Since 1947, the Supreme Court has promised government neutrality toward religion, but in a nation whose motto is "In God We Trust" and which pledges allegiance to "One Nation under God," the public square is anything but neutrala paradox not lost on a rapidly secularizing America and a point of contention among those who identify all expressions of religion by government as threats to a free society. Yeshiva student turned secularist, Bruce Ledewitz seeks common ground for believers and nonbelievers regarding the law of church and state. He argues that allowing government to promote higher law values through the use of religious imagery would resolve the current impasse in the interpretation of the Establishment Clause. It would offer secularism an escape from its current tendency toward relativism in its dismissal of all that religion represents and encourage a deepening of the expression of meaning in the public square without compromising secular conceptions of government.
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About the Author
Bruce Ledewitz is Professor of Law at Duquesne University School of Law and author of American Religious Democracy: Coming to Terms with the End of Secular Politics and Hallowed Secularism: Theory, Belief, Practice. Ledewitz is a recognized expert in the fields of constitutional law and criminal law.
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Church, State, and the Crisis in American Secularism
By Bruce Ledewitz
Indiana University PressCopyright © 2011 Bruce Ledewitz
All rights reserved.
What We Say: The Supreme Court's Promise of Government Neutrality toward Religion
The crisis in interpreting the Establishment Clause lies in the gap between what the United States Supreme Court has written that the Constitution demands — what we say — and what American society actually does. The Court has promised government neutrality toward religion; but our practices suggest something quite different. Neutrality has a variety of meanings, as we shall see, but all of its meanings require that the government not endorse religion as a preferred status for the citizenry. The endorsement of religion, however, is precisely what government does today in many ways. Indeed the majority of Americans may believe that government ought to endorse religion. Therein lies the crisis. In this chapter, I will set forth in broad outline the Court's promise of government neutrality. In the next chapter, I will discuss some of our non-neutral government practices.
In 1947, in Everson v. Board of Education, the United States Supreme Court upheld, 5–4, the public reimbursement of parents for the cost of transporting children to any primary or secondary school, including private, religious schools. It was a subsidy meant to keep children from dangerous pedestrian routes. Justice Hugo Black wrote the majority opinion upholding the subsidy. Justice Wiley Rutledge wrote the principal dissent.
The Everson majority opinion is entitled to more weight in the movement toward establishing government neutrality toward religion than a close, 5–4 decision would normally be accorded. Despite upholding the bus subsidy that was at issue in the case, Justice Black's majority opinion basically agreed with the dissenters about the constitutional values controlling the relationship between church and state. Insofar as the majority opinion limited the role of religion in public life, it spoke for the dissenters too, who wanted to go even further in separating church and state. Thus Everson represented, in effect, a manifesto by a unanimous Supreme Court on behalf of a neutral government that could not aid religion.
Justice Black's language of separation between government and religion was uncompromising. The people of the new American nation, he wrote, concluded that
individual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions.
Justice Black strongly identified Thomas Jefferson's and James Madison's opposition to a proposed Virginia tax in support "of the established church" — actually the proposal would have supported any Christian denomination — as the beginning of the anti-establishment tradition that culminated in the two religion clauses in the First Amendment: the prohibition against any law respecting an establishment of religion and the protection of the free exercise of religion. Although the Court had previously referred to the well-known letter by Jefferson to the Danbury Baptist Association, it was in Everson that Jefferson became a pivotal figure in interpreting the Establishment Clause and in which his famous image of the "wall of separation" between church and state came to dominate all of the justices' views of the proper place of religion in American public life.
Justice Black's opinion included a well-known description of the reach of the Establishment Clause. This description probably represented the view of the entire Court:
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 form 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.
The State was to be "neutral in its relations with groups of religious believers and non-believers...."
The disagreement between the majority and the dissenters in Everson was not about whether there was a wall of separation between church and state — Justice Black agreed with the dissenters that the "wall must be kept high and impregnable" and that there must not be "the slightest breach." The disagreement was only over whether a "general program" of transportation that did not exclude religious schools was constitutional. Five justices thought the program was constitutional; four thought not.
The basic, legally binding elements of government neutrality toward religion emerged full blown in the Everson opinion, even though there had been little litigation previously over such matters. The opinion rejected the approach of nonpreferentialism — that government might aid all religions on a nondiscriminatory basis. For Justice Black, it was not enough for government not to discriminate among religious groups. The government was not to be permitted to "aid all religions" either. Thus Justice Black anticipated the question that arises today: whether religion itself may be preferred by the government over irreligion. Black's answer, for the whole Court on this point, was that government must be neutral between believers and nonbelievers.
