The politics of religious freedom:

Everson’s Children

posted by Ann Pellegrini

Everson v. Board of Education is considered a landmark of First Amendment jurisprudence. That 1947 case marks the first time the Supreme Court held that the disestablishment provision of the First Amendment is binding on the states, and not just on the federal government. The “incorporation” of the principle of disestablishment thus completed the task begun seven years earlier in Cantwell v. Connecticut, when a unanimous Court held that free exercise applied to the states. In Cantwell, the Court overturned the convictions of three Jehovah’s Witnesses, who had been arrested for unlicensed soliciting and a breach of peace.

As Terry Eastland notes in his commentary on these two cases, “most of the religion-clause cases decided by the Supreme Court” in the wake of Cantwell have involved “federal litigation over religion-clause claims against states.” This is in contrast, he observes, to the first 150 years of Supreme Court religion-clause jurisprudence when all of the very few cases heard by the Court “involved claims against the federal government.”

On the one hand, this geographic shift has meant that formalized practices of religious establishment in individual states are henceforth subject to scrutiny and challenge. On the other, the application of the disestablishment principle to the states has also contributed, I’d argue, to the plaints of many Christians that a monolithically secular state is driving religion from public life. What we have is a regionalization of public conflicts over the place of religion and religious people in public life and in the state. This “and” is necessary, for the public is not the state—a confusion that regularly trips up public debates about the meaning and practice of religious freedom in the United States.

Christian dominance in American public life—while a truism—is itself not monolithic in practice. Instead, we might better speak of religious cultures, plural, and of secular negotiations. Particular Christianities are dominant in some states and regions in the U.S. in ways that strain against a larger overlay of mainline Protestantism as the baseline for what both national religious culture and national secular identity have meant historically. I’ll come back to this point.

Although he may seem like too easy of a target, former Senator and, now, former Republican presidential candidate Rick Santorum’s conflation of the state and the public square is illuminating precisely because it is not exceptional. In a notorious February 2012 appearance on “This Week with George Stephanopolous,” Santorum proclaimed his expansive vision of First Amendment free exercise: “I don’t believe in an America where the separation of Church and State is absolute. The idea that the church can have no influence or no involvement in the operation of the state is absolutely antithetical to the objectives and vision of our country. This is the First Amendment. The First Amendment says the free exercise of religion.” Santorum went on to express his visceral disgust at those who would bar religious people from the public square, seamlessly shifting his focus from the state to the public square. Making then presidential candidate John F. Kennedy’s famous 1960 speech to the Greater Houston Ministerial Association stand in as the ur-moment of this enforced bracketing of religion from all of public life, Santorum glossed Kennedy’s speech: “To say that people of faith have no role in the public square? You bet that makes you throw up. What kind of country do we live in that says only people of non-faith can come into the public square and make their case?”

This is, pardon the pun, a rather gross misreading of what Kennedy actually said. But, what interests me here are the following: (1) the way Santorum effortlessly elides the public square with the state and (2) Santorum’s elevation of free exercise over disestablishment as the living pulse of religious freedom. Minimizing—if not outright denying—disestablishment licenses the hyperbole of Santorum’s claim that the state can set no limits on the reach of “the church” into its operations. To be sure, Santorum’s language was very colorful, but his analysis and the ressentiment it bespeaks are broadly shared among evangelical Christians and a growing number of conservative Catholics.

As Janet R. Jakobsen and I stress in our book Love the Sin: Sexual Regulation and the Limits of Religious Tolerance, it matters a great deal to possibilities for agonistic democracy and meaningful religious freedom whether one sees the two components of First Amendment religious freedom—disestablishment and free exercise—as separable or interstructuring. In our view, and we are hardly legal outliers on this question, disestablishment is the structuring condition for free exercise. Otherwise, those who are religiously different or not religious at all may well find their lives not simply less admired and valued than those who belong to the dominant religion; they may find they have diminished legal status.

And yet, in public political debates over the meaning of religious freedom, too often we see the very balkanization replayed by Santorum: proponents of more religion in U.S. public life and in government (and let’s be clear, not just any religion, but of particular Christianities) lean heavily on the free exercise component and underplay disestablishment. Conversely, many secularists—not all secularists, to be sure, but many—stress the absolute separation of Church and State and minimize free exercise.

At least in principle, the appearance of religion in public spaces or the use of religious language and arguments in public debates need not equate to the state’s endorsement of any religion at all nor need it lead to religious dominance. To quote one of my favorite lines from Gilbert and Sullivan’s Utopia Limited; or, the Flowers of Progress: “That’s the theory but in practice, how does it act?” Not so well, as it happens. This is because U.S. public life operates under conditions of Christian dominance. Particular Christian practices and claims can “float,” sometimes being overtly marked as religious, at other times passing as secular, resulting in a situation Jakobsen and I have elsewhere termed “Christian secularism.”

The public itself (as an ideal) and public spaces (in their messy practices) are prepared in advance to credit Christian assumptions and value claims as integral to public life and national character. In such a context, it can be hard for those who are religiously different and those who are not religious at all to get a word in edgewise. In addition, these same Christian assumptions can pass into the state as the secular logic of universal morality and civic order, as we have seen in numerous state laws and referenda about same-sex marriage. I am writing these words a day after North Carolina voters overwhelmingly passed Amendment One, a constitutional amendment banning same-sex marriage.

