Recently  a court in San Diego upheld the rights of four members of the San Diego Fire Department who had objected to the Department’s requiring them to participate in a Gay Pride Parade.

The good news is that the court sustained one of the most basic of American liberties.

The bad news if that the administrators of a major American city and its Fire Department are apparently ignorant of those basic rights.

The dispute harkens back to two of the most famous cases in American Constitutional law–often referred to as the Flag Salute Cases.

In 1940 a case made its way to the Supreme Court concerning whether children of Jehovah’s Witnesses were required to participate in the daily American flag salute in public schools.  The families claimed that the pledge of allegiance to the flag violated the fundamental beliefs of their religion.  At a time when the world was again at war, the Court saw the flag salute as a symbol of national unity that fostered the common good.  Therefore it could not be set aside because of a claim of conscience. The result led to a massive number of expulsions of Jehovah’s Witnesses children from public schools and a general persecution of that religious group for their refusal to salute the flag.

In an unusual and exceptional move, the Court returned to the question in 1943.  This time it found in favor of the Jehovah’s Witnesses and declared:

We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.

This decision represented a significant shift in the Court’s interpretation of the First Amendment.  Instead of dealing with the matter in terms of granting an exemption from the law on account of religious belief, the Court asked if the government could impose such a law at all and decided it could not.  The 1943 decision decreed that government had no power to make people engage in symbolic actions, religious or secular.

The American Constitution is about the performance of  “overt actions.”  Saluting the flag and are symbolic participating in parades actions, and no one can be required to perform them because doing so expresses belief, and compelling belief is outside the scope of government.

People cannot be punished for not saluting the flag, and they cannot be prosecuted for desecrating it either. 

In a similar court case in 1977, Jehovah’s Witnesses in New Hampshire were fined and jailed for covering up the state motto, “Live Free or Die” on their cars’ license plates. The Court rightly determined that citizens  cannot be required to display the motto. To require this would be to force people to publicly proclaim a belief, and the government does not have the authority to do that.

The government of the Unites States is one of limited and specified powers.  It is confined to secular matters within its competence.  The Second Flag Salute Case stated that the mandatory flag salute law was not within the specified secular powers delegated to government.  In one of its most famous pronouncements ever, the Court declared:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

By requiring  the firefighters to march in the Gay Pride Parade, officials in San Diego whether they were “high or  petty” were imposing their own orthodoxy and political correctness. 

Shame on them!

In 2002 the Catholic Bishops of the United States appointed a National Review Board to evaluate the “causes and context” of the sexual abuse crisis in the Catholic Church.  The Board was composed of twelve lay people and included two judges and several lawyers including a law school dean and a civil rights attorney.  

In its subsequent Report, the National Review Board agreed that “state authorities imposed significant state controls on the internal workings of the church” (61) and agreed that such controls represented “a troubling infringement of the First Amendment’s guarantee of the free exercise of religion.” (63) However, the Board members not only accepted those violations of the Bill of Rights but actually justified them.

In the view of the Board the First Amendment is a discretionary restraint on government.  The Board members advised civil authorities “to take pains to ensure that they do not unnecessarily intrude upon the internal workings of the church, which are protected by the First Amendment’s guarantee of the free exercise of religion.” (63) The members justified the violation of the First Amendment and the Bill of Rights because “it was the serious failings of some bishops that caused this exercise of state authority over church matters.” (63)  The members warned the bishops that they must “understand that a failure to properly police themselves simply invites this type of government intrusion.” (63)

Would one say that it is unfortunate that the police beat the prisoner, but he “invited” the beating by his failure to cooperate with their investigation! 

If the First Amendment is merely a recommendation to government, are the other protections of the Bill of Rights also recommendations?  Are they to be understood by authorities as guidelines that government will not “unnecessarily intrude upon”?

If we are to accept that the First Amendment is merely a recommendation to government, then should not the same hold true for the Eighth Amendment’s prohibition against “cruel and unusual punishments?”  Is this prohibition against torture just a recommendation, one the government should not engage in “unnecessarily?”  Could government interrogators justify themselves on the grounds that suspected terrorists “invited” torture?

The Supreme Court has pointed to James Madison’s famous defense of the free exercise of religion in his 1985 Memorial and Remonstrance as a guide to the meaning of the First Amendment.  In that petition Madison wrote:

We maintain therefore that in matters of Religion, no man’s right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance.

He also described the free exercise of religion as an unalienable right.

The First Amendment is not a recommendation to government; it is an absolute prohibition against the exercise of government jurisdiction in matters of religion.

