Restoring Proper Constitutional Protection to Religious ExpressionBy Ken Blackwell and Ken Klukowski Senior Fellow, Family Empowerment
A situation is unfolding in Florida that is illustrative of how far American culture has listed toward a militantly-secular society that is overtly hostile to expressions of faith and Judeo-Christian traditions. This unfortunate episode is the predictable result of the Supreme Court's half-century of deviation from the constitutional design for religious liberty, a deviation now reinforced by legal principles that are foundational to the American system of law. Religious liberty must be reinstated by the Supreme Court if society is again to enjoy the benefits of our young people receiving moral instruction.
Although others have written at length about the religious beliefs and practices of the Founding Fathers and the Early Republic, less space has been devoted to understanding how we arrived at the current state of affairs. Such an understanding is a sine qua non to finding a route to remediate our religious freedom jurisprudence and restore proper constitutional protection to religious expression in America.
I. An Unprecedented Outrage in Florida
On September 17, the U.S. District Court for the Northern District of Florida considered whether three employees from the Santa Rosa County School District should be imprisoned for praying. The American Civil Liberties Union (ACLU) has brought a lawsuit against the school system for various instances where faith-based actions occurred at various school-related events. The school district ill-advisedly signed an agreement with the ACLU in an attempt to end the litigation. The federal judge on the case then issued an order binding both parties to the agreement.
But the wording of the agreement was broad and sweeping, and predictably a couple incidents transpired that became dual focal points of the present controversy. As to the facts of the scenario, it is sufficient to note that the first of these incidents, in which the principal of Pace High School asked the athletic director to pray at an after-school lunch wherein only adult employees and volunteers were present, did not violate the order. Another incident, at which a school clerk asked her private-sector husband to pray at an evening awards banquet, likely did violate the order.
Apparently unconcerned about the debatable nature of these marginal incidents, however, the ACLU scurried back to court, where the judge issued contempt citations against all three individuals and referred the matter to the U.S. attorney's office for Florida's northern district. The prosecutor (an appointee of Barack Obama) in turn decided to pursue contempt citations against all three, which led to the September 17 trial date. The possible penalties included a $5,000 fine and six months in jail.
The first two individuals (Principal Frank Lay and Athletic Director Robert Freeman) are now being represented by Liberty Counsel. Mat Staver, the head of that organization and the dean of Liberty University School of Law, asserts that to the best of anyone's research, this is the first instance of people being criminally prosecuted in the United States for praying.
Liberty Counsel prevailed at the September 17 proceeding. The threat of contempt citations against all three defendants was removed at the trial, with the principal and athletic director being adjudicated "not guilty" at trial. Liberty Counsel is now proceeding further with this matter, seeking to have the trial judge vacate and modify the original order, and is prepared to take this matter up on appeal to the U.S. Court of Appeals for the Eleventh Circuit if it does not succeed in the district court.
Although the aphorism that "there's a first for everything" is often true, it is a sad commentary on the state of religious liberty in modern America that we are seeing this sort of proceeding, even if it is for the first time. The nation would have been better off had we never seen such a travesty; it is unprecedented, and ought to remain that way.
This is not necessarily a criticism of the judge presiding over this case, as the judge simply incorporated the agreement that the parties had made. Nor is this a criticism of the criminal justice system, although critical remarks seem appropriate for a U.S. attorney who did not exercise his prosecutorial discretion to immediately take incarceration off the table as a possible punishment.
Rather, this is a revealing moment of just how far our culture and our constitutional law have strayed from their historical and philosophical moorings. Something is terribly wrong when simple expressions of faith can result in ordinary people doing time behind bars.
This sad episode is unfolding because the judge in question found that the agreement, even if undesirable and unwise, did not violate the Constitution. And it is true that this agreement may indeed not violate current Supreme Court precedent on religious liberty.
But that is precisely the problem.
II. The Rule of Law in a Common Law System
America has a common-law system. That means that when our courts issue an opinion in a case, the holding of that case becomes law; it is binding precedent for that court and all inferior courts. When the case concerns a statute or regulation, the court's judgment and opinion can be superseded by changing the underlying law. But when the question presented in the case is constitutional in nature, then the court's judgment and opinion become the authoritative interpretation of the Constitution for that issue, controlling all within that court's jurisdiction.
