Neither Left Nor Right, But Catholic… A Small Judicial Victory Against Secularism
By STEPHEN M. KRASON
(Editor’s Note: Stephen M. Krason’s Neither Left nor Right, but Catholic column appears monthly [sometimes bi-monthly] in Crisis. He is professor of political science and legal studies and associate director of the Veritas Center for Ethics in Public Life at Franciscan University of Steubenville. He is also co-founder and president of the Society of Catholic Social Scientists and a lawyer. Among his books are: Abortion: Politics, Morality, and the Constitution; Liberalism, Conservatism, and Catholicism; The Transformation of the American Democratic Republic; Catholicism and American Political Ideologies, and a Catholic political novel, American Cincinnatus. The views expressed here are his own.)
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In early August the Freedom From Religion Foundation, secularist bullies who go around the country seeking especially to pressure local governments to eliminate anything that even remotely suggests a favorable official view of religion, suffered an unaccustomed defeat in the courts. They usually get the often cash-strapped local governments to buckle under and do what they want by threatening legal action, whose costs the entities couldn’t handle. They supposedly come up with plaintiffs from the local area in question, even though they sometimes are anonymous or do not use their actual names. They seem to go around looking for plaintiffs so they can file suits to promote their agenda of pushing any vestige of religion out of the country’s public life.
The use of litigation as a pressure tactic by outfits like the FFRF was made possible decades ago by the Supreme Court’s carving out in establishment clause cases an exception to the normal rule that precludes suits in the federal courts merely because one is a taxpayer even when no legal harm has been suffered.
In this recent case, Lehigh County, Pa., decided to take on the FFRF when it challenged the constitutionality of its official seal, which includes a cross among other symbols including the Liberty Bell, and prevailed in the U.S. Third Circuit Court of Appeals. The court said that the cross, which the county argued was meant to honor the Christians who had settled there, could be constitutionally sustained because of its historical significance and the 75-year-old seal had to be judged in light of its overall message and the fact that many state and local government seals include religious symbols or mottos.
The episode was similar to one in Steubenville, Ohio — where my university, Franciscan University of Steubenville, is located — several years ago. The city was proposing a new official seal that featured among other things a depiction of part of the chapel at the University including the cross that stands atop it. What the city apparently was seeking to do was to bring attention, among these other things, to a university that has become known around the world and is probably the most important institution within its borders (as well as one of the leading employers in the area).
When the FFRF started making its usual objections and threats, however, the city backed off and decided not to adopt the proposed seal. One of the leaders of the FFRF outrageously claimed that the chapel in the seal signified that the city was a theocracy.
The Supreme Court paved the way for such assaults on religion in American public life by its modern line of establishment clause cases, which date back to the mid-1940s. It has declared that government policy and practice in the U.S. has to be neutral not just among different religious sects but between belief and unbelief. The result, as the eminent late Catholic constitutional lawyer William Bentley Ball pointed out, has hardly been neutral (if neutrality were even possible, since every stance involves the embracing of a position or perspective). What Ball said the court’s decisions have done is to help ensure that secularism has become America’s established religion.
Actually, when one considers the reach of the FFRF’s efforts to cleanse religion so completely from American public consciousness it seems like it’s trying to make outright atheism the country’s established religion.
This is a far, far cry from earlier America and the intent and vision of our Founding Fathers. Many legal scholars have shown that the Supreme Court’s mandating “strict neutrality” between church and state has no basis in American constitutional history or tradition.
As Professor Gerard V. Bradley of Notre Dame Law School writes in his comprehensive and authoritative book Church-State Relationships in America, the First Amendment’s establishment clause was intended by its framers — the first Congress that proposed the Bill of Rights, which included a number of our Founding Fathers from the 1787 Constitutional Convention — to do nothing more than require no favoritism of any sect and to forbid the creation of a national established, official church. It did not even require the states that had them to end their established churches, the last of which continued for almost two generations more.
