Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Religious Freedom and the Ninth Amendment



September 29, 2006

The past, according to George Orwell in his novel, Nineteen Eighty-Four, "is whatever the party chooses to make it. Six means eighteen, two plus two equals five, war is peace, freedom is slavery, ignorance is strength."

The past, according to federal Judge Jeffrey White in his April 2006 decision, Christian Legal Society (CLS) of Hastings College of Law v. Kane, is whatever the new party—let's call it the Secular Religion Party—chooses to make it. By-laws of the campus chapter of CLS require that each member sign the statement, "I believe in: one God [and] . . . the Bible as the inspired Word of God." But Judge White insists there is "no evidence" that CLS would be impaired in its "ability to convey its beliefs" by "taking the risk that a non-orthodox Christian, gay, lesbian, or bisexual student become a member or officer" of the organization. Thus, in his Orwell-speak, a statement of faith is a statement of non-faith, an officer of an association need not hold its beliefs, and Christianity is atheism.

This Secular Religion Party has, since 1947 in Everson v. Board of Education, waged war on the constitutional right to the free exercise of religion. Judge White's opinion lays claim to radically new ground for that party. To respond, Christian constitutional lawyers need an imaginative trench-warfare plan. They have one in Bernard Zylstra's powerful presentation to a national CLS conference in 1981 on "The U.S. Constitution and the Rights of Religion."

Characterizing the enemy as "tyranny" that prohibits free exercise of "both personal and institutional rights," Zylstra offers an approach based on three assumptions: (1) "it is of the very nature of religion to express itself in the 'mediating structures' that fill society between the individual and the state"; (2) "the American citizenry is religiously divided"; and (3) "the religious rights of each religious segment" should be properly acknowledged.

Zylstra then suggests a surprising weapon: the Universal Declaration of Human Rights, adopted by the United Nations General Assembly on December 10, 1948. That declaration "has gone beyond the individualism of the Enlightenment worldview reflected in the U.S. Bill of Rights," says Zylstra, for it lists as a "common standard of achievement for all people" various institutional rights. These include marriage, family, freedom of association, and the freedom to manifest one's religion either alone "or in community with others and in public or private." Repeat: in public.

Next, says Zylstra, constitutional lawyers should argue for a strict interpretation of the establishment clause of the First Amendment, whose purpose was "to disestablish churches," not to inhibit the free exercise of religion in schools and elsewhere. Moreover, the practices protected by the religious free-exercise clause may only be defined by the adherents of a religion and should not be restricted or prohibited unless those practices conflict with the demands of public health and safety.

Finally, Zylstra says we should emphasize that there are three other amendments to the Constitution whose provisions require a relation between religion and the state, a relation quite different from "absolute separation." Those three amendments are the Fourteenth (upholding privileges and immunities, due process, and equal treatment), the Tenth (showing the Founders' intent "to establish a nontotalitarian state"), and, pivotally, the Ninth, which provides that the "enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Since "rights have to be fought for," says Zylstra, the Ninth Amendment "provides a constitutional basis for this battle."

Amen! And Judge White's Orwellian-sceptered opinion in Hastings exposes the true nature of the battle: The Ninth versus The Party.

—Timothy Stoen, Attorney
    Mendocino, California


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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”