Recently in Church-State Category

Bruce Ledewitz makes a worthy case over on Religion Dispatches that the Mojave Cross, whose constitutionality the Supreme Court will determine in Buono v. Salazar, can properly be understood as combining secular and religious meanings. Its original purpose was, simply and secularly, to memorialize the fallen in World War I, crosses having become a symbol of the carnage of that struggle. Such usage does not, Ledewitz asserts, eliminate Christian meanings, or trivialize them--as Steve Waldman argues. In line with his recent book, he urges Americans to cultivate an appreciation of the virtues of both secularism and religion--to avoid the ominous either/or--including in our Establishment Clause cases. Can't we just get along?

Maybe. But the point of the First Amendment in banning religious establishments is not to foster mutual understanding and appreciation, worthy as those ends are, but to keep the government from endorsing a particular religious tradition. It's easy enough, as Ledewitz does, to disdain avoiding constitutional problems by putting a dancing bear next to a Cross, but what about a Star of David or a Buddhist prayer wheel? Would those also trivialize the Cross, and if so why?

The Mojave Cross may well live to host Easter Services another day, and I doubt the Republic will collapse if it and other small religious establishments remain in place, even in the Pledge of Allegiance. But there remains a need to keep vigilant about endorsement. Near the end of his post, Ledewitz writes:

Naturally, as our society fragments in its beliefs and nonbeliefs, a biblical image will no longer embody the universal messages that it held for earlier generations. In that new context, it is undoubtedly better to find new modes of expression, which is why memorials of recent wars tend not to use biblical imagery.

Would anyone today propose a Cross to memorialize all those who have died in the Iraq War? And if they did, would Ledewitz oppose it--as, say, insufficiently universal--on constitutional grounds?

A few days ago, Al Mohler, president of Southern Baptist Theological Seminary in Louisville and one of the Pooh-bahs of conservative evangelicalism, had this to say about the upcoming argument before the Supreme Court in Salazar v. Buono, the case of the Mojave cross.

Arguing for the retention of the display, lawyers for the government are expected to argue that the Mojave cross is constitutional because it represents a secular symbol intended to honor those who died in the nation's service in World War I.

At this point, Christians should pay particular attention. While the government's lawyers try to press their case, Christians should reject any argument that presents the cross as a secular symbol. There is nothing remotely secular about the cross of our Lord Jesus Christ. Arguments for the constitutionality of religious language and symbolism based in the supposedly secular character of the speech or imagery may win in the courtroom, but the arguments are devastating to authentic belief.

Of all people, followers of the Lord Jesus Christ must be the first to insist that the cross is a symbol of Christian faith, pointing directly to the cross on which Christ died as our substitute. The cross must not be reduced to a generic symbol of death and the memory of loved ones.

The logical conclusion to such sentiments is that it's more important to preserve the religious integrity of the cross than to maintain it on public land under false secular pretenses. Mohler, of course, doesn't go there--but I'm confident that his Baptist forerunner Roger Williams would have. No one was more vigilant about separation of church and state than those early American Baptists.

In the event, the most notable secular defense of the cross yesterday came not from the government's lawyers but from Justice Antonin Scalia, who has always been more interested in preserving religious establishments than guaranteeing religious liberties. And it fell to the lawyer for the ACLU, Peter Eliasberg, to articulate Mohler's point of view; to wit: "...a cross is the predominant symbol of Christianity and it signifies that Jesus is the son of God and died to redeem mankind for our sins." For that reason, Eliasberg said, the cross could not be taken as honoring the Jewish war dead.

Scalia's response was telling:

It's erected as a war memorial. I assume it was erected in honor of all of the war dead. It's the--the cross is the--is the most common symbol of--of the resting place of the dead, and it doesn't seem to me--what would you have them erect? A cross--some conglomerate of a cross, a Star of David, and you know, a Moslim half moon and star?

After Scalia went on to call the claim that a cross could only honor Christian war dead an "outrageous conclusion,"  Eliasberg responded, "This cross can't honor us because it is a religious symbol of another religion."

What I'm wondering is how Al Mohler would feel if the only symbol honoring the Christian dead on the shores of, say, Tripoli, were one of those Moslem half moon and stars. Would he agree that they were honored by that symbol? Would he want it removed? Or would he advocate for the erection of a cross alongside it?

Yesterday, 57 religious and civil liberties groups delivered themselves of a letter to Attorney General Holder asking that the Justice Department dump the 2007 memo from the Bush justice department's Office of Legal Counsel (OLC) that justifies religious discrimination in hiring, based on the 1993 Religious Freedom Restoration Act (RFRA). Many of the signatories were part of the huge coalition that got RFRA passed. They claim that the act was not meant to trump civil rights laws such as those prohibiting religious discrimination in hiring. The Bush position was that yes, RFRA does protect such discrimination--and therefore faith-based organizations are permitted to hire their own kind with government grants.

