Politics & Policy

Enter “Neutrality”

From accommodating separationism to Everson.

EDITOR’S NOTE: This is the third in a series of five excerpts from It Takes a Family, by Sen. Rick Santorum. Together they comprise chapter 23, “The Rule of Judges.”

There is another string of cases that brought forth a second pernicious Court doctrine that has transformed America’s moral ecosystem. These cases concern religion in the public square. The “first freedom” of the First Amendment concerns religious liberty: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .” The first thing to notice is that the phrase “wall of separation,” cited so frequently as an almost sacred text in most of these Supreme Court decisions, is not a phrase used in the U.S. Constitution. It was lifted from a passage in a letter from President Jefferson to the Baptists of Danbury, Connecticut, more than a decade after the First Amendment was added to the Constitution.

The rather odd wording of the First Amendment also is worth noticing: “. . . respecting an establishment of religion. . . .” Here, “respecting” is a preposition that means “regarding” or “about.” Congress shall make no law about the establishment of religion. We now know that this curious phrasing was a revision of the draft text of the amendment. An earlier draft said only that Congress could not establish a religion: But at that time, there were established churches in several of the states, notably in Massachusetts. Delegates from these states worried that simply preventing Congress from establishing a religion would not rule out the federal government disestablishing the state churches. The language of the First Amendment, therefore, is the way it is in no small part to protect the established churches of states. The Massachusetts Puritan church remained established in that state until 1833.

Of course, that does not mean we should today get into the business of establishing state churches: For one thing, the withering of faith in Europe in the presence of church establishments demonstrates that establishments have negative consequences–for religion. But a correct historical understanding of the First Amendment does show how far the Court has strayed from our constitutional tradition.

Throughout our history up until the middle years of the twentieth century, the “American way” on church-state questions is best described as an accommodating separationism. Earlier I quoted the Northwest Ordinance, with its positive legislation regarding religion and morality. James Wilson, one of only six founders to have signed both the Declaration of Independence and the Constitution, pronounced in his law lectures at the University of Pennsylvania that “Far from being rivals or enemies, religion and law are twin sisters, friends, and mutual assistants.” Unsurprisingly, for most of American history, government has looked positively on both religion and morality. Various states worked out particular arrangements reflecting their particular circumstances, but in each case, religious freedom was respected while religion was looked upon as part of the common good, a “seedbed of virtue” contributing to American society.

Things changed with the decision in Everson v. Board in 1947. While upholding the constitutionality of a New Jersey law that publicly funded transportation to and from school for both public and parochial students, the Court’s majority declared that the First Amendment mandated that neither federal nor state governments could “pass laws which aid one religion, aid all religions, or prefer one religion over another.” “No tax in any amount, large or small,” the decision continued, “can be levied to support any religious activities. . . .” The “wall between Church and State . . . must be kept high and impregnable.” All this, because in the Court’s eyes, the Constitution’s position on religion is one of “a strict and lofty neutrality.”

Never before had our country been “neutral” on religion: Now, this newly discovered constitutional principle spread everywhere. Abington v. Schempp (1963) held that “in the relationship between man and religion, the State is firmly committed to a position of neutrality.” In Epperson v. Arkansas (1968), the Court held that “Government in our democracy, state and nation, must be neutral in matters of religious theory, doctrine, and practice. . . . The First Amendment mandates government neutrality between religion and religion, and between religion and no religion.”

In most of these cases, the question before the Court concerned either prayer in public schools on the one hand, or public assistance for sectarian (usually Catholic) schools on the other. More recently, the Court has extended itself even to rendering unconstitutional such settled and popular American practices as prayer at public high school graduations or at public high school football games. Just last year, the Supreme Court dodged on a technicality a case that would have removed “under God” from the Pledge of Allegiance: Ruling “under God” unconstitutional would have been deeply unpopular, but by the Court’s own logic, there is no way to escape the conclusion that it must go. The overarching impulse of the Court’s position has been to drive religion from the public square, to secularize our society from the roots up, all in the name of the constitutional principle of “neutrality”–both among religions and between religion and irreligion.

Of course, the term “neutrality” does not appear in the U.S. Constitution. This doctrine is a pure invention of the Court. In her 1985 dissent in Wallace v. Jaffree, for example, Justice O’Connor pointed out that the free exercise clause itself sometimes mandates exemptions for religious observers from otherwise generally applicable legal obligations. She concluded that “a government that confers a benefit on an explicitly religious basis is not neutral toward religion,” nor was it ever intended to be. While neutrality between religion and irreligion may be required by liberal political theory, something very different is required by the text of the U.S. Constitution.

And what is more, I believe a convincing argument may be made that “liberal neutrality” is never really neutral. The practical effects of such a rule always have a disparate impact. We can see this in the Court’s school prayer decisions. The Court’s majority rulings have delved into the psychological effects of public prayer in schools for those youngsters who are not themselves religious: Would they not be subject to a kind of peer pressure that would violate their conscience? But the Court does not examine the flip side of their psychological investigation: What about religious youngsters who find themselves in a public school hermetically sealed off from all religious influences? Would not the school, and therefore the government, tacitly be communicating to religious youngsters that prayer, religion, and faith are not really welcome in America’s public square? That is where we have ended up: Court-sanctioned hostility to religious influence in American society, all in the name of neutrality.

Senator Rick Santorum is the junior United States senator from Pennsylvania. Chairman of the Senate Republican Conference, he is the third-highest-ranking Republican in the U.S. Senate.


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