problem. Public schools today are not religious. Many states provide support to only public schools and, in some cases, secular charter schools. These arrangements clearly discriminate against families who believe that they have an obligation to provide a religious education for their children. Even if this is constitutionally permissible, it is unjust.

An ideal but unlikely solution to this problem would be for states to abolish public schools and provide parents with vouchers to permit them to send their children to schools of their choice. A less ideal but more realistic solution is for states to maintain a system of public schools but to adopt programs that make it possible for parents to send their children to secular or religious private schools. Montana, like 18 other states, adopted a plan to do just that.

It is not unreasonable for the Montana Supreme Court to conclude that the state’s scholarship program violates the state’s Blaine Amendment, but there is every reason to conclude that the State’s Blaine Amendment violates the Free Exercise Clause. States should not be able to discriminate on the basis of religion unless they have a compelling reason to do so, and there is certainly no compelling reason in this case.

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How Old Does a Monument Need to Be? https://lawliberty.org/how-old-does-a-monument-need-to-be/ Thu, 24 Oct 2019 00:00:00 +0000 https://lawliberty.org/how-old-does-a-monument-need-to-be/   In American Legion v. American Humanist Association (2019), justices of the Supreme Court held by a 7 to 2 vote that an “immense Latin cross [that] stands on a traffic island at the center of a busy three-way intersection in Bladensburg, Maryland” did not violate the First Amendment. The memorial, known as the Peace […]

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In American Legion v. American Humanist Association (2019), justices of the Supreme Court held by a 7 to 2 vote that an “immense Latin cross [that] stands on a traffic island at the center of a busy three-way intersection in Bladensburg, Maryland” did not violate the First Amendment. The memorial, known as the Peace Cross, was erected in 1925. A few weeks after the June 20  decision, the United States Court of Appeals for the Third Circuit rejected a Freedom from Religion Foundation challenge to a seal featuring a Latin cross that was adopted by Lehigh County, Pennsylvania in 1944.

Those who would remove religion from the public square have suggested that these monuments are, in the words of Garrett Epps, “Fine Now—If They’re Old.” Put another way, if a religious symbol, image, or inscription on public property has been there for a long time, it is constitutional; if was adopted recently, it is not. Such an approach may be reasonably attributed to Justice Stephen Breyer, who stated in the Peace Cross oral arguments that: “History counts. And so, yes, okay, but no more.” His concurring opinion in the case, which was joined by Justice Elena Kagan, suggests that this may well be the position of both justices.

Where Are We to Draw the Chronological Line?

There are several problems with this proposed rule of law. First, how old does a monument need to be? Must it have reached the age of 90? Or would it be 50? Or maybe 20? Or perhaps only future uses of religious symbols on public property are prohibited?

Note that any of these possibilities would favor Christianity over other faiths. In the late 18th century, approximately 98 percent of white Americans were Protestants, 2 percent were Roman Catholics, and there were approximately 2,000 Jews in a handful of cities. By the early 20th century, the percentage of Catholics and Jews had grown significantly, but at least 95 percent of Americans still identified themselves as Christians. Governments regularly utilized Christian symbols, language, and images in public buildings and monuments. The Peace Cross is far from the only public monument to utilize this profoundly Christian symbol.

(I agree that symbols can have multiple meanings, or take on new meanings, but there is merit in Justices Ruth Bader Ginsburg and Sonia Sotomayor’s observation that “The Latin cross is the foremost symbol of the Christian faith, embodying the ‘central theological claim of Christianity: that the son of God died on the cross, that he rose from the dead, and that his death and resurrection offer the possibility of eternal life.’”)

It was not until after the First World War that the tombstones of Jewish soldiers buried in national cemeteries could include a Star of David rather than a Latin Cross. Today, the grave-markers of Muslim military members can include the Crescent and Star, those of Baha’i military members can include that faith’s Enneagram (nine-pointed star), and so on. Few activist groups challenge the use of religious symbols in this context.

But when communities choose to adopt religious symbols, images, and inscriptions in other public settings, they can run into trouble. In 2012, for instance, the state of Ohio approved a Holocaust and Liberators Memorial, a central feature of which is a fractured Star of David.  Before it was dedicated, the Freedom From Religion Foundation sent a letter to the head of the state’s Holocaust Memorial Committee objecting to erecting a “religious symbol on government property.” The organization had no problem with the memorial per se, merely the inclusion of a “readily identifiable Jewish symbol.” Despite the foundation’s complaint, Ohio dedicated the memorial on June 2, 2014.

