A new article in the Wake Forest Law Review provides a shoddy legal which is, alas, all too common in the religion context. Beginning with a deeply flawed understanding of the roles of the Free Exercise and Establishment Clauses, the article ends up making foolish statements about creationism in the classroom.
Patrick M. Garry, Inequality Among Equals: Disparities in The Judicial Treatment of Free Speech And Religious Exercise Claims 39 Wake Forest L. Rev. 361 (2004), argues that courts tend to pay too much attention to freedom of speech, as opposed to other freedoms, and that they ought not to do this. Now, broadly speaking, this is true.
In the past seventy years, courts created a “double standard” by which so-called “fundamental” rights (speech, press, and so forth) are given far more protection than supposedly non-fundamental rights, like the ownership and use of property, or the right to earn a living, which receive almost no legal protection at all. As Justices Scalia and Thomas have correctly noted, this “unquestionably involves policymaking rather than neutral legal analysis.” United States v. Carlton,</i> 512 U.S. 26, 41 (1994) (Scalia and Thomas, JJ., concurring in judgment).
But that’s not what Garry has in mind. He argues that “in connection with religious liberty. . . the courts have been far more inconsistent and far less protective.” Garry, supra at 362. Then he lists some examples, and you see that he’s already starting off on the wrong foot. For instance, he cites Santa Fe Independent School District v. Doe,</i> 530 U.S. 290 (2000), as an example of the court turning its back on the freedom of religious exercise. But Doe–which held that a school district could not begin its football games with a student-led prayer–was not a free exercise case at all; it was an Establishment Clause case: the court held that the prayer violated the religious liberty of dissenting students not to be “psychologically coerced” into a prayer with which they disagreed. Although the majority of students, who voted to hold the prayer, may have believed that the Court’s decision was insensitive to their religious freedom to hold a public prayer at the school’s football games, the plaintiffs in the case saw it as vindicating their religious freedom. (I’ve said before that I think Doe was wrongly decided, because I don’t buy the “psychological coercion” rationale. But if one grants that peer pressure can qualify as a form of coercion, then the Doe decision certainly was a victory for religious freedom.)
But Garry believes Doe and other cases indicate that <blockquote>courts have applied the Establishment Clause, in a way that has often muted or negated religious liberty. . .. [F]ree speech issues are given a more favorable standard of review. Most governmental restrictions on speech are judged under a strict scrutiny standard, whereas many religious exercise issues receive a much lower standard of review. And though viewer or listener sensibilities are rarely considered in free speech cases, even when the speech is highly offensive, the reactions and impressions of objecting viewers and listeners are sometimes accorded a near veto-power in religious expression cases.</blockquote>Supra at 363. It’s hard to know where to begin with this. First, it is just not true that religious issues are given a “lower standard of review” at all. Garry cites Employment Division v. Smith,</i> 494 U.S. 872 (1990), for this claim. Yet Smith simply holds that when it comes to a generally applicable law which is religiously neutral, a person’s religion doesn’t give him a free pass. In that case, a person argued that he should be allowed to ingest an illegal drug for religious purposes, and the Court held that, the anti-drug law was not targeted at his religion, and that the Free Exercise Clause didn’t allow him to escape that law.
But in cases where the law does discriminate on the basis of religion, the Court employs the same strict scrutiny analysis that it employs in speech cases. The classic example of this is Church of Lukumi Babalu Aye v. City of Hialeah,</i> 508 U.S. 520 (1993), in which the Court struck down an anti-butchering ordinance that was just a pretext for curtailing religious animal sacrifice. Hialeah came after Smith and shows that religiously discriminatory laws do receive strict scrutiny still. Yet Garry doesn’t even cite the case. (He does, however, acknowledge in one parenthesis that Smith applies only “(as long. . .as the laws infringing on that conduct are neutral laws of general applicability).” Supra at 372.)
