I almost always enjoy Dahlia Lithwick’s work in Slate. Lithwick, a senior editor at the magazine, offers some of the most insightful and entertaining legal analysis available anywhere. (Apparently, she has several other fans, as well.)
Yesterday, Lithwick set her attention on the most provocative legal controversy in America today — Roy Moore, his religious crusade, and his bold defiance of the law. As much as I enjoy her work, this column was a mixed bag and suffered from several serious flaws.
To be sure, Lithwick is no fan of Moore. She accurately describes the Alabama Supreme Court chief justice as a “demagogue,” who has “made a career of confusing his bench with a pulpit,” and has demonstrated “contempt for the rule of law, the Constitution, and the rest of this nation.” On this, she and I completely agree.
Lithwick, however, addressed broader points dealing with the principle of church-state separation. Here, I’m afraid Lithwick was a little off-base. I don’t want to refute her column point by point, so indulge me for a minute (or two) while I challenge three of her broader messages.
“The Constitution itself codifies two conflicting impulses,” Lithwick explained. “The First Amendment guarantees simultaneously that ‘Congress shall make no law respecting an establishment of religion’ and that Congress won’t ‘prohibit…the free exercise thereof.’ Which one is it? How can Congress avoid promoting religion, while also encouraging its free exercise?”
This is a distinction without a difference. There is no conflict between the Establishment Clause and the Free Exercise Clause, and Lithwick does a disservice by suggesting that the government should somehow try and choose between them. The Establishment Clause essentially requires government neutrality on religion, neither favoring nor deterring matters of faith. The Free Exercise Clause, meanwhile, allows individuals to pursue their religion freely, without state restrictions.
Far from competing with one another, these principles complement each other perfectly. Americans can follow a spiritual path of their own choosing and the government will stay out of it. This is religious liberty in its truest form.
Doesn’t Roy Moore’s free exercise rights allow him to endorse the Decalogue in the lobby of the Alabama Judicial Building? Definitely not. If Moore, as an American, wants to be a fundamentalist Christian, that is his right. If he wants to revere and celebrate the Ten Commandments and encourage others to do the same, that too is perfectly permissible under the law. If he wants to erect monuments to the Commandments in and around his personal property, that’s no one’s business but his own.
But when Moore, acting in his official capacity as a judge, endorses the Commandments in a public building, he’s no longer simply exercising his personal religious rights. At this point, it becomes government endorsement. He is, quite literally, “respecting an establishment of religion.” The state judicial building in Montgomery is not Moore’s property to decorate with religious icons of his choosing.
Lithwick went on to say, “The founders of this country were, for the most part, deeply religious men. Would they, like Moore, object to the ways in which religion has been chased out of the public square?” Later, Lithwick added a similar comment, saying that “most Americans” would probably like to see “vague ‘Judeo-Christian’ theism…in the public square.”
Use of the phrase “religion in the public square” is the most overused — and least descriptive — expression in all dialogue about church-state separation. I’ve been dealing with these issues for years, and I still don’t really understand what the “public square” consists of.
If I were to go for a stroll on sidewalks in many American communities, I can find countless examples of public religiosity. I may pass by a church, synagogue, or temple, or perhaps combinations therein. I can see missionaries from a variety of faiths handing out literature and trying to convince others to think as they do. I can hear passionate speeches from theists on soapboxes in public parks telling anyone who will listen about their religious convictions. I can pass by a newsstand and find not only dozens of religious magazines, but religious issues being profiled in mainstream publications. I can find similar discussions on readily available television stations, radio broadcasts, and websites.
Isn’t this “religion in the public square”? Of course it is. Are these examples of religion in public perfectly legal under the First Amendment? You bet they are, and the folks at Americans United for Separation of Church and State and the ACLU would tell you the same thing.
So, who exactly is Lithwick referring to when she talks about those who have “chased religion out of the public square”? Better yet, with so much religion already in the public square, why do Moore and his supporters believe government-endorsed religion is necessary?
Lastly, Lithwick concludes, “Is there an alternative? Justice Clarence Thomas holds that the state should be ‘neutral’ toward religion and allow people to make free choices. But wouldn’t such a ‘free market’ lead inexorably to Moore’s world — in which the majority decides which religion the state should endorse?”
Here, Lithwick just isn’t making any sense. State neutrality on religion does allow people to make free choices. Lithwich ponders a “free market” where majority rules and minority faiths (and, presumably, non-believers) find their rights undermined. She’s confused. If the government is truly neutral, then everyone can follow their own beliefs without concern for who is in the majority or fear of government interference. She seems unaware of the fact that the second sentence in her paragraph answers the question she poses in the third sentence.
Moore may have gotten away with his crusade in Alabama politically because his faith is the majority faith. But legally and constitutionally, his approach of state-sponsored religion is unacceptable because it breaks with the very principle Lithwick seems unsatisfied by — that of government neutrality. It is this principle which demands that Moore’s monument be moved from the judicial building despite what the majority in Alabama wants.
In other words, thanks to the First Amendment and government neutrality on matters of faith, religious liberty isn’t open to a popularity contest.