American Jurisprudence on Trial
If Religious Preference Is a Violation of the Constitution, What Are Humanists Doing about It?
“Does it violate the Religion Clauses or Equal Protection Clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools?”
So asks a case argued before the US Supreme Court on January 22, 2020, Espinoza v. Montana Department of Revenue. The facts of this case involve a Montana law that offered tax credit for scholarship donations that helped send children to private schools, most of which were religious institutions. The Montana Supreme Court ruled that this tax credit violated the state constitution provision that prohibits “direct or indirect” public funding of religiously affiliated educational programs. The plaintiffs, Montana parents, appealed this decision to the US Supreme Court, arguing that the Montana Supreme Court ruling “violates the religious liberty of families and is unconstitutional.” They argued that parents who send their kids to religious schools should have access to the same opportunity as families at secular public schools.
In support of their claim they cite the 2017 Missouri case, Trinity Lutheran Church v. Comer, in which the Supreme Court ruled that it was unconstitutional to exclude churches from a neutral, secular aid program for resurfacing playgrounds because the policy would discriminate against organizations based on their religious character. The Missouri Constitution provides that “No money shall ever be taken from the state treasury, directly or indirectly, in aid of any church, or denomination of religion.”
Justice Elena Kagan, who sided with the majority opinion in Trinity, asserted during oral arguments in Espinoza that the Trinity Lutheran case was about “a completely secular benefit,” whereas the benefit in Espinoza was based on religious content. That is, the tax credit made it possible for parents to afford religious education by providing a financial incentive by the government.
The Espinoza case is similar to last year’s American Legion v. American Humanist Association (commonly known as the Bladensburg cross case), in testing the wall separating church and state. The latter case involved a forty-foot-high concrete Latin cross located in downtown Bladensburg, Maryland, on government property that was dedicated in 1925 as a memorial to forty-nine soldiers from Prince George’s County and elsewhere who died in the First World War. There was no evidence that these soldiers were all Christians, and the cross created the impression that only Christians had died for their country. The cross was rededicated in the 1980s as a memorial for all veterans, and over $125,000 in government funds have been spent on it. The American Humanist Association (AHA) challenged the constitutionality of the cross as a violation of the establishment clause of the First Amendment that states: “Congress shall make no law respecting an establishment of religion.”
In his deciding opinion in support of maintaining the cross on government property, Justice Samuel Alito emphasized the old age of the cross, erected in 1925, and reasoned that the passage of time had changed its purpose and the message it conveyed. The court was worried about the divisive impact that removing or altering the monument might have on the local community. However, Alito rejected the government’s most extreme arguments that would ignore concerns for government neutrality between different faiths, writing that the facts in this case were “different from erecting or adopting new” monuments. He stated that the First Amendment’s religion clauses “aim to foster a society in which people of all beliefs can live together harmoniously.”
Justice Ruth Bader Ginsburg in her dissent stated that the cross is a symbol of the Christian faith, embodying the “central theological claim of Christianity: that the son of God died on the cross.” She wrote that the majority’s ruling eroded the First Amendment’s promise of neutrality among faiths and between religion and nonreligion, and that it sent a message of exclusion to Americans who aren’t Christian.
Why Do We Have a Separation of Church and State?
The Council for National Policy is an alliance of conservative politics and conservative Christianity whose declared mission is to “restore…Judeo Christian values under the Constitution.” They believe it is appropriate for the government to favor one religion over others and favor organized religion over the unaffiliated. They believe that the United States was founded on Christian principles and that promoting this idea is a religious duty.
This assertion is a myth. Our Constitution is deliberately secular. It contains no references to God or divine intervention, whereas faith-based truth and morality authored by God is the foundation for Christianity. The first words of the US Constitution—“We the People”—reflect a conviction that the collective conscience of deliberative interactions are capable of creating “a more perfect union” in service of “the general welfare.”
The only references to religion in the Constitution are in the First Amendment—”Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”—and in Article VI, which prohibits a religious test for public office.
The federal experiment was so successful with church-state separation that the states followed along. They prohibited taxpayer funds from flowing to churches and houses of worship. Thus, going back to Bladensburg, the government’s favoring of Christians with a cross meant to memorialize all soldiers insults non-Christians who sacrificed their lives. Furthermore, it creates an impression in the community that only Christians deserve being memorialized by our government and discourages military service by non-Christians.
The Constitution isn’t godless because it’s hostile to religion or God; it’s godless because any preference for God or religion necessarily reflects one or another’s God or religious concept. There are over two thousand God concepts and over ten thousand religions in the world today, not to mention the many more interpretations of numerous holy books, each alleged to have been written or inspired by God. These differences have historically been the basis for war and conflict that undermines civil discourse and peaceful coexistence. Thus, if two or more people are equally convinced that their God or religion is infallible but disagree with each other, then there is no evidence from experience to resolve their difference. This leads to religious partisanship and societal discord, the antithesis of peaceful resolution.