The Holocaust memorial in Columbia, the capital of South Carolina (dedicated in 2001), features the Star of David prominently, as does a memorial in New Orleans (2003). Charleston, South Carolina’s memorial (1999) contains as its “central element” a “lonely discarded tallit, the Jewish prayer shawl used by men in the synagogue and also in which for some it was customary to be wrapped for burial.”

The United States Holocaust Memorial Museum in Washington, D.C. (1993) was built on land donated by the federal government and receives annual appropriations from Congress. Its Hall of Remembrance can be interpreted as referencing the Star of David, and passages from the Hebrew Scriptures are inscribed on the building’s walls, including: “What have you done? Hark, thy brother’s blood cries out to me from the ground!” (Genesis 4:10); “Only guard yourself and guard your soul carefully, lest you forget the things your eyes saw, and lest these things depart your heart all the days of your life, and you shall make them known to your children, and to your children’s children” (Deuteronomy 4:9); and “You are my witnesses” (Isaiah 43:10).

Similarly, Idaho’s Anne Frank Human Rights Memorial (2002) contains numerous inscriptions from different religious leaders, including: “Let my people go” (Moses); Let justice roll down like waters, and righteousness like an ever-flowing stream” (Amos); “What you do not want done to yourself, do not do to others” (Confucius); “Not in the sky, nor in mid-ocean, in a mountain cave, is found that place on earth where abiding one may escape from the consequences of one’s evil deed” (Buddha).

The Varieties of Religious Symbolism

As America becomes more diverse, the range of religious images and language used in public places is bound to continue to expand. In 2001, New York City dedicated a tree and plaque to commemorate “the founding of the Hare Krishna religion in the United States.” And, as Justice Samuel Alito noted in his opinion in the Peace Cross case, “a new memorial to Native American veterans in Washington, D.C., will portray a steel circle to represent ‘the hole in the sky where the creator lives.’”

By most definitions, the buildings and monuments in the preceding paragraphs are new, not old. To hold that the Establishment Clause protects old monuments but not new ones would have the perverse (and almost certainly unintended) consequence of permitting the Peace Cross to remain in place while requiring the removal of, for instance, the Star of David in the Ohio Memorial. Surely the Constitution does not mandate such a result.

What if governments were merely proscribed from any future use of religious symbols, images, or language in the building of memorials or other such structures? If so, the still-in-the-works Native American War Memorial would have to be redesigned to remove such references, and civic authorities would be prohibited from utilizing heretofore neglected symbols and language from other minority faiths.

As I show in my recently published Did America Have a Christian Founding?, an originalist understanding of the Establishment Clause does not require governments to scrub religion from public spaces.  The erection of building and monuments containing religious language, images, and symbols is, to borrow from Chief Justices Warren Burger’s opinion in Marsh v. Chambers, “deeply embedded in the history and tradition of this country.”  When buildings and monuments are erected should not be, from an Establishment Clause perspective, decisive.

Civic friendship and prudence should inform decisions about the use of religious symbols today.  America is far more diverse than it was 100 years ago, so it would be inappropriate for a government to erect a massive cross to honor U.S. military members from different faiths. On the other hand, it is both constitutional and fitting to include crosses, stars of David, and other religious symbols in the 9/11 Memorial. The Establishment Clause does not require a religion-free public square, no matter how many times the Freedom From Religion Foundation insists that it does.

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Unlearning The Founding Myth https://lawliberty.org/unlearning-the-founding-myth/ Tue, 06 Aug 2019 00:00:00 +0000 https://lawliberty.org/unlearning-the-founding-myth/   Andrew L. Seidel, an attorney with the Freedom From Religion Foundation, is an atheist, and an angry one at that. His recent book, The Founding Myth: Why Christian Nationalism is Un-American, is, in his own words, “not a work of academic history but an argument, an attack. Specifically, it is an attack on Christian […]

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Andrew L. Seidel, an attorney with the Freedom From Religion Foundation, is an atheist, and an angry one at that. His recent book, The Founding Myth: Why Christian Nationalism is Un-American, is, in his own words, “not a work of academic history but an argument, an attack. Specifically, it is an attack on Christian nationalism.” There is nothing wrong with attacking something that needs to be attacked, but if an author hopes to convince the unconvinced, he or she needs to use evidence fairly, make persuasive arguments, and perhaps even do these things in a winsome manner. Seidel’s book will make no converts.

