Yesterday I gave a short history of the development of religion, with particular emphasis on how religious liberty has evolved, in America. I ended with the more recent developments that include the rise of secularism and pluralism.
While large sections of America are still deeply committed to the expression of faith in more traditional forms this is clearly changing. When the fastest growing segment of the population, in terms of religious preference or choice, is "none" then we know times are changing. This percentage is now 15% and growing by 0.5% a year presently. In addition, the percentage of people under 35 who attend church has plummeted in less than one generation to virtual all time lows for church attendance in America.
Enter the voice of pluralism into the public context. Pluralism's problems are most evident in the area of litigation and political controversy. Since the 1940s the U.S. Supreme Court, along with many state and most federal courts, has been asked to resolve numerous problems that have arisen because our once homogenous society is no longer a reality. The toughest issues concern public education and what may be taught or not taught and done or not done on school property or in a public classroom. In private education the challenges have come in terms of applying public tax money to private schools.
Respected historian Edwin S. Gaustad writes: "In some cases religion remains at the core of American culture, but the nature of that religion and the depth of that care are in steady flux."
The Establishment Clause
The Establishment Clause refers to the first of several pronouncements in the First Amendment to the United States Constitution stating that "Congress shall make no law respecting an establishment of religion." Together with the Free Exercise Clause, which says "... or prohibiting the free exercise thereof" (which I shall consider tomorrow in more detail) these two clauses make up what are commonly known as the "religion clauses" of the First Amendment.
The establishment clause has generally been interpreted to prohibit 1) the establishment of a national religion by Congress, or 2) the preference of one religion over another or the support of a religious idea with no identifiable secular purpose. The first approach is called the "separation" or "no aid" interpretation, while the second approach is called the "non-preferential" or "accommodation" interpretation. The accommodation interpretation prohibits Congress from preferring one religion over another, but does not prohibit the government's entry into religious domain to make accommodations in order to achieve the purposes of the Free Exercise Clause.
Where the Establishment Clause Shows Up in the Courts
The Establishment Clause surfaces with regard to issues of government funding for religious activities and organizations. The biggest battle in this area has been in cases where issues like school voucher programs are involved. A case in 2000, called Mitchell v. Helms, allowed the court to pare back a standard set in a 1971 case, Lemon v. Kurtzman, and thus loosened the strictures on direct government aid to pervasively religious organizations. Political conservatives see this as a victory. I do not because of the obvious entanglement of government in subsidizing clearly religious programs or organizations. For me this is not a liberal vs. conservative issue, but an issue of church-state, an issue in which I often find myself at odds with modern religious conservatives.
Other Establishment Clause cases during the last decade or so dealt with issues of religious speech and sectarian symbols. Government-sponsored student prayer was ruled out by Santa Fe School District v. Doe (2000). I have been amazed, for more than four decades now, at the arguments Christians make for "prayer in school." Regardless of how or why school prayer was removed from public education I believe it was not only a sound decision but one that supports the right understanding of the Establishment Clause.
I often ask church groups, "Why do you want prayers said in public schools when you say so few in church these days?" And, "Who is going to write or monitor the prayers that get prayed in public schools in a pluralist and secularist culture like our own?" No, I prefer that Christians pray as Christians, overtly and faithfully. We do not need the state to help us pray or permit us to pray.
In McCreary County v. ACLU of Ky. (2005) the Supreme Court ruled that the posting of the Ten Commandments, absent a clear and compelling secular purpose, was prohibited. This hotly debated subject needs to be seen more clearly by conservatives. In Van Orden v. Perry (2005), a case in which the Ten Commandments were displayed alongside of many other monuments, the decision was different for very good reason. This kind of display has gone unprotested for decades and there is little sense that the Supreme Court would change this in the decade ahead. The difference in the two cases is compelling and clear to my mind.
A Weird and Revealing Case
In the United States, Establishment Clause issues generally arise when a Christian majority uses its political power to enact legislation consistent with Christian teachings. But such issues may also arise when a local government is controlled by members of another major religion or even a religious cult. Such was the case in Antelope, Oregon, in the early 1980s.
From 1981 to 1985 a religious cult exercised political power in Wasco County, located in central Oregon. A group called the Rajneeshes, named after their spiritual leader Bhagwan Shree Rajneesh, moved into Antelope, Oregon (prior population of 40) and renamed the town Rajneesh. Three times each day the Bhagwan would visit his followers: once in a morning meditation session and twice in drive-bys in one of his twenty Rolls Royce automobiles.
The Antelope City Council was controlled by Rajneesh, wearing the red garb of the cult. The Rajneesh used its political power to make sweeping changes in Antelope. For example, traditional education was abandoned in favor of an "open classroom" format more consistent with Rajneesh values. The police force became the Peace Force, with Peace Force members wearing red uniforms. Local residents complained of being followed and harassed by Peace Force officers who, they alleged, were trying to drive all non-Rajneesh out of town.
The reign of the Rajneesh finally came to an end following revelations of numerous scandals and a crackdown by the INS.
What Would You Do?
If you were a member of a court, and dealt with a case like this one, what would you do? Can a religious group take over a municipality and establish clearly religious law for the community? Can they use the secular government to serve their theological goals? How you think about a weird case like this one will go a long way toward determining how you understand many of the less weird cases the courts face every day.
Tomorrow: The Free Exercise Clause
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