Wednesday, August 4

Am I Really Gonna Have To Say This Yet Again?

Well … apparently … yes …

According to Patheos , the Washington Post recently published a story about how a report from the Council for National Policy (CNP), a hard-core conservative group with deep ties to the Trump Administration, including newly confirmed Secretary of Education Betsy DeVos, has published a manifesto advocating explicit instruction in Christianity into the Nation’s school classrooms by leveraging home schooling and religious schools to "decouple" the process of education from government support.  The Post story asserts:

A policy manifesto from an influential conservative group with ties to the Trump administration, including Education Secretary Betsy DeVos, urges the dismantling of the Education Department and bringing God into American classrooms. The five-page document produced by the Council for National Policy calls for a “restoration of education in America” that would minimize the federal role, promote religious schools [boldface added] and home schooling and enshrine “historic Judeo-Christian principles” [boldface added] as a basis for instruction.

In saner times, i.e., in the pre-Trump era, I would be inclined to chuckle, shake my head, and turn the page to other stories of more immediate relevance.  Unfortunately, we do not live in sane times, but in an era when the patients and inmates have seized control of Bedlam. So such stories, instead of being mere postcards from the edge of psychopathology or transient piffle from supermarket tabloids, now merit serious attention. It should be emphasized that what the CNP manifesto is advocating is not merely a relatively benign, disinterested, neutral, laissez faire approach to issues like private / for-profit education, school vouchers, parent choice, etc., etc. Rather, according to the actual text of the manifesto, quoted above, the CNP seeks to actively promote specifically religious schools that indoctrinate children with "historic Judeo-Christian principles".  Not "historic Muslim principles" Not "historic Sikh principles". Not "historic Hindu principles". Not "historic Buddhist principles". Those would be equally problematical. But "historic Judeo-Christian principles".  In other words, by de-emphasizing government-supported, religion-neutral, secular education, the CNP advocates the specific and preferential promotion of one religion's "historic ... principles" -- those of Judeo-Christianity (a problematic neologism in its own right ... but never mind) -- as distinct from the "historic ... principles" of other faiths. Now Education Secretary Betsy DeVoss's animus against government-supported public education has been traced to its source: the desire to replace government-supported, religion-diverse schools by transforming them into, basically, Christian madrassas. In Secretary DeVoss's mind, the terms "education" and "conservative Christian evangelism" are synonymous.

For the sake of conciseness, this time around, I will phrase my objections as a series of bullet-point issues:

o How do the advocates of the CNP vision of national education reconcile their vision with the “establishment” clause of the First Amendment, to say nothing of the "equal protection" clause of the Fourteenth?

The beginning of the First Amendment partakes of what can only be called “lapidary clarity”:  Congress shall make no law respecting an establishment of religion … The phrasing, usually overlooked, is important:  respecting an establishment of religion (boldface added). Not merely Congress shall make no law designating any given church or religion as the established church or religion … Instead, the phrasing is much more broad and inclusive: respecting an establishment … James Madison, who edited the First Amendment, had no law degree, but he thought like a lawyer, among other reasons, because he appreciated the importance of precision in writing. A great massif of case law, some of which I will cite below, indicates that “respecting an establishment” prohibits the Government from any action which even flirts with the outermost boundaries of any kind of preferential treatment of any religion or of any religious sect in any manner whatsoever, however indirect.  (Consequently, we should pause to reflect on Mr. Madison's use of an indefinite article -- "an establishment" -- instead of a definite article -- "the establishment", implying that any such act of establishment is prohibited, not just a certain particular act. You should gape, slack-jawed with amazement:  this is the English language in the hands of an undisputed master.) In fact, and even more inclusively, the “establishment” clause prohibits favoritism toward any religion-as-such, i.e., not just Catholics, not just Episcopalians, not just Baptists, etc., but Christianity itself, the Christian (or any other) religion as such, per se, and tout court. Furthermore, the "equal protection" clause of the 14th Amendment indicates that, even if one could -- per impossibile -- accord one particular faith tradition preferential treatment in a manner consistent with the "establishment" clause, then such legal protection would have to be extended to all religions equally, without preference to any one tradition -- the precise opposite of the CNP manifesto's declared intent. Ohio's Rep. John Bingham, who crafted most of Section 1 of the 14th Amendment, including the "equal protection" clause, appreciated precision of language no less than Mr. Madison.

o But, CNP supporters might argue, and likewise speaking about precision of language, the First Amendment prohibits Congress, i.e., the Federal legislature, from establishing a religion, but leaves the door open for States establishing churches and religious sects as official and giving preferential treatment to particular religious traditions.

Betsy DeVos
James Madison

The short version of my answer is “Right then, but wrong now”. Originally, the “establishment” clause – both “religion” clauses of the First Amendment, actually, the entire First Amendment – did pertain only to the Federal government, and States were free to do as their legislatures chose. In fact, in 1801, the Connecticut state legislature voted to make the Congregational Church the official church of the State of Connecticut, prompting the associated Baptist churches of Danbury, CT, to write in alarm to President Thomas Jefferson asking if Baptists would henceforth be suppressed in their State. Mr. Jefferson replied to the Danbury Baptists with his justly famous “wall of separation” letter, asserting that, while Connecticut was free to designate Congregationalist Christianity as “official,” the legislature was not free to suppress other sects, which were protected by the “free exercise” clause. In 1925, In the Gitlow v. New York decision, the Supreme Court asserted that the First Amendment must be interpreted in the context of the “equal protection” clause of the 14th Amendment – which, of course, did not exist in 1801 – so that powers prohibited to the Federal government were likewise prohibited to the States … powers like designating churches and religions as “established” or “official”. (If State A officially establishes Religion X, whereas State B officially establishes Religion Y, neither religion enjoys “equal protection” in both States.) The customary expression for this practice is to say that Gitlow “incorporated” the First Amendment – technically, only freedom of the press in the case of Gitlow – “against the States”. I would invite you (all) to investigate the entire sweep of the “incorporation” story, beginning with Gitlow in 1925, pertaining to the First Amendment, and extending to McDonald v. City of Chicago in 2010, pertaining to the Second. Consequently, the entire history of the First Amendment and its interpretation by the Courts runs counter to any preferential treatment for Christianity (or any other religion) in any sense whatsoever, and has done so ever since James Madison, with consummate lawlerly precision, wrote “Congress shall make no law respecting … “ in 1788.

