A Country I Do Not Recognize

by Robert H. Bork

  In Elk Grove Unified School District v. Newdow (2004), Michael Newdow, an atheist opposed to any trace of religion in the public square, took aim at the words “under God” in the Pledge of Allegiance. Congress had added the two words to the Pledge in 1954, and his daughter attended a California public school where students were given the opportunity (but not required) to recite the pledge each day. Newdow sued Congress and the school district, alleging that both governments were in violation of the establishment clause. The Ninth Circuit agreed with both claims. Reviewing only the challenge to the school district, the Supreme Court concluded that Newdow lacked standing to bring his lawsuit.31 The Court thus did not reach the merits of the constitutional issue. Still, what’s notable about the Newdow case is its inevitability, for under the Court’s various establishment-clause tests (Lemon, “endorsement of religion,” “coercion”) the 1954 Pledge would seem clearly in violation of the First Amendment. Someone committed to a completely secular public square was going to pursue a case based on the Court’s precedents, and Newdow did. Someone else will follow him, and someday the Court might decide the “under God” question. Because of the precedents, the only way the Pledge might be saved is for a majority to disregard the law and to construe “under God” (disingenuously) as lacking any serious religious meaning. Thus did Justice Sandra Day O’Connor write separately in Newdow to say that she would have upheld “under God” as “ceremonial deism.” Likewise, in his separate opinion, Justice Rehnquist said he would have upheld the words as “a patriotic observance.”

  “No Law . . . Prohibiting the Free Exercise Thereof”

  One of the few religion cases decided before Cantwell v. Connecticut (1940) was Reynolds v. United States (1879).32 Acting under a federal antibigamy statute, the government sought to end Mormon polygamy in what was then the territory of Utah. George Reynolds, secretary to Brigham Young, was convicted of bigamy. The Supreme Court declined to reverse, rejecting Reynolds’s argument that he should be exempted from the law because his faith taught that he could take more than one wife. The Court distinguished between belief and action: government may not punish citizens for their religious beliefs but may regulate religiously motivated actions—in this case Reynolds’s bigamy—if it has a rational basis for doing so. Rare is the government unable to demonstrate a “rational” basis for what it does.

  Reynolds remained the law until Sherbert v. Verner (1963).33 Adell Sherbert, a Seventh-Day Adventist, was fired by her South Carolina employer because she refused to work on Saturday, the Sabbath of her faith. Unable to find a job where she wouldn’t have to work on Saturday, she filed for unemployment compensation. South Carolina rejected her claim on the ground that she was ineligible for such benefits because she had refused to accept suitable work that included Saturday employment. Sherbert went to court, alleging a violation of the free exercise clause. Not surprisingly, given the law of Reynolds, the South Carolina Supreme Court held for the state. But the U.S. Supreme Court reversed, holding that South Carolina had forced Sherbert to “choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other.” The Court asked whether the state had some “compelling interest” that might sustain its action and concluded that it had none. Sherbert produced new doctrine: Government actions that substantially burden a religious practice must be justified by a compelling governmental interest. If government has no such interest, then it must create an exemption for the conduct.

  Sherbert was followed by Wisconsin v. Yoder (1972).34 At issue was a Wisconsin law requiring parents of all children to send them to private or public schools until they reached age sixteen. Some Amish parents refused to send their children, ages fourteen and fifteen, beyond the eighth grade. They justified their action through their faith. Convicted of violating the compulsory-attendance law, the parents sued on free exercise grounds. The Court, unable to credit Wisconsin with a compelling interest, agreed with them. The irony of the case was that the exemption the Court demanded for the Amish might well have been declared an unconstitutional establishment of religion had the Wisconsin legislature enacted it.

