Recently in Church-State Category

"Do the citizens of a state have the right to define legal marriage as a man-woman relationship? Or can courts overrule them on behalf of same-sex marriage?" So Russell Shaw began a piece in that avatar of Catholic conservatism, Our Sunday Visitor, a couple of weeks ago. Shaw went on to acknowledge that courts have "the raw power" to do so, but "[w]hether doing it would be a rightful exercise of their power is questionable indeed."

I'd turn the question around and ask Shaw if he thinks citizens of a state have the right to define legal marriage as a same-sex relationship? Suppose, in a parallel universe, they did so, and a federal court overturned the vote. Would he regard that as a rightful exercise of judicial power? Or suppose, in that same parallel universe, the citizens had voted to give a woman the right to abortion, and courts overruled them on the grounds that fetuses have a right to life. I'm confident Shaw would be on board with that decision.

Such considerations can help us parse the statement issued by Cardinal Francis George, president of the USCCB, in response to U.S. District Judge Vaughn Walker's constitutional slam dunk of Proposition 8 in Perry v. Schwarzenegger:

Marriage between a man and a woman is the bedrock of any society. The misuse of law to change the nature of marriage undermines the common good. It is tragic that a federal judge would overturn the clear and expressed will of the people in their support for the institution of marriage. No court of civil law has the authority to reach into areas of human experience that nature itself has defined.

Here, the "clear and expressed will of the people" is a rhetorical feint, calculated to appeal to the majoritarian instincts of a democratic polity but carrying no real weight. For George, it's not the will of the people but what "nature itself has defined" that matters. How does he know that nature has defined marriage as exclusively "between a man and a woman"? Not by revelation, but through the exercise of reason. It's a matter of natural law, and therefore applicable to all people at all times. Or so the Catholic church teaches.

Tennessee Lt. Gov. Ron Ramsey, who happens to be running for governor of the Volunteer State, has caught a bunch of flak for his recent comments on the stump suggesting that Muslims might not merit First Amendment protection. Asked to comment on the proposed construction of an Islamic community center in Murfreesboro, he said, "You could even argue whether being a Muslim is actually a religion or is it a nationality, way of life or cult, whatever you want to call it. Now certainly we do protect our religions, but at the same time this is something we are going to have to face."

This has tempted me to wonder out loud if Ramsey's understanding of the First Amendment is that laws can be made prohibiting the free exercise of cults, to point out that one man's cult is another's religion, etc. But averse as I am to shooting fish in a barrel, and always actuated by a desire for deeper understanding, I figured I'd try to determine where Ramsey's coming from.

Where he comes from is Blountsville, which is about as deep as you can get into Upper East Tennessee. That's the hilly part of the state that has given the world NASCAR, thanks to the pressing need moonshiners had to outrace the revenooers. The local soft drink, brewed by Tri-City Beverage in Johnson City, is Dr. Enuf, originally sold as a tonic for hangovers, which is definitely what you get if you make a habit of drinking what they're running down from the hollers. The drink's marketing slogan is "Enuf is Enough," which, I can attest, is also true.

When it comes to cults, the most famous local variety features churches with names like the Church of God with Signs Following and the Church of Jesus with Signs Following and the Holiness Church of God in Jesus Name--all offshoots of the Church of God (Cleveland, TN) that, based on Mark 16: 17-18, favor the handling of snakes and the drinking of poison as signs of election. They also follow a distinctive way of life that eschews alcohol, carbonated beverages, coffee, and tea; smoking; dancing; the use of cosmetics and jewelry; and recourse to medical doctors. Male co-religionists greet each other with a vigorous hug and the "holy kiss," a mouth-to-mouth osculation. [continues after jump]

On the country's religious founding.

Ever alert for Republican wackiness, TPM calls our attention to a recent TV interview with Ed Martin, who's got the GOP nomination to run against Rep. Russ Carnahan to represent Missouri's Third District in Congress.

One thing I like to say is: America is great, not because of our genetics. We're great because we created a place and space where people can be free. And they can choose Christ, they can choose to be faithful. They can worship, and they find their way to the Lord. And -- or some of them don't. We sure want them all to, but some of them don't.

Part of that freedom -- when you take a government and you impose, and take away all your choices. One of the choices you take away is to find the Lord. And to find your savior.

And that's one of the things that's most destructive about the growth of government. It's this taking away of that freedom. The freedom -- the ultimate freedom, to find your salvation, to get your salvation. And to find Christ, for me and you.

And I think that's one of the things that we have to be very, very aware of. That the Obama Administration and Congressman Carnahan are doing to us.

There's no indication that if Martin were asked to connect the dots, he could point to any specific way that the "growth of government" under Obama and Carnahan has undermined the ability of Americans to find Christ. It's just that O/C = big govt = no ultimate freedom. But there is a plausible recent example of such undermining, at least if taking up cudgels on the conservative side of the culture wars appeals to you. It's the Supreme Court's decision in Christian Legal Society v. Martinez, which upheld the right of the Hastings School of Law to deny official status to the school's chapter of the Christian Legal Society for having a policy of excluding non-repentant gays and lesbians.

