Madison's Music

by Burt Neuborne

  The tangled tale of Moscow’s Church of Christ the Savior illustrates both sides of Madison’s wisdom. Intended as an act of religious thanksgiving for Russia’s defeat of Napoléon in 1812, the church’s exterior was not completed until 1860 and was not formally consecrated until 1883, although Tchaikovsky’s 1812 Overture received its first public performance in the church a year earlier. Forty tons of electroplated gold embellished its enormous dome. The bejeweled and marbled interior, among the most lavish in Church history, propelled the Church of Christ the Savior to the center of Russian religious life, drawing Russian Orthodox believers for worship, baptism, and marriage from all parts of the realm. In 1930, Stalin, desperate for cash and in the midst of a purge of Russia’s churches, ordered the Moscow church to be dynamited after the jewels and precious metals, especially the golden dome, had been confiscated by the state. Demolition was finally completed in 1937. In its place, Stalin ordered the construction of a secular Palace of the Soviets, a huge modernistic structure designed to celebrate the triumph of communism over superstition. Excavation for the enormous new building was interrupted by World War II and was only fitfully resumed during the postwar years of Stalin’s waning power. After Stalin died in 1953, Khrushchev inherited an enormous hole in the ground, which he promptly turned into the immense Moscow municipal swimming pool.

  In 1988, in my capacity as national legal director of the ACLU, I visited Moscow as a citizen member of an American government delegation discussing the rule of law with Soviet counterparts. It turned out that the two countries held very different ideas of what the rule of law means. We saw the idea as ensuring that those in power would be bound by law in dealing with the people. The Soviets saw it as ensuring that the people would be bound by law in obeying those in power. So it goes.

  I noticed the enormous Moscow swimming pool on the bus ride from the airport. Although it was a very chilly day, I could see crowds of people in and around the pool, which stretched for what seemed like miles. I wryly commented to my Russian guide that her countrymen were much hardier than mine. “Americans,” I laughed, “would never go swimming in such chilly weather.” The guide looked around to make certain that no one was listening, smiled, and shook her head. “You don’t understand,” she said, “they’re not swimming. They’re baptizing their children. Stalin may have dynamited the Church of Christ the Savior,” she whispered, “but people still come from all over Russia to be married and baptized in its ruins.” Score one for Madison’s prescient understanding of the unquenchable power of the religious spirit. That’s what Free Exercise is all about.

  In 1990, after the implosion of the Soviet Union, Boris Yeltsin built a more modest but still impressive cathedral over the Moscow municipal swimming pool. Completed in 1994, the church once again became a center of Russian Orthodox religious life. This time, though, there was an important difference. The clergy, especially the presiding metropolitan bishop, operated as close allies of the Russian state. When Vladimir Putin took power in 1999, he deployed the state-supported Russian Orthodox Church as an arm of the government, using religion as a form of state-imposed social control. The link between the church and Putin was particularly intense in the person of the metropolitan bishop, who vigorously condemned the demonstrations for greater freedom that were taking place in Moscow and urged from the pulpit Putin’s reelection as president. In February 2012, three young women, politically active members of an all-girl punk group called Pussy Riot, staged an amateurish forty-second song-and-dance routine, “Virgin Mary, Chase Out Putin,” in the nave of the church. The young women chanted opposition to Putin’s use of the church as an arm of the state. No services were under way, and the church was almost deserted.

  In an appalling overreaction by the state, the three young women were convicted not of the minor administrative offense of disorderly conduct punishable by a fine or a few days in jail but of the felony of “outraging religious sensibilities,” and sentenced to two years in a Russian labor camp.

  Score another one for Madison’s all-to-accurate understanding of the state’s capacity to harness the darker side of the religious impulse. The saga of Moscow’s Church of Christ reminds us that Madison designed the Free Exercise Clause to protect true believers driven by conscience to baptize their children in a swimming pool where a church once stood, and the Establishment Clause to protect those very children from state-imposed religious and political conformity.

  By the way, the fate of Pussy Riot illustrates why the Supreme Court is so nervous about punishing speakers for saying things that offend hearers. I suspect, though, that our disagreement with Putin’s punitive reaction is not about whether Pussy Riot was engaged in protected speech. True believers should be entitled to rules banning unwelcome political activity in their church. But two years in prison for a minor transgression is indefensible. It’s another reminder that the care and feeding of the First Amendment requires attention to the back-end issue of sanctions as well as the front-end issue of whether or not speech is protected.

