A History Lesson for the Court


Washington. -- Much of the analysis of the just-concluded Supreme Court term claims the court is moving rightward. Maybe. But one term does not make a trend. Especially in matters relating to the religious free-exercise clause of the First Amendment, the court has moved hardly at all from a position that has effectively imposed the religion of secularism on this country.

In one of its final decisions before adjourning for the summer, the court, by a 5-4 vote, narrowly allowed University of Virginia student activity fees to be spent on a Christian publication. At issue was whether the Christian publication should be singled out for special discrimination, since such fees were already going to Jewish and Muslim publications and to many other works and causes, religious and non-religious.

The court was not asked to rule on the "free exercise" but on the "free speech" clause. Attorneys for the Christian students wisely chose speech, rather than religion, because of the modern court's fear of God and its dim view of any "entanglement" by "the state" in anything that could lead to worshiping an authority higher than government. While this was a tactical plus and wins a short-term victory for the Christian students, it does little to advance the freedom of similarly minded persons in a land they once thought looked more favorably on their faith.

In deciding for the student publication, the court applied the "public forum" test. It found that the University of Virginia denied funding because of the group's viewpoint. Justice Anthony Kennedy wrote, "For the university, by regulation, to cast disapproval on particular viewpoints of its students risks the suppression of free speech and creative inquiry in one of the vital centers for the nation's intellectual life, its college and university campuses."

Justice Clarence Thomas wrote a concurring opinion in which he expressed his disagreement with the historical analysis adopted by the four dissenting justices. Indeed, the Supreme Court's hostility to religious expression in a public setting began in 1947 when, for the first time, as scholar Michael Malbin writes, "It ruled that the establishment clause requires Congress and the states to maintain strict neutrality between religion and irreligion in any laws that might conceivably aid private religious organizations. . . . As the court has espoused its doctrines, it has relied on an incredibly flawed reading of the intentions of the authors of the First Amendment."

While it is always dangerous to "proof text" either the Bible or the Founders, the Founders on numerous occasions made clear their attitude toward religion and religious expression and their fear that the courts might misunderstand their intentions.

In 1787, the year the Constitution was written and approved, Congress also passed the Northwest Ordinance, outlawing slavery in the Northwest Territory. The members also set out the basic rights of citizens in language similar to the Bill of Rights. In Article 3 of the Northwest Ordinance, they stressed their view of the place of religion: "Religion, morality and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education, shall forever be encouraged."

George Washington re-emphasized such principles in his Farewell Address: "Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. . . ."

Benjamin Franklin set down five points he believed were common to all religions and thus should be taught in schools: (1) recognition and worship of a Creator who made all things; (2) that the Creator has revealed a moral code of behavior for happy living that distinguishes right from wrong; (3) that the Creator holds mankind responsible for the way they treat each other; (4) that all mankind live beyond this life; (5) that in the next life individuals are judged for their conduct in this one.

Samuel Adams said these basic beliefs, which constitute "the religion of America, [are] the religion of all mankind." John Adams called them the "general principles" on which the American civilization has been founded. Thomas Jefferson called these tenets the principles "in which God has united us all."

It's important to understand this history that, as Justice Thomas noted, the modern court does not. That is why a historically informed court is vital. That is why the next election is critical to restoring the relationship between church and state intended by the Founders to promote our general welfare.

Cal Thomas is a syndicated columnist.

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