Justice Breyer’s words might be Prescient
(Carson v. Makin)
“This is a Christian nation,” thundered the Supreme Court in a case in 1892 “officially” reminding the country based on “volume of unofficial declarations.” Rector, etc. of Church of the Holy Trinity v. United States, 143 U.S. 457, 471 (1892). The Christian word has since then, sublimated and could be referred to any religious calling of any adherent. That religious fervor hasn’t gone away, rather it’s on its way to deeper entrenchment in our legal system. Yesterday, the Supreme Court announced in Carson v. Makin, that religion is here to stay with its institutionalization. The decision had reaction--some fear a theocratic state in the offing--others rejoicing a stronger protection of their religious belief. Those offended ones are complaining that extending governmental benefits to the religious entities is creating new arteries in the forbidden territory—the government is to not to “convey a message of governmental endorsement or disapproval of religion.” Lynch v. Donnelly, 465 U.S. 668 (1984). But the Court feels that it is not creating arteries, rather pumping the blood in those arteries which are already there and cannot be ignored. Essentially, the Court in Carson case creates no new rights, no exception, rather leveled the playfield for both the religious and non-religious beneficiaries—an undeniable constitutional value—equality. But at what cost?
The Supreme Court in Carson found Maine’s tuition program unconstitutional as violating the Free Exercise Clause, for Maine structured its tuition assistance only to non-sectarian schools. Maine resident Amy and David Carson wanted Olivia, their daughter to study at Bangor Christian school. She did attend that school, however the parents had to pay the entire fees out of pocket. The parents were unhappy that the state did not fund the education, as it was a religious school. Had they put their daughter in a non-sectarian school, they would have been paid for such educational expenses by the state. The state felt that the public funds cannot be used for religious activities and thus it would not pay for tuition fees at Bangor Christian. This denial aggrieved the family of Olivia and they challenged the state arguing that the state violated religious rights and equal protection clause of the constitution.
The dispute finally reached the Supreme Court, where Chief Justice Roberts writing for the majority found that Maine’s ‘nonsectarian’ requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment. The Court felt that practice of a faith cannot and does not create ineligibility for state helps. Chief Justice found that “State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.” The public benefit is funding by the state to parents for tuition fees. And if the state has decided to fund, it “cannot disqualify some private schools solely because they are religious.”
The dissent ominously announced that this decision amount to “dismantle[ing] of wall of separation between church and state that the Framers fought to build.” The wall is the Establishment Clause. Justice Breyer blamed the majority for ignoring the first clause i.e., “forbidding the government from making any law respecting an entablement of religion,” and further relying exclusively on the clause, i.e., forbidding the government “to make any law prohibiting the free exercise thereof.” He also blamed the majority for ignoring the balance between two clauses “cast in absolutely terms” by not recognizing the “play in the joints between the two Clauses.” And that the “ States enjoy a degree of freedom to navigate the Clauses competing prohibitions,” which could “include[]choosing not to fund certain religious activity where states have strong, establishment-related reasons for not doing so.” Justice Breyer quoting Jefferson and Madison felt that state funding of the Christian school might flare up social strife something which the joint application of two clauses, Free Exercise and Establishment clause was meant to prevent. Justice Breyer further explored the content of teaching by Bangor Christian school and found that “academic instruction and religious instruction are thus completely intertwined.”
