Right after policewoman Amber Guyger had been sentenced for the murder of a black man in his apartment in Dallas, the judge, Tammy Kemp, walked up to her, hugged her, and handed her a Bible. In the words of the NYT article, “Some praised it [her gesture] as a rare and much-needed moment of humanity; others criticized it as potentially unconstitutional…” Unique perhaps among nations, Americans have to live with such contradictory viewpoints thanks to the First Amendment that, besides protecting free speech, states that “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof,” which has come to be known as the Establishment Clause.
Of course, Judge Kemp, a representative of the state, was not making a law by giving out a Bible, but in the hotly contested wars about the intent and scope of the Establishment Clause her gesture could be interpreted as supporting Judeo-Christian beliefs contrary to the intent of the First Amendment. This is so because court opinions have ruled that the separation of church and state also refers to actions by the government and its official representatives.
Clashes around the Establishment Clause are at the heart of the culture wars in American politics and courts. To the combatants, secularists on one side and religious adherents on the other, how the Establishment Clause is interpreted and enforced is central to building a national narrative and unifying anchor. So, I decided to revisit a book I had read more than ten years ago, titled Divided By God by Noah Feldman (then at the New York School of Law and now at Harvard Law). The historical and legal account of the book is very instructive.
Let’s start first with the historical fact that separation of church and state has never been truly enforced in the US. From the early decades of the Republic, publicly funded schools inculcated a Protestant viewpoint that glossed over differences across Protestant sects (the nonsectarian approach). When Catholics came to the country, their requests to allow their pupils to receive a Catholic religious teaching were rebuffed by the Protestant majority. The result was the establishment of Catholic parochial schools without any state funding. The same was the treatment of students of other Non-Protestant Christian sects as well as of the Jewish faith.
When the courts and the Supreme Court, in particular, finally started to take up cases regarding the separation of church and state in the wake of the Second World War, the decisions were premised on different legal arguments, often outside the strict purview of the Establishment Clause. For example, the right not to salute the flag claimed by Jehovah Witnesses was rejected in 1940 as violating the Establishment Clause but the same right was accepted shortly thereafter for different plaintiffs as a right protected by free speech. This practice of basing court opinions on different legal premises has continued to our day and it is a major reason why the public is so much perplexed as to what is right and wrong under the Establishment Clause.
Over the years, Supreme Court decisions have bifurcated into two approaches. Incursions of religious teachings and practices, like prayer in public schools, Bible reading, and teaching of creationism in biology courses, have been struck down by the Supreme Court on the ground they favor religion and, thus, violate the separation of church and state. On the other hand, the Supreme Court has decided in favor of the use of public funds and resources for religious purposes, like vouchers to attend religious schools, or the use of school facilities. The Court has also ruled to uphold the display of religious symbols in public places as long as not any religious or non-religious group (like atheists) is excluded. Therefore, the courts have moved to interpret the Establishment Clause to mean not an absolute exclusion of religion from the public space, but rather a fair and neutral treatment of religious and non-religious expressions, the so-called neutrality principle.
At the same time, we have witnessed a realignment in the rival groups and their approach concerning the place of religion in public policy and discourse. The original movement of Protestant fundamentalists aspired to run the US as a Christian polity while pure secularists demanded an absolute separation of church and state. Eventually, the Protestant fundamentalists morphed into a group Feldman calls Values Evangelicals. They advocate that, irrespective of differences, religious people share a common set of moral values which they would like to be at the core of a national unity project for America. On their part, the pure secularists evolved into a group Feldman calls Legal Secularists. They espouse religious liberty and freedom of expression for all, secularists and religious people, with the caveat, however, that religious arguments would not inform the establishment of laws or government actions. Thus, to them the national unity ought to be built on arguments informed by reason.
Feldman finds that neither group has a convincing case. By demanding that religious beliefs are left behind before entering public discourse, Legal Secularists deny religious people the right to inform their positions by what is central to their thought systems. But Values Evangelicals also face serious contradictions as they try to build a common base of values for their national unity project. In such issues as the death penalty and divorce, Protestants and Catholics often disagree. On abortion and gay rights, Christian values do not square well with values held by adherents to the Jewish faith. And, Judeo-Christian values do not necessarily align with those of Muslims, Hindus and Buddhists.
In light of all the contrasting views and legal opinions, Feldman adopts a middle position. He suggests that religious symbols (like displays) or gestures (like the one by Judge Kemp) be allowed as long as they do not appear to discriminate against other beliefs, but we should walk back from government actions and policies that avail public funds and resources to religious purposes, which the Framers of the Constitution would find much more objectionable.
What Feldman leaves out is the, by now, unmasked partisanship among politicians and jurists in interpreting the Establishment Clause. If every citizen should have the right to inform discourse on matters of church and state by secular or religious beliefs, who is to be the honest referee? Shouldn’t that be those who mediate these debates, our politicians and most critically our jurists? The public deserves to have an impartial and honest interpretation of the First Amendment from those who have this constitutional duty and responsibility.
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