Freedom From Religion
In the ongoing skirmish over the doctrine of “separation of church and state”, one of the battle points is whether “freedom of religion” includes the right to be free from religion. To me, the answer to this question is an obvious “yes”. I don’t see how it could be otherwise. How can I freely practice my religion if I don’t have the right to be free from yours? My religion might forbid me from doing something that your religion mandates, and then where would we be? But what is obvious to me has somehow escaped the attention of Supreme Court Justice Antonin Scalia. In a recent speech Justice Scalia commented thusly on the right (or the lack thereof) to be free from religion: “To tell you the truth there is no place for that in our constitutional tradition. Where did that come from? To be sure, you can’t favor one denomination over another, but can’t favor religion over non-religion?”
He wants to know “where that came from?” Well, we could start with Thomas Jefferson (a personage with whom I hope Justice Scalia has some familiarity), who said “But it does me no injury for my neighbor to say there are twenty gods or no God at all. It neither picks my pocket nor breaks my leg”. Understand, what Jefferson was saying here is that it is no business of government to concern itself with the peoples’ religious beliefs, whether they be pro or anti. But to acknowledge the freedom to be non-religious, we only have to look at the exact wording of the constitution itself, which is a form of statutory construction that Justice Scalia should, at least in theory, approve of. He is, after all, known to be a constitutional textualist, i.e., one who believes that a statute should be interpreted only according to a plain reading of its text. In this case the text in question says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. Note that the plain wording of the statute prohibits the establishment of religion, as opposed to the establishment of one particular religion. It could have been written to only prohibit the establishment of one religion, but it wasn’t. As a textualist, Justice Scalia should understand this.
More important, and quite troubling, are the implications of Scalia being right (which he fortunately is not) that government is allowed to favor religion in general over non-religion. Say, for example, that a state passed a law that required all of its residents to show proof of membership in a religious congregation of their choosing, or pay a hefty fine. Does Scalia really believe that such a law would pass constitutional muster? What if my state passed such a mandatory religious-affiliation law, and I responded to it by asserting my membership in the Church of the Flying Spaghetti Monster? How about the Church of the Infallible Engel, of which I was the only member? Would this be okay with my state, or would it prefer to get itself immersed in the incredibly sticky business of deciding which religions are “legitimate” and which are not? Would Islam pass the test? Scientology? Ethical Culture? Where and how would the lines be drawn? Every time the Right Reverend Scalia bloviates on religion it is a reminder of what a good idea it is to maintain Jefferson’s “wall of separation between church & state”.