Ashby D Boyle II, JD, PhD, with a Wall Street-based law practice, has returned to Yale after two decades away, to re-write as a book his Yale dissertation of twenty years ago on the Supreme Court’s religion jurisprudence. After receiving his Ph.D., Dr. Boyle served at the Court as a law clerk. He will be writing a regular column for Meridian called Adventures at Yale.
We run this article in celebration of Constitution Day.
Why Religious Freedom in America Is At Risk
I arrived at the United States Supreme Court having just completed a dissertation on the Court’s Religion Clauses of the First Amendment.
I arrived with “a bee in my bonnet,” an enduring fascination of my Yale research: why did our Bill of Rights frequently fail to protect religious liberty?
It is a genuine puzzle. While the Constitution is clear that religion will be protected through the First Amendment, the Court from its creation has experienced repeated failures. From so often failing throughout its history to do its job, religion was constantly misunderstood and disrespected by the Court.
The Court’s Problem: Protecting the Religion Clauses Despite Secular Precedents
In working on this puzzle, I uncovered a pattern in Court religion decisions of zig-zags and flip-flops.
Because the credibility of the Court derives from “Equal Justice Under Law”, what would explain the unfairness of similar cases not being similarly decided? Why is it that religion cases give the Justices so much trouble, and why is the preference of the Court in such cases to rely on secular values as a rule of decision? Why is it that the free exercise of religion listed as the first freedom in the First Amendment is being gradually eroded by court decisions?
Here are some examples.
*In Gobitis, the Court denied the free exercise claim of Jehovah’s Witnesses school children who objected to being forced to salute the flag. In Barnette, the Court took the unusual step of explicitly overruling Gobitis
While Barnette reversed Gobitis, the decision was written by the Court in such a way that the Free Exercise Clause was avoided in its ruling, even though Justice Stone’s dissent in Gobitis argued for reversal based on the Free Exercise Clause.
Because the Supreme Court ignored religion where only religion was at issue, the decision in Barnette had the educational impact on the public that secular values are not only morally good, but morally superior to religious values.
Barnette made manifest that the Supreme Court had a clear distrust of religion as a substantive value by relying on free speech when the applicable law was the express protection of religious conduct in the Free Exercise Clause.
Nowadays, Barnette has become a type of case the Supreme Court repeatedly uses. It’s in the Court’s secular values “playbook” just like a page from the Washington Redskins playbook. The play-action breaks down like this. After sustaining a religious claim, the Courts “shows” Free Exercise Clause but then runs with a free speech rationale.
Barnette is against the rules the Court is required to play by. Yet so far, no one seems to really notice. The rule is the Court must use applicable law as the basis of a decision.
Faithful citizens must know and then protest this unseemly state of how the Court conducts its own business.
It is currently established practice for the Court to utterly disrespect the Free Exercise Clause as legal authority in the type of case where the facts are, without controversy, undisputed conduct which is religious in nature. The Free Exercise Clause was briefed, the issue before the Court to decide is incontrovertibly an issue of the protection of the free exercise of religion, and the controlling legal authority, value and right is Free Exercise.
The Court needs a referee to whistle in its intentional misapplication, for example, of a Commerce Clause rationale or a free speech rationale to the religious conduct as in Barnette. When conduct is uncontrovertibly inspired by religious principles that are sincerely held as pivotal beliefs, only Free Exercise fits the facts.
The Barnette decision is blatantly secular. It disrespects the Free Exercise Clause with an intent to disrespect that comes very close to perfect disrespect.
Though called by other names today, the Court calls this play from its “playbook” all the time. And it is not the only case in the Court’s playbook that requires refereeing.
Religion Cannot Receive Preferred Treatment?
*Like Barnette, Everson is a case of judge-made law that lacks any grounding in the Religion Clauses, and promotes secular values in a manner injurious to religion. Though now called by other names, Everson is also in the Court’s playbook. It is a play which the Court runs again and again.
Everson reversed Ballard. Ballard only three years earlier ruled that the First Amendment provides “preferred treatment” for all religions. To prefer but one religion was forbidden under the Establishment Clause of the Constitution.
Everson reversed and instead of allowing “preferred treatment to all religions” flip-flopped making it unconstitutional to give preferred treatment to religion.
Specifically, Everson held that “neither a state nor the Federal Government . . . can pass laws which . . . aid all religions.” Everson is one of the cases that is rancid enough to place on the list of the top three worst decisions the Court has ever rendered (as I’ve compiled it).
Everson’s philosophy has had a pervasive effect on the Court.
More Flip Flops
*In Jones v. Opelika, the Court sustained a licensing fee for vendors of religious literature, only to allow a petition for rehearing and vacate the decision eleven months later, disallowing the fee.
