Protecting the Wall

Published June 03, 2005, issue of June 03, 2005.
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On the face of it, the United States Supreme Court’s ruling this week on the religious rights of prisoners covers a fairly narrow field: It merely upholds one recent federal law that limits the ability of certain local authorities — mainly prisons and zoning commissions — to curtail religious practices. But while the direct impact may seem limited, the ruling carries much larger implications.

For one, the decision is the first in more than a decade to uphold Congress’s right to protect religious freedom, after a series of earlier court decisions expanded the power of local authorities to impose their views on minority faiths. It’s a victory for dissenters and minorities and a rebuke to the majoritarianism running rampant in our political culture these days.

For another, the ruling affirms that the First Amendment truly “commands a separation of church and state,” in the words of the decision written for a unanimous court by Justice Ruth Bader Ginsburg. That’s an important reminder. The principle of separation, a bedrock of our democracy, is under serious attack these days from the theocrats around the country — the U.S. Air Force Academy and the Alabama state courthouse come to mind — who seem to believe that Thomas Jefferson’s “wall of separation” is a liberal plot. The court sided this week with Jefferson and the Constitution.

The case, Cutter v. Wilkinson, involved a group of prisoners in Ohio who charged that prison authorities were discriminating against the practice of minority religions, including a white supremacist church. The prisoners claimed the state’s actions violated a federal law requiring prisons, zoning authorities and others to show “compelling state interest” when they want to curtail a religious practice. Ohio prison authorities said they were entitled to exercise discretion to maintain order, and they challenged the constitutionality of the federal law limiting their discretion. The justices ruled unanimously that the federal law was in fact constitutional.

The ruling marks a turning point in a 15-year struggle to define the limits of religious freedom and government interference. It was in 1990, in a landmark Oregon case known as Employment Division v. Smith, that the high court decided states need only show a “reasonable basis” for outlawing particular religious practices — in that case, the American Indian ritual of smoking peyote — and not the “compelling state interest” that had previously been required. The Smith decision set off alarm bells among minority religious groups, not least among Jewish groups fearing it might be used to outlaw practices such as kosher slaughter and ritual circumcision. Efforts by Congress to repair the damage and protect religious practice ran into repeated constitutional objections until the lawmakers hit on the language used in the prisons-and-zoning measure, passed in 2000.

Court battles over religious freedom traditionally revolve around the language of the First Amendment, which prohibits Congress — or any other government body — from passing any laws “respecting an establishment of religion, or prohibiting the free exercise thereof.” The tension between those two phrases, the so-called Establishment Clause and Free Exercise Clause, has bedeviled lawmakers and judges for centuries. In this week’s decision, Ginsburg wrote that “there is room for play in the joints between the clauses, some space for legislative action neither compelled by the Free Exercise Clause nor prohibited by the Establishment Clause.”

That’s an important message for lawmakers who are struggling right now to find common ground on charged issues such as religious freedom in the workplace and government funding of religiously affiliated charities. There is room, the court affirmed, for reasonable compromise that adheres to the Constitution, respects majority opinion and protects both minority rights.

What’s not in dispute, the court said, is the basic principle laid down by the Framers of the Constitution as a building block of our republic: the separation of church and state. It should be uncontroversial by now, but in fact it’s disputed with increasing boldness by rightists intent on imposing their views on the rest of us.

Just last month, as E.J. Kessler reports on Page 1, Republicans in the House of Representatives beat back an attempt to restore religious freedom at the U.S. Air Force Academy, where evangelical Christians, with the support of the chaplain’s office, are said to be creating an atmosphere that tramples the rights and sensibilities of minorities. The House Republicans have brushed off the protests, arguing, in the words of one Indiana congressman, that the constitutional “wall of church-state separation” is a “mythical” invention of the courts.

It’s heartening to see the Rehnquist court put its collective foot down.






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