Tuesday, December 02, 2003

Given the rules that the Supreme Court has laid down and how they have been applied, the Ninth Circuit’s decision is not outlandish. A candid evaluation must admit that it lies within a fair reading of Establishment Clause precedents. Therein lies the problem and the opportunity for the 2003-2004 Supreme Court.

The Pledge case reveals that something has gone drastically wrong with Establishment Clause jurisprudence. If the Pledge is unconstitutional, so too are teacher-led recitations of the Gettysburg Address. Lincoln claimed “that this nation, under God, shall have a new birth of freedom.” Teaching public school students that the Declaration of Independence is true—that our rights are, in fact, “endowed by our Creator” and that the American Revolution was just according to the “Laws of Nature and of Nature’s God”—would violate the Constitution. Even an invited performer signing “God Bless America” at a government-sponsored event, like a local county fair, would be constitutionally suspect. Newdow confirms what critics have long claimed: that pushed to its logical conclusion, the various “wall of separation” constructions of the Establishment Clause are hostile toward religious sentiment and drive religion out of the public square. The case demonstrates that the current interpretations of the Establishment Clause are not neutral and are unworkable and thus fit the criteria for being overturned.

If the Supreme Court does rethink its establishment jurisprudence, it should do so with an eye toward religious free exercise. In the past, the First Amendment’s two religious provisions (note, there is only one clause) have been read independently of one another. If the First Amendment is internally consistent, however, any plausible interpretation of establishment ought to be consistent with free exercise. Free exercise, in fact, is the more fundamental value. Too often it is forgotten that the reason why Congress and the states (since incorporation) are prohibited from making an establishment is that religious establishments tend to abridge religious liberty.

Religious free exercise, including the right not to exercise a religion, is the end; no-establishment is a means toward fulfilling that end.

posted by Shaun Kenney | 12/02/2003 04:03:00 PM | 0 comments

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