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By Professor William Wagner
The Threat to Expression and Conscience: Religious & Secular Government Establishment
Some nations formally prefer and officially establish government religion. Of the nations that establish an official government religion, some restrictively require that the laws of the nation conform to the viewpoints and tenets of the preferred religious doctrine. For example, a sampling of the Constitutions from some Islamic States provide:
Islam is the Religion of the State. Arabic is its official language, and the principal source of legislation is Islamic Jurisprudence (Shariah). (Egypt, Const. Art. 2)
Islam is the official religion of the State and is a foundation source of legislation: … No law may be enacted that contradicts the established provisions of Islam. (Iraq, Const. Section One – Fundamental Principles, Art. 2)
The religion of the state of the Islamic Republic of Afghanistan is the sacred religion of Islam…. In Afghanistan, no law can be contrary to the beliefs and provisions of the sacred religion of Islam. (Afganistan, Const. Chapter One – The State, Art. 2, 3)
Although other nations that establish an official government religion often do not require that the laws and policies of the nation be consistent with the tenets of the religion, the laws enacted often infringe upon the exercise of religious conscience. For example, while the United Kingdom formally established the Church of England as its official church, (a denomination of Christianity) government actions there increasingly interfere with Christians expressing viewpoints informed by sacred tenets, and grounded in sincerely held religious conscience.
Yet other nations establish purely secular governments, like France. Government actions in these nations likewise increasingly infringe upon Christians expressing their faith.
Providing the most protection of a citizen’s religious conscience and expression is the traditional American model. Here the First Amendment to the American Constitution prohibits Congress from enacting laws that either: 1) establish a government religion; or 2) prohibit the free exercise of religious conscience; Under this same Amendment, Congress is further prohibited from abridging one’s freedom of speech and one’s right to peaceably assemble. Thus, the plain language of the Constitution’s text expressly precludes Congress from preferring a particular religious doctrine or viewpoint by establishing an official religion to the exclusion of others — and from prohibiting one from exercising and expressing their religious conscience, whatever denomination it happens to be. Because the plain language of the American Constitution does so much to protect religious conscience, and because some American courts have done so much to diminish the protection the plain language provides, it is worthwhile to take a closer look at what is happening.
The Establishment Clause in the First Amendment to the United States Constitution states: ‘Congress shall make no law respecting an establishment of religion…’1 Government action violates the Establishment Clause if government officially establishes one religion against others. For example it would violate this Clause if the United States established a national religion and required all legislation be consistent with that religion’s religious laws.
Assuming government is not overtly establishing a state religion, (e.g., an Islamic State) determining whether a government action violates the Establishment Clause inevitably involves judicial interpretation of the Clause. When it comes to judicial review of government action and the Establishment Clause, competing worldviews and interpretative approaches continue to produce inconsistent precedents, providing little predictability.2 The jurisprudence grounded in America’s deeply rooted cultural and legal traditions collide with jurisprudence embracing an ever-evolving, immorally-relative approach.
Some judges interpreting the Establishment Clause see the Constitution as its Framers did, through an objective Christian Worldview lens. [Hyperlink to Unalienable Worldview] Because they share the Framers’ objective worldview, and because they desire to preserve the unalienable rights that view protected in the Constitution, these judges adhere to the Framers’ intent in their interpretive endeavors. Many judges seeking the Framers’ original intent behind the Establishment Clause thus see there a desire for government accommodation of religion, equality of treatment, and absence of coercion into religious beliefs or practices by force of law.
Other judges view the Establishment Clause through a morally relative subjective Secular Worldview lens. [Hyperlink to Alienable Worldview] These judges see the Clause as an evolving organism, the meaning of which they believe their worldview empowers them to actively adjust and manipulate. When a subjective worldview leads to applying a judicially active organic approach to interpreting the Establishment Clause, Congress shall pass no law respecting the establishment of religion evolves into a morally-relative world where all government action must have a secular purpose and not even symbolically endorse religion.
