Privatizing Religion: The Supreme Court’s Real Objective

“Baby Jesus Saved by Plastic Reindeer.” That should have been among the many headlines of March 6, 1984 heralding the Supreme Court’s most celebrated church-state ruling of the eighties. At least, that is precisely what the decision amounted to. The Court concluded that, were it not for the inclusion of such “secular” figures as Rudolph and Blitzen, the annual Christmas display in Pawtucket, Rhode Island, by including a crèche, would have made Christianity an established religion. The city’s cost was around $130 a year (less than what states pay for a single abortion). But a bare five-member majority of the Court determined that the eclectic assemblage was a “folk-symbol,” practically devoid of religious significance; otherwise they would not have allowed it. The dissenters were not persuaded: reindeer notwithstanding, this time-hallowed holiday tradition violated the First Amendment’s ban on laws “respecting an establishment of religion.”

Standard dictionaries still define a religious establishment as a “state church.” That a municipally sponsored holiday observance, placed on private property in cooperation with a retailers’ trade group (and, importantly, not with any church or religious body) — that such a tradition might be unconstitutional suggests that the justices employ a very curious definition indeed. Just how curious? Consider the Court’s usual headline-grabbing pronouncements on a moment-of-silence in public school classrooms, tax deductions for parochial school tuition, and paying chaplains to open legislative meetings with a well-founded plea for God’s mercy. All these issues may seem far removed from establishment of state churches (they are) but not nearly as distant as a recent lawsuit against Ronald Reagan, brought by an impressive array of Protestant clergymen. The alleged presidential offense: “establishing” Catholicism in the United States by arranging diplomatic relations with the Vatican. (The Courts thus far have dismissed the case on procedural grounds; they have yet to reject the plaintiffs’ charge on the legal merits).

The curiosities multiply. L’affaire Curran may well be next year’s headline story. Since there are disturbing indications that Father Curran may seek legal relief from any Church-imposed discipline, this could be a landmark church-state constitutional ruling. Crisis readers should not take comfort in the recent dismissal of Marjorie Maguire’s apparently similar lawsuit against Marquette University [see “Dr. Marjorie Reiley Maguire v. Marquette University,” Documentation, May]. The situations are fundamentally different. Mrs. Maguire wanted a job at Marquette; Father Curran wants to keep his at Catholic University, and a critical factor in the Maguire decision was the limitation of “academic freedom” guarantees to persons already employed. Many constitutional scholars would say that Catholic University must be treated like any other university in this country, because “special” treatment of it would (again) “establish” Catholicism. And there is no doubt that but for the “specialness” of Catholic University’s relationship with church authorities, Father Curran could not be disciplined for doctrinal deviation. (The University might expect help from the Constitution’s commitment to the “free exercise” of religion, and it might — just might — get it.)

Something peculiar is going on in the interpretation of our constitutional law on church and state. Once the First Amendment was held to mean that there should be “no state church.” Now there is the suggestion that a federal judge should determine whether Charles Curran is more Catholic than the pope. The path between those two points, to put it mildly, is not intuitively detectable. The only convincing explanation of this unusual turn in constitutional law is that the justices are literally endeavoring to privatize religion: to render it an individual performance, divorced from political and economic institutions and practices.

“Privatization” is no less than a war of attrition upon the ordinary believer’s faith that his religion — be it Christianity, Judaism, Islam, or Mormonism — contains true insights not only into the nature of God but also into the nature of man. The religious man recognizes in his faith a guide for interpersonal relations. The Court’s interpretation would invalidate any such guidance. Put most bluntly, the Court is trying to eliminate the idea that religion contains social and political truth.

