Discriminating Against Religion

The recent Supreme Court cases involving displays of the Ten Commandments in Texas and Kentucky produced confusing results. The Texas display was upheld and the Kentucky display was rejected. Essentially Texas was successful, and Kentucky not successful, in convincing the court that its particular Ten Commandments monument was not religious. Leave aside the peculiarity of trying to prove that the commandments that Moses brought down from the mountain, having received them directly from God, are not religious. The disheartening message of both cases, indeed of First Amendment jurisprudence, is that religious displays can only survive constitutional scrutiny if they are proven not to be religious at all.

Champions of our current regime of strict separation of church and state like to say they are merely applying Jefferson’s high “wall of separation” between religion and government. Actually, Jefferson during his presidency did not maintain such a wall, and from the founding period through World War II there were numerous forms of government subsidy for religion, publicly funded chaplains, congressionally-designated religious holidays, prayer in public schools, and so on. It seems far-fetched for today’s church-state separatists to argue that the religion clause of the Constitution was misunderstood by everyone, including the founders, for a century and a half before it was accurately comprehended by today’s activists and jurists.

But this is not my concern here. What interests me is the claim that the “wall of separation” that we have today protects religion from government interference no less than it protects government from religious interference. Indeed the Supreme Court in its rulings always goes out of its way to stress that it is being fair to all citizens, and is not hostile to religious people or to their religious beliefs. This claim can be tested by examining the two religion clauses of the First Amendment: the “no establishment” clause and the “free exercise” clause. The former prevents the government from establishing religion, and the latter prevents the government from restricting the free exercise of religion.

Since the term “religion” is invoked twice in the same sentence, it must mean the same thing in both cases. Let us focus for a moment on the free exercise clause and ask: does it protect the free exercise of religion, or does it also protect the free exercise of Secularism and unbelief? Advocates of separation of church and state are unanimous: it protects the exercise of unbelief as well as belief. The ACLU declares on its website, “The right of each and every American to practice his or her own religion, or no religion at all, is among the most fundamental of the freedoms guaranteed by the Bill of Rights.” Columnist Wendy Kaminer writes in The American Prospect, “Religious freedom is not simply the freedom to worship as you choose; it includes as well the freedom not to worship.” And this is what the Supreme Court has held.

Now consider the no-establishment clause and ask yourself the same question. Does it prohibit the government from establishing religion, or does it also prohibit the establishment of Secularism and unbelief? Advocates of separation of church and state are unanimous: it prohibits only the establishment of religion. In their view, government can endorse and fund any kind of secular or non-religious activity or expression, and this is allowed by the Constitution, but if government endorses or funds religious belief or activity, this is emphatically forbidden by the Constitution. Once again, this view has been adopted by the Supreme Court.

So we have an untenable situation in which the same term “religion” is given two very different meanings in the same sentence! Clearly advocates of church-state separation have construed the religion clause of the Bill of Rights in such a way as to protect Secularism as much as possible while restricting religion as much as possible. Incredibly the advocates of this double-standard seek to convince religious people that their derogation of religion actually works to the benefit of religion. In reality, there is no impartiality here, let alone sympathy for religion. Groups like the ACLU, with the acquiescence if not collusion of the courts, are actively promoting a jurisprudence of anti-religious discrimination. In a way the Supreme Court has distorted the Constitution to make religious believers of all faiths into second-class citizens.