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COPYRIGHT 2001 Harvard Society for Law and Public Policy, Inc.
I. INTRODUCTION
In addressing what advice on issues of religious liberty a practitioner in the religious liberty field might give to the new President, it almost seems rude to dwell on another branch of government. It would seem more appropriate that advice to the Chief Executive on furthering religious liberty focus on the executive branch, entailing questions such as those which faced the Clinton Administration: whether military chaplains are free to preach about partial-birth abortion,(1) whether to retain a display about Native American worship in a national park visitor's center despite an Establishment Clause challenge,(2) or how to deal with the suppression of student religious speech in public schools.(3) Another proper area of focus would be the President's legislative opportunities, such as whether to support school vouchers and charitable choice as measures that enhance the freedom and equality of religious people and institutions, or to adhere to the view that they are threats to religious freedom.
Try as I might to focus on these issues, one clause of Article II, Section 2 refuses to be ignored: "[A]nd he shall nominate, and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by law." Two powers within this clause-the power to appoint Justices of the Supreme Court and the power to appoint other federal judges (hidden in the catch-all "other Officers" language) -- have arguably become the primary engine of the federal government's policy on religious liberty issues.
Things were not supposed to be so. The Framers certainly intended the Constitution to be the supreme law of the land and the legislative will subservient to it. As Hamilton wrote, "[T]he constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."(4) But the Framers nevertheless conceived of the judiciary as "the least dangerous" branch.(5) Madison observed in Federalist No. 68 that because of the specificity with which the judiciary's role is defined in the Constitution "projects of usurpation ... would immediately betray and defeat themselves"(6) Hamilton was even more optimistic. He remarked in Federalist No. 81 that
the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is, in reality, a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system.(7)
Experience has not been kind to Madison and Hamilton's prognostications. As Abraham Lincoln observed in response to the Dred Scott decision: "[T]he candid citizen must confess that if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court ... the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."(8) Nor have the Federalists' predictions held true in the twentieth century, particularly on the issue of religion in public life. Since the incorporation of the Establishment Clause in Everson v. Board of Education,(9) it has been the federal courts that have largely determined national, state, and local policy on the proper role of religion in public life. The issues of whether prayers(10) or moments of silence(11) are appropriate in school, what types of holiday decorations will be seen in towns each December,(12) and whether disadvantaged children attending parochial schools will receive the same special educational services public school children receive(13) are but a sampling of areas in which the Supreme Court has co-opted the field.
The Supreme Court's influence is not limited to directly determining what practices are permitted and which are forbidden under the Constitution. As Judge John Noonan has observed: "Through its pronouncements current conventions about the Constitution take compact shape, decide cases, provide guidance to public officials, and stimulate debate, reaction, and the development of further pronouncements."(14) The law is a great moral teacher; Hadley Arkes has remarked, "As the ancients knew, and the moderns confirmed, the laws may reshape the attitudes of the public, and they may instruct people in new understandings of the duties they owe one another."(15) And the decisions through which the Court is instructing the public -- not to mention delivering edicts that have the force of law -- rest on the narrowest of margins.(16)
Despite the compelling reason to start with-and remain on -- the subject of judicial appointments, there are good reasons to refrain from doing so and to first discuss the President as Executive and as participant in the legislative process. The first such reason is the importance of tone. The President through myriad subtle means controls the debate on, and shapes public perception of, the complicated and often divisive issue of religion's proper role in public life. Second, the President oversees a vast network of governmental interactions with religion through such diverse agencies as the Department of Housing and Urban Development, the Department of the Interior, and the Department of Defense, not to mention independent agencies over which the President exercises some degree of control, such as the Equal Employment Opportunity Commission (EEOC) and the Federal Communications Commission (FCC). Through implementation of Administration policy by these agencies, the President has the power to create positive examples of the proper accommodation of faith in public life and to shape perceptions of the public and the courts. Third, as overseer of the Department of Justice, the President has significant control over which cases will be brought to court, what theories will be advanced when the United States is a party or an amicus curiae to an action, for which cases the Solicitor General will seek certiorari, and what legal guidance will be given to various agencies.
The President also has the power under the Constitution to propose (and thereby to champion in the public arena) legislative measures to protect religious freedom. This is particularly important in the realm of Free Exercise Clause protections, in which the Supreme Court has cut back on the scope of the Free Exercise Clause and simultaneously invited the federal and state legislatures to take on the role of accommodating religious practices.(17)
As both Chief Executive and Persuader-in-Chief, the President can thus do much to influence positively the federal government's policy toward religion. This Article explores are five areas in which the next President can and should do so, followed by a discussion of how the appointment power ultimately frames the debate in each of these areas.
