Secular Sabotage
Page 13
During the 1920s, Black was a member of the Ku Klux Klan in Birmingham, Alabama. Unlike those Klansmen who primarily hated African Americans, Black’s hatred was directed toward Catholics. In his first Alabama Senate race, his campaign manager bragged that “Hugo could make the best anti-Catholic speech you ever heard.” No wonder he was active in drumming up anti-Catholic sentiment against Al Smith when the Catholic New Yorker ran for president in 1928. 4 Even Black’s son admits to his bigotry: “The Ku Klux Klan and Daddy, so far as I can tell, only had one thing in common. He suspected the Catholic Church. He used to read all of Paul Blanshard’s books exposing abuse in the Catholic Church.” 5 The “abuse” he was referring to was the tax-exempt status of the Catholic Church—the same legally granted right exercised by Protestant churches. And like the notorious anti-Catholic bigot Blanshard, Hugo Black was obsessed with the alleged power of the pope to affect public policy decisions in the United States.
Black’s influence on the Everson decision, and Blanshard’s influence on him, were rendered at the same time that anti-Catholicism was considered sport. “In the late 1940s—when the U.S. Supreme Court would eventually establish separation as a First Amendment freedom,” writes Hamburger, “many Protestants were participating in yet another surge of anti-Catholicism.” 6 Indeed, it was a time when Blanshard’s hate-filled book American Freedom and Catholic Power became a best seller; it went through six printings and sold 250,000 copies.
Blanshard’s book was actually a series of articles he wrote for the Nation, a left-wing magazine that was as anti-American as it was anti-Catholic (it still is). In the book, he trotted out the old canard about “dual loyalties,” i.e., unsubstantiated charges that American Catholics owed their primary loyalty to the pope. What made Blanshard’s work so different from the nativistic publications of the nineteenth century was its polished appearance: it was anti-Catholicism made respectable for the literati.
John Dewey loved Blanshard’s work—it didn’t make him feel like a bigot. As Hamburger says, “Blanshard gave old fears a thoroughly modern cast by exploring the growing worries of political liberals that Catholicism impeded modern social policy.” 7 Indeed, he told the public about the “Catholic Plan for America,” a scheme that included “seizing the government, repealing the First Amendment, outlawing divorce and making the pope the president’s official superior.” 8 Only left-wing intellectuals and the institutionalized have an imagination so fertile as to believe such rubbish.
Once Black prevailed in his “wall of separation” opinion, it led the courts to become increasingly hostile to religious liberty. This hostility was given a new shot in the arm in the high court’s 1971 Lemon v. Kurtzman ruling. This decision held that for a statute governing religious liberty to pass constitutional muster, it must have a secular purpose, must not advance or inhibit religion, and must not foster “excessive government entanglement with religion.” As Robert Bork sees it, “So few statutes or governmental practices that brush anywhere near religion can pass all of those tests that, were they uniformly applied, they would erase all traces of religion in governmental affairs.” Bork makes the point that the only reason this hasn’t happened is because “there are too many entrenched traditions around for Lemon to be applied consistently.” 9
Like its predecessor Everson, the Lemon decision was rooted in bigotry. As Notre Dame’s John McGreevey notes, “Justice William O. Douglas broke new ground in his concurring opinion with a favorable citation to a 1962 anti-Catholic tract, Loraine Boettner’s Roman Catholicism”; the book made the familiar argument that Catholic kids were so “indoctrinated” that they could not think independently. 10
What made the Lemon ruling so invidious was what happened three years earlier. In Flast v. Cohen, the high court made an exception to orthodox jurisprudence regarding “standing.” This doctrine maintains that before someone can sue he must show how he was directly burdened. The exception made by the Supreme Court applied only to so-called establishment cases: in these instances just being a taxpayer was now declared sufficient grounds to sue. The result has been destructive to religious liberty. Every provision in the Constitution, as Bork has written, “is immune from taxpayer or citizen enforcement—except one. Only under the establishment clause is an ideological interest in expunging religion sufficient to confer standing.” 11 So when the Lemon decision was made, it was a home run for those out to scrub society free from religious expression.
Lemon made it exceedingly difficult for cases involving the public expression of religion to pass constitutional muster. In the wake of raising the bar so high, towns were told they could not have a nativity scene displayed on public property without a reindeer. Similarly, the parents of children who had been receiving remedial education from public school teachers in a parochial school—for two decades without a single complaint—were suddenly informed that this practice violated the Constitution. Even candy canes with religious messages had to be confiscated lest some secular saboteur object.
To make matters worse, not only have the courts chopped the religious liberty clause in two, assigning a subordinate position to the free exercise provision, they have assigned a subordinate position to religious speech vis-à-vis secular speech. For example, the courts typically grant constitutional protection to obscene speech—including obscenities that target religion—but they quickly become censorial when it comes to religious speech. So absurd has this condition become that the student who spews vulgarities in a high school commencement address has a much better chance of proceeding with impunity than the student who invokes the name of Jesus. Indeed, a student who curses Jesus has a better chance of escaping the wrath of school officials than the student who quotes Jesus.
