Mr. Richard Garnett

Professor
Notre Dame Law School
June 8, 2004

TESTIMONY OF
PROF. RICHARD W. GARNETT

THE SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS & PROPERTY RIGHTS

UNITED STATES SENATE
COMMITTEE ON THE JUDICIARY

"Beyond the Pledge of Allegiance:
Hostility to Religious Expression in the Public Square"

Tuesday, June 8, 2004
Washington, D.C.

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MR. CHAIRMAN, I appreciate the opportunity to share with you some thoughts about the place of religion in civil society, and - more particularly - about the protections that our Constitution guarantees to religious expression and activity in the public square.

These are issues of great importance to me as a citizen, as a scholar, and as a teacher. By way of background: I teach and write about the First Amendment at the Notre Dame Law School. At Notre Dame, we invite and - we hope - inspire young lawyers to bring their values and religious faith to their studies, and then to carry them into their lives in the law. In our view, we cannot expect young lawyers to think deeply and well about law, justice, and the common good if we tell them to privatize their ideals, or to radically separate their fundamental moral commitments from their law practices. Therefore, we encourage our students to approach both their vocations in the law and their roles as citizens as whole persons. We challenge them to integrate their work, their beliefs, their values, and their activism. We urge them to avoid the temptation to "check their faith at the door" of their professional and public lives.

With respect to the matter before us today - i.e., discrimination by government against religiously motivated expression and action - I begin with a fundamental, bedrock premise: As President Clinton put it, nearly ten years ago, "religious freedom is literally our first freedom." In other words, the freedom of religion was central to our Founders' vision for America. The Framers did not always agree about precisely what the "freedom of religion" meant, but they knew that it mattered.

We should remember, therefore, that the protections afforded to religious freedom in our constitutional text and tradition are neither accidents nor anomalies. They are not, as one scholar once claimed, an "aberration in a secular state." Quite the contrary: In our traditions and laws, religious freedom is cherished as a basic human right and a non-negotiable aspect of human dignity. Our Constitution does not regard religious faith with grudging suspicion, or as a bizarre quirk or quaint relic. Rather, as my former colleague, Dean John Garvey, once observed, our laws protect the freedom of religion because "religion is important" and because, put simply, "the law thinks religion is a good thing."

Now, from all this, it follows that our laws and constitutional doctrines should regard governmental restrictions upon religious expression - and not religious expression itself - with sober skepticism. In a free society like ours, the "[t]he calculus of religious liberty . . . is determined" not by the extent to which governments manage to confine religious expression to the privacy of homes and churches, but instead "by the measure of religiously motivated thought and action that is insulated from public authority."

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Now, MR. CHAIRMAN, as I am sure you are aware, the law books, newspapers, weblogs, and talk shows are rich with stories of public officials who have neglected, or lost sight of, these fundamental premises of the American experiment. They have turned things upside down by treating citizens' public religious expression with suspicion, and even hostility, rather than with evenhandedness and respect.

I will mention here just a few examples, because I know you have heard and will hear about many more: Not long ago, Robert and Mildred Tong sought to participate in a local "buy a brick" program, designed to raise money for a new playground at their local park. They were told, however, by Chicago Park District officials that the message they submitted for their family brick - which included the words, "Jesus is the Cornerstone" - was too religious to be included.

Another example: When several residents of Oak Park, Illinois, sought permission to use the Village Hall for a ceremony connected to the National Day of Prayer, their application was denied, even though the Hall was generally available to citizens and community groups for a wide range of activities, on the ground that the proposed ceremony was "religious," not a "civic program or activity," and would not "benefit the public as a whole."

Finally: The School District in Scottsdale, Arizona had a general, community-service policy of permitting non-profit groups to distribute literature promoting events and activities of interest to students, such as summer camps, art classes, sports leagues, and artistic performances. However, the District refused to distribute the brochure for one particular summer camp, citing the fact that the camp offered two courses on "Bible Heroes" and "Bible Tales."