Since the Constitution has been in effect since 1789, it is surprising that the 1947 decision in Everson v. Board of Education was the Court’s first direct confrontation with the non-establishment command that has dominated church-state law since that time. The Everson Court, urged to hold that New Jersey established religion by funding parochial school bus rides, had two basic options. Proponents of the New Jersey law offered a slight generalization of the standard “no state church” definition: since the earmark of a state church was privileged inequality, all that the Constitution required was that assistance to religion be impartial among sects. That reading of non-establishment was undoubtedly the correct one, but the justices unanimously rejected it, and blithely so.

The establishment clause, reasoned the Court, did much more than prohibit sect preferences. It erected a “wall of separation” between church and state, and prohibited all aid to, and encouragement and support of, religion, even if such were sect-neutral. Religion and government, the Court determined, occupied separate spheres of human activity; the wall kept them apart. The state’s sphere was, predictably, the public one. Justice Douglas capsulized the fateful Everson allocation of jurisdiction some years later: “The Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice.” This is the constitutional kerygma and Everson is the conclusive point of departure. The path not taken there — sect equality — implies no separation of religion and government at all. Instead, it invites the multifaceted overlap of activity that Everson abhors.

One could, and some observers do, look solely at the specific state supports actually upheld or struck down, seeking to detect some meaningful pattern in the Court’s decisions. But what Daniel Patrick Moynihan first called the “atlas” problem typifies the folly of this course: if the Court permits the state to provide private school pupils with books (it does), but not with maps (also the case), what about books of maps? (The Court has yet to rule on this). Everson itself said it was all right to drive kids to and from school, but a later case held that buses for field trips violated the Constitution. And so on.

What one careful legal scholar calls the “legendary inconsistencies” here force us outward in the search for a stable organizing principle. Even casual observers of constitutional development have probably heard of a “three-part” Lemon test for church-state cases. (In brief, to pass muster a challenged law (1) must have a secular purpose, (2) must not advance religion, and (3) must not excessively entangle church and state.) The test, formulated in the 1971 case of Lemon v. Kurtzman, does not work. In fact, it’s a lemon. All of the present justices (excepting perhaps Justice Rehnquist) have affirmed their allegiance to this test, but in the process they have clarified that the test no longer even purports to decide cases. Lemon is now only a “guideline with which to identify instances in which the objectives of the Establishment Clause have been impaired,” a set of “sensitizing concepts.” But if Lemon does no more than “sensitize” the Court, a worthwhile question arises. What does it sensitize the Court to? The various elements of Lemon are reducible to what are usually called church-state “themes,” or First Amendment “values” or “policies.” The ban on advancing religion contains the related establishment clause themes of state “neutrality” between “religion” and “irreligion,” and restates Everson ‘s cornerstone proscription. “Voluntarism” in religion is thereby assured by keeping coercive state power at bay. “Excessive entanglements” is another phrase for the granddaddy non-establishment theme, the “wall of separation.”

The problem with these themes is fairly apparent: what do they practically entail? They sound so helpful —sometimes — but when you actually try to solve real life problems with them, you realize no advance has been made. What does “separation” or “neutrality” actually entail?

Happily, a most remarkable recent development in the 1985 cases has mooted, or subsumed, these questions. Now a single theme, “religious liberty,” is the central, unifying policy of the two religion clauses and (it is asserted) the distillate of prior cases. Unhappily, this phrase too tells us nothing. It is found in the Soviet Constitution as well as (through this construction) in ours, and there is little similarity between the two regimes’ treatment of religious belief. Nor is the Court’s current use intuitively accessible even to one steeped in the American vocabulary of church and state. How, for instance, is “religious liberty” furthered by the Court’s hostility to most forms of aid to parochial schools? By its invalidation of a public school moment-of-silence? By upholding a city-sponsored crèche, but denying it any religious value?

At a minimum, these curiosities suggest a highly stylized use of the term “religious liberty.” Thus, having gone through the justifications proffered by the Court, we still lack an intelligible guiding principle of church-state law. What is going on?