  The Court limited the reach of Sherbert in Employment Division v. Smith (1990).35 Alfred Smith and Galen Black ingested the hallucinogenic drug peyote during an American Indian church ceremony in which the drug was sacramentally used. Smith and Black, who worked with a private drug-rehabilitation organization, were then fired from their jobs for using the drug. When they filed for unemployment compensation, Oregon judged them ineligible for benefits because they had been fired for work-related “misconduct”—ingestion of peyote, possession of which is a felony in that state. Smith and Black challenged the state’s decision on free exercise grounds, seeking an exemption from otherwise valid law. But a five-justice majority held for Oregon. “[A]n individual’s religious beliefs,” wrote Justice Antonin Scalia for the Court, “[do not] excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”

  Scalia declined to apply Sherbert’s demand that Oregon produce a compelling interest in support of its denial to Smith and Black of unemployment compensation. Scalia expressed concern that requiring a compelling interest in a case like Smith would produce “a private right to ignore generally applicable law.” Scalia’s position—that “generally applicable, religion-neutral laws that have the effect of burdening a particular religious practice need not be justified by a compelling governmental interest”—meant that legislatures, not courts, would mainly decide whether conduct exemptions might be warranted. Central to Scalia’s objection to the compelling interest standard was that courts would “constantly be in the business” of deciding which conduct exemptions might be warranted. In 1991—as the legislatures of Arizona, Colorado, and New Mexico had done earlier—the Oregon legislature voted to make an exception to its drug law for sacramental peyote use.

  Smith led to federal legislation creating a more stringent test in evaluating free exercise claims. The Religious Freedom Restoration Act of 1993 was passed by unanimous vote in the House and with only three votes against in the Senate. A Catholic church in Boerne, Texas, reached for the help of the new law when city officials denied it permission to enlarge its building in a neighborhood zoned for historic preservation. In City of Boerne v. Flores (1997) the Supreme Court found that Congress had exceeded its constitutional authority in passing the statute.36 Smith remained good law, and the task of carving out exemptions for religiously based conduct remained with legislatures.

  Smith, of course, did not say what the free exercise clause actually demands of government. In 1993 the Court began to fill in that blank. At issue in Church of the Lukumi Babalu Aye, Inc. v. Hialeah was a Florida city’s effort to render illegal the practice of the Santería religion.37 The Court unanimously struck down regulations that did not mention the religion as such but were clearly aimed at outlawing its rituals, which involve animal sacrifice. The free exercise clause, said the Court, means that government may not suppress specific religious practices.

  Also in 1993 the Court reviewed another free exercise question in Lamb’s Chapel v. Center Moriches Union Free School District.38 Lamb’s Chapel applied for after-hour use of school facilities to show the James Dobson videos on raising Christian families. The school district denied the application, whereupon Lamb’s Chapel challenged the regulations, which allowed social, civic, and recreational uses but forbade those for religious purposes. The Court unanimously held for Lamb’s Chapel, but the majority relied on the First Amendment’s free speech clause, not the free exercise clause: the school district had engaged in unconstitutional viewpoint discrimination by treating Lamb’s Chapel differently because of its religious point of view. Given the success of Lamb’s Chapel, other religious groups successfully brought cases in the 1990s claiming viewpoint discrimination.39 Although the Court reached the right results in these cases, they have had,
as Vincent Phillip Munoz points out, “a devastating effect on free exercise. Aside from the rare case in which a specific religious practice is suppressed directly”—as occurred in the Hialeah case—“religious free exercise has lost its independent value.”40

