A lot of ink is spilled on the separation of church and state. But much of it is wrong. The phrase “separation of church and state” does not appear in the United States Constitution, nor are public expressions of faith tantamount to theocracy. The First Amendment exists in part to protect religious freedom while preventing the establishment of a national church. The amendment’s recognition of religious freedom as our first unalienable right also suggests there is something important about religion. In a series of recent decisions, the United States Supreme Court invites us to recall that truth, and recognize that religion is a feature, not a flaw, of our national life.
In Carson v. Makin, the Court ended Maine’s discriminatory tuition assistance program in a 6-3 decision. In that program, participating students were allowed to use state dollars to attend any private school of their choice, except those considered to be “sectarian,” meaning religious. The word “sectarian” carries with it the ugly legacy of “Blaine amendments,” a series of state constitutional provisions passed in the late nineteenth century to prevent Catholic schools from receiving public funds. A nativist wave of anti-Catholic bigotry at the time helped these amendments spread across the country.
The Court’s decision in this case was largely framed as a victory for parental rights and school choice, which it is. But what about the fact that 37 states still have Blaine amendments on the books? The answer is simple. These amendments survive not because attitudes toward Catholics are the same as they were nearly a century and a half ago; rather, they survive because the basis of discrimination has shifted from anti-Catholic bigotry to anti-religious animus. Just as Blaine amendments were instituted because of concerns that Catholics had “dual loyalties” to pope and country, Blaine amendments today remain due to a suspicion that religious citizens may have dual loyalties to theocracy and democracy.
The bigotry behind the Blaine amendments, both past and present, remains conspiratorial and unsupported by evidence. Nevertheless, opponents of religion are committed to construing every public display of faith as a nefarious plot to establish a nationalized religion. This fanaticism indicts even the most innocuous expressions of faith, such as silent prayer.
In Kennedy v. Bremerton School District, the Court ruled against a school that had fired its coach for silently praying on the field after high school football games.
School officials had ordered the coach to stop praying where he could be seen. In another 6-3 decision, the Court ruled against the school and correctly stated that “respect for religious expressions is indispensable to life in a free and diverse Republic—whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head.”
Religious expression can also take place in the form of publicly displayed symbols. That was the case in Shurtleff v. City of Boston, which arose when the city of Boston excluded a Christian camp from flying its flag in the traditional “flag raising” ceremony in front of city hall. The flag in question included the image of a Latin cross, which prompted city officials to bar the flag’s inclusion over concerns regarding the “separation of church and state.” They did this even though no other flag had ever been denied participation since the ceremony began over a decade ago. The officials’ decision to suddenly deny an applicant because of the religious nature of their flag compelled the Court to rule unanimously against the city of Boston.
These recent victories for religious freedom are worth celebrating. But the emphasis should be on the importance of religion, rather than just freedom or liberty in the abstract. America enjoys religious freedom because the framers understood that religion inculcates public morality. A free society, in which government intervention is limited, is not possible in a population enslaved to vice. It is no secret that America is rapidly secularizing. We should consider whether that is not only the result of discrimination against religion, but also because religious freedom is too often apologized for rather than defended as a virtue.
In his farewell address to the nation, President George Washington warned against the expulsion of religion from public life, declaring that we should “with caution indulge the supposition, that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that National morality can prevail in exclusion of religious principle.” The Supreme Court’s recent term invites us to heed Washington’s warning and recommit ourselves, with charity and humility, to respecting and celebrating religious faith as not only a freedom, but a virtue that affirms and protects a free society.
Josh Holdenried is vice president and executive director of the Napa Legal Institute, which educates faith-based nonprofits.
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