The Supreme Court term ended in late June with an avalanche of headline-grabbing decisions. The justices announced important, even landmark, rulings in cases involving police interrogation tactics, criminal-sentencing procedures, Internet pornography, public access to the decision-making processes of high-level executive branch officials, and--of course--the rights of suspected enemy combatants detained in the course of the current wars.
Blockbuster church-state rulings, though, were surprisingly and unusually absent from the term's dramatic conclusion. Instead, this year's much-anticipated religion clause cases fizzled, revealing an uncharacteristic determination to avoid attention and sweeping, controversial conclusions. In Elk Grove v. Newdow, the hot-button Pledge of Allegiance case, a bare majority employed the technical (but important) doctrine of "standing" to escape the delicate, politically charged task of confronting squarely an atheist's objections to the words "under God." Several months before, in Locke v. Davey, Chief Justice William Rehnquist had crafted a narrow, similarly cautious opinion reaffirming that publicly funded scholarship programs may include religious schools, but rejecting the far-reaching argument that, under the First Amendment's Free Exercise clause, they must. The Court declined even to review potentially explosive disputes involving a Ten Commandments monument in Alabama's Supreme Court building and the Virginia Military Institute's traditional mess hall prayers. And, we will not learn until the fall whether the justices will take up the California Supreme Court's Catholic Charities decision, which upheld a state law requiring most religious employers to include contraception coverage in health-benefit plans.
Still, the Court's recent work in the church-state arena provides more than a case study in reticence, or evidence of newfound judicial humility. The opinions in these cases and the premises they reflect provoke challenging questions about religious commitment, pluralism, democracy, and "division."
Dictionaries tell us that the word "religion" comes from ligare, which means to tie or bind together. Many today, though, regard faith's purported capacity and tendency to "divide" as its most salient and near-defining feature. In our culture and in our courts, difference, diversity, and dissent are accepted--even celebrated--but the division allegedly fomented by religiously grounded claims is widely seen as cause for alarm. True, few contemporary epithets are as wounding, yet so tedious and vacuous, as the charge that a claim, proposal, or belief is "divisive." (Like "controversial" and "partisan," the term seems to do little more than signal the speaker's disapproval.) Nevertheless, the claim that policies thought to cause "political divisiveness along religious lines" are for that reason constitutionally suspect appears to be making a comeback.
In Zelman v. Simmons-Harris (2002), for example, Justice Stephen Breyer dissented from the Court's pro-school-choice ruling, emphasizing "the risk that publicly financed voucher programs pose in terms of religiously based social conflict" and highlighting the need to "protect the nation's social fabric from religious conflict." In his view, avoiding "social dissension" is more than a policy desideratum or a prudent aspiration. It is, somehow, a fundamental, judicially enforceable religion clause "principle." Similarly, three decades earlier, then-Chief Justice Warren Burger reported in the landmark case of Lemon v. Kurtzman (1971) that "political division along religious lines was one of the principal evils against which the First Amendment was intended to protect." Accordingly, the "divisive political potential" of certain school-funding programs was enough to require their invalidation. Burger foresaw "considerable political activity" on the part of "partisans of parochial schools," and would have none of it. Such activity, he feared, "would tend to confuse and obscure other issues of great urgency."
The views and concerns of these justices seem to fit the times. Hardly a day goes by without bold-print reminders from pollsters and pundits that American society is fractured, split, divided--even "at war." We are, according to cultural critic Gertrude Himmelfarb, "one nation, two cultures"; we are, political guru Michael Barone tells us, "hard America" and "soft America"; we are, as commentator David Brooks and others have colorfully described, bobos and patio men, Left Coast and flyover country, latte and sprinkler towns, Wal-Mart and Zabar's.
All that said, it is not clear why our political, cultural, and other "divisions" should be relevant to the legal question of whether a particular policy--say, school vouchers or the Pledge of Allegiance in schools--is constitutionally permissible. In fact, there is something unsettlingly undemocratic about the notion that the First Amendment authorizes courts to protect us from "confusion" or privileges judges' sense of political "urgency." Even Chief Justice Burger conceded in Lemon that "political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government." Judicial squeamishness toward messy politics is hardly a reliable constitutional benchmark.
