My recent columns here on Verdict and on Dorf on Law paint an unmistakable picture of doom and gloom. Perhaps the purest distillation of that pessimism was my column last week, “Dead Democracy Walking,” in which I explained why the Republicans’ years-long assault on constitutional democracy—an assault that began long before Donald Trump took over the party, but which has accelerated ever since then—has already delivered fatal blows to democracy. Even though it is not yet obvious that the system is all but dead, it soon will be apparent.
That is very heavy reading, and the conclusions are not at all welcome. I then explained that, going forward, I will write essentially two types of columns: I will either “identify an issue, stipulate that my analysis is likely to become obsolete when the country’s rule of law finally ends, and then … analyze the identified issue as if the country’s anti-democratic future is not already ordained[, or] I will in some cases return to thinking about what a post-democratic America will look like. … Either way, my analysis will proceed from the assumption that democracy will soon be dead in this country.”
Today’s column represents a twist on the second of those types. Here, I will take this country’s irreversible slide into a lawless one-party autocracy as a liberating moment, making it possible to think about what a better political and legal system would look like. With so many unknowns facing us, why not think about a much better world, either to imagine what could be built in some future time when we (or our heirs) bring democracy back to this country, or simply to imagine what we could have been doing better all along?
Let’s Talk About Religion!
I could certainly describe a better version of the Electoral Count Act, or a budgeting system without the insane debt limit statute, or a tax system that would undermine the entrenched plutocracy in this country, or any of a number of other issues. Today, however, I will talk about religion in a pluralist society under a constitutional rule of law.
Having chosen a topic that is always controversial, I should stipulate two things. First, I am not a constitutional law scholar. Although I can claim expertise in some specific areas of constitutional law, especially with regard to the debt ceiling, I am a tax guy, not a con law guy. This is in part because I find tax law and economic policy interesting and important on their own merits, but it is also in part because con law is a field in which many of the discussions have devolved into focusing on minutiae that I find uninteresting—or are simply so far off the rails that scholarly interventions seem useless.
For example, the state of constitutional doctrine regarding the Commerce Clause is so corrupted by this point that even the best scholarship must take as a starting point assumptions that are impossible to take seriously. Similarly, when looking at the Supreme Court’s doctrine regarding gerrymandering, or affirmative action, or allowing conservatives to avoid “complicity” in things like labor unions, where would one even begin to enter the conversation? I admire my colleagues (including many of my co-columnists here on Verdict) who can do so—and do so quite well—but here I simply wish to state clearly up front that I am not holding myself out as a First Amendment scholar or an expert on the religion clauses in their current form.
Second, some elements of my personal history will most likely seem relevant to many readers of this column. My father was a Presbyterian minister, and I grew up in a midwestern suburb where he led a church with a membership of about 1500. Not a mega-church by any means, but also not a small parish. This was before the Civil War-fueled separation between the northern and southern branches of the Presbyterian church had ended, and the doctrine and style of our church (like most in the United Presbyterian Church) was socially liberal for its time. For his part, my father viewed his ministry as an opportunity to help people in need (both spiritually and otherwise); and although he certainly cared deeply about scriptural matters and held a Ph.D. in theology, he was the opposite of a rigid doctrinalist.
When I was old enough to think for myself, I became an atheist. This was in part because I simply could not find the faith needed to believe things beyond reason, but also because I had seen too much of the inside of institutionalized religion to take all of the piety seriously. I have no doubt that many—maybe most—people who express religious views are quite sincere, but the hypocrisy and ungodly pettiness of religious institutions was simply too much for me. Even beyond the venality of those who would use religion to enrich themselves or exploit others, what bothered me most was the ad hoc exceptions to supposedly universal rules on which so many people of avowed faith relied.
I explain all of this not to try to convince anyone of anything regarding their own religious views. Instead, it is important simply to say that I have seen religion from the inside, that I have personally rejected it, and that knowing these facts about the author is likely to be useful to anyone reading this column.
This also explains why I added the “irony alert” to the title of this piece. Given that I do not believe in any gods, my exercise today—thinking about what a better version of the Constitution would say about religion—from the standpoint of asking “what to do, if I were God,” is meant to poke fun at myself. The device, for me, is no different from a king-for-a-day fantasy.
What Should the Constitution Say About Religion?
One reason to begin an effort to think about how to exist in a post-constitutional world by thinking about religion is that the particular excesses of religiosity in the United States have largely driven the country into the situation in which we now find ourselves. For example, those who present themselves most dramatically as being driven by religious principles have been more than willing to give Donald Trump one pass after another, because even though he represents virtually everything that conservative Christians claim to reject, he gave them power here on Earth. There is a reason, after all, why some deeply religious people have been offended by the profanity of it all, writing columns with titles like: “Trump evangelicals have sold their souls.”