The only trouble is that if you want to blame someone for putting us on the road to serfdo...er, Christian Legal Society, it should be that paragon of constitutional originalism, Antonin Scalia, who in 1990 persuaded four mostly conservative justices to go his way in Employment Division v. Smith. That decision made it impossible for the "pro-religion" conservatives on the current court to actually argue on behalf of the constitutional guarantee of religious free exercise. The Hastings policy that officially recognized student groups must admit all comers may be idiotic (a Democratic club must admit Republicans?), but it's neutral and generally applicable--the Smith standard.

However, if you look at, say, Timothy Dalrymple's critique of CLS over at Patheos, you'll find nary a mention of Smith. Dalrymple is more than prepared to believe that the court majority acted against religious interests, but in fact, thanks to Smith, there never had to be a balancing of the right of free exercise against the principle of equality embodied by an "all comers" policy. And the fact is, there's real tension between the two that we as a society, and the Supreme Court as the arbiter of the Constitution, ought to face up to.

As retired Justice David Souter said in his Harvard commencement address,"The Constitution is a pantheon of values, and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another." One of the worst features of today's blog-eat-blog world is that it allows us to pretend that there are lots of easy answers.

Elena Kagan was asked a few questions about the religion clauses yesterday, and the Baptist Joint Committee has a transcript. On my non-lawyer's reading, her answers are lawyerly, professorial, and determinedly unrevealing about where she herself might come down as a Supreme Court justice. She indicated that in resolving the tension between the Free Exercise and Establishment clauses, the Court did well to allow "some play in the joints"--an expression that goes back 40 years in the Court's jurisprudence. But the "play" was very different in 1970 than it is today, taking a more restrictive approach to religious establishments and giving more latitude to free exercise claims.

In explaining the issue, Kagan did offer an example worth thinking about:

So, suppose that a state government decides to give what is called a "voluntary accommodation" to some religious person - essentially a voluntary exemption of that person from an otherwise generally applicable law - and does that because the law would impose some substantial burdens on that person's religious practice, and the state thinks: "you know what, in those circumstances we think that the person should be exempted from the law so that the person can follow the dictates of her conscience." But then somebody else comes in and says, "well, what do you mean? You're giving that exemption but you're not giving me an exemption and why are you making that sort of special accommodation to this person? That special accommodation must count as an establishment of religion." And so there you get a claim where there's an accommodation to the free exercise of religion, but then there's a claim that that violates the Establishment Clause part of the First Amendment. And that's the kind of way in which there might be tension.

The problem here really is that under the 1990 Smith decision, the state government in question would be subject to Establishment Clause challenges that it wouldn't be if the Court still allowed Free Exercise challenges to neutral laws of general applicability. In effect, by deciding that there is no constitutional right to an exemption from a law that just happens to burden your religious practice, the Court has given the joints less play--turning every "voluntary accommodation" into a potential Establishment Clause case. It will be interesting to see if Kagan, in her next job, tries to do something about that.

Reporting on yesterday's 5-4 Supreme Court decision in Christian Legal Society v. Martinez, the NYT's Adam Liptak described the case as a clash between "religious freedom and antidiscrimination principles." But actually it was a proxy war. Neither religious freedom nor antidiscrimination clashed as such.

At issue was the refusal of California's Hastings School of Law to recognize--i.e. provide official recognition and material support for--the Christian Legal Society (CLS), because it required all members to disavow "unrepentant participation in or advocacy of a sexually immoral lifestyle--i.e. no unrepentant gays and lesbians need apply. This violated the school's policy requiring student groups to admit all comers.

As Justice Alito's dissent points out, the school had adopted its all-comers policy out of a belief that its previous antidiscrimination policy would be harder to defend before the Court. It's hard to disagree with the Times' editorial that, whatever the tactical advantage of "all-comers," a straightforward ban on discrimination was the moral way to go. Still, "all-comers" does represent antidiscrimination policy by a kind of force majeur.

That religious freedom was only obliquely engaged is thanks to the Court's 1990 decision, Employment Division v. Smith, wherein Justice Scalia managed to get five votes to establish the rule that any "neutral law of general applicability" is sufficient to turn back a claim of religious free exercise. As Justice Ginsburg's plurality decision put it in a footnote:

In Smith, the Court held that the Free Exercise Clause does not inhibit enforcement of otherwise valid regulations of general application that incidentally burden religious conduct. Id., at 878-882. In seeking an exemption from Hastings' across-the-board all-comers policy, CLS, we repeat, seeks preferential, not equal, treatment; it therefore cannot moor its request for accommodation to the Free Exercise Clause.

Simply put, prior to Smith, CLS would have had a straight-up opportunity to argue that the Free Exercise Clause gave it a right to be exempt from Hastings' (preferably) antidiscrimination policy. It's ironic that Scalia, who signed Alito's dissent, has made it much harder for religious groups to advance their claims, and telling that the dissent cites various earlier Free Exercise cases but does not so much as mention Smith.

Will Kagan be asked? I think maybe.

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?