The magnitude of the consequences of such decisions naturally depends upon the court in question. The United States--including its territories--is divided into 94 judicial districts. The holdings of the district courts only bind that district, and everyone enjoys a right of appeal. Those districts are grouped into twelve appellate circuits. The appellate decisions of the U.S. courts of appeals are then binding on that court and all of the states and lower courts within them. And the entire nation is then bound by our highest tribunal, the United States Supreme Court.
The common law system usually provides stability for our country's laws under the doctrine of stare decisis. A lower court is inescapably bound by the precedents of whatever higher courts can claim jurisdiction over it. And under the doctrine of stare decisis (which loosely translated is Latin for "let the decision stand" or "stand by the decision") a court must adhere to its own precedent unless there is a special justification for overruling it. Stare decisis rests on the premise that it is usually better for a question of law to be settled, than for that question to be settled correctly.
That doctrine is the font of much of the security America enjoys under the rule of law. So long as judges are careful and methodical, and the jurists are well-educated, experienced and of sound judgment and measured temperament, there is a cumulative effect whereby wise decisions are reaffirmed, the occasional faulty decision is eventually overruled, and the government and society come to rest and rely upon legal rules and principles to which all are equally subject and from which all enjoy equal protection.
Yet there should be a measured reliance on stare decisis to prevent us from going too far afield from the purpose and meaning of the Constitution. Stare decisis is a general policy, not an inexorable command, as the Supreme Court restated as recently as 1997 in Agostini v. Felton. The Constitution was deliberately written to achieve certain things, mostly concerning either the structure and duties of government or certain specific, enumerated rights possessed by individuals. If a faulty precedent becomes the basis for an entire line of cases, at the point where that precedent and its progeny works against the meaning of the relevant constitutional text--or is destructive of the principles that the text was meant to propagate--then the judiciary should remediate its own jurisprudence.
But where is the balance drawn? Each judge--and more regularly each Supreme Court justice, because it is more often the case that only the Supreme Court is truly free to reconsider these matters--draws the line in a different place. It is a balancing of precedent (protected by stare decisis) versus first principles.
Take an illustrative example. Justice Clarence Thomas (the most conservative member of the Court) is perhaps its most outspoken proponent of advancing first principles through constitutional interpretation. He is so often willing to overturn precedent to return to first principles on a given issue that Justice Antonin Scalia (the second-most conservative member) has said that Justice Thomas doesn't believe in stare decisis. Justice Scalia was knowingly exaggerating with that statement, but he used it to make the point that, relative to where Justice Scalia draws the line, Justice Thomas seems to not feel obligated at all to adhere to precedents that Justice Thomas believes to be wrongly decided.
Yet this is a relative standard. In 2006, the Supreme Court decided the campaign finance case Randall v. Sorrell, challenging a Vermont law limiting campaign contributions. In addition to the central question in the case, the petitioners also presented the question of whether the Court should overrule Buckley v. Valeo, the 1976 case where the Court held that contributing campaign money was sufficiently removed from advancing political speech that such contributing enjoyed less First Amendment protection than political speech, and as such could be more heavily regulated without running afoul of the Constitution. (Conservatives have always considered Buckley to be an egregiously-wrong decision.)
Although the Court struck down the Vermont statute as excessively burdening the First Amendment, it also voted 7-2 to uphold Buckley. Chief Justice John Roberts--the most stringent adherent of stare decisis on the Court--held that Buckley was such a well-settled precedent that it should be retained regardless of its admittedly-serious defects. Justice Samuel Alito voted not to overturn Buckley because the petitioners had not bothered to fully argue that issue in their briefs, and he believed stare decisis minimally required a petitioner to endeavor making a compelling argument for overturning precedent. Justices Scalia and Thomas both voted to overrule Buckley, writing that Buckley so plainly violates core free speech principles that it is completely intolerable under the First Amendment. In Randall, Chief Justice Roberts could have said that neither Justice Scalia nor Justice Thomas believes in stare decisis.