Conspicuous by its absence among the signatories (well, conspicuous to those of us who care about such things) is the American Jewish Congress, whose legal eagle, Marc Stern, has long been a major player in national church-state legal affairs. Today, Stern wrote his own letter (see after jump), also asking AG Holder to withdraw the memo but scaling back the absolutist claims of the collective effort. RFRA, according to him, does indeed apply to civil rights laws--but requires that there be a compelling state interest in trumping them. The Bush memo did no such "compelling interest" analysis.

Why should any of this this matter to those not interested in the niceties of anti-discrimination and religious liberty law?

First, the collective letter is evidence that the community of established religious lobbyists--as opposed to the newcomers who have been getting most of the ink lately--has become exasperated with the Obama administration's foot-dragging on the hiring issue. The fact that it's more or less a no-win situation for the administration doesn't matter. It's Bush rules unless OLC decides otherwise--and thus far it hasn't.

Second, Stern's dissent, far from being merely technical, signals the difference between a hard-line separationist position and the possibility of compromise. What the collective letter declines to recognize is that there are times when religious liberty interests may trump civil rights law. To take a couple of simple examples, most of us would agree that a local Catholic Charities organization should be able to have a policy of hiring a Catholic as its executive director. Does that mean that no government funds can be permitted to defray the executive director's salary? I hope not. On the other hand, should the same organization be permitted to discriminate religiously in hiring a janitor? Again, I hope not.

On the faith-based hiring issue, both sides are dug in very deep, even though in private they will acknowledge that law and practice are more complicated than their slogans indicate. As I suggested the other day, this would be a good issue for the commongroundniks to show their stuff. But maybe it's no-win for them too. 

Welton Gaddy, president of the Washington-based Interfaith Alliance and pastor of a liberal Baptist church in Monroe, La., has gotten into a spat with La. Gov. Bobby Jindal over the latter's practice of helicoptering up to north Louisiana of a Sunday at state expense to attend services and press the flesh at one or another evangelical church. Could it be that Jindal, a Roman Catholic, is shoring up his conservative Protestant base preparatory to his run for reelection?

Whether gubernatorial gadding about can be distinguished from gubernatorial politicking is a question that only scholastic philosophers can be confident answering. One can be more confident, perhaps, suggesting that it is healthy for neither religion nor politics when politicians make a habit of meeting the citizenry in houses of worship. But be any of this as it may, it is hard to see how Jindal has violated the Establishment Clause of the Constitution. Actually, Gaddy doesn't actually accuse him of that. What he says is that Jindal has committed "a violation of the United States Constitution's promise of religious freedom which has been a critical contributor to the vitality of religion in our nation." I don't see how a visit from the governor violates anyone's religious freedom, though doubtless there are congregants who would like to be free from appearances by politicians while engaging in weekly worship.

Jindal's churchly jaunts were reported in the Baton Rouge Advocate, which did a stellar job nailing down the dates and places, as well as rounding up quotes from some of the folks on hand.  Among the latter, the most telling came from Rev. Bill Dye of the North Monroe Baptist Church, which Jindal visited July 5, and which is three miles up the road from Gaddy's church. Dye, reports the Advocate, said the visit "helped his congregation see that a practicing Catholic can be an outspoken evangelical." The 2008 Trinity American Religious Identification Survey showed that 18 percent of Catholics consider themselves "evangelical or born-again Christians"--disproportionately so in the South. We now see that at least some Southern evangelicals are prepared to consider them that too.

Not so long ago, religious conservatives were vigorously making the case that the way to respect the Establishment Clause (i.e. separation of church and state) while permitting government funding of religious primary and secondary schools was through vouchers. Sure, the government should not directly fund educational institutions that did religious indoctrination, but by subsidizing education (a worthy public function) via the provision of vouchers to needy families, the government was putting the decision on whether religion could be included in a child's education in the families' hands. The principle of separation of church and state would thus be respected by making the decision to fund religious education a purely private one. Those who might be adamantly opposed to having their tax dollars go to support instruction in any religion and in some particular religion would just have to live with it. And, in the 2002 case of Zelman v. Simmons-Harris, the Supreme Court said OK.

Now comes health reform, and religious conservatives are vigorously making the case that no tax monies should be permitted to pay for abortions (or at least no more than are presently being done via Medicaid payments for abortions in the case of rape, incest, or the life of the pregnant woman). The problem, simply, is that subsidizing insurance coverage for Americans means that, unless expressly forbidden, public monies would be used to pay for abortions covered by any insurance plan that includes abortion coverage (as a number of them now do). But such payment would be precisely analogous to the education voucher payment. That is to say, insurance subsidies are, effectively, vouchers--public funds that individuals can use to make their own decisions based on what's available in the market. (No one would be required to use private funds to procure abortion coverage.) And just as we now permit conscientious objections to paying taxes for religious instruction to be overridden by private decisions to procure such instruction as part of primary or secondary education, shouldn't we permit conscientious objections to paying for abortions to be overridden by private decisions to be covered for it as part of one's overall health insurance plan?

