Government and Religion
Justice Frankfurter said, "Anybody can decide a question if only a single principle is in controversy." But the world of truth is contradictory. As Emerson said, "Mad contradictions flavor all our dishes." For every truth, there is a counter-truth: individual rights and majority rule; freedom and order; fifty states and one indivisible nation; religion and secularism; change and stability; privacy and knowledge; new truths and old ones; discretion and rule; mercy and justice; and so on. Important constitutional issues that reach the Court are often "close" issues involving the conflict of these opposing values or truths, each important. As I have written elsewhere, "Those who think simplistically and without proper regard for the intended role of the judiciary in our system of government think that being a judge is just a matter of voting for or against a particular issue." Robert Frost, who was a renowned college teacher as well as poet, used to tell his students that thinking is more than simply voting or taking sides on an issue. Deciding appeals in the great common law tradition requires more. So does legislating by members of Congress require more. And so did the drafting of our Constitution, adopted in 1789, require more.
In any system of government, one of the great, unavoidable antinomies is that between religion and secularism -- how should the balance be struck? We know how the balance is struck in some countries. Iran, which calls itself an "Islamic republic," struck the balance in favor of the Islamic religion after the Shah was ousted and the Ayatollah Khomeini took power in 1979.
Some Americans who have forgotten their high school class in American history seem to think that it was clear from the beginning that our country stood for religious liberty. Others are sometimes heard to say that ours is a "Christian nation" or a "Christian republic." Both suppositions are incorrect.
Whatever their virtues, the Puritans of the Massachusetts Bay Colony also had a "dark side," which Scott Atkins of the Capitol Project of the American Studies group at the University of Virginia reminds us was exemplified by "witch-hunts, elitism, intolerance, narrow-minded zealotry," matters dramatized by the great Nathaniel Hawthorne in The Scarlet Letter. For a time, Massachusetts was a theocracy not totally incomparable to Iran's Islamic republic.
One of the great historians of the American resolution of the antinomy between religion and secularism was the late Zechariah Chaffee, Jr., a professor at Harvard Law School, my alma mater. The best single piece by Chaffee on the subject is "With Full Liberty in Religious Concernments," which appeared at 77 Library Journal 379 (1952) and in The Christian Register (May 1952) and which is reprinted in a collection of Chaffee's writings on civil liberties titled Zechariah Chaffee, Jr. Freedom's Prophet (1981). Chaffee wrote:
Liberalized by felling trees and building log-cabins with men of many different faiths, the colonists had gradually come to believe in liberty for most beliefs, but not yet for those which were detested or strange to them. But not for Roman Catholics, but not for atheists, but not for Unitarians. 'I believe in religious freedom, but --' For Roger Williams [of Rhode Island] there was no 'but.' He welcomed the Jews to Newport and gave the Quakers a refuge from being hanged in Boston....No doubt he would have given hospitality to Catholics as well, if any of them had come....
According to Chaffee, "In his idea of soul liberty Roger Williams had precursors, but he was the first to bring this ideal down to earth....As the patent lawyers say, he reduced the invention to practice. Other men had dreamed of 'full liberty in religious concernments.' He made the dream work." Williams' dream not only was made a concrete reality by being applied in practice, it was formalized in Williams' Rhode Island Charter of 1663.
...[T]he first state to follow [Williams'] example was Virginia in 1785....These principles of Jefferson's were...written into the United States Constitution. That instrument makes no mention of God...In 1791 the First Amendment began: 'Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof....'
As Chaffee put it so eloquently and, I believe, persuasively:
...We have made our choice and chosen the dream of Roger Williams. It was not a choice between a good dream and a bad dream, but between[, on the one hand,] a good dream which on the whole works and[, on the other hand,] a good dream which occasionally turned into the nightmare of...the hanging of Mary Dyer on Boston Common [under the Puritans]. Sometimes nostalgia for what we have given up creeps over us. Men sometimes lament, for instance, that our public schools are godless. Suppose we admit frankly that this is a loss to the public schools...It is a price to pay, but we must look at all which we have bought thereby. We cannot reject a portion of the bargain and insist on keeping the rest. If the noble ideal of the Puritans had persisted, there would be no godless schools in Massachusetts and there would be nobody in her churches except Congregationalists. Through the choice which all of the United States has made, it becomes possible for men of many different faiths to live and work together for many noble ends without allowing their divisions in spiritual matters to become, as in the old days, unbridgeable chasms running through every aspect of human lives.