So much depends on what standard one employs as a comparator. American law would not be a firm foundation for our society without stare decisis providing stability and predictability to our system of law. But precious freedoms and essential principles could be lost over time due to faulty adjudications if stare decisis were an absolute bar to revisiting issues in court. Few if any judicial functions require more discernment and care than finding this crucial balance.
III. Flawed Religious Freedom Jurisprudence, Enshrined in Precedent
That is the problem with the Supreme Court's religious freedom jurisprudence. The Supreme Court case law governing the Establishment Clause and Free Exercise Clause of the First Amendment--collectively referred to as the Religion Clauses--is heavily freighted with a series of liberal precedents that are in conflict with historical practices and understandings to such a degree that it would be unrecognizable to our Founding Fathers, or indeed perhaps to any American statesman before the New Deal. This period saw a concurrent leftward shift in the federal judiciary, which reached its most extreme orientation during the final years of the Warren Court in the 1960s, placing our constitutional law in a belligerent posture vis-a-vis people and institutions of faith regarding their First Amendment rights.
This secularizing trend began in the 1947 case Everson v. Board of Education. In Everson, a New Jersey school district was reimbursing parents of parochial school students for the cost of transporting their children to and from school, as authorized by New Jersey statute. The parents won that case 5-4, but this proved a Pyrrhic victory, as two rules were promulgated by the Court's opinion that have haunted our religious liberties since that day.
It is often difficult for non-lawyers to appreciate the significance of Supreme Court opinions. In legislative or administrative matters, all that ultimately matters is the final vote or disposition; words preceding the dispositive act are generally inconsequential. But in law the converse is more often true; the written opinion trumps the Court's vote in terms of importance. The judgment in an individual case binds the parties in that dispute, but the words of the opinion handed down include rules of law that bind not only every court in the land, but every government official at the federal and state level.
Such was the case with Everson. First, the Court held that the Establishment Clause applies to state and local governments through the Fourteenth Amendment of the Constitution. By its own diction, the Establishment Clause only applies to the federal government. That was true for the entire Bill of Rights before the Fourteenth Amendment was ratified in 1868. While there are compelling philosophical and legal arguments as to why certain rights--such as free speech, free exercise of religion, or the right to keep and bear arms--should apply to the states through the Fourteenth Amendment, the historical record is clear that the Establishment Clause was designed solely to prevent the federal government from choosing a single Christian denomination as the official American religion, with taxpayer support for those churches, fines and levies against other faiths, and possibly even government licenses for preaching (as had existed in Great Britain). This entire rationale was lost by extending the Establishment Clause to the states.
The second monumental change in religious liberty in Everson was the "wall of separation between church and state." This case was the genesis of that doctrine in American law, which is cited for the proposition that the Establishment Clause requires the principle of neutrality: that government must be neutral in matters pertaining to religion, including not favoring religion over irreligion. That "wall of separation" phraseology comes from an 1802 letter written by President Thomas Jefferson to the Danbury Baptists of Connecticut. Although it is quite evident that this phrase from that letter-which was private correspondence, not a policy statement-meant that churches enjoyed a wall of protection shielding them from government interference, this metaphor has been employed for sixty years to support the idea that the public square should be walled off from any manifestation of religious sentiment or influence. Everson originated that doctrine, which has increasingly plagued the United States ever since.
In the 1960s, the Warren Court began employing the Everson precedent, with its separation of church and state, to begin secularizing American society. In 1962 and 1963 the Court declared school prayer and Bible reading unconstitutional. The 1960s also saw the Court strike down laws inhibiting the teaching of evolution, signal that many other changes regarding faith in public would be forthcoming, and in the 1968 case Flast v. Cohen made it much easier for unaffected citizens to bring lawsuits challenging religious acts and displays.
That trend continued through the Burger Court and Rehnquist Court (although it should be clearly noted that Chief Justice William Rehnquist consistently voted to reverse this trend). Among other things, in the 1970s the Court promulgated the anti-religious Lemon test in Lemon v. Kurtzman, which continually evolves into new forms as the Court's membership changes, and which conservative justices attempt to overrule at every opportunity. Under Lemon, government acts are illegal if they lack a predominantly-secular purpose, advance or inhibit religion, or excessively entangle government with religion.