The process long predates Trump’s emergence, however. Fights over school prayer and especially abortion have fueled the fusion of conservative Christians with the Republican Party for decades. The most damaging result of this has been the installation of the six religious extremists who currently serve on the Supreme Court, along with dozens more in the lower courts. And the political payoff has been handsome.
This means that thinking about what a better Constitution would look like—especially on questions of religion—in large measure involves advocating little more than “the opposite of what those guys did.”
Take a decision like Town of Greece, which found no constitutional violation when the government of a suburb of Rochester, NY, began its public meetings with official prayers—with the Court’s majority saying that “[l]egislative prayer, while religious in nature, has long been understood as compatible with the Establishment Clause.” Yes, that has “long been understood,” but even at that, the Court was divided 5-4, meaning that there was a more than colorable reason to think that the Greece policy went too far, even in the permissive context of current First Amendment jurisprudence.
But in any event, what would the world look like if we addressed issues de novo, such that it would not matter what has “long been understood”? Those who have been willing to read their own religious beliefs into the text of the Constitution typically offer arguments that rely on the supposed devoutness of the Framers, which is irrelevant here, or to the idea that the Christian majority should be allowed to do whatever they want, and the rest of us simply have to stop being so sensitive.
Yet when a public official once mentioned (correctly) that religion has been historically used as an excuse to engage in discrimination, adding that “it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others,” the Court’s conservatives were appalled and leapt to defend the sensibilities of the people who lack the ability to distinguish between someone saying that “misusing religion to harm others is despicable” and “religion is despicable.” Why does the word “snowflake” come to mind?
Again, however, these Court decisions were all handed down in the context of an increasingly tilted body of case law that carved out exception upon exception to the Establishment Clause, making the Free Exercise Clause a vehicle by which to allow even public-facing companies to claim offense at being subject to laws of general application. Writing on a blank slate, none of this would have been even a close call.
To be clear, I am indeed approving of the view (certainly “extreme,” by current standards) that would prevent government from taking measures that amount to any endorsement of religion. That still leaves some line-drawing to be done. Everyone can agree, for example, that we should “require that a public fire department put out fires at churches no less than at movie theaters,” but government use of religious symbols—even those that arguably no longer have religious significance—should not be permitted (such as crosses on public land).
This also means, as another implication, that there would be no state-recognized religious holidays of any kind. If people want to have Christmas Day off, they can use personal days. Same for Festivus. And starting from scratch, we would have no reason to allow religious influences in public courthouses, coinage, or anything else.
Would this amount to discrimination against religion? Hardly. Courts could, and surely would and should, continue to refuse to take sides in religious disputes. For example, in the famous Bob Jones case, the Court was confronted with an interpretation of religious doctrine that was surely unfamiliar to most people who (like me) had grown up in a Christian home. Based on an interpretation of some Old Testament passages, the petitioners believed that there are three races—“Orientals and Negroes” (one race), “Hebrew,” and “Caucasian”—and that those races must not be allowed to mix. On that basis, the petitioners prohibited interracial marriage and dating (or even advocating to allow interracial marriage or dating) on their campuses.
Did the Court say, “Wow, we’re familiar with the Judeo-Christian tradition, and it contains nothing to justify this interracial panic”? Of course not, because the Court knew that it did not want to go down the road of saying which religious ideas are legitimate. From any given perspective, all other views are necessarily beyond the pale.
Rather than challenge the claim that the petitioners “engage in racial discrimination on the basis of sincerely held religious beliefs,” then, the Court said that it did not matter whether the belief was sincere or not. The ruling against the petitioners was thus not an insult to their unique religious views but simply a statement that every good society requires rules of general application. Our society views institutionalized racism as “contrary to a fundamental public policy,” the Court held, even if motivated by religion.
Even there, the Court could have gone further. Bob Jones was in fact a tax case because the question was whether those racist policies made the petitioners ineligible for the benefit of the tax deduction for charitable donations. Although the Court directly stated in its opinion that any deduction amounts to a state subsidy (because it means that the government reduces its revenue to allow individuals to financially support a charity), and it held that we cannot allow the government to support religious organizations that discriminate against interracial couples, it did not take the next obvious step and admit that the charitable deduction for religious donations is a subsidy for religion, full stop. The Court should have done so.
Although I was very clear above that I no longer have any religious faith, nothing that I am saying here is anti-religion. Many religious scholars are among the most passionate in advocating a strict divide between church and state, and that view very much includes an understanding that to be subsidized by the state is to be dependent on the state. Losing tax exempt status is a huge deal for religious organizations precisely because they are now so deeply dependent on continuing to receive that subsidy.
These examples of how policies would be different in a from-scratch new world hardly cover the terrain of religious questions, but this column is already long enough. My purpose here has been to ask what we would do about religion in the public sphere if we were to work from first principles. It is depressing and instructive that these answers are nearly 180 degrees from what current Supreme Court jurisprudence allows.