Justice Sandra Day O'Connor suggested otherwise in her concurring opinion in Newdow. She would have addressed and rejected Michael Newdow's argument that the teacher-led recitation of the pledge in his daughter's elementary school involves unconstitutional religious indoctrination. Unlike Rehnquist, for whom it was enough to recall that "patriotic invocations of God and official acknowledgments of religion's role in our nation's history abound," O'Connor asked whether the school's pledge policy "sends a message to nonadherents that they are outsiders, not full members of the political community." And, in concluding that it does not, O'Connor emphasized that the pledge "has been employed pervasively without engendering significant controversy" and "caused no political divisiveness prior to the filing of this lawsuit." In her mind, then, the pledge's permissibility hinged on the social disruption or political tumult it might or might not cause.
O'Connor's opinion in Newdow illustrates a misplaced and disturbing hubris about the capacity of courts to identify, police, and contain "political divisiveness along religious lines." At the same time, this year's leading churchstate cases displayed the increasing willingness of our governments and society to impose a kind of "division" on religious believers, institutions, and communities. More and more, our law seems suspicious of those divisions that our Constitution actually protects--that is, the divisions that result when free people contend over difficult questions that matter--yet indifferent to the harm done to religious freedom by demands for the privatization of faith and its segregation from civic life.
These demands could be heard in Locke v. Davey, the Court's other big-ticket religion clause case. When Joshua Davey, a high-achieving student, declared a double major in pastoral ministries and business administration, the State of Washington withdrew his scholarship award. Although a federal appeals court agreed that this penalty violated the free exercise clause, a majority of the justices were spooked by the implications of this ruling, and reversed, concluding that "the State's disfavor of religion (if it can be called that) is of a ... mild kind." Justice Antonin Scalia, however, took a very different view, noting that Washington's discriminatory policy "poses no obstacle to practitioners of only a tepid, civic version of faith" and warning that "one need not delve too far into modern popular culture to perceive a trendy disdain for deep religious conviction." Or, as William James quipped: "In this age of toleration, [no one] will ever try actively to interfere with our religious faith, provided we enjoy it quietly with our friends and do not make a public nuisance of it."
This expectation that religion and believers should avoid making a "public nuisance"--that they should stay in their place and steer clear, with judges' help, of "political divisiveness"--was also on display in the Catholic Charities case. Commonweal readers will remember ("Uncharitable Interpretation," March 26, 2004) that California refuses to exempt from the state law's contraception-funding mandate those Catholic organizations that engage in activities other than worship and religious instruction, or that hire and serve people other than coreligionists. This refusal, this magazine's editors appropriately charged, is a "blatant assault on religious liberty and freedom of conscience."
More particularly--and like the officials in Washington who pulled Joshua Davey's scholarship--California is embracing and enforcing an ideology of privatized religion. Yet as Justice Janice Rogers Brown reminded her colleagues on the California Supreme Court, many churches have "never envisioned a sharp divide between the church and the world, the spiritual and the temporal, or religion and politics." Thus, the mandate works "an intentional, purposeful intrusion into a religious organization's expression of its religious tenets and sense of mission." It is no less worrisome for sounding strange: The law and the courts are imposing "division," by insisting that faithful citizens dis-integrate their lives and that religious groups pull back from their missions, in order to protect the polity from "divisiveness."
To be sure, the "separation of church and state" is crucial to any attractive vision of religious freedom. Properly understood, the separation of church and state is not an antireligious ideology, but--in John Courtney Murray's words--a "means, a technique, [and] a policy to implement the principle of religious freedom." It is a mistake, though, to think that this "principle" can faithfully be "implemented" through a division-shy program of religious privatization or by endorsing what Justice Clarence Thomas has called a "most bizarre" reading of the First Amendment, one that "reserve[s] special hostility for those who take their religion seriously, [and] who think that their religion should affect the whole of their lives."
It is worth remembering, instead, with John Courtney Murray, that "pluralism [is] the native condition of American society" and that the unity toward which Americans have aspired--e pluribus unum--is the "unity of a limited order." Those who crafted our Constitution believed that authentic freedom and effective government could both be secured through checks and balances, rather than standardization, and by harnessing, rather than homogenizing, the messiness of democracy. Accordingly--this side of heaven, anyway--we should, in Murray's words, "cherish only modest expectations with regard to the solution of the problem of religious pluralism and civic unity."
Richard W. Garnett is an associate professor at the University of Notre Dame Law School.
