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Thank you, Mr. Chairman, for this opportunity to testify on the state of religious liberty in America. My name is Michael McConnell. I am the William B. Graham Professor of Law at the University of Chicago, serving this year as a Visiting Professor at the College of Law of the University of Utah. My field is constitutional law, and my principal specialty within that field is the law of church and state. I have written numerous articles on the history and interpretation of the Religion Clauses of the First Amendment, and teach courses on that subject. In addition, I have represented persons of a wide variety of faiths, including Jehovah's Witnesses, conservative Christians, Hare Krishnas, Christian Scientists, Roman Catholics, and even a New Age religion, Eckankar, whose constitutional rights have been endangered by current interpretations of law. I have written briefs and/or argued over a dozen cases in the Supreme Court on First Amendment religion issues, including the pending case, Rosenberg v. Rector and Visitors of the University of Virginia. I have represented religious students at both the high school and the college level whose free speech rights have been infringed on the basis of their religious orientation. I have written amicus curiae briefs for organizations across the religious and jurisprudential spectrum, from the National Association of Evangelicals to People for the American Way. I speak here as representative of no group, but solely in my capacity as scholar and citizen.
Causes of the Present Discontent
By any realist standard of comparison, religious liberty in the United States is in excellent shape. There is no official state religion, Americans are free to practice their faith, for the most part, without fear or hindrance, with a diversity and freedom that does not exist anywhere else in the world.
But for many Americans, especially those in public schools and other parts of the government-controlled sector, religious liberty is not all it should be, or all that our Constitution promises. All too often, religious Americans, young and old, are finding that their viewpoints and speech are curtailed because of its religious character. In the past few decades, there has been an extraordinary secularization of American public life, especially in the schools. Religious and traditionalist parents are finding that their viewpoints and concerns are ruled out-of- order, while at the same time the schools can be used to promote ideas and values that are sometimes offensive and hostile to their own.
Tolerance and diversity, it often seems, are one-way streets. There is scrupulous concern lest any child (and increasingly, any adult) be exposed to unwanted religious influence, but little or no concern for the religious or traditionalist child (or adult) who objects to the far-more-prevalent proselytizing that is carried on under the banner of various progressive causes. To object to foul language, relativistic values education, or inappropriate sex education is to risk being branded as a censor. To object to a moment of silence at the beginning of the classroom day, or to the singing of the Hallelujah Chorus, makes one a champion of civil liberty. Students who circulate scurrilous underground newspapers or who interrupt the school day with political causes receive the full protection of the First Amendment; but students who circulate Bible verses or try to meet with their friends for prayer or Bible study are often silenced. In reported cases in state and federal court (outlined below), valedictory speeches have been censored, student research topics have been selectively curtailed, distribution of leaflets has been limited on the basis of religious content, and public employees have been forced to hide their Bibles. All too often, the freedom of religion protected by the First Amendment has been twisted into a one-sided freedom religion.
If the polls are correct, many Americans attribute the enforced secularization of public life to the Supreme Court's School Prayer decisions, and see adoption of a School Prayer Amendment as the solution. For reasons I will outline below, I think that diagnosis is incorrect and disagree with that proposed remedy. But there is no question in my mind that the discontent with the status quo reflected in support for school prayer has a real and legitimate cause, and that constitutional doctrine has played a part in it.
In the decades preceding World War II, the dominant Protestant majority in this country not infrequently ran roughshod over the rights of others: Catholics, Jews, and other non- Christians alike. Public schools were the vehicle for transmission of majority values, which were heavily imbued with a Protestant orientation. Aid to non-public schools was opposed because such schools were generally Roman Catholic. Prayer, Bible reading, and the celebration of holidays was often conducted without regard to the coercive impact on children of other faiths. Much of the Religion Clause jurisprudence of the past 40 years has been a response to this. And properly so. I cannot read accounts by those who grew up in the era of Protestant hegemony without a keen appreciation for the injustice and casual cruelty of the system.
But -- largely under the prodding of courts with little understanding or appreciation for the place of religion in the lives of ordinary Americans - - we adopted the wrong solution to this very real problem. We should have opened up the government sector to a wider range of voices, promoted diversity and choice in education, sought pluralistic approaches to public activities with a cultural and religious aspect, and reduced the ability of those with power over public institutions to monopolize channels of education and influence. Instead, we preserved the structures by which Protestant Christians had dominated the public culture, and only changed the content. Secular ideologies came into a position of cultural dominance. The tables were turned. The winners and losers changed places. But the basic injustice the use of government authority, over education and elsewhere, to favor and promote the values and ideals of one segment of the community -continued unabated.
