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

First Amendment Amnesia

Stephen Lazarus


September 19, 2005

For observers of religion and politics in America, the Senate hearings last week to confirm Judge John Roberts as Supreme Court Chief Justice confirmed at least two things. First, religion and politics are never separate. Second—and a cause for concern—many policymakers on Capitol Hill appear to suffer from First Amendment Amnesia: the serious but seldom-acknowledged condition that leaves members of Congress unable to countenance the expansive freedom acknowledged by the Constitution that enables citizens to live out their faiths fully in the public square.

Take, for example, Senator Diane Feinstein's (D-CA) opening statement. Senator Feinstein invoked the infamous "slippery slope" argument to suggest outrageously that giving religious organizations equal access to public funds for their public work could lead to the unspeakable violence of Nazi Germany. Religion has been used in catastrophic ways historically, she explained: "Millions of innocent people have been killed or tortured because of their religious beliefs." The First Amendment, she continued, means freedom of worship and the absolute separation of church and state: "The Framers established a secular government that would remain separate from religion. However, these basic principles could be severely weakened or unraveled depending on the Court's allowing government funding of religious education...and the display of religious symbols on public property and land."

Of course, in one sense Senator Feinstein is correct. Thanks to the First Amendment, America has no established church or officially sanctioned religion. Our government is not a religious body, but a political one, tasked to preserve and promote a just political order for citizens of many different faiths.

However, religion and government have never been and can never be absolutely separate, as she suggests. Religious symbols, figures, and references have been widely displayed in public places, including government buildings such as the Supreme Court, throughout the nation's history. In addition, Judge Roberts is quite aware that the Supreme Court under Chief Justice Rehnquist upheld the constitutional right of religious schools to receive government funding via vouchers in Zelman v. Simmons-Harris in 2002. Judge Roberts surely was surprised to hear the suggestion that the future of religious freedom in America depends on his action to roll back precedents in these areas of the law. What might explain this selective amnesia on the part of leading figures in Congress?

Leaders and citizens alike often forget that what we call the separation of church and state does not mandate the separation of religion from government and public life. The government may fund, and has funded, religious and secular schools and social services, because they all perform important work for the public good, educating and serving the public according to their own distinctive sets of religious or secular convictions. The First Amendment protects and does not prohibit this, nor does its text even mention separation anywhere. It requires neutrality--that there be no bias for or against religion in public life. When government programs welcome congregations and religious hospitals, universities, and social service groups as partners in promoting the public welfare—such as in responding to Hurricane Katrina—the First Amendment is not violated, but rather honored.

The time has come for members of both political parties to find new common ground, moving beyond First Amendment Amnesia to true justice for all of America's diverse religious communities in the public square. The Supreme Court has made great progress in this direction in recent years. When he is confirmed as Chief Justice, as appears likely, Judge Roberts will also have the duty to ensure that our laws fulfill the Constitution's promise of religious freedom for all.

—Stephen Lazarus, Director of the Civitas Programs
    Center for Public Justice


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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.”