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Feisal G. Mohamed

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Rick Santorum's Fuzzy First Amendment

Posted: 02/26/2012 8:35 pm

Appearing on ABC's This Week, Rick Santorum elaborated on his statement that watching John F. Kennedy's 1960 speech to the Greater Houston Ministerial Association made him want to "throw up." Especially purgative, apparently, is the idea that a president should openly declare his reluctance to take advice from members of the clergy. Candidate Santorum favors a more fluid relationship between church and state, a sentiment he supports with reference to the free exercise clause of the First Amendment.

As is so often the case with GOP rhetoric, Santorum's statements amount to clamorous half-knowing. (He said in the same interview that all university professors are liberals, which is also half-true; some of us are social democrats.) He is right to question the extent to which religion and politics are distinct realms in the American tradition. Many secularists will instinctively point to the establishment clause of the First Amendment as imposing a separation of church and state. But that view is not quite right. In its 1791 context the establishment clause did not impose an absolute barrier between religious institutions and government: several states in the union had official religions, so the amendment's guarantee that "Congress shall make no law respecting an establishment of religion" assures the states that the new federal government would not impose its will upon them in this regard. It is only much later -- often said to be the Supreme Court's decision in Everson v. Board of Education (1947), though arguably not until Lemon v. Kurtzman (1971) -- that something resembling a full separation of church and state can be said to have taken place.

Santorum is also right that an institutional separation of church and state, even if absolute, does not legitimize the removal of belief statements from the "public square." The First Amendment's free exercise clause does indeed recognize that Congress should not abridge an individual's expressions of conscience. The view that non-belief is a more legitimate form of public discourse than belief is a twentieth-century creature, finding its peak in the judicial assault on religious schooling. Secularists who applaud that assault might pause to wonder if inner-city education has thrived after the de-funding of Catholic schools. And we must wonder more generally if the liberal justification for a secular public sphere holds up to scrutiny: by its logic we must demand that believers leave their beliefs at home and make public statements in the language of reason. It is a logic ironically marginalizing individuals in the name of equality.

But free exercise also has elements flatly contradicting Santorum's position. The clause distills the liberty of conscience tradition, with its emphasis on an individual's right to follow divine will without the interference of worldly authority. It is a tradition deeply hostile to Roman Catholicism. From the Protestant idea of the priesthood of the believer arises antipathy toward the Catholic Church's claim infallibly to embody God's will and to be through its hierarchy the gatekeeper of the Kingdom of Heaven. In Protestant thought such claims are viewed as an arrogation of divine authority and come to be associated with the wiles of Satan -- it was simply taken for granted by early Protestants that the pope was Antichrist's chief agent on Earth. Under this view, liberty of conscience is threatened not only by the over-reaching magistrate, but also by the over-reaching priest. In the speech that Santorum finds so nauseating, Kennedy recognizes that churches can threaten free exercise by using state power to advance their interests: "I am wholly opposed to the state being used by any religious group, Catholic or Protestant, to compel, prohibit, or persecute the free exercise of any other religion."

Santorum may thus be surprised to learn that the ideas underpinning the free exercise clause seek to limit the church's power, and that they are particularly opposed to the church of which he is a member. He is correct in saying that the free exercise clause protects the right of individuals to express religious views in the public square, but he is wrong to say that this amounts to a porous relationship between church and state.

The First Amendment is complex; Rick Santorum is less so. We know this already. Much more alarming is the Supreme Court getting the principles of establishment and free exercise wrong in its recent 9-0 decision in Hosanna-Tabor. But that requires a separate post.

 
 
 

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