Some have responded with a call to cultural warfare: if one worldview or another is to be in the ascendancy, let it be ours. Hence the persistent calls for return to a "Christian America." I think there is a better way. The solution is to insist, in a rigorous and principled way, on the rights of all Americans, without regard to faith and ideology, to participate in public life on an equal basis. No more double standard. When speech reflecting a secular viewpoint is permitted, then speech reflecting a religious viewpoint should be permitted, on the same basis. And vice versa. When the government provides benefits to private activities -- be it charitable endeavor, health care, education, or art -- there should be no discrimination or exclusion on the basis of religious expression, character, or motivation. Religious citizens should not be required to engage in self-censorship as a precondition to participation in public programs. Public programs should be open to all who satisfy the objective purposes of the program. This is already the rule for controversial secular ideas and viewpoints; it should be the rule for religious ideas and viewpoints as well.
The beginning of wisdom in this contentious area of law is to recognize that neutrality and secularism are not the same thing. In the marketplace of ideas, secular viewpoints and ideologies are in competition with religious viewpoints and ideologies. It is no more neutral to favor the secular over the religious than it is to favor the religious over the secular. It is time for a reorientation of constitutional law: &M from the false neutrality of the secular state, toward a genuine equality of rights.
This will require a great deal of forebearance, for toleration of the expression of others does not come easily. But toleration must be even-handed. I am hard pressed to understand why traditionalist citizens should be expected to tolerate the use of their tax dollars for lewd and sacrireligious art, while others go to court to ban nativity scenes from public property at Christmas. The proper task of the Establishment Clause of the First Amendment is to ensure that no religion is given a privileged status in American public life -- indeed, that religion in general is not given a privileged status. There is no basis in the history or purpose of the Establishment Clause for the secularization of society, or for discriminating against religious voices in the public sphere. As Justice William J. Brennan, Jr., wrote in McDaniel v. Paty, 435 U.S. 618, 641 (1978), "Religionists no less than members of any other group enjoy the full measure of protection afforded speech, association, and political activity generally. The Establishment Clause . . . may not be used as a sword to justify repression of religion or its adherents from any aspect of public life."
As I will show below, Justice Brennan's words are, unfortunately, not so much a description of current law as they are a prescription for reform.
Why Not School Prayer?
One of the purposes of this hearing, as I understand it, is to consider whether the Constitution should be amended to permit school prayer in the public school classrooms. Over the past few months, I have spoken with many religious leaders, lawyers, and laypersons concerned about the state of religious liberty in America, and especially about the effects of the Supreme Court's School Prayer decisions. I have given them the same advice that I now give to this Committee: it would be a mistake to attempt to overturn the School Prayer decisions, but equally a mistake to believe that constitutional doctrine today adequately protects our rights of religious expression and participation, especially in public schools and other parts of the public sphere.
Narrow focus on a "School Prayer Amendment" would, I believe, be a mistake. There are two reasons. First, whatever its merits in an earlier and more homogeneous era, the practice of officially sponsored and led prayer in public school classrooms would be impossible to maintain today in a way that would be either spiritually valuable or noncoercive. In order to be broadly acceptable, a prayer would have to be so general and abstract that it would be largely meaningless. Religious Americans are justified in attempting to integrate their faith into their ordinary lives, including the spheres of work and education, but a watered-down civil religion serves no one's interest. If anything, civil religion denigrates and trivializes religion by subordinating the forms of worship to the needs of the state. Moreover, no matter how abstract and how general the prayer may be -- and for some, precisely because it has become so abstract and so general -- it will remain unacceptable to some children in this world of diverse beliefs. I do not believe that officially sponsored, vocal classroom prayer can be administered without effectively coercing those in the minority. And that should not be permitted.
Indeed, I think there has come to be a widespread recognition among religious Americans that to allow school-sponsored prayer would cede partial control over the religious upbringing of their children to agents of the State. Speaking personally, I do not want my children to be taught prayers composed or selected by the government, and I do not think public school teachers are the proper parties to lead my children in acts of public worship. And I think my sentiments on this subject are coming to be shared by many Americans whose initial reaction to the School Prayer decisions was largely negative.
The second reason a narrow focus on school prayer would be a mistake is that it would distract from far more serious questions of religious expression and participation in American public life, both in the public schools and elsewhere. The great problem is not that public officials are failing to sponsor prayers, but that -- in a well-meaning but mistaken commitment to what they think is a constitutional ideal of a secular public sphere -- teachers, principals, school boards, and other public officials often engage in discrimination against religious expression. In short, the point should not be to get the government into the business of prayer, but to open up the public sphere to the free and equal participation of all citizens, religious and nonreligious alike.
Some of this anti-religious discrimination is blatantly unconstitutional; some of it has been upheld under current constitutional doctrine; all of it thrives on the uncertainty and confusion of Supreme Court decisions over the past 40 years. And however problematic Supreme Court decisions have been, the effect "in the trenches has been much, much worse. Among lower courts and governmental administrators, the nuance and confusion of Supreme Court rulings tends to be resolved by a wooden application of the three part test of Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971), and a reflexive invalidation of anything that might be thought to "advance" religion or "entangle" religion and government -- no matter how neutral, voluntary, or fair that religious participation might be.