David Brody, tipster of the religious right, sent out an alert yesterday that thunderclouds are gathering over President Obama's first big judicial nomination--federal district judge David F. Hamilton of Indiana to the 7th Circuit Court of Appeals. The source of the problem is a 2005 ruling (Hinricks v. Bosma) in which Hamilton turned thumbs down on the pervasively sectarian (i.e. Christian) prayers with which the Indiana House of Representatives had taken to opening its sessions. As in:

To summarize, the evidence shows that the official prayers offered to open sessions of the Indiana House of Representatives repeatedly and consistently advance the beliefs that define the Christian religion: the resurrection and divinity of Jesus of Nazareth. The Establishment Clause "means at the very least that government may not demonstrate a preference for one particular sect or creed (including a preference for Christianity over other religions). 'The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.'" County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 605 (1989), quoting Larson v. Valente, 456 U.S. 228, 244 (1982). The sectarian content of the substantial majority of official prayers in the Indiana House therefore takes the prayers outside the safe harbor the Supreme Court recognized for inclusive, non-sectarian legislative prayers in Marsh v. Chambers, 463 U.S. 783 (1983). Plaintiffs have standing as Indiana taxpayers to bring their claims, and they are entitled to declaratory and injunctive relief. This relief will not prohibit the House from opening its session with prayers if it chooses to do so, but will require that any official prayers be inclusive and non-sectarian, and not advance one particular religion.

Naturally, this is being taken as evidence that Hamilton, the son and grandson of Methodist ministers, is anti-Christian. (Dan Nejfeld's got a good account over at Bold Faith Type.)

In the event, a panel of the 7th Circuit overturned Judge Hamilton's decision, not on its merits but under the U.S. Supreme Court's 2007 Hein decision, which held that taxpayers have no standing to challenge government action under the Establishment Clause unless the action involves the outlay of government funds. (Follow the legal trail here.) Hein would, as I understand it, prevent (for example) evangelical Christians from challenging the Dharma County (CA) Commission's resolution acknowledging the spiritual lordship of His Holiness the Dalai Lama because the resolution involved no expenditure of county funds. (Uh, no, there is no Dharma County in California.) This seems perverse.

Judge Hamilton enjoys the backing of both Indiana senators, and my guess is that, barring some other legal casus belli, his nomination will not enounter serious opposition. But the Hinrichs case points to the increasingly problematic issue of prayers at government events. Once upon a time, these were understood to be exercises in inclusion--and over the years that evolved such that the canopy was unfurled to cover anyone who didn't feel offended by the national motto, In God We Trust. (Of course, some do feel so offended.) But more recently, as evangelicalism has returned to the main arteries of the culture, the prayers have come to be used as an opportunity for witnessing.

Such witnessing sails under cover of the Free Exercise Clause, but Judge Hamilton's reference to the Supreme Court's Allegheny Courthouse decision is worth considering here. If a governental body shows a persistent preference for prayer-givers of one kind, then it can reasonably to understood as endorsing that kind of religion. If the prayer-givers are sufficiently varied, then--like holiday displays on the town square--the sectarian character of the prayers might pass constitutional muster. Lacking sufficient variety of clergy in Indianapolis--not enough Tibetan Buddhist monks, perhaps--then the praying should be non-sectarian. Or forget the whole thing.

Update: Hamilton commotion, Day 2.

Here's what Baptists used to sound like:

Your petitioners believe that all mankind are entitled to equal rights and privileges, esp. the rights of conscience...and that all human laws which obliged a man to worship in any lawfully prescribed mode, time, or place or which compel him to pay taxes or in any way to assist in the support of a religious teacher unless on his voluntary contract, are unjust and oppressive.

Here's what they tend to sound like now:

The dust is settling on the "bipartisan" stimulus bill and one thing is clear: it is anti-religious.

Yes, both the House and Senate bills have a provision that prohibits federal dollars for higher education construction grants to be used for:

"...modernization, renovation, or repair of facilities--used for sectarian instruction, religious worship...or a school or department of divinity; or in which a substantial portion of the functions of the facilities are subsumed in a religious mission."

You would think the ACLU drafted this bill...

Actually, it would be nice to think that that provision in the bill was drafted--or at least supported--by the sectarian heirs of the first passage above, taken from "The Remonstrance and Petition of a Convention of Elders and Brethren of the Baptist denomination assembled at Bristol [CT] on the first Wednesday of February, 1803." Those elders and brethren wanted no part of Connecticut's Standing Order, which provided tax monies for the support of religious institutions, including their own. Not until 1818 were they able to prevail on the state to do away with its religious establishment. 

As for the second passage, that comes from erstwhile Baptist pastor and GOP presidential candidate Mike Huckabee, seeking to gin up partisan opposition to the stimulus bill among his bloggy flock. Yes, there are Baptists who still cleave to the old-time separationist faith--yo, Joint Committee!--but they are way too few and far between.  

Update: For the record, the prohibitions on spending for religious facilities is standard education bill boilerplate going back to the 1960s. Steve Benen has Huckabee and company dead to rights, backed up by pdfs of earlier bills.