Proponents of this approach favor it because it enables judges, informed by a subjective worldview, to judicially nullify unalienable absolutes. The Court typically takes a moral absolute once in God’s realm (e.g., the origin of the universe or the sacredness of human life) and re-characterizes it as a policy up for discussion. Then, invoking a morally relative analysis, the Court holds everyone can participate in the discussion except for those informed by religious viewpoints. Thus, although often couching its analysis in terms of neutrality, court decisions informed by the subjective worldview require secularly informed purposes while prohibiting religiously informed ones. Descriptive of such an analysis is Justice O’Connor’s concurring opinion in Wallace v. Jaffree:
It is not a trivial matter, however, to require that the legislature manifest a secular purpose and omit all sectarian endorsements from its laws … It reminds government that when it acts it should do so without endorsing a particular religious belief or practice that all citizens do not share.3
Under the subjective worldview it is acceptable (and sufficiently neutral), though, for government to dictate and endorse a secular belief or practice that all citizens do not share.
The jurisprudential implications are immense. Implying the irrelevance of God and his moral absolutes facilitates judicial extinction of unalienable liberty as viewed by the Framers. Jurisprudentially, with God and His objective self-evident truth out of the way, only human/ government determined liberty exists. Having laid this foundation, the threat to unalienable life and liberty from application of a morally relative and subjective worldview exponentially increases – including the unalienable liberty protecting the free exercise and expression of religious conscience.
The Threat to Expression and Conscience: Free Exercise & Free Speech Clauses
Ratified in 1791, the First Amendment to the United States Constitution additionally provides:
Congress shall make no law … prohibiting the free exercise of religion or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
American citizens traditionally understand these First Amendment freedoms to be some of our most inviolable of the unalienable rights. Blackstone’s comments on the evils of government placing prior restraints on speech are illustrative of why, under the Unalienable Judeo-Christian Worldview, speech is an inviolable liberty worth protecting:
To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government.4
Similarly, because the American nation’s Framers knew God as the source of our liberty,5 they likewise viewed protecting the free exercise of religious conscience as essential. Given the deeply rooted cultural and legal traditions of the nation, a majority of the Supreme Court, for a time, agreed. Thus, in a number of cases the Court treated the free exercise of religion and freedom of speech as fundamental rights. For example, in Brandenburg v Ohio, the Court ruled that even speech advocating illegal action is protected, as long as the speech is not inciting imminent lawless action.6 In Turner Broadcasting System v FCC, the Court ruled, ‘Government action that stifles speech on account of its message, or that requires the utterance of a particular message favored by the Government, contravenes this essential right…’7
As to the Free Exercise of Religion, in Sherbert v Verner, the Court struck down government action denying unemployment benefits to a person who lost her job when she did not work on her Sabbath.8 Similarly, in Wisconsin v. Yoder, the Court overturned convictions for violations of state compulsory school attendance laws that conflicted with defendants’ sincerely held religious beliefs.9
Because the Court considered these unalienable rights fundamental, it therefore required government to provide, for example, a compelling interest to justify content-based restrictions on speech or interfering with an individual’s free exercise of religion. The Court, while applying this strict scrutiny to government action, further required the government to show it used the least restrictive means available to accomplish its interest. Under the Unalienable Judeo-Christian Worldview, these unalienable rights are seen as an inviolable limit on government action.
The Court eventually drifted away from this Constitutional absolute in connection with its treatment of the freedom of religion. In Employment Division v. Smith the Supreme Court upheld as constitutional a law substantially infringing upon the free exercise of religious conscience.10 In Smith the Court employed notions of neutrality, characterizing the government action at issue as a neutral law of general applicability. Because the government action was neutral and generally applicable, the Court required no justification by the government for its action—even though the action substantially infringed upon the free exercise of religious liberty. Thus, the Court concluded that in such situations government action is constitutional if rationally related to a legitimate government interest—the lowest level of scrutiny an American court can apply when reviewing a law to determine whether it is constitutional.11 Note again how notions of neutrality, here in the Smith case, lead to increased authority for government action.