  In 2004 the Court had before it a new free exercise claim in Locke v. Davey (2004).41 Joshua Davey, a high school senior in the state of Washington, won a state-funded college scholarship that could be used at any public or private college. Enrolling at Northwest College, which is affiliated with the Assemblies of God, Davey decided on a double major in business and pastoral ministries. He then received a letter from state authorities advising that by choosing the pastoral major—an exercise of faith, not a speech act, by the way—he would have to give up his scholarship. The statute authorizing the scholarship program denied the award of the aid to “any student who is pursuing a degree in theology.” The statute thus sought to ensure agreement with the state constitution, which forbids public funding of “any religious worship, exercise or instruction” and declares that “all schools maintained or supported wholly or in part by the public funds shall be forever free of sectarian control.” Davey sued, contending that the state violated the free exercise clause by denying theology students a benefit available to all others. By a vote of seven to two, and with Chief Justice Rehnquist writing, the Court rejected Davey’s free exercise argument. Yet as Justice Scalia wrote in dissent, there can be no doubt that “this case is about discrimination against a religious minority. Most citizens of this country identify themselves as professing some religious belief, but the state’s policy poses no obstacles to practitioners of only a tepid, civic version of faith. Those the statutory exclusion actually affects—those whose belief in their religion is so strong that they dedicate their study and their lives to its ministry—are a far narrower set.”

  No Longer the “First” Political Institution

  In the Newdow and Davey cases, the Court had an opportunity to correct the egregious errors of its predecessors and finally make 41. No. 02-1315.sense of “establishment” and “free exercise.” But of course the Court did not do that. The various tests for determining an establishment of religion—the Lemon test, endorsement, and coercion—still remain in the Court’s toolbox. So they still can be used to discriminate against religion. And the Court has yet to read the ban on establishing religion in conjunction with the prohibition of its free exercise. Perhaps it feels it does not have to, since in the Court’s decisions free exercise has so little substance. But the major surgery needed to correct the Court’s religion jurisprudence seems unlikely unless the Court finally decides to take free exercise seriously. Toward that end, the Court will have to inquire into its original meaning. And here a good case can be made that James Madison best captured that meaning when he wrote that no one should be extended privileges because of religion, nor subjected to penalties or disabilities. One despairs, however, of calling yet again for the Court to get the First Amendment right. The Court prefers to nibble at the edges of its jurisprudence, to revise only here and there. And meanwhile the more secular America that the Court’s decisions have helped bring about remains as close to any citizen as the nearest public school.

  Doubtless there are many Americans who applaud the new America, but the founders would have regarded it with grave concern. They were persuaded that the liberal state they had fashioned would be unable to produce in the people the virtues that it needed to survive, and they knew from history that most people most of the time draw their ethics, their sense of morality and justice, from their religion. Thus, in his Farewell Address George Washington reminded the young nation that religion and morality are “indispensable” to “political prosperity” and cautioned against indulging “the supposition that morality can be maintained without religion.” Washington implored “the mere politician, equally with the pious man, ... to respect and cherish” religion. Several decades later Alexis de Tocqueville captured the founders’ sentiments when he described religion as “the first of [the Americans’] political institutions” because it was “indispensable to the maintenance of [our] republican institutions.” It is not apparent that as many as five justices now sitting on the Court would agree with this view of the role of religion in American life. We are still embarked in a new direction, destination unknown.

  * * *

  1. 310 U.S. 296 (1940).

  2. 310 U.S. 586 (1940).

  3. 319 U.S. 624 (1943).

  4. 330 U.S. 1 (1947).

  5. 374 U.S. 203 (1963).

  6. 472 U.S. 38 (1985).

  7. Vincent Phillip Munoz, “Establishing Free Exercise,” First Things 138 (December 2003): 14–20.

  8. 333 U.S. 203 (1948).

  9. Philip Hamburger, Separation of Church and State, 376–377 (Cambridge: Harvard University Press, 2002).

  10. 343 U.S. 306 (1952).

  11. 370 U.S. 421 (1962).

  12. 374 U.S. 203 (1963).

  13. 449 U.S. 39 (1980).

  14. 472 U.S. 38 (1985).

  15. 505 U.S. 577 (1992).

  16. Sante Fe Independent School District v. Jane Doe, 530 U.S. 290 (2000).

  17. 496 U.S. 226 (1990).

  18. 392 U.S. 236 (1968).

  19. 403 U.S. 602 (1970).

  20. 473 U.S. 402 (1985).

  21. Kermit Hall, ed., The Oxford Guide to United States Supreme Court Decisions (New York: Oxford University Press, 1999), 7.

