Unity of the Graveyard and the Attack on Constitutional Secularism

Brigham Young University Law Review, 2004 by Gey, Steven G

For what it is worth, the majority of the current Supreme Court recognizes this in at least half of its Establishment Clause opinions.40 At the same time that the Court has been systematically dismantling the structure of Establishment Clause separationism in the financing area,41 it has repeatedly reaffirmed separationism in the symbolic endorsement context.42 At least in cases involving religion in the public schools, which comprise the overwhelming majority of cases involving governmental symbolic endorsement of religion, a sixjustice majority of the Court continues to resist the notion that the legislative majority may choose a set of religious values to serve as the leitmotif for the culture as a whole.43 Ironically, Justice Kennedy, who is also one of the five Justices seeking to abandon separationism in the financing context, authored one of the most vociferous statements of the separationist principle in the symbolic-endorsement context. In the middle portion of Justice Kennedy's opinion for the majority in Lee v. Weisman44 he specifically rejected the goal of a religiously based political unity:

If common ground can be defined which permits once conflicting faiths to express the shared conviction that there is an ethic and a morality which transcend human invention, the sense of community and purpose sought by all decent societies might be advanced. But though the First Amendment does not allow the government to stifle prayers which aspire to these ends, neither does it permit the government to undertake that task for itself.45

Later in the opinion, Justice Kennedy explains why this is so:

The explanation lies in the lesson of history that was and is the inspiration for the Establishment Clause, the lesson that in the hands of government what might begin as a tolerant expression of religious views may end in a policy to indoctrinate and coerce. A state-created orthodoxy puts at grave risk that freedom of belief and conscience which are the sole assurance that religious faith is real, not imposed.46

This, then, is the response to those who would argue that unity through religion is a defining characteristic of the national political character. In justifying government assertions of religious principle in response to national crises, William Marshall gives away the game when he asserts that the "constitutional value of secularism is in its instrumental role, not in its own orthodoxy," because constitutional secularism is intended "to protect, and not to displace, our collective religiosity."47 Both of the primary ideas asserted in this statement are wrong. The first inaccurate assertion is the notion that the country is defined by its "collective religiosity." This is wrong because even if the majority of the country defines itself in this way, the majority is not "the collective." The second inaccuracy is the assertion that constitutional secularism serves only the instrumental function of protecting religion. The constitutional principle of secularism exists to protect democracy, not religion. This is not to say that the constitutional principle of secularism is hostile to religion any more than democracy is hostile to any other set of beliefs, prejudices, or ideals that define the lives of the citizens who live within the boundaries of a country that is governed democratically.