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.
Posts Tagged ‘Establishment Clause’
Religious freedom and religious establishment have come to mean many things to many people. This is, in part, because of the shifting contours of the definition of religion itself (as has been pointed out by others in this series, including Winnifred Fallers Sullivan and Elizabeth Shakman Hurd). But it is also because the nature of freedom is contested ground. The shifting nature of these two concepts makes normative assessment—religious freedom is good, religious freedom is bad—extremely difficult to carry out in any meaningful way. Further, when people advocate for or against religious freedom they are often talking about very different things. Similarly, the measurement of establishment is equally nebulous.
Last week, in the first week of its October 2011 term, the U.S. Supreme Court heard argument in a suit brought by the Equal Employment Opportunity Commission charging the local branch of the Missouri Synod Lutheran Church with illegal retaliatory firing of a Michigan parochial schoolteacher under the 1990 Americans with Disabilities Act. The ADA mandates an end to discrimination against persons with disabilities across a wide range of contexts and is considered a high-water mark of American civil rights legislation. The Church, supported by a wide array of other interested religious organizations, claims immunity from such legislation.
The latest issue of Dissent features an argument (sub. req.) by Austin Dacey and Colin Koproske against the prevailing understanding of religious freedom in recent U.S. jurisprudence and, more generally, against the accommodation of claims on the grounds that they derive from a specifically religious belief and not otherwise.
Recently, the newly-elected governor of Alabama made headlines by making a public statement in a church following his inauguration, in which he said that only Christians are his “brothers and sisters,” and that he hopes that people who are not Christians will become his brothers and sisters (in other words, will become Christians). While we might disagree with the exclusive nature of his religious beliefs, they are hardly uncommon. Still, one wonders why he felt the need to share these private beliefs in a public venue and how he thought they were relevant or helpful in his claim to serve as governor to “all of the people of Alabama,” regardless of their religion.
In a New York Times opinion piece, Linda Greenhouse raises questions about how today’s Supreme Court might take a different approach to church/state issues compared to past courts.
On Wednesday, April 28, 2010, the U.S. Supreme Court handed down its decision in Salazar v. Buono, its latest effort to specify what the establishment clause of the First Amendment to the U.S. Constitution requires of the government with respect to religious objects on public lands.
The object of its concern on this occasion is an eight foot white cross standing on a rock outcropping on a federal preserve in the Mojave Desert, first placed there in 1934 by the Death Valley post of the VFW, and denominated a national WWI memorial by Congress in 2002. The legal issue before the Court was whether the Ninth Circuit Court of Appeals had properly affirmed a District Court ruling that the 2004 congressional act transferring the acre of land containing the cross to the VFW was illegal. . . .
The six opinions presented in Salazar v. Buono display various views on how the law of injunctions should be applied to the facts. All agree, however, that the District Court’s original decision—finding display of the cross on federal land to be an unconstitutional establishment of religion—is res judicata (that is, “the thing is decided,” and is no longer reviewable). Along the way, however—partly perhaps because, as some of them said, the law of injunctions is not very interesting to them—many of the justices, both at oral argument and in their written opinions, couldn’t resist offering opinions on the public meaning of the cross.
My first thought upon reading the Chicago Council’s report “Engaging Religious Communities Abroad: A New Imperative for U.S. Foreign Policy” is that the title is misleading. This report is not about engaging religious communities abroad—one hears little if at all from such communities—nor does it say anything particularly new. There is, however, an imperative. This report is an attempt to create a particular kind of world, one defined by the projection of American power—a certain kind of religious power. The report, as Winni Sullivan observes in her companion piece, endorses an establishmentarian position in American foreign policy, meaning that American policy could discriminate among religions and fund and promote religious activities that meet with U.S. government approval. This is a different kind of religious power than what Sullivan describes as the “periodic and not altogether successful efforts” at disestablishment that we have undertaken at home. Assuming that we agree with Sullivan, as I do, that “established religion is by definition not accepting of ‘pluralism, freedom, and democracy,’” it becomes clear that this report is not about engaging religious communities to promote either religious freedom or democracy. It is about the projection of American power through the securitization of religion.
I applaud the Chicago Council on Global Affairs’ call for the U.S. government to recognize the pivotal role of religion in societies around the world and to engage religious communities in pursuit of American foreign policy objectives. The Council’s Task Force on Religion and the Making of U.S. Foreign Policy wisely recommends mandating diplomatic training in religious literacy to address the striking ignorance that often leads to foreign policy blunders and missed opportunities. The tensions within the Task Force, which Scott Appleby recounts, actually illustrate the misconceptions that bedevil what, by law and interest, should be a central thrust of engagement: the promotion of religious freedom as a universal human right. As one who closely observed the process that produced the International Religious Freedom Act of 1998, I can counter a number of such misconceptions.
The contested question of whether in a liberal democracy religion – religious rationales – may serve as a basis of coercive lawmaking must be disaggregated into two distinct questions: First, is religion a morally legitimate basis of (coercive) lawmaking in a liberal democracy? Second, is religion a constitutionally legitimate basis of lawmaking in the United States?