March/April 2006

Does religion promote freedom and tolerance? It is a question that might be asked by any observer of the rioting that has followed publication of cartoons in Denmark that offend Muslims worldwide.

Missing were the shouting protestors with placards, the miniature Ten Commandments tablets, and the throng of media representatives. It was almost business as usual the day the Supreme Court heard the term’s sole religious liberty case. Unlike the Ten Commandments display cases that received so much media attention last term and flamed the cultural debates on religion, the case of O Centro Espirita Beneficiente Uniao Do Vegetal v. Gonzalez made its way to the Supreme Court rather quietly. At oral argument in November last year, the case drew the attention mostly of the members of the small religious sect whose central sacrament is threatened by the enforcement of federal drug laws against them.

Amid all the activity of a turbulent year, many missed the March 3, 2005, filing of the Constitution Restoration Act of 2005 (CRA) in both houses of Congress (S. 520 and H.R. 1070). If enacted, the CRA would effectively turn the United States into a theocracy, in which the arbitrary dictates of God—as interpreted or discovered by a judge, politician, or bureaucrat—would override the rule of law.

It has been one of the stranger political alliances in American history: the conservative evangelicals of the Christian Right and America’s Jews, two groups that—given their differences on just about everything from prayer in public school to abortion, taxes, and Jesus—would normally find themselves at each other’s throats, not in each other’s arms. Indeed, the Christian Right is uniformly hard-core Republican, while the Jews—though much less homogenous politically—have traditionally been tried-and-true Democrats. What, then, has kept this strange alliance going?

Behind closed doors at a Religious Right strategy session in Washington, D.C., last spring, James Dobson sounded more like a hardball political operator than a Christian family counselor. Impatient with President George W. Bush and Republican congressional leaders for failing to move quickly enough on the Religious Right’s agenda, Dobson issued a pointed directive.
“We voted for them,” said Dobson, “and now they need to get on with it.”

Has order been restored to the Supreme Court with the appointment of legal wunderkind John Roberts, and Samuel Alito an associate justice? After talk of the Nuclear Option, his easy confirmation seemed like the end of the cold war. The relatively collegial grilling of Judge Samuel Alito—the justice described as filling Sandra Day O’Connor’s shoes—also belied the real battles on the Court. There is indeed a great deal of ideological repositioning that has significant implications for religious freedom in America.

Stories of religious disestablishment in America usually revolve around discussion of the origins and meaning of the establishment clause of the federal Constitution. But the story of disestablishment, at least in the early Republic, was much more a state-centered event. This is true for the simple fact that the First Amendment did not originally apply to state governments. As law professor Carl Esbeck recently noted, “The American disestablishment occurred over a fifty to sixty year period, from 1774 to the early 1830s” and was “entirely a state-law affair,” completely independent of the adoption of the Bill of Rights.

It was the “momentous question” that “awakened” and “terrified” Thomas Jefferson, like a “fire bell in the night.” Jefferson considered it the “knell of the union.” The “question” at issue was ostensibly that of slavery. Jefferson wrote about his nocturnal fright in 1819 and related it to the conflict around the Tallmadge Amendment, which sought to outlaw slavery in Missouri, and the subsequent Missouri Compromise, which averted, or at least postponed, a civil war. But Jefferson of all people knew that the slavery dispute was only the symptom of the real legal question, that of federalism—the proper role the federal government should play in exercising powers and protecting rights in the states.