Apparently believing that ridicule is a persuasive rhetorical strategy, Seidel offers a steady stream of it throughout his work. Two examples will suffice to make this point. In a discussion of the Torah, he likens the God of Abraham, Isaac, and Jacob to a chest-slapping gorilla who issues that First Commandment because he is insecure. Turning to the Gospels, he suggests that the “whole of Christianity may be predicated on Mary’s adultery.” One does not need to be a person of faith to be put off by such depictions, and it is puzzling that a self-described “forward-thinking” press like Sterling would publish them.

Misusing Sources

Even an attack piece should treat primary source documents in a responsible fashion. Seidel seems to agree, promising early on that if “no original source could be found, the point cannot be found in this book.” So far so good. A few pages later, he begins a chapter with a quotation from Washington’s 1783 Circular Letter to the States:

The foundation of our Empire was not laid in the gloomy age of Ignorance and Superstition, but at an Epoch when the rights of mankind were better understood and more clearly defined, than at any former period.

Seidel seems to think that this quote supports his claims that Washington “was a man of little or no religion” who, “had he been religious, would have prevented showy religious display.” More broadly, he avers that the founders thought religious beliefs were “personal, not for public display or political benefit.”

Just a few lines after the passage quoted by Seidel, Washington wrote that progress in America was due, “above all” to “the pure and benign light of Revelation.” He concluded his letter with the following words:

I now make it my earnest prayer, that God would have you, and the State over which you preside, in his holy protection, that he would incline the hearts of the Citizens to cultivate a spirit of subordination and obedience to Government, to entertain a brotherly affection and love for one another, for their fellow Citizens of the United States at large, and particularly for brethren who have served in the Field; and finally that he would most graciously be pleased to dispose us all, to do Justice, to love mercy, and to demean ourselves with that Charity, humility, and pacific temper of mind, which were the Characteristics of the Divine Author of our blessed Religion, and without an humble imitation of whose example in these things, we can never hope to be a happy Nation.

This prayer, which includes a paraphrase of Micah 6:8 (in bold) and an admonition to imitate the characteristics of Jesus Christ (“the Divine Author of our religion”) hardly seems like the work of someone seeking to privatize religion. There are reasons why one might discount these words, but Seidel doesn’t offer them. As he is wont, he simply ignores evidence that does not fit his narrative.

Seidel later quotes approvingly Edmund Burke’s 1775 speech in Parliament where he observes that “a love of freedom is the predominating feature which marks and distinguishes the [character of the Americans].” Seidel does not address Burke’s observation in the same speech that

Religion, always a principle of energy, in this new people is no way worn out or impaired; and their mode of professing it is also one main cause of this free spirit. The people are Protestants; and of that kind which is the most adverse to all implicit submission of mind and opinion. This is a persuasion not only favourable to liberty, but built upon it. . . . All Protestantism, even the most cold and passive, is a sort of dissent. But the religion most prevalent in our Northern Colonies is a refinement on the principle of resistance; it is the dissidence of dissent, and the Protestantism of the Protestant religion.

I could give many additional examples of selective quotations or taking quotations out of context, but the book’s outright errors present even more difficulties.

Misstatements of Fact

Founding Myth is littered with historical inaccuracies. Every writer slips occasionally, but the large number of errors in this work call into question the author’s commitment to providing an accurate account of the founding era. This is particularly significant for a constitutional attorney who believes history is, at least upon occasion, relevant for interpreting the First Amendment.

Seidel’s historical errors sometimes cut against his own argument. For instance, he asserts that “every colony had an established church.” By most counts, only nine of the original thirteen colonies had establishments; Rhode Island, Pennsylvania, New Jersey, and Delaware did not. Some separationists point to these colonies, especially Rhode Island, as being ahead of their time with respect to church-state relations. Seidel offers no explanation as to why he considers them to have establishments.

Separationists are often interested in debates over religious establishments in only one state: Virginia. Seidel focuses on these as well, especially on the general assessment bill supported by Patrick Henry that would have provided state support to ministers from different denominations. The bill did not say how much support would be given, but Seidel refers to it as “Henry’s proposed three-penny tax.” He is presumably conflating the proposal with Parliament’s Tea Act of 1773, which included a three penny tax on tea (to which Madison refers in his Memorial and Remonstrance).

