Frederick Mark Gedicks

Public Life and Hostility to Religion

Many who value the contributions of religion to American life have contended that American public life is hostile to religion. They perceive many of the Supreme Courts Religion Clause opinions as hostile to religion, and circulate anecdotes about the antireligious hostility of public life. Studies also suggest that some of the principle actors in American public life systematically marginalize religious viewpoints relative to secular ones. Nevertheless, others are baffled by the suggestion that public life discriminates against religion. These people note that religion is deeply (if controversially) involved in much of contemporary American politics, and dismiss anecdotes about such hostility as isolated instances of departure from a rule of religious accommodation in public life. This Essay seeks to demonstrate in a more precise way how American public life is hostile to religion. Like so much else, the hostility of public life to religion can be traced to one of the conceptual foundations of liberal political theory: the distinction between the public and the private. The Essay begins with a sketch of this distinction in American liberal thought, noting that the public is generally privileged over the private. The Essay argues that, because knowledge is associated with public life and belief with private life, both the distinction between knowledge and belief and the predominance of the former over the latter are assumed rather than demonstrated. It illustrates this thesis with an analysis of two Supreme Court decisions, Aguillard v. Edwards, a creation science decision, and Employment Division v. Smith, a decision about religious exemptions. The Essay closes with some observations about the significance of recognizing that American public life is hostile to belief.

Religious Exemptions, Formal Neutrality, and Laïcité

Rights to free exercise in the United States are governed by a doctrine of formal neutrality, which seems to resemble the French doctrine of laícité. This resemblance tempts one to conclude that the doctrinal regimes of religious liberty in the United States and France are also essentially the same. Despite their superficial resemblance, however, formal neutrality and laícité generate regimes of religious liberty that are substantially, even radically, different. Notwithstanding conceptually similar organizing principles, there is a significant difference in the substance of religious liberty in the United States and France owing to very different conceptions of the proper role of the state in securing religious freedom and other human rights. This difference is evident in the grammar that each country uses to describe free exercise rights, in their respective responses to the problem of religious and moral difference, and in their differing conceptions of equality adopted.

Incorporation of the Establishment Clause Against the States: A Logical, Textual, and Historical Account

Incorporation of the Establishment Clause against the states is logically and textually impossible— so say most academics, many lower-court judges, and a Supreme Court justice. They maintain that because the Clause was originally understood as a mere structural protection of state power, it cannot coherently restrain state power or protect a personal due process liberty. Antiincorporationists also seem to think that the purported incoherence and textual inconsistency of Establishment Clause incorporation excuse serious engagement of Reconstruction history, since they mostly ignore it except for the Blaine Amendment defeated as the Reconstruction era ended. If anti-incorporation critics are right, the entire body of Establishment Clause doctrine is doomed: Nearly every Supreme Court decision interpreting the Clause has involved a challenge to state action. Although actual disincorporation is unlikely, the purported incoherence and textual infidelity of Establishment Clause incorporation undermines the Clause’s vigorous application against the States and places the Court’s Establishment Clause decisions under a perpetual cloud of illegitimacy. Establishment Clause doctrine thus cries out for an account of its incorporation against the states that is both logically coherent and consistent with the liberty-protecting texts of the 14 th Amendment. The principal defenders of Establishment Clause incorporation concede the anti-incorporationist critique. They argue instead that by the time the Fourteenth Amendment was ratified, the meaning of the Clause had evolved from a structural reservation of state power to a personal right susceptible of incorporation. The ambiguous historical evidence for this textual evolution, however, combined with its abandonment of the Clause’s original 18 th century meaning, have blocked acceptance of “evolved meaning” as the justification for Establishment Clause incorporation. Establishment Clause incorporation is logically and textually defensible based on the original 18 th century understanding of the Clause as a structural provision. The Establishment Clause did not reserve state power, but disabled congressional action. As a disability on Congress, the Clause necessarily generated two correlative immunities, one held by the states against congressional interference with state decisions about establishment or disestablishment of religion, and one held by the people against congressional establishment of a national religion. The Fourteenth Amendment extinguished the state immunity, but extended the popular immunity to protect the people against state as well as federally established religions. This is logically coherent and also sounds in the personal liberty protected by the 14 th Amendment Due Process and Privileges or Immunities Clauses. When framed by a logical and textual account of Establishment Clause incorporation, the Reconstruction history ignored by anti-incorporationists shows that the incorporation thesis is historically plausible.

Uncivil Religion: Judeo-Christianity and the Ten Commandments

In the Decalogue Cases,2 Justice Scalia conceded that government cannot invoke the blessings of “God,” or even say his name, “without contradicting the beliefs of some people that there are many gods, or that God or the gods pay no attention to human affairs.”3 Even so, he declares this of no constitutional moment because the historical understanding of the Establishment Clause permits government wholly to ignore those who do not subscribe to monotheism. Noting that more than 97 percent of American believers are either Christians, Jews, or Muslims, Justice Scalia concludes that government invocation or endorsement of belief in a monotheistic God does not violate the Establishment Clause.4

Public, Private, Religious? Religious Freedom Restoration Acts in the U.S. States

Written in English for the leading Italian constitutional law journal, this short essay reads the recent controversies over religious freedom restoration acts (RFRAs) in Indiana and other states as a boundary conflict between the “public” and the “private.” After brief accounts of the origin of state RFRAs generally and the Indiana RFRA in particular, the essay argues that the hostility to Indiana’s RFRA was rooted in the perception that its supporters were seeking to impose on others the costs of a prototypical “private” activity — personal religious belief and practice — in what have come to be viewed as “public” spaces — housing, the for-profit workplace, and commercial retail businesses. The lesson of Indiana is that even in culturally conservative states, believers may lack the social power to maintain their private religious values in public spaces where those values are not uniformly or widely shared.

Church Discipline and the Regulation of Membership in the Mormon Church

The Church of Jesus Christ of Latter-day Saints, more commonly known as the ‘LDS’ or ‘Mormon’ Church, regulates its membership by means of a system that recalls the Old Testament far more than the modern West. All important decisions relating to joining and leaving the church are invested in the inspired discretion of local priesthood authorities who are governed by general standards rather than rules that have the character of law.