Interpretation of the Establishment Clause of the First Amendment during the past 40 years has wavered between two fundamentally inconsistent visions of the relation between religion and government. Under one vision, which has gone under the rubric of the "no aid" view or the "strict separation" view, there is a high and impregnable wall of separation between goverment and religion. Religion is permitted -- indeed it is constitutionally protected - - as long as it is confined to the private sphere of home, family, church, and synagogue. But the public sphere must be strictly secular. Laws must be based on strictly secular premises, public education must be strictly secular, public programs must be administered in a strictly secular manner, and public monies must be channeled only to strictly secular activities. This vision is reflected in the lemon test, which states that all law must have a "secular purpose"; that governmental action may not "advance" religion; and that religion and government must not become excessively mentangled."
This "secularist" or "aseparationist" model may be contrasted with what I think is the authentic vision of church-state relations in America: one of equality of rights. Under this vision, no individuals, groups, or ideas are given special status on the basis of their religion or philosophy. All are treated equally. The result is not a secular public sphere, but a pluralistic public sphere, in which every viewpoint and worldview is free to participate and "to flourish according to the zeal of its adherents and the appeal of its dogma," to borrow the words of Justice William 0. Douglas in Zorach v. Clauson, 343 U.S. 306, 313 (1952).
Under this view, the two parts of the Religion Clauses play a consistent and mutually supportive role in protecting religious liberty. The purpose of the First Amendment is to protect the religious lives of the people from unnecessary intrusions of government, whether promoting religion (Establishment) or hindering it (Free Exercise) . This approach will foster a regime of religious pluralism -- as opposed to either a regime of majoritarian religion on the one hand or secularism on the other. It seeks to preserve what Madison called the "full and equal rights" of religious believers and communities to define their own way of life, so long as they do not interfere with the rights of others, and to participate fully and equally with their fellow citizens in public life without being forced to shed or disguise their religious convictions and character.
Under the separationist view, the various parts of the First Amendment are at war with one another. The Free Exercise Clause forbids the government from inflicting penalties for the practice of religion. As the Court stated in Sherbert v. Verner, 374 U.S. 398, 404 (1963), "the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a beneift or privilege," just as they may by the imposition of a "fine" for the exercise of religion. But the Establishment Clause (under the separationist interpretation) requires the government to withhold otherwise available benefits if the beneficiaries would use it for a religious activity. For example, under the Child Care and Development Block Grant, 42 U.S.C. *9858k, a qualifying child care facility can receive government assistance if and only if it refrains from "any sectarian purpose or activity." This means that a church-based child care center would have to cease such innocuous (and to many parents, desirable) practices as offering a prayer before snacks or a program of reading Bible stories. Under the principle of Sherbert v. Verner, this looks very much like a denial of the free exercise of religion: denial of funding is the equivalent of a 8fines for engaging in acts of religious speech. It diminishes the freedom of the indigent parent to obtain child care under religious auspices if that is the family's preference, and it creates an incentive for child care centers to secularize themselves if they wish to serve the low-income population. Yet it is said to be required by the Establishment Clause.
Thus, the Establishment Clause is said to require precisely what the Free Exercise Clause prohibits: withholding of benefits on account of the exercise of a constitutional right. In a world in which the government aids or advances many different causes and institutions, this interpretation means, in effect, that the government must discriminate against religion. The separationist reading of the Establishment Clause poses and increasingly serious threat to religious liberty as the government sector increases in its scope and activity. When the government was little more than the "watchman state," it could be strictly secular, and no one Is rights were invaded. But as the government becomes involved with more and more areas of life that perviously were private, such as health, charity, education, and culture, a secular state becomes tantamount to a secular culture.
When different parts of the same constitutional amendment are in conflict, the results inevitably will be confusing, inconsistent, and unpredictable. Constitutional historian Leonard Levy has commented that the Court has managed to unite those who stand at polar opposites on the results that the Court reaches; a strict separationist and a zealous accommodationist are likely to agree that the Supreme Court would not recognize an establishment of religion if it took life and bit the Justices. (Leonard Levy, The Establishment Clause: Religion and the First Amendment 163 ((1986). Worse yet, in the hands of school administrators, local officials, and lower courts, the effect is all too often to deny religious citizens benefits to which they would otherwise be entitled. In the public schools in particular, this means that religious references in the curriculum have been comprehensively eliminated and religious students forced to shed their constitutional rights at the schoolhouse gate -- all the while advocates of various "progressive ideologies are free to use the schools to advance their ideas of public morality, even when it means running roughshod over the desires and convictions of religious and traditionalist parents. It is no wonder that many parents have come to believe that the First Amendment is stacked against them.
Lest this account seem too abstract or alarmist, let me give some examples from litigated cases. I choose these examples because the facts can be verified from the case reports. But the Committee should be aware that only a small fraction of cases can be litigated; these are only the tip of the iceberg. I commend the decision of the Committee to hold field hearings to determine how widespread instances of anti-religious discrimination actually are. I cite these cases only an examples, not as statistical evidence. But I would submit to the Committee that even if the instances were relatively few in number, they are too many.
