Fence of Protection
Princeton scholar: Culture continues to challenge religious freedom
April 10, 2024 at 3:51 p.m.
A New Jersey-based Catholic scholar paraphrased Charles Dickens in describing religious freedom in the United States: “It’s the best of times and it’s the worst of times.”
“It’s the best in some ways because the Supreme Court over recent decades really has been protecting religious freedom. But when it comes to the culture at large, we face some pretty significant challenges,” Dr. R.J. Snell told the crowd gathered April 9 in St. Gregory the Great Parish’s Ferrante Hall, Hamilton Square.
A director of academic programs at the Witherspoon Institute, Princeton, and an executive committee member of the Aquinas Institute — Princeton University’s Catholic Campus Ministry — Dr. Snell examined religious freedom’s place in America’s political sphere and how the Supreme Court’s interpretation of the First Amendment has led to different defenses and exclusions.
“The Supreme Court can protect us, but … the composition of the Court can change,” he said. “Justice [Antonin] Scalia used to remind people that ‘there’s no reason to think that when it comes to the Court, the arc of the universe bends only toward justice. … So, we need to think long and hard about social and cultural issues as well.”
Interpretation is Key
Although the First Amendment does not grammatically read as two clauses, Dr. Snell said, its protections include two facets, often referred to as the establishment clause and the free exercise clause.
“Establishment is generally when we think of … how involved the state can be in religion,” he explained. “The free exercise aspect of religion is about what you can do as a private individual,” which includes where that can take place and when a person might be exempt from the law.
An early example of the establishment clause, Dr. Snell said, came from the landmark 1947 Everson case in nearby Ewing; that case concerned whether the township could provide busing for children attending parochial school. A 5-4 vote ruled in favor of providing the transportation.
“The response was that no religious education is occurring on the bus,” he said. This ruling, Dr. Snell continued, had its roots in a “strict separationism” theory held by the Court.
“It made the following claims: that the government could have no view about what religion was at all … the state had to be nonpreferential between religions … and the secular state and religious groups had to be treated identically.”
Although protecting a good such as transportation seemed like a net positive, strict separationism prevented religion from “being able to make the claim that it is a social good like secular goods and cannot be preferred in any way.”
This view held through the mid-1980s, until it was replaced by a more religion-friendly “non-preferentialism,” in which the Court held that while the state could not coerce or compel, it could encourage religion.
“The Court said that religion might have some social value,” Dr. Snell noted, using nonprofit status of religious institutions as an example of the Court protecting religions’ work in a community. “They said that ‘it’s within the history, tradition and morays of the American people to think that religion is OK.’”
Protecting Church from State
Depending upon which case was argued before the Supreme Court and how it was interpreted, rights of religious groups and individuals have been either upheld or overturned. In the 1992 case Lee v. Weisman, the Court struck down the permission of a school allowing a clergy member to lead a nonsectarian prayer at commencement exercises.
“The argument given was that students at school, when asked to observe a moment of silence or to stand out of respect for other peoples’ prayer, are being coerced out of peer pressure,” said Dr. Snell. “There’s a psychological compulsion placed upon them to act as if religion is true. This is referred to as a ‘dignitary harm.’”
The problem with this argument, he said, is that if prayer poses a grave risk of psychological coercion and dignitary harm, it calls into question the constitutional protection of any statement made by a religious institution.
“Think about every time the Church makes … a claim about the truth or falsity of an action, or proposes a reason in public,” Dr. Snell said. “If that’s viewed as psychological coercion or psychological compulsion, what wouldn’t be viewed as such? … Justice Scalia, in his dissent of this case, said, ‘The Supreme Court justices need to read more law and less Freud.’”
The metaphor of the wall of separation between church and state is often quoted as a reason for the removal of religion from the public sphere, Dr. Snell said.
“People like to think of this as a constitutional principle — it’s not,” he said. “It’s given in a private letter from Thomas Jefferson … it was never enacted in law.”
Another metaphor is beginning to take its place, he said: a fence to protect a garden.
“[It’s creating a fence] to protect religion,” he said, “so that citizens, encouraged by the government to follow their conscience, can train their own children and the members of their community to keep their religious beliefs … to keep state out of religion so religion can flourish and be passed on.”
Strict Scrutiny
“Which is more important — free speech or freedom of religion?” Dr. Snell asked. “The SCOTUS is now arguing that free speech is preferential.”
He pointed to how parts of the First Amendment — free exercise of religion and free speech — have been pitted against each other in cases, and something called “strict scrutiny” was called upon to interpret the law.
