Constitution Watch: First Freedom

Nothing the Supreme Court held in its last term—including its ruling on the president’s frenetic maneuver to evade the law—was exceptional constitutionally. But for its new term, which opened October 5, the Court has before it Jackson v. Benson, in which the Court may review a challenge to the Wisconsin Supreme Court’s June 10 decision holding constitutional Milwaukee’s voucher program. The program provides public financial aid to low-income parents who wish to choose religious schools for their children. The claim to such aid is an old one, having first been defended by New York’s Archbishop John Hughes in 1840. Decisions of the Supreme Court between 1971 and 1985 not only voided major aid programs but also stated an extreme general principle of church-state separation in doing so. Applied broadly, this created a regime of secularism for many other areas of public life. Yet Court opinions of the last 12 years have been more reasonable. Five decisions have appeared based upon the view that government may aid individuals exercising a choice to be served by religious institutions in situations in which the individual, not the institution, is the primary beneficiary of that aid and the benefit is religiously “neutral” in character. Jackson allows us to hold hope not only for Milwaukee parents but for voucher programs generally.

At this hour, however, the Supreme Court is not the only forum of struggle on constitutional issues. In Congress such issues are posed in three measures of high significance. The first is the Freedom from Religious Persecution Act. This progressed in the last Congress, winning overwhelming support in the House. It floundered in the Senate. Still being pushed by major religious groups, it aims to penalize persecutions of communities of faith worldwide, first, by calling attention to identified situations of hard-core persecution and, second, by withdrawing non-humanitarian American aid from persecuting countries and restricting trade with them. In April President Clinton attacked the bill at a meeting with 60 Evangelical leaders on the grounds that it would hamstring executive judgments in foreign policy. On May 11 an impassioned letter to the House, signed by a virtual Who’s Who among the nation’s religious spokesmen, praised the proposal’s provision for a “small, distinguished, and independent office” that would have the job of determining “whether and where religious persecution actually occurs.” Noble on paper, the proposal is reminiscent to some of the idealism of Woodrow Wilson’s failed 14 Points for universal justice and peace. (Wilson, it is true, favored lifting all barriers to international trade. The proposed act calls for barriers where morally required.) While the preservation of free trade may or may not promote the common good, the promotion of religious freedom is essential to that end. Secretary of State Madeline Albright, however, has made mention of an aspect of the Freedom from Religious Persecution Act that must be weighed before the bill becomes law. She spoke of our need, in considering it, to “take account of the perspectives and values of others.” She may have referred to the proposal’s mandate that the American government make, in some cases, religious judgments upon countries it does not govern (upon the religious requirements of some Islamic countries to jail civilians for blasphemy, for instance). What must also be dealt with is the proposal’s lack of clarity in some key provisions (the accordion-like powers given to the independent office to determine what constitutes persecution and the power given to the president to act, or not act, as he pleases, to carry out that office’s recommendation). The bill will probably become law, though in a more carefully drawn form.

The other two bills address religious liberty, not in foreign places, but here at home. Their critics ask: “Don’t Americans enjoy religious liberty? Is worship forbidden? Aren’t our churches packed? Must sermons be submitted to state censors?” Supporters of the bills answer “No” to all these questions. They deem them simplistic. They point to the constitutional vacuum left by the Supreme Court in its 1990 Smith decision that gave government a free hand to restrict religious liberty in religiously neutral actions. Supporters of the bill note that government aggressions against religion are all too often “religiously neutral” in form and that vast areas in which government moves—e.g. health, child care, education, taxation, disability—are areas in which religion also moves through its institutions or through its moral claims. So they have turned to the Congress for protection. In 1993 they achieved huge success in the passage of the Religious Freedom Restoration Act and a stunning defeat when the Supreme Court, a year ago, struck down that act, on the ground that only the Court, not Congress, had any business determining constitutional law. So now Congress is again asked to fill the vacuum left by Smith.

One means sought for doing this is the bill introduced by Representative Ernest Istook of Oklahoma. The bill is aimed chiefly at legitimizing prayer in the public schools. Initially winning huge support in the House, it now appears headed for rejection as it is becoming apparent that even if it becomes law, it would provide but a bandaid on the suppurating evils of the public school system. And the Istook bill is now overshadowed by another measure called “The Religious Liberty Protection Act” (RLPA), passed in August by the House Judiciary Committee’s Subcommittee on the Constitution.

On the merits, the RLPA is puzzling. Commendably, it would restore imposing on government the “compelling societal interest—least restrictive means” requirements to justify governmental actions that violate the constitutional right to the free exercise of religion. But that becomes closely akin to the test that, as we have seen, was invalidated by the Supreme Court in 1990. Further, the RLPA would limit protection of religious exercise in programs receiving federal financial assistance, and it oddly singles out land-use regulation as an area for special protection. It is therefore far from being what its title, “Religious Liberty Protection Act,” broadly indicates it to be. Moreover, basing the authority to enact the RLPA on Congress’s power to regulate interstate commerce represents a disservice not only to religion (treating religion as “commerce”) but to the Constitution (a way-out distortion of the Commerce Clause).

RLPA has been pushed intensively by such religious liberty stalwarts as the National Association of Evangelicals, the Association of Christian Schools International, and Christian Legal Society. A “Coalition for the Free Exercise of Religion,” made up of 80 national organizations, embraces the mainline Jewish and Christian bodies (but not Catholic) as well as a host of militantly secularist groups (ACLU, ADA, Americans United for the Separation of Church and State, American Humanist Association). Their presence in the coalition gives us pause. The fact that conservative evangelical groups are also members should not lend the secularists a sort of innocence by association. The signal fact is that there is no common understanding of religion or its freedom in the coalition—as can readily be seen in the constant endeavors of ACLU and other secularists to sterilize public life of religious manifestation and to deny that liberty of liberties: the liberty to be born.

The downside of all of the above is that no sure prospect for the necessary protection of religious liberty shines forth presently either in our courts or in Congress. The upside is that all of these efforts help keep public consciousness alive to the First Amendment’s first freedom.

  • William Bentley Ball

    William Bentley Ball was one of the nation's foremost Catholic constitutional lawyers. He died in 2000.

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