My examples fall into two categories. The first category involves denial of equal access to students and other persons who wish to engage in religious speech or expression at times and places where nonreligious expression is allowed. The second involves denial of government benefits to individuals or groups on the basis of their religious viewpoint, character, or motivation. These are two faces of the same problem.
Denial of Equal Rights of Expression
Guidry v. Calcasieu Parish School Bd., 9 Relig. Freedom Rptr. 118 (E.D. La. 1989), aff'd on Jurisdictional grounds sub nom. Guidry v. Broussard, 897 F.2d 181 (5th Cir. 1990). In this case, the class valedictorian informed the school principal of her intention to devote a portion of her graduation speech to the importance of Jesus Christ in her life. The principal ordered her to remove the offending portion; she refused and was eliminated from the graduation program. The district court upheld the principal's action and the court of appeals affirmed on jurisdictional grounds.
Bishop v. Aronov, 926 F.2d 1066 (11th Cir. 1991), cert. denied, 112 S. Ct. 3026 (1992). In this case, a tenure-track professor of exercise physiology at a public university made occasional references in class to his religious belief and offered an optional, after-class lecture entitled "Evidences of God in Human Physiology." The Dean ordered him to cease these activities, despite the fact that professors at the university had an undoubted academic freedom right to make personal remarks during class so long as they are not excessive, disruptive, or coercive, and despite the fact that the lecture was within his professional expertise. The Court of Appeals affirmed the Dean's order, hinting that it might violate the Establishment Clause to allow a professor to express his views in this way.
Settle v. Dickson County School Bd., 1995 WL 261590 (6th Cir. 1995). In this case, students were permitted to choose their own topic for a research paper, so long as the topic was "interesting, researchable, and decent." Among the subjects approved by the teacher were "Spiritualism," "Reincarnation," and "Magic Throughout History." One student, however, asked to write on "The Life of Jesus Christ," I was refused permission, and ultimately received a grade of "zero" on the paper. The teacher gave a smorgasboard of reasons for her refusal, all of them uninformed, bigoted, or selectively applied. In particular, the teacher said that "we don't deal with personal religion -- personal religious beliefs. It's just not an appropriate thing to do in a public school." Indeed, she said that "the law says we are not to deal with religious issues in the classroom." This is -- or at least should be -- an erroneous statement of the law. When a research topic is otherwise appropriate, an this one was, the fact that it involves religion is not a legitimate basis for exclusion. Nonetheless, the Sixth Circuit Court of Appeals held that "[a]ll six of Ms. Ramsey's stated reasons for refusing to allow Brittney to write the paper fall within the broad leeway of teachers to determine the nature of the curriculum and the grades to be awarded to students." Id. at *4. While I have much sympathy for keeping the courts out of the business of supervising teachers, curricular decisions, I have little doubt that the case would have come out the other way if a racist teacher had forbidden a paper on Matin Luther King, Jr., or an anti-communist teacher had forbidden a paper on the evils of capitalism.
Perumal v. Saddleback Valley School District, 198 Cal. App. 3d 14, 243 Cal. Rptr. 245 (Ct. App., 4th Dist.), cert. denied, 488 U.S. 933 (1988). In this case, students at a southern California public high school were forbidden to distribute leaflets inviting other students to their Bible study group, despite a California statute permitting students to distribute petitions and other printed materials. The state appellate court upheld the school's action, holding that permitting the students to distribute the leaflets would violate the Establishment Clause. "The inevitable consequence of the establishment clause when applied to religious ritual on school property," the court reasoned, "is to restrict that activity to preserve the wall between church and state." 243 Cal. Rpt. at 549.
Roberts v. Madigan, 921 F.2d 1047 (10th Cir. 1990), cert. denied, 112 S. Ct. 3026 (1992). In this case, a fifth grade public school teacher was ordered by the assistant principal to remove a Bible from the surface of his desk, to refrain from reading the Bible during the class silent reading period, and to remove two illustrated books of Bible stories from a classroom library of over 350 volumes. The Court of Appeals upheld the principal's action, holding that the teacher's conduct violated the Establishment Clause.
Kaplan v. City of Birmingham, 891 F.2d 1024 (2d Cir. 1989), cert. denied, 496 U.S. 926 (1990), and Smith v. County of Albemarla, 895 F.2d 953 (4th Cir.) , cert. denied, 498 U.S. 823 (1990). In these cases, citizens sought to erect religious symbols on public property in which display of nonreligious symbols would be permitted, but were refused on the basis of their religious message. In both cases, the courts of appeals agreed that the exclusion was required by the Establishment Clause, holding (in effect) that the Establishment Clause overrides the content-neutrality requirement of the Free Speech Clause. (Other federal appellate decisions have gone the other way on the same issue, and the Supreme Court may resolve the issue this Term in Capitol Square Review & Advisory Bd. v. Pinette).