Although many liberal and progressive secularists had hoped, even expected, that the election of Barack Obama in 2008 heralded the end of religion’s role in public debates and policy decisions, this hope has not been realized. And that’s an understatement, as any quick perusal of the roiling election-year debates over abortion and same-sex marriage show. Again, witness North Carolina. Or the debates over the provisions for contraception coverage in the Affordable Healthcare Act.

On one level, the hope was for an end to the influence of conservative religion—really, conservative Christianities—on policy-making, particularly in issues concerning sexual life. But, it was also, for many secularists, a desire for the elimination of any trace of religion in the U.S. public sphere, as if religion were a toxin from which they needed or even had a fundamental right to be protected. This too shows too measly an understanding of the scope of religious freedom and the parameters of agonistic democratic engagement. Democracy does not always feel good. In everyday life, we bump up against each other and may well be discomforted by differences we cannot assimilate or will not understand. And this is among the reasons we need courts to protect the rights and freedoms of unpopular minorities: so that bumps will not turn into overt violence or formalized exclusions. Encounters with difference, including with moral difference, are not a hostile take-over nor take-away, nor an instance of “indoctrination”—whether of religious values or secular. (Given the entwinement of Christian values with the values of the secular in the United States, the “or” in that previous sentence needs critical pressure as well.)

In using the loaded word “indoctrination,” I am invoking numerous heated debates about higher education and, in particular, the claim that universities are dominated by liberals and indoctrinate their students into secular values—thereby, severing them from their families of origins. Indeed, just such a claim was made by Rick Santorum in the very same interview in which he declared his nauseated response to Church-State separation.

The word “indoctrination” also makes a curious appearance in Everson. At issue in that case were reimbursements approved by the township of Ewing, NJ, and paid out to parents for money they spent busing their children to schools, whether public or Catholic. A local tax-payer challenged the payments to the parents of parochial school students as an unconstitutional establishment of religion. A split court (5-4) held that the use of such public monies did not unconstitutionally establish religion in the state. Fascinatingly, even the four dissenters agreed with the logic of the decision—namely, for a wall of separation between Church and State. The expansive terms of Justice Hugo Black’s conception of disestablishment could easily have been penned by any one of the four dissenters. Here’s Justice Black, writing for the 5-member majority:

The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between Church and State.” Reynolds v. United States, supra, 98 U.S. at page 164.

I always discuss the Everson case in my undergraduate class on “Religion, Sexuality, and American Public Life.” I sketch the basic issues in dispute for this case, tell them it was a split decision, and then show them the above passage from the majority decision. In light of this purple passage, I ask them what they think the holding was. Inevitably, they think the Court ruled against public funding for buses to Catholic schools.

Like my students, I share the dissenting justices’ puzzlement that the majority could have put a bus-sized hole in the fabled “wall of separation.” But the larger lesson here, beyond providing my students a quick First Amendment jurisprudence 101, is that the sharing of general principles (here, the “wall of separation”) does not yet tell us anything about how they will be set down in practice. Moreover, the wall described in Justice Robert H. Jackson’s dissent seems to call for refortifying dominant Protestant notions of what secularism should look and feel like in practice. He does so via a stunning comparison-contrast between a Catholic emphasis on education as indoctrination into faith and a—well, what exactly?—Protestant/secular/Protestant-secular emphasis on neutrality and the value of mature adult “choice.” Justice Jackson writes:

It is no exaggeration to say that the whole historic conflict in temporal policy between the Catholic Church and non-Catholics comes to a focus in their respective school policies. The Roman Catholic Church…does not leave the individual to pick up religion by chance. It relies on early and indelible indoctrination in the faith and order of the Church by the word and example of persons consecrated to the task.

Our public school, if not a product of Protestantism, at least is more consistent with it than with the Catholic culture and scheme of values. It is a relatively recent development…organized on…the premise that secular education can be isolated from all religious teaching so that the school can inculcate all needed temporal knowledge and also maintain a strict and lofty neutrality as to religion. The assumption is that after the individual has been instructed in worldly wisdom he will be better fitted to choose his religion. Whether such a disjunction is possible, and if possible whether it is wise, are questions I need not try to answer.

The spirit of education conjured in this passage may well reveal its own “romantic yearnings”—to draw on the language of Winnifred Sullivan’s contribution to this forum—for a unified secular culture. However, as the Justice’s toggle between not quite Protestant, but not not-Protestant either suggests (“Our public school, if not a product of Protestantism, at least is more consistent with it…”), this unified secular culture—the fantasy of it, at least—is linked historically and imaginatively to what Robert Orsi has termed a “domesticated Protestantism tolerable within [the secular learning cultures of] the academy” that emerged in the late-nineteenth and early-twentieth centuries.

If this domesticated Protestantism did not need to plead its case in the classroom, this is because its style of personhood and structures of feeling were the very building blocks of secular public education—Protestant building blocks mistaken for walls of separation. Increasing religious diversity in the United States, including diversity among Protestants, has called many of Justice Jackson’s operative assumptions into question. I suspect that the justices in the majority in Everson did not quite anticipate the wild contemporary landscape of American religious pluralism either.

But there are also important connections to Sullivan’s discussion of “The world Smith made.” If religious authorities now find themselves in the ironic position of appealing to the secular state to enforce sectarian orthodoxies, one of the ongoing and crucial laboratories for this contest between discipline and dissensus will be public school classrooms. The mission—a term I choose with great deliberation—Justice Jackson attributed to the secular public classroom is not and never was innocent of religious domination. Those of us concerned about attacks on public education—from budget cuts to the right wing’s politicization of curriculum—would do well to remember and mark the specific histories of domination on which we stand our ground in the name of First Amendment freedoms of religion and of speech.

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