While candor has not here been the Court’s strong suit, some of the justices have admitted that the Constitution is, in one scholar’s words, an “excuse” for the decisions, not a reason for them. Justice Robert Jackson, for instance, asserted in 1948 that key establishment clause issues were matters on which “we can find no law but our own prepossessions.” More recently Justice White, after previously admitting that history did not answer the vital question, ‘fessed up. The Court, he said, has simply “carved out what [it] deemed to be the most desirable national policy governing various aspects of church-state relationships.”

Despite volumes of cases painstakingly regulating religion, the court has never provided a constitutional definition. What is religion?

“The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.” With that command, the Supreme Court in the 1944 Ballard case interpreted the free exercise clause to interdict every government attempt to ascribe “truth” or “falsity” to “religious” assertions. As a result, all that could be measured was the good faith or “sincerity” of the believer: did the person actually evince belief in the beliefs asserted? Notwithstanding Ballard’s stricture, however, and presumably consistent with this veil of agnosticism, the later case of United States v. Seeger proffered what is thought to be a constitutionally compelled “functionalist” conception of religious belief: “all sincere . . . beliefs which are based upon a power or being, or upon a faith, to which all else is subordinate or upon which all else is ultimately dependent.” Purely ethical beliefs might be an individual’s “ultimate concern” (to use Paul Tillich’s exact term for the phenomenon the Court described) and thus “religious.” While ostensibly rejecting a “substantive” definition of religion, and thereby reaching perhaps a putatively “liberal” result, the Court cut deeply into Ballard. “Sincerity” was no longer the sole inquiry. Agnosticism was formally maintained but a new dimension was added: the “constitution” of religious belief. Whether or not individual maxims are true or false, the whole is not “religious” if it falls short of the depth and comprehensiveness that characterize some yardstick “religion.”

The yardstick is not any religion having a “god.” The believer may attach that label to whatever entity he chooses and build a “religion” around the designated “god,” but the Constitution requires more. Classic examples — and by no means unrealistic — are value systems containing materialistic or egoistic “ultimate concerns.” A Marxist or a disciple of Ayn Rand encompasses all of experience within such categories, orders his life and interprets past, present, and future by them. But such conceptions of life are not “religious” in the Supreme Court’s view. Neither, presumably, is “secular humanism” which, however defined, never crosses the horizon into transcendence.

To identify this important constituent element of “religion” we must begin with Ballard’s catalogue of paradigmatic “religious” questions: miracles, the Divinity of Christ, life after death, the power of prayer. That is: Did Jesus really turn water into wine at the Cana wedding feast? Did He raise Lazarus from the dead? Was Jesus Himself raised on Easter morning? The kinds of questions, in other words, that are publicly irrelevant. Put differently still, Ballard hinted that the Constitution required indifference only to questions to which the law was already indifferent. There was no suggestion, for instance, that the moral duties and social vision contained in the Sermon on the Mount are “religious” questions.

Ballard’s hint effectively became law in Everson, and has been ever since. Writing for the Court in the latter case, Justice Black envisioned a “wall of separation” which “rescued the temporal institution from religious interference.” In his influential dissent Justice Rutledge said the Constitution made the religious function “altogether private.” A Court still may not ask whether the teachings of the parables are “true” or “false”; it does not need to. Where those teachings break out of the private sphere, however, their “religious” pedigree engenders constitutional resistance as an intruder upon alien turf.

To backtrack: the Court claims that the Constitution relegates religion to a “private” realm separate from the sphere of government, politics, and the “public.” Is this inconsequential rhetoric, or does it really “bite”? It is, for one thing, the only way to make sense of the one aspect of church-state law, which is solicitous of believers ill at ease in a secularized society. This strand of law holds that individual believers, when confronted with a law that burdens their consciences, are presumably entitled to break that law. To enforce compliance the government must show that the believer threatens a “compelling” state interest. The anarchic implications of this doctrine are fairly obvious. It is worth noting here that the only beneficiaries of this exemption have been separatist, politically indifferent groups: the Amish, Jehovah’s Witnesses, and Seventh Day Adventists.