Justice Breyer comment about the religious strife should make us pause. Is it prescient? Is it that our lived experience is so sparse that we cannot grasp it as yet? Is Justice Breyer telling us something indirectly? In his dissent, he alludes to potential religious strife, social conflict, bitter strife if the Free Exercise and Establishment are not read together and balanced. He warns,
This potential for religious strife is still with us. We are today a Nation with well over 100 different religious groups, from Free Will Baptist to African Methodist, Buddhist to Humanist. . .. People in our country adhere to a vast array of beliefs, ideals, and philosophies. And with greater religious diversity comes greater risk of religiously based strife, conflict, and social division. The Religion Clauses were written in part to help avoid that disunion. As Thomas Jefferson, one of the leading drafters and proponents of those Clauses, wrote, “‘to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.’” Everson, 330 U. S., at 13. And as James Madison, another drafter and proponent, said, compelled taxpayer sponsorship of religion “is itself a signal of persecution,” which “will destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion, has produced amongst its several sects.” . . . To interpret the Clauses with these concerns in mind may help to further their original purpose of avoiding religious-based division
We have to look back a little bit to see where it might land up. In 1990, Justice Scalia was seen to have axed the sensitive balance between the religious beliefs and the laws of the land by subordinating the belief system to the neutral laws of the land. Employment Division, Oregon Dept. of Human Resources v. Smith, 494 U.S. 872 (1990). The Court in Smith held that Free Exercise Clause does not exempt people from compliance with the generally applicable laws and does not require the government to show a compelling interest for enforcement of such laws. This was not taken lightly by the lawmakers, and they felt it necessary to maintain religious exemptions and bring back what the Supreme Court had decided in Sherbert v. Verner, 374 U.S. 398 (1963). In Sherbert, the government had denied a lady unemployment compensation benefits for failure to accept available work on Saturday. She had declined to work on Saturdays for religious reasons. The Court came to protect her religious right and reasoned that if a generally applicable law imposes a religious burden on an individual, that person could seek an exemption from the law unless the government could show that the burden was justified by a compelling government interest. The compelling interest is virtually an insurmountable a high standard to meet. There were bipartisan bills introduced in the house and senate bring back Sherbert to Free Exercise Clause. Now the lawmakers wanted a statutory enforceable protection rather than relying on constitutional protection. Thus came the Religious Freedom Restoration Act (RFRA) in 1993. The compelling interest test was brought back with a statutory finding that Sherbert’s compelling interest puts forth a striking sensible balance between the religious liberty and competing prior governmental interest. However RFRA was found to have been unconstitutional as applied to the State, as Congress acted beyond the allowed powers under section 5 of the Fourth Amendment. But RFRA continues to apply to the federal functionaries. Undeterred, Congress in 2000 came up with new legislation, Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). RLUIPA directs the states and its functionaries not to implement land use regulations in a way that impose a substantial burden on the religious exercise of individuals or religious institutions. The state could only burden such individuals or institution if it is in furtherance of a compelling government interest and is the least restrictive means of furthering that governmental interest. RLUIPA also protects the jailed individuals and their religious practices. Thus were created new religious exemption arteries which are swiftly making inroads in aspects of the social life.
With the new statutory ushered exemptions and accommodations, there is something else that is brewing up under these inchoate statutory protections accorded by the Congress—the increasing demography and varied faiths of the adherents. Such diversity of belief system and can present awkward situation. Look what happened on September 11, 2001. More than 3000 people perished in that grim tragedy. The families and others were astounded, when a New York Imam F Abdul Rauf and a director of the American Society for Muslim Advancement decided to have, just two blocks away a 12 story mosque constructed. People felt hurt. This is rubbing salt on wounds, cried the families of the killed ones. They felt that a mosque construction next to a tragic spot brought in by Islamist terrorist was in not in good taste. Islam was projected as a religion of peace and Mr. Rauf and other leading Muslim dignitaries felt that Muslims and Non-Muslims must come together and making a mosque was a step in that direction. Majority did not endorse that idea of “Ground Zero Mosque.” This mosque opened in September of 2011.