*In Zorach, the Court sustained the constitutionality of voluntary release-time religious instruction. Zorach (1952) was a flip-flop from McCollum (1948). In McCollum, the Court had decided 8-1 release-time religious education was constitutionally prohibited.
*In Sherbert v. Verner, the Court flip-flopped from its decision two years before in Braunfield v. Braun, both cases involving the free exercise protection of sabbatarians from refusing to work on Saturday.
Many more examples could be given, but to sum up, the Court’s flip-flops and zig-zags appear to be a clearly discernible pattern of past cases, and I believe the pattern will continue.
Two Opposing Values in the Court’s Decisions
There is a conflict between two opposing values in our constitutional jurisprudence of the Religion Clauses of the First Amendment.
The first value is the value of judicial protection of religion under the text of the First Amendment’s Religion Clauses. The second value is the Court’s reliance on secular values in cases involving religion from the Court’s own precedents.
These competing values are true opposites. The truth of one entails the falsity of the other.
What explains the Court’s stark inconsistency? Why have these two opposite values, religion and secularity, been in a tug-of-war for so long without any resolution?
The explanation is that the Supreme Court has been trying to effect “an assimilation of religious to secular freedom,” as Mark DeWolfe Howe diagnosed.
Religious freedom, rather than being distinct and important in its own right, is becoming assimilated as just another piece of our general secular values. Ultimately, as a distinctive right religious freedom will just disappear.
Because of the Court’s reducing religious to secular freedom, we are in a dangerous situation.” Let us be clear, and briefly consider the danger that we are now face-to-face.
We are in a dangerous situation because religious freedom is essential to protecting religious conduct and actions.
Secular freedom has and will continue to evict God from public spaces. Secular freedom is intolerant of religion itself even being in our Constitution. At the moment, secular freedom lawyers in Texas have filed lawsuits in Utah to remove crosses on Utah highways that memorialize law enforcement officers who died in duty.
But the assimilation is incomplete, and this is fortunate. Because the continuing, on-going pattern of zig-zags and flip-flops is an indication that secularity has yet to land a knock-out punch. Religious liberty has not yet disappeared in secular liberty.
When the assimilation of religion into secularism is completed at the Supreme Court, then there will be consistency in its religion decisions, but this consistency –and it can in fact happen in the near future– will be a false consistency born of the Court’s interpretative erasures of the Bill of Rights’ guarantee of religious liberty, leaving religion silenced, marginalized, and socially-stigmatized.
What now needs effective opposition from America the Religious is to rally ‘round the substantive value of religion, which is stated in black and white in the Bill of Rights, while the tug-of-war continues, and we still have time for citizen action.
The reason the tug-of-war has continued through today is that the Court has so far lacked the secular courage to finally assimilate religious liberty into secular liberty (whatever “secular liberty” actually means: I have no idea).
No Supreme Court, however secular in its temperament, has yet felt powerful enough to erase the Religion Clauses from the Bill of Rights. Taking a scalpel to do this to the Bill of Rights gave pause to even the Vinson Court, America’s most secular of all Supreme Courts.
So while there is still time to act together in faith-based vigilance, and work to block the complete assimilation of religious into secular liberty, the time to act is now.
We must act or suffer the consequences.
When religious freedom becomes completely assimilated to secular freedom, our democratic politics about the moral content of our society will become forbidden to representative assemblies or elected officials, because cumulative decisions of the Supreme and appellate courts will have in advance defined as “unconstitutional” all legislation or regulation with moral content.
We are in a dangerous situation because the value of democratic action in our polity is trivialized by imposition of a judge’s arbitrary secular value to trump a democratically-enacted amendment to a state Constitution.
The democratic participation of religion on public issues such as in Prop 8 will not be protected by the secular free speech rationale of a Gobitis type of decision. An Everson type of decision trumps Gobitis speech by religion as unconstitutional preferred treatment where religion’s democratic participation is successful. Only if religion fails in a democratic effort can our secularized Constitution permit it.
The assimilation or disappearance of religion into secularism is very likely to result increasingly in the awareness that debates on fundamental moral values – that’s what is meant by politics – is as the federal bench judges. As Robert Jenson notes, if there is now a functioning American polity, it is the very tight oligarchy of the federal judges—and the extra-constitutional faceless advisors to the judges.
A Time for Truth: The Genealogy of the Court’s Secular Values
The Supreme Court’s adoption of secular values in religion cases does not derive, obviously, from any reading of the Constitution. Instead, it comes from two other sources, at least.
These sources advise a Justice informally and are the two sets of extra-constitutional advisors that can be found hovering around each Justice: law professors and law clerks.
