Keep it to yourself: the Supreme Court on religious freedom

Commonweal, August 13, 2004 by Richard W. Garnett

The Supreme Court term ended in late June with an avalanche of headline-grabbing decisions. The justices announced important, even landmark, rulings in cases involving police interrogation tactics, criminal-sentencing procedures, Internet pornography, public access to the decision-making processes of high-level executive branch officials, and--of course--the rights of suspected enemy combatants detained in the course of the current wars.

Blockbuster church-state rulings, though, were surprisingly and unusually absent from the term's dramatic conclusion. Instead, this year's much-anticipated religion clause cases fizzled, revealing an uncharacteristic determination to avoid attention and sweeping, controversial conclusions. In Elk Grove v. Newdow, the hot-button Pledge of Allegiance case, a bare majority employed the technical (but important) doctrine of "standing" to escape the delicate, politically charged task of confronting squarely an atheist's objections to the words "under God." Several months before, in Locke v. Davey, Chief Justice William Rehnquist had crafted a narrow, similarly cautious opinion reaffirming that publicly funded scholarship programs may include religious schools, but rejecting the far-reaching argument that, under the First Amendment's Free Exercise clause, they must. The Court declined even to review potentially explosive disputes involving a Ten Commandments monument in Alabama's Supreme Court building and the Virginia Military Institute's traditional mess hall prayers. And, we will not learn until the fall whether the justices will take up the California Supreme Court's Catholic Charities decision, which upheld a state law requiring most religious employers to include contraception coverage in health-benefit plans.

Still, the Court's recent work in the church-state arena provides more than a case study in reticence, or evidence of newfound judicial humility. The opinions in these cases and the premises they reflect provoke challenging questions about religious commitment, pluralism, democracy, and "division."

Dictionaries tell us that the word "religion" comes from ligare, which means to tie or bind together. Many today, though, regard faith's purported capacity and tendency to "divide" as its most salient and near-defining feature. In our culture and in our courts, difference, diversity, and dissent are accepted--even celebrated--but the division allegedly fomented by religiously grounded claims is widely seen as cause for alarm. True, few contemporary epithets are as wounding, yet so tedious and vacuous, as the charge that a claim, proposal, or belief is "divisive." (Like "controversial" and "partisan," the term seems to do little more than signal the speaker's disapproval.) Nevertheless, the claim that policies thought to cause "political divisiveness along religious lines" are for that reason constitutionally suspect appears to be making a comeback.

In Zelman v. Simmons-Harris (2002), for example, Justice Stephen Breyer dissented from the Court's pro-school-choice ruling, emphasizing "the risk that publicly financed voucher programs pose in terms of religiously based social conflict" and highlighting the need to "protect the nation's social fabric from religious conflict." In his view, avoiding "social dissension" is more than a policy desideratum or a prudent aspiration. It is, somehow, a fundamental, judicially enforceable religion clause "principle." Similarly, three decades earlier, then-Chief Justice Warren Burger reported in the landmark case of Lemon v. Kurtzman (1971) that "political division along religious lines was one of the principal evils against which the First Amendment was intended to protect." Accordingly, the "divisive political potential" of certain school-funding programs was enough to require their invalidation. Burger foresaw "considerable political activity" on the part of "partisans of parochial schools," and would have none of it. Such activity, he feared, "would tend to confuse and obscure other issues of great urgency."

The views and concerns of these justices seem to fit the times. Hardly a day goes by without bold-print reminders from pollsters and pundits that American society is fractured, split, divided--even "at war." We are, according to cultural critic Gertrude Himmelfarb, "one nation, two cultures"; we are, political guru Michael Barone tells us, "hard America" and "soft America"; we are, as commentator David Brooks and others have colorfully described, bobos and patio men, Left Coast and flyover country, latte and sprinkler towns, Wal-Mart and Zabar's.

All that said, it is not clear why our political, cultural, and other "divisions" should be relevant to the legal question of whether a particular policy--say, school vouchers or the Pledge of Allegiance in schools--is constitutionally permissible. In fact, there is something unsettlingly undemocratic about the notion that the First Amendment authorizes courts to protect us from "confusion" or privileges judges' sense of political "urgency." Even Chief Justice Burger conceded in Lemon that "political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government." Judicial squeamishness toward messy politics is hardly a reliable constitutional benchmark.