“Strict scrutiny claims that if a law limits free exercise of religion, the burden is placed on the government to justify its action,” Dr. Snell said. “It has to demonstrate two things: there is a compelling state interest to do this … and that the law is narrowly tailored, what the government has proposed is necessary … and only this action can bring about the compelling state interest.”
In the 2020 case of the Little Sisters of the Poor, who were being compelled to provide contraception access to employees via their health care plan, the Court sided with them on the basis that the law was not narrowly tailored; it was not required because contraception could be obtained by other means.
In two other big cases — Masterpiece Cakeshop v. Colorado Civil Rights Commission in 2018 and 303 Creative v. Elenis in 2023 — businesses refused to provide products that would celebrate a same-sex marriage. The Supreme Court ruled in favor of Masterpiece “not because of his religious freedom but because religious neutrality was violated by the state,” Dr. Snell said. The 303 Creative case was a test of whether a business owner would be compelled to make a website in spite of religious beliefs to the contrary, and the Court sided with the business in defense against compelled speech — “so religion was defended accidentally.”
Changing Social, Cultural Trends
“SCOTUS justices are not on the Court forever,” Dr. Snell said. While the Supreme Court gives examples and guidance to lower state courts, those institutions continue to resist the higher Court’s decisions. “Elections matter, and new justices’ dissents against religious freedom have been extensive.”
Among the most disturbing trends is the tendency of many people to see religion as irrational, he said.
“Truth claims, including those of religion, are being viewed as oppressive, as an exercise of force,” he said. “The cultural catechesis has been relentless through social media, entertainment and schools,” and the prevailing view being taught is “The point of life is ‘self’ — religion is irrelevant.”
Comparing that to the eight Sundays of Catholic catechesis that middle-schoolers are receiving, Dr. Snell said: “We can’t compete. They hear it as nonsense, or intrinsically repressive.”
Remaining hopeful, he believes the best way to combat this perspective is “to look truth in the face, act intelligently and well.”
“What do [the secularists] have? They have some French theorists,” Dr. Snell continued. “We have the Holy Spirit. We have Our Lady. Millions of faithful Catholics and faithful Christians and serious Jews and well-intentioned Muslims. Millions of decent ordinary people, doing their best with their lives. We have the truth of the Catholic Church.
“We know how the story ends. And the story was never that there wouldn’t be crosses or suffering. … The cross is central to the experience.”
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A New Jersey-based Catholic scholar paraphrased Charles Dickens in describing religious freedom in the United States: “It’s the best of times and it’s the worst of times.”
“It’s the best in some ways because the Supreme Court over recent decades really has been protecting religious freedom. But when it comes to the culture at large, we face some pretty significant challenges,” Dr. R.J. Snell told the crowd gathered April 9 in St. Gregory the Great Parish’s Ferrante Hall, Hamilton Square.
A director of academic programs at the Witherspoon Institute, Princeton, and an executive committee member of the Aquinas Institute — Princeton University’s Catholic Campus Ministry — Dr. Snell examined religious freedom’s place in America’s political sphere and how the Supreme Court’s interpretation of the First Amendment has led to different defenses and exclusions.
“The Supreme Court can protect us, but … the composition of the Court can change,” he said. “Justice [Antonin] Scalia used to remind people that ‘there’s no reason to think that when it comes to the Court, the arc of the universe bends only toward justice. … So, we need to think long and hard about social and cultural issues as well.”
Interpretation is Key
Although the First Amendment does not grammatically read as two clauses, Dr. Snell said, its protections include two facets, often referred to as the establishment clause and the free exercise clause.
“Establishment is generally when we think of … how involved the state can be in religion,” he explained. “The free exercise aspect of religion is about what you can do as a private individual,” which includes where that can take place and when a person might be exempt from the law.
An early example of the establishment clause, Dr. Snell said, came from the landmark 1947 Everson case in nearby Ewing; that case concerned whether the township could provide busing for children attending parochial school. A 5-4 vote ruled in favor of providing the transportation.
“The response was that no religious education is occurring on the bus,” he said. This ruling, Dr. Snell continued, had its roots in a “strict separationism” theory held by the Court.
“It made the following claims: that the government could have no view about what religion was at all … the state had to be nonpreferential between religions … and the secular state and religious groups had to be treated identically.”
Although protecting a good such as transportation seemed like a net positive, strict separationism prevented religion from “being able to make the claim that it is a social good like secular goods and cannot be preferred in any way.”
This view held through the mid-1980s, until it was replaced by a more religion-friendly “non-preferentialism,” in which the Court held that while the state could not coerce or compel, it could encourage religion.
“The Court said that religion might have some social value,” Dr. Snell noted, using nonprofit status of religious institutions as an example of the Court protecting religions’ work in a community. “They said that ‘it’s within the history, tradition and morays of the American people to think that religion is OK.’”
