Scaling Everson’s Wall

Scaling Everson’s Wall


Jay B. Gaskill

Is the secular world view to become the de facto state religion of the United States?

The Pledge of Allegiance – the “Under God” version – once again approaches the threshold for review in the 9th Circuit Court of Appeal. After all, “God” is considered a sectarian religious symbol (notwithstanding Steven Hawking’s “mind of god” reference in “A History of Time”). Dr. Newdow, ever the gadfly, has turned his crosshairs on American currency and coinage. Other federal courts are in disagreement about whether and in what context the Ten Commandments can be displayed on public grounds or buildings.

These and the related controversies raise fundamental questions that will certainly reach the Supreme Court in one form or another after the O’Connor vacancy has been filled:

· Is a radical separation of all government institutions from religious ones strictly required by the Establishment Clause of the First Amendment?

· Should that institutional separation necessarily exclude even references to abstracted elements of common doctrine, especially those moral sentiments and metaphysical assertions that have become part of the warp and woof of common public discourse?

We needn’t address these issues outside historical context. This country was founded by patriots steeped in the tolerant, but theistic branch of 18th century Enlightenment. References to God, whether as creator, the Ur-source of human rights or as Providence, were common in all public discourse.

Flash forward to the 21st century: Those who reject the theology prevalent at the founding of the Republic want to rewrite history and censor all traces of our religious heritage as if they were toxic waste.

No sane person thinks our liberties would flourish within a theocracy, but no reasonable person thinks that anything resembling a theocracy is in the offing based on the kinds of issues currently arising under the Establishment Clause of the First Amendment.

The overriding issue is whether, in order to protect the religious freedoms that the first amendment was intended to preserve, we must create a secular order whose heavy hand on the engines of government is actively hostile to religion and its most benign symbols. The “no law respecting an establishment of religion” clause was originally designed to bar a state-established religion, protecting religious pluralism and tolerance for secularism; it was never intended to enshrine secular pluralism and intolerance for religion itself.

Most legal scholars trace the provenance of the Supreme Court’s half century march toward the comprehensive secularization of government to its 5 to 4 decision in Everson v. Board of Education 330 U.S. 1 (1947)

It is worth remembering that the narrow holding of the Everson court was to support the use of public funds to reimburse parents who sent their children on public transportation to attend parochial school.

The New Jersey Court of Errors and Appeals upheld the allocation. The Everson court agreed. New Jersey’s financial reimbursement was justified because it served a dominant secular purpose, to support the state’s interest in education.

“This Court has said that parents may, in the discharge of their duty under state compulsory education laws, send their children to a religious rather than a public school if the school meets the secular educational requirements which the state has power to impose. See Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571. It appears that these parochial schools meet New Jersey’s requirements. The State contributes no money to the schools. It does not support them. Its legislation, as applied, does no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools.

“The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here. AFFIRMED. ”

However we might or might not quarrel with that outcome, the Everson court’s obiter dictum was sweeping indeed. And the dissent in that case (Jackson, Frankfurter, Rutledge and Burton), arguing for a much more secular stance, now defines the prevailing legal ethos.

From Justice Black’s majority opinion:

“The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining [330 U.S. 1, 16] or professing religious beliefs or disbeliefs, for church attendance or non-attendance.

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 from they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.

“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.’ Reynolds v. United States, supra, 98 U.S. at page 164.”

The seeds of constitutional mischief were contained in the last two points. They have been taken well beyond the original intent of the authors of the First Amendment.

Assume you are a jurist imbued with a militantly secular attitude and that you take the following injunctions seriously and comprehensively:

No state may support any religious activities or institutions, whatever they may be called, nor openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.

Now address the following questions:

Should Chaplains be offering prayers in our legislative bodies?
Should Oaths be administered to our public officials and witnesses?
Should displays of the Ten Commandments be allowed in our schools and courthouses?
May we continue to make references to God or Providence on our coins or in our civic rituals (including the Supreme Court’s own sessions)?

The “wall between church and state” passed from innocent metaphor to doctrine 145 years after the newly elected president Thomas Jefferson answered a letter from Nehemiah Dodge, Ephraim Robbins and Stephen S. Nelson on behalf of the Danbury Baptists Association in the state of Connecticut, expressing the hope that religious liberty could be protected under the new president. Their petition was touching:

“[O]ur hopes are strong that the sentiments of our beloved president, which have had such genial effect already, like the radiant beams of the sun, will shine and prevail through all these states and all the world, till hierarchy and tyranny be destroyed from the earth.”

Jefferson was gracious in reply:

“Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.

“I reciprocate your kind prayers for the protection and blessing of the common Father and Creator of man, and tender you for yourselves and your religious association, assurances of my high respect and esteem.”

The High Court will eventually take us down the road to comprehensive ideological secularism or it will be forced to revisit the Everson dicta.

It is useful to recall that the First Amendment makes no reference to a “wall” and that originator of the notion, Thomas Jefferson, was in France during the entire debate over the establishment and free exercise questions. We should also remember that no one, Jefferson included, objected to symbolic non-sectarian religious references at the public level, especially references that were common to 18th century discourse (“We were endowed by our Creator…”).

