The Gillman and Chemerinsky Masonic Religious Clauses
In 1948, Judge Stanley Reed strongly suggested that a “[r]Judge Reed was referring to President Thomas Jefferson’s reference in 1802 correspondence with constituent ministries to the “Church-State separation wall” allegedly being used by “the whole of the American people.” was established when the first amendment was ratified.
Chancellor Howard Gillman and Dean Erwin Chemerinsky insist in The Religion Clauses that “Thomas Jefferson got it right” and that “the First Amendment was intended to create a wall separating church and state”. The better view, however, was expressed in 1985 by then-Judge William Rehnquist, who warned that “[i]It is impossible to build solid constitutional doctrine on a misunderstanding of constitutional history, but unfortunately the Establishment Clause has been specifically loaded with Jefferson’s misleading metaphor for nearly 40 years. “
Reed and Rehnquist were right, and, as many scholars have shown, the constitutionalization of Jefferson’s “Letter to the Danbury Baptists” was a legal error, owed more to the hobbyhorses and legal history of Justice Hugo Black than to solid interpretation or prudence . Yet imagery and invocations of masonry have long been an integral part of both the commentaries on the religious provisions of the First Amendment and the Supreme Court cases in which they are interpreted and applied. When the high profile cases of the Court of Justice are announced each June, it is seriously, if inaccurately, reported that the “Wall of Separation” is crumbling, sinking, collapsing, eroding, losing bricks, and so on.
Certainly, “the argument for the separation of church and state” is a strong one. The prohibition of religious institutions in the First Amendment and its protection of the freedom to practice one’s religion work, correctly understood, together to protect religious freedom. And both religious freedom and good government are well served by an appropriate differentiation or distinction between religious and political authority: the bishop should not set speed limits, and the governor should not write a creed. The “distinction between what belongs to Caesar and what belongs to God” is how the Pope Emeritus Benedict XVI. once remarked “fundamentally”.
Gillman and Chemerinsky, however, “plead” for something completely different – not for a healthy and pluralistic secularity, but for an ahistorical and unattractive secularism. You keep saying that “government should be secular”. But that’s an unremarkable claim – yes, it should be. What is remarkable – and radical in comparison to our practice and legal precedents – is her understanding of the implications of this demand for civil society, for the workplace, for schools, for the self-government of religious institutions, etc.
The authors remind us early and repeatedly that they “are not originalists and do not believe that the meaning of a constitutional provision is determined by the original understanding at the time of its adoption”. Because of me. But this denial has to do with her keystone chapter, “The Concerns of the Founders,” which – after a brief tour of parts of John Locke, Roger Williams, James Madison, and Jefferson’s letter – implausibly claims that “there is a consensus among the majority of those who who drafted and ratified the constitution “in order to support the separation of church and state in the sense of the authors. There wasn’t. The authors’ preferred arrangement of politics, religion, church, state, law, and culture is certainly one that many prominent thinkers have advocated, but it has no significant connection or roots in America’s founding, history, tradition, or practice. There is no basis for the view that decades of strict separation in the Supreme Court or the Freedom from Religion Foundation’s trial agenda have much to do with a “consensus” from the early days.
Many of the authors’ “applications” have an apodictic, impressionistic, Olympic quality.
At the heart of the religious clauses are two chapters, “The founding clause: In defense of the separation of church and state” and “The free exercise clause: protection from religious animus, but defense of neutral laws of general applicability”. Each chapter outlines “competing theories” about the meaning of these clauses, describes several lines of relevant Supreme Court rulings, and then evaluates these cases through “applications” of their preferred theories.
The various descriptions of the cases are accessible and generally accurate, although the “Aid to Religious Institutions” section does not mention the Court’s landmark 2002 judgment in the 2002 Zelman v Simmons-Harris case in which the judges upheld a school election program which included parish schools. It discusses at length the recent Locke v Davey rulings, Trinity Lutheran Church v Comer, and Espinoza v Montana Department of Revenue, but in those cases – no doubt to the authors’ regret – the issue was not whether the Establishment Clause approved the aid in question; the judges assumed. Instead, the questions asked in these cases concerned the prohibition of anti-religious discrimination in the freedom of movement clause. Similarly inappropriateness is the treatment of the cases of the Court of Justice on the interpretation and application of federal laws protecting religious practice in the chapter entitled “Clause on freedom of practice”.
These chapters treat the selected material in journalistic depth, and there is nothing new in the descriptions or evaluations of the cases by the authors for lawyers, academics or citizens familiar with this area of law. The “wall” metaphor is pressed into the sophisticated service, and the short version of the narrative is that the change of court in cases of public religious symbols and cooperation between governments and religious schools from strict separation to neutrality is regrettable, as are laws and court judgments that accommodate religious believers by releasing them from rules that weigh down their religious obligations and practice.
Many of the authors’ “applications” have an apodictic, impressionistic, Olympic quality. They admit in several places that “drawing lines can be difficult at times,” but it is often not entirely clear why they think the line should be drawn here and not there. The proposed standard is: “[t]The founding clause is to be interpreted practically as far as possible in such a way that it requires a separation of church and state ”, but – apart from questions about the authors’ understanding of church-state separation – it does not disclose how“ practical ”methods of secularization differ from impractical ones. It is said – three times on three pages – that “religious symbols do not belong on public property,” but it does not explain why, say, all crosses in Arlington National Cemetery should not be leveled or why the cities of Sacramento, Corpus Christi and Las Cruces shouldn’t have to change their names.
Another frustratingly slippery aspect of the authors ‘argument concerns the religious communities’ right to decide religious questions for themselves. The authors “insist that the government allow religious institutions to organize their own affairs as much as possible,” but their understanding of “possible” differs blatantly from that of the Supreme Court. The Hosanna-Tabor Court’s 9-0 ruling v EEOC, which confirmed that both the facility clause and the freedom of exercise clause prevent the government from questioning the decisions of a religious institution about who should be teachers, ministers, and Managers are covered in a footnote. Probably no court decision in decades implies the principle of the separation of church and state so obviously, correctly understood. So it seems clear that Gillman and Chemerinsky’s understanding of what it means for a religious institution to “organize” [its own affairs] As far as possible, for example, does not extend to allowing a Catholic parish school to decide who wants to teach children the faith and who doesn’t.
There is no mention of a court ruling that might be considered one of the most fundamental cases of religious freedom in American history – Pierce v Society of Sisters – despite using some of the most “separationist” (properly understood) terms court opinion. In this case, the court overturned an anti-Catholic, clan-backed Oregon law that required all children to attend state-run schools. One might think that if the separation of church and state means something, it means that the “state” does not claim or enforce a monopoly on the upbringing and education of children. However, in a 2015 book chapter, Dean Chemerinsky argued that despite Pierce, all children should be required to attend government schools. That would be statism, not a separation.
It is advisable to distinguish between political and ecclesiastical authorities and their areas, and this distinction is consistent with our constitutional text and traditions. But our constitutional text and our tradition of religious freedom do not support a “religiously blind” approach to the exception question, a “naked public” attitude towards religious symbols and expressions, and a rigid position of non-cooperation with regard to religious schools. Instead, the American experiment in religious freedom for all has respected the right of citizens to lead an integrated life, take on their commitments in civil society, and form and participate in authentic denominations. And our law has recognized and affirmed that cooperation between these communities and secular governments is fully compatible with an appropriate distinction between church and state.