Most great crises in American history have brought grievous violations of civil and religious rights, and the sexual abuse crisis is no exception.  Just when people most need the protections of the Constitution is the time when they are oftentimes not available.

The targeting of the Church (particularly in California), the overreaching of district attorneys and prosecutors, and the lack of due process and fairness for the Church has been tyrannical. 

All of us, including bishops, are subject to the law. However, accusations never justify the trampling of civil and religious liberties by government.

It is “troubling” that prominent Catholics, including distinguished members of the legal profession, would be so ignorant of the meaning of one of the most fundamental of American liberties–the free exercise of religion.

However, in 2006 a federal judge in San Diego, much as Henry VIII did, declared himself the supreme authority and judge of the meaning of the “beliefs, opinions, or practices” of the Catholic Church.

 The case in question arose out of a 2002 California law—SB 1779—that repealed the Statute of Limitations for the duration of 2003 for civil suits arising out of the sexual abuse of minors. SB 1779 was drafted by lawyers suing the Catholic Church. The hearings in the Legislature focused on abuse by Catholic priests. The subsequent comments of the legislators who enacted the Bill and the Governor who signed it clearly indicated that they had the Catholic Church in mind.  The results of the Bill are the clearest evidence that it was aimed at the Catholic Church.

 The suspension of the Statute of Limitations led to about 1000 cases being filed against the Catholic dioceses in California.  On the other hand, only a very small number of cases were subsequently filed against other persons and entities – so few as to make tracking them difficult. 

 Although there are an estimated 400,000 victims of abuse from public institutions in California, the Legislature did not extend the law to those entities, and the Supreme Court of California confirmed that action in 2007.  This resulted in directing the focus of the problem of abuse of minors to the Catholic Church and ignoring the very large problem elsewhere.

 The Federal Court in San Diego confirmed that the State targeted the Catholic Church.  

 The oral argument and opinion in the case (Melanie H. v. Defendant Doe) includes the following:

 The Court: …what if the law targets a Church, but the result of the law is that it doesn’t burden the religious practices of the Church, what happens then?

 Thus the secular Court set up a religious standard for judging the case, and it followed with a decision that issued multiple religious judgments.  The Court stated that the law that targeted the Catholic Church could stand.

 In a breathtaking usurpation of power to judge religious matters the Court declared: 

• SB 1779 [the law repealing the statute of limitations] in no way targets inherently religious or religiously motivated conduct….
• SB 1779 does not impermissibly regulate the free exercise of religion because the legislation does not interfere with religious beliefs, opinions, or practices.
• counseling is not a “religious practice”
• SB 1779 does not burden the choice, supervision, or retention of priests.
• The Court concludes that financial burden in defending lawsuits is not a burden on religious belief or practice.
• However, the Court finds that the dispositive question is whether the statute infringes on a religious exercise, meaning a belief or practice.
• the Court need not address the arguments of the parties regarding the neutrality and general applicability of SB 1779.

 The judge made all of these religious decisions without any testimony from expert witnesses and without examining the beliefs, doctrines, or practices of the Catholic Church.  Of course, if witnesses had been called and the beliefs, doctrines, or practices of the Catholic Church had been examined, it would have been startlingly clear that a secular court was interfering in religious matters.

Instead, the judge set himself up as a religious potentate after the manner of Henry VIII and decided these religious questions by fiat.

The Court rightly recognized that a religious objection to a law does not exempt one from obeying it.  The judge should have asked if SB 1779 was a valid secular law even if the Catholic Church argued that it impacted the Church’s religious beliefs, opinions and practices.  However, he did not do that.  Instead of focusing on secular matters, he concentrated on religious issues and asserted that he knew the meaning of Catholic beliefs, doctrines and practices better than Catholics themselves did. 

Having decided the case on the basis of religion, the judge concluded that he did not need to address the secular standard of “neutrality and general applicability.”

According to this decision, a state could target a religious group to punish it for a problem that affected the whole of society.  Even if the targeting bankrupted the religious group and destroyed its ability to provide places for worship and religious teaching that would not, according to the court, affect the religious “beliefs, opinions, or practices” of the group in question.

The First Amendment is a statement that the government is confined to secular matters within its specified power and has no jurisdiction in religious matters. The judge in San Diego decided that the First Amendment was a grant of jurisdiction to him to determine and evaluate Catholic beliefs, doctrines and practices.

