Seldom has judicial confusion over any topic been more obvious than in a two-day span in late June when, in sequence, a panel of the Ninth U.S. Circuit Court of Appeals found constitutionally impermissible the words “under God” in the Pledge of Allegiance, the U.S. Supreme Court found school vouchers not to violate the non-establishment clause of the First Amendment, and the Tenth U.S. Circuit Court of Appeals declared that memorial tiles designed by families of Columbine High School shooting victims could not be displayed in the school because they included religious imagery. Seldom has legislative confusion over any topic been more obvious than when some members of Congress fell over themselves to harshly criticize both the Pledge decision and the vouchers decision.
While the three cases are different, there is a common thread. The fundamental issue in every case is the question of whether the First Amendment, which declares that “Congress shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof,” is a mandate for tolerance of religious pluralism or a mandate for the active obliteration of religion from public life.
There can be little doubt that the first interpretation is the more venerable, the understanding most consonant with the views and practice of most of the American Founders. Their starting point was the view, summarized by George Washington himself, that “of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports…[R]eason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.” Yet mindful of the religious wars of the 1500s and 1600s, and steeped in the colonial heritage of religious pluralism carried by those who had come to America to escape religious persecution, Americans at the time of the Founding were intent on not handing to the new federal government the right to establish an official church like the Church of England. Here there would be no “national church,” no religious tests for federal office, and no penalty for dissenting beliefs. In this view, religion was a positive force, indeed an essential foundation for republican government, that could and should be nurtured and encouraged in non-coercive and general ways that left maximum freedom to individuals to follow their consciences.
The second interpretation is of more recent origin, and is very different. Where the first insists on a separation of church and state, the second, when boiled down to its essence, demands a separation of religion and society. It holds that any religious element, even the most general, non-sectarian, and non-coercive, must be strictly excluded from any function touched by the hand of government. Today, of course, there is little indeed that is not at least touched by the hand of government. At its heart, this view is propagated most vigorously by Americans who see religion as a pernicious influence, to be tamped down where possible and to be tolerated only when practiced in complete privacy.
Where the first view would allow nativity scenes on public propertyafter all, which church is being established? Baptist? Catholic? Lutheran?the second would banish them. Where the first would allow voluntary prayer in school, the second would prohibit even student-led prayer. Where the first allowed vouchers because parents had an equal choice among religious and non-religious options, the second would ban them because some parents might choose religious schools. Where the first would display the memorial tiles with crosses because they represented the free determination of families that religious symbolism best captured the memory of their children, the second did not because the very placing of them in school was by nature objectionable. Where the first would allow the Pledge, which the Court has already ruled no student may be forced to say, the second disallowed it because some students might not like to hear it.
It is not yet clear whether the Pledge decision or the tiles decision will survive appeal. It is clear that if they do, or even if they do not but serve as inspiration for similar decisions in the future, they represent a dangerous tendency in thinking on this subject. What these decisions say is that rights are violated not only by coercing people to embrace views they find disagreeable, but merely by allowing them to be exposed to the freely expressed views of others that they find disagreeable. What will be left of religious freedom or freedom of speech if people claim a presumptive right to never hear or see in a public setting what they find disagreeable? Though its practice may prove to be more benign, in theory this view is not far removed from “freedom of religion” Soviet-style, in which the official religion was atheism and traditional religion was allowed only if one kept it strictly to oneself. At any rate, it is difficult to detect how the official favoring of atheism would be any different from the actual outcome once this line of legal argument is carried to its full conclusion.
Because the underlying arguments are fundamentally the same in each case, it is disingenuous at best to oppose the voucher decision and then vote for a resolution condemning the Pledge decision, as did legislators like Tom Daschle and Ted Kennedy. The Pledge decision, like the tile decision, is nothing but the logical extension of the views contained in the dissent to the voucher decision. Indeed, for at least forty years, starting with the school prayer case of 1962, we have been on the path to this point.
The court votes on vouchers (5-4) and the Pledge (2-1) show how closely divided is the federal judiciary on these issues. The massive negative public reaction to the Pledge decision shows that on the fundamental issueshould all traces of religion be relentlessly driven from the public square?the American people are not nearly as divided. The juxtaposition of the two is a demonstration of the wide cultural gap between Americas secular elites and the rest of the country.
We are approaching a moment of decision, though it is difficult to predict the result. The voucher decision and the Pledge and tiles decisions cannot coexist indefinitely, as the two doctrines underlying them are incompatible. The radical secularists would seem to be only a few steps away from winning their objective of turning America into a place where freedom from religion is prized at the expense of freedom of religion. On the other hand, they have clearly sustained a major public relations debacle; the Pledge decision could be turned for them into a Phyrric victory. For that to happen, those committed to a vision of the First Amendment that is truer to our national experience and values must take the backlash against the Pledge decision and give it political form and content by connecting the dots of the last forty years for a public that is now awakening from a contented slumber.
Andrew E. Busch is an Adjunct Fellow of the John M. Ashbrook Center for Public Affairs and an Associate Professor of Political Science at the University of Denver, where he specializes in American government and politics. Dr. Busch is the author of Ronald Reagan and the Politics of Freedom. He is also the co-author of The Perfect Tie: The True Story of the 2000 Presidential Election.