(If you want to pursue the theory and practice of incorporation vis a vis the “religion” clauses farther, I would recommend reading the following Supreme Court decisions:  Everson v. Board of Education, Pierce v. Society of Sisters, Cantwell v. Connecticut, WV State Board of Ed. v. Barnette, Zorach v. Clauson, Engel v. Vitale, Abington Township SD v. Schempp, Sherbert v. Verner, Lemon v. Kurtzman, Wisconsin v. Yoder, Valley Forge Christian College v. Americans United for Separation and State, Bob Jones Univ. v. United States, Illinois ex rel. McCollum v. Board of Ed. SD 333. Lemon is especially instructive. In fact, an excellent investment would be to download to your Kindle for $8.00 the Landmark casebook First Amendment:  Historic US Supreme Court Decisions.)

Bottom line:  the CNP manifesto's explicit intent to accord preference to "historic Judeo-Christian principles" was DOA, constitutionally, even before the manifesto was ever committed to paper. The "establishment" and "free exercise" clauses jointly assure that the CNP's vision of education-as-evangelism is "always already" dead.

o Forgetting the “establishment” clause for a moment, such a full-throated and anti-constitutional preferential  advocacy of Christianity in school classrooms would, in practice, result in a de facto violation of the “free exercise” clause of the First Amendment, as well.

Speaking from personal experience, I can attest that people raised in the hothouse environment of an exclusively Christian, especially conservative evangelical Christian, subculture are seriously impaired when it comes to placing themselves in the shoes of others who do not share their religious ideology and upbringing, as was the case with me through my teen-age years. Children – say, Buddhist or Muslim children – attending a school where the predominating religious ideology was overtly and avowedly, even militantly, Christian would be, as a matter of “facts on the ground”, highly inhibited in the practice of their own faith.  Secretary DeVos, and no doubt others in influential positions in the Council for National Policy, would have a hard time imagining themselves in a public school in, say, Tehran. So it is equally unlikely that they could imagine how inhibited they would feel in the practice of their Christian faith. Yet they seek to implement national educational policy that would result in imposing this kind of inhibition on others of different faiths. This is certainly contrary to the spirit of the “free exercise” clause, and quite arguably of its letter, as well.

o The practical problems of implementing such a “Christianity-only” policy would be prohibitively disruptive:  the educational process would be eaten alive by endless litigation

Can anyone – even the staunchest CNP supporter and most devout conservative evangelical Christian – seriously envision that, if such a Christianity-only policy were adopted toward education, that organizations like the American Civil Liberties Union, People For the American Way, and Americans United for Separation of Church and State, faced with the prospect of even private educational institutions being transformed into de facto Christian madrassas, would supinely take such a possibility lying down? The court system at all echelons of the US justice system would be flooded virtually overnight with suits and countersuits alleging violations of the “religion” clauses, and maybe the “abridgement” clause, of the First Amendment; the “equal protection” clause of the Fourteenth; the “due process” clause of the Fifth; etc., etc., etc., etc., etc., etc., per omnia saecula saeculorum, “World without end, Amen”, "Smoke 'em if y'got 'em" … all of which would take money away from the actual, value-added process of school instruction, and instead pour all that money past the event horizon and down the black hole of infinitely protracted litigation – litigation over constitutional, First / Fourteenth / maybe Fifth Amendment, due process, and related issues that have been settled over the past century-plus. (Please understand in no uncertain terms:  in such confrontations, my support and sympathies would be unreservedly and enthusiastically on the side of secularists and progressives. But concern for the effect on educational quality by school budgets impoverished by legal fees should be shared by everyone, not just "godless secular humanists" like the undersigned.) By the time it was all over – assuming it ever was – the phrase stare decisis would never have sounded sweeter. Which is precisely the solution: let the decision(s) stand.

So ... herewith my three-part advisory to CNP and CNP sympathizers:  (1) read some history, concentrating on the history of Europe during the 1500s / 1600s, and see what carnage has been wrought and how high the bodies have been stacked because of religious conflicts, conflicts that remain unresolved to this day, and that are not still eating us alive because of laws like the First and Fourteenth Amendments; (2) read the First Amendment and the Federalist Papers pertaining thererto; (3) in the spirit of stare decisis, let’s leave things as they are, because forced / faux / fake religious conversions are always just that:  faked.

And while I’m at it … I’d like Secretary DeVos to meet an old friend of mine:  Madame Secretary, may I introduce the First Amendment and its partner and faithful companion the Fourteenth?

James R. Cowles

Image credits:
Betsy DeVos ... Howard University ... Public domain
First Amendment ... ... Public domain
James Madison ... White House Historical Association ... Public domain
St. Philip's Church, Garrison, NY ... Daniel Case ... CC BY-SA 3.0
Lakewood Church ... Joel Osteen Ministries ... CC BY-SA 3.0

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