Mr Justice Roberts – Tear Down This Wall!

Chapel was mandatory at USAFA.  Every Sunday morning we would actually march by squadron to chapel. Equal protection — Feh!  The Protestants had it good upstairs, the Catholics not-so-grand downstairs, Jews had a still smaller area.  Don’t recall an Islamic or Buddhist place of worship.  Even then there were those who read the Sunday comics during the services, others who made no secret of their disinterest, if not contempt, still others who simply took the opportunity to sleep in the too-comfy pews.

I resented chapel then — not because I had to go, but because it used the considerable coercive power of a military institution to compel attendance by those in who had no wish to be there.  Later, as we know, the practice was struck down by a court decision that decided that the First Amendment forbade it.

Fast forward forty-or-so years, and today Mikey Weinstein and a small group of unnamed members of the faculty are so intimidated by the prospect of the superintendent’s participation in a prayer breakfast that they ask a federal judge to stop it.

How did we fall this far?  How did we get from the first Amendment’s prohibition against the federal government’s establishment of religion to Thomas Jefferson’s reassuring letter to the Danville Baptists that first put the mortar to the “wall of separation” between church and state, to the judicial decree in 2010 from a federal judge in Wisconsin declaring that the Obama Administration’s participation in the National Prayer Breakfast was itself unconstitutional?   Because, step-by-step the Supreme Court has been permitted to take an amendment that was intended to preserve freedom of conscience to instead pull out, root and branch, any official recognition that our Nation was founded by men who believed that both our country and the principles upon which her government rested stemmed from, to quote the Declaration of Independence, Divine Providence. That same Divine Providence whose protection Jefferson himself invoked in support of the lives, fortunes, and sacred honor of the signatories, is now barred from classrooms, the public square, the courthouse, and even the stark remotes of the Mojave Desert.  As Justice Thomas put it, “if a cross in the middle of a desert establishes a religion, then no religious observance is safe from challenge.”  Indeed.

There was always a subtle tension between the Establishment Clause and the Free Exercise Clause of the First Amendment. But that tension was readily modulated with the understanding that “Establishment” first applied only to the Federal government and not to the States (after all, Maryland was expressly founded as a Catholic sanctuary) and secondly that James Madison, who authored the amendment, intended no more than that there not be a Church of the United States on a par with the Church of England from which so any of our forbears fled.  The first of these historic truisms were undone, though, by the Supreme Court in Everson v. Board of Education, where a 5-4 majority declared that the Establishment Clause also applied to the States, thereby presaging the end to public support for parochial schools and the prohibition against school prayer.  The second was undone when the Warren Supreme Court in 1963 equated for purposes of Establishment Clause analysis religion and irreligion.  Once the absence of belief is on a jurisprudential par with belief itself in all of its manifestations, we have what we now face today.  After all, logically what is a “neutral” position between religion and atheism that does other than favor the latter? It was always accepted that the Establishment Clause was intended to prevent various of the Christian orthodoxies from receiving Federal imprimatur — but never that it should extend to a prohibition against the government acknowledging our religious heritage.  Now, of course, Supreme Court precedent, much of it “fairly bristling with hostility” against religion, has decided just that.

How does it come out?  The one thing we know for sure is that, to again quote Justice Thomas, the “unintelligibility of the [Supreme] Court’s precedent” will guarantee that any five-justice majority of the Supreme Court will find ample support for a decision one way or the other.  The closeness of the decisions has contributed to a hodgepodge of rulings that cannot be reconciled other than by understanding the specific historic, philosophical, and legal predilections of the people who happen to occupy the nine positions on the Court, and more specifically, those of the five justices constituting a majority.  How ironic, then, that in the end the “establishment” of religion, or of its antithesis, should be decided by the least democratic of our constitutional government, still more that it might be, as it often has been, decided by a single person who makes up that crucial fifth vote.

So, on the 100th anniversary of Ronald Reagan’s birth, I must unabashedly ask our Chief Justice to “tear down this wall” of judicial sophistry.  At least so I pray.