The Ground Zero Mosque elated some and troubled others. When there ware objections to its construction, the mosque builders evoked RLUIPA. See interesting take of Marci A Hamilton, a legal scholar: https://supreme.findlaw.com/legal-commentary/the-wrong-headed-furor-over-the-planned-mosque-at-ground-zero-mistaking-a-war-on-radical-islamicism-for-a-war-on-all-muslims.html. Ms. Hamilton makes proper remarks about the legalese and good principles “[It's Important for Americans to Stand Up for the Rights of the Planned Mosque -- Just as They Would For a Planned Church or Synagogue.”]. But there is something else that lurks there which has not been addressed—which troublingly takes us to the merit of the belief system (Ummah) and its conflict with U.S. nationalism (which I will discuss soon). Justice Breyer might be apprehensive of such an irreconcilable ideology waiting to creep in create massive problems in the future. Irrespective of any takes and or takers, the law backed mosque builders and the mosque came to be. Those protesting against it were reminded of the tradition of religious liberty. See response of the New York state officials; https://www.brookings.edu/research/assessing-decision-making-on-the-nyc-islamic-center-continuing-our-tradition-of-religious-liberty/. Ground Zero Mosque has so far, no implication of Establishment or Free Exercise Clause. It is left alone.
However, the foregoing disagreements could swell up to swallow the underpinnings of the present religious freedom and pose a severe problem for the country.
Religions are not same. They are all different. Humans have created different gods with the claims that gods have created them, and it is all different despite claims of universalism in all aspects. Not all have the same impression of nationalism, some have religious instruction to follow Ummah. Ummah denotes a world religious order, ruled by an Islamic government, the Caliphate, according to Sharia laws. Ummah is a very deep religious injunctions of Islam that its adherents have to follow. For instance, U.S. Army sent to an Islamic nation [e.g. Afghanistan or Iraq or Iran] might militate against the Ummah subscription of a devout Muslim of a secular nation like USA. The Koran, the Islamic holy scripture refers to Ummah as the being the best community for Muslims. See Koran 3:110—“Believers, you are the best community singled out for people; you order what is right, forbid what is wrong, and believe in Allah” Starting with the first Islamic scholar al-Tabari of Iran (839-923) to Ibn Taymiyyah of Syria (1263-1328) to Ibn Kathir of Syria ( 1300-1373) to modern day Allamah Iqbal of Pakistan (1877 to 1938) have espoused Ummah concept and stated that Ummah overrides village or national boundaries. Also, since Ummah has its own tenets, it subordinates all other covenants of any regime to the extent it militates against their core belief system. I would not like to go any deeper into merits or demerits of Ummah—a cursory look in google can reveal a lot about it. Teachings in Madrasas (a religious school) focuses on such theological aspects of the calling of each adherent. A madrasa in Maine would not disqualified from public funding by Carson case. Public funding collected from the state citizens for education if spent on belief system of someone other than the taxpayer own’s belief system would cause resentment, as Justice Breyers stated,
As Thomas Jefferson, one of the leading drafters and proponents of those Clauses, wrote, “‘to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.’” Everson, 330 U. S., at 13. And as James Madison, another drafter and proponent, said, compelled taxpayer sponsorship of religion “is itself a signal of persecution,” which “will destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion, has produced amongst its several sects. . . . To interpret the Clauses with these concerns in mind may help to further their original purpose of avoiding religious-based division.
Thus, containing different ideologies and callings within a country to be operably peaceful, is a daunting task for any legal regime. No doubt, the state and or the country was to have a hands-off approach to the practices of its citizen. Earlier in case Everson v. Board of Education in 1947, the Supreme Court had said that Establishment Clause prohibits aid to “all religion.” If the private school, or a Madrassa pushes for teaching of Ummah and whose tenant might radically differ from the United States mainstream thinking and moralities, then that school would not be denied state funding for that would be a “discrimination against religion” in the eyes of Chief Justice. The pendulum is bound to swing to the other side very far. One would see rolling back or revisits to these rulings. Do not forget the two cases, which compelled the Supreme Court to roll back or dramatically shrink reach of laws just because reading them as it was before they were read now, would embarrass very senior people. See case of Ashcroft v. Iqbal (200) cutting the liberal construction of the complaint and thus denying the complaining Iqbal an opportunity to prove his case and that of United States of Husayn denying discovery against CIA under section 1728 of Title 28.
See https://www.dahiya.law/post/when-court-deinterpret-the-laws-to-save-senior-people-from-embarrassmentashcroft-v-iqbal-and-unite. Going back on one’s words can be tarnishing.
Justice Breyer’s words should really make us pause.