The following is the latest in a series of blog posts accompanying newly-released Bradley Lectures Podcast episodes. The subject of this post is “A last gasp for the First Freedom,” an episode examining Michael McConnell’s 1992 Bradley Lecture, “Freedom of Religion v. Freedom from Religion.”

Many Americans invoke the notion of a “wall of separation”
between church and state, building on — some might say co-opting — the metaphor
Thomas Jefferson used in a letter to the Danbury Baptists to elucidate the First
Amendment’s opening clauses. The twin guarantees of that Constitutional
provision — that “Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof” — are indeed ripe for
interpretation and debate. Their meaning hinges on definitions: What is meant
by “respecting”? What characterizes “establishment,” “religion,” “prohibiting,”
and “free exercise”?  

When you put it all together, does the First Amendment add
up to a doctrine of national secularism?

Michael McConnell took on this question in a 1992 Bradley
Lecture comparing “freedom of religion” to what he called “freedom from
religion.” The then-University of Chicago law professor (later a federal judge)
contended that Establishment Clause jurisprudence and the historical pattern of
state involvement in public life pointed to a growing preference for the
latter. Rather than remaining neutral on religion, American government at many
levels and across many branches had adopted a policy of secularism.

Some of the examples McConnell cited were downright comical.
Public schools, which were prohibited from using textbooks with religious
messages or overtones, taught that Thanksgiving commemorates the Pilgrims —
defined as ‘people who had traveled a long distance’ (for no reason in
particular, it seems) — thanking not God but the Native Americans for helping
them in the New World. The erasure of America’s religious roots did not appear
to McConnell a laughing matter, but representative of a widespread tendency
against teaching anything that could be considered ‘endorsement’ of religion.

Another example was far less funny, and marks an important
precedent in the ongoing battle over the Establishment Clause. In a case that
was pending Supreme Court review at the time, Arizona had denied a deaf student
the sign-language assistance to which he was entitled under federal law. In
McConnell’s telling:

If he went to public school, he would get the signer. If he went to a private non-sectarian school, he would get the signer. But the State of Arizona decided that because his parents believed that he ought to receive his education from a religious school, they would not provide the signer … The Federal court has held not only that Arizona was justified in this, but that the establishment clause requires it, that the state must actively discriminate against deaf children who choose to take their education under religious auspices.

In a 5-4 decision released the following June, the Court
ruled in favor of the deaf boy. Chief Justice Rehnquist adopted a
McConnell-esque stance, reasoning that “a general government program that
distributes benefits neutrally to any child qualifying as ‘handicapped’” ought
to provide the service “without regard to the sectarian, nonsectarian, or
public-nonpublic nature of the school.” Neutrality, rather than established
freedom from religion, won the day.

The Supreme Court will hear arguments in January on a
similar question in the case of Espinoza
v. Montana Department of Revenue. The issue: Is it a violation of the First
Amendment to deny students enrolled in religious schools the benefits of a
state scholarship program? The question, as with many First Amendment cases,
implicates both its clauses concerning religion: Is it state “establishment” to
help facilitate religious inculcation (to use a favorite word of the Court)?
Does it violate a religious student’s free exercise to deny them a benefit
available to those attending public or private secular schools?

In this case, the Court will have to reckon with McConnell’s argument about how its jurisprudence has drifted from protecting robust free exercise to policing religious establishment. It will have to consider whether the United States is a country whose first freedom guarantees that all may practice (or not practice) their faith as they see fit, or if that very freedom is realized with the promise of a purely secular public square. 

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