The “two-sphere” metaphor thus has both proscriptive and descriptive components; the confinement of religion to a private realm of voluntary (non-governmental) institutions is both constitutionally required and practicable. This latter point needs clarification. The justices do indeed concede some analytical untidiness in their model, some fissures in the wall of separation. But that sums up the concession. The Court clings to “neutrality,” “separation,” and the “public/private” divide as viable governing norms of everyday reality. Justices clearly believe that a tolerable level of judicial tinkering can keep the realms in their proper, almost mutually exclusive, alignment. In fact, the metaphor sustains the best of both practical worlds: religion and government each thrive best when left alone by the other. Or so says the Court.

A brief comparison of the two constituent elements described by the Court reveals a powerful dissonance. It is not easy to see how religion — characteristically all-encompassing and ultimately compelling, according to Seeger — can be compartmentalized within a “private” area, much less prosper there. Nor is it readily apparent how any government, especially a modern welfare state and world power like the United States, can avoid taking stands on “ultimate” or “religious” issues — as pacifists, to cite just one example, have little difficulty appreciating.

Our discussion to this point generates an obvious question: just where does the public-private line intersect experience? In practice, what is the scope of the “private” sphere of untrammelled religious liberty? How much space is on religion’s side of the wall of separation?

Not much. Less prosaically, the unencumbered “private” sphere is no more than a cocoon wrapped around the solitary individual. The most recent cases unanimously and unequivocally treat “conscience” as the seat of religious freedom, the paradigmatic if not sole addressee of the constitutional guarantees. And the Court’s emphasis is difficult to overstate. Writing for the Court in the moment-of-silence case, Justice Stevens called “the individual’s freedom of conscience… the central liberty that unifies the various clauses in the First Amendment.” Government-sponsored “indoctrination” is utterly forbidden because it would have “devastating effects on the right of the individual voluntarily to determine what to believe (and what not to believe) free of any coercive pressures from the State.” The precise context of this observation illumines the atomistic quality of the freedom threatened. As the Court observed, the students whose liberty was endangered “presumably” attended parochial schools “precisely in order to receive religious instruction,” yet government aid, which eases the financial burden of attending still poses a “substantial risk of state-sponsored indoctrination.”

Of course, state aid adds nothing to the “coercive” atmosphere (to use the Court’s revealing term) already present in religious schools. But however perverse, the Court’s reasoning is not stupid; it spotlights the justices’ individualized conception of religion. By penetrating a religious community such as the parochial school and resting analysis upon the “voluntarism” of an individual member’s reception of training voluntarily undertaken, the Court fills out its constitution of religion along wholly intra-subjective lines.

Some tentative conclusions now suggest themselves. While “religion” is undoubtedly something involving groups and institutions, the constitutional guarantees involve a (hypothetically) unencumbered conscience. Hence, “religion” is, analytically, an individual performance.

The Supreme Court’s conception of religion is, on the other hand, absolutely not “secularized.” The cases neither contemplate, countenance, nor encourage the reduction of religious belief to social theory or political ideology. The politicization of religion would quite obviously explode the Court’s carefully crafted construct; if religion is indistinguishable from public policy, the Court’s opinions are nonsense. This is why Seeger’s “liberal,” or “functional,” definition of religion cannot be taken seriously. A “religion” constituted entirely of moral or ethical beliefs, since it would consist almost exclusively of intra-subjective social duty, has no constitutional home. It is inevitably and entirely public.

