David W. Machacek is resident fellow at the Greenberg Center for the Study of Religion in Public Life and a visiting professor of public policy at Trinity College, both in Hartford, Conn. Along with Phillip E. Hammond and Eric Michael Mazur, he co-authored Religion On Trial: How Supreme Court Trends Threaten Freedom of Conscience in America (Altamira Press, 2004).
The book is highly critical of the church-state views of Supreme Court Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas. Machacek recently discussed his views with Church & State.
Q: Your book, Religion On Trial, says the high court is headed in the wrong direction and that religious liberty is in jeopardy. What’s the basis for your concern?
A: Over the course of the 20th century, religious minorities increasingly sought and found refuge in the courts against laws that restricted their freedom. Under the First Amendment, the Supreme Court found, laws that burdened the free exercise of religion had to be justified by a legitimate and compelling state interest (such as protecting the public safety) that could not be accomplished without burdening the free exercise of religion. In 1990, the Supreme Court reversed course, saying that as long as the law is “facially neutral” towards religion – that is, it doesn’t explicitly target a particular religious group or practice – the state does not have to justify legal burdens on the free exercise of religion.
Q: In the book, you say that Rehnquist, Scalia and Thomas favor a kind of majority rule in religious matters. What’s the evidence for that?
A: What these justices want is greater deference by the court to democratically enacted legislation, generally. But the entire purpose of the Bill of Rights was to put certain fundamental rights beyond the reach of voting majorities. As James Madison had learned from his experience in Virginia, the popular vote is a poor safeguard for religious liberty.
Q: You credit James Madison with being the most influential founder when it comes to religious liberty. What would he think of the Scalia/Rehnquist/Thomas approach to religious liberty?
A: It must be acknowledged that Madison was responding to a very different social and political context than we know today. The federal government now plays a much greater role than it did during his time, and the population of the United States is much more diverse culturally and religiously. One of the problems with the argument that the court should be bound to the “original intent” of the Founders, which these justices fondly invoke, is the idea that the solutions they proposed to the challenges they faced are adequate to resolve the challenges we now face. The revise-ability of our laws – the ability to propose new solutions to new challenges unencumbered by the authority of tradition – is part of the brilliance of the American constitutional system.
We know, however, that Madison consistently argued for the freedom of conscience in its fullest latitude. We know that he hoped that experience would lead Americans toward the realization of a more perfect freedom of conscience; that he celebrated evidence that Americans were moving in this direction and expressed disappointment whenever he saw government meddling in religious affairs.
We don’t have to guess what Madison would think about the Rehnquist/Thomas/Scalia approach to religious liberty because Madison told us himself in a letter to Edward Livingston in 1822: “Every new & successful example therefore of a perfect separation between ecclesiastical and civic matters is of importance…. We are teaching the World the great truth that Governments do better without Kings & Nobles than with them. The merit will be doubled by the other lesson that Religion flourishes in greater purity, without than with the aid of Government.”
That is my favorite Madison line, by the way.
Q: Religious Right leaders say the founders never intended for America to have separation of church and state. Are they right?
A: That’s utter nonsense. Their argument is that the phrase “separation of church and state” never appears in the First Amendment. True enough, but Madison and Jefferson, the two foremost influences on the First Amendment, used the phrase as a convenient way to explain what the religion clauses mean, so the argument comes down to an assertion that the Founders didn’t mean what they said they meant.
The First Amendment protects religious freedom by forbidding religion access to the coercive powers of the state. It’s a simple and elegant contract: We agree not to impose our beliefs on others in order to be free from having others impose their beliefs on us.
Q: President George W. Bush says he wants to put more Scalias and Thomases on the high court. What would be the pragmatic affect on Americans’ lives if he is successful?
A: Obviously, Phillip Hammond, Eric Michael Mazur and I are sufficiently alarmed by that possibility that we were motivated to write Religion on Trial, in which we argue that additional Scalias and Thomases on the court would put the freedom of conscience in jeopardy. I don’t expect the sudden advent of overt religious oppression; I do expect that the court would probably weaken those safety mechanisms that have generally prevented overt religious oppression from occurring in this country and made the United States hospitable to people of so many religious faiths.
The immediate effect on religion would be relatively benign, of course: The court would allow displays of the Ten Commandments on government property, for instance. It is less likely, although not impossible, that the court would reverse course on school prayer and Bible reading as supporters of Scalia-and-Thomas-like jurists hope, because the jurisprudence is pretty well settled. The greatest practical effect is likely to be felt on morally contentious issues such as abortion and homosexuality, areas where the Religious Right would very much like access to the coercive powers of law.
I would urge that Americans should be alarmed at any weakening of the protective barrier against religious oppression, no matter how benign the immediate effects might seem. As Madison pointed out in his famous “Memorial and Remonstrance” against a tax supporting Virginia clergy, “Distant as it may be in its present form from the Inquisition, it differs from it only in degree. The one is the first step, the other the last in the career of intolerance.” Virginians found that argument compelling in the 18th century; I think it’s still compelling today.