Religious Freedom And The Supreme Court

An Interview With Church-State Scholar Ronald B. Flowers

Ronald B. Flowers is John F. Weatherly Emeritus Professor of Religion at Texas Christian University. He taught at the Fort Worth school for 37 years and was chair of the Religion Department for nine years. He is the author of several books on religious liberty law.

Flowers has just finished a new book, with Steven K. Green and Melissa Rogers, entitled Religious Freedom and the Supreme Court (Baylor University Press, 1202 pp., $69.95) Intended primarily as a textbook for college classes, it includes the texts of the high court’s religious liberty decisions, as well as scholarly commentary. (This is a longer version of the interview that appeared in the print edition of Church & State.)

Q: When did you first get interested in the Supreme Court and its stand on church-state issues?

A: I got interested in this subject when I was in graduate school at the School of Religion at the University of Iowa, which, at the time, was the only state university that offered a Ph.D. in religion. Studying religion in a state university context stimulated my interest in the subject.

My field of study for the Ph.D. was American religious history. I took a course in that subject from Dr. Sidney E. Mead. He had gotten the idea from reading an article that a good way to teach American religious history was to have students read church-state decisions of the Supreme Court. I had never read a Court opinion. I had the stereotypical view that they would read like Aunt Minnie’s last will and testament or like an insurance policy. But, when I read three or four cases under his guidance, I found that they read like real English and were quite interesting. I have been reading them ever since.

Q: Which decision would you classify as the single most important church-state decision (and why)?

A: Employment Division of Oregon v. Smith 494 U.S. 872 (1990). Smith is so important because it is so terrible. In Sherbert v. Verner 374 U.S. 398 (1963) the Court had formulated the “compelling state interest” test for interpreting Free Exercise Clause cases. That meant that before the state could interfere with religious activity it had to show a compelling interest in public welfare and safety. The state had a high bar to hurdle before it could declare any religious activity illegal and prohibit that activity. Smith discarded the compelling state interest test and replaced it with a “law of general applicability” test. Now the state had to hurdle a much lower barrier before it could prohibit religious behavior. That decision enormously advanced the power of the state in church-state relations and is still the law of the land.

Q: Do you think our Founding Fathers would agree with the way in which the Supreme Court has interpreted the First Amendment’s religious liberty provisions? What have the justices gotten right?

A: The “original intent” debate is a complicated one, given that our records of the rationales the Founders had in writing the First Amendment’s Religion Clauses are sketchy (although not nonexistent). I believe the Founders would be generally pleased with the Court’s church-state opinions until approximately the mid-1980s. From then until now they would be increasingly displeased. Since that time the Court has become increasingly “accommodationist” or “nonpreferentialist” on the Establishment Clause side and followers of the Smith doctrine on the Free Exercise Clause side. That is, for the past two decades the Court has allowed governments to become ever more intrusive into religious affairs.

What have the justices gotten right? They had it right in their decisions, in both Establishment and Free Exercise matters, in their opinions prior to the mid-1980s, when they were more separationist in their approach.

Q: What have the justices gotten wrong?

A: On the Establishment Clause side, they have argued that the government may aid religion so long as the aid is given in an evenhanded, nondiscriminatory way. (Even the accommodationist justices believe the Establishment Clause forbids government aid to a particular religious group, what they call a “national church.” The reason this position is called “nonpreferentialism” is because they say government should not prefer one religion over another.) But to do that is to invite government into religion in what can be quite detrimental ways. Also, given the enormous diversity of religion in the United States today, such nonpreferential aid would have an effect to which many on the Religious Right would object. (An example is Pat Robertson’s original objection to the distribution of money to groups such as Scientology or Muslims by George W. Bush’s “faith-based” initiative program. Apparently Robertson’s objection dissipated when his organization got a large amount of money.)

On the Free Exercise side, the Smith case has made it much more possible for governments to interfere with the religious behavior of religious individuals or groups.

Q: The Religious Right claims the Supreme Court “invented” the separation of church and state in its 1947 Everson v. Board of Education decision. What is the best way to respond to that?