Even where some restrictions on religious speech are justified, governments have imposed and courts have upheld restrictions that go far beyond what should be constitutionally legitimate. In Brown v. Polk County, 37 F-3d 404 (8th Cir. 1994), for example, a supervisor regularly held Bible studies with coreligionists in his office, engaged in religious counselling, and used office resources to promote his religious ministry, all to a degree that might well be considered excessive and disruptive to morale. Rather than institute a carefully tailored remedy, as the First Amendment would seem to require, he was ordered to remove all religious objects from his office, including removing a Bible from a desk drawer, and to cease any any activity that "could be considered" to be religious proselytizing, witnessing, or counselling in the workplace. Judge Morris Arnold, in dissent in the Eighth Circuit, stated that the action of the County "seems to me so egregious and obviously illegal as almost to furnish direct evidence of an anti-Christian animus on their part." Id at 412. He commented that wPolk County seems to have been bent on giving government sanction to the attitude that religion is simply out of place at the office." Id. Remarkably, this overbroad restraint on his religious expression was upheld by both the district court and the Court of Appeals. But perhaps this should not be surprising. The attitude that "religion is simply out of place" is nothing but an application of the separationist principle that the public sphere must be strictly secular. The decision in Polk County, extreme though it may seem, is less an aberration than it is the reductio ad absurdum of prevailing constitutional doctrine.
While lower courts are less protective of religious expression than the Supreme Court, local governments and school boards are less protective even than the lower courts. It is remarkable how many local school boards, libraries, and other local institutions have content-based restrictions prohibiting religious expression on their premises. In Hedges v. Wauconda Comminity School Dist., 9 F.3d 1295 (7th Cir. 1993), for example, an eighth grader attempted to hand out to her fellow students a religious leaflet entitled Issue and Answers before the start of the school day. The principal retrieved the leaflets and ordered her not to distribute such literature again. The written school policy prohibited distribution of material that is obscene, pornographic, pervasively indecent, invasive of the privacy of others, disruptive, or religious, while permitting distribution of nonlibelous and nondisruptive secular materials. It says something about the state of mind of the modern school board that religious materials are lumped together with obscenity, pornography, and libel. This rather transparent form of viewpoint discrimination was struck down by the district court. But even after the district court decision, the school board issued a new policy, equally discriminatory, spelling out in greater detail what kinds of religious publications are prohibited (including materials that are "an effort to proselytize other students") . Once again, the student was forbidden to distribute Issues and Answers. Was this the action of a aberrant school board unfamiliar with the First Amendment? The National School Boards Association submitted an amicus curiae brief in support of the board's anti-religious policy. Moreover, in a similar case in Florida, a principal confiscated and destroyed invitations distributed by an elementary school student to her friends inviting them to a church-based alternative to a Halloween party. Johnston-Loehner v. O'Brien, 859 F. Supp. 757 (M.D. Fla. 1994). Fortunately, in these two cases the courts intervened on behalf of the students. In a particularly strong opinion by Judge Frank Easterbrook in Hedges, the Seventh Circuit held that "no arm of government may discriminate against religious speech when speech on other subjects is permitted in the same place at the same time." ;IL, at 1297. This, it seems to me, is a worthy statement of constitutional principle, which ought to be substituted for the restrictive doctrine imposed by most school boards and lower courts under the Lemon test.
Hedges is an illustration of the extraordinary persistence of some school officials in attempting to prevent religious expression on school property. It should not be necessary for eighth graders to make two separate trips to the federal courthouse to have their basic First Amendment rights recognized by their school principals. Most students do not have the resources or the courage to confront the system in this way. All around the country, there are reports that students in public schools have been prohibited from meeting with others for prayer at the flag pole, from expressing religious views or addressing religious themes in school reports, from praying at meals, and from distributing religious literature. In many such instances, the school officials yield upon being confronted by legal counsel. In other instances, they spend great sums of money on legal fees defending their right to discriminate against religious speech, with a surprising degree of success in the courts. We can only assume that most students confronted with this sort of restriction, not having lawyers and not being accustomed to bringing lawsuits against their principals, simply acquiesce and are silenced.
Let me mention another example, from my own experience, of the persistence of school boards in resisting religious expression. I represented a group of high school students in Renton, Washington, who wanted to form a prayer and Bible study club after school. Immediately after passage of the Equal Access Act in 1984, they sought permission to meet, and were denied. Thus began a Kafkaesque trial by ordeal in the federal courts, in which the students, backed by volunteer lawyers from the Christian Legal Society, were opposed by paid counsel of the school board supported by energetic efforts by the local chapters of the ACLU and the American Jewish Committee. It was to take nine years, including three trips to the district court, four trips to the court of appeals, and two trips to the Supreme Court before the students ultimately won vindication of their rights. Garnett v. Renton School Dist., 987 F.2d 641 (9th Cir.), 114 S. Ct. 72 (1993). At the bitter end, the ACLU and the American Jewish Committee made the extraordinary argument that the school district should shut down its entire extracurricular program rather than allow the students to meet. This is just an illustration of the hostility and opposition religious students sometimes encounter when they seek to express their faith on public school property.