  HARMONIZING THE RELIGION CLAUSES

  The two religion clauses display inconsistent attitudes toward religion. The ban on enacting laws “respecting an Establishment of religion” is deeply suspicious of religion, guarantying Americans the right to be free from state-imposed religious activity. The ban on laws denying the “free exercise of religion” is deeply supportive of religion, guarantying Americans the right to practice religion vigorously and openly. Many observers have noted the potentially discordant relationship between the two clauses. In fact, government efforts to assist the free exercise of religion may cross the line and become forbidden establishments of religion. Conversely, what appears to be a forbidden establishment of religion may also be defended as a government effort to make it easier for private citizens to exercise their religion freely. For example, should a law requiring private employers to grant employees paid time off on their holy days be viewed as improperly establishing religion or properly protecting its free exercise? For the Supreme Court, the answer lies on the Establishment side of the line, because such a law shifts a burden to other employees to work on the weekend.11 The Court was right. Whenever government forces a nonbeliever to bear the costs of a believer’s religious observance, it unconstitutionally “establishes” religion. But a rule merely requiring an employer to make a good-faith effort to respect the religious needs of employees without shifting an unfair burden to nonbelievers—perhaps by asking for volunteers and paying those volunteers overtime—would make Madison smile. We call that accommodating the free exercise of religion.

  Consider the constitutionality of government-paid military or prison chaplains. Paying a clergyman a government salary to minister to soldiers or prisoners is unquestionably government assistance to religion that would ordinarily be barred by the Establishment Clause. Indeed, that is precisely how an “established” religion operates: the government uses general tax funds paid by nonbelievers to subsidize the operating expenses of a favored church. On the other hand, providing government-paid clergy in the military or in prisons may be necessary to permit believers confined to those institutions to exercise their religion freely. Indeed, failure to provide for military or prison chaplains might well be attacked as a violation of the Free Exercise Clause. Madison believed that government-paid military chaplains were unconstitutional, but even he could be wrong. No serious Establishment Clause objection has arisen to military or prison chaplains in modern times because the minor burden borne by the taxpayer is dramatically outweighed by the free-exercise benefits of the program. It’s a clear net gain for conscience. It’s much harder, though, to make the free-exercise argument for government-subsidized “legislative” chaplains who open legislative sessions with a prayer. Unlike prisoners or soldiers, legislators retain freedom of movement (at least until they’re convicted), so it’s unclear why they would need a government-paid, in-house chaplain to exercise their religions freely. Nevertheless, the Supreme Court has upheld the practice
.12 The Court relied on the fact that congressional chaplains had officiated during Washington’s administration, and that Madison, as a congressman, had voted for one. The Court’s majority overlooked the fact that an older and wiser James Madison profusely apologized for having voted for legislative chaplains, branding them flatly unconstitutional. The five Republican justices have now compounded the error by extending the idea to opening local town meetings with a so-called ceremonial prayer, even when the prayers are overwhelmingly Christian.13 The Court simply ignored the question of why a nonbeliever should be forced to feel like an outsider when she attends her own town’s zoning board deliberations. Stand by for Christian prayers before school board meetings and court sessions. How many nonbelieving parents and litigants will dare to refuse to stand and bow their heads for the ceremonial prayer? In upholding government-sponsored ceremonial Christian prayers, the five Republican justices appear to have imported the imperial Free Speech Clause idea of an aristocratic speaker whose interests almost always overwhelm those of a subordinate hearer into the Religion Clauses, where until now hearers were treated with far more respect and consideration. Until Town of Greece, the constitutional law regulating government-sponsored religious communications—whether prayers or religious displays on government land—was “hearer-centered.” The Court always asked whether the nonbelieving hearer was made to feel like an outsider in her own land. After Town of Greece, nonbelieving hearers subjected to government-sponsored religious speech may well be told, “Get a thicker skin. After all, this is a Christian country. You’re here as a tolerated guest.” What the Court seems to have forgotten in Town of Greece is that, unlike private speech in most Free Speech Clause settings, a Christian prayer opening a town meeting is speech by the government, not a private person. It’s bad enough to have corporations treated as aristocratic free speakers and sentient religious beings. But when the government starts praying, and we have no choice but to listen, it’s time to look out!

  However you decide the chaplaincy and public prayer cases, though, there is no escape from the paradox of two apparently discordant religion clauses pulling in different directions. Can such discord be harmonized?

  DOUBLING DOWN ON DIVINE MADNESS

  A narrow majority of the current Supreme Court seeks to tame the paradox by leveling both religion clauses down so that they don’t clash. The levelers read both clauses as forbidding improperly motivated, irrational, or discriminatory government action dealing directly with religion, pro or con, but, as in the town meeting case, uphold just about everything else, even when the challenged government program has the effect of suppressing religious conscience or aiding religious institutions. The leveling-down approach turns the religion clauses into bland assurances that religion will be treated no better and no worse than comparable secular institutions. There is, of course, nothing wrong with such an assurance of equal treatment of religion. It is merely the flip side of Justice Harlan’s insistence that secular conscience be treated as respectfully as religious conscience. But an exclusive focus on leveling down overlooks Madison’s recognition of the immense psychological power of religious beliefs and experiences. The Court’s current tendency to tamp down the two religious clauses decreases the tension between them, but at the cost of the structural role of freedom of conscience as the essential starting point for the entire Bill of Rights.