A: That accusation is made against the backdrop of the “accommodationist” and “nonpreferentialist” views recently adopted by a majority of the Court’s justices – but first articulated in Justice Rehnquist’s dissenting opinion in Wallace v. Jaffree 472 U.S. 38 (1985). There is no doubt that Everson contains an enormously “separationist” paragraph (see 330 U.S. 1 at 15-16). But it did not invent separationism. One can see this by reading the language of the Founders as they were debating what were to become the Religion Clauses of the First Amendment. Although we do not have language that would tell us their rationales in deciding the way they did, we do have the language of the various proposals made by various members. Ten proposals were made – five in the House of Representatives and five by the Senate. Of those ten, five contained clearly nonpreferentialist language. They were all rejected and, finally, on the eleventh try, Congress adopted the language currently in the First Amendment. If the Founders had wanted a nonpreferentialist understanding of the relation between government and religion, they had plenty of opportunity to adopt such language. But they did not.

There is no doubt that the Court has interpreted the Establishment Clause in a separationist way. But it has also interpreted that clause in a nonpreferentialist way. One is no more an invention of the Court than the other.

Also, Everson is a weird case. Although it has that separationist paragraph (the philosophy of which all nine justices agreed, although the decision was 5-4), the decision of the case was decidedly accommodationist, much in line with what the Religious Right now calls for. They need to tread lightly in criticizing Everson, for it agrees with their position as much as it opposes it.

Q: The Religious Right claims that our public schools are “godless” or hostile to religion in schools. What has the court really said about prayer and worship in public schools?

A: Although the Court has declared itself on this subject in a number of cases, I believe that Abington Township School District v. Schempp 374 U.S. 203 (1963) is most important of all and can be used to summarize the Court’s decisions on the subject.

The Court has said that state-required or state-mandated prayer in the public schools is a violation of the Establishment Clause. But, in Schempp, it went out of its way to say that the teaching of religion, so long as it is done in an objective, nonproselytizing way, is not only constitutionally permissible, but a good idea. The Court recognized that an education would not be complete without recognizing the role religion has played in people’s lives, for good or ill, and that the public schools would be negligent if they did not include it in their academic instruction.

The Court did not explicitly say, but certainly implied, that prayer by individual students, so long as it was completely voluntary, i.e., not encouraged or guided by public school personnel, and so long as it was not disruptive of the educational process, was all right. Students have the right to pray in public schools, either individually or in groups, either silently or aloud, so long as no student is coerced to pray or forbidden to pray by school authorities, and so long as it is not disruptive of education.

Although cases subsequent to Schempp have dealt with different prayer circumstances, I think that what I have said here is a good summary of their general holdings. It is just not true that public schools are “religion-free zones,” although it is equally true that not “anything goes” in this area.

Putting on my “theological hat” – I am an ordained minister in the Christian Church (Disciples of Christ)) – I must say that I am amazed that the leaders of the Religious Right (and many other non-conservative religious leaders) and Christians generally clamor for prayer in the public schools. For the public schools to have prayer in the way these people seem to want, it would mean that the government was doing one of the primary functions of the churches. Why cannot they see that the more the government does the work of the churches, the more the churches will be marginalized? The more the government does the work of the churches, in prayer in public places and in subsidizing faith-based charities, the less the churches will be the vibrant, important institutions in society that I assume all Christians want them to be.

Q. It is distressing that so many Americans misunderstand the Court’s church-state rulings and think the justices are hostile to Christianity. What can we do about that?

A: Education! This is why organizations like Americans United and the Baptist Joint Committee for Religious Liberty (these two are the major players on the separationist side) are so important. It is imperative that such organizations continue to try to help people understand what is going on in Court decisions and that they, even in their more separationist decisions, are not hostile to religion. Also academics like me need to write more for general audiences (which I tried to do in my book That Godless Court?: Supreme Court Decisions on Church-State Relationships). It is an uphill battle, given the conservative nature of the country and the well-funded Religious Right print and electronic outlets. We need to help conservatives realize that the separationist position is not liberal, but actually very conservative. It attempts to conserve the original meaning of the First Amendment, which, so far as we can tell, intended the strict separation of church and state (which I tried to address above).

