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Moving from race to the other "R" word

August 3, 2005 3:26 PM

I think we�ve said what needs to be said about race and the Supreme Court for the nonce; why not go ahead and tackle another hot-button issue lurking behind the Roberts hearings? Setting aside abortion for the moment, let�s think about religion. If we can play a little fast and loose (and that�s what we get to do when we�re blogging, right?) (or when we�re blogging right, for that matter), let�s assume that one reason some of the Democrats are stirring the pot on Roberts (in addition to getting their base excited and ready to open their wallets for the cause) is to suggest that, being a committed and practicing Catholic, he is too closed-minded to be trusted to deal fairly with issues of law and religion, and, in particular, that he cannot be depended on to keep a clear separation between church and state. It is, after all, one of the signal achievements of the Court in the past fifty years to buy into Jefferson�s strict wall of separation, whether or not that was the intention of the Constitution�s framers.

Justice O�Connor in particular was committed to her �entanglement test,� in which she rejected any measure-�such as graduation prayers, ten commandments displays, or freestanding Christmas Creches--which might represent, for her, an unacceptable state endorsement of religion. Some anti-Roberts hysteria could be worked up if he were to be painted as someone who would bring back prayer at football games, or mandatory reading at public schools from the New Testament, hysteria I wouldn�t be surprised to see some of soon.

Still, it must be said that the Court�s current jurisprudence in this area is an embarrassment, since normal people cannot understand why the Ten Commandments are permissible on a monolith outside the Texas legislature, but not on a wall inside a Kentucky Courtroom; why �In God we Trust� can stay on our coins, but a cross on the town seal of Zion must go (see bottom of page 7 here); why it�s OK to use public funds to buy maps for religious schools but not to use taxes to pay for students' transportation to them (or is it the other way around? I forget). My own paleoconservative view is that it makes sense to follow the original understanding, expressed by Justice Story, Justice Chase, and others, and say that the states (and perhaps even the federal government) oughtn�t to be barred from encouraging religion in general, and perhaps even Christianity in particular, so long as no particular sect is favored. No state is under any obligation to do so, of course, but our tradition (until about fifty years ago) was to embrace the framers� notions that one can�t have order without law, one can�t have law without morality, and one can�t have morality without religion.

The First Amendment�s religion clauses were not designed to stop state aid to religion; rather, it was the reverse, that is, to stop the federal government from interfering with whatever the states wanted to do. I think there was great wisdom in that, and while there might be plenty of room in the polity for states seeking to promote a secular public square, there ought to be plenty of room for other states to do the reverse. If there really is a problem with a decline in public morals and the coarsening of the culture, perhaps it�s time to return to a recognition of the important part religion might play in reversing the trend, and that state help in that regard might not be a bad thing. I think this topic may be too radioactive to be discussed in the course of the Roberts hearings, but I do hope this is a concern a Justice Roberts would address, and it would be interesting to hear where Richard�s libertarianism leads him on this matter.




Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.