Civic Religion – Again

February 25, 2004 | 13 comments
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For those not aware of the fact, the Supreme Court handed down its decision in Locke v. Davey a few hours ago, holding that it did not violate the Free Exercise Clause for the State of Washington to exempt divinity degree applicants from an otherwise available scholarship fund. I am not going to comment here on the opinion itself, but there was a line from Justice Scalia’s dissent that brought to mind an earlier discussion here at T&S on civic religion.

For those who missed the earlier fireworks, I suggested that much of our public, political religiousity represented a desicated and potentially blasphemous form of religion. Russell, Adam, and others vehemently disagreed. Given that discussion, I thought that this passage from the Scalia dissent was interesting:

    Most citizens of this country indentify themselves as professing some religous belief, but the State’s policy poses no obstacle to practitioners of only a tepid, civic version of faith. Those the statutory exclusion actually affects — those whos belief in their religion is so strong that they dedicate their study and their lives to its ministry — are a far narrower set. One need not delve too far into modern popular culture to perceive a trendy disdain for deep religious conviction.

Locke v. Davis, 540 U.S. ___ (2004) (Scalia J. dissenting), slip op. at 9.

Scalia also notes recent attempts in France to ban religious attire in schools. I can only assume that he has been reading T&S.

13 Responses to Civic Religion – Again

  1. lyle on February 25, 2004 at 1:21 pm

    Friends: Please write to your senator/congressman today in support of this much
    needed reform bill.

    Proposed Bill

    H.B./S.B. 101

    Text: No federal student aid money shall be used to fund students who are
    majoring or getting a graduate degree in the fields of economics, politics, public
    policy or law.

    Constitutional Analysis: Following the Supreme Court’s 7-2 analysis in Locke v.
    Davey, 02-1315, this bill should pass constitutional muster. Chief Justice
    Rehnquist himself wrote for the majority that “it does not require students to
    choose between their [insert disfavored form of education/political belief, etc
    here] religious beliefs and receiving a government benefit. The state has merely
    chosen not to fund a distinct category of instruction.” Since the government will
    only ban economics, politics, public policy and the law as subjects that can be
    funded…defunding these “distinct” categories of instruction pass constitutional
    muster. After all, we already have too many politicians and lawyers and
    economists. Nor do we need competition. They are just a sap on the economy and
    studies show that if we get rid of these professions, then the market and the
    economy will benefit. Since we have power under the Interstate Commerce Act to
    regulate the economy, and since we have a rational, indeed a compelling interest,
    i.e. a better economy, to do this…it is constitutional.

  2. lyle on February 25, 2004 at 1:25 pm

    Maybe ’tis time for a 2nd Constitutional amendment, besides the marriage amendment, so that under the Amar theory of last in time constitutional interpretation, freedom of religous free expercise is increased and church-state barriers are decreased so that both reflect the balance the Founding Fathers, and our Heavenly Father, intended.

    ok, now I’ll rant:

    What gives government the right to decrease and take away the agency of individual students based on what they want to study? This sounds alot more like censorship to me than a potential
    theologically influenced/controlled government.

    WHY DOES THE GOVERNMENT HAVE TO DISCRIMINATE AGAINST RELIGIOUS INDIVIDUALS? Why does the government believe that anything/everything it does somehow creates an impermissible church-state
    relationship? Until tithes can be taken out of your paycheck…I’m not to stressed about such, whether living in a majority or minority Mormon
    populated state.

  3. Adam Greenwood on February 25, 2004 at 1:57 pm

    Agreed, Lyle, but you have to remember that for some people religion and active religious belief is extremely distasteful. They probably feel about seminary scholarships the way we would about porn vouchers.

  4. lyle on February 25, 2004 at 1:58 pm

    Adam…good point. Maybe that is why taxpayers are upset when schools allow the Vagina Monologues and other porn on campus. I mean, you can take porn classes and learn all about this art form at state schools.

  5. Chris R on February 25, 2004 at 3:20 pm

    Civic morals and traditions have changed over the course of my life. That statement, I believe is close to indisputable. The question is what to do about it and what agency, what institution should take the lead in either remedying or adapting to changing circumstances.

    Our country had a dual founding. On one hand, America is a promised land. The Nephites recognized this, as did the Puritans. John Winthrup stated that America was a city on a hill and all eyes would look up to us. On the other hand, America is a land of liberty. James Madison fought for this liberty, and especially the freedom of conscience. The government would not establish, or lend overt support (such as the imposition religious taxes) to a particular denomination.

    Thus, America (and Americans) values morals and virtue, but do not want to be told how to think.

    With the onset of the industrial revolution, the foundation of the country, which Jefferson believed rested on the small farmers, transferred to the modern and ever changing cities. Families grew apart from each other and signalling the beginning of an era where values were not directly transmitted from parent to child.