Madison’s Memorial had some influence in Virginia, but not as much as an evangelical petition that received three times as many signatures. But whatever impact it had, it did not convince “the people of Virginia to vote against the bill giving financial support to Christian ministers,” as Seidel asserts. In December of 1784, the Virginia legislature postponed action on the general assessment bill until the fall of 1785, but a final vote was never taken on it. Instead, the legislature passed Jefferson’s famous Bill for Establishing Religious Freedom, but it did so in 1786, not 1785 as Seidel claims.

Turning to the new republic, Seidel dismisses the Northwest Ordinance, which states the common view that “religion, morality and knowledge being necessary to good government, schools and the means of education shall forever be encouraged,” because “it was passed by the Confederation Congress while the leading founding fathers were at the Constitutional Convention.”  The law was indeed passed by the Confederation Congress in 1787, but Seidel is apparently unaware that one of Congress’s first acts in 1789 was to reauthorize the law—one of the most important pieces of legislation ever passed.

As a final example, and many more could be given, Congress did not give President Washington an “official command” to issue his first Thanksgiving Day proclamation, it “requested” that he do so. Indeed, the initial suggestion was made by Representative Elias Boudinot, later president of the American Bible Society, the day after the House approved the final language of the Establishment Clause. The House agreed with Boudinot, the Senate agreed with the House, and President Washington complied with Congress’s request. Not surprisingly, Seidel does not quote Washington’s theologically rich proclamation, but you can read it here.

Unsubstantiated Claims

In light of Seidel’s promise that if “no original source could be found, the point cannot be found in this book,” I was looking forward to seeing how he would support his claim that “[w]e know that both Baruch Spinoza and John Locke profoundly influenced the founders’ thinking.” I’ve argued elsewhere that Locke’s influence in the era is overrated, but I’ll concede that many founders were familiar with his works. But Spinoza? Seidel provides literally no evidence to support this claim.

I suspect that Seidel thinks Spinoza influenced the founders because of Matthew Stewart’s assertion, in his book Nature’s God, that Spinoza was “principal architect of the radical political philosophy that achieves its ultimate expression in the American republic.” Seidel doesn’t cite the book to support this claim, but he references it elsewhere and Stewart endorsed The Founding Myth. But even Stewart concedes that “[t]here was—and is—no meaningful evidence at all in revolutionary America” of Spinoza’s influence. Stewart at least offers an argument that Spinoza’s influence came through Locke, but his reasoning is not very convincing.

The United States v. the Bible

In parts two and three of his work, Seidel offers a long, tedious, and, ultimately, unconvincing series of arguments purporting to demonstrate that the Bible had little influence on the founders.  Here are two examples:

  1. “The governments the Bible espouses and those it has bred are theocratic monarchies.”
  2. America’s founders did not create a theocratic monarchy
  3. Therefore, the Bible did not influence the founders’ views of government.

Or this:

  1. The Second Commandment “prohibits images of anything in heaven, on earth, or in the water. That covers most of the known world. In short, it ends art.”
  2. America’s founders did not ban art and, in fact, the First Amendment protects “any form of expression.”
  3. Therefore, the founders rejected the Bible’s approach to art in favor of liberty.

One does not need to be an expert on the Bible to recognize that Seidel offers interpretations of biblical passages that virtually no one has adhered to for centuries; and it is questionable if anyone ever adhered to some of them.

Christian Nation v. Christian Founding?

The Founding Myth is a problematic book, but Seidel is correct about one important point. Some of the popular authors he criticizes contend that America was founded as a Christian nation. Such a claim implies that America was founded for Christians, and that while non-Christians may be tolerated they can never be fully at home here. America’s founders disagreed.

Article VI bans religious tests for federal offices, and the founders understood that this meant that Jews, Muslims, and even angry atheists might be elected or appointed to them. There were few non-Christians in late 18th-century America, but there were some, and the founders were convinced that the right of these citizens to believe and act according to the dictates of conscience must be protected. Consider, for instance, George Washington’s 1790 letter to the Hebrew Congregation in Newport, Rhode Island (I’m pleased to report that both Seidel and I like this letter, although he thinks Touro Synagogue is in Connecticut). Washington wrote to this tiny religious minority that:

All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.

