Thursday, February 28, 2008

Religious Freedom

I forget the exact context, but it was sometime in college that I first heard the phrase that most perfectly encapsulates my interpretation of the Establishment Clause, with which I agree wholeheartedly: freedom of religion, not freedom from religion. In yesterday's edition of The New York Sun another worthy formulation comprised the headline of Section II: "Freedom for Religion".

Father Richard John Neuhaus, best known, perhaps, for being Editor-in-Chief of First Things magazine, wrote for the Sun an interesting review of Prof. Martha C. Nussbaum’s latest book, Liberty of Conscience. The title of her book notwithstanding, the good professor is decidedly on the side of allowing government to secularize whatever it pleases; good thing a sharp mind is there to rebut her.

Neuhaus begins by taking the reader on a concise history of the Establishment Clause, which is what liberals are usually referring to when they mention the "separation of church and state", a phrase absent from the Constitution (including the Amendments). After nearly two centuries of enjoying the Establishment Clause’s original intent, Americans were subjected to Justice Hugo Black's revisionism in the form of a 1947 Supreme Court decision (Everson). "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof" was suddenly interpreted to mean, in Black’s words, that "neither a state nor the Federal Government ... can pass laws which aid one religion, aid all religions, or prefer one religion to another." Neuhaus's analysis here is most keen:

In discussions of the Religion Clause, it is common practice to speak of an Establishment Clause and a Free Exercise Clause. In fact, both grammatically and in intent, there is one clause with two provisions — no establishment and free exercise. The first provision is in the service of the second: The reason the government must not establish a religion is that having an established religion would prejudice free exercise by those who do not belong to it. As numerous scholars have pointed out, however, the end of the Religion Clause, i.e., free exercise, has been subordinated since Everson to the means, i.e., no establishment. The result is that "the separation of church and state" (a phrase of Jefferson's that is not in the Constitution) has come to mean that wherever government advances, religion must retreat.
Neuhaus is absolutely correct. Liberal interpretations of the Establishment Clause are based upon modern sensitivities towards religion. However, the Founders were not seeking to assuage the feelings of those skeptical of religion and its followers. In the Founders’ day, religious sensitivities centered around people who were upset about not being able to practice enough religion. The key here is to remember the context of the times. Americans had just won their independence from England, and, by default, from forced deference to the Anglican Church. Prior to the revolution, British subjects had to be a part of – and to subsidize – the Church of England. Those who preferred their own brand of religion (Catholics, Puritans, Quakers, Jews, etc.) were often treated as second class citizens. Not only were they pressured to conform to Anglicanism, they were harassed just for attending their own houses of worship. In other words, it was not just that the Catholic did not wish to tithe to the Anglican Church, it was also that he did make his way to a Catholic church on Sundays.

In order to ensure that such persecution did not take place in the new Republic, the Founders included the Establishment Clause in the First Amendment. Its object, which was clear and uncontroversial at that time and for over 150 years thereafter, was to preempt the creation of a Church of America that would have similar authority as the Church of England. As usual, the Founders’ ultimate goal was freedom; in this case, freedom to practice religion. Hence, "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof". Now that there was no Church of America to impose any religious norms on anyone, people were free to worship as they pleased. Catholics could go to Mass right down the road from a gathering of Quakers, which could in turn take place right around the corner from a synagogue, and nobody would be in any danger or trouble for it, or under any pressure to do otherwise. People could practice religion however they wanted, as often as they wanted. Is this not how it should be?

How did we get from there to government prohibiting a student from praying in school of his own volition?

The astute reader will note that nowhere does secularism play a role in the reasoning behind, or methodology of, the Establishment Clause. This is because it was never meant to do so. The modern secularist gets his interpretation of the Clause via faulty logic. First he takes as premise the leftist fallacy that religion is, in one sense or another, a restrictive force and a net negative in society, and so people have a reasonable interest in avoiding it. Then the secularist goes on to reason that since the Establishment Clause is meant to be the government's promise of protecting people from religious influences that obstruct their liberty, the government, while unable to do anything on the level of banning religion outright, can reasonably take measures to secularize anything under the public domain, which is ever-expanding.

First of all, the premise that there is something wrong with religion is itself wrong. Of course, that is a matter of opinion. However, so is the notion that there is something right with secularism. So, the question arises: whose side should the government take – or, at least, on whose side should it err? Of course, the question is somewhat moot, because it is not the government's business to take a side and start legislating accordingly. However, sometimes an issue cannot help but come to the government’s attention, especially in the courts. So, the question stands.

Secularists believe that it is most fair for the government to err on the side of secularism, and traditionalists believe that it is most fair for the government to err on the side of allowing free exercise of religion. The reasoning behind this – on both sides – is central to the entire debate. Some traditionalists believe that the government should err on the side of religion because they think that religion (that is, their religion) is right. But among traditionalists, that is uncommon reasoning, mostly because it is narrow and clearly untenable in a pluralistic society such as ours. Actually, most traditionalists believe that the government should err on the side of free exercise for objective reasons, namely that freedom is preferable to having the government decide when and where people may express their beliefs, and that the spirit of the Establishment Clause is firmly on the side of restricting government for the sake of increasing individual liberty. The secularists’ logic is different. Here, it is important to remember the premises from which they base their arguments. They believe that the spirit of the Establishment Clause prohibits government from taking the side of any religion, or of religion in general. Secularism, on the other hand, is not a religious philosophy, and so therefore it is fair for the government to side with it, or at least err on the side of it.

Of course, the traditionalist argument (the latter one, that is) is correct. A main problem with the secularists’ thinking is that they have a very narrow, misguided conception of what religion is. A religion is just a philosophy. What separates religions from other philosophies is that religions incorporate concepts of the supernatural. It is true that one naturally thinks of Catholicism or Hinduism in a different sense than one thinks of libertarianism or existentialism. However, there is a reason for that. Philosophy exists to pick up where science leaves off when it comes to answering life’s questions. Of course, science as we know it is barely a few centuries old, while mankind has been asking questions for considerably longer. So, philosophies that incorporate the supernatural have had one heck of a head start in forming a status-quo in societies, and in making themselves integral parts of society’s institutions. That is why we think of religions differently than we do other philosophies. However, when we get right down to it, a religion really is just a philosophy.

So, it is true that the government has no business crusading for Christianity, or Shintoism, or Scientology, or even religion in general – but only in the sense that it also has no business crusading for existentialism, or empiricism, or pragmatism, or secularism. Frankly, the government has no business crusading for any philosophy that is rightly left for individuals to consider for themselves. However, it is the government’s business to protect the individual’s rights and freedoms, and justly included in that spectrum is freedom of worship, freedom of expression, and overall freedom of religion.

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