Americans have been guaranteed the freedom of religion under the First Amendment for more than two centuries, but it’s not a right that we can or should take for granted.
That’s the alarming message in “The Religion Clauses: The Case for Separating Church and State” by Howard Gillman and Erwin Chemerinsky, which is the latest title in the “Inalienable Rights Series” from Oxford University Press. They argue that the conservative majority on the Supreme Court already has signaled that they “reject the idea of a wall separating church and state,” and the authors point out that a tireless champion of freedom of religion under the First Amendment was the beloved dissenter, Justice Ruth Bader Ginsburg, who died Sept. 18 from complications of pancreatic cancer.
The freedom of religion in the First Amendment actually consists of two separate principles. The so-called “Establishment Clause” addresses what the government can and cannot do when it comes to supporting religion, and the “Free Exercise Clause” addresses what the government can and cannot do when it comes to limiting religion. Jurists and commentators who are willing to dismantle the wall between church and state are called “accommodationists,” and those who seek to keep the wall intact are called “separationists.”
Gillman and Chemerinsky declare from the outset of their provocative and deeply well-informed book that they are separationists.
“Under this view, the government should be secular; the place for religion is in people’s lives, their homes, and their places of worship,” they write. “We are convinced … that those who drafted the Constitution, including the Bill of Rights, overwhelmingly wanted a secular government.”
As distinguished scholars — Gillman is a political scientist and Chemerinsky is a constitutional law scholar — the authors do not engage in special pleading for the impact of the First Amendment on Jews, but everything they write about the freedom of religion in America has a special resonance for the Jewish reader. Even in a liberal democracy like England, a practicing Jew could not sit in Parliament until 1858 and, even then, the head of state was (and is) the head of the Church of England. As recently as 1986, they point out, the Supreme Court ruled that an Orthodox Jewish psychiatrist who worked for the U.S. Air Force “was required to abide by its uniform dress requirements even though that meant he could not wear a yarmulke while on duty at a military hospital.”
So, the authors find themselves compelled by the facts of history to point out that “[v]irtually every recent Supreme Court case about the Religion Clauses has involved whether the government can accommodate Christianity” — and the answer has been “yes.” But when it comes to non-Christian religions, the high court has rejected legal arguments based on the First Amendment. Thus, for example, “the five most conservative justices rejected a challenge based on the Religion Clauses” by upholding President Donald Trump’s travel ban “even though he repeatedly declared that his goal was to prevent Muslims from entering the country.”
The dismantling of the wall between church and state by the Supreme Court has required some strange moral and intellectual contortions. When the court ruled in 2019 that a 40-foot cross on a war memorial standing on public property in Maryland was not a violation of the Establishment Clause, Justice Samuel Alito argued that that “the cross has taken on a secular meaning,” and yet he also argued that removing the cross “would be perceived as hostility to religion,” which would violate the Free Exercise Clause.
The defense of freedom of religion fell to Ginsburg and her fellow separationists, who were always in the minority. “By maintaining the Peace Cross on a public highway, the [government] elevates Christianity over other faiths, and religion over nonreligion,” she wrote in one of the dissents for which she is celebrated. “Memorializing the service of American soldiers is an ‘admirable and unquestionably secular’ objective. But the [government] does not serve that objective by displaying a symbol that bears a ‘starkly sectarian message.’ ”
In a rare moment of personal testimony, the authors attest to impact these cases have on Jewish citizens of the United States and, at the same time, they anticipate and rebut any argument that separationists are necessarily hostile to religion.
“Both of us grew up mindful that we were Jewish in a Christian-dominated political system and we believed we were as entitled to the government’s respect as those who had their Christmas holidays formally recognized in our school’s calendar, even though our Jewish holidays were not,” write Gillman and Chemerinsky. “If there were a large Latin cross atop a city hall, those who were not part of religions that accept the cross as a religious symbol would feel that it was not ‘their’ city government.”
To their credit, the authors are plainspoken about their own values and aspirations. The First Amendment, they declare, “was meant to create a wall that separates church and state.” For that reason, “prayer should not be part of government activities, religious symbols do not belong on government property, and the government should be very limited in its ability to give aid directly to religious institutions.” At the same time, “the government can make sure that women have access to contraception and that anti-discrimination laws are enforced,” both of which are issues on which recent Supreme Court cases — Hobby Lobby and Masterpiece Cakeshop — “were wrongly decided.”
Among their many other credentials and achievements, Gillman is chancellor of UC Irvine and Chemerinsky is the dean of the law school at UC Berkeley. Yet they have successfully navigated between scholarship and advocacy in “The Religion Clauses,” which serves as a short course in the constitutional underpinnings of freedom of religion and, at the same time, as an accessible and persuasive argument that, when it comes to the proposition that government must not make any law that impinges upon freedom of religion, no law means no law.
Jonathan Kirsch, author and publishing attorney, is the book editor of the Jewish Journal.