In response to the Smith decision, a provoked citizenry called their representatives in Congress. Congress, with limited success, enacted laws attempting restore the free exercise of religion to full-fundamental right status under the Constitution. Viewing the Constitution through the Unalienable Judeo-Christian Worldview lens, Congress responded to the Supreme Court by passing, in a bi-partisan way, the Religious Freedom Restoration Act (RFRA).12 The act expressly provided that:
Government shall not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability, [unless] … it demonstrates that application of the burden to the person— (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.
In promulgating the RFRA, Congress declared: ‘the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution’. Congress stated the purpose of the legislation was:
(1) to restore the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder, and to guarantee its application in all cases where free exercise of religion is substantially burdened; and
(2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government.
The Congressional response to the Supreme Court’s Smith decision was not limited to passage of the Religious Freedom Restoration Act. Congress also enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA).13 This act required state and federal courts to apply strict scrutiny to any government actions substantially infringing on the free exercise of religion in cases involving land use or institutionalized persons.14 Through the lens of the Unalienable Judeo-Christian Worldview, note how recognition of inviolable unalienable liberty serves as a limit on the exercise of government power.
Although the concise language of the First Amendment limiting government action is clear, academics and judges using an Alienable Humanistic Worldview lens continue to evolve enough opacity around it to cloud its meaning in controversy. A central concern of constitutional analysis is how a rule of law established in a particular case will eventually be applied to future cases with different facts. What results when different constitutional analyses, informed by different jurisprudential worldviews collide? For example, assume a person engages in freedom of speech, expressing a sincerely held religious tenet (e.g., concerning sexual conduct outside of marriage between a man and a woman). Now assume that the expression offends another person on the basis of a protected classification or fundamental liberty interest created by government officials or the Court (e.g., sexual orientation, personal autonomy, etc). Should the government prosecute the speaker for her speech to protect the government / judge-created fundamental liberty interests? Consider, under the Alienable Humanistic Worldview, that the privacy right is said to be “central to personal dignity and autonomy,” and that “[a]t the heart of liberty is the right to define one’s own concept of existence…” What are the implications of applying this morally-relative subjective rule of law?
The founders of the American government informed by the Unalienable Judeo-Christian Worldview, intended that the inviolable objective standard in the First Amendment limit the government from interfering with the speaker’s freedom of expression and free exercise of religious conscience. Whether it will continue to do so is no longer clear. Consider the following court decisions and official government actions.
1) In a recent Texas case, students wanted to pray at their high school graduation. The judge not only ruled against the students, but threatened them with incarceration. The judge was quoted as saying:
And make no mistake, the court is going to have a United States marshal in attendance at the graduation. If any student offends this court, that student will be summarily arrested and will face up to six months incarceration in the Galveston County Jail for contempt of court. Anyone who thinks I’m kidding about this better think again. Anyone who violates these orders, no kidding, is going to wish that he or she had died as a child when this court gets through with it.15
2) Congress introduced the ‘Disclose Act’. Employing notions of ‘neutrality’, the act dramatically increases government regulation of online news, including blogs.16
3) Government speech codes limit and proscribe speech determined by those holding power as hateful or offensive. Such codes proscribe speech on the basis of government-created classifications of people, (deemed by those holding power as worthy of governmental protection). For example, one government university proscribes electronically ‘[t]ransmitting statements, language, images or other materials that are reasonably likely to be perceived as offensive or disparaging of others based on race, national origin, sex, sexual orientation, age, disability, religious or political beliefs’.17
4) A state university expelled and denied a graduate degree to a student after the student expressed her sincerely held religious beliefs.18 The student was participating in a graduate program in counseling.19 Due to sincerely held religious beliefs, the student requested to opt out of counseling clients engaging in sexual conduct, requesting permission to refer such client to other counselors.20 In ruling against the student, the Federal Court, in Ward v. Wilbanks, relied upon an expert report by the Chief Professional Officer of the American Counseling Association:
Plaintiff’s request to refer clients based on their protected status (sexual orientation) ‘was a clear and major violation of the ACA Code of Ethics as it also would have been if she had refused to counsel an assigned African American client on the basis that her values would not allow her to provide services to people of color.21
The court concluded that the plaintiff violated the state university’s curriculum requirement
It is true that [the state university’s] curriculum does require plaintiff to make an effort to counsel homosexual clients, but, contrary to plaintiff’s assertion, this requirement is not a requirement to endorse or advocate homosexuality, hence infringing her free exercise rights. Plaintiff was not required to change her views or religious beliefs; she was required to set them aside in the counselor-client relationship-a neutral, generally applicable expectation of all counselors-to-be under the ACA standard.22
In the United States and around the world we live in dangerous jurisprudential times, with worldviews colliding. Proponents of religious liberty see individuals expressing a sincerely held religious belief concerning immoral conduct as an inviolable, unalienable liberty. Those seeking to diminish or remove religious expression in civil society say exercise of that liberty is considered improper conduct subject to government sanction (in the name of protecting other government-created liberty interests involving classifications of people specially designated by those holding power).