In a notable book Separation of Church and State, published in 2002, Philip Hamburger argued that during the 19^th Century, anti-Catholic nativists redefined American religious liberty to mean the separation of Church and State so that they could isolate and target Catholics. In Church and State matters as in life, the power to separate is the power to control.  Anyone who as a youth was ever involved in picking teams knows that the one who separates those who play from those who do not exercises power. The redefinition of American religious liberty as the separation of Church and State giving the State power over the Church reached its summit in the San Diego case.

Child abuse is a terrible crime, and it is a deep source of shame and embarrassment that there should be so many allegations of abuse against priests.  The John Jay Report shows that the Catholic Church in America has been far more proactive in addressing this problem than the rest of society. Despite this fact, the Church has been targeted to bear the burden, shame, and cost of this societal problem.  That report is available at http://www.usccb.org/nrb/johnjaystudy/index.htm.

One could hope that a federal judge would know that a law targeting any group is ipso facto a violation of due process, equal protection and the most basic of American liberties.  One could also hope that instead of asking “what if a law targets a Church” the judge had asked: what if a law targets a group to punish it for a problem that affects all of society? One could wish that a judge would know that he has no jurisdiction to decide religious matters.  However, the federal judge in San Diego dashed all those hopes.

Government targeting of groups has resulted in some of the greatest violations of

American civil and religious liberties against groups including African-Americans, Japanese-Americans, Jehovah Witnesses, and, once again, Catholics.

Americans assume that the days of Henry VIII, when rulers declared themselves authorities in religious matters, are long gone in America.  For Catholics, unfortunately, that is far from the reality.

In  2004 the federal government appropriated funds to assist with the refurbishment of the California Missions.  Both California Senators approved.  Yet the California State Attorney General’s Office opposed the assistance on the grounds that it would aid religion. The Missions—possibly the best known and most visited public monuments in the State–are designated California Historical Monuments.  Because of this designation, the state monitors and controls their reconstruction.

How did the Office of the California Attorney General determine that a grant to assist the refurbishment of the Missions will aid religion?  The state did not conduct any hearings on the matter nor call forth religious experts for counsel.  When fourth graders make models of the Mission, is that an aid to religion?  If a fire department is called to extinguish a fire in a Mission, would that be an aid to religion? 

Actually, whether the Office of the Attorney General has sufficient expertise on matters of religion is beside the point.  The Attorney General’s office, as with any government office, has no authority to determine what does and does not aid religion. 

If judges and government officials were to conduct hearings and call expert witnesses on what aids religion, the fact that they were involving themselves in religious matters beyond their competence would become patently evident.  So they avoid this dilemma by deciding things by fiat and making themselves into religious potentates responsible to nobody. 

The California courts hold that they can figure out “whether the grant would have the direct, immediate and substantial effect of promoting religious purposes.”  Although I have more than forty years experience as a priest, I would claim no such religious expertise. 

What aids religion is a matter reserved to citizens, believers, and church members, not the officials of a secular government. That is what the free exercise of religion guaranteed by the First Amendment means, i.e., religion exercised free from government interference or jurisdiction. That Amendment is a command to government to stay within its proper secular sphere and to refrain from participating in religious decisions such as what aids religion.

The proposed financial aid for the missions is the same aid afforded by the government to other historical sites to aid in their physical upkeep so that future generations may visit and learn from them.  Refurbishing roofs, repairing walls and strengthening foundations are eminently secular work—something government officials can track, evaluate, and supervise. They do not have to involve themselves in any religious question or decision.

 James Madison wrote in 1785:

We maintain therefore that in matters of Religion, no man’s right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance.

The evaluation of what does or does not aid religion is beyond the “cognizance” of the Attorney General of California.

Government assists religion in a multitude of ways.  No one argues that fire departments should not answer calls from churches because putting out fires in them helps religion enormously.  No one proposes turning off traffic signals on Sunday mornings because they aid people to get to their places of religious worship.  Does anyone think that officials should go through the National Gallery and remove all the pictures that propagate a religious message?

What aids religion is a useless standard for judging First Amendment questions. It only leads government officials to act in a completely arbitrary fashion by making religious decisions without examination or explanation.

Some may argue that if the government assists the missions with refurbishing it has to help every church.  Not so.  Other churches are generally not historical monuments, and the state does not have an interest in their preservation as it does in the Missions.

Refurbishment of Mission structures is a secular task within the power of government.  Whether the government wishes to spend money to do this task involves a policy—not a constitutional—decision.

Thomas Jefferson listed on his tombstone three accomplishments: his authorship of the Declaration of Independence, the Virginia Statute for Religious Freedom, and the founding of the University of Virginia.

