The Establishment Clause

Last night I attended the Saint John Fisher parish Moral Decisions meeting and introduced friend Sue Morgan to the group. Our leader, Pat Hart, reported that he asked Notre Dame Law Professor Gerard Bradley for a transcript of his First Amendment speeches that we are studying but found that they were never transcribed. Prof. Bradley said that he would send some related papers and we might also look on the First Things magazine web site for them. I went to the site after the meeting and found a very good set of papers on a symposium called Religion and the Court 1995.

In Rosenberger v. the Rector and Visitors of the University of Virginia, the Supreme Court reviewed a decision of the U.S. Court of Appeals which had held that the Establishment Clause of the Constitution forbade the University (a state entity) from funding a journal of opinion that advocated Christian religious views. The Appeals court admitted that this denial of funding burdened the freedom of speech of the students who published the religious journal, but said that enforcement of the Establishment Clause was a superior interest to be protected.

The Supreme Court reversed the Court of Appeals, holding that the University had violated the Constitution through "viewpoint discrimination" and that funding the journal did not violate the Establishment Clause.

Professor Bradley wrote:

When the New York Times, the sergeant-at-arms of the "naked public square," said that the Supreme Court "had blown a hole in the wall of separation," I knew the justices had done something right.

But a careful reading of the decisions makes clear that blowing "a hole in the wall" of separation won't do. We need to raze the whole structure and lay a new foundation or, better, go back to that laid by the Founders.

Rosenberger, as the Court analyzed it, was basically a free speech case. The question was how much worse does the Establishment Clause allow (or require) states to treat believers than nonbelievers? The question, put differently by Justice Scalia, is whether piety is on a par with pornography, whether (in my words) the Madonna is on a par with Madonna.

A solid majority of the Supreme Court holds that the Constitution not only permits but sometimes requires that piety be treated worse than pornography. Breyer subscribes (with O'Connor, Ginsburg, Souter, and Stevens) to the so-called "endorsement" test for the compatibility of religion and public life. The endorsement test is the master principle of all church/state jurisprudence. It is lethal stuff, indeed.

The endorsement test holds that public authority may do nothing that might be construed as a sign that religion is a good thing, that religion is a component of human flourishing. This neutrality is an instance of a broader neutrality about the good life that the justices, since around 1970, have brazenly but falsely proclaimed to be our constitutional ideal. The broad neutrality brought us abortion-on-demand and will, in all likelihood, soon christen assisted suicide and homosexual marriage as constitutional rights.

The majority served up in Rosenberger the same junk history that Justice Hugo Black served up in Everson, the first Establishment Clause case, back in 1947. The key move here is not to talk about the First Amendment at all, but to talk instead about something James Madison wrote in a Virginia political contest several years earlier.

Madison's "Memorial and Remonstrance" was a petition circulated in 1785 against a proposed tax to fund teachers of the Christian religion. In Rosenberger the Supreme Court held that Memorial and Remonstrance framed the debate upon which the Religion Clauses stand.

But the experience of all times shows Religion to be the guardian of morals and that avarice is accomplishing the destruction of religion. The declaration of rights [in the Virginia Constitution], it seems to me, rather contends against forcing modes of faith and forms of worship, than against compelling contribution for the support of religion in general.

The distinction between state acts that force acts of worship on people and those that mandate general support of religion is the indispensable core of any understanding of what the Founders were up to. It is central, I would argue, to any sound approach to church-state questions in our day. The distinction is completely lost on the current Court.

I have provided only a brief synopsis of Professor Bradley's opinion. Read the rest on the First Things web site. I'll close with Bradley's punch line: The courts are systematically dismantling the concept of public morality in favor of the "autonomous self." The president's judicial appointments could not be more important to fate of religion and society.