In the current era, many militantly secular minds still assume that the use by any public institution of any concept, belief or tenet of religious provenance is but the opening salvo in a jihad that will cause theocracy to roll like a mighty river over all our free institutions. For these minds, the phrase “Under God” in the Pledge of Allegiance means “endorsed by God”. These are the same minds that tend to assume that anyone who mentions deity in public discourse is invoking divine wrath against all who disagree. To the contrary, most deists and theists would correctly understand the “Under God” preamble to acknowledge the subordination of a nation state and its leaders to the Ultimate Source of moral authority. The desired effect is humility, a trait often lacking in political leaders, whether secular or not.

I imagine this motto over the transom on a public building: “What does the Lord require but to do justice, love mercy and walk humbly with our God?” Micah 6:9. Then I imagine, with some dread, the ensuing litigation. For many secularists, every vestige of religion is like some toxic gas whose noxious smell is so offensive that the room must be cleared even of trace amounts. These secularists are suffering from post-religious abuse syndrome.

We could do with a much less militantly anti-religious take on the establishment clause, one more in harmony with – dare I say it – the original perspective of the founders. So what can reasonably be expected of a post-Everson Establishment doctrine that is not proactively secular?

I submit that the Court needs to take into account the profound secularization of the general culture as a development that has transformed many religious moral teachings into widely accepted moral and philosophical precepts whose religious provenance is rendered secondary by their adoption in the community.

Would we really reject the moral insight that murder, false testimony and theft are profoundly wrong because they are contained in the Decalogue? Do we need to hide their religious underpinnings?

In this transformed context, it is appropriate and prudent to return to greater judicial restraint in the use of the Establishment Clause against religion, qua religion, while promoting a robust vision of the free exercise clause in its support.

The High Court is trapped between the potentially sweeping scope of the Everson dicta and the inevitable popular backlash if it were ever rigorously applied. The problem with Everson’s dicta lies in the ambiguities: the definition of religious “activities or institutions, whatever they may be called” and in the scope and meaning of “entanglement” problem, to wit, that the “[government shalt not] openly or secretly, participate in the affairs of any religious organizations or groups and vice versa”.

A restrained view of the Establishment clause is urgently needed. Such a reading would imply a much more concrete understanding of the putative wall of separation between church and state. The establishment clause was, after all, originally aimed at keeping the clericies out of secular power, not keeping the great religious contributions to thought out of sight and mind. A more restrained court would explicitly recognize that the separation of institutions does not entail a separation of symbols, aspirations, ideas, norms, and expectations.

The “wall” would remain intact as a formal barrier between the authority of ecclesiastic hierarchies of churches and the secular authorities of the states. But that wall (which is only a metaphor after all) would be seen as highly permeable to moral doctrine and teaching, whether of religious provenance or not, and would be fully transparent to the specific foundational religious, philosophical and theological underpinnings of the republic. Do we need to hide the Declaration of Independence or redact its reference to “The Creator”?

In an era when cultural and moral relativism threaten to undermine the very normative infrastructure of civilization, surely it is not inappropriate for our great public institutions, including our government’s leaders, to promote respect for the moral law itself. But when stripped of all transcendence and all ultimate authority, the moral law devolves to mere social utility at best and moral ambivalence at worst. This is why, if uncontained, the secular materialist trend will eventually lead the country to moral paralysis.

The Establishment clause should not be construed to require a wall of moral silence from our secular authorities in the face of evil, nor used to constrain those leaders whose moral compass is rooted in deep religious tradition from using the language of those traditions.

On January 6th, 1942, FDR addressed the nation at war. He concluded with these remarks.

“Our enemies are guided by brutal cynicism, by unholy contempt for the human race. We are inspired by a faith which goes back all the years to the first chapter of the Book of Genesis: ‘God created man in His own image.’

“We on our side are striving to be true to that divine heritage.

“We are fighting, as our fathers have fought, to uphold the doctrine that all men are equal in the sight of God. Those on the other side are fighting to destroy this deep belief and to create a world in their own image-a world of tyranny and cruelty and serfdom.

“That is the conflict that day and night now pervades our lives. No compromise can end that conflict. There never has been-there never can be-successful compromise between good and evil. Only total victory can reward the champions of tolerance and decency and freedom and faith.”

Have the juridical progeny of Everson taken us to the place where only the President among all public officials (presumably protected by the Separation of Powers doctrine) is allowed to make “official” references to deity? Any court that takes the “Everson Wall Doctrine” with utter seriousness (think of the 9th Circuit Court of Appeal in its Newdow ruling) could forbid posting of such excerpts from a Presidential Speech in a courthouse or on a government building. After all, FDR’s speech, Lincoln’s speeches and many other presidential addresses could be implied endorsement of religion.

There may come a day when the secularist ethos eventually softens out of sentimentality towards its defeated foe. We might imagine such displays permitted in federal museums, coupled with a disclaimer:

The Attorney General has determined that this display is only of historic importance and does not constitute any government endorsement of the religious views therein expressed.

On the other hand, we might yet hope for another Supreme Court decision, one more consistent with the original purpose of the establishment clause and more generous in spirit:

We hold today that the establishment clause of the first amendment does not prohibit the states, nor the federal government, whether in public ceremony or display, to make favorable references to religion, qua religion, nor to deity, whether described as creator or God. As long as no particular religious denomination or sect is thereby officially adopted, God may be endorsed.

Jay B. Gaskill is a California attorney who served as the Alameda County Public Defender 1989-1999.

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