Jeffrey Rosen: High Stakes for Church and State Separation

January, 05 2012

By Jeffrey Rosen

Of all the issues that could be significant in the 2012 presidential election, the future of church-state separation hasn’t gotten much attention. It should however, because in the Republican primaries so far, it’s striking how vigorously nearly all of the candidates—and not just those favored by the Tea Party—have questioned the constitutional basis of the separation of church and state.

From Michele Bachmann and Rick Perry to Newt Gingrich and Mitt Romney, the leading candidates have endorsed a Tea Party vision of religious supremacy, which holds that the Supreme Court in the 1960s was wrong to prevent the government from sponsoring sectarian prayers in school and other open endorsements of religion over secularism. Since the next president could appoint a Supreme Court justice who might tilt the Court further to the right on matters of church-state separation, the stakes for religious freedom in the election could hardly be higher.

As you’d expect, the most vigorous criticisms of church-state separation have come from the Tea Party favorites, Michele Bachmann and Rick Perry. At a 2006 fundraiser for the evangelical group You Can Run But You Cannot Hide, Bachmann defended the group’s goal of bringing the Gospel into public schools. Public schools “are teaching children that there is separation of church and state,” Bachmann declared, “and I am here to tell you that is a myth. That’s not true.”

As for Perry, in his manifesto, Fed Up, he endorses the Tea Party axiom, championed on the Supreme Court only by Justice Clarence Thomas, that the original understanding of the First Amendment’s ban on the establishment of religion was to “prevent a national established church,” not to disestablish state churches. “In the process, the Court has cleansed the schools of prayer…ignoring the Founders’ reservation of such decisions to the states,” Perry writes.

Despite the apparent eclipse of these two candidates, their radical view of church and state remains standard in primary rhetoric. In a Thanksgiving speech to an Iowa church group, Newt Gingrich, who converted to Catholicism in 2009 after being a Southern Baptist, said, “A country that has been now since 1963 relentlessly in the courts driving God out of public life shouldn’t be surprised at all the problems we have.” By attempting “to create a secular country,” Gingrich said, the courts have created something “which I think is frankly a nightmare.”

Gingrich endorsed a school prayer amendment in the 1990s. And in 2005, after declaring that “you can’t find a single line in the Constitution on secularism,” he called for the appointment of more judges like Roy Moore, the former Alabama Supreme Court justice who defied a federal court order to remove the Ten Commandments from his courthouse. In a book published the following year, Rediscovering God in America, Gingrich wrote, “There is no attack on American culture more destructive and more historically dishonest than the secular left’s relentless effort to drive God out of America’s public square.”

By these standards, Mitt Romney’s tepid defense of church-state separationism seems relatively moderate—though perhaps necessary given the fears stirred in some quarters by his Mormonism. In a 2007 speech, Romney declared, “We separate church and state affairs in this country, and for good reason. No religion should dictate to the state, nor should the state interfere with the free practice of religion.” But he went on to declare that “in recent years, the notion of the separation of church and state has been taken by some well beyond its original meaning. They seek to remove from the public domain any acknowledgment of God.
Religion is seen as merely a private affair with no place in public life. It’s as if they are intent on establishing a new religion in America—the religion of secularism. They are wrong.”

What does this mean for the Supreme Court? At the moment, the Court is evenly divided between four justices who seem willing to revisit the school prayer decisions and allow versions of graduation prayer (Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas—all Catholics) and four separationist justices (Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor—three Jews and a Catholic) who want to hold the line on school prayer. The swing justice, Anthony Kennedy (also Catholic) opposes prayer in schools, although he is sympathetic to other public displays of religion. If a Republican wins the White House in 2012, he or she will likely have the opportunity to replace a liberal separationist justice with a conservative religious supremacist. That could mean the overturning of scores of decisions forbidding the public endorsement of religion over secularism, dating back to the 1960s.

A Republican victory could also produce a president who urges Congress to embrace an ultra-conservative vision of religious supremacism that would dramatically increase public sponsorship of religion while radically restricting federal power. In 2010, for instance, the leaders of Gingrich’s anti-separationist organization Renew American Leadership declared that taxation and deficit spending violate the Ten Commandments because they amount to theft.

If this sort of rhetoric continues to be accepted within the Republican mainstream the outcome of the 2012 election could determine whether the separation of church and state remains a sturdy wall or a flimsy barrier.
Jeffrey Rosen is a professor of law at George Washington University and legal affairs editor of The New Republic. He is an editor of the recently published Constitution 3.0: Freedom and Technological Change.

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