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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Wednesday, January 04, 2017

Religion Cases

I appreciate the attempt here to view "a Texas Rule Requiring Fetal Burial or Cremation" through the eyes of a pro-life individual and added some thoughts at the linked blog post.

My support is reflected in my attraction to fiction where the voice of various characters are portrayed, including television/movies where there are various subplots involving different characters.  Of particular interest there would be viewing the overall plots separately through the eyes of different characters.  Finally, going back to the first point, I support trying to narrowing down disputes, having common ground but showing how a specific thing is wrong.  This could be shown even by using the arguments of both sides, if granting that at some point there is a separation of opinion.  But, even there, the separation is not as blatant as it might at first appear.  Perhaps, this will be tested this year.

My listening to Supreme Court cases involving holiday displays was expanded to other religious disputes, including those involving the schools.  The first audio we have available is in the late 1950s, so the first cases there would be the Sunday Closing Law Cases (not addressed here) and then Engel v. Vitale.  New York in recent years has been more attactive than some in trying to uphold the separation of church and state, but in this 1962 case in which a school district formulated this prayer for public schools:
Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.
Justice Black used history to determine that formulating prayers in this fashion is a core wrong that the First Amendment was in place to avoid.  This was done in part to protect religion itself.  The opinion also, apropos to recent doctrinal disputes,  argued that coercion is a basic concern of the Free Exercise Clause while the Establishment Clause goes further (though establishments tend to have some form of coercion). The justices at the time (aside from Justice Stewart, a lone dissenter) were more separatist, an earlier "release time" case largely based on there not being separation of church and state.  [I have an interesting book written by the mother of the child in question, who had the symbolic biblical name of "Vashti."]

Justice Stewart in this case and a pair of cases shortly thereafter involving reading verses of the Bible (and in one case the Lord's Prayer) dissented, seeing this as a matter of free exercise. Sounding something like Scalia, he didn't think much of the rhetoric and focused on various practices where recognition of God were accepted.  The majority opinion by Justice Clark (a conservative on some matters, but supporting liberals in this area as well as privacy cases) rested more on doctrine (or perhaps rather used the case to formulate some) while various concurrences went their own way (Douglas as in Engel to expand, Brennan to provide a long essay trying to cover all possible bases as some long advisory opinion and Goldberg/Harlan to note sometimes there won't be much there).

The dissent argued the majority opinions made mountains out of molehills and denied benign free exercise, which is also protected by the First Amendment.* Glasshouses on the sense of perspective point. The formulation of a prayer is somewhat different than "God Save This Honorable Court," a long used motto of sorts, especially when a teacher and students say the prayer in question instead of a court crier.  The special degree of coercion in place for schoolchildren here was particularly underlined in later cases.  The everything but the kitchen sink nature of the references -- such as presidents choosing to say "so help me God" -- also are not all alike in relevant part.  The majority in Engel handwaved away the concern:
21. There is, of course, nothing in the decision reached here that is inconsistent with the fact that school children and others are officially encouraged to express love for our country by reciting historical documents such as the Declaration of Independence which contain references to the Deity or by singing officially espoused anthems which include the composer's professions of faith in a Supreme Being, or with the fact that there are many manifestations in our public life of belief in God. Such patriotic or ceremonial occasions bear no true resemblance to the unquestioned religious exercise that the State of New York has sponsored in this instance.
The usage of phraseology like "of course, nothing" is suggestive since if things were so patently obvious, why the need to address it?  Yes, there is usually likely to be dissent to even broadly accepted things.  But, the constant citing of such things do show there is something to address here. The addition of "under God" to the Pledge of Allegiance in the 1950s, e.g., had a particularly religious purpose to differentiate us from "godless" communism.  It is to my mind a problematic matter, even if a formulation of a prayer is a much worse.  Or,  requiring a government official to believe in God.  But, once you feel a need to have schoolchildren honor God while performing a basic patriotic exercise, the step toward more restrictive (denial of an office of notary public) matters is foreseeable. Ditto, the idea "religion" or "religious freedom" only entails belief in God.

There is a difference -- though "separation of church and state" is a more nuanced term than at first blush here -- between various "manifestations" in public life, in particular involving government entities and violations of the First Amendment.  Various forms of a deity is expressed in the Declaration of Independence, e.g., but that is different (and Art. VI expresses bans it for federal offices) requiring a sort of "test oath" to reaffirm belief in a "creator" or some such thing.  I'd note a few things in the DOI aren't worthy of honoring, including how Native Americans are labeled.  Personal usage, be it a President or a student independently, is also different.  Students can pray before school or join religious clubs, admitting some nuances there being possible (e.g., religious clubs right after school in kindergarten).  But, the "free exercise" there is different from the school itself selecting a specific prayer or religious work to read from daily.