II. FRAMING THE CONTOURS OF THE PROBLEM
Both major-party candidates for the Presidency in the 2000 election publicly articulated a compelling portrait of how faith's place in the public square has been devalued, and have made thoughtful statements suggesting a better approach. Vice President Al Gore derided the "hollow secularism" of the left while also criticizing "[s]ome on the right [who] have said for too long that a specific set of religious values should be imposed."(18) He recognized that our Founders, who "believed deeply in faith ... created the Bill of Rights in large measure to protect its free expression."(19) And, noting that the greatest need at the time of the Founding "was to protect believers of one faith from religious coercion by others [, t]oday, we also need to ensure that believers of all faiths are free to engage in national dialogue and community action-without feeling that they must hide their religious beliefs."(20)
The former Vice President called for faith-based organizations "to have a seat at the national table when decisions get made,"(21) and has proposed "carefully-tailored partnerships"(22) with them for the delivery of social services.
Our new President George W. Bush has similarly criticized the exclusion of religion from public life and has called for change. In his Republican Party nomination acceptance speech, he highlighted the important role that faith-based social service providers play, and explained why government should support them: "[Government] can feed the body, but it cannot reach the soul. Yet government can take the side of these groups, helping the helper, encouraging the inspired."(23) Bush has supported greater freedom for student religious expression in public schools.(24) In 1996, then-Governor Bush signed an executive order prohibiting state agencies from discriminating against religious charities or imposing regulations that secularize. He also took actions as governor to reduce excessive regulatory interference with religious organizations.(25)
Gore and Bush were not, of course, the first to recognize a hostility in many quarters to religion in public life. In his influential 1984 book, The Naked Public Square,(26) Richard John Neuhaus expressed alarm at the degree to which religion had been banished from the public square in the United States. By public square he meant not only government activities but also work, entertainment, education, and everyday interactions among individuals and communities. He argued that "in the public arena ... in order to gain admittance, we are told to check our deepest beliefs at the door."(27) Neuhaus emphasized that "[t]he public square is not limited to Government Square. At the same time-and for reasons that may be nearly unavoidable -- government impinges upon all public squares."(28)
In another influential book, The Culture of Disbelief, Yale Law School Professor Stephen Carter describes "a common rhetoric that refuses to accept the notion that rational, public-spirited people can take religion seriously."(29) Carter, while a strong supporter of protecting faith from political corruption and protecting government from religious control, believes that we have taken the principle of government and religion occupying completely separate spheres too far. "In our sensible zeal to keep religion from dominating our politics, we have created a political and legal culture that presses the religiously faithful to be other than themselves, to act publicly, and sometimes privately as well, as though their faith does not matter to them."(30) Like Neuhaus, Carter expressed amazement that the religious aspect of Martin Luther King's life is downplayed,(31) despite King's unrepentant emphasis that God's authority is precedent to the authority of civil society and thus "just law is a man-made code that squares with the moral law or the law of God."(32)
The cultural problem identified by Neuhaus and Carter, as both authors recognized, tracked what was going on in the courts. Professor Michael McConnell has described the Religion Clause jurisprudence of the Warren and Burger Courts as "press[ing] relentlessly in the direction of a more secular society. The Court's opinions seemed to view religion as an unreasoned, aggressive, exclusionary, and divisive force that must be confined to the private sphere."(33) The degree to which the Court led the culture on this score, or was led by the culture generally or by trends among elites, is impossible to determine with precision.