As for “listener sensibilities,” these matter more in the religion cases because of the Establishment Clause. There is nothing analogous to it in the speech context. The Establishment Clause prohibits government from taking a position on an issue, so some Justices have held that audience perceptions are relevant to analyzing whether the government has violated this rule. The government is allowed to make statements on other issues, however–like, that smoking is bad, or that you should vote. Audience perceptions are therefore less relevant. See, e.g., National Endowment for The Arts v. Finley,</i> 524 U. S. 569 (1998).
The flaws in his analysis then lead him to inaccuracies when discussing cases involving creationism. In a footnote, he writes<blockquote>under the reasoning of Lee [v. Weisman,</i> 505 U.S. 577 (1992)], public school instruction which offends a child’s religious beliefs should constitute a violation of the Free Exercise Clause. And yet, in the school setting, the free speech-related doctrine of academic freedom takes precedence over the rights of religious exercise. If some nonreligious students are coerced by religious expressions of the type occurring in Lee or by the posting of the Ten Commandments, then it seems logical that religious students are coerced by some of the secular values they are taught in school (to the exclusion of religious ones). See Edwards v. Aguillard, </i>482 U.S. 578, 589 (1987) (striking down Louisiana’s “Balanced Treatment” statute which required that wherever evolution is taught scientific creationism also be taught as a competing theory of origins). In other words, the coercion theory of Lee should go both ways, including the protection against government engaging in secular indoctrination that undermines a believer’s religious principles. . ..</b></blockquote> Supra at 374 n. 85. Now, again, I agree that the “psychological coercion” argument embraced in Lee is wrong, and in part precisely because if mere personal offense constitutes coercion, then nobody can say anything. But that is not the only issue involved here.
First, the Establishment Clause prohibits government from putting its imprimatur on a religious view–it does not prohibit the government from putting its imprimatur on things other than religion. Schools may teach students that smoking is bad for them, even if that might offend parents who smoke–and even if it offends people who smoke for religious reasons, like the plaintiffs in the Smith case!
Second,* personal offense is relevant to Establishment Clause cases because such offense is often indicative that an establishment is occurring. But personal offense is irrelevant in cases involving, say, non-smoking, because the government is not prohibited from taking such a position. In the same way, personal offense is not relevant to cases involving evolution, because while government is prohibited from taking a position on religious issues, it is not prohibited from teaching the facts. And so long as government is in the teaching business (which I don’t think it should be, but that’s for another day) then it is, by definition, going to “indoctrinate,” in the sense of teaching students facts they and their parents may find unpalatable. That’s what teaching is. So, while it may seem “paradoxical[ ],” to Garry that “pro-religious speech can violate the Establishment Clause, but anti-religious speech, or speech that denigrates or belittles religious beliefs, does not violate the Free Exercise Clause,” id. at 378–but it only seems that way to Garry because he misunderstands the issues involved.
This misunderstanding continues in another footnote, when Garry writes<blockquote>In Lee v. Weisman, Justice Kennedy argued that the state may not use the coercive power of government to enforce a particular religious or antireligious orthodoxy. But since school attendance is mandatory, then the teaching of viewpoints antagonistic to religion, according to the reasoning of Lee, can rise to the level of government coercion and “an attempt to employ the machinery of the State to enforce a religious [or antireligious] orthodoxy.” 505 U.S. at 592. Furthermore, the forbidding of the teaching of creationism or Intelligent Design in public schools because “it lends support to a religion, while exclusively permitting or requiring the teaching of evolution, might be construed by a court as viewpoint discrimination.” Francis J. Beckwith, Public Education, Religious Establishment, and the Challenge of Intelligent Design, 17 Notre Dame J.L., Ethics & Pub. Pol’y 461, 489 (2003).</blockquote>Id. at 377 n. 99.