    Education was important to a growing nation, both to adapt to a changing nation, but to reinforce “traditional” virtue. However, as America grew, so did the number of citizens that brought with them values and traditions that conflicted with “American” society. Americans reacted to these new comers with nativist political parties and restrictive immigration laws.

    Today, these dynamics still exist. We want a moral and virtuous citizenry, and as members of the Church, we welcome a bigger public dialogue about religion’s place in society. However, changes in the dynamics of society have raced far beyond what we could comprehend 50, or even 10 years ago.

    Was there a “golden age” of earthly society? I doubt that one has ever really existed. If there was, would it ever be feasible to return?

    So, while I support and am thankful for the missionaries who work to spread the gospel, in the joyous hope for a return to a perfect society, in this rhelm, technology and modernity have combined in challenging us to gain a better appreciation and understanding of the truth.

    It is too easy to point to the Vagina Monologues, SSM, R-rated movies, or the growth of television entertainment as the reasons why our society has fallen apart. In some ways they are. However, the larger question that perplexes me in this discussion of civic religion, is who will draw that line between what is good and uplifting and what is harmful. Would we be destined to return to the words of Justice Stewart “I know it when I see it?”

  6. Dave on February 25, 2004 at 4:20 pm

    Nate,

    I think the “tepid, civic version of faith” phrase is kind of a throwaway line. I don’t think Justice Scalia is really dividing believers into two camps, those who take religion seriously (dedicating their lives to the study of theology and the work of the ministry) and those who don’t (the tepid civics).

    On the other hand, he makes the very nice point that the Washington law discriminates not against religion in general, but specifically against those few who take religion seriously enough to major in theology. That distinction makes the facial discrimination argument more compelling, I think.

  7. Melissa on February 25, 2004 at 6:58 pm

    The Supreme Court has been notably inconsistent in its interpretation of both the Establishment Clause and the Free Exercise Clause of the First Amendment.

    Since the Locke v. Davey (ironic that it is “Locke” here since John Locke’s essay on toleration seems related here) case regards the Free Exercise clause I will note some of the most obvious examples of contradiction in its interpretation.

    1. Sherbert v. Verner (1963)
    A member of the Seventh Day Adventist Church was fired because she refused to work on Saturday (her Sabbath). She filed for unemployment but her claim was denied. The Supreme Court ruled 7-2 in the woman’s favor to refuse work on her Sabbath without relinquishing her right to unemployment.

    2. Wisconsin v. Yoder (1972)
    Three Amish families sued the State of Wisconsin over its requirement that children be enrolled in school until age 16. The parents refused to comply and were convicted of violating the law.
    The Supreme Court agreed by a vote of 61/2 to 1/2 (whatever this means?) that the law violated the families’ rights to free exercise.

    So far, so good. Religion is being protected. Locke smiles.

    3. Goldman v. Weinberger (1986)
    Goldman, an officer in the U.S. Air Force, and an orthodox Jew and ordained rabbi, was warned that he would face disciplinary action if he was caught wearing his yarmulke. In a 5-4 vote the Supreme Court upheld the military provision saying that “deference should be given to the professional judgment of military authorities. Individuals are to subordinate their own desires to the needs of the service.”(What—religious obligation is a personal “desire”?!)

    This was the first sign that something had gone terribly wrong. Locke is rolling in his grave.

    4. Employment Division, Department of Human Resources of Oregon v. Smith (1990)

    Two native Americans were fired from their jobs because they took peyote for sacramental purposes. The were denied unemployment compensation on the grounds that their dismissal was due to “misconduct” The Supreme Court upheld Oregon law by a vote 6-3.

    This case led to the Religious Freedom Restoration Act

    5. Church of Lukumi Babalu Aye v. City of Hialeah (1993)

    This Florida-based church practices ritual sacrifice of animals at birth, marriage and death rites. As a response the city of Hialeah passed ordinances prohibiting animal sacrifice. The Church claimed that this violated their First Amendment rights.
    The Supreme Court unanimously invalidated the city ordinances.

    6. Roseberger v. Rector and Visitors of the University of Virginia (1995)

    UVA denied money to “Wide Awake Publications” because it was a Christian-oriented magazine. The organization claimed that its free speech rights were being violated. In a 5-4 decision the Court ruled that UVA was wrong to deny funds to Wide Awake Productions.

    And now today with Locke v. Davey.

    Contradiction and confusion seem to abound. Perhaps there is only ostensible contradiction because I am confused. Will one of the lawyers among us please explain what’s up?

  8. Greg Call on February 25, 2004 at 7:08 pm

    As an aside, I just attended a lecture for lawyers on recent S.Ct. cases. The speaker discussed Locke v Davey, saying that the dissent (Scalia and Thomas) “would appear to be very comfortable living in a theocracy.” Everyone chuckled in agreement.

