A New Constitutional Test for Religious Liberty

According to an article in America Magazine, "America at the Crossroads" the conservative faction on the Supreme Court is looking for an opportunity to institute a new way of interpreting the First Amendment with respect to religious liberty.

The current test that the Supreme Court uses in examining church/state legislation is the Lemon Test, named for case Lemon v. Kurtzman in which the test was first enumerated. To pass the Lemon Test a church/state law must (1) have a secular legislative purpose, (2) must not have the primary effect of either advancing or inhibiting religion, and (3) must not result in an "excessive government entanglement" with religion.

The new test being considered would be the Coercion Test. Using this test, the Supreme Court would look at whether the law coerces citizens into participating in or supporting a religious exercise.

What counts as coercion?

Well, the Supreme Court ruled this year that being taxed for the purpose of supporting a religious activity does not give a person any standing to challenge that activity. In order to have standing, a person must suffer actual harm. So, if the government is taking your money from you and giving it to a church, it is not violating the separation of church and state under the Coercion doctrine – at least, not in any way that allows you to go for a court and seek a remedy.

Justice Anthony Scalia also argues that speech is not a form of coercion because "the listener can do as he pleases." Consequently, a legislator's decision to put the 10 Commandments in a government building, or to put up a Nativity scene during Christmas, or to put "In God We Trust" on the money and in every classroom in every school, or to start school functions such as an assembly or graduation ceremony or sporting event with a prayer, or teaching intelligent design in a science class, are not "coercive" on this test. Certainly, a citizen may be "coerced" into listening or viewing these displays, but since they are at liberty to dismiss or disregard what they hear or see, they are not suffering 'coercion' in a sense that would violate this test.

The article suggests that there may be some dispute over whether young children, coerced into attending public schools, have the same capacity to ignore what is being said that a competent adult has. According to the article, Justice Stevens might consider prayer in school, for example, to be an impermissible form of coercion given the child's limited ability to question the information that the government is giving it.

In one sense, I think that it might be a good thing to replace the Lemon test with the Coercion test in constitutional law. I fear that, for too long, secularists have been hiding behind the robes of judges and utterly failing to engage the public in a discussion of these matters. As a result, while the secularists have been winning court cases, the sectarians have been talking to the public and generating public hostility towards the secularists. In a democracy, public opinion will eventually trump legal precedent. The strategy of hiding behind judicial robes was doomed eventually to fail, and that day may well be here.

However, this is not a blog in Constitutional law or in political strategy. This is a blog on ethics. Regardless of the constitutional issues involved in the debate over the Lemon Test versus the Coercion Test, there is a separate question as to which standard does the best job of determining what counts as just law.

The Coercion Test, as a standard of just law (rather than Constitutional law), is a very poor standard. Within the confines of the Coercion Test, the government may pass a resolution, for example, declaring that the Jewish faith is incompatible with the American way of life, and that no Jew is fit to hold public office. A bill that prohibits Jews from holding public office would not be permitted. However, it would not be an act of coercion for the government to declare, through a resolution or an executive order, that it officially disapproves of the election or appointment of a Jew to any office or position of public trust. A resolution is mere speech, and as such "the listener can do with it as he likes."

Furthermore, the government would be permitted under the Coercion test to fund a campaign to promote public hostility towards Jews. It would not be able to require that Jews wear a yellow Star of David on their clothing or identify their shops as Jewish, but it would be able to launch a campaign to encourage Christians to put a white cross on their clothing or to identify their businesses as a Christian businesses, and to encourage the population in general to shop at Christian businesses. Again, there is no coercion involved in such an act. As such, it would not be seen as violating the government’s prohibition on establishing a religion using the Coercion test.

The government could pass a law authorizing the display of plaques or other messages that declare that all true Americans are Christians – that they believe that Jesus was the Messiah and that no person who doubts such a claim can be considered a good American. It can have students pledge allegiance to "one Christian nation", and put a slogan on the money and in the classroom for every Christian and Jewish people to see that says, "We Trust in Jesus."

With all of this, under the Coercion test, no constitutional violation has yet taken place.