May the Children of the Stock of Abraham, who dwell in this land, continue to merit and enjoy the good will of the other Inhabitants; while every one shall sit in safety under his own vine and fig tree, and there shall be none to make him afraid. May the father of all mercies scatter light and not darkness in our paths, and make us all in our several vocations useful here, and in his own due time and way everlastingly happy.

This letter, from the era’s one indispensable man, reflects well the founders’ understanding that the religious convictions of all citizens must be respected. Yet it also illustrates the reality that they did not think that religion must be driven from the public square. The last paragraph contains eight allusions to biblical passages, including Washington’s favorite verse, Micah 4:4, which he paraphrased in his writings at least forty times.

America’s founders embraced the freedom of religion; not freedom from religion. Seidel is certainly free to argue for a religion-free public square, but he should not distort American history to support his policy preferences.

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A Strict Separationist Speaks https://lawliberty.org/a-strict-separationist-speaks/ Thu, 16 May 2019 00:00:00 +0000 https://lawliberty.org/a-strict-separationist-speaks/   Steven K. Green, formerly of Americans United for Separation of Church and State, is a friendly nemesis. He and yours truly have debated each other on multiple occasions, and we often disagree about how church and state should be related. Yet Green, the Fred H. Paulus Professor of Law and Affiliate Professor of History […]

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Steven K. Green, formerly of Americans United for Separation of Church and State, is a friendly nemesis. He and yours truly have debated each other on multiple occasions, and we often disagree about how church and state should be related. Yet Green, the Fred H. Paulus Professor of Law and Affiliate Professor of History at Willamette University, is a serious scholar, and his new book shines important new light on 20th century church-state relations.

The Third Disestablishment explores what Green calls “the third transformative era in church-state attitudes and relations”—roughly from 1940 to 1975. It does so primarily by recounting the major Establishment Clause cases from that era, but with an eye to broader cultural conflicts. He makes three distinct claims:

  • “A jurisprudence of ‘strict separationism’ . . . was always more of an ideal than a reality”;
  • “The justices in Everson and McCollum never agreed on the meaning of separation”; and
  • “The Protestant-Catholic conflict in the United States during the 1940s and 1950 was more pronounced than is generally acknowledged today.”  

His main thesis is that “despite the visibility of the Protestant-Catholic conflict of the 1940s and 1950s, that controversy was essentially of secondary importance to the larger debate over the public role of religion in American culture.”

Green begins by providing an overview of Protestant-Catholic relations in the 1920s and 1930s. He contends that the First World War encouraged American Catholics to cooperate across ethnic lines in new and significant ways. They began speaking with increased confidence in the debates of that time, for instance, in favor of censoring sexually explicit or sacrilegious movies.  Protestant leaders often favored similar bans, but Catholic calls for censorship raised, in some minds, the specter of theocracy.

Philip Hamburger, in Separation of Church and State (2002), makes an important argument that advocates of strict separation in the mid-19th to mid-20th centuries were often motivated by anti-Catholic animus. Without engaging in anti-Catholic bigotry himself, Green points out that the concerns expressed—that some Catholic doctrines were inconsistent with American democratic norms—were not in every case unfounded. Most relevant for this study, numerous papal encyclicals were critical of religious liberty and church-state separation. Of course, many American Catholics were unfamiliar with these encyclicals. Other American Catholics, such as the Jesuit John Courtney Murray, actively challenged them. But the Vatican, as if to reinforce its apparent opposition to civil liberty, censured Murray in 1954, and the Jesuit Father General prohibited him from writing about church-state matters.   

The Second World War unified Americans in many ways, but Protestant-Catholic suspicions remained. Shortly after the war, the anti-Catholic polemicist Paul Blanshard began his meteoric rise to fame as a critic of Catholic power. Coinciding with his ascent, an organization with nativist roots challenged a New Jersey program that reimbursed parents for the cost of transporting their children to parochial schools. The Supreme Court’s decision in Everson v. Board of Education (1947) applied the Establishment Clause to the states, and Justices Black and Rutledge agreed that the Establishment Clause must be interpreted in light of the Founders’ separationist views (a problematic historical argument). Remarkably, given his lofty separationist rhetoric, Justice Black’s majority opinion held that the reimbursement program did not violate the Establishment Clause.  

Hugo Black was a onetime member of the Ku Klux Klan, and his son recalled that he “read all of Paul Blanshard’s books.” As well, according to Hamburger, at least seven justices on the Everson court were members of “one Masonic organization or another.” Anti-Catholic animus was obvious in only Justice Jackson’s dissenting opinion in Everson, and Green contends that there is “no causal link between anti-Catholic animus and judicial decision-making.” But he recognizes that distrust of the Catholic Church informed popular Protestant support for separating church and state in this period.    

