Exploring the parameters of religious expression in public life

January 22, 2008Duke Law News

January 18, 2008 ― When religion intersects with American public life, issues often boil into controversy. Should schoolteachers be allowed to wish their students “Merry Christmas”? Does a Ten Commandments monument have a place in the state building? How should students recite the Pledge of Allegiance ― if at all? When should religious interests cede, and when should they win?

Jordan Lorence raised such questions at a Jan. 15 lunchtime event sponsored by the Duke Law chapter of the Federalist Society. Senior vice president of the Alliance Defense Fund, a group focused on issues relating to religious freedom, Lorence discussed activities that, he said, the Establishment Clause does not forbid. He argued in favor of what he called a “more balanced, reasonable application of the Establishment Clause about religious expression in public life.”

One must first distinguish between private and public religious expression, Lorence told his student audience; there is no point of contention under the Constitution when private actors ― as opposed to the government ― are involved. Lorence also emphasized “context” as a necessary tool for parsing between what is forbidden or allowed by the Establishment Clause, cautioning against viewing religious activities in the public realm as “hazardous waste” which must instantly be removed. He proposed that teachers, for example, should be allowed to bring up religious references in their classrooms, so long as their intent is “pedagogical” and not “devotional.” On that basis, a teacher could point out that particular literary expressions derive from the Bible.

Religious expressions should not be censored simply because “impressionable” members of society may be confused by them, he said, arguing that such measures would likely promote unfounded hostility, rather than neutrality. Nor should religious displays, like the Bible verses once posted in the McCreary County courthouse ― which the Supreme Court held were unconstitutional its 2005 ruling in McCreary County, Kentucky v. ACLU ― necessarily be removed on the account of perceived offense. According to Lorence, sentiments of offense are in themselves insufficient to meet the criteria in the clause’s Article III, which states that injuries to the plaintiff must be concrete, traceable back to the government, and remediable by the federal court.

Under the Constitution, would it count as a “government subsidy of religion” to allow a church to hold its worship services in a building space open for public use? Lorence likened this dilemma to the question of whether a city should send its firefighters to a burning synagogue ― since this, too, would be what he called an “in-kind contribution” from the government. The Establishment Clause does not necessarily exclude religious groups from public benefits, he said.

In respecting the Establishment Clause, one must take care not to only censor “majority” religious expression while condoning “minority” religious activities as purely cultural, he said. Too often, he said, people are quick to object to policies associated with Christianity or other conservative groups, in a fashion he referred throughout his lecture as “straining the gnat while swallowing the camel.”

“There should be no treatment of Christianity as uniquely dangerous to the American way of life... and ‘subject to unique disabilities’” he said, referring to Justice Willliam Brennan in closing, before inviting his audience to discuss their diverse views.

Lorence’s address, “Seven things the Establishment Clause does NOT forbid,” is available for viewing as a webcast.
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