Protecting Church from State
Depending upon which case was argued before the Supreme Court and how it was interpreted, rights of religious groups and individuals have been either upheld or overturned. In the 1992 case Lee v. Weisman, the Court struck down the permission of a school allowing a clergy member to lead a nonsectarian prayer at commencement exercises.
“The argument given was that students at school, when asked to observe a moment of silence or to stand out of respect for other peoples’ prayer, are being coerced out of peer pressure,” said Dr. Snell. “There’s a psychological compulsion placed upon them to act as if religion is true. This is referred to as a ‘dignitary harm.’”
The problem with this argument, he said, is that if prayer poses a grave risk of psychological coercion and dignitary harm, it calls into question the constitutional protection of any statement made by a religious institution.
“Think about every time the Church makes … a claim about the truth or falsity of an action, or proposes a reason in public,” Dr. Snell said. “If that’s viewed as psychological coercion or psychological compulsion, what wouldn’t be viewed as such? … Justice Scalia, in his dissent of this case, said, ‘The Supreme Court justices need to read more law and less Freud.’”
The metaphor of the wall of separation between church and state is often quoted as a reason for the removal of religion from the public sphere, Dr. Snell said.
“People like to think of this as a constitutional principle — it’s not,” he said. “It’s given in a private letter from Thomas Jefferson … it was never enacted in law.”
Another metaphor is beginning to take its place, he said: a fence to protect a garden.
“[It’s creating a fence] to protect religion,” he said, “so that citizens, encouraged by the government to follow their conscience, can train their own children and the members of their community to keep their religious beliefs … to keep state out of religion so religion can flourish and be passed on.”
Strict Scrutiny
“Which is more important — free speech or freedom of religion?” Dr. Snell asked. “The SCOTUS is now arguing that free speech is preferential.”
He pointed to how parts of the First Amendment — free exercise of religion and free speech — have been pitted against each other in cases, and something called “strict scrutiny” was called upon to interpret the law.
“Strict scrutiny claims that if a law limits free exercise of religion, the burden is placed on the government to justify its action,” Dr. Snell said. “It has to demonstrate two things: there is a compelling state interest to do this … and that the law is narrowly tailored, what the government has proposed is necessary … and only this action can bring about the compelling state interest.”
In the 2020 case of the Little Sisters of the Poor, who were being compelled to provide contraception access to employees via their health care plan, the Court sided with them on the basis that the law was not narrowly tailored; it was not required because contraception could be obtained by other means.
In two other big cases — Masterpiece Cakeshop v. Colorado Civil Rights Commission in 2018 and 303 Creative v. Elenis in 2023 — businesses refused to provide products that would celebrate a same-sex marriage. The Supreme Court ruled in favor of Masterpiece “not because of his religious freedom but because religious neutrality was violated by the state,” Dr. Snell said. The 303 Creative case was a test of whether a business owner would be compelled to make a website in spite of religious beliefs to the contrary, and the Court sided with the business in defense against compelled speech — “so religion was defended accidentally.”
Changing Social, Cultural Trends
“SCOTUS justices are not on the Court forever,” Dr. Snell said. While the Supreme Court gives examples and guidance to lower state courts, those institutions continue to resist the higher Court’s decisions. “Elections matter, and new justices’ dissents against religious freedom have been extensive.”
Among the most disturbing trends is the tendency of many people to see religion as irrational, he said.
“Truth claims, including those of religion, are being viewed as oppressive, as an exercise of force,” he said. “The cultural catechesis has been relentless through social media, entertainment and schools,” and the prevailing view being taught is “The point of life is ‘self’ — religion is irrelevant.”
Comparing that to the eight Sundays of Catholic catechesis that middle-schoolers are receiving, Dr. Snell said: “We can’t compete. They hear it as nonsense, or intrinsically repressive.”
Remaining hopeful, he believes the best way to combat this perspective is “to look truth in the face, act intelligently and well.”
“What do [the secularists] have? They have some French theorists,” Dr. Snell continued. “We have the Holy Spirit. We have Our Lady. Millions of faithful Catholics and faithful Christians and serious Jews and well-intentioned Muslims. Millions of decent ordinary people, doing their best with their lives. We have the truth of the Catholic Church.
“We know how the story ends. And the story was never that there wouldn’t be crosses or suffering. … The cross is central to the experience.”
The Church needs quality Catholic journalism now more than ever. Please consider supporting this work by signing up for a SUBSCRIPTION (click HERE) or making a DONATION to The Monitor (click HERE). Thank you for your support.