The Lemon test has continued to dog people of faith since then. In the 1980s, the Court barred the showing of the Ten Commandments in schools. It then barred moments of silence in schools, nativity scenes in government buildings, and certain religious symbols on government land. In the 1990s, it outlawed prayers at school graduation ceremonies, and in 2000 expanded that ban to forbid even voluntary, student-led prayer at Friday night football games.
From 1989 until the present, the dominant test for Establishment Clause lawsuits has been the endorsement test. Under that test--which is one of the many variations of the Lemon test--a government act touching upon faith or religion is unconstitutional if it gives the appearance of a government endorsement. The reason this test has dominated for so long is because it was the test used by Justice Sandra Day O'Connor, and in her role for those years as the swing vote on the Court (meaning her vote was often the fifth vote in 5-4 splits), she had the power to determine the test used by the Court. Many traditional religious displays were struck down during these years because they ran afoul of this defective test, as it is not difficult to mislabel many faith-based displays or expressions as "endorsements."
IV. Hope for a Significant Shift from the Roberts Court
That test will now likely shift in the Roberts Court. The Roberts Court has not yet taken up a major Establishment Clause issue, though history dictates that such a case will arrive soon enough. But now that Justice Samuel Alito has replaced Justice O'Connor, the swing vote on the Court (and the sole moderate jurist) is Justice Anthony Kennedy. Justice Kennedy has always dissented from the endorsement test, writing instead that the proper test is the coercion test (another variation of Lemon), under which government actions touching upon faith are unconstitutional if those present feel coerced to participate or support it. Although still problematic, Justice Kennedy's test is much friendlier to people of faith in every setting but one (that one being public schools when children are present).
In such a regime, situations such as the travesty unfolding in Florida referenced at the outset should be unthinkable. Activities involving prayer outside of a public school setting have always received special protection by the Court. Indeed, in the 1983 case Marsh v. Chambers the Court even set forth a special rule to protect legislative prayer (which is public prayer offered in governmental meetings or events), holding that the Lemon test does not apply and that instead such public prayers are constitutional so long as they are not used to proselytize the prayer-giver's faith or disparage other faiths.
The fact that this Florida situation exists is a testament to how hostile our law has become to expressions of faith, and that our society is now willing to countenance such antipathy. The radical secularization initiated by the Warren Court is bearing fruit, as for the first time those who entered elementary schools after the Court had sanitized those schools of Judeo-Christian references and moral absolutism are now mature adults in positions of power to act upon what their earlier experiences taught them was normal. Many millions of Americans now expect and demand that they not be exposed to any sort of religious expression in public, creating tension with many millions of other Americans who observe and value the United States' moral and religious heritage.
Effective restoration of the proper place of faith and religion in our society will require remediation of the Supreme Court's Establishment Clause jurisprudence. Although much should change for the better with Justice Alito taking Justice O'Connor's seat, Establishment Clause cases will not result in outcomes consonant with our Founding Fathers' design for religious liberty and moral instruction to produce a virtuous citizenry until Lemon v. Kurtzman is overruled by a rule that benevolently accommodates expressions of faith and does not interfere with religious thoughts or institutions.
Only then will expressions of faith in the divine, along with predicate concepts of absolute truth, personal accountability and transcendent reality, and consequent concepts of virtue and morality, be able to again exercise a formative (and reformative) influence on American society. Only then will people of faith--especially adherents of the various denominations of Christianity that still propound normative behavior derived from moral principles decreed by a transcendent deity who has revealed himself to humanity--again enjoy the liberty originally enshrined in the Constitution.
With each passing day, more young Americans are developing firm convictions regarding the profound questions of life, including those pertaining to morality and normative behavior. A cultural decline affecting all of our institutions, including even the institution of marriage, is advancing in contemporary American society. This insidious trend is manifesting in our children in alarming ways, to the detriment of our foundational social structures. People of faith must restore proper constitutional safeguards for religion, to fully engage in this cultural conflict and regain the high ground in our public discourse.
Ken Blackwell is the former secretary of state of Ohio, and is a senior fellow with both the Family Research Council and the American Civil Rights Union, and also a visiting professor at Liberty University School of Law.
Ken Klukowski is a fellow and senior legal analyst with the American Civil Rights Union, and holds degrees from the University of Notre Dame and George Mason University School of Law.