I have heard it said that cases of discrimination against religious speech are rare. It is sometimes suggested that the cases are concocted by activist groups for newspaper consumption. Let me tell you that this is not true. In each of the cases in which I have been involved, students or (in one case) the professor had been stymied by the system long before they ever turned to lawyers. In each case, the precedent has been against them. outside the narrow compass of the Equal Access Act, most religious speakers lose. If cases of this sort are so rare, why is it that the federal courts of appeals for the Second, Fourth, Sixth, Eighth, Ninth, Tenth, and Eleventh Circuits -- not to mention state courts and district courts -- have all decided cases in the past few years holding that religious speakers are not entitled to equal treatment, and in many cases that religious speakers must be excluded from participating in forums for expression that are open to similar speech of a secular orientation? How many more denials of free speech rights have occurred, where no one had the inclination, sophistication, or determination to take the case to court?
Denial of Benefits On Account of Religion
Discrimination against religious expression does not always take the form of denial of access to a forum for speech. Often, it consists of denials of government benefits of various sorts to those whose expressive activity is deemed to be religious. This form of discrimination is powerfully supported by a line of precedent in the Supreme Court, based on Lemon v. Kurtzman, 403 U.S. 602 (1971), which prohibits the use of public funds for what are called "specifically religious activities" or by "pervasively religious" organizations. See Hunt v. McNair, 413 U.S. 734, 743 (1973). Where nonreligious and even anti-religious activity receives government support, however, it is rank discrimination to exclude activity that expresses religious character, ideas, or motivation. I fully concur in the view that the government may not fund organizations or activities on the account of being religious, or single out religious groups or activities for special favor; but the Constitution should not be read to require discrimination against religion. Neutrality, not secularism, is the key to a proper interpretation of the Establishment Clause as it applies to government benefits. The government should not be permitted to use its power of the purse to favor secular over religious voices, any more than it may favor religious over secular voices.
As Justice O'Connor stated in a concurring opinion last year, "The Religion Clauses prohibit the government from favoring religion, but they provide no warrant for discriminating against religion." Bd. of Education of Kiryas Joel v. Grumet, 114 S. Ct. 2481, 2498 (1994). Unfortunately, this position, which I believe would strike most Americans as being obvious and commonsensical, was in a portion of a concurring opinion in which Justice O'Connor was calling for a reconsideration of current doctrine. The Court should "be prepared" in a "proper case," she said, to reconsider its doctrine, "in order to bring our Establishment Clause jurisprudence back to what I think is the proper track - government impartiality, not animosity, towards religion." Id. This has not yet happened.
The following litigated cases exemplify the problem:
Fordham University v. Brown, 856 F. Supp. 684 (D. D.C. 1994). In this case, the Department of Commerce rejected the application of the public radio station operated by Fordham. University for federal funding, under the Public Telecommunications Facilities Program, for construction of a new radio tower. Although the review process gave the Fordham station its highest possible recommendation, the Department rejected the application because, for the past 47 years, the station has broadcast Catholic mass from the Fordham University chapel for one hour each Sunday morning. This broadcast, according to the Department, offends the regulation against the use of funded facilities "for essentially sectarian purposes." The district court upheld the decision. Amazingly, the court found that the restrictions against carrying religious programming "do not inhibit religion." Id., at 698. Rather, it held, "the challenged regulations are a product of the Secretary's efforts to comply with Supreme Court jurisprudence in this area." Id. at 699. This is precisely the problem: government officials are under the impression, too often confirmed by the courts, that discrimination against religious speech is not only constitutionally permissible, but constitutionally required.
Scores of federal and state programs contain restrictions similar to the regulation in the Fordham case, which in practice amount to discrimination explicitly on the basis of religion. I strongly urge the Comittee to investigate the extent to which the federal government itself is the originator and instigator of anti- religious discrimination in the administration of public funds.
Rosenberger v. Rector and Visitors of the University of Virginia, 18 F.3d 269 (4th Cir. 1994), now pending in the United States Supreme Court, No. 94-329 (argued Mar. 1, 1995). In this case, in which I represent the students involved, the University of Virginia has a policy of excluding "religious activities" -- by which they mean any activities that espouse or "manifest" a belief in a deity or ultimate reality -- from eligiblity for assistance from the Student Activities Fund. Among the funded activities at the University of Virginia are some 15 newspapers and magazines of different viewpoints and perspectives. My clients, a group of students of various Christian denominational backgrounds, realized that none of these publications provided a forum for expression of their ideas, and accordingly founded Wide Awake: A Christian Perspective at the University of Virginia. Although they met all objective eligibility requirements, they were excluded because their editorial perspective was "religious." The position of the University is that it must fund publications expressing controversial viewpoints of a secular nature (including gay rights, racist, pro-choice, Marxist, or whatever), without discrimination on the basis of viewpoint, but that publications addressing similar issues from a religious perspective are not allowed. (Notwithstanding its prohibition of "religious" activities, the University funds the Muslim Students Assocation and the Jewish Law Students Association; it says these groups, activities are "cultural," rather than "religious.")
