Faith, Community and the Court
We are a diverse people. Our aspiration is to be “one nation, indivisible”. We are trying to make that work. In principle we can both act out our diversity and be a community, living together in harmony. In practice we have difficulty. My diversity challenges the community. The community restricts my diversity.
The tension plays out in our politics as the law sets the boundaries for what I can do and what the community can enforce. The debate is basic to democracy. What is the appropriate relationship between individuals and the state? When values conflict, how do we choose?
The Supreme Court is the ultimate arbiter of where lines are drawn, how values are balanced. The addition of any new judge raises the possibility that existing lines will be changed. Community will be different. The debate this week over the confirmation of Amy Coney Barrett to the Court is a debate over who and what we are as a nation.
Co-existing in community requires mutual respect and tolerance, an attitude of acceptance, of live and let live. Our natural inclination, however, is use the power of government to impose our beliefs and actions on others. We want community on our terms. We want our values enforced.
From our beginning the struggle over values has in essence been about the proper relationship between Church and State.
Throughout history, the law and religion have been intertwined. Religious leaders have enlisted the power of government to enforce belief and combat heresy. Political leaders have used religion to cloak themselves and their actions with divine blessing and authority. The combining of the two fomented holy wars, crusades, inquisitions, persecutions, martyrdoms, forced conversions and burnings at the stake.
The writers and adopters of our constitution wanted none of that. The first phrases of the first of the Bill of Rights affirm, “Congress shall make no law respecting an establishment of religion; or prohibiting the free exercise thereof …” Church and state were to be separated.
It is a noble goal, but there is no way to separate them completely. How they mix is a work constantly in progress.
In the early years there was not much controversy. Most of the population went to church every Sunday, the nation looked on itself as “Christian” and even though there was no direct connection between Church and State, prayers were offered in public schools and Christian symbols populated public spaces.
Beginning in the 1960s, secular activists filed law suits seeking greater separation. Court decisions ended prayers in public schools and limited the placement of religious symbols in public places.
Social and cultural norms (many identified with Christianity) were challenged by those insisting on racial equality, gender equality, sexual freedom, and a broadening of the definitions of acceptable behavior. The demand that our diversity be recognized challenged existing laws and practices rooted in Christian doctrine.
The Court came down on the side of diversity. The community must be inclusive and welcoming to all.
In addition to citing the Constitutional requirement that there be “no law respecting an establishment of religion” the Court noted in a 2000 case that, “School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are non-adherents ‘that they are outsiders, not full members of the political community’… [what] to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.”
In contrast, the rhetoric of the current administration identifies the good of the State, and the welfare of the people with the maintenance of Christian moral standards.
In a speech last year at Notre Dame, Attorney General William Barr said, “Judeo-Christian moral standards are the ultimate utilitarian rules for human conduct. They reflect the rules that are best for man, not in the by and by, but in the here and now. They are like God’s instruction manual for the best running of man and human society.” He added that free government is only suitable and sustainable for a religious people.
In that view, there is no place for diversity. There is no shared community. Only a contest between good and evil.
Barr went on to say, “I will not dwell on all the bitter results of the new secular age. Suffice it to say that the campaign to destroy the traditional moral order has brought with it immense suffering, wreckage, and misery.”
The President calls his opponents “nonbelievers”. “Together we’re not only defending our constitutional rights. We’re also defending religion itself.” “God is on our side.”
Ralph Reed, head of the Faith and Freedom Coalition, characterizes the Democratic Party as, “vicious and unhinged … anti-Christian, anti-freedom, anti-America … anti-God.”
The consistent message in the past from the Court, however, has been that the “preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere.” To align the government with any expression of religious belief is, by its nature, divisive and makes community more difficult.
The question for Amy Coney Barrett as she contemplates becoming a Supreme Court Justice is what are her values? Is she of the same mind as Barr and the President? Where is the line she draws between Church and State?
How does she understand her admonition to the 2006 graduating class at Notre Dame Law School, to “always keep in mind that your legal career is but a means to an end … that end is building the kingdom of God.” What is her vision of what that kingdom looks like? Will the kingdom she helps shape as Justice be singular and exclusive? Or will the kingdom be a community of diverse peoples and values?
Douglas Kane is the author of "Our Politics: Reflections on Political Life" published in 2019 by Southern Illinois University Press
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