  22. 117 S. Ct. 1332 (1997).

  23. 530 U.S. 793 (2000).

  24. 463 U.S. 388 (1983).

  25. 536 U.S. 639 (2002).

  26. See Richard John Neuhaus, The Naked Public Square (Grand Rapids: Wm. B. Erdmans, 1984).

  27. 336 U.S. 470 (1961).

  28. 397 U.S. 664 (1970).

  29. 463 U.S. 783 (1983).

  30. 465 U.S. 668 (1984); 492 U.S. 573 (1989).

  31. No. 02-1624 (2004).

  32. 98 U.S. 145 (1979).

  33. 374 U.S. 398 (1963).

  34. 406 U.S. 205 (1972).

  35. 494 U.S. 872 (1990).

  36. 521 U.S. 507 (1997).

  37. 508 U.S. 520 (1993).

  38. 508 U.S. 384 (1993).

  39. See Rosenberger v. University of Virginia, 515 U.S. 819 (1995) and Good News Club v. Milford Central School, 533 U.S. 98 (2001).

  40. Munoz, “Establishing Free Exercise,” 18.

  41. No. 02-1315.

  — 4 —

  The New Diplomacy Threatens American Sovereignty and Values

  David Davenport

  It is difficult to turn on the television today without seeing an odd assortment of folks sitting around a casino table playing poker. Formerly a game people played rather than watched, poker has become a major television hit, with sports networks airing poker marathons to compete with popular events on other stations.

  Perhaps this explains why I have come to think of international diplomacy during and after the Cold War as two very different poker tables. At the Cold War table, in operation from 1945 to 1989, sat two high-stakes players: the United States and the Soviet Union. Since this game required immense military and economic power to play, these two dominated the action. The United Nations had a lesser seat at the table, and from time to time other nations would bid up a particular hand, but the United States and the Soviet Union always held the decisive cards.

  A novel aspect of televised poker is the ability of the camera to show hidden cards as players bluff and disguise their hands. It turns out that the Soviet Union, far weaker economically and militarily than the world knew, was consistently bluffing and overplaying its hand. When the United States, especially during the Reagan administration in the 1980s, increased its military strength and economic power, the weakness of the Soviet hand became evident and the Soviet Union essentially folded.

  The post–Cold War table is quite different. With no nation capable of sitting across from the United States in a military and economic power contest, the nature of both the game itself a
nd the kind and number of players began to change. For starters, many new players sought a seat at the table. Other nations wanted in the game, of course, but so did nongovernmental organizations (NGOs) of many types. International organizations, including the United Nations and newer ones such as the World Trade Organization (WTO), took what they viewed as their rightful place at the table, as did new groupings of nations such as the European Union and the “like-minded states.”

  Short on military and economic capital, these new players have sought to change the table to a “soft power” game. Small- and medium-sized “like-minded states” and NGOs have combined to carry out a “new diplomacy,” with notable victories in enacting international treaties to ban land mines and to establish the International Criminal Court (ICC). At the same time, other expansions of international law, including the developing doctrine of universal jurisdiction, seek to move global issues away from traditional diplomatic or political arenas and into courtrooms.

  In one sense, who could object to the world’s changing from hard power to soft? And who would oppose the wider application of legal standards around the world? The answer to both questions is: the United States. Despite the high-sounding rhetoric about international law and soft power, the new diplomacy seeks to alter the world’s political power structure and to do so in a way that presents real threats to American sovereignty and values. In the next few hands, the nature of the post–Cold War diplomatic table is likely to be decided.

  International Law and Its Discontents

  The United States is a nation of laws with the most highly developed legal system in the world. Some believe the United States should therefore be a natural ally in the major expansion of international law that is now under way. Such a view ignores two fundamental realities: (1) international law is entirely different from U.S. law and, by its very nature, the one impinges on the other; and (2) international law is presently being used as a tool by advocates of the new diplomacy to pursue an agenda that is antithetical to important American interests.