Eleven days after Everson was decided, Senator Robert Taft (R-Ohio) introduced a federal education bill that would have provided grants to states, which could in turn distribute funds to public and private schools—including religious schools. The possibility of federal funds’ making their way to religious (especially Catholic) schools led James M. Dawson, director of the Baptist Joint Committee, to call a “meeting of Protestant, educational, and fraternal leaders.”  These individuals founded Protestants and Other Americans United for Separation of Church and State in 1948. Catholics could be excused for thinking that the organization was targeting them.

The logic of both the majority and dissenting opinions in Everson points toward the strict separation of church and state, a conclusion seemingly confirmed by the Court’s decision in McCollum v. Board of Education (1948). Here, by an 8 to 1 vote, the Court invalidated an Illinois plan that set aside part of a school day for voluntary religious instruction. A few years later, the justices seemed to take a step back in Zorach v. Clausen (1952) when they upheld a plan that permitted students to be released from school early to receive religious instruction.  

The Supreme Court refrained from deciding additional Religion Clause cases in the 1950s, but passionate debates about church-state relations continued. Green shows that the Catholic Church’s longtime stand against the evils of communism helped build trust with Protestants, as did popular authors and media personalities such as Thomas Merton and Bishop Fulton J. Sheen.  As might be expected, members of Protestants and Other Americans United vigorously opposed the nomination and election of John F. Kennedy as President, but Kennedy’s argument that “I do not speak for my church on public matters—and the church does not speak for me” did much to calm Protestant anxieties. Critically important as well, thanks in part to Father Murray, the Roman Catholic church embraced religious liberty during the Second Vatican Council (1962 to 1965).  

Just as Protestant-Catholic suspicions were abating, the Supreme Court issued a decision that appeared to many to be anti-religious. In Engel v. Vitali (1962), the Court ruled 6 to 1 that teacher-led prayer in public schools was unconstitutional. The decision was widely denounced by Protestant and Catholic groups alike. Not to be deterred, the following year they ruled 8 to 1 against Bible-reading and the recitation of the Lord’s Prayer in public schools. These decisions were opposed by 70 percent of the American public and 49 of the nation’s Governors. Members of Congress proposed 146 separate constitutional amendments to overturn them.  

Without doubt, some Americans have favored the separation of church and state as a matter of  principle. But it is evident that many Protestants supported separationism because they understood it to limit Catholic power; they never imagined that the doctrine would ban or restrict practices favored by them. When the Supreme Court started using the Establishment Clause to declare unconstitutional practices such as school prayer, they rejected separationism. In time, they would come to cooperate with Catholics to oppose what they perceived to be the forces of secularization.

An early manifestation of this cooperation may be seen in Protestant support, after years of opposing governmental aid to religious schools, of the Elementary and Secondary Education Act of 1965. That law provided federal tax dollars to religious institutions. When challenges to the provision of federal funds under the law reached the High Court, those favoring a wall of separation between church and state often won. Yet the Court moved away from the extreme separationist rhetoric of Everson in favor of balancing tests such as that articulated in Lemon v. Kurtzman (1971). On the surface, the period between 1971 and 1975 was “to be the high point of strict separationism on the Court.” And yet, as with “any long-standing edifice on an increasingly shaky foundation, the dismantling of the wall of separation was not immediately apparent, nor did it occur overnight.”  

By most accounts, Supreme Court justices did not abandon a commitment to the separation of church and state until the 1980s. A skeptical political scientist might attribute more weight to the election of Ronald Reagan and George H.W. Bush and their judicial appointments than Green does. But the dynamics Green describes, especially the perceived attack on religion per se, combined with the realization that Protestants and Catholics should be allies on these and other cultural issues, helped make the election of Reagan and Bush possible. Green’s conclusion that the decline of separationism began “in the mid-1960s, in response to ecumenicalism, social welfare legislation, and the rehabilitation of the Catholic Church,” is more than plausible.

There is much to be admired in The Third Disestablishment. Disagreeing with its author as I do about the proper relationship between church and state, I find little with which to disagree in this balanced and nuanced book. Anyone interested in the church-state relations in mid-20th century America should read it.

 

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