Yet Everson did not reach the issue of symbolic expression of belief in the public square. The case concerned government neutrality in terms of material aid to religious institutions, such as private religious schools. It was a case about tax money and subsidies. Everson might thus tell us nothing about symbolic government use of religion, such as the words "under God" in the Pledge of Allegiance or the presence of a Ten Commandments display in a county courthouse. For issues like that we must look elsewhere in the case law.
The non-material cases that really brought the Establishment Clause to the attention of the public — what we might call government religious expression cases — were Engel v. Vitale in 1962 and School District of Abington Township v. Schempp in 1963, which prohibited prayer and Bible reading, respectively, in the public schools. These cases moved the wall of separation between church and state out of the musty realm of taxes and subsidies into the highly charged and emotional arena of prayer and confession. These cases are the ancestors of today's dispute about the words "under God" in the Pledge of Allegiance.
In Engel, Justice Black's majority opinion — 7–1 on the main issue — struck down the New York State Board of Regents's nondenominational daily prayer, which was voluntary in the sense that no student was required to participate. The prayer itself was banal, having more to do with obedience to parents and teachers, it seemed, than with any genuine religious sentiment: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our Country."
Because the prayer had actually been written by government officials, the Court could strike down this practice of praying on the narrow ground that the government could not "compose official prayers." A practice like that was too close to what official establishments of religion in Europe had done. The narrowness of that ground meant that it might perhaps be constitutional for a public school, for example, to host different members of the clergy, each offering his or her own prayers for the students each day.
Notwithstanding the narrow ground of the holding, Justice Black's majority opinion reiterated his view in Everson that religion and government were constitutionally required to occupy separate and distinct realms. The opinion interpreted the purpose of the Establishment Clause to prevent a "union" of government and religion, and he attributed to the framers of the Constitution the view that "religion is too personal, too sacred, too holy, to permit its 'unhallowed perversion' by a civil magistrate."
In contrast to the narrow context in Engel, Schempp raised the issue of the relationship of government and religious belief in a more general setting. As described in Justice Tom Clark's opinion for a 7–1 majority, every morning in senior high school, at the beginning of the school day, a student's reading of ten verses from any version of the Old or New Testament was broadcast into each homeroom. There was no preface to these readings, nor any discussion. After the reading, the students stood and were led, similarly by student broadcast, in the recitation of the Lord's Prayer. Any student who wished to abstain could absent himself or herself from the classroom or simply refrain from the reading and recitation.
The Court struck down these practices. Justice Clark's opinion revisited Justice Rutledge's dissent in Everson and quoted its description of the reach and purpose of the Establishment Clause:
The (First) Amendment's purpose was not to strike merely at the official establishment of a single sect, creed or religion, outlawing only a formal relation such as had prevailed in England and some of the colonies. Necessarily it was to uproot all such relationships. But the object was broader than separating church and state in this narrow sense. It was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion.
Justice Clark also quoted from Justice Robert Jackson's dissent in Everson concerning the nature of the relationship between religious and secular education in general. The public schools, Justice Clark quoted Jackson as having written, "are organized 'on the premise that secular education can be isolated from all religious teaching....'"
Justice Jackson's observation is obviously debatable. It is not clear that education can be easily divided into religious and secular components. Such a conclusion depends on what religion is taken to include. For example, in the Schempp case, the Pennsylvania Superintendent of Public Instruction testified that Bible reading constitutes "a strong contradiction to the materialistic trends of our time." Already, therefore, in 1963, the question of the government's view of materialism was felt by some to be relevant to Establishment Clause analysis. Such attitudes toward materialism are a significant matter in terms of the higher law discussed later in this book. I'm not sure anyone can say how Justice Jackson might have responded to the question of whether anti-materialism is a "religious teaching."
Of course love of, and service to, others can be taught in ways other than reading the Bible. My point is that the education of the whole person necessarily involves matters that religion also addresses — for example, the meaning and purpose of life and the nature of a good life.
Schempp did more than outlaw Bible reading in the public schools. Justice Clark's opinion delineated a "test" to evaluate future Establishment Clause challenges in the name of the "wholesome 'neutrality'" that government must evince toward religion. Such tests are important in constitutional law because they allow lower courts to act in an area with more confidence. Only when judges in the lower courts think they understand how the next case should be decided are constitutional provisions readily applied. Justice Clark even called his formulation a "test." Because the Establishment Clause "withdrew all legislative power respecting religious belief or the expression thereof," the test would require nonreligious grounds for government action:
The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion.
