Melissa Rogers is an attorney who currently serves as visiting professor of religion and public policy at Wake Forest University Divinity School.
“From our founding forward, Americans have celebrated liberty and honored God in ways both public and private. Now activist judges seek to end all mention of God in the public square.” So reads the flyer for the third “Justice Sunday” event sponsored by the Family Research Council (FRC) last Sunday night at a Philadelphia church.
If the goal of this effort is to cause religious people to feel fear, alienation and anger, it succeeds brilliantly. If the goal is to tell them the truth, it’s a miserable failure.
Led by the U.S. Supreme Court, the judiciary has long protected the right of individuals and groups to express their religion in our nation’s many public squares, even as it has prohibited the government from promoting religion.
During a series of Justice Sunday events, however, the Family Research Council and its partners have repeatedly distorted church-state law and the motives of certain judges. As the Senate Judiciary Committee considers the nomination of Judge Samuel Alito to serve on the U.S. Supreme Court, it is important to set the record straight.
At the outset, it should be noted that religion plays a visible role in many of the non-governmental sectors that are part of public culture, including the media, publishing and entertainment industries. This public role for religion raises no constitutional concern.
Regarding religious expression in public schools, FRC President Tony Perkins has claimed that the court has “said our children don’t have a right to pray,” but he is clearly wrong. While public school teachers cannot lead their classes in prayers or Bible readings, the court has said: “[N]othing in the Constitution as interpreted by this Court prohibits any public school student from voluntarily praying at any time before, during, or after the schoolday.”
The Supreme Court also has generally embraced a broad equal-access principle that essentially allows religious groups to express themselves on public property when a wide range of other non-governmental groups are permitted to do so. For example, the court has required a state university to open its facilities to student-organized religious clubs when it made those facilities available to other student clubs, and it has upheld a federal law applying a similar policy to public secondary schools. Further, Supreme Court rulings have extended this general principal to community groups’ after-hours use of public school property. Although the Family Research Council says the courts are demonstrating “hostility toward the church and Christianity in particular," the winning litigants in these and many other court cases were Christian organizations.
With respect to politics and policymaking, the court said in 1970:
Adherents of particular faiths and individual churches frequently take strong positions on public issues. . . Of course, churches as much as secular bodies and private citizens have that right.
Moreover, the court has recognized that religion may inform public policy, as long as advancing religion is not the predominant purpose or primary effect of government action.
The court generally has drawn the line—and properly so—at allowing the government to endorse religious expression or otherwise promote religion. As the court has said: “[T]here is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.” This reference to “private speech” is not limited to speech “in private,” of course, but describes religious expression attributable to private individuals and groups rather than to the government.
Contrary to the suggestions of the Family Research Council, the impetus for this ban on government-endorsed religion is not hostility to faith, but rather a desire to ensure that the government doesn’t meddle in religion. The balance the court has struck in this area has helped safeguard the rights of conscience and ensure that religious matters generally remain the sole province of the religious community. Some of the results of this careful balance are civic peace amidst great diversity and remarkable religious vitality.
In addition to making blanket charges against certain judges, Justice Sunday speakers have taken issue with a number of specific judicial decisions. For example, they have criticized a 2000 Supreme Court ruling involving school-sponsored prayers at public high school football games. In this case, the court struck down a policy whereby the school orchestrated a majoritarian vote on whether “a brief invocation and/or message” would be said by a student at the games. The prayers were broadcast over the school’s public address system at these official school events. Thus, while the prayers were uttered by students, it was clear that these religious expressions were backed by the government.
The court’s rejection of this policy demonstrated faithfulness to the Constitution. As the court said in 1943: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” Public school students should be able to participate in school events without being made to feel like outsiders because of their faith, or lack thereof. Nothing in this ruling prohibits students from organizing informal prayer sessions before, during or after football games on their own initiative.
Justice Sunday speakers also complained about a recent ruling by an Indiana judge who followed Supreme Court precedent and directed official legislative prayers to be nonsectarian. They failed to note that legislators are free to form unofficial prayer groups that meet in government buildings where they may pray in their specific faith traditions.
Additionally, Tony Perkins has asserted that the court has “cast the Ten Commandments out of the public square...” The court has struck down some governmental Ten Commandments displays, but it has hardly cast these sacred scriptures out of public life, nor could it. Not only do individuals frequently speak of and post these and other scriptures in public, the court has upheld a Ten Commandments monument that has stood on the Texas state capitol grounds for 40 years. Lower courts have since relied on this decision when sanctioning other longstanding, relatively non-controversial displays of this kind. In an appropriate case, the court is likely to use similar reasoning to uphold public school policies requiring the recitation of the Pledge of Allegiance with the words “under God,” while maintaining the option for students to refrain from saying it.
The rhetoric and advocacy positions of the Family Research Council and its partners reveal that they want the court to go far beyond rulings like these. For example, they want to reintroduce school-sponsored prayer in a variety of settings and ensure that the government has wide latitude to erect religious monuments and otherwise endorse religion. They express a broad desire to use the machinery of the state to promote their faith.
Understandably, many non-Christians are alarmed by this agenda. As a Baptist Christian, I am alarmed as well. All people should be free from governmental pressure on matters of faith. We should exercise the great freedom we have to practice our faith, but we should not ask the government to advance religion for us. Indeed, when the government promotes faith, it inevitably uses religion for its own ends, which warps religion and weakens its spiritual force. As Baptist preacher John Leland said in 1804: “Experience, the best teacher, has informed us that the fondness of magistrates to foster Christianity has done it more harm than all the persecutions ever did.”
While its rulings on these issues have not been perfect, the Supreme Court deserves great credit for striking the right balance. It’s a balance Christians should seek to preserve rather than undo.
As Judge Alito's confirmation hearings continue, senators should expose false claims about First Amendment interpretation and judicial motivations. They also should seek to determine whether Alito would uphold the general ban on government-endorsed religion or whether he would drive constitutional interpretation in the direction favored by the Family Research Council.