The State of Religious Liberty in the United States

September-October 1995

By Michael W. McConnell

WASHINGTON, D.C.—[On June 7, law professor Michael McConnell from the University of Chicago testified here before a subcommittee of the House Judiciary Committee. The following excerpts are drawn from his written testimony.—Ed.]

The Present Climate

By any realist standard of comparison, religious liberty in the United States is in excellent shape. There is no official state religion, Americans are free to practice their faith, for the most part, without fear or hindrance, with a diversity and freedom that does not exist anywhere else in the world. But for many Americans, especially those in public schools and other parts of the government-controlled sector, religious liberty is not all it should be, or all that our Constitution promises.

If the polls are correct, many Americans attribute the enforced secularization of public life to the Supreme Court's School Prayer decisions, and see adoption of a School Prayer Amendment as the solution. I think that diagnosis is incorrect and disagree with that proposed remedy. But there is no question in my mind that the discontent with the status quo reflected in support for school prayer has a real and legitimate cause, and that constitutional doctrine has played a part in it.

Historical Background

In the decades preceding World War II, the dominant Protestant majority in this country not infrequently ran roughshod over the rights of others: Catholics, Jews, and other non-Christians alike. Public schools were the vehicle for transmission of majority values, which were heavily imbued with a Protestant orientation. Aid to non-public schools was opposed because such schools were generally Roman Catholic. Prayer, Bible reading, and the celebration of holidays were often conducted without regard to the coercive impact on children of other faiths. Much of the Religion Clause jurisprudence of the past 40 years has been a response to this. And properly so. I cannot read accounts by those who grew up in the era of Protestant hegemony without a keen appreciation for the injustice and casual cruelty of the system.

But—largely under the prodding of courts with little understanding or appreciation for the place of religion in the lives of ordinary Americans—we adopted the wrong solution to this very real problem. We should have opened up the government sector to a wider range of voices, promoted diversity and choice in education, sought pluralistic approaches to public activities with a cultural and religious aspect, and reduced the ability of those with power over public institutions to monopolize channels of education and influence. Instead, we preserved the structures by which Protestant Christians had dominated the public culture, and only changed the content. Secular ideologies came into a position of cultural dominance. The tables were turned. The winners and losers changed places. But the basic injustice—the use of government authority, over education and elsewhere, to favor and promote the values and ideals of one segment of the community—continued unabated.

Pluralism, Not Culture Wars

Some have responded with a call to cultural warfare: if one worldview or another is to be in the ascendancy, let it be ours. Hence the persistent calls for return to a "Christian America." I think there is a better way. The solution is to insist, in a rigorous and principled way, on the rights of all Americans, without regard to faith and ideology, to participate in public life on an equal basis. No more double standard. Religious citizens should not be required to engage in self-censorship as a precondition to participation in public programs. Public programs should be open to all who satisfy the objective purposes of the program.

The beginning of wisdom in this contentious area of law is to recognize that neutrality and secularism are not the same thing. In the marketplace of ideas, secular viewpoints and ideologies are in competition with religious viewpoints and ideologies. It is no more neutral to favor the secular over the religious than it is to favor the religious over the secular. It is time for a reorientation of constitutional law: away from the false neutrality of the secular state, toward a genuine equality of rights. There is no basis in the history or purpose of the Establishment Clause for the secularization of society, or for discriminating against religious voices in the public sphere.

Narrow focus on a "School Prayer Amendment" would, I believe, be a mistake. There are two reasons. First, whatever its merits in an earlier and more homogeneous era, the practice of officially sponsored and led prayer in public school classrooms would be impossible to maintain today in a way that would be either spiritually valuable or non-coercive. In order to be broadly acceptable, a prayer would have to be so general and abstract that it would be largely meaningless. A watered-down civil religion serves no one's interest. If anything, civil religion denigrates and trivializes religion by subordinating the forms of worship to the needs of the state. Moreover, no matter how abstract and how general the prayer may be—and for some, precisely because it has become so abstract and so general—it will remain unacceptable to some children in this world of diverse beliefs.

The second reason a narrow focus on school prayer would be a mistake is that it would distract from far more serious questions of religious expression and participation in American public life, both in public schools and elsewhere. The great problem is not that public officials are failing to sponsor prayers, but that—in a well-meaning but mistaken commitment to what they think is a constitutional ideal of a secular public sphere—teachers, principals, school boards, and other public officials often engage in discrimination against religious expression. In short, the point should not be to get the government into the business of prayer, but to open up the public sphere to the free and equal participation of all citizens, religious and non-religious alike.