The Court of Appeals agreed with the students that -- but for the religious character of their speech -- it would be a violation of the Free Speech and Free Press Clauses for a public university to withhold an otherwise available benefit because of the viewpoint expressed in their publication. The court held, however, that this "presumptively unconstitutional" action was justified by the University's "compelling interest" in avoiding violation of the Establishment Clause. It seems that while viewpoint-based denial of benefits to secular perspectives would violate the Speech and Press Clauses, viewpoint-based denial of benefits to religious perspectives is required by the Establishment Clause. The Free Speech and Establishment Clause mean opposite things, and the Establishment Clause trumps the Free Speech Clause. Religious speakers are denied the First Amendment protections accorded their secular fellow citizens.
This case is now before the Supreme Court, and a decision is expected any day. The outcome could have a substantial effect on the urgency of congressional action in this area. If the Court affirms the lower court, this will indicate that it remains wedded to an understanding of the First Amendment that tolerates, even invites, discrimination against religion, and will confirm that congressional action in imperative. If the Court reverses, it will be a positive step -- depending, of course, on how the opinion is written. If the Court delivers a multi-part, fractured, and indeterminate opinion (always possible in this field of constitutional law), or if it limits the holding to the narrow context of university student activity funds (another likely outcome), this will suggest that congressional action would serve a useful purpose in both clarifying and correcting the law.
Witters v. Department of Services for the Blind, 112 Wash. 2d 363, 771 P.2d 1119, cert. denied, 110 S. Ct. 147 (1989). In this case, the State of Washington had a program to pay for vocational education for the blind. Larry Witters, an eligible individual, wished to use these benefits to study for a career in the clergy. Because of the religious nature of his proposed field of study, the Washington Supreme Court held that funding would violate the Establishment Clause. In an extremely important decision, 474 U.S. 481 (1986), the United States Supreme Court unanimously rejected that position, holding that state assistance for religious training does not violate the First Amendment so long as the aid is "made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefitted, and is in no way skewed towards religion." Id. at 487-88. On remand to the state court, however, the state Supreme Court again ruled that Witters could not be included in the program, this time on the basis of the state constitution. Again, Witters petitioned the United States Supreme Court, but this time the petition was denied. While the Court was prepared to reject the view that the First Amendment does not compel anti-religious discrimination in this context, it was not prepared to hold that the First Amendment prohibits anti-religious discrimination. Witters never received the vocational assistance to which he was entitled.
I mention the Witters case because it emphasizes an important point: that the erroneous separationist understanding of the First Amendment has extended to many state constitutions as well as the federal. If Congress takes action to defend against anti-religious discrimination, it is not sufficient to obtain reversal of federal Establishment Clause doctrines like the Lemon test; it must affirmatively extend the protection of federal law to those whose rights are violated under color of state interpretations of church- state separation as well.
Finally, no discussion of problems in this area would be complete without reference to the Supreme Court's disgraceful record with regard to educational choice. Much of the problematic precedent in this area arose in the context of state efforts to provide some assistance to parents who choose to educate their children under religious auspices. The Supreme Court, in a series of decisions beginning with Lemon v. Kurtzman, has made these efforts virtually impossible. The most egregious decision, in my opinion, was Aquilar v. Felton, 473 U.S. 402 (1985), in which the Court struck down those portions of the Elementary and Secondary Education Act that provided remedial English and math training by public school teachers to educationally and economically disadvantaged students on the premises of their schools, both public and private. The effect has been to deny less affluent parents the practical ability to exercise choice in education, as is their constitutional right, and to deny to urban school districts the more practicable way to provide remedial services to some of their neediest children. This makes no sense, either pedagogically or constitutionally. In a pluralistic nation, the parents -- not the voting majority -- should determine the content of their children's education, and they should not be penalized for it. Diversity and choice are far more consistent with the purposes of the First Amendment than the present system.
Even today, when most expert observers believe the Supreme Court would uphold a well-drafted, genuinely neutral educational choice plan, the lower courts continue to rule to the contrary. A recent example is Miller v. Benson, 878 F. Supp. 1209 (E.D.Wis.), in which the federal district court ruled that the State of Wisconsin may not extend its private school choice plan to socalled sectarian schools. In Milwaukee, a student qualifying for the program can attend the private school of his choice, including progressive schools, Afrocentric schools, or other schools reflecting the philosophical orientation of the parents, teachers, and administration. But he cannot attend a school where the philosophical orientation is religious. This obviously excludes a large number of the schools parents would like to choose in Milwaukee, and which deliver an excellent education where the public schools have failed.
