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The First Freedom

by dean john garvey

The first amendment begins by saying that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...” A lot has been written about how the two participial phrases (the establishment clause and the free exercise clause) relate to one another. Those who see religion as a threat to government stress the establishment clause; they insist that religion should be a private affair, kept strictly separate from the operations of government, or even from public deliberations.

These people (call them strict separationists) take a narrow view of the free exercise clause. They view special protection for religious people (draft exemptions,excuse from school or work) as a kind of establishment. Father Robert Drinan began at the other end. He believed that the main point was to protect religious freedom, and that the two clauses both served this end.

This is not surprising. He was, after all, a Catholic priest. He embraced wholeheartedly the Declaration on Religious Freedom promulgated by the Second Vatican Council. Here is how that document began:

[C]onstitutional limits should be set to the powers of government, in order that there may be no encroachment on the rightful freedom of the person and of associations.

This demand for freedom in human society chiefly regards the quest for the values proper to the human spirit. It regards, in the first place, the free exercise of religion in society.

Father Drinan held fast to this point throughout his career. In 1963 he praised the idea of draft exemptions for conscientious objectors and lamented the Supreme Court’s unwillingness to grant relief from Sunday laws to Jewish merchants.1 More than forty years later he argued against Turkey’s rule that Muslim women could not wear veils.2

Father Drinan’s position in support of religious freedom was very similar to that of Justice William Brennan, whom he admired.3 For a quarter century it was also the position of the Supreme Court. When the Court retreated in 1990 and refused to grant exemptions,4 Father Drinan supported a Congressional solution—the Religious Freedom Restoration Act. And when the Court held that law unconstitutional,5 he spoke out in strong terms:6

[R]eligious bodies of every orientation helped to enact a law that has been struck down by the nation’s highest tribunal. Such an unprecedented rebuff to religion suggests that the Supreme Court has a view of the Free Exercise Clause that is profoundly at odds with the notion on which America’s religious organizations and Congress have operated.

Drinan’s commitment to religious liberty was so strong that it colored his interpretation of the establishment clause—a position that must have caused some embarrassment to his liberal friends. Writing in 1967 about state aid to religious colleges, he observed that “the overall purpose of the first amendment [is] the maximizing of religious freedom—even to the extent of qualifying the no-aid restriction of the establishment clause.”7 I don’t believe that his position on school aid was driven by Catholic self-interest. But it may have been his Catholic upbringing that led him to recognize, sooner than many of his academic peers, the compromises we make to freedom of thought in the public schools. In an address he gave in 1961 to the American Association of School Administrators he argued that “the seemingly widely accepted concept that public schools should promote national unity is—to be very candid—distressing.”8 It is one thing to accept, as Father Drinan did, the rule that the government should not itself promote religious ideas or practices.9  It is another to suppose that this stance is neutral on the subject of religion. As Drinan said,10

It cannot realistically be maintained that the “secular” school is truly a “neutral” school concerning religion. The impact of the “secular” school on students for thirty hours a week over a period of twelve years is enormous. And that impact is inevitably one which minimizes the importance and even the relevance of the “sectarian.”

One who grasps both horns of this dilemma—that the government must not itself do religion, and that an entirely secular system is harmful to religion—might come to believe that the government threatens religious freedom when it drives children into the public schools. A proper respect for religious liberty might allