Supreme Court Justice Ruth Bader Ginsburg (joined by Justice Sotomayor) wrote the dissenting opinion in last week’s Supreme Court decision upholding the presence of Bladensburg’s Peace Cross on public land. The Court, fractured about the basis for its ruling, nevertheless managed to cobble together a 7-2 split (with Justices Breyer and Kagan as part of the majority) to agree on an outcome that left the cross alone.
In her dissent, Ginsburg appealed to 1947’s Everson v. Board of Education decision, in which a 5-4 court interpreted the First Amendment’s prohibition against an “establishment” of religion to require “governmental neutrality … between religion and nonreligion.” According to Ginsburg, the Peace Cross decision broke with the line of precedent begun in Everson.
Both the majority and minority in the Peace Cross decision, I would claim, suffered from the same handicap: they are operating under a false reading of the First Amendment. That misreading implies that the First Amendment contains two religion clauses, not one.
The First Amendment enumerates five rights: freedom of religion, speech, press, assembly, and petition. Under freedom of religion, the government is forbidden from making “an establishment of religion” and impeding “the free exercise of religion.” How do non-establishment and free exercise relate to each other?
I agree with the late Richard John Neuhaus that there is but one right in the First Amendment: freedom of religion. I also agree with him that non-establishment and free exercise stand in a relationship of means to end: non-establishment is a means whereby free exercise of religion is guaranteed. By forbidding a state church, the Founders intended to protect freedom of religion.
Modern constitutional jurisprudence, especially since Everson, has tended to treat these two clauses as separate and, therefore, potentially in conflict. By breaking down the relationship between these two clauses, the Court has arguably done two things: it has undermined the First Amendment’s protection of religion, and it has unavoidably taken on the responsibility to decide, in multiple individual cases, when and if a particular public religious expression amounts to an establishment of religion.
Because the Court has established as precedent a contradictory interpretation of the religion clause, it has turned the First Amendment from a protection of the freedom of religion to a constitutional truncheon whereby judges can strike down those manifestations of religion that they don’t like. This, in turn, has produced an incoherent seven-decade-long run of precedents that have tried to explain why legislators praying is constitutional but schoolchildren isn’t; why a manger scene in front of city hall is unconstitutional but might be constitutionally acceptable were the wise men to follow a Star of David along with a waxing crescent moon to the Menorah-lit stable with a Santa Claus snowman to welcome them at the door; why religious schools can use public money to buy books but not maps; why the state can help Catholic schoolchildren with learning disabilities as long as it helps them in trailers in the school parking lot (for which money that could go to the kids is diverted) instead of the school building; and why a Peace Cross built and dedicated by a private organization in 1925 is somehow protected in a way that such a cross today probably would not be. All these ad hoc resolutions supposedly reflect government “neutrality.”
Since Everson, an amendment intended to protect religious freedom has been read inconsistently, but more often than not it has been read as Ginsburg has in her dissent, requiring policies which inform the person he is free to express his religion as long as he stays off public property. From the perspective of being welcoming and inclusive regarding religion, the First Amendment—in the secularist reading—now erects “no trespass” signs on the public square, demanding that the believer divest himself of his religious identity as the price of admission to civic life. This is far removed from what the First Amendment was intended to be.
However, Ginsburg et al. would attribute this “neutrality” to the demands of the non-establishment clause, which they have operationally divorced from its connection to the free exercise clause. In the case of the Peace Cross, opponents objected to its presence on public land for essentially three reasons: (1) it offended non-religious observers; (2) it entailed use of public money to maintain it; and (3) its symbolism violated the conscience of those who did not share the meaning of “[t]he Latin cross … the foremost symbol of the Christian faith.”
All this supposedly arises from solicitude for freedom (maybe even religious freedom) under the non-establishment clause of the First Amendment, a clause secularists have separated from the free exercise clause. Does the same solicitude accrue to the free exercise clause?
While Ginsburg and Sotomayor gave the offended non-religious a trump card to oppose the Peace Cross, i.e., to allow them to question its maintenance by tax dollars, and, in the name of conscience, to refuse even to associate in any way with the theological meaning of the cross, it is quite likely no such reciprocation would exist when it comes to the First Amendment’s free exercise clause.
How do I know? Because the same Ginsburg and Sotomayor also dissented in the 2014 Hobby Lobby decision, and they were lauded for it. Hobby Lobby was a victory for that company against the previous administration’s mandate to fund abortifacient drugs under the employer-provided health insurance required by Obamacare. Hobby Lobby objected on religious grounds to paying for drugs popularly (and erroneously) called contraceptives that also acted as abortifacients. The Court, anxious to split hairs and not engage the First Amendment issue head on, eventually decided in Hobby Lobby’s favor under the Religious Freedom Restoration Act. This decision suggests how the free exercise clause should be applied properly in religious freedom cases.
Ginsburg ridiculed the idea that corporations can have religious objections to a general government policy. By implication, she suggested how dubious it would be for a firm to claim their corporate conscience had been violated. This is interesting because people have now long expected corporations to have consciences about all sorts of things: apartheid in South Africa, employment discrimination in Northern Ireland, diamond mining in Africa, and products manufactured in the West Bank. Some insist Hollywood boycott Georgia for restricting abortion. Why, suddenly, could not Hobby Lobby have a conscience about what in their view constituted a religiously abhorrent cooperation with killing?
Opponents of the Hobby Lobby decision generally insist that “laws of general application” should be followed by everyone. By this they mean that a law written to promote a general secular policy (e.g., providing “health care” in the form of abortifacient drugs) and not specifically targeted at a religious group (e.g., Catholics) should be followed, even if that group finds it contrary to their faith. One reason the First Amendment’s provision for free exercise is more anemic than its non-establishment counterpart is the way in which lawyers have devised tests to weigh the constitutionality of laws accused of violating either clause. An “offended observer” (e.g., somebody who doesn’t like to see crosses in public spaces) claiming a violation of “non-establishment” need not necessarily acquiesce in a manifestation of religion in the public square. But a believer who claims a violation of “free exercise” (e.g., by being required to pay for abortifacients) bears an additional burden of proof because he must overcome the justification that the law is of general application, i.e., not specifically targeted at him. A manifestation of religion in public life justifies a 911 call to the secularist fumigators; a public policy that violates religious principles may be allowed to stand as long as it was not intended to be overtly discriminatory (and is the “least intrusive way” to pursue the policy, etc.). Dividing the free exercise clause from the non-establishment clause has disadvantaged religious believers for over half a century and Ginsburg wants to keep it that way.
Ginsburg’s dissent also would disregard claims of religious freedom (and concurrent rights of conscience) if it was proven that they “significantly impinge on the interest of third parties.” Two Amish students not wanting to go to school past eighth grade is one thing, but 25 percent of Americans who are Catholic saying they aren’t going to pay for abortifacients under Obamacare is something else.
If your conscience does not want you to share in the meaning of a religious symbol (e.g., the Peace Cross), Ruth Bader Ginsburg is ready to defend your rights. If your conscience does not want you to fund an action that your conscience deems to be killing, Ruth Bader Ginsburg is ready to tell you to suck it up. She treats your right to be free from religion as practically inviolate; she regards your right to act on your religion to be circumscribed by “laws of general applicability” and tests of significant impingement on third party interests.
While the Court arrived at the right conclusion in the Peace Cross case, the incoherencies and contradictions within First Amendment precedents remain because of Everson and, even more so, McCollum v. Board of Education (1948). Add to this the Court’s reluctance to abandon precedent; however, no matter how twisted (and ad hoc) subsequent decisions are forced to be as a result. Ginsburg is at least consistent in where this line of reasoning leads. This suggests the need, not for reaching that constitutional cul-de-sac, but for recovering the primordial meaning of the First Amendment as protecting religious freedom and conscience, free of judicial accretion.
Editor’s note: Pictured above, Associate Justice Ruth Bader Ginsburg poses for the official photo at the Supreme Court in Washington, D.C., on November 30, 2018. (Photo credit: MANDEL NGAN/AFP/Getty Images)