  9. lyle on February 25, 2004 at 10:33 pm

    Melissa:

    I’m not a lawyer, so I’ll leave the explanation to Nate. But if you want…I’ll be glad to give you a copy of a paper that I was co-writing with Nate that goes into this…somewhat.

    In short:
    1. The Religious Freedom Restoration Act was struck down as applied to the States in Boerne.
    2. The RIULPA was passed to restore the RFRA, but only as applying to land use and prisons.
    3. The RIULPA may or may not be ruled unconstitutional.
    4. The Supreme Court changes its jurisprudence each time it gets a few new members. There is no consistency…only complete contradiction, which obviates the confusion, according to a 5-4 vote.

  10. Nate Oman on February 26, 2004 at 11:33 am

    Melissa: Locke v. Davis did not hold that the Establishment Clause REQUIRED that theology students be denied scholarships. (I understand why you are touchy on this ;->) Rather, it held that if a State CHOSE to deny the benefits it did not violate the Free Exercise Clause.

    The Court has not been exceptionally consistent with its interpretation of the religion clauses. However, I think that there has been a dicernable movement in the jurisprudence. Sherbert represents an attempt to understand Free Exercise in terms of liberty. You look at whether the state has burdened religious exercise and then make it justify the burden. You can think of Yoder as an application of this principle. Smith represents an attempt to understand Free Exercise in terms of non-discrimination, ie burdening religion is fine, but singling it out is a no-no. Church of Lukumi Babalu Aye v. City of Hialeah was simply an application of the Smith non-discrimination framework. Goldman can be thought of in two ways. First, it involved the military and the general default position is for the courts to give the military very broad leeway. (You could think of this as a justified burden under the Yoder framework, with virtually all burdens imposed by the military being justified.) Alternatively, you can think of it as a transitional case between Sherbert and Smith.

    Rosenberger was largely a Free Speech case and secondarily an Establishment Clause case. The Court essentially said that if the State is going to provide money for people to speak on any topic that they wish, it cannot then single out particular view points and refuse to fund them. Secondarily, it held that if the state is disbursing funds in a neutral way, the fact that some of those funds go to religious organizations does not violate the Establishment Clause. Hence it did not raise quite the same issue as Locke v. Davey.

    The really hard thing to understand is why Locke v. Davey wasn’t an easy case under Babalu Aye v. City of Hialeah. What you had was a law that singled out religion for special disfavor. Rehnquist addressed this issue in his opinion by stating that education for the ministry was not fungible with education for other things, and therefore by refusing to fund religious education under a program that funded other kinds of education, the state was not really singling out religion at all. This is pure ipse dixit, in my opinion, and I don’t think that it really holds up. The unstated — but I think real — reasons for distinguishing Babalu Aye v. City of Hialeah have to do with state control over their own funding. I think that Rehnquist, O’Connor, and Kennedy saw this as a case of the state making a discretionary decision about its own budget priorities and its own way of seperating church and state. Since these justices really like states and think that they ought to be able to have more room to run themselves without federal interference, I think that is why they voted with Stevens, Ginsburg, and Breyer (who in their heart of hearts believe, I think, that non-discriminatory funding of any kind of religion DOES violate the Establishment Clause, even though there have been cases going the other way since the 1950s).

  11. Melissa on February 26, 2004 at 12:23 pm

    Nate,

    Thanks for your thoughtful explanation. I wish that it cleared things up for me. While I realize that the decision doesn’t REQUIRE theology students to be denied scholarships, this decisions allows other states to follow the 37 states that already have this policy.

    This is indirectly related to a larger issue that concerns me theoretically and on a personal, practical level. What is the future of the study of religion? Modern secular universities are in a bit of a crisis with what to do with departments of Religion. What is the study of religion exactly? This is a live question for universities that don’t house div. schools or seminaries. They certainly don’t want theologians there, but even some kinds of philosophers of religion are highly suspect. What is it that scholars of religion do? Some argue that we are doing/should be doing sociology. Some scholars of religion do comparatative religions (although they are a dying breed). Others are historians and linguists. More and more the idea of being a normative ethicist as a scholar of religion is quite preposterous.

    Long story short: In my opinion what is happening in the courts on these issues has long-range influence on the future of the study of religion.

    More later…

  12. Melissa on February 26, 2004 at 12:30 pm

    Whoops—should read “comparative religions” not “comparatative religions”
    (Twas brillig, and the slithy toves Did gyre and gimble in the wabe; All mimsey were the borogroves, And the mome raths out grabe–I love nonsense don’t you :)

  13. Nate Oman on February 26, 2004 at 12:32 pm

    Melissa: My comments were not meant to clear things up. I think religion clause jurisprudence is a mess. I think that Rehnquist’s reasoning in Locke v. Davey is unpersuastive. However, I think that there is more (perhaps not much) coherence to the Court’s decisions that most people acknowledge.

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