He did not list his authorship of the phrase, “the wall of separation between Church and State,” but that phrase has gained him as much notoriety as any of the three listed achievements.

Jefferson used the “wall of separation” metaphor only once—in a letter to a group of Baptists in Connecticut in 1802. He had not employed the metaphor before, and never returned to it.  However, it has assumed a dominant position in American public life, and its supporters adhere to it with a religious like-fervor that is at times fanatical.

The extensive use of the metaphor dates to the 1947 Everson decision in which the Supreme Court extended the reach of the First Amendment to the states.  Originally that Amendment applied only to the federal government.  In that decision, Justice Black wrote: “In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.’”

It is astonishing but true that judges, lawyers, and commentators have for more than sixty years translated the words of the First Amendment into a metaphor that they cannot define or even describe adequately.  In 1948, Justice Felix Frankfurter snapped rather peevishly that “Separation means separation, not something less.” No one has been able to improve on that “definition.”

The metaphor not only confuses the meaning of the First Amendment, but also leads people in directions that are opposed to and incompatible with its meaning.

In declaring for a wall separating Church and Sate, the Court forgot that the words of the First Amendment do not deal with two entities–Church and State–but rather with one, the State: “Congress shall make no law.” The purpose was to leave the Church independent and free. The Church is not bound by the Amendment and cannot violate it.

A government with no jurisdiction in religion may not establish a church nor impose religious beliefs or doctrines on anyone.

By contrast, the “wall” metaphor endowed the government with power over religion.  The power to separate is the power to control. Anyone who as a child was involved in picking teams knows that the one who separates those who play from those who do not exercises power.

In keeping with its assertion that the First Amendment gave power to the government to determine the proper spheres of both Church and State and to place a figurative wall between them, the Everson Court went on to give the government religious authority to determine what aided religion.

The First Amendment was enacted as a specific affirmation that the government had no power or jurisdiction in religion.  The Everson decision turned the Amendment on its head and declared that the government was to define the sphere of the Church and to determine what aided religion.

In an astonishing statement, the Court added:

No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.

This is the ultimate “separation,” which, fortunately, the government has not followed in practice.  As written, the statement would mean that a fire department would have to stand by while a church burned because to extinguish the fire would involve the expenditure of tax money and would certainly qualify as support and aid for the religious activities of the church members.

The “wall” metaphor belongs to the extravagant rhetoric of the Court, but fortunately that rhetoric has not guided the Court in its decisions.  Everson involved a New Jersey law that reimbursed parents for the transportation of their children to parochial schools by public transportation.  In fact, the Court upheld the law, even if it aided parents to send their children to Catholic school.  The Justices saw the law as “public welfare legislation” which indeed it was.  It merely enabled parents to send their children to religious schools that the government already recognized as providing a public service by fulfilling the state’s requirement for the education of children.

In subsequent decisions the Court has been generally faithful to the purpose of the First Amendment which prohibits the exercise of government jurisdiction in religion. For example it struck down government-sponsored religion in schools. However, it upheld religious exercises by individuals and groups, even when they took place on government properties such as parks, schools and colleges.  It allowed aid—books, computers, remedial education—to parochial schools in instances when such aid did not require government officials to exercise jurisdiction in religious matters. It forbade the payment of teachers in the same schools, something that very probably would have involved government officials in religious questions.

The “separation” rhetoric would ban every religious expression from the public sphere.  This would not only prohibit the free exercise of religion by individuals and groups but it would involve government officials intimately in deciding religious questions.

The problem with modern Church-State relations is not so much the decisions the Court has made, but rather the extravagant rhetoric it has wrapped around them.  The actual decisions of the Court are to a great extent consistent with the First Amendment’s purpose of denying the government jurisdiction in religious matters and confining it to its proper secular and limited sphere.  The rhetoric of the Court, however, would give the government power over both Church and State, authority to define what aids religion, what organizations are “pervasively sectarian,” what is purely secular and not religious and what burdens people’s free exercise of religion. Fortunately the Court’s decisions do not in large part follow this rhetoric.

The “wall of separation” metaphor has corrupted discussion of religious freedom and threatens to undermine the First Amendment.

In 1985 the then Justice William Rehnquist wrote:

The ‘wall of separation between church and State’ is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging.  It should be frankly and explicitly abandoned.

Amen to that!

On January 5, 2009 the California Supreme Court handed down a decision in favor of the Episcopal Diocese of Los Angeles.  St. James, Newport Beach, had separated itself from the diocese over a doctrinal issue involving homosexuality and claimed ownership of the church property.  The Diocese of Los Angeles sued, declaring that the property was held in trust for it. The Supreme Court agreed.