Q. Justice David Souter has just announced his retirement from the Court. How would you assess his record?

A: I am really sorry to see Justice Souter go. He has been a stalwart defender of the separationist position. His opinions have been elegant and articulate statements of the separationist position, both its historic development and its current application. The on-going debate he has had with Justice Clarence Thomas, in various opinions they have written, over the interpretation of the Establishment Clause has been brilliant. In my judgment, Justice Souter has articulated the more accurate understanding of the matter. I believe he will be sorely missed by the separationists of the country, for he has been a willing and articulate line of defense against the accommodationist onslaught. It is to be hoped that his replacement will be equally committed to the separationist position and as courageous and elegant in her/his defense of it as Justice Souter has been.

Q: Who is your favorite Supreme Court justice (on church-state issues) and why?

A: This is like asking a parent which child he/she loves the most. One of my favorites is Justice Robert Jackson because of the elegance of his writing and because I think he was right on the issues. I believe his majority opinion in West Virginia Board of Education v. Barnette 319 U.S. 624 (1943) is both a literary and jurisprudential masterpiece. As I have indicated, Justice Souter is a favorite because he is an indefatigable defender of the broad interpretation of the Establishment Clause. But, I suppose my favorite of all is Justice Hugo Black. He wrote many of the precedent-setting Establishment Clause cases. I guess the very reason that Religious Right folks hate him so much is the reason he is my favorite.

Q: Do you have a candidate for worst justice?

A: Justice Clarence Thomas. Of all the justices who have written on church-state matters, it seems to me that Justice Thomas has been most dedicated and, it is to be admitted, most articulate, in his attempt to destroy the separationist understanding of things. Of all the justices who held/hold this position; Rehnquist, Scalia, Roberts, Alito, O’Connor (kind of), Kennedy (sometimes), Justice Thomas is Chief Accommodationist. Not only has he aggressively carried the flag for nonpreferentialism, but he also argues that the Establishment Clause should not apply to state law, that the states should be free to do as they want in reference to Establishment matters. (No other justice has joined him in that.) As I mentioned earlier, the intellectual jousting through opinion writing between Justice Thomas and Justice Souter has been fascinating and stimulating, although I believe that Justice Souter has won the battle. Of course, many would disagree with me and argue that Justice Thomas has won the battle and, far from being the “worst justice,” is the best.

Q: Conservative justices have knocked quite a few holes in the wall of separation between church and state. Are you optimistic about the prospects of religious liberty in the future?

A: I gave up, a long time ago, trying to predict what the Court would do. Given that President Obama seems to have a somewhat different philosophy about the Supreme Court than his immediate predecessors, and apparently will have the opportunity to appoint several justices, I am a bit optimistic for the future of the interpretation of the Religion Clauses. Two things temper my optimism. One is that sometimes justices do not turn out to be what the presidents who appointed them expected them to be. Justice Souter is a prime example of that. The other cause for caution is the Court’s principle of stare decisis, i.e., precedent. The Court is generally reluctant to overturn its decisions, although it has happened. So the addition of justices by folk who may have judicial philosophies different from current justices does not automatically mean that there will be a change in church-state jurisprudence. But, one can hope.

Q: Is there anything else you would like to add?

A: In the majority opinion of Schempp, Justice Tom Clark wrote; “While the Free Exercise Clause clearly prohibits the use of state action to deny the rights to free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs” 374 U.S. 203 at 226.

It seems to me that the Religious Right folks and the accommodationists of the world do not understand this. Those people are not willing for the government to stand aside and let people practice (or not practice) religion freely. It seems to me that that is the real meaning of the Religion Clauses. The problems we are having today is that the right wants to “use the machinery of the State to” help them (and everyone else) practice their religion.

The Religious Right is afraid of freedom, afraid to let people practice religion as they will. They believe it is necessary to pass laws to allow the state to encourage religious exercise or to financially support religious programs. Justice Clark had it right in the quote above. Let us hope that eventually the American people, Supreme Court justices included, will see what is going on and will see the wisdom of the Founders, namely, that the government should get out of the way and allow people to believe and practice religion truly freely.