Any honest portrayal of earlier American history — even into the twentieth century — acknowledges that the country had a Christian culture. Unbelievers were on the margins, and often not trusted. Early in the Republic, belief in a Supreme Being and an afterlife was in some states required to run for political office. The rationale was that someone shouldn’t be trusted to handle public affairs honestly if he didn’t believe he would have to answer for himself before God after his passing. The principles of Christian morality were seen as governing in the different realms of life and as the basis for our law.
Our Founding Fathers, with few exceptions, were active members of Christian communions. The statements of many of the most prominent ones emphasized how crucial religious belief was to sustaining republican, and in fact any good, government.
George Washington said that “of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports.” He also said God is the “Great Author of every public and private good.” John Adams said, “Our Constitution was made for a moral and religious people. It is wholly inadequate to the government of any other.” James Madison, often called the “Father of the Constitution,” stated that “religion is the basis and Foundation of Government.” He also said that our free political institutions are based upon the notion of self-government and that requires self-control, which in turn requires the Ten Commandments.
Even the more secular-minded Benjamin Franklin said as the Founders worked to forge the Constitution in Philadelphia that “God governs in the affairs of men” and “without his concurring aid we shall succeed in this political building no better than the Builders of Babel.”
Far from the “rigid wall of separation between church and state” that the Court set down as a constitutional standard, the Republic’s early years witnessed such things as the federal government funding chaplains for the armed forces and giving money to an Indian tribe to build a church and for religious education, setting aside land in the Northwest Territory for religious purposes, and presidents proclaiming days of prayer and thanksgiving. That was in addition to the continuation of state established churches.
So what the evangelical secularists, the FFRF and all the rest, are trying to do is to do is to fashion a religiously, morally, and culturally different nation from what our Founders took for granted. The Supreme Court, by its distortion of the meaning of the establishment clause — that is, by its unconstitutional decisions — has largely accommodated them for seventy-five years. Since the late nineteenth century, the Court, driven by the ideology of liberalism — first classical liberalism and later its modern version — has frequently twisted the original meaning of various constitutional provisions. The establishment clause was one of these.
Now, increasingly influential elements of the political left have moved on even from this. They seem to view the Constitution in general as essentially a morally repugnant document, as something to be dispensed with — just like they view the political order established by it as irreparably corrupt.
There was probably another factor besides liberal ideology that influenced at least certain of the justices of the Supreme Court in fashioning their arch-separationist church-state jurisprudence. A leading figure in this — he authored a number of the Court’s key establishment clause decisions — was Justice Hugo Black. Biographical writing about Black after his death noted that he was wary of increasing Catholic power in the U.S. and believed that the strict separationist doctrine was apparently a way to stop this. In other words, anti-Catholicism was in the mix.
Support For Religion
The Court’s separationist jurisprudence has been full of contradictions and inconsistencies, as if it’s been trying to hold onto a deeply flawed principle while trying to avoid the unworkable and unsustainable results it has given rise to.
When William Ball argued one of the cases before the Supreme Court, Justice Byron White asked him with a touch of humor — but seriously acknowledging the problem — if he was going to try to reconcile for it the Court’s establishment clause jurisprudence. Ball, of course, quipped in response that he wouldn’t. The Court’s convoluted — and often constitutionally indefensible — establishment clause jurisprudence has given rise to outrageous kinds of cases like the Lehigh County one.
Even when the results are correct — and sensible — as in that case, the deciding court has to use a rationale that talks around the issues and seems almost artificial like its points about the overall context and historical significance. The fact is, again, the Constitution in no way forbids governmental endorsement or support for religion and it presumes a Christian worldview.
In a previous column, I argued that presidential refusal to enforce blatantly unconstitutional Supreme Court decisions may be the best way to rein it in. Maybe regarding the establishment clause if a president refused to enforce a decision of the Court regarding something like mandating the removal of a cross or Ten Commandments monument from public property, that might be the needed stimulus to get the Court to reconsider its errant jurisprudence.
It would also stop cultural revolutionaries like the FFRF in their tracks.
