In my first post, I discussed a recent U.S. District Court opinion that granted summary judgment in a case challenging the constitutionality of a new program initiated by the Veterans Administration that integrates spiritual health into the medical team’s work with every patient. (FFRF v. Nicholson) I suggested that this case may be one sign in a larger shift in U.S constitutional jurisprudence away from separationism and toward a kind of religious universalism.
Ironically, perhaps, the viability of the decision in the Nicholson case is presently in doubt, and the appeal of the decision has been stayed, because of a subsequent decision by the U.S. Supreme Court. Hein v. FFRF. (Hein v. FFRF, 127 S. Ct. 2553 (2007).) Another case brought by the Freedom From Religion Foundation. Another complaint that unsuccessfully argues that officially recognizing Americans as religious is unconstitutional.
The Hein case was the only religion clause case decided by the U.S. Supreme Court in the October 2006 term. FFRF alleged in Hein that expenditures by the Director of the White House Office on Faith-Based and Community Initiatives on conferences promoting participation by religious groups in government funding of private social services constituted an unlawful establishment of religion. As with Nicholson, their concern was the government favoring of religion over non-religion. Hein was an exceptional form of action known as a taxpayer suit. A majority of the justices found that FFRF had no standing to bring the action. While standing questions may seem to be the kind of question that only a lawyer could love, this seemingly dry procedural ruling further illustrates what I am suggesting is a significant change in the Court’s attitude toward religion.
The vote in Hein was five to four and there were four different opinions. Justice Alito’s opinion for three of the justices in the majority came close to overruling a key religion clause precedent, Flast v. Cohen (392 U.S. 83 (1968)), but the three opinions by the justices in the majority are most distinctive from that of Souter’s impassioned dissenting opinion in their suggestion that the danger of religious establishment no longer requires special constitutional vigilance. Indeed, they argue that such special treatment is the legacy of anti-Catholicism and therefore ought to be abandoned. The President can promote religion, they say, just as he can promote any other social policy, limited only by electoral politics. And taxpayers no longer have standing to complain.
Article III of the U.S. Constitution, which establishes the judicial branch of government, provides that the jurisdiction of the federal courts is limited to “cases and controversies.” These words have been interpreted to mean that U.S. courts may only rule in what are known as justiciable controversies. They cannot give advisory opinions, decide essentially political questions, or rule on issues that are moot. To do these things would violate the doctrine of separation of powers and invade the provinces of the other two branches of government. In 1923, in Frothingham v. Mellon, the Supreme Court held that lawsuits initiated by federal taxpayers, as taxpayers, to challenge the constitutionality of congressional statutes are not justiciable because individual taxpayers, simply on the basis of their individual tax burden, lack a sufficient personal financial stake in such cases. (Frothingham v. Mellon, 262 U.S. 447 (1923).
Only one exception has been made to this rule against taxpayer suits. In 1968, in Flast v. Cohen (392 U.S. 83 (1968)), the Court allowed such taxpayer cases specifically in order to challenge the constitutionality of congressional acts alleged to be in violation of the establishment clause. Religion is special, the Court was saying in 1968, and established religion is especially dangerous. The Flast taxpayers challenged a federal grant of assistance to local schools, including religious schools, to purchase textbooks and other instructional materials for disadvantaged students. In an 8-1 decision, the Court held that the foundational importance of the principle of religious disestablishment to U.S. government demanded an exception to the rule in Frothingham.
Special emphasis was placed by the majority in Flast on the evil of using any government funds whatsoever to support religion. Authority for this proposition was found in James Madison’s Memorial and Remonstrance: “The same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all other cases whatsoever.” In his concurring opinion in Flast, Justice Douglas, in language characteristic of the time, cited “notorious” and “mounting federal aid to schools” as well as the risk that any money given to parents of parochial school children would be given directly to “the priest.”
The 2007 Hein decision did not explicitly overrule Flast but formally only limited Flast to taxpayer establishment clause challenges to acts of Congress, distinguishing the White House Office as a part of the executive branch. But, as Jusice Scalia wrote in concurrence, Flast had essentially been overruled. Souter’s dissent in Hein hearkens back to the Flast era, insisting that religion is special, that individual conscience must be protected by a high wall of separation, and that James Madison ought to still rule: “favoritism for religion,” says Souter, “‘sends the . . . message to . . . nonadherents’ that they are outsiders, not full members of the political community.”
Souter’s is increasingly a minority voice. We are all religious now. As a leading architect of integrating spirituality into medicine says, “our belief [is] that there is a spiritual dimension in every person’s life, even in those who deny that there is.”
Hein and Nicholson fit into a line of recent cases interpreting the establishment clause that move away from the high separationism of the mid-twentieth century towards what we might call a post-pluralistic acknowledgment of religion. While this is seen as establishment by some, by others it is seen as a benign establishment, permissible because no longer tainted by religious bigotry.
One way of reading the two clauses of the First Amendment to the U.S. Constitution, historically, has been to understand the free exercise clause as protecting individual conscience and the establishment clause as protecting citizens from a government dictated by clerics. Historically in the U.S. that understanding was founded in a particularly Protestant understanding of religion. Religion which was internal, chosen and believed—religion that is about conscience—could be free without threat to the public order. Other kinds of religion, in the U.S. this has meant Mormons, Jehovah’s Witnesses, Native Americans, Jew and Catholics, primarily, was often unacceptable and policed as illegal acts or as threats of establishment. But the ideology of equality and the analogy to race, as well as the conforming, more or less, of foreign religions to protestant forms, has made such a crabbed anthropology progressively less credible. Now religion includes everybody, even those without religion, and the First Amendment religion clauses have become an anachronism.
The response of the Supreme Court has been, by and large, to get itself out of the business of deciding what religion is. With the free exercise clause, that means that laws must be neutral and universal, not discriminatory. No judicial exemptions will be given to those with religious motivations for their actions. With respect to the establishment clause, it means that no particular disability is laid on religious institutions in their dealings with the government, just because they are religious.
A new abstraction of religion has developed to accommodate this new situation, one that is particularly evident in the delivery of health care. It is dependent on the belief that, in the words of a leading scholar of pastoral theology, “both the symbolic truth of traditional religious language and the truth of philosophical and scientific critiques of religious language [can] be held together in a conjunctive style of faith.” (George Fitchett, Assessing Spiritual Needs: A Guide for Caregivers).
The Court seems to be in the mood to countenance such an approach, notwithstanding the insistent demand from those such as FFRF, echoing many critics in religious studies, who see such a position as covertly theological. There is still excluded religion under such a legal regime, of course, but the arbiter is no longer the court. Religion has been neutralized and naturalized—de-constitutionalized, formally. It is the individual chaplain who determines what constitutes spiritual health. And politics, not the Constitution, that determines whether he should be given a job.