Religion as the Court understands it, notwithstanding Seeger, necessarily involves transcendence; if not theism at least contemplation, so that there is something intra-subjective to compartmentalize. Deeply spiritual religion is fine, mysticism even better. The more ineffable the religious experience, the less amenable it is to doctrinal formulation and (derivatively) to theologies of praxis. Concomitantly, the religious “community” in mystic traditions is more a loose association of individuals (Quakers are one example) than a tightly wrapped unit capable of effective social action. Any suggestion that the Court hopes to secularize religion thoroughly misunderstands the cases. A de-divinized public sphere is assuredly the Court’s objective, and the justices quite accurately perceive that the better means to that goal is the full divinization of religion. A deeply spiritualized faith portends detachment from the fallen world of politics; whereas secularized religion makes engagement of the public realm mandatory.

“Privatization,” with a deep connotation of intra-subjective faith, fairly captures the constitutional “definition” of religion. The vast agglomeration of “public” religion is not declared “false;” it is just constitutionally unprotected. The practical effect is the same. The resulting “orthopraxis” cuts off the oxygen of liberty to believers: the faithful enjoy an abundance of a freedom — to be religious, within the confines of their separate minds.

“For just as religion throughout history has provided spiritual comfort, guidance, and inspiration to many, it can also serve powerfully to divide societies and to exclude those whose beliefs are not in accord with particular religions or sects that have from time to time achieved dominance.” That observation (from a recent establishment clause opinion) is the theoretical constitutional calculation of costs and benefits: religion sometimes helps individuals get through their days, but socially it is dangerous and oppressive. While the view is empirically deficient — one wonders, for instance, where the Christian vision of Martin Luther King fits into the Court’s framework — the justices from all appearances regard it as accurate in practice. The opinions contend that religion erupts into the public sphere on an episodic basis, and that the episodes are always theoretically inappropriate.

One can scour the cases from Everson forward to the present without uncovering a single word of unqualified praise for “public” religion. The faint hosannas wafting from the cases are (roughly): (l) religion can be a nice thing in the private lives of individuals; (2) there is an inevitable spillover from private to public, and some innocuous portions of it can reasonably be accommodated; and (3) church-related schools have made “enormous contributions to our national life.” But: public schools are constitutionally preferred; aid to private schools is divisive and ordinarily unconstitutional; and the state must always stand clear of them, confining them to the private sphere. More startling, forty years of painstaking inquiry by various justices have produced neither theory, hypothesis, theme, system, nor even bare recognition of constructive engagement by religion of public life. When faith encounters the outer world, the results are always negative.

These observations are both restatements of and reasons for the privatization of religion: public religion is bad. Again, one must look carefully to see the true rationale, for the ostensible account is laudable enough: the justices are keeping the United States free of sectarian warfare, preventing the Lebanonization of our politics. “What is at stake as a matter of policy is preventing that kind and degree of government involvement in religious life that, as history teaches us, is apt to lead to strife and frequently strain a political system to the breaking point.” From that statement by Justice John Harlan, it is easy to see how the privatization of religion follows: if faith is not politically relevant it cannot lead to political conflict.

So stated, however, the Court’s approach is also either terribly odd or terribly reactionary. It is at least peculiar to presume that a judicial decree can handle what a democratic polity cannot. For example, slavery was no less sinful in the eyes of God after Dred Scott than before it; nor has Roe v. Wade delectably quieted agitation over abortion. The problem is that the obvious cases of sectarian “divisiveness” involve believers who regard the entire system, courts included, as illegitimate and oppressive. In fact, “divisiveness” has never actually occurred in a Supreme Court case. The Court is rather clearly engaged in an entirely prophylactic effort, trying to keep the genie in the bottle through a constant vigil for the slightest indication of church-state union or sectarian commotion.

In his Walz opinion, a deeply troubled Justice Harlan suggests a subtler genesis of divisiveness doctrine. The challenged practice in that case — tax exemptions dating from the colonial era — could not have prompted the justice to assert (as he did) the primacy of “divisiveness” in church-state law. Edward Gaffney suggests another motive. Walz was written in the midst of bitterly divisive Vietnam War protests, often led by clerics and inspired by religious and moral beliefs, following on the heels of similar civil-rights era demonstrations. Gaffney opines that Harlan wrote with his eye on those issues, and in fact Harlan’s opinion further refers to religious agitation on secular issues like birth control and abortion as examples of public religion “to be guarded against.”

