Freedom of, not from, religion [Commentary]

You do not have a right to control the religious practice of others just because it offends you

June 01, 2014|Robert L. Ehrlich Jr

One of my earliest childhood memories is going door-to-door at the Kendale Apartments on Maiden Choice Lane in Arbutus with Mom. The purpose of the exercise was not to solicit contributions on behalf of a political candidate, however. Rather, Mom and a group of like-minded volunteers were organizing in opposition to a woman by the name of Madalyn Murray O'Hair — she of the [un]holy crusade to ban prayer from public schools. Given my tender years, little did I realize that the Ehrlichs were fully engaged in a culture war that continues to burn brightly five decades later.

The issue concerns the parameters of our right to practice and follow religious traditions and customs in public places.

A brief historical reminder: The exercise of our sacred bundle of First Amendment rights is not unlimited. For example, Americans enjoy and take great advantage of freedom of speech. It's what allows you to read diametrically opposed viewpoints on this very page. Yet, one does not have the right to yell "fire" in a crowded theater. Similarly, the people's freedom to worship according to their individual convictions. Here, the framers clearly had one such limitation in mind: avoiding the establishment of a "state" religion. Otherwise, a healthy diversity of religious practice was their goal. They got it right, too. Our grand experiment in religious freedom has been an unqualified success.

Another point of reference: The framers never used the phrase "separation of church and state"; the drafters of the Bill of Rights never entertained the notion that American citizens would be separated from religious expression. A central point emerges: The dominant culture possesses an expansive right to observe its faith-based traditions and customs. Further, religious minorities (and nonbelievers) do not possess an alternative right to be free from offensive practices.

Nevertheless, Ms. O'Hara and her progeny have successfully circumscribed religious practice in the public square. Prayer is long gone from the public classroom, and every Supreme Court calendar contains cases whereby an aggrieved party wishes to further limit public displays of religious conviction in one way or another.

All of this is by way of introduction to the Supreme Court's recent decision in the case of Greece vs. Galloway.

The facts were not in dispute. The little town of Greece, N.Y. had traditionally begun its town council meetings with a non-denominational prayer — usually (but not always) from a Christian minister. (Note: Greece is overwhelmingly Christian.) But the practice managed to offend two plaintiffs who thought it was a bit too Christian for their tastes.

The majority opinion noted that such opening prayers are an integral part of American civic tradition going back to the founding. No surprise there; check out the daily opening prayers in Congress, state legislatures and most any town council in America. Further, the court noted a long line of precedent whereby prayer in public spaces has repeatedly been upheld. Writing for the majority, Justice Anthony Kennedy noted: "That the First Congress provided for the appointment of chaplains only days after approving language for the First Amendment demonstrates that the Framers considered legislative prayer a benign acknowledgment of religion's role in society."

A clear cut case, right? Not so fast. The vote was 5 to 4, as the reliably liberal wing of the court (Justices Kagan, Ginsburg, Suter and Sotomayor) held that any sectarian element in public prayer constitutes a governmental endorsement of religion. For these four justices, only generic, nonsectarian prayers would pass Constitutional muster.

Now fast forward to my daily activities wherein perfect strangers regularly seek to engage me in political conversation. On occasion, my new acquaintance will state that he/she does not vote because "the parties are all the same." It is on such occasions that I think about cases such as Greece vs. Galloway.

All elections count. But executive elections really count. Governors and presidents appoint judges, sometimes for life. Barack Obama has appointed 258 federal judges — two to the U.S. Supreme Court. The vast majority are activist liberals going about the business of legislating from the bench. The next Democratic president will do likewise — and likely have the opportunity to create a long-term liberal majority on the Supreme Court. Such a turn would be disastrous for our economy, and culture.

Just a thought for your consideration as you begin to think about the presidential election of 2016.

Robert L. Ehrlich Jr.'s column appears Sundays. The former Maryland governor and member of Congress is a partner at the law firm King & Spalding and the author of "Turn this Car Around" and "America: Hope for Change" — books about national politics. His email is ehrlichcolumn@gmail.com.


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