Tuesday, February 2, 2010

The Decade in Religious Liberty

by Rev. J. Brent Walker

Dubbed by Time magazine the “decade from hell,” the past 10 years have been ones for which we can say good riddance: September 11, two costly and deadly wars, the economic meltdown. In terms of church-state relations, however, it has been a mixed bag -- some good news, some bad.

The decade saw the Rehnquist Court become the Roberts Court and, after 11 years of the same nine justices, a change in one-third of the high tribunal.

From the Baptist Joint Committee’s perspective, when John Roberts took over as chief justice, the Supreme Court’s church-state posture was improved. In our estimation, Chief Justice Rehnquist almost always decided church-state cases wrongly. Chief Justice Roberts appears to be more sympathetic to free exercise even though he may be no better than Chief Justice Rehnquist on Establishment Clause cases. Justice Sandra Day O’Connor was right most of the time and could be counted on to render carefully nuanced opinions. While Justice Samuel Alito’s church-state jurisprudence has not been fully fleshed out, his replacement of Justice O’Connor is definitely a minus. He authored the court’s opinion in Hein v. Freedom From Religion Foundation (2007), which made it harder for plaintiffs to bring Establishment Clause cases. Finally, Justice Sonia Sotomayor appears from her Judiciary Committee testimony and judicial record to be sound in her church-state views, but Justice David Souter, whom she replaced, was nearly perfect in the 20 church-state opinions he wrote or joined. She has a lot to live up to.

On balance, we have taken a small step backward in terms of the justices’ church-state jurisprudence.

The Establishment Clause jurisprudence, generally speaking, continued to weaken, especially with regard to the issue of government funding of religious activities and organizations. The decade started off with Mitchell v. Helms (2000) in which the court further pared back a key standard set by the 1971 case of Lemon v. Kurtzman (at least for funding cases) and loosened the strictures on direct aid to pervasively religious organizations. In Zelman v. Simmons-Harris (2002), the court narrowly upheld the constitutionally of a school-voucher program, at least where parents purportedly have genuine choice between schools. As mentioned earlier, the court’s decision in Hein made it harder to challenge government expenditures under the Establishment Clause. The effects of that decision have been felt in the lower courts.

With respect to other Establishment Clause cases dealing with religious speech and sectarian symbols, we fared better. The court continued to rule out government-sponsored student prayer in Santa Fe Independent School District v. Doe (2000) and the posting of the Ten Commandments absent a clear secular purpose in McCreary County v. ACLU of Ky. (2005). Under different facts, where the Decalogue is displayed along with many other monuments and has gone unprotested for decades, the rule is different, according to Van Orden v. Perry (2005).

On the free-exercise front, I think we made some significant progress. The Religious Freedom Restoration Act (RFRA) in 1993 restored increased protection -- at least at the federal level -- for the exercise of religion, and its salutary effect continued through the next decade. Many states have passed similar measures. In Gonzales v. UDV (2006), the court properly upheld an application of RFRA that protected the religious-liberty interests of a small religious sect that sought an exemption to the Controlled Substance Act. Moreover, the Religious Land Use and Institutionalized Persons Act (RLUIPA), passed by the Congress and signed into law in 2000, provides increased protection in zoning and prisoner free-exercise cases. The court, in Cutter v. Wilkinson (2005), upheld RLUIPA’s constitutionality, at least with respect to prisoner cases. Finally, in Good News Club v. Milford Central School (2001), the court embraced the equal-access principle in cases dealing with religious exercise and after-class club meetings in the public schools.

We continued to work on how to ensure the separation of church and state without divorcing religion from public life. The public square has never been as “naked” as some would have us think. For most of the past decade, it was dressed to the nines in talk about religion.

Nowadays, polls demonstrate that the American public has become less enamored of the explicit melding of religion and politics, even though they continue to desire leaders to be religious and even though they show little enthusiasm for banning religion altogether from the public square.

It is also fair to say that there has been a growing sentiment that would banish religion from public life altogether. Here I am talking about those leveling a trenchant atheistic critique of religion generally and religion in public life in particular, including Christopher Hitchens and Richard Dawkins. While troublesome, I think this group still pales in influence and numbers against those on the other end of the spectrum who would explicitly and unabashedly combine religion and public life, if not church and state altogether.

In this country, we have not always managed to get the church-state/religious freedom/religion-and-politics equation just right. That is true of the past 10 years. We should redouble our efforts to argue for a stout vision for both religion clauses in the First Amendment, welcome religion in the public square (while arguing against abusing religion for partisan purposes), and provide an example for the rest of the world to see and, hopefully, imitate.

Let’s all hope and pray that the next decade is better than the preceding one -- maybe a “decade from heaven” when it comes to religious liberty.

Brent Walker is the Executive Director of the Baptist Joint Committee for Religious Liberty. A version of this article originally appeared on the BJC's website and was then adapted and reprinted on the Associated Baptist Press' website.

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