Whatever Justice Harlan’s personal views on those various questions, “divisiveness” is frequently a matter of whose ox is gored. One classic example: the Roe v. Wade attempt to defuse the divisive abortion issue, even while the Court avoided every opportunity for constitutional scrutiny of the Vietnam War. Probably Justice Harlan’s was a truly non-partisan concern for order. But is it not a sufficient rejoinder (if not enough to quiet his fears) that but for public religion blacks might still be riding the rear of the bus on their way to fight in Southeast Asia?

“Divisiveness” rhetoric (the ostensible, bloody version) is simply a post hoc justification for privatization. It has no other intrinsic appeal, validity, or utility. It is the Court’s rhetorical Munich or Vietnam — a historical memory so terrible that its invocation ends discussion even before the appropriateness of the analogy is explored. Of course no one wants the United States to become another Lebanon. The question is whether there is any warrant for suggesting that it might. The Court has never answered this question.

Why is public religion bad? The Court has submitted another answer to the question: public religion might distort the “marketplace” of religious ideas, and thus diminish the liberty of each person to “choose” a faith. Now, the marketplace-of-ideas metaphor is commonly paraded as the appropriate model for government’s role in intellectual disputes. The model thus includes a configuration for church and state, and the Court is clearly committed to it. The classic statement is that an uninhibited exchange of contending views is the surest route to truth. But a close look at the use of this theory, from John Stuart Mill’s time to ours, reveals the naïveté of assuming that truth will win in the long run.

Furthermore, that naïveté is not a criticism of the claim, because the model does not really believe in truth. For one thing, the system has no “off” switch — no way of relaxing the robust exchange once the “Light” has shone onto the marketplace. At best the metaphor resembles Xeno’s Paradox: forever moving closer to an end point of enlightenment, it can never in theory arrive there. There is no doubt, either, that the marketplace metaphor as applied to church and state has nothing to do with a commitment to truth. After all, Ballard makes it clear that the Constitution imposes an agnostic skepticism on the polity, forever disabling it from distinguishing religious truth from error. No, the love affair between the justices and the market has its raison d’etre elsewhere. It resides in its implicit conception of truth, a conception conducive to privatization.

It seems that the medium is the message, that the subjective criterion of truth, which the market metaphor preaches is the constitutional requirement. One’s relation to religious claims of truth is to be that of consumer: one selects that item most suited to individualized needs, aspirations or quirks, and this act of choice bestows “value” upon the inert matter. It is now “useful.”

The happy consequences for the Court’s privatization project are obvious: individualized and thus socially impotent religion. Faith communities will more likely be loose associations of the already converted, and attempts at unified public action will be stymied — not only by the overt barriers thrown up by the Court, but also by the believer’s own sense that public religion “imposes” one’s “values” on others, when the believer has no reason to expect that his views will be welcome in others’ lives. So the Court’s monopoly on political prescription is then secure; the popular acceptance of the marketplace metaphor assures popular ratification of the “privacy” and “autonomy” doctrines as well. Both spheres then function as privatization theory ordains. The political realm is rather tightly orchestrated — by internally generated norms ultimately determined by the Supreme Court — while no intra-subjective norms intrude on the “autonomy” of what is left of life in the private, including religious, realm.

An excursus: why is the Court privatizing religion? Not because of a naked hostility to faith, such as an atheist might feel. Rather, keeping faith private is the necessary prerequisite for constructing a better — or perfect — social order.