I have expressed these possibilities in terms of the attitude that the government may express towards its Jewish citizens under this principle, because the government already does most of these things to its atheist citizens without protest. These examples are not wild imaginings of what the government might do if some concepts get stretched far beyond their regular use. These examples represent a set of actions that the government is already engaged in. The Coercion Test is being considered precisely because it will provide those who want to continue acts of this type to give a sense that they are defensible.

Many people have recognized that there is a lot of tension between these actions taken against atheist citizens and the Lemon Test. Instead of resolving this tension by ending the government promotion of hostility towards atheists, they seek to relieve the tension by removing the Constitutional prohibition on the government marketing hostility towards a religious minority. The paragraphs above simply point out that if the government allows public hostility towards one religious minority, it can easily be used against other religious minorities.

As I said above, this blog is not concerned with what is and is not constitutional. However, it is possible to argue that there is a particular concept of morality written into the Constitution (and certainly in the Declaration of Independence) that makes moral arguments such as these relevant to Constitutional questions. This is the idea that moral rights exist as entities independent of government decree and the minds of men gathered in a legislative session. Governments do not create rights, they either respect or they violate rights that exist in the absence of government.

Clearly, this is the concept of rights that the Declaration of Independence was built on. It declares that rights are 'unalienable', and that governments can be 'destructive' of these rights. This simply is not possible if rights were entities invented by government.

We also see this in the Bill of Rights added to the Constitution. Look at the words.

Amendment 1: Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble. . . .

Amendment 2: . . . the right of the People to keep and bear Arms, shall not be infringed.

Amendment 4: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .

These are three examples in which the Bill of Rights is best interpreted as saying, "There exists a right independent of government, and we command the government to respect this right." Against this interpretation, any appeal to what the founding fathers thought the rights were is irrelevant. The founding fathers told us to defend the rights that exist as a matter of fact - not the rights that they thought existed.

When people try to interpret the Bill of Rights by looking at what the founding fathers thought, they are treating those rights as human inventions. This is what you would do if you were asking, "What did the founding fathers try to invent, in terms of rights?" The right to freedom of speech becomes whatever the founding fathers thought it was, and the prohibition on cruel and unusual punishment is a prohibition on what the founding fathers thought was cruel and unusual.

When people take the Bill of Rights as a list of rights that exist 'in nature' that the government is not to abridge, then interpreting the Constitution is not a matter of getting inside the founder's heads. It is a matter of asking, "What 'right' to freedom of the press, or freedom of the people to assemble and petition their government, or freedom from unreasonable searches and seizures, exists in nature?" This natural right is the right that the founding fathers were trying to protect.

The degree to which the thoughts of the founding fathers are relevant in interpreting the law extends only to the conclusion that the founding fathers thought that there were natural rights found, independent of what any government or legislative body says they are, and that the job of government is to protect those rights.

One of those rights is a right of members of a religous minority not to be the victim of a government-orchistrated campaign of hostility based on nothing more substantial than the hate that some religions renerate against those who do not share their ideas. There may well be reasons for a government to orchestrate a campaign of hostility against a religion that abuses children or seeks to make the nation subject to a foreign (religious) power like the Pope. However, it has no right to orchestrate a campaign of hate against a minority for no reason other than the majority follows an intolerant religion that preaches hatred towards that minroity.

The Coercion Test, however, frees the government to orchestrate campaigns of hostility against religious minorities. It does not allow the government to actually punish a person who belongs to that minority, but the government can officially recommend that members of that minority be barred from public office, and even encourage its people to view the members of that minority with suspicion and contempt for no reason other than their religious opinions.

This is exactly what the proponents of the Coercion Test want to protect – an existing government-run campaign to generate public hostility against a religious minority. It is needed to protect a campaign of teaching citizens (particularly young children) to have the same hostility towards those who do not favor 'one nation under God' that they should have for those who do not favor 'liberty and justice for all'. It is needed to protect a campaign to teach the people, particularly children, not to think of those who do not trust in God as 'one of us'. Instead, the government lesson is that an American who does not trust in God is like a Marine who is not faithful to his fellow soldier – somebody hardly worthy of the name 'Marine' (or, in the government's case, somebody hardly worthy of the name 'American'.

The Constitutional question is whether the First Amendment protects this type of government-run campaign against a religious minority, or prohibits it? The Coercion Test is clearly the test of choice for those who favor such a campaign, and it is one Supreme Court vote away from becoming the law of the land.