The Cultural Hostility to ReligionPatrick M. Garry (MA 47:2, Spring 2005) - 11/28/08
With First Amendment freedoms, the courts act as guardians, protectors from whatever social and cultural attitudes might threaten those freedoms. In the area of religion, however, the courts have not been so steadfast. According to a recent study completed by legal scholars from the University of Virginia, political attitudes and conflicts have shaped the Supreme Court’s Establishment Clause opinions more than have original intent or constitutional precedent.1Indeed, liberal justices find Establishment violations more often and readily than do any other justices.2
Overall, the Court has been far more hospitable to free speech cases than to cases involving religious expression or exercise. In the speech area, the courts have taken a somewhat monolithic approach: protecting the speech no matter what the argument for censorship is. Everything from sexually explicit speech to hateful insults to flag-burning to offensive art to profanity is protected, all under the theory that the marketplace of ideas requires the most speech possible. Almost never do the courts look into what discomfort or antagonism the speech might cause, nor into how valuable the speech is for a democratic society. And yet, in Establishment Clause cases, judges justify their restricting of religious expression on any number of grounds, many of which relate to perceptions of the social divisiveness or alienation that religion might cause. But if fear of social strife were sufficient to counteract expressional or associational freedoms, then clearly racial speech and affirmative action programs could be censored or prohibited. As Alan Schwarz has written, “if avoidance of strife were an independent constitutional value, no legislation could be adopted on any subject which aroused strong and divided feelings.”3
Since the 1960s, critics in the media and academia have argued that religion should not be allowed to have any public presence. In stark contrast with the views of the constitutional period, these critics have pushed for complete separation of church and state, on the grounds that religion should be an entirely private matter. But such privatization can end up eliminating religion totally from the public sphere. The case of Sechler v. State College Area School District, for instance, shows how far school administrators have gone in trying to rid holiday celebrations or displays of any Christian identity. In Sechler, the school’s winter holiday program was filled with symbols for Kwanzaa, Chanukah, and the Swedish festival of St. Lucia, but no Christian symbols were allowed. And reflecting how a once religious holiday has been consumerized, the song sung during the program was called “Bruno’s Christmas at the Mall.”
An anti-religious secularism was even revealed in the wake of the 9/11 terrorist attacks. To many secularists, it was religion that had prompted the attacks. As philosopher Richard Rorty sees it, religion fosters intolerance and extremism.4Critics claim that religion is undemocratic and encourages a blindly obedient, herd-like mentality. According to Professor Ira C. Lupu, religion undermines the ability of citizens to exercise independent and critical judgment.5In a similar vein, Professor Steven Gey states that religion is “fundamentally incompatible” with the requirement that in a modern democratic state “there can be no sacrosanct principles or unquestioned truths.”6Political theorist Amy Gutman, now the president of the University of Pennsylvania, argues that education must serve as a mechanism to “convert children away from the intensely held [religious] beliefs of their parents.”7Educator John Goodlad agrees that schools “should liberate students from the ways of thinking imposed by religions and other traditions of thought.”8These views, according to Frederick Mark Gedicks, reflect a secular individualism that sees religion as “a cynical, disintegrating force bent on subverting”9the civil rule of law through “the irrational, passionate, and violent overthrow of rationality, reason and peace.” To secularists, religious adherents are often seen as violent revolutionaries.
Many Americans are suspicious of “high intensity faiths” and of churches that are considered “conservative” or “evangelical.”10Nearly half of all Americans have admitted to “‘mostly unfavorable’ or ‘very unfavorable’ opinions of ‘religious fundamentalists.’”11Despite the fact that the religiously devout are expected to tolerate society’s views on sex, birth control, abortion, and evolution, there is little attempt to tolerate a religiously devout view on such subjects. Yale University has refused to allow any on-campus recruiting by the Christian Legal Society, on the grounds that the Society favors Christians and disapproves of homosexual conduct.12When the New York City board of education decided as part of its sex education program that every student in public school be taught how to use a condom, even though the practice violated the religious beliefs of Catholics, Orthodox Jews and Muslims, families who were offended by the practice were not initially even given a chance to opt out of the program.13
Judicial Reflections of the Hostility Toward Religion
The cultural criticisms of religion have been echoed by judges. Justices John Paul Stevens and Stephen G. Breyer have argued that public aid to religion will foster political discord and tear the social fabric underlying American democracy. Drawing on experiences from the Balkans, Northern Ireland, and the Middle East, Justice Stevens wrote: “Whenever we remove a brick from the wall that was designed to separate religion and government, we increase the risk of religious strife and weaken the foundation of our democracy.”14Justice Breyer likewise noted that “the Establishment Clause concern for protecting the Nation’s social fabric from religious conflict” justifies the exclusion of religious groups from public support.15
These views see religion as a divisive force, and that it is the Court’s role to quell any conflicts that might arise from the religious practices of a diverse people, even though such a position seems to run counter to the idea of free exercise. Consequently, judges holding these views employ a broad reading of the Establishment Clause in an effort to confine religion to a tightly-boundaried private realm within society. They see the Establishment Clause as a kind of social regulator, minimizing any discomfort or conflict caused by a vibrant religious presence.