The Court relied heavily on  the “neutral principles of law” rule propounded by the Supreme Court of the United States in 1979. The California Court explained this rule as considering:

sources such as the deeds to the property in dispute, the local church’s articles of incorporation, the general church’s constitution, canons, and rules, and relevant statutes….

Justice Kennard of the California Supreme Court agreed with the decision but dissented from the opinion arguing that the “neutral principles of law” rule was inadequate.   He would have relied on the “principle of government” rule by which the highest authority in a church makes the final decision as to the ownership of property.  He was right.

The “principle of government” rule dates back to 1871 when the Supreme Court of the United States had to deal with church property disputes that followed the division of many congregations over the issue of slavery.  That rule has provided guidance and stability in resolving church property disputes,  whereas the “neutral principles of law” approach has merely complicated and confused the issue.

The California Court held that the neutral principles of law rule allows judges to review court disputes in “purely secular terms” without their involvement in church “doctrine, polity, and practice.”  But how can a secular court know that it is not involving itself in doctrine, polity or religious practice?  Answering that question would make the Court the final judge of all those things. The power to define what something is or is not rests on the possession of competency in that subject.  A court that declares it is not making religious decisions is asserting authority to define what is religious.

The assertion that it can review matters in “purely secular terms” is in fact a theological assertion—and a crude one at that.  It implies a dichotomy between what is secular and what is religious and that what is secular is not religious and vice versa.  However, matters that are secular are often defined by believers as religious.

For example, housing the homeless is a secular matter within the power of government, but it is not a purely secular matter. For many believers housing the homeless is profoundly religious and indeed one of the tests of true Christianity (See Matthew 25).

The right to define what is religious is reserved to citizens, and to declare that something is purely secular is to deprive them of their right to the free exercise of religion to regard those matters as religious.

If a matter is within the legitimate power of government the fact that a citizen may define it as religious does not impede the government’s power to pursue it.  However, neither does that take away a citizen’s right to see the matter as religious.

If courts were to engage in an investigation of whether they were reading a “church’s articles of incorporation, the general church’s constitution, canons, and rules” in purely secular terms and were to call witnesses on behalf of the church to testify in this matter, the trial would demonstrate the extent to which courts are making assumptions about what is secular and what is religious.  Judges do not engage in this investigation, however.  They simply declare by fiat that they are not involving themselves in religious matters.

The “neutral principles of law” rule continues a long tradition of setting up religious standards for evaluating secular laws.  The courts by declaring that that they are not involving themselves in religion in fact make themselves the judges of what is religious.

In 1947 the Supreme Court, in its Everson decision that applied the First Amendment to the states, set up as a standard for judging whether laws “aid one religion, aid all religions, or prefer one religion over another.”  In this way the Court nationalized the anti-Catholic Blaine Amendments enacted in various states giving government expertise in religious matters and establishing a religious rather than a secular standard as the criterion for courts.

The rule for judges should be what is secular and within the jurisdiction of government. Not everything that is secular is within that jurisdiction.  For example beliefs and acts that are secular and lawful such as saluting the flag are not within the jurisdiction of government to impose.

Almost all secular laws have religious dimensions for some believers, and government has no power to decree that a matter is not religious and purely secular.

For example, in its 2008 decision regarding gay marriage, the California Supreme Court declared:

Finally, affording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person….

Had the Court argued that the issue of gay marriage was a secular matter  within its jurisdiction, one that it could pronounce on even if some objected to the decision on account of religion, that would have kept discussion within the realm of the secular.  Instead, the Court made itself the supreme judge of religious freedom and belief.

In 1785, in his famous Memorial and Remonstrance opposing a tax assessment for the support of churches in Virginia, James Madison wrote that religion is wholly outside the “cognizance” of civil society. Government may not say what aids religion, and judges may not declare that their actions have no impact or effect on religion or that their decisions are “purely secular.” To declare that they are not making religious decisions is to bring the meaning of religion within the “cognizance” of the courts and to make the judges into religious experts.

Judges and courts should abandon the “neutral principles of law” rule and return to the  more stable and better “principle of government” rule that focuses more on the secular power of courts. They should avoid declaring that they are not making religious decisions because that declaration supposes that they are the final arbiter of the definition of what is religious.

In a 1990 decision written by Justice Antonin Scalia–Employment Div. v. Smith—the U.S.Supreme Court reversed course and held that a “valid and neutral law of general applicability” applies to all, even to those who claim that it violates the free exercise of their religion. As long as the law did not target an individual or group and applied equally to all, the Constitution mandated no exemption.  The Court recognized that government could grant exemptions by way of favors, but the First Amendment did not compel it to do so.

