Rick Santorum Isn't Crazy
By STANLEY FISH
Stanley Fish on education, law and society.
Tags:
church and state, Rick Santorum, Supreme Court
Media pundits have been beating up on Rick Santorum for saying that
the assertion of an absolute separation of church and state makes him
want to throw up, for attacking John F. Kennedy's pledge to be "a
president whose religious views are his own private affair" and for
declaring that "the idea that the church can have no influence in the
operation of the state is absolutely antithetical to the objectives
and visions of our country."
In response, commentators have advised Santorum to read the
Constitution, urged him to become familiar with the pronouncements of
James Madison and Thomas Jefferson and chastised him for "bashing …
the Constitution's mandate that there should be separation between
church and state."
Well, if that's the Constitution's mandate, I guess a number of
Supreme Court justices and A-list legal academics have somehow missed
the message. In Wallace v. Jaffree (1985), Justice William Rehnquist
called the "wall of separation" a "metaphor based on bad history, a
metaphor which has proved useless as a guide to judging" and "should
be frankly and explicitly abandoned." Justice Potter Stewart
frequently complained that decisions based on a doctrine of strict
separation display a hostility to religion and threaten to establish a
"religion of secularism." Stewart was fond of citing Justice William
O. Douglas's pronouncement in Zorach v. Clauson (1952) that "We are a
religious people whose institutions presuppose a supreme being."
Similar sentiments have been expressed by Justices Warren E. Burger,
Byron White, Antonin Scalia and Clarence Thomas.
On the academic side, the Stanford professor Michael McConnell
(formerly a federal judge) insists that "religion is under no special
disability in public life" ("Accommodation of Religion,"1985 Sup. Ct
Rev. I). McConnell cites the "historical record" as evidence that
"accommodations of religion in the years up to the framing of the
First Amendment were frequent and well known, and no one took the
position that they constituted an establishment of religion." He
derides the separationist mandate as "the narrow ideological position
of the secular elite," a position that "relegates the large majority
of the American public … to second-class citizenship" ("Accommodation
of Religion: An Update," George Washington Law Review, 1992).
McConnell is hardly unique in his views. Stephen Carter of Yale Law
School, Douglas Laycock of Georgetown Law Center, Philip Hamburger of
Columbia Law School, Michael Perry of Emory University School of Law,
Frederick Mark Geddicks of Brigham Young's J. Reuben Clark Law School,
Steven Smith of the law school at San Diego University, Jeff Powell of
the Duke University Law School and the late Richard John Neuhaus,
author of "The Naked Public Square," are just a few of the many who
have argued that the wall of separation thesis is historically,
morally and politically indefensible. (I neither join nor dissent from
this argument; I merely point out how widespread and respectable it
is.)
This of course does not mean that Rick Santorum is right; only that he
is not a total outlier or a nutcase. His views, although perhaps less
well expressed than they might have been, are well within the
boundaries of a legal and political debate that has been going on for
more than a century.
On the one side, there is a line of cases stretching from Reynolds v.
United States (1878) to Employment Division v. Smith (1990) that
define the right of free exercise narrowly: while you are free to
think and express whatever religious beliefs you like, if your beliefs
lead to actions (like taking plural wives or ingesting peyote at a
religious communion) that violate generally applicable laws, you are
subject to criminal penalties.
On the other side, there is a line of cases stretching from Sherbert
v. Verner (1963) and Wisconsin v. Yoder (1972) to Hosanna-Tabor v.
E.E.O.C. (2012) that extend free exercise protection to actions that
flow from a sincere faith even if those same actions — like pulling
your children out of school or discriminating on the basis of
disability — would be disallowed were they performed for non-religious
reasons by non-religious institutions. Religious obligations are
trumped by law and public policy in one set of cases; law and public
policy bend to religious obligations in the other. (It's like a
Gershwin song: I say separation, you say accommodation, except that
there's no chance of calling the whole thing off.)
Related
Campaign Stops: How John Kennedy Looked from Bay Ridge in 1960The same
critics who fault Santorum for espousing extreme views also fault him
for tilting at windmills. No one, they say, is claiming that "faith is
not allowed in the public square." Wrong again. There are legal
philosophers who argue that persons of faith who enter the public
square should check their doctrinal commitments at the door and not
permit themselves even to think religious thoughts when considering
questions of policy. Others are less severe, but still restrictive;
they would allow persons of faith to have religious reasons for
supporting a policy, but insist that before those reasons are offered
publicly, they must be rephrased in a vocabulary accessible to
everyone, that is, in a secular vocabulary.
Still others favor a more expansive accommodationism: They would allow
frankly religious arguments to be made in the public forum even by
legislators, but would require that those who make them be able to
justify their vote in secular terms if asked to do so. And at the most
generous end of the spectrum, where Santorum lives (but hardly alone),
we find the conviction that religious discourse is as good as any
other (and better than most) as a resource for deciding matters of
state and should be a fully enfranchised partner in the political
process.
So while Santorum may have been ill advised to turn from the economy
to social issues and unwise or tone-deaf in his choice of phrases
("makes me throw up" is not in the standard political lexicon),
nothing he has said about the relationship between church and state is
beyond the pale, and much of it is standard, if contested, fare in the
courts and the law reviews.
And the beat goes on. Just last Friday, the Florida legislature sent
to Gov. Rick Scott a bill that would allow students to offer
"inspirational messages" at mandatory school gatherings. The phrase
"inspirational messages" is supposed to inoculate the bill against the
charge that it is just a way of getting prayer back in the schools.
But of course opponents are already calling that a transparent pretext
and their case is helped (and perhaps made) by Scott, who indicated
that he is inclined to sign the bill because "I believe in Jesus
Christ." ( You wonder where his advisers were.)
The battle is already shaping up and when the issue is fully joined in
the courts, as it no doubt will be, you can be sure that the arguments
Rick Santorum has been pilloried for will be heard again in the land.
More:
http://opinionator.blogs.nytimes.com/2012/03/05/rick-santorum-isnt-crazy/?ref=opinion
--
Together, we can change the world, one mind at a time.
Have a great day,
Tommy
--
Together, we can change the world, one mind at a time.
Have a great day,
Tommy
--
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