Former President Clinton also addressed this problem in speeches and radio addresses. Citing Professor Carter in a speech unveiling his Administration's guidelines on religious expression in the public schools,(34) President Clinton noted that tension has resulted from the idea that "religion is simply not welcome at all in ... the public square. Americans feel that instead of celebrating their love for God in public, they' re being forced to hide their faith behind closed doors."(35) The guidelines themselves state in their introduction that "nothing in the First Amendment converts our public schools into religion-flee zones, or requires all religious expression to be left behind at the schoolhouse door."(36)
This problem of many people viewing personal religiosity as out of step with modernity, and public displays of it as the equivalent of "second-hand smoke, something which you can indulge in private but which the government must protect you from in public,"(37) is an troubling phenomenon touching a wide range of society. Public schools provide some of the most colorful examples, such as the boy who inadvertently started a holy war of sorts that ultimately deadlocked the en bane Third Circuit. First-grader Zachary Hood was barred from reading a story called "A Big Family," based on the Old Testament story of Jacob and Esau, that he had brought to school in response to an opportunity to bring a favorite story to share with the class.(38) Such school incidents range from the comic--a move to rename Saint Valentine's Day "Special Person Day"(39) to avoid tying the day to a Catholic Saint--to the tragic, such as that of the high school student in Cameron County, Pennsylvania whose funeral announcement over the school public-address system was censored of its "religious" content, namely the vaguely redemptive phrase "we will come full circle" and a reference to "our creator."(40)
Children do not get a break from this over the summer, with similar incidents occurring at day camps, including an eight-year-old girl barred from singing Kurn Ba Yah in a talent show.(41) Job applicants with certain religious indicia on their resumes are suspect(42)--indeed personality tests such as the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) and California Psychological Inventory (CPI) have flagged the deeply religious as psychologically unqualified.(43) Similarly, applicants for elite educational opportunities often need to tone down or hide their religious feelings to improve their chances for admittance.(44) Religious symbols and garb are often unwelcome in the public square, as in the case of the Jewish attorney ordered to remove his yarmulke in court in Texas,(45) or the elderly Sikh priest arrested on weapons charges for carrying a ceremonial "dagger" that was as dull as a butter knife.(46) The public workplace sometimes is aggressively secularized, something a supervisor for Polk County, Iowa discovered when he was ordered to take down the ubiquitous serenity prayer from his wall.(47) Holidays celebrated by towns frequently have their religious origins watered down to the point of absurdity.(48)
The new President has taken office at a time in which we may be in the midst of a reversal of these trends. There appears to be a growing recognition of the salience of religious faith in public life, as evidenced by the attention given to it by the 2000 presidential election candidates, the mass media, academics, and judges.
The new President has a unique opportunity to reclaim the Founders' understanding of religion's positive role in public life--an understanding that fueled the abolitionist movement, the progressive movement, the civil rights movement, and even the American Revolution itself.(49) The notion that religion must be completely excised from the public square and relegated to a personal lifestyle choice best engaged in behind closed doors would have been incomprehensible to the Founders. Commentators as diverse as Russell Kirks(50) and President Clinton have noted that "It]his country ... was founded by people of profound faith who mentioned Divine Providence and the guidance of God twice in the Declaration of Independence."(51) As former federal judges Arlin M. Adams and Charles J. Emmerich wrote in their excellent analysis of the foundations of the Religion Clauses, though it may be that "[a]ny attempt ... to read the beliefs of certain Founders, no matter how prominent, into the First Amendment is apt to produce indefensible and culturally unacceptable results[,]" it is certain that the Founders "were virtually unanimous in the belief that the republic could not survive without religion's moral influence. Consequently, they did not envision a secular society, but rather one receptive to voluntary religious expression'(52) Washington said in his Farewell Address:
[L]et us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle. It is substantially true that virtue or morality is a necessary spring of popular government.(53)
Similarly, the Federalist Papers are infused with references to the religious underpinnings of the Constitution.(54) The same week that Congress approved the Establishment Clause as part of the Bill of Rights for submission to the states for ratification, it appropriated funds for the hiring of House and Senate chaplains.(55) Washington, Adams, and Madison proclaimed days of Thanksgiving that invoked God,(56) though Madison later believed that it was a mistake to do so at the federal level.(57)
Indeed, even Madison and Jefferson, who opposed special tax assessments for the support of religious seminaries in Virginia,(58) and are clearly the favorite Founders for those advocating a strict separation of church and state, believed that religious liberty came from God. As Jefferson set forth in the preamble to his Statute of Religious Liberty, coercion in religious matters is against God's will:
Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do[.](59)
Similarly, Madison's Memorial and Remonstrance Against Religious Assessments declares that it is a
fundamental and undeniable truth, "that Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence." The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.... It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society.(60)
It was the elimination of coercion in matters religious, as being inconsistent with God's will, that was of greatest concern to the Founders. Madison, in particular, saw the Free Exercise Clause as a bulwark against governmental interference with conscience and citizens' actions based thereon.(61) The same is true for the Establishment Clause. As Professor McConnell has noted, "The generation that adopted the First Amendment viewed some form of governmental compulsion as the essence of an establishment of religion."(62)
Although our Establishment Clause jurisprudence may be "in hopeless disarray," as Justice...
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