Before Smith the Court held that in the absence of a “compelling state interest” to the contrary, citizens could assert a right to an exemption to a law that violated their free exercise of religion.

The Smith decision generated an enormous amount of passionate discussion, mostly critical.

In response to the Smith decision, Congress enacted the Religious Freedom Restoration Act (1993) restoring the “compelling state interest” standard. In 1997 the Supreme Court struck down this Act as applied to the states. It probably still applies to the federal government.

In response, several states passed their own Religious Freedom Restoration Acts.  All of these should be declared unconstitutional. The Smith decision represents the proper application of the First Amendment and provides the best defense of religious liberty.

In the Smith opinion, Justice Scalia quoted an earlier opinion by Justice Frankfurter:

The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities. …To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.

Obviously, citizens may not pick and choose which laws to follow based upon their consciences.  That would be a formula for anarchy.  However, under the “compelling state interest” standard courts pick and choose for them.

If the government has no compelling interest to the contrary, then citizens are entitled to the free exercise of religion as they define it. However, if the government has a compelling interest to the contrary, then citizens may not enjoy the free exercise of religion.  This means that judges—according to a skewed definition–allow free exercise to some but not to others.  The Constitution states that Congress shall make no law “prohibiting the free exercise of religion,” but that has now been redefined to state that Congress shall make no law prohibiting  the free exercise of religion unless it has a compelling interest to the contrary.

The problem arises from the erroneous assumption that the guarantee of the “free exercise of religion” is addressed primarily to individuals instead of to the government.  Free exercise of religion is not a guarantee that people can do whatever their consciences tell them. The First Amendment is a statement about what government may not do rather than what citizens may do.

The Amendment is a mandate to government to keep within the bounds of its secular, limited, and specified powers.  It asserts that the government has no power or jurisdiction in religious matters.  Something that is secular and within the power of government may be defined by a citizen as religious, but that does not compel government to grant an exemption to the law.  If the government is addressing a secular matter within its competence, it is acting in a proper secular fashion. In such instances, within the meaning of the Constitution, it is not exercising jurisdiction in religious matters.

Opponents of the Smith Decision fear that it will deprive citizens of the their rights and lead to the oppression of minorities by government.  Not so.

Governments have certainly enacted secular laws to oppress or target religious groups.  The Smith decision, however, makes it clear that a law that targets a specific group or groups is neither neutral nor valid.  The government may provide exceptions for conscientious believers but it is not compelled to do so by the First Amendment.  However, other provisions in the Constitution may require such exemptions.

For example, during Prohibition, the government made exceptions for Catholics and Jews to use alcohol for sacramental purposes.  An argument can certainly be made that under due process and equal protection government is required to consider granting exemptions for other banned substances used in religious services.

In the 1963 Sherbert case in which the Court first applied the “compelling state interest” to a free exercise of religion claim, the issue involved a Seventh Day Adventist who had been dismissed because she would not work on Saturday and was then denied unemployment compensation.  However, the state involved—South Carolina—had already provided an exemption to the law for those who would not work on Sunday.  This was a straightforward example of equal protection and the Court complicated the matter unnecessarily by making it a matter of the free exercise of religion.

The “compelling state interest” rule transforms secular judges into religious experts and courts into religious tribunals.  The purpose of the First Amendment was to confine government to what is secular and to keep it away from religion.

In 1785 James Madison explained what he meant by the free exercise of religion in his famous Memorial and Remonstrance, a petition he wrote in opposition to a proposed Virginia tax assessment law for the support of ministers:

We maintain therefore that in matters of Religion, no man’s right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance.

If anyone knew what free exercise of religion meant, he did.  He invented that concept and included it in the Virginia Declaration of Rights of 1776.  He shepherded the Bill of Rights through the First Congress of the United States.

If religion is outside the “cognizance” of government, judges and legislators have no power to evaluate what burdens people’s religion.

The First Amendment, by proclaiming that government shall have no power in religious matters, was a declaration that citizens were free from government jurisdiction in religion and at liberty to exercise their natural right to determine religion for themselves. The Supreme Court has interpreted it as a grant of jurisdiction to courts to determine the meaning and extent of religious liberty and to weigh claims of free exercise against government interest. The creators of the First Amendment perceived legislatures and judges as the principal threats to the people’s religious liberty.  Our modern interpretation of the First Amendment now make those same legislators and in particular the judges the guarantors and protectors of that liberty.

