Government

A Tale Of Two Invocations

The difference between two invocations delivered to the Pennsylvania legislature, one by a secularist and another by a Christian, illustrates why religion, and not the rise in non-belief, continues to be the greatest threat to religious freedom.

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Religion has always been something of a paradox in our Constitution because while it is expressly protected, threats to religious freedom have always come from other religions. This paradox is why our American form of secularism, as originally established in our federal constitution remains the best system of protection for religion ever devised. Its chief architect, James Madison, understood from past experience that to protect religion you had to protect it from itself by prohibiting “ecclesiastical establishments” from operating within civil authority. The necessity of such a system becomes equally obvious to anyone who has also studied American history since the time of Madison.

Prior to the passage of the Fourteenth Amendment, and the incorporation of the First Amendment to the states, persecution by American majorities of other minority religions was commonplace. Protestant majorities in the early states, for example, did not react well to large influxes of Irish-Catholic immigrants. What followed was a series of state laws rooted in anti-immigrant, anti-Catholic bigotry that only became prohibited once Madison’s First Amendment standard became binding on the states.

Proof of the overall superiority of Madison’s free conscience standard however, can also be found in practice today. This past March, Deana Weaver was given the honor, for a second time, of delivering the invocation to the Pennsylvania state Senate. In her secular prayer, Weaver personified Madison’s free conscience vision by asking members of a religiously diverse American legislature to utilize any “guiding authority” of their choice to provide a “willingness to work together for the good of we, the people.”

Just five days later, and before the Pennsylvania House, state Representative Stephanie Borowicz delivered a very different kind of invocation than Weaver’s. The main difference was the open hostility Representative Borowicz showed towards other religious beliefs. Among other things, Representative Borowicz proclaimed the current president was quite literally sent by her god. Borowicz also declared, again to a religiously diverse body, that “[a]t the name of Jesus every knee will bow and every tongue will confess, Jesus, that you are Lord.” In other words, while Deana Weaver’s secular invocation embodied everything Madison intended for a religious diverse United States, Representative Borowicz’s invocation represented everything Madison feared.

From the beginning of the religious freedom debate, Madison expressed great concern with how the inclusion of religion into civil matters erodes “that moderation and harmony” that only a secular government — which is prohibited from intermeddling with religion — can produce in a society of many religious sects. When opposing a state bill in pre-Constitution Virginia that sought to relax the separation of church and state Madison issued a prescient warning:

If with the salutary effects of this system under our own eyes, we begin to contract the bounds of Religious freedom, we know no name that will too severely reproach our folly. At least let warning be taken at the first fruits of the threatened innovation. The very appearance of the Bill has transformed “that Christian forbearance, love and charity,” which of late mutually prevailed, into animosities and jealousies, which may not soon be appeased. What mischiefs may not be dreaded, should this enemy to the public quiet be armed with the force of a law?

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This warning, unfortunately, has largely gone unheeded by our courts in the modern era where slowly but surely, the bounds of religious freedom have been chipped away in favor of allowing “ecclesiastical establishments” to operate within civil authority. This modern erosion has been justified by arguing that denials of civil support to religion amount to impermissible discrimination to free exercise. The logic of this discriminatory premise is contradicted, however, by the plain meaning of Madison’s intent to separate spiritual and religious affairs, as I have illustrated before:

To allow civil support was for Madison a contradiction to religion itself “for every page of it disavows a dependence on the powers of this world.” Civil support for religion also presented “a contradiction in terms” to Madison because it weakened “those who profess this Religion a pious confidence in its innate excellence and the patronage of its Author.

It is vitally important to our understanding of Madisonian religious freedom to recognize that Madison was not advocating that religion be denied access to civil support out of some intent to discriminate. Rather, Madison was trying to grant to religion, and the American individual, the liberty of having sole authority over how or whether to support religion. That no input or even direction from the state was seen as a positive by Madison. Put simply, it is absurd to the plain meaning and original intent of Madison’s framework of religious freedom in the First Amendment to characterize the separation of religion from civil support mechanisms as some kind discrimination. So why do our modern courts and many so-called “originalist” justices continue to ignore or chip away at Madison’s vision?

As is so often the case, wherever there exists such a contradictory or perhaps convoluted legal framework it is because legal arguments are being made downstream from social or political springs. For some time now, the fearmongering surrounding the rise in secular views among Americans has been completely out of control. To the point where supporting any objective free conscience principles against forced extraction by the government in order to pay for property enhancements for churches, or to subsidize church operations, or to maintain expensive religious monuments, you can expect to be portrayed as a vile bigot.

The denial of civil support mechanisms to religion however, was undeniably meant as a liberty against any demeaning of religion through state involvement thereby turning its traditional “forbearance, love and charity,” “into animosities and jealousies, which may not soon be appeased.” Additionally, as Deana Weaver so eloquently illustrated, placing religion within the sole discretion of the individual in practice is a great extension of free conscience liberty. Lastly, it is important to understand the dangers that Madison foresaw in contracting this liberty by allowing religion to encroach into civil authority. We must ask ourselves now, as Madison once did, to “[w]hat mischiefs may not be dreaded, should this enemy to the public quiet be armed with the force of a law?”

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Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

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