Fr. Richard John Neuhaus: "Religious Freedom Upside Down (and a word on William F. Buckley Jr.)"

Fr. Richard John Neuhaus writes at First Things on the Establishment Clause mess wrought by Justice Hugo Black:

... The first freedom of the First Amendment reads like this: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” Those sixteen words were subject to only modest debate or litigation until the 1947 Everson decision when Justice Hugo Black, writing for the Court majority, discovered that they mean that “neither a state nor the Federal Government . . . can pass laws which aid one religion, aid all religions, or prefer one religion to another.” This came as a great surprise to students of American history. In his magisterial 2004 study, Separation of Church and State, Columbia law professor Philip Hamburger underscored the ways in which Black’s long-standing animus toward Catholicism led him to turn the Religion Clause on its head. Dr. Nussbaum’s book is a determined defense of Black’s stratagem.

In discussions of the Religion Clause, it is common practice to speak of an Establishment Clause and a Free Exercise Clause. In fact, however, both grammatically and in intent, there is one clause with two provisions—no establishment and free exercise. The first provision is in the service of the second. That is to say, the reason the government must not establish a religion is that having an established religion would prejudice the free exercise of religion by those who do not belong to the established religion. Since Everson, however, and as numerous scholars have pointed out, the end of the Religion Clause, i.e., free exercise, has been subordinated to the means, i.e., no establishment. The result is that “the separation of church and state” (a phrase of Jefferson’s that is not in the Constitution) has come to mean that wherever government advances religion must retreat.

There is a school of constitutional law that holds that the entire fuss over the Religion Clause is misbegotten. The Founders intended nothing more, in this view, than to assure the states that the federal government would not interfere with the several state establishments of religion that existed at the time. The last state establishment (Massachusetts) was dismantled in 1833, so that’s that, and the Religion Clause is no more than a historical artifact. This view is charmingly straightforward, but Nussbaum does not address it, and just as well, for, like it or not, the Religion Clause has, since Everson, been deeply and confusedly entangled in our law and politics.

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It is hard to find a constitutional scholar today who does not agree, with greater or lesser dismay, that Religion Clause jurisprudence since Everson is an incoherent mess. At one point, the Supreme Court decreed that the Constitution allowed the government to provide maps but not books for parochial schools. To which the late senator Patrick Moynihan quipped, “What about atlases?” ...

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(emphasis added)

Fr. Neuhaus also pays tribute to the late great William F. Buckley, Jr.:

There will be more about William F. Buckley Jr. in the forthcoming issue of First Things. I was privileged to count him as a friend for the last quarter century, and the two of us last had lunch together at his Stamford, Connecticut, home in December. He was getting ready to leave for Florida to write a book on Ronald Reagan, for which he had a January 20 deadline. He doubted he would get it done. The emphysema was the big problem and he had to keep an oxygen kit ready at hand. Norman Mailer had died a few weeks earlier and that prompted conversation about fame, life as a performance, and the fittingness of mortality. In the last two years, Bill had been preparing himself for death, and more intensely since losing Pat in April 2007. He thought he had pretty much done what he was put here to do. We talked by phone while he was in Florida. The book was not going well. In the last two days, much has been written about what he accomplished, and much more will be written. Bill Buckley was a man of almost inexhaustible curiosity, courtesy, generosity, and delight in the oddness of the human circumstance. He exulted in displaying his many talents, which was not pride so much as an invitation to others to share his amazement at the possibilities in being fully alive. He was also, in and through everything, a man of quietly solid Christian faith. I am among innumerable others whose lives are fuller by virtue of the gift of his friendship. May choirs of angels greet him on the far side of Jordan.

Previous Pro Ecclesia posts on this subject:
William F. Buckley (1925-2008) - RIP

"Tear Down that Wall" [a National Catholic Register MUST READ]