The Smith decision represents the best hope for religious liberty. It reflects a better understanding of the standard the Founders laid down in the Constitution and  is affirmed in the First Amendment.  To entrust the decision of what aids, hinders, or burdens religion to secular courts is constitutionally prohibited. Religion is protected from interference by secular judges who have no competence in it and who may be insensitive or even hostile to religion.  To allow judges to evaluate, balance, and pronounce on religious matters is disastrous for religious liberty.

In the fall of 2008 the Alliance Defense Fund, an evangelical organization, promoted a campaign called “Politics from the Pulpit”, encouraging ministers to preach on political issues and endorse candidates.  This was intended as a challenge to the Internal Revenue Service (IRS) rule forbidding tax-exempt organizations to endorse political candidates.

Use of the pulpit to preach about politics is generally a bad idea, and endorsing candidates is worse.  Such advocacy for a political position or candidate may even be counter productive. In one of the most famous political endorsements by a minister of a presidential candidate, the Reverend Samuel D. Burchard in 1884 supported James G. Blaine the Republican candidate for President by labeling the opposing Democratic Party as representing “Rum, Romanism, and Rebellion.” That statement probably played a role in Blaine’s loss of the election.

However, if the IRS challenges the Alliance Defense Fund’s tax exemption I will support the Alliance on this issue.

The function of the Internal Revenue Service is to collect taxes.  Nothing in the Constitution gives it any jurisdiction regarding free speech.  If churches raise money for candidates, that certainly is the business of the IRS; but suppressing free speech definitely is not. 

In one of the most famous pronouncements of the Supreme Court, Justice Robert Jackson wrote in 1943:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion…

Tax exemption is a government privilege; but no official may demand that we surrender one of the most basic American liberties–free speech and the expression of our opinions–in exchange for it.

In 1963 the Supreme Court in its Sherbert decision stated that:

It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege.

The interference by government in religious matters should be challenged, and the Alliance is doing just that. The way to deal with opinions we find bad, dangerous or foolish is to offer better ones. Thomas Jefferson wrote that “It is time enough for the rightful purposes of civil government, for its officers to interfere when principles break out into overt acts against peace and good order.”  

Preachers should be held to account for their opinions by their congregations and other citizens, not by a government agency.

Article VI of the Constitution specifies that “no religious test shall ever be required as a qualification to any office or public trust under the United States.” That has worked very well to protect most Americans, except Catholics.  For centuries Catholics have been judged on beliefs they presumably hold rather than on the actions they perform.

When John F. Kennedy ran for President in 1960 he felt with good reason that he had to subscribe to such a religious test if he was to be elected. To the Greater Houston Ministerial Association he proclaimed that “I believe in an America where the separation of Church and State is Absolute.” 

That statement is absurd on its face and is no more amenable to definition or to rational explanation than any of the religious propositions people were obliged to subscribe to in the past.  However, the purpose of the test was not to provide material for discussion.  It was a trial of orthodoxy, an attempt to let his hearers know that he thought like them.  Kennedy had never done anything to give aid and comfort to the enemies of the United States and there was not a shred of evidence to indicate that he would do so in the future.  The test was about belief, not about his actions. As in the past the test was demanded to reinforce the confidence of like-minded people and to make sure that dissenting thought was excluded.

This test like all religious tests is inimical to American freedom.  It attempts to promote orthodoxy of belief and ideology.  During John Roberts’ Senate hearing for confirmation as Chief Justice, Senator Diane Feinstein quoted Kennedy’s statement, “I believe in an America where the separation of Church and State is Absolute”   and added, “My question is, do you?”  This was clearly an attempt to impose a test oath.

In this past Presidential campaign the New York Times criticized Republican candidate Mitt Romney for not subscribing to the Kennedy test. The paper claimed that Christian Fundamentalists wanted to “imposed their faith on the Oval Office” but added that Romney did not come near to subscribing to the Kennedy test. The editors wrote: “We believe democracy cannot exist without separation of church and state.” That is a belief, an ideology not found in the Constitution that they wish to impose on others. (NYT 12/7/07).

Commentators often laud Thomas Jefferson’s sentiment that “it does me no injury for my neighbor to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.”  However, God help the neighbor who does not “believe” in the “absolute” separation of Church and State.

 The “wall of separation” imagery has created a new American test.  It is an attempt to create orthodoxy and to control thought.  Its  followers violate the spirit and sometimes the letter of the constitutional provision that bans religious tests.

