Secular Courts as Religious Tribunals
The religious liberty provision of the First Amendment, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” is an explicit declaration that the federal government has no authority in religion and is confined to secular matters within its limited and specified jurisdiction.
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:
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The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest.
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government may substantially burden a person’s exercise of religion.
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the [Florida] statute was generally constructed to protect only practices which were compulsory or central to an individual’s religious tradition.
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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.
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plaintiffs…have failed to demonstrate that their religious traditions accord in any way independent significance to the ‘verticality’ of grave markers or religious symbols.
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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.