As noted, not all of the "ceremonial deism" often cited here are readily explained away, including usage of "In God We Trust" on our coinage. The other main argument there (going back to Madison, but see also that Goldberg opinion) is that some usages are so minor to be not truly "establishments" or laws respecting them. We don't really work on an absolutist level in this country in that respect.  Again, this doesn't make them fully benign and having a national anthem that honors a specific religious belief or the like adds to a general sentiment that runs into the basic problems addressed in these opinions.  Consider, e.g., Justice Black's separate opinion in the flag salute case that suggests that any test oath -- even the Pledge of Allegiance before "under God" was added to it -- was problematic, at least if there was some real pressure to say it.

One thing these cases did was expand the reach of "religion" as seen by a footnote in Torasco v. Watkins (involving a requirement to believe in God to be a notary public) and Chief Justice Warren during oral argument there and the Engel case bringing up Buddhists.  Earlier cases repeatedly spoke of religion as related to belief in God (an afterlife -- where one is judged for ones sins -- also was a key concern), the oath requirement a means to guarantee a person realizes being bad has consequences.  It's notable that even there the Constitution set up an alternative to affirm (Jesus after all favored that approach) and no religious tests for federal offices.  The state in Torasco tried to argue "religion" only involved theism but that would carry too far given current day understandings.  Not that some still accept state endorsements of religion that are nondenominational enough to pass muster for some.  Thus, religious liberty claims that can burden the beliefs of some, including beliefs involving abortion and contraceptives. 

Once a upon a time, that in effect was "Christian," or even (see the types of bibles used in public schools) Protestant.  It is somewhat ironic that Justice Douglas became such as separatist given his "We are a religious people whose institutions presuppose a Supreme Being" sentiment in an earlier opinion gave and still gives so much ammo to the other side.  Douglas basically repented from the breadth of his rhetoric here, but how really does our institutions so presuppose?  Does the three branches of government really require a Supreme Being?  Many do think God is a necessary part of things here, from creation on, but non-theistic religions alone show that morality etc. is possible there without one.  And, yes, we are "a religious people," but how that is and should be expressed is another matter. 

The Declaration of Independence does state a founding faith tying our rights and existence as a nation to some sort of Supreme Being.  But, the Constitution itself doesn't address that question and some in the beginning and later on (support of an amendment to address fact arose in the 19th Century) were concerned with the lack of a reference to God or our reliance on such a being.  Religious freedom itself (broadly defined in various opinions to involve things like "conscience" or "belief") does not even so require as various cases (U.S. v. Seeger defined belief in relation to a "supreme being" as "whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption").  Anyway, not only can the words of the Declaration be taken in various ways, but even granting a sort of "creator" or whatever, government endorsement or some sort of test oath can be a problem. 

The opinion is useful though in noting that there is some mixture of church and state in various respects, the Free Exercise Clause itself honoring the importance of liberty over choices in that context. More so mixture of religion in public life, including those cases where governmental officials and bodies are involved such as those comments by politicians.  Again, this doesn't mean I support the legitimacy of all of them or their validity on good policy grounds (see, e.g., at least some usage of legislative prayers).  We can compare our situation with let's say France, where a concern for secularism in public places, including a level of conformity on the matter, allows barriers to religious attire that we would find problematic.  See also a recent opinion in India involving the sort of political appeals -- including religious in nature -- are allowed in political campaigns.

As the Christmas season comes to a close (Friday or Saturday being the de facto end for some), the complexities of this question is part of the various things on my mind. After all, "the reason for the season" is not any one thing for all people, the timing of Christmas itself a result of existing practices of those with "pagan" beliefs.  Thus, there are a range of holidays of cultural and religious significance at this time of year.  And, even for those who celebrate Christmas specifically, there are different ways of going about it.  Including listening to Supreme Court arguments.


* Justice Stewart dissented in one of the Sunday Closing Cases on free exercise grounds where Orthodox Jews were burdened because they already weren't open on Saturdays.  He went along in Sherbert v. Verner (Justice White, interestingly did not -- as noted in the past, his separate views here are intriguing as well as consistent -- he gave more rope to the state both to support and not support religion) on free exercise grounds as well.  This is not surprising since in his dissent in the bible reading cases he argues the chief concern overall is free exercise, which makes the Establishment Clause a sort of lesser partner.

Still, even on that level, think of the use of legislative prayer, which can be acceptable and still be problematic in application.  Why not use readings from various religious works, if the idea here is to honor the religious needs of public school children?   He does note that free exercise requires an opt out to avoid coercion, but realistically the system itself will bring pressure to conform.  Handwaving about how minor all of this is doesn't change any of this, putting aside that in practice, things often are more sectarian and coercion than the rules might suggest.  

Stewart and the dissent make a good case that requiring a special exemption raises difficult questions.  There was a middle ground possible too here given the nature of the exemptions in place, particularly in that neither cases involved an absolute rule of opening or being required to work. Cf. this later case.  This middle ground would help in recent disputes too, balancing free exercise with establishment (including excessive favoritism of religion) and other concerns. 

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