But, once again, the government is allowed to engage in viewpoint discrimination in most areas of life. All of teaching is “viewpoint discrimination” in some sense, since it prefers knowledge to ignorance, literacy over illiteracy, cooperation and peacefulness over bickering with one’s classmates. We expect schools to engage in such discrimination. Government may teach students facts, such as that the world is round, that 2 + 2 = 4, that smoking causes cancer, and that the human species evolved through a process of non-random selection among randomly mutating genetic variables. The only time the Constitution prohibits government from engaging in viewpoint discrimination, is in basing benefits or burdens on religion. Now, it is certainly true that for some people, the fact of evolution runs counter to their religious views. But this is true of any number of facts that schools may teach students, and although it is certainly a problem–indeed, I believe an insoluble problem, if one grants the existence of public education–it does not mean that the Free Exercise or Establishment Clause prohibit government from teaching students evolution, or require the teaching of creationism.
For Garry, <blockquote>[t]he more favorable judicial treatment of free speech claims (over free exercise claims) can also be seen in the area of school curriculum. Academic freedom, which is an offshoot of free speech, almost always takes precedence over free exercise rights. Take, for instance, the subject matter of evolution. When students who believe the biblical account of creation are required to treat evolution as true, they are in a sense being compelled to express views hostile to their faith.</blockquote> Id. at 377. But, again, all government education necessarily does this. If Garry wishes to argue that all government education should be eradicated, that would be great–but he cannot argue that schools should be able to “in a sense” compel students to believe that smoking causes cancer, while simultaneously saying that the should not “in a sense” compel students to believe in the fact of evolution.
Garry misunderstands the issue of evolution education because he wants government to teach–just, not things he disagrees with. He attacks the Lee theory of psychological coercion (and rightly so) but at the same time, relies on it when arguing that schools violate the Establishment Clause by “coercing” students into believing in the fact of evolution. He doesn’t seem to realize, among other things, that if the Lee case were overruled, his argument for “equal time” would evaporate with it. I get the sense that Garry’s analysis suffers from a persecution complex that causes him to lash out at the courts for whatever reasons he can think of at the moment.
But to me, Garry’s most upsetting error is his ignoring the difference between being forced to do something and being free to do something. He believes that Doe was wrongly decided because he thinks that free exercise of religion includes the right to compel or pressure others into a religious exercise. He criticizes the so-called “anti-accomodationist” position (that is, the position of Employment Division v. Smith, supra) because “[a]lthough the anti-accommodationists view their position as neutral, it is neutral only ‘for those who believe that full religious practice can occur in the “private” realm.’ Mark D. Rosen, Establishment, Expressivism, and Federalism, 78 Chi.-Kent L. Rev. 669, 676 (2003). But there are many who believe that a full religious life is possible only if one’s religious beliefs infuse every aspect of one’s life, both private and public.” Id. at 365 n.26. But the Establishment Clause limits the degree to which public officials may allow their religious beliefs to infuse their public lives. It prohibits them, for instance, from compelling a person to support a religious view, even if the public official believes that his religious duty is to institute such compulsion.
In a famous speech, Abraham Lincoln said that there were essentially two kinds of people in the world: wolves and sheep. The sheep believed that “liberty” meant the right to live their lives free from interference, while the wolves believed that “liberty” meant the right to eat sheep with impunity. Clearly, he said, the wolf and the sheep are not agreed on a definition of the word liberty. In this case, Garry believes that freedom of religion includes the right to compel people to support religious views they disagree with, while I believe that religious freedom means the right to worship as you please–to, as a famous person once said, pray in your closet–without government bossing you around. Clearly we are not agreed upon a definition of free exercise.
*-Update: I meant to add, another and very compelling reason, for disestablishment is that one should not be compelled to pay for the support of religious views with which one disagrees. This goes beyond the “psychological coercion” rationale, because there is genuine coercion involved: having to pay your tax dollars to support evangelism. This goes beyond mere personal offense at seeing a state imprimatur on religious views, and this would be alone enough to justify the outcome in Aguillard.