Now, MR. CHAIRMAN, the "good news" is that in these particular cases - and also in many others - courts of law eventually vindicated the basic constitutional rule that governments may not discriminate against "religious ideas [and] religious people." What's more, although some government officials continue to misunderstand their obligations and authority with respect to private persons' religious expression, the United State Supreme Court continues to re-affirmed that the Constitution neither requires nor permits state actors to single out religious expression and activities for unfavorable or unequal treatment. As Justice Scalia once put it, "private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression."

And so, a question for this Committee is, why does state-sponsored discrimination against religious expression continue? What's the problem? To be clear: I am confident that the public officials involved in these cases do not harbor ugly prejudices or deep hostility toward religious believers. Nor do I believe that they are willfully neglecting their obligations under the Constitution. Instead, I am convinced that the officials in these cases - and also, unfortunately, too many well-meaning Americans today - fail to understand and appreciate the text, history, and purpose of the Religion Clause of the First Amendment, in several important and related ways.

First, many public officials and citizens misunderstand the meaning of the phrase, "separation of church and state," and the place of this idea in our constitutional tradition. To be sure - as thinkers from St. Augustine to Pope Gregory VII to Roger Williams have taught us - the "separation of church and state," properly understood, is an important component of religious freedom. That is, the institutional and jurisdictional separation of religious and political authority, the independence of religious communities from government oversight and control, respect for the freedom of individual conscience, government neutrality with respect to different religious traditions, and a strict rule against formal religious tests for public office - all these "separationist" features of our constitutional order have helped religious faith to thrive in America. Properly understood, the separation of church and state is not an anti-religious ideology, but a "means, a technique, [and] a policy to implement the principle of religious freedom."

However, too many have confused Thomas Jefferson's "figure of speech" about a "wall of separation between church and State" with a novel and unsound rule that would obligate public officials to scrub clean the public square of all "sectarian" residue. Professor Kathleen Sullivan, for example, has argued forcefully and prominently that the First Amendment's Establishment Clause was designed not simply to end official sponsorship of churches but also to affirmatively establish a secular "civil order for the resolution of disputes." This view of church-state separation is seriously mistaken. It is untrue to the vision of our Founders and to the text of our Constitution. As John Courtney Murray lamented more than 50 years ago, arguments like this stand the First Amendment "on its head. And in that position it cannot but gurgle nonsense."

In fact, our Constitution separates "church" and "state" not to confine religious belief or silence religious expression, but to curb the ambitions and reach of governments. In our laws, "Caesar recognizes that he is only Caesar and forswears any attempt to demand what is God's. (Surely this is one of history's more encouraging examples of secular modesty.) The State realistically admits that there are . . . limits on its authority and leaves the churches free to perform their work in society."

Second, and relatedly, too many of us have forgotten that the First Amendment limits government conduct only. It has nothing to say about private action, other than to confirm that religious expression, exercise, and worship are worth protecting. The First Amendment's Establishment Clause is not a sword, driving private religious expression from the marketplace of ideas; rather, the Clause constrains government, precisely to serve as a shield, and to protect religiously motivated speech and action. Judge McConnell captured the idea succinctly: "If a group of people get together and form a church, that is the free exercise of religion. If the government forms a church, that is an establishment of religion. One is protected; one is forbidden."

Third, nothing in our political morality or constitutional traditions mandates or implies a duty of self-censorship by religious believers. Nothing in the First Amendment suggests that religious expression is somehow unwelcome or out of place in civil society and public debate. And yet, many in America appear to share the view - expressed bluntly by one of our leading public intellectuals - that it is in "bad taste to bring religion into discussions of public policy." On this view, as Stephen Carter memorably put it, religion is "like building model airplanes, just another hobby: something quiet, something trivial-not really a fit activity for intelligent . . . adults."

Now, as you know, MR. CHAIRMAN, scholars are and have long been wrestling with the question of the appropriate place for religiously grounded arguments in public life. This is a rich and important conversation, but - in my view - the bottom line is clear: Our Constitution does not demand a Naked Public Square, nor does it tolerate efforts by government to create one. The Constitution imposes no "don't ask, don't tell" rule on religious believers presumptuous enough to venture into public life, and the Establishment Clause imposes no special obligation on devout religious believers to "sterili[ze]" their speech before entering the public forum. Active and engaged participation by the faithful is perfectly consistent with the institutional separation of church and state that the Constitution is understood to require.