Even under this formulation, the Court in Schempp could have concluded that Bible reading was a permissible religious means to a secular end — the goal of educating students to become decent people — but that would have contradicted the opinion's starting point. You could not separate church and state — religion and government — the way the Court wished to do if blatantly religious means were permitted in order to accomplish any governmental ends. Bible reading as a permitted means to good citizenship would have blurred the religious/secular boundary that Justice Clark meant to sharpen. As far as the majority was concerned, after Schempp, school authorities, and indeed all government officials, would be prohibited from concern about the religious or spiritual well being of the citizenry. Any such concern would be considered "religious" and hence unconstitutional.
The "test" described in Schempp was expanded in 1971 in Lemon v. Kurtzman. The decision in Lemon struck down programs of aid to private schools, including religious schools, in Rhode Island and Pennsylvania. Under the Pennsylvania statute, tax money was paid for the cost of teachers' salaries, textbooks, and other material in certain specified secular subjects. In Rhode Island, the state paid a supplement — 15 percent of the annual salaries — to teachers in private elementary schools who taught only certain secular subjects. Chief Justice Warren Burger's majority opinion restated the purpose and effect categories of the Establishment Clause test, but added a prohibition on "entanglement" between government and religious institutions. To survive a challenge under the Establishment Clause, he held, government action must satisfy three criteria:
First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster "an excessive government entanglement with religion."
The entanglement criterion was taken from Walz v. Tax Commission. In 1970, Walz had upheld state tax exemption for real property owned by religious institutions that was used for actual religious worship under a broad tax exemption covering property devoted to religious, educational, or charitable purposes. Walz illustrates that the neutrality principle was never absolute, a point I will return to below.
The Lemon test, as it came to be known, dominated constitutional decisions from its inception in 1971 into the 1980s. Even today it is the closest thing we have to a doctrine of the constitutional law of church and state. As originally intended and interpreted, the Lemon test represented a strong commitment to government neutrality and separation of church and state. A respected textbook states that the "high water mark" of the Lemon test interpreted to prohibit any government aid to religious institutions occurred in 1985, in a pair of cases decided the same day — July 1 — and both subsequently overruled, at least in part: School District of Grand Rapids v. Ball and Aguilar v. Felton.
Ball and Aguilar both involved material aid to religious institutions. In both cases, government employees provided services to school children on the grounds of religious schools. Probably not coincidentally, 1985 also witnessed the Court's strongest statement in favor of the required indifference by government to the religious interests and desires of the citizenry. That case was Wallace v. Jaffree.
Alabama had enacted in 1978 a statute authorizing a one-minute period of silence in all public schools "for meditation." In 1981, Alabama enacted a successor statute that authorized a period of silence "for meditation or voluntary prayer." It was the successor statute that the Court struck down in Jaffree.
Excerpted from Church, State, and the Crisis in American Secularism by Bruce Ledewitz. Copyright © 2011 Bruce Ledewitz. Excerpted by permission of Indiana University Press.
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Table of Contents
I. The Establishment Clause Crisis
1. What We Say: The Supreme Court’s Promise of Government Neutrality Toward Religion
2. What We Do: The Failure of the Supreme Court to Redeem the Promise of Government Neutrality
3. Why Only the People and Not History Can Resolve the Establishment Clause Crisis
4. Proposals That Have Failed to Resolve the Establishment Clause Crisis
II. Using Government Speech and Higher Law to Resolve the Establishment Clause Crisis
5. The Establishment of Higher Law
6. Using Religious Symbols to Establish Higher Law
7. Applying Higher Law in Church/State Issues
III. Using the Higher Law Establishment Clause to Save Secularism
8. The Failure of Secularism under the New Atheism
9. The New New Secularism and the Higher Law
10. Is God a Universal Symbol?
11. The New Politics of Higher Law Secularism
Conclusion: Perfecting Democracy
What People are Saying About This
In our often rancorous and genuinely difficult debates over Church and State, we need more people like Bruce Ledewitz who sets out in search for common ground and who tries to persuade rather than shout down those who disagree with them. He writes in the spirit of someone trying to move us forward, and even those who find much to argue with here will come to see Church, State and the Crisis in American Secularism as an excellent starting place for a more productive argument.
"Bruce Ledewitz has produced a valuable book that raises important questions about the unique relationships between church and state, religion and secularism. Drawing on a rich collection of sources, Church, State, and the Crisis in American Secularism calls on Americans, both secular and religious, to find common ground." —Senator Joe Lieberman
Bruce Ledewitz has produced a valuable book that raises important questions about the unique relationships between church and state, religion and secularism. Drawing on a rich collection of sources, Church, State, and the Crisis in American Secularism calls on Americans, both secular and religious, to find common ground.
A fresh, provocative approach to longstanding problems concerning the relationship of church and state [that] will make people on every side of this debate think more carefully and fruitfully about their positions.