When secularists find that history gives little or no support to their agenda, they do not seek to ignore it as much as they attempt to reconstruct it. Few are better at this game than Susan Jacoby, author of Freethinkers: A History of American Secularism. Influenced by her hero, the nineteenth-century agnostic Robert Ingersoll, Jacoby would have us believe that the Founders were more interested in separation of church and state than they were in religious liberty. In making her case, she entertains the fiction (one that is now taken as truth by the nation’s most influential constitutional law professors) that there are two clauses in the First Amendment: a religious liberty clause and its alleged opposite, the establishment clause.
John Noonan is one constitutional scholar who hasn’t accepted this nonsense. His dissection of the First Amendment is impeccable: “There are no clauses in the constitutional provision. Clauses have a subject and a predicate. This provision has a single subject, a single verb, and two prepositional phrases.” 12 Therefore, no calculated disharmony between religious liberty and the establishment of religion was ever contemplated. Regarding the establishment provision, we know from the author of the First Amendment, James Madison, that it was his intent to prohibit the Congress from establishing a national church and to prohibit the federal government from showing favoritism of one religion over another; what the states decided was their business. Furthermore, the reference to the “free exercise” of religion was clearly meant by Madison to insulate religion from the state. Neither he nor any of the Founders sought to insulate society from religion; just the opposite.
University of South Dakota law professor Patrick M. Garry sees through this muddle. Under the current view, Garry instructs, “the exercise and establishment clauses [are] seen as being ‘at war with each other,’ with the exercise clause conferring benefits on religion and the establishment clause imposing burdens.” 13 He wryly notes that “It was as if the Framers had intended two clauses to cancel each other out, producing a kind of zero-sum result with regard to religion.” He adds that “such an approach makes no textual sense, because the exercise clause is essentially being nullified by the establishment clause.” 14 In other words, such reasoning has resulted in a form of judicial jujitsu. 15
Garry is correct to say that “there
is no constitutional basis for interpreting the establishment clause as contradictory to the exercise clause,” and that is why he sees them forming “a single, unified religion clause that seeks exclusively to protect religious liberty.” He aptly quotes Michael Paulson to the effect that the establishment clause “prohibits the use of the coercive power of the state to prescribe religious exercise, while the exercise clause prohibits the use of government compulsion to proscribe religious exercise.” 16
“Textually,” says Patrick Garry, “the Constitution provides greater protection for religious practices than for any secular-belief-related activities.” 17 In fact, he contends, not only is religious speech afforded protection via the free exercise provision, it receives further immunity via the free speech clause of the First Amendment. It is precisely because Garry is so right about this that it is positively maddening to read court decisions that allow the establishment provision to trump religious speech. Such revisionism has created more than a legal nightmare. Its tentacles stretch to the nucleus of our culture: the public expression of religion has atrophied under the weight of judicial activism.
Activists Declare War on Religion
When the Constitution was written, crèches were permitted on public property and blasphemy was punishable by death. Now we’ve banned the crèches and provided public funding for blasphemy (e.g., the National Endowment for the Arts supported Serrano’s Piss Christ). This inversion has much to do with a profound shift in the tastes of the cultural elite and the tenor of contemporary legal arguments. No organization has had more to do with facilitating this change than the American Civil Liberties Union.
Founded in 1920, the ACLU has from the very beginning been hostile to religious expression. Indeed, in its first annual report, it listed its defense of every First Amendment freedom—speech, press, and assembly—except for freedom of religion. Fixated on church-state issues, the ACLU has had much to say about paring back religion’s role in society, but precious little about its free exercise. That’s because the ACLU actually fears religion. This is a strong statement, but it can easily be backed up by simply considering an exchange I had with the founder of the ACLU, Roger Baldwin.
In 1978, I interviewed Baldwin in his home in New York City. One of the questions I asked was why the ACLU is opposed to a moment of silence in the classroom. If a child voluntarily prays, I asked, whose rights are being infringed upon? I then asked, “Are you afraid they are going to proselytize the rest of the class?” To which he responded, “Well, they tried to get around it. They’ve tried to get around it even further than you by calling it meditation.” I couldn’t help but question, “What’s wrong with that?” His answer was unnerving: “You don’t say anything about God or religion or anything. I suppose you can get by with that but it’s a subterfuge, because the implication is that you’re meditating about the hereafter or God or something,” 18 (my emphasis). It makes me wonder what Baldwin and his ilk would do if they had the technological means to monitor thought.