Equality of Rights, Not Strict Separation

Interpretation of the Establishment Clause of the First Amendment during the past 40 years has wavered between two fundamentally inconsistent visions of the relation between religion and government. Under one vision, which has gone under the rubric of the "no aid" view or the "strict separation" view, there is a high and impregnable wall of separation between government and religion. Religion is permitted—indeed it is constitutionally protected—as long as it is confined to the private sphere of home, family, church, and synagogue. But the public sphere must be strictly secular. Laws must be based on strictly secular premises, public education must be strictly secular, public programs must be administered in a strictly secular manner, and public monies must be channeled only to strictly secular activities. This vision is reflected in the Lemon test, which states that all law must have a "secular purpose"; that governmental action may not "advance" religion; and that religion and government must not become excessively "entangled."

This "secularist" or "separationist" model may be contrasted with what I think is the authentic vision of church-state relations in America: one of equality of rights. Under this vision, no individuals, groups, or ideas are given special status on the basis of their religion or philosophy. All are treated equally. The result is not a secular public sphere, but a pluralistic public sphere, in which every viewpoint and worldview is free to participate and "to flourish according to the zeal of its adherents and the appeal of its dogma," to borrow the words of Justice William 0. Douglas in Zorachv. Clauson, 343 U.S. 306, 313 (1952).

Under this view, the two parts of the Religion Clauses play a consistent and mutually supportive role in protecting religious liberty. The purpose of the First Amendment is to protect the religious lives of the people from unnecessary intrusions of government, whether promoting religion (Establishment) or hindering it (Free Exercise). This approach will foster a regime of religious pluralism—as opposed to either a regime of majoritarian religion on the one hand or secularism on the other. It seeks to preserve what Madison called the "full and equal rights" of religious believers and communities to define their own way of life, so long as they do not interfere with the rights of others, and to participate fully and equally with their fellow citizens in public life without being forced to shed or disguise their religious convictions and character.

Under the separationist view, the various parts of the First Amendment are at war with one another. The Free Exercise Clause forbids the government from inflicting penalties for the practice of religion. But the Establishment Clause requires the government to withhold otherwise available benefits if the beneficiaries would use it for a religious activity. Thus, the Establishment Clause is said to require precisely what the Free Exercise Clause prohibits: withholding of benefits on account of the exercise of a constitutional right. In a world in which the government aids or advances many different causes and institutions, this interpretation means, in effect, that the government must discriminate against religion. The separationist reading of the Establishment Clause poses an increasingly serious threat to religious liberty as the government sector increases in its scope and activity.

School Choice

Finally, no discussion of problems in this area would be complete without reference to the Supreme Court's disgraceful record with regard to educational choice. Much of the problematic precedent in this area arose in the context of state efforts to provide some assistance to parents who choose to educate their children under religious auspices. The Supreme Court, in a series of decisions beginning with Lemon v. Kurtzman, has made these efforts virtually impossible. The most egregious decision, in my opinion, was Aguilar v. Felton, 473 U.S. 402 (1985), in which the Court struck down those portions of the Elementary and Secondary Education Act that provided remedial English and math training by public school teachers to educationally and economically disadvantaged students on the premises of their schools, both public and private. The effect has been to deny less affluent parents the practical ability to exercise choice in education, as is their constitutional right, and to deny to urban school districts the more practicable way to provide remedial services to some of the neediest children. This makes no sense, either pedagogically or constitutionally. In a pluralistic nation, the parents—not the voting majority—should determine the content of their children's education, and they should not be penalized for it. Diversity and choice are far more consistent with the purposes of the First Amendment than the present system. Two explanations are usually offered in defense of the idea that religiously affiliated activities must not be permitted to participate in tax-supported benefit programs, even on a neutral basis. Neither, in my opinion, is persuasive.

First, it is argued that it would violate the religious freedom of taxpayers to compel them to support schools or other activities propagating ideas in which the taxpayer does not believe. But this is a valid objection only when funding is provided to a religious activity on a preferential basis, because it is a religious activity. That is what the battle over disestablishment among our founders was about. The principle has no application when the government funds a wide variety of private groups, for a secular purpose, and religious groups are included on a neutral basis. Second, it is suggested that religious recipients would be made worse off by inclusion in neutral aid programs because the aid would come with "strings." There are two answers to this. First, this ought to be a choice left to the recipient. Second, and more important, is the fact that the present system creates even more severe incentives for potential recipients to betray their principles. Under current doctrine, they can obtain aid if and only if they renounce their religious character. The current system makes government grant programs a relentless engine of secularization. I believe that government programs should have as neutral an effect as possible, which means that the programs should be administered without discrimination on the basis of religion.