  The current Supreme Court’s leveling-down approach permits the government to invoke ordinary drug laws to criminalize the use of peyote in Native American religious ceremonies. It lets the state drive a logging road through a Native American burial ground without considering readily available alternative routes. It condones denying convicted Muslim and Jewish prisoners access to pork-free diets and to religious services on their holy days, as well as a refusal to permit orthodox Jewish or Sikh members of the armed forces to wear religious headgear indoors.14 Leveling down also permits financial aid or other forms of government support to religion through state scholarships to study for the ministry, financial aid to religious colleges, or tuition vouchers for parochial schools, even when the overwhelming effect of a particular program is to funnel aid disproportionately to religious institutions.15 Justice Alito has suggested that he would even permit a taxpayer subsidy to cover the cost of allowing religious employers to opt out of paying for health insurance covering contraceptives, but the full Court has not yet faced the question. Stay tuned.

  I believe that the key to harmonizing the two opening clauses in the Bill of Rights is not to level them down. Instead, we should double down on Madison’s understanding of the extraordinary power of religious conscience for good or ill. Madison’s vision calls for heightened not lessened protection in both Free Exercise and Establishment settings. Viewed as parallel responses to Madison’s understanding of and respect for the enormous power of the religious impulse, the apparent paradox resolves into structural harmony. Ordinarily, we expect citizens to apply a rational cost/benefit analysis in deciding whether to comply with a government regulation or an official duty. When the cost of disobedience is high—such as criminal conviction or public obloquy—we assume that a rational citizen will choose to comply with the law. Madison understood, however, that rational analyses are useless when a true believer is forbidden by government to carry out the commands of god or is told by god to disobey the state. The true believer, by definition in the grip of divine madness for good or evil, has no moral choice but to obey god or conscience. In order to spare people from such a dilemma, Madison’s poem provides heightened constitutional protection both from and of religion.

  Of course, where government action is impermissibly motivated by hostility toward religion or an impermissible support of it, both the levelers and the divine-madness justices will strike it down, even if the challenged action advances a permissible government interest. For example, a local zoning ordinance forbidding the ritual slaughter of chickens that was intentionally designed to drive a minority religion out of town is unconstitutional under both a leveling-down and a divine-madness reading of the Free Exercise Clause.16 Similarly, laws aimed at introducing religion into the public schools by requiring the reading of the Bible, the recitation of a prayer, the display of the Ten Commandments, or the teaching of creationism17 are unconstitutional under both a leveling and a divine-madness reading of the Establishment Clause. But in the many settings where the government’s purpose is opaque or unconnected with religion as the courts define it (as in the passage of drug laws), the leveling-down approach provides little or no constitutional protection for or against religious conscience, while the divine-madness reading is true to Madison’s recognition of the power of the religious impulse.

  As we’ve seen, even Madison’s divine-madness reading of the Free Exercise Clause has limits. Madisonian respect for conscience does not include behavior that risks harm to others or shifts the burdens of citizenship to third persons. That’s why subsidizing the cost of a religious employer’s refusal to pay for health insurance covering contraception would violate the Establishment Clause. Nonbelieving taxpayers would be forced to bear the costs of someone else’s religious observance. A harder question is whether the ban on voluntary plural marriage by adults is constitutional when it conflicts with the tenets of a religion. My guess is that the current Court would continue to uphold the nineteenth-century ban on plural marriage in order to protect vulnerable young women,18 but I’m not sure that such a paternalistic approach would be consistent with Madison’s intense preoccupation with freedom of conscience. It may be that grown women know better than the state what kind of life (or marriage) to choose for themselves. Maybe the best answer is to set a minimum age of twenty-five for entry into plural marriage, and ensure an easy way out.

  In the end, neither text nor history can fully resolve the paradox of two religion clauses pulling in different directions. But Madison’s respect for the enormous power of religion, for good or ill, is the key to understanding them as powerful protections from and of the f
orce of the religious impulse.

  9

  The Costs of Ignoring Madison’s Music

  The Enigma of Judicial Review

  Our democratic scorecard leaves a good deal to be desired. The Electoral College, with a vote allocation formula that overrepresents rural states and constantly threatens to choose (and twice has chosen) the loser of the popular vote as president, is nobody’s ideal of a distinguished way to elect a democratic chief executive. Nor can we be proud of our absurdly malapportioned Senate, where Montana, with 570,000 people, enjoys the same political representation as California, with 38 million, and where a filibuster rule enables senators representing 11 percent of the people to block laws desired by senators representing more than 89 percent. We certainly can’t brag about the way we elect members of the House of Representatives when more than 80 percent of the elections are rigged by gerrymandering, or about House procedures where, under current rules, 118 Republicans can prevent the remaining 317 members from voting on legislation. Nor can we be proud of our appalling approach to election administration and voter registration. We have the lowest electoral turnouts in the democratic world, especially by the poor. If more than half the people vote in a presidential election, we consider it a triumph. We get positively giddy if all the votes actually get counted. Finally, if someone tried, he couldn’t design a worse way to finance democracy than our judicially imposed campaign finance system, which guarantees the very rich, including large for-profit corporations, an absolute right to spend as much as they can in often successful efforts to manipulate voters and control elected officials.