- US Constitution, Amendment 1.
- To illustrate, compare two Establishment Clause cases handed down by the Supreme Court on the same day: Van Orden v Perry (2005) 545 US 677 (upholding government action placing Ten Commandments on Government property as Constitutional) and McCreary County v ACLU (2005) 545 US 844 (striking down government action placing Ten Commandments on government property as unconstitutional). Four justices would have upheld both, viewing the issue through the Unalienable Worldview lens. Four justices would have struck down both, viewing the issue through the Alienable Worldview lens. One justice upheld one and struck down the other viewing the issue through the Alienable Worldview lens—but applying subjectivist, morally-relative principles, found one symbolically endorsed religion and one did not.
- Wallace v Jaffree (1985) 472 US 38.
- Blackstone, Commentaries (1769) 4:150–153.
- See, e.g., Charles C E Rice, note 2 above, See also discussion in prior sections, and sources cited therein.
- The Brandenburg Court said: ‘[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action’. Brandenburg v Ohio (1969) 395 US 444.
- Turner Broadcasting System v FCC (1994) 512 US 622.
- Sherbert v Verner (1963) 374 US 398.
- Wisconsin v Yoder (1972) 406 US 205.
- Employment Division v Smith (1990) 494 US 872.
- Compare, Church of Lukumi Babalu Aye v Hialeah (1993) (holding that Court will apply strict scrutiny to a law substantially infringing upon religious liberty when the law is not a neutral law of general applicability).
- Title 42 United States Code § 2000bb.
- Title 42, United State Code—Chapter 21C.
- The Supreme Court reviewed Congress’ exercise of its power after the passage of RFRA and RLUIPA. In City of Boerne v Flores (1997), the Court held that Congress acted outside the scope of its constitutional authority when enacting the RFRA as applied to the states; In Gonzales v O Centro Espirita A Beneficente Uniao Do (2006), it upheld the RFRA requirements as applied to federal government actions. In Cutter v Wilkinson (2005), the Court upheld RLUIPA, finding that the Commerce Power and the Spending Power constitutionally authorized Congress to enact the relevant provisions of the statute.
- J Folger, ‘How to Treat a Bully’, World Net Daily (Online), 03 July 2007 http://www.wnd.com/news/article.asp?ARTICLE_ID=56479.
- B Smith, J Patch, ‘From Banning Books to Banning Blogs: How the DISCLOSE Act will restrict free speech’, Reason.com (online), 18 May 2010 <http://reason.com/archives/2010/05/18/from-banning-books-to-banning/>; J Samples, ‘Opposing view: New requirements are a blatant effort to chill political speech’, USA Today, 30 April 2010.
- Foundation for Individual Rights in Education, ‘Spotlight on Speech Codes 2010: The State of Free Speech on Our Nation’s Campuses’, 2010, p 18, http://www.thefire.org.
- Ward v Wilbanks 09 CV 11237 (2010 E.D.MI), 2010 WL 3026428.
- Id at 18.
- Id. at 19.