James N. Markels


"I'm not bad, I'm just drawn that way."
         --Jessica Rabbit

  


Home

Personal Information
(Bio, etc.)

Constitutionalist Party
(Political third party I founded)

Political/Policy Writing
(Op-eds & longer papers)

Creative Writing
(Short stories and poetry)

Resume

Odds and Ends
 (Links of idle interest)

Contact Me

  


The Court of Public Religion

by James N. Markels

I know that most of you, like me, have been trying to think about anything but law over the summer. Now that summer’s over, we can look back and realize that while classes were out, really big things have been going on in the courts. No, I’m not talking about the World Wildlife Fund’s victory against the World Wrestling Federation over who gets to be the real WWF (“WWF Raw” now features cavorting pandas), I’m referring to three summertime cases (on school choice, the Pledge of Allegiance, and the Koran) that may forever change the way we look at the interaction between government and religion—for the better.

The “wall of separation between church and state” described by Thomas Jefferson in a letter to a friend has been a popular modern interpretation of the 1st Amendment’s admonishment that “Congress shall make no law respecting an establishment of religion,” better known as the Establishment Clause. It’s a “better safe than sorry” approach to interpretation, and while separationists have yet to challenge the fact that “In God We Trust” is printed on every dollar and coin, you can imagine the ruckus if those words were added today.

A glimpse of this could be seen in Michael Newdow’s challenge to “under God” in the Pledge of Allegiance, wherein the oft-overturned 9th Circuit Court of Appeals found the words unconstitutional. The court argued that “to an atheist or a believer in certain non-Judeo-Christian religions or philosophies, [‘under God’ in the Pledge] may reasonably appear to be an attempt to enforce a ‘religious orthodoxy’ of monotheism,” and would therefore be “coercive.”

Those who adhere to the “wall of separation” applauded the ruling, but was it reasonable to assume that coercion was actually happening? Did the Pledge advance religion or convert atheists and Wiccans? Of course not. The decision unwittingly employed the reductum ad absurdum approach—taking a premise to its logical extreme to prove its unreasonableness—to refine the Establishment Clause. Is the government truly engaging in the establishment of religion by any reference to a general God? Must the government completely ignore religion, else risking a so-called tyranny of sectarianism? No. Reaction to the ruling in Newdow’s case, both in law and public opinion, shows that the “wall” can be built too high.

This realization was also a central tenet of the Supreme Court’s June decision in Zelman v. Simmons-Harris, which found Cleveland’s school voucher program to be constitutional. Separationists on the Court pointed to the fact that a vast majority of those using the vouchers attended religious schools, thereby arguing that the program’s effect was to promote religion. To them, finding vouchers constitutional meant “remov[ing] a brick from the wall that was designed to separate religion and government,” as phrased by Justice Stevens. The separationist reasoning that the end explains the means when it comes to the Establishment Clause neglects to consider the environment the means operate in, as if the government and the church are the only things in the equation. But the majority realized that there was something else affecting the calculus: private choice.

Vouchers create a market for education that will be guided by private actors: parents using the vouchers and educators. The value of the vouchers will necessarily affect that market, but unless the program itself is geared specifically to produce an end that promotes religion, the responsibility for the results rests with those making the choices. A voucher program that does not restrict choices is not manipulating the market; it is creating one.

And then, just last week, the University of North Carolina was taken to court for having all incoming freshmen either read and discuss the book Approaching the Qur’an: The Early Revelations, which examines the Islamic faith, or explain why they don’t want to read it. Interestingly, the separationist arguments against the Pledge—that the words themselves are coercive and making the reading/recitation of them optional doesn’t help—are the exact same arguments used by religious conservatives against the Koran book. (Of course, separationists have no problem with Approaching the Qur’an and the religious conservatives are fine with the Pledge. Methinks both sides are only using the Establishment Clause as is convenient.) The North Carolina federal court rejected a temporary restraining order against UNC, and rightfully so, because trying to understand what others believe is useful and no more coercive than any other communication of ideas.

In all three cases, Establishment Clause jurisprudence is shifting away from only considering what the government does to looking at the effect on individuals. Don’t be surprised if last summer laid the groundwork for incorporating the Reasonable Person in the Establishment Clause. That would be a welcome improvement to a jurisprudence that logically determines that even our money is unconstitutional.