This does not mean that our Judeo-Christian heritage is irrelevant or even that a public office-holder may not draw on his or her own religious heritage, whether it be Judeo-Christian or some other religious heritage, in making his or her decisions or casting his or her votes.
I, for example, oppose the death penalty in all its forms, whether by beheading (the method used by our allies in Saudi Arabia), shooting in the back of the head (the method commonly used by Red China), firing squad, lethal injection, hanging, poison gas, electrocution, or any other method. There are many people of religious faith who support the death penalty and feel there is no dissonance between their support for it and their religion. I feel otherwise, and have always felt otherwise. As a Norwegian Lutheran, I am always amazed that so many people who claim to be followers of Jesus Christ, who was judicially tried, convicted, and executed according to the laws of the realm, support the death penalty. In his plea to the court for mercy in the famous Leopold and Loeb Case, Clarence Darrow, the great "defender of the damned," said, "This is a Christian community, so-called, at least it boasts of it, and yet they would hang these boys in a Christian community. Let me ask this court, is there any doubt about whether these boys would be safe in the hands of the founder of the Christian religion? It would be blasphemy to say they would not." Although I don't agree with the Catholic Church's position on every so-called social issue that comes before legislators, I agree with its commendable perspective on the death penalty, summarized in Responsibility, Rehabilitation, and Restoration: A Catholic Perspective on Crime and Criminal Justice.
While it seems rather obvious that a public office-holder appropriately may "draw" on his or her own religious heritage as a factor in the totality of factors considered in making his or her decisions or casting his or her votes on matters such as capital punishment, it does not follow that legislators are free to enact laws (or judges are free to issue decisionns) that conflict with the First Amendment's protections of free exercise of religion and against government establishment of a religion. This is what Chaffee was getting at when he talked about the "bargain" we made in adopting the First Amendment.
Of course, where legislators in the first instance and judges as enforcers of Constitutional guarantees may and/or should draw the line between what does and does not constitute "establishment" is not always crystal clear. But that doesn't mean there isn't or shouldn't be a line of separation.
What are my views on where the line lies? My previously-published views (click here, here and here) on the so-called "10 Commandments in the Courthouse" controversy will give you an inkling of my perspective on many of these separation issues. Here is one of those postings, dated 11.04.2001, a posting, by the way, that has been linked to and quoted from on a number of other websites:
The "Ten Commandments movement" revisited. Last summer (click here), I described the ongoing soap opera in Alabama involving a) the election, with considerable unintended "help" from the ACLU, of Roy Moore, the so-called "Ten Commandments Judge," to the chief justiceship in November of 2000 and b) the placement by the Chief, without advance knowledge or approval by his cohorts, of a "Ten Commandment monument" in a prominent public area of the Alabama Judicial Center. Today, 11.04.2001, I posted there my latest update, a link to a news story relating to the filing of two separate lawsuits in federal court by parties seeking an order directing Moore to remove the monument. Story in Freedom Forum dated 11.03.2001. The story also refers to skirmishes in other states in which politicians have tried or are trying to follow Moore's lead. Some have asked, "What's so bad about what Moore has done?" That's somewhat like the legendary question, "What is jazz?" If you have to ask, well, maybe you'll never get it -- or maybe you'll never see it as I see it and as other people who believe in the Constitution's separation of church and state see it. I think a better question is, Do I think there's a place for "The Ten Commandments" in a court house or court room? My answer to that is "Yes, come to the Supreme Court's main court room in the Minnesota State Capitol in St. Paul or go to the U.S. Supreme Court Building in Washington, D.C. and see for yourself." Both buildings were designed by Minnesota's greatest