Consequently, by providing public funding or tax subsidies for religious education, which again is at the heart of the pending Espinoza v. Montana case, the government favors religious education that is distinguished from secular education in that it teaches faith-based beliefs. These beliefs are immune to rational discourse and create enclaves of disparaging conflict, with each faith claiming superiority of God’s commands (e.g., “God’s chosen people” or “the one true church”). To wit:
• Some 120,000 Zoroastrians believe the bodies of the deceased must be placed atop tall towers to be exposed to the sun and devoured by birds in order to avoid polluting the earth below.
• Fifty thousand Christian Scientists in the US believe that diseases are caused not by germs, bacilli, or viruses but by lapses of faith.
• An estimated twenty-five thousand American Scientologists believe that humans are descendants of thetans, a group of omnipotent gods, and that our emotional problems are due to “engrams” in the brain created by trauma in prior lives on another planet.
• Hindus, who number around one billion worldwide, worship a god with the head of an elephant, and in the worship of another god, Shiva, rub clarified butter on a temple Lingam, a stylized phallus.
• An estimated 2.7 million Shintos believe in waving silk or paper streamers over someone in a rite of purification and that new-car owners should take their cars to a shrine to be prayed over and purified.
• Some 1.6 billion Muslims and fourteen million Jews believe in cutting the foreskins of baby boys in service of their faith.
• Approximately 4.2 million Jains believe that priests should wear masks over their mouths to avoid breathing in and killing microorganisms.
• Mormons, who number around fourteen million worldwide, believe that ancient Hebrews of America buried golden tablets written in Egyptian on a hillside in the United States, and that these were later recovered and translated with the help of an angel.
• Some 8.4 million Jehovah’s Witnesses are willing to deny life-saving blood transfusions to their dying children in the name of religion.
• 1.2 billion Roman Catholics celebrate their faith by eating the flesh and blood of their heavenly savior through a spiritual transformation of bread and wine.
The freedom of religion cannot exist without a government that is free from religious privilege (nor can the freedom of religion exist without the freedom to have no religion). True religious freedom depends on a secular government, a government in which the people are supreme, not a god. Article VI of the Constitution reads: “This Constitution… shall be the Supreme Law of the Land.” The Supreme Court has decided that religious belief cannot take precedence over the Constitution: “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto herself. Government could exist only in name under such circumstances.” (Reynolds v. United States, 1878.) Indeed, the founders understood that religion was a personal matter between one’s god and one’s self, a manifestation of consciousness. Religious freedom need not be imposed on another’s consciousness or their pocketbook.
John Locke stated in On the Difference Between Civil and Ecclesiastical Power (1674) that “the purpose of the church was to attain happiness after this life in another world,” whereas the purpose of the state was “civil peace and prosperity, or the preservation of the society and every member thereof in a free and peaceable enjoyment of all the good things of this life that belong to each of them.” Locke saw religion as a private matter in that a person’s religious views and their belief in the truth of them do not affect any other person. These thoughts inspired the establishment clause of the First Amendment.
As delineated in “Religion’s Evolutionary Landscape: Counterintuition, Commitment, Compassion, Communion,” by Scott Atran and Ara Norenzayan (Behavioral and Brain Science, 2004), there are three key aspects that characterize religion:
Religion involves a belief in supernatural agents or processes that contrast with what is believed to be true about the natural world.
It involves some form of public commitment to supernatural agents or processes through investment of time, sacrifice of property, or the sacrifice of one’s life.
The belief in supernatural agents or processes serves to mitigate existential anxieties around such concerns as loneliness, injustice, death, and the meaning of life.
Consequently, if religions, including Christianity, believe in supernatural agents or processes that contrast with truth in the natural world, then there cannot be peace with those who look to science, emotional intelligence, compassion, empathy, reason, or personal observation as the basis for their moral and policy decisions. With most religions there is no criteria for falsification because what comes from God is irrefutable.
And if Christianity is to be favored, as is so often what’s proposed in the legal cases discussed so far, then what manifestation of Christianity should prevail? Christian Scientist? Mormon? Catholic? Why should religious and nonreligious groups who don’t have parochial schools pay taxes that fund parochial schools, the majority of which are Catholic? Is this a reflection of religious freedom? Is it in the public interest to raise children in religious schools that are established to avoid teachings essential to becoming a productive citizen with a fulfilling life, such as critical thinking, science education (including evolution), and valuing people of different religions, ethnicities, and sexual orientations?
There are six justices on the United States Supreme Court who are Catholic or were educated in Catholic schools. They claimed to be impartial, an essential prerequisite to a fair trial, in judging whether the towering forty-foot cross memorializing the dead soldiers of Bladensburg, Maryland, constitutes an establishment of religion. In a jury trial there is, of course, a process for screening jurors to ensure that those selected don’t have a predisposition to favor a litigant because of their personal, devout, emotional connection with the issue before the court. We also expect judges to recuse themselves in cases in which their predisposition to an issue before the court will influence their judgment before hearing the evidence. These procedures are important to inspire public confidence in seeking a fair trial resolution for disputes in order to maintain civil order.