Two explanations are usually offered in defense of the idea that religiously affiliated activities must not be permitted to participate in tax-supported benefit programs, even on a neutral basis. Neither, in my opinion, is persuasive.
First, it is argued that it would violate the religious freedom of taxpayers to compel them to support schools or other activities propagating ideas in which the taxpayer does not believe. But this is a valid objection only when funding is provided to a religious activity on a preferential basis, because it is a religious activity. That is what the battle over disestablishment among our founders was about. The principle has no application when the government funds a wide variety of private groups, for a secular purpose, and religious groups are included on a neutral basis. No one suggests that churches or synagogues should be denied the valuable benefits of police, fire protection, roads, sewers, or tax benefits, on an equal basis with other property and other nonprofit institutions. There is no principled reason to deny a similar equality to citizens who choose religious schools or the services of other religious institutions. Justice Brennan stated the principal well in his plurality opinion in Texas Monthly, Inc. v. Bullock, 489U.S. 1, 14-15 (1989): "Insofar as [a] subsidy is conferred upon a wide array of nonsectarian groups as well as religious organizations in pursuit of some legitimate secular end, the fact that religious groups benefit incidentally does not deprive the subsidy of the secular purpose and primary effect mandated by the Establishment Clause." The underlying requirement is one of neutrality. The government must not favor religion, but neither is it required to discriminate against religion.
Second, it is suggested that religious recipients would be made worse off by inclusion in neutral aid programs because the aid would come with "strings." These "strings," it is argued, would create incentives for the recipients to comply with governmental policy even at the expense of their own, autonomous, principles. There are two answers to this. First, this ought to be a choice left to the recipient. Any aid program had costs as well as benefits, and ordinarily we allow the affected individuals and groups to weigh the costs and benefits. There is no reason to assume that religious individuals and groups have any less competence to make the choice than others. Second, and more important, is the fact that the present system creates even more severe incentives for potential recipients to betray their principles. Under current doctrine, they can obtain aid if and only if theyr enounce their religious character. The Fordham radio station will receive hundreds of thousands of dollars -- so long as it agrees to cease broadcasts of the mass. The students in Rosenberger would receive funds if only they would tone down their religious point of view. A child care center serving low income clients can receive federal assistance if it eliminates Bible stories and prayers before snack. These conditional "strings" are far worse than the strings that ordinarily come with the aid, because they interfere with the fundamental religious character of the recipient. The current system makes government grant programs a relentless engine of secularization. I believe that goverment programs should have as neutral an effect as possible, which means that the programs should be administered without discrimination on the basis of religion.
Is congressional action appropriate?
Some may argue that interpretation of the Constitution is a matter belonging solely to the courts, and that it would be inappropriate for Congress to play a role in enforcing the rights of religious citizens to an equality of treatment. This misconceives the historic role of Congress under our constitutional system as an enforcer of rights and as a corrective to judicial misconstruction. Both by constitutional amendment and by statute, Congress has frequently intervened when the courts have failed to provide adequate protection for constitutional rights or have otherwise misinterpreted the Constitution.
I agree with those who say that the First Amendment does not require improvement. But it is plain that the interpretation of the First Amendment by the courts does require improvement. This could come about in one of three ways. First, we could hope that the courts will correct their ways. This is always possible, but the record of inconsistent interpretations of the Establishment Clause for the past 40 years does not give much ground for optimism that the Court will adopt a clear position and stick to it. Second, Congress could pass a statute, modelled after the Equal Access Act or the Religious Freedom Restoration Act. This could well be an effective strategy. But since much of the problem here is caused by an exaggerated and distorted interpretation of the Establishment Clause, it is far from obvious that such a statute would be enforceable. Where the problem is constitutional in nature, a constitutional solution may be required. Third, Congress could propose a constitutional amendment, embodying the fundamental principle of religious equality. Although it is to be expected that some separationist groups would fight such an effort with great vigor, the principle of religious equality will no doubt strike a chord with the American public as reflecting a fair and workable approach to church-state problems. If adopted, it would guarantee that religious expression is given equal treatment in public forums and that religious activities are given equal access to public benefits, without giving religion in general (or any specific religion) an advantage. It would thus contribute to religious liberty while guaranteeing to all Americans, secular as well as religious, an equal liberty. Unlike separationist and secularist interpretations of the First Amendment, it would stand for neutrality.
Even if not ultimately adopted, public deliberation over such a proposal would bring these important questions to the forefront, and -- like the proposed Child Labor Amendment and Equal Rights Amendments in the past -- might well be a stimulus for reform that would make ultimate ratification unnecessary. Because of a lack of interest among the press and the often arcane language of legal decisions, the public has not been made aware of the extent to which our constitutional freedom of religion has been transformed into a freedom from religion. Public discussion of these issues would in itself be a positive development. Much of the problem has occurred because religious discrimination has been cloaked in language of "the separation between church and state" and other legal formulas that disguise what really is going on. It is time to bring these issues out into the open.