Being a judge can be a lonely job. It’s a transition from being free to discuss anything with anyone, moving into the Supreme Court’s indigenous intellectual culture of reading law books and talking precedents. (When they retire, those Justices I have known have said they never missed the Court.)
For a Justice to flourish as a person and to presumably continue to live a complete and happy life, intellectual stimulation is a need, not a want. From this need, eventually around each Justice there emerges an intellectually-equipped circle of gifted friends, interlopers though they are (usually law professors), and law clerks (unconstitutionally justified though they are, to write Court opinions, which they do).
But there is more to this situation than meets the eye. From the friends and clerks spring the source of the Court’s secular values. The elitist, high-culture theories of secularity are transmitted to a Justice in this way as a possible framework of thinking through religious liberty. The “kitchen cabinets” to the Justices are made up of unnamed professors and unaccountable clerks, those “puny judges” as Learned Hand called his law clerks, who are hidden from our sight, yet who have a monopoly of access—an access not even fellow Justices have.
If the Justice were confined to legal briefs submitted, such secular frameworks might otherwise stay confined to the ivory tower. Academic freedom should be protected by the Court, but a Justice should not feel free to “backdoor” opinions.
It is noteworthy, though admittedly further research is needed, that the elite law schools and faculties of the Northeast and Northern California which tend to supply the professorial friends and law clerks of a Justice are the same states which are the most thoroughly secularized, and which lead the nation in making euthanasia, assisted suicide, etc., acceptable—as also in drug abuse and crypto-legalized prostitution.
The Court as a Secularizing Force on Society
How the Court is infected by secularity is only half of the story.
Like Typhoid Mary, the Court is also a carrier to a culture of secular morality.
In religion cases decided by secular values, the act of issuing a judgment on free speech grounds will have the effect that secular values are morally good, using freedom of speech despite knowing it is illegitimate Court to ignore the Religion Clauses as the applicable law and rule of decision.
James Madison went so far on this point as to state the Supreme Court lacked jurisdiction.
With reference to the First Amendment’s guaranteeing religious liberty, Madison said “this subject, for the honor of America [is] perfectly free and unshackled. The government has no jurisdiction over it.”
The Formation of the American Religious Liberties Union
Conscience requires that something be done. Thus, we announce the formation of the American Religious Liberties Union which will be partnering with Maurine and Scot Proctor, Mark W. Cannon, former Congressman Chris Cannon, Richard Wilkins, Steven Sorenson and the Family Leader Foundation in a project to put religion where the Framers intended it to be—as the first freedom—and to stop the establishment of the secularism that tramples the place of religion in our society.
This is to be accomplished through research and bringing this invasion of secularism to public awareness, at three levels: (i) apologetic thinking in articles on the Internet and electronic media; (ii) presentation in philosophical or intellectual ways, to oppose secularism on its academic home base; and (iii) spiritually, because the deepest level of the crisis is not cultural or intellectual, but spiritual.
America’s faith in God crosses denominational and religious lines. Sometimes of diverse opinion, America’s religions are on the same page in this particular hymn book.
The Court needs a referee to whistle down unconstitutional conduct against religion. We don’t need more litigation but more Court due diligence, throughout the federal judicial system.
What is the latest on attacks of secular values on constitutional religion? Where in the federal system and on the Supreme Court’s docket lurks another Barnette or worse, another Everson displacement of religious liberty by secular liberty? The ARLU will serve as Paul Revere, with help from America’s praying silent religious majority.
We will file briefs, consult in on-going litigation, and put in one place the information needed to keep religion pro-active.
The Obama Court will be less able to tolerate the boredom of the unresolveable ping-pong noise the zig-zag pattern makes. The Court clearly needs a new philosophy to solve the problem, and all that is needed is to start to decide free exercise cases on the basis of applicable law, the Free Exercise Clause.
I foresee no good reason for these intellectual Justices to stay very long in the limbo between the Supreme Court’s religions precedents v. the unambiguous Constitutional language in the Religion Clauses.
My predictions are calculated, not mystical. Why? Because the Princeton Undergraduates now on the Court were, like me, formed and deformed during the same years, same libraries, and occasionally overlapping professors. They bring to the Court the same socialization that leaves one psychically internalized with Woodrow Wilson’s exhortation of “Princeton in the Nation’s Service.”
They will influence the Court to do what I would do, I am predicting, except that what they will do will be the exact opposite. But then again, like any religious person, I still hope for providential help in the outcome.
(C) 2010. Ashby D Boyle II
Editor’s note: A tax-free contribution to the American Religious Liberties Union through Family Leader can be made by clicking here.