Despite this prohibition, modern constitutional law is honeycombed with examples of judges exercising jurisdiction in religion and courts turning themselves into ecclesiastical tribunals.

Originally the First Amendment applied to the federal government only, but the Supreme Court in its Everson decision of 1947 extended the reach of the First Amendment to the states. In that decision the Court decreed that:

Neither a state nor the Federal Government can … pass laws which aid one religion, aid all religions, or prefer one religion over another.

The Court thus set up a religious standard, what aids religion, as a criterion for judging by secular courts.

Were courts to engage in a process to evaluate what aids religion calling witnesses and experts to testify, the extent of their involvement in religious judgments would become glaringly obvious.  Therefore, judges adopt the posture of religious potentates, declaring by fiat and without discussion what aids religion. 

A fortuitous case study by Professor Winifred Fallers Sullivan of the University of Chicago entitled The Impossibility of Religious Freedom (2005) exposes the religious authoritarianism employed by judges. This study illustrates the difficulties that ensue when government usurps jurisdiction in religious matters.

The study detailed a 1999 trial in Boca Raton, Florida that involved a city-owned cemetery.  For grounds keeping purposes, cemetery policy prohibited vertical monuments on graves. However, for more than a decade the cemetery managers ignored that regulation and numerous people had installed religious statutes and memorials over the graves of family members. In 1997 the city council passed a resolution requiring that those monuments be removed.  Several people sued on the grounds that their religious freedom was being denied, and the case ended up in the federal district court.

Of the several claims advanced the most important was based on Florida’s Religious Freedom Restoration Act (2003). That Act forbade the government to “burden a person’s exercise of religion” in the absence of “a compelling government interest” and unless it used the “least restrictive means” to further that compelling interest.

For a week, the judge turned the federal court into a religious tribunal, calling experts in religion and examining people’s religious beliefs, sentiments and values.  In the end the judge upheld the cemetery regulation prohibiting the memorials.

The decision exemplified just how much power courts have assumed over religion.

 The Boca Raton decision included the following statements: 

• The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest.
•  government may substantially burden a person’s exercise of religion.
• the [Florida] statute was generally constructed to protect only practices which were compulsory or central to an individual’s religious tradition.
•  a plaintiff must demonstrate a substantial burden on conduct that, while not necessarily compulsory or central to a larger system of religious beliefs, nevertheless reflects some tenet, practice or custom of a  larger system of religious beliefs. 
• plaintiffs…have failed to demonstrate that their religious traditions accord in any way independent significance to the ‘verticality’ of grave markers or religious symbols. 
• the Torah is virtually silent with regard to grave markers, and those few passages which grave markers do not attach any importance to the type of marker used….

 Someone reading these statements with no knowledge of the case at issue would have to conclude that they were the pronouncements of a court in a country that maintained an established religion.

In its Everson decision of 1947 applying the First Amendment to the states, the Supreme Court held that James Madison’s 1985 petition, A Memorial and Remonstrance, provided a guide to the meaning of the First Amendment.  Madison wrote the Memorial in opposition to a proposed tax assessment for the support of clergy in Virginia.  He argued:

We maintain therefore that in matters of Religion, no man’s right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance.

He also opposed the tax assessment law because:

the Bill implies …that the Civil Magistrate is a competent Judge of Religious Truth….

In the Boca Raton case, the court certainly saw religion within its “cognizance” and the magistrate assumed competence to decide religious truth.  Indeed the decision second-guessed the plaintiffs about the meaning of their own religion.

What should the court have done?

The court should have focused on secular matters and asked if the cemetery authorities had acted in an arbitrary way.  It did find that the regulations granted “unbridled discretion” to the authorities to make exceptions to the prohibition on vertical monuments and struck down that regulation.

If the cemetery had coped for a decade with the vertical memorials, how much of a nuisance did they actually present?

The court should also have focused more on the power of the cemetery authorities and the city to abridge free expression—religious or secular—on public property.  The court had the authority to weigh and balance the inconvenience represented by vertical monuments of any kind against the abridgment of free speech that the ordinance represented.

Courts may not evaluate what does or does not burden the practice of a person’s religion.  That decision is protected by the free exercise of religion, a right reserved to each person.  Madison also wrote in his Memorial: “This right is in its nature an unalienable right.” 

For James Madison the free exercise of religion meant that citizens would be free from government exercise of jurisdiction in religious matters. The Supreme Court was right to make Madison’s Memorial a guide to the meaning of the First Amendment.  However, after more than sixty years it is long past time for the Court to follow its own recommendation.