It appears such concern over justices’ predispositions in the cross case were unwarranted, given that Justice Alito, in the majority opinion, acknowledged that the decision may have been different if the cross had been newly erected. Justices Stephen Breyer and Kagan, both Jewish, concurred with that part of the majority opinion, while Justice Sonia Sotomayor, who is Catholic, joined the dissent, which declared the cross “the foremost symbol of the Christian faith.”
The newest judges on the Supreme Court, however, were selected from a list submitted by the Federalist Society, which has an agenda to overturn judicial precedents that disfavor religious privilege. The lawyers arguing for the parents in the Espinoza case tried to take advantage of this fact by arguing that the free exercise clause of the First Amendment authorized the government to favor religious education. However, “religious freedom” doesn’t entail using the government and public taxes to favor religious education over secular public education. A secular Constitution guarantees that public institutions and laws are based on ideas that are debatable, subject to critical examination, experientially verifiable, and falsifiable. Religious supernatural ideas are not experientially verifiable, falsifiable, or democratic. Religious education teaches students to insulate their religious ideas from critical examination or the application of evidence derived from observation.
Religious freedom entitles parents to send their children to parochial schools if they pay for it, but should not extend a government benefit to them at the expense of taxpayers. It’s not in the public interest to support religious education generally. If parents want to send their children to religious schools, they should pay for it as a right of religious liberty. They should not impose their tax burden on others.
James Madison, hailed as the “Father of the Constitution,” argued that the separation of church and state existed as much to protect religion as to protect government. “I have no doubt that every new example will succeed, as every past one has done, in showing that religion and Government will both exist in greater purity, the less they are mixed together,” Madison wrote to Edward Livingston, July 1, 1822. Writing to F.L. Schaeffer some six months prior, he said: “The United States is a happy disproof of the error so long rooted in the unenlightened minds of well-meaning Christians, as well as in the corrupt hearts of persecuting usurpers, that without legal incorporation of religious and civil polity, neither could be supported.” The tendency of government and religion to mix and corrupt each other is so great, Madison said, “that the danger cannot be too carefully guarded against.”
The paradox of church-state separation is that citizens living under secular governments tend to be surrounded by more religion than citizens in countries with established churches. This is because religion becomes like any other product for sale when there’s no official church. In countries with a secular government and protections for the freedom of worship, the preacher’s flock can easily worship across the street. Consequently, preachers in America are better salespeople. Politicians use God language to identify themselves with their base however indifferent to religion they may be. Businesses have interlocked God and free market capitalism in order to resist regulatory restraint from Franklin D. Roosevelt’s New Deal and to support Ronald Reagan’s famous declaration that “government is the problem.”
Scene at the Signing of the Constitution of the United States, Howard Chandler Christy (1940)
What is Secularism?
The contemporary French scholar Jean Baubérot, called the founder of the sociology of secularism, describes secularism as:
Separation of religious institutions from the institutions of the state and no domination of the political sphere by religious institutions;
Freedom of thought, conscience, and religion for all, with everyone free to change their beliefs and manifest their beliefs within the limits of public order and the rights of others.
No state discrimination against anyone on grounds of their religion or non-religious world view, with everyone receiving equal treatment on these grounds.
This author would add that secularism has a distinct perspective about:
1) Truth (an epistemology or a theory of knowledge about the natural world) based on the tools of the scientific method, whereby truth-seeking takes place with the benefit of experiential verification, criteria for falsification, peer review, statistical significance, and controlled experimentation; and
2) Morality. It is a system of value and moral decisions based on the collective conscience, emotional intelligence, reason, empathy, compassion, and human-centered judgment of what serves the general welfare (“We the People”).
The Human Rights Committee would add that the right to act in accordance with your religion or belief may be subject to some limitations if those limitations are “prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedom of others.”
As humanists we can continue to remind our fellow citizens and judges that ours is a secular nation founded as a repudiation of a monarch who claimed authority as an agent for God. Our country was an experiment in self-government whereby the government cannot maintain a Christian symbol by arguing it represents non-Christian Americans (Bladensburg), nor can the government funnel tax revenue to educate Christians in their parochial schools (Espinoza). Those cases aren’t about religious freedom, they’re about religious coercion, government religious advertisement, and favoritism. Freedom of religion protects the private right of parents to provide their children’s religious education and the private (as in not led by any school authority) right of students to express their beliefs.
Honesty, truthfulness, moral development, and personal integrity are necessary aspects of character building for children. These qualities were not invented by religion and can be taught and exemplified by quality public education. There are sources both within religion and elsewhere for lessons in moral development, just as there are places for children to read and be taught the religion of their parents without the assistance of government.
Not only is our Constitution a secular document, our common law is an example of a system for the resolution of moral and legal disputes with legal precedents that are persuasive because they are perceived as fair. When precedents are no longer perceived as fair, then new precedents replace them as we discover new understandings of the human personality. Persuasive courtroom arguments, like those put forth by the Appignani Humanist Legal Center and in the vast majority of jurisprudence in US courts of law, are not based on scripture nor the words of gods, popes, or kings. Our legal system is based on secular values.