That is what the Court wants to do. The dream of a perfect polity is hardly the exclusive property of Marxists and mystics; recall Mario Cuomo’s keynote speech at the 1984 Democratic National Convention. This national community or “family” (Cuomo’s word) is unattainable so long as religious opinions extend to questions of governance. The regime of justice will indeed be stymied by the radically ontological “otherness” of homosexuals, for example, until “sexual preference” and “value judgment” are substituted for “sin” or “error.” Again, the tenets need not change, just what it means to subscribe to them. To borrow an image from Bernard Lonergan, the Court aims at control of the riverbed (the nature of belief) over which all streams (beliefs) must flow.

To return to the main point: is privatization that elusive governing principle we have been seeking in the Court’s approach? If so, then our hypothesis should illumine cases, which are otherwise puzzling. Here, one illustration must suffice: the 1983 Supreme Court decision revoking the tax-exempt status of Bob Jones University, a Christian fundamentalist college in North Carolina which prohibited interracial dating among students. The case is doubly important here, for it presents essentially the same constitutional problems as prospective litigation between Charles Curran and Catholic University.

The Court in Bob Jones conceded that a sincere Biblical exegesis underlay the University’s prohibition of interracial dating and marriage. That policy is typical of the tightly controlled, Christian-oriented life of the student body. Violations of this “disciplinary rule” result in expulsion, as do promotion or encouragement of violations. The injunction and sanctions apply to students of all races, and Bob Jones (when the case was decided) had a race-neutral admission policy. The composite institutional portrait embraced by the Court revealed, “a religious and educational institution [whose] teachers are required to be devout Christians, and all courses at the University are taught according to the Bible. Entering students are screened as to their religious beliefs, and their public and private conduct is strictly regulated by standards promulgated by University authorities.”

From this profile it is easy to see that the only question in the case is whether this community’s order should conform to “public policy,” for the school had a plenitude of regulations, which could never be legitimately adopted by a politically organized community. Once the Court justifies critical comparison of public and private, the result is foregone. In that posture, the school’s attitude toward miscegenation is one of its lesser sins. (That prohibition is probably much closer to the “community’s conscience” than most of what the more cosmopolitan in outlook would call a Puritanical code of personal conduct. As Mencken might say, it would be hard to have a good time at Bob Jones.) If the state adopted the very same rules the number of constitutional privileges violated would probably reach double figures.

If Bob Jones loses because it forbids adherents to marry outside their race, what of Catholic seminarians who are forbidden to marry anyone at all? For that matter, how can Catholic schools retain tax-exempt status so long as the church refuses to ordain women, and teaches the objective sinfulness of contraception? Are not gender equality and privacy overriding public policies? To press the Curran analogy, the marketplace of ideas imposed by the First Amendment upon the public order makes mincemeat of the doctrinal fidelity expected of Father Curran. As with Bob Jones, the only issue in the Curran case might be whether “public policy” is applied to Catholic University. If so, the result is obvious. So is the reality of privatization. A first premise of the Constitution, as interpreted by the Supreme Court, has been that religion and law have nothing to do with each other, and thus they operate in mutually exclusive spheres. The effect of Bob Jones is to undermine (correctly) that premise. Political norms have no necessary influence on religious communities, yet religion’s encompassing account of existence necessarily influences the polis. The constitutionally (that is, judicially) superintended “perfect” polity is gluttonous: it wants to consume all competitive accounts of social relations.

“As noted earlier, racially discriminatory schools exert a pervasive influence on the entire educational process, outweighing any public benefit that they might otherwise provide.” The “pervasive influence” eyed by the Court is purely symbolic, or rather a matter of religious witness. Like a church spire in a totalist society, it needs razing. Bob Jones is much more than another example of liberalism’s failure to develop any coherent theory of groups and the Constitution. It is not a “blind” spot but a purposeful incursion by an imperial institution, with the sparest of efforts to justify it, and with barely a note of protest from either the media or the academy. Its blithe presumption that religion ought to imitate the state marks it as the most important church-state episode of our time.

Gerard V. Bradley

By

Gerard V. Bradley is Professor of Law at the University of Notre Dame Law School and a senior fellow of the Witherspoon Institute.

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