architect, Cass Gilbert. In Minnesota Gilbert assigned to John La Farge the task of executing four huge paintings to fill lunettes inside the court room. La Forge's paintings relate to the history or evolution of the law. One, in the north lunette, depicts Confucius and three disciples recording precedents. The one in the west lunette is of Socrates and his disciples and is intended to depict, among other things, freedom of thought and expression. The one in the south lunette relates to the Roman law; its theme is the need for law to mediate the great antinomies or opposing truths, such as freedom and order. The one in the east lunette, over the bench where the justices sit, is of Moses receiving the moral and divine law on Mt. Sinai. In the court room in Gilbert's U.S. Supreme Court building are marble friezes depicting the great lawgivers of history sculpted by Adolph Weinman. If you've ever possessed a 1916-45 Winged Liberty or "Mercury" head dime, you've owned a piece of art created by Weinman. The model for the 1913 bust on which the coin design is based was Elsie Kachel Stevens, the wife of one of America's greatest poets, the lawyer Wallace Stevens. Anyhow, in the court room friezes Weinman included 18 "lawgivers," specifically, Menes, Hammurabi, Moses, Solomon, Lycurgus, Solon, Draco, Confucius, Octavian, Napoleon Bonaparte, John Marshall, Blackstone, Grotius, Louis IX, King John, Charlemagne, Muhammad and Justinian. For more, see Joan Biskupic, Great Figures Gaze Upon the Court Washington Post 03.11.1998. If Alabama's Chief Justice Moore weren't a judicial demagogue and if he really wanted to "do it right," he wouldn't have done it the way he did. He'd have talked it over with his colleagues, he'd have done some research, and he'd have solicited input from legal scholars and historians -- and there wouldn't be any "Ten Commandments controversy" whatever. Moore would have had his Moses, and more.... But, in my opinion, politicians like Moore aren't as much about Moses and the great Judeo-Christian tradition as they are about using Moses and the great Judeo-Christian tradition to create controversy and get votes. (11.04.2001) [Update dated 08.23.2004: Moore refuses to comply with federal court order directing removal of monument; Alabama Supreme Court orders monument removed; Alabama's Court of the Judiciary removes Moore from office for refusing to comply with court order; Monument to go on tour around country; Moore asks U.S. Supreme Court to reinstate him.]
Dahlia Lithwick, the brilliant and provocative lawyer/writer who covers the U.S. Supreme Court for Salon, has been contributing columns to the Op-Ed page of the New York Times in Tom Friedman's absence. On 08.22 she contributed a piece entitled Chipping Away at the Wall that gives her interesting perspective on the ongoing antinomy between religion and secularism in government in America. She writes, in part:
The twin religious protections enshrined in the First Amendment - that one can freely exercise one's religion, and that the government cannot establish a state religion - are forced onto a collision course when public officials insist their personal religious freedom allows them to promote sectarian views in office. Yet with ever-increasing shrillness, we hear from elected or appointed officials that it's religious persecution to ask them to suspend sectarian prayer or practices on the bench, in the legislature or at the schoolhouse gate. To be sure, the courts have made a hash of the First Amendment religion jurisprudence....But the courts have not backed down from the principle that imposing sectarian religion in the public square violates the Constitution. Religious Americans have every right to insist they shouldn't have to be religious in the closet. But that doesn't give public officials some free-floating constitutional right to exercise their religion at the expense of everyone they ostensibly serve. At the end of the monkey trial [a/k/a the Scopes Trial], H. L. Mencken wrote that Tennessee had seen "its courts converted into camp meetings and its Bill of Rights made a mock of by its sworn officers of the law." We are there again. Maybe the judge and the jury were right to convict Mr. Scopes for teaching something so absurd as Darwinism. We haven't evolved one bit.
Copyright (c) 2004 by Burton Randall Hanson. Prepared & published by candidate on his own behalf and at his own expense. Candidate may be reached by e-mail at email@example.com. Candidate does not solicit or accept contributions or endorsements.