Speaking recently at the Notre Dame Law School Religious Freedom Summit in Rome, Italy, Supreme Court Justice Samuel Alito decried what he sees as growing hostility to religion. He said people’s ignorance about religion has exposed believers, especially those with traditional religious beliefs, to discrimination. He said “Christians had been persecuted for centuries, including at the Colosseum in Rome, where ‘who knows how many’ were ‘torn to pieces by wild beasts’. , it will not last.
Basically, the First Amendment to the Constitution states, “Congress shall make no law respecting the establishment of any religion, or prohibiting the free exercise thereof.” The Constitution thus welcomes all religions or no religion, and prohibits the government from establishing a religion. Unlike a theocracy, there is no state religion. US state and federal governments are required to be legally neutral. It is up to each of us to determine how to come to terms with the great mystery of human life and death.
This neutrality enables a wide variety of traditional religions, in their own way and with fundamentally different doctrines, to promote charity, comfort the greatest number, inspire great works and promote the public good. Alito sees religion as promoting domestic tranquility.
This neutrality also allows others to reject any religion. They cannot accept the fantastical origin stories of world religions, the idea that one is in a better place when one dies, the perceived arrogance and intolerance of declaring one’s path is the only way, and the wars and crimes committed over the centuries in the religion Name.
The First Amendment calls on nonbelievers to respect the freedom of believers in traditional religions and on believers to respect the rights of nonbelievers.
Because this freedom is fundamental to our Constitution, it is concerning that a Supreme Court justice publicly endorses religious faith, emphasizing Christianity, as the key to inner tranquility, and seeks to convince Americans that “robust religious liberty” must be protected. This seems to ignore that the robust freedom of not being religious must also be protected with equal vigor.
The Supreme Court is often called upon to determine whether a government action violates the prohibition against establishing a religion or interferes with its free exercise. A religion may doctrinally affirm that a fetus is not a person until birth and that before birth the health and freedom of the mother must be protected. How will the court rule if a litigant challenges a state ban on abortion on the grounds that it interferes with the free exercise of that religion and establishes a religion that treats a fetus as a person from conception? The court today dropped the bipartisan, Solomonic resolution of Roe v. Wade of all competing interests then in this court, so is there another Solomonic solution?
Judges must judge this and other cases of religion, such as school prayer, without passion, prejudice, or preconceived personal or religious opinions. The First Amendment requires government neutrality.
In his farewell speech, President Washington warned in 1796 that political parties, taking turns dominating each other in the legislature, often seeking revenge, posed a risk of chaos that could give rise to a dictator.
His warning applies to Congress and state legislatures today. But the tribunal has generally been isolated from the instability of alternating decisions based on the party or religious affiliations of the tribunal’s changing majorities. The court’s respect for the past precedents of previous tribunals, and its focus on the facts and evidence of a specific controversy before the court, have historically provided this stability.
Changing circumstances over time and the evidence in a case may warrant the rejection of long-standing precedent, but it is up to judges to heed Washington’s warning. The alternation of court decisions on whether or not a right is guaranteed by the Constitution, depending on the party or the religious affiliation of the majority, risks the chaos that Washington feared.
As religious liberty cases come to court, the danger is not discrimination against religion, but disregard for precedent and discrimination in favor of one religion over another or the right not to to be religious.
Daniel O. Jamison is a retired lawyer from Fresno.