What's more, and going beyond constitutional law for a moment, the political morality of liberal democracy, rightly understood, does not require self-censorship on the part of persons who are believers and citizens. In fact, it would seem more than a little bit illiberal, to assert the peculiar unsuitability for public discourse of one source-i.e., religious faith-of morality, "values," and commitment. To force religious believers to concede, as the price of admission to the political community, that "religious reasons are not good reasons for political action," is, as my colleague Paul Weithman has observed, to deny religious believers "full membership" in that community.

True, some courts and officials have at times seemed more worried about the "divisiveness" thought to attend public manifestations of religious commitment than about the threats posed to authentic religious freedom and pluralism by their own over-reactions. And, as a result, their pronouncements have, in Chief Justice Rehnquist's words, at times seemed to "bristle[] with hostility to all things religious in public life." The recent decision by Los Angeles County, bowing to the threat of a meritless law suit, to remove a tiny gold cross from the County Seal is a reminder that such regrettable over-reactions continue. We should remember, as Professor Jean Bethke Elshtain has warned, that "if we push too far the notion that, in order to be acceptable public fare, all religious claims . . . must be secularized, we wind up de-pluralizing our polity and endangering our democracy."

Finally, many Americans misunderstand the significance of the Supreme Court's observation that, under our Constitution, "religion must be a private matter for the individual, the family, and the institutions of private choice[.]" Clearly, few would disagree with the claim that "religion is private," if the claim is taken to refer to institutional disestablishment or an entirely appropriate respect on government's part for individual freedom of conscience and the autonomy of religious institutions. But this claim should not be taken to mean that religious expression and witness has no place in civil society or that religious faith does not speak to questions of public policy and the common good.

William James once quipped, "in this age of toleration, [no one] will ever try actively to interfere with our religious faith, provided we enjoy it quietly with our friends and do not make a public nuisance of it[.]" Sometimes, though, religious people are called precisely to "make a public nuisance" - and also to engage respectfully their fellow citizens in dialogue about how we should live and live together. Nothing in our constitutional text and traditions implies that religious citizens should not speak and act as though their faith had consequences for state and society. As Justice Thomas has insisted, it would be a "most bizarre" reading of the First Amendment that would "reserve special hostility for those who take their religion seriously, [and] who think that their religion should affect the whole of their lives."

The Constitution protects our right to keep our faith private. However, it does not require us to privatize our faith before entering into the public square, or taking up the responsibilities of citizenship. Indeed, it would be highly - and unconstitutionally - presumptuous for government to instruct religious believers and communities as to the limited scope of religion's concerns.

Here, it is worth bringing up a recent decision by the California Supreme Court, which recently ratified an effort by that State's legislature to confine, and to re-define, the religious mission of the Catholic Church. In the Catholic Charities case, the court upheld a provision that denies a "religious employer" exemption from the State's requirement that employers include contraception coverage in their prescription-drug-benefit programs to Catholic organizations that engage in activities other than worship and religious instruction or that hire and serve people other than co-religionists. Put simply, California has imposed on religious communities like the Catholic Church an ideology of radically privatized religion. As Justice Brown reminded her colleagues, though, many churches have "never envisioned a sharp divide between the Church and the world, the spiritual and the temporal, or religion and politics. For the Church, the internal spiritual life of its members and institutions must always move outward as a sign and instrument for the transformation of the larger society."

In my judgment, sweeping mandates and narrow exemptions, like the ones at issue in the Catholic Charities case, pose grave threats to church autonomy and religious freedom. They also rest - like the arguments of those who contend that religious expression is inappropriate in public settings, or about public-policy issues - on a misunderstanding of "private religion."

In the end, as Professor John Witte writes, "public religion must be as free as private religion. Not because the religious groups in these cases are really nonreligious. Not because their public activities are really nonsectarian. And not because their public expressions are really part of the cultural mainstream. To the contrary, these public groups and activities deserve to be free just because they are religious."

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Thank you again, MR. CHAIRMAN, for your interest in, and attention to, these important matters.