The ACLU can protest all it wants that it is not anti-Christian or antireligion, but its record suggests otherwise. Consider what it regards as unconstitutional: the right of churches, synagogues, and all houses of worship to be tax-exempt; prayer, including voluntary prayer, in the schools; release time, the practice whereby public school children are released early so that they may attend religious instruction; shared time, the practice whereby parochial school children in need of remedial instruction (most are poor and nonwhite) are afforded remedial work by public school teachers in the parochial schools; religious invocation at graduation ceremonies; the right of religious foster-care institutions that receive municipal funding to select and teach the children according to their own precepts; the right of religious day-care institutions to receive federal funding even when the institutions agree neither to teach about religion or to display any religious symbol; and the right of Congress to maintain its chaplains. 19
Some of what the ACLU objects to borders on the insane. For example, it objects to all of the following: public school performances of the play Jesus Christ Superstar; the distribution of Gideon Bibles on public school grounds; the inscription “In God We Trust” on coins; the words “under God” in the Pledge of Allegiance; the right of a nun to wear a habit while teaching in a public school (even if she is teaching math); the right of students to sing “Silent Night” at a school concert; the right of city employees to have a Christmas event at a local zoo; and the existence of a nine-foot statute of Jesus Christ located three miles off the coast of Key Largo. 20 When it comes to Muslims, however, the ACLU thinks it is okay for Muslim women to leave their veil on when getting photographed for their driver’s license. 21 In other words, anything that disables American society sits well with the ACLU.
Why is the ACLU so nervous about religion? It is impossible to answer this question without referencing its impoverished vision of liberty. To the ACLU, individual rights equal freedom. It further believes that rights emanate from the state, not from God. Add to this the conviction that religion is an obstacle to the reach of government (which it is), and it becomes clear that religion is a problem. To civil libertarians, freedom is measured, at least in part, by the extent to which society represses the public expression of religion. In any event, when the “guardians of liberty” find the time and passion to protest a statue of Jesus on the ocean floor, it is clear that Christianity scares the hell out of them.
If the ACLU has been beating up on Christianity longer than any other organization, no group has been more single-minded about doing so than Americans United for Separation of Church and State. Just as radical as the ACLU, Americans United has the luxury of spending all of its financial and human resources on squashing the public expression of religion. It really loathes Christianity, and its current fixation on evangelicals has replaced Catholicism as its favorite whipping boy.
It was right at the time of the Everson decision in 1947, and Blanshard’s best-selling screed against Catholicism, that the bigots were mobilized to do something about the Catholic menace. The result was the founding of Protestants and Other Americans United for Separation of Church and State (POAU), an organization that Blanshard sank his teeth into from the beginning. Its first executive director, Dr. Glenn L. Archer, took command in 1948; he held this post until he retired in 1976. When he died in 2002, Barry Lynn, the current director, heralded Archer as “a strong defender of religious liberty through separation of church and state.” 22 Notice that Lynn was unable to say that it was Archer’s staunch defense of the free exercise of religion that made him so great. That is why Lynn opted for the clumsy construction about defending religious liberty “through” church and state separation.
Lynn conveniently chose not to mention that it was under Archer’s tutelage that the Roman Catholic hierarchy was dubbed “more dangerous and clever than communism.” 23 This is a rather strange construction itself given that POAU, as Charles Morris put it, “tended to take an extremely benign view of the Soviet Union.” 24 What makes Archer’s remark really revolting is the fact that he said this after Stalin had murdered tens of millions of his own people, starving the Ukrainians to death in the world’s first man-made famine. Furthermore, it was Archer who petitioned the Federal Communications Committee to deny TV licenses to Jesuits, claiming they were an “alien organization.” Archer also demanded that Catholic cardinals have their citizenship revoked. And it was Archer who asked the House Un-American Activities Committee to investigate “the intentions, scope and achievements of Vatican espionage here,” charging that the Catholic clergy had learned “American secrets hardly anyone except the president knows.” 25
Americans United tries hard to put a shiny gloss on its bigoted roots, but it fails miserably. For example, when George Washington University law professor Jeffrey Rosen wrote a searing article in the New York Times Magazine about religion in public life, he set off the alarms at Lynn’s organization by referencing the ignoble beginnings of POAU. 26 Am
ericans United immediately responded by issuing a lengthy rebuttal, accusing Rosen of taking “a cheap shot.” The cheap shot, it said, was “implying that the group was anti-Catholic because it opposed the political goals of the Roman Catholic Church in the 1940s and ’50s.” Showcasing its ability to spin, it said, “Americans United did strongly oppose some of the political activities of the Catholic Church during this period, but its opposition was to the church’s political efforts, not the church itself, its members or its theology” 27 (its italics). Is that why POAU circulated a bogus Knights of Columbus Oath, a revision of a nineteenth-century anti-Jesuit forgery, blaming lay Catholics for committing atrocities against Protestants? 28
Americans United entertains an extremist interpretation of the First Amendment. The Framers never expected religion to be privatized, nor did they seek to curb religion’s role in shaping morality. Yet over the Fourth of July weekend in 2008, Americans United downplayed religious liberty by flagging on the home page of its Web site “Celebrate Separation of Church and State.” It also ran an incredible video featuring actress Catherine Dent. She explained why she couldn’t share her religious beliefs with the public: “You see, it is not because I don’t want you to know anything about me, but is because I don’t know anything about you. I can’t see your history. I can’t see your beliefs. And what matters deeply to me could be an intrusion on what matters most to you” 29 (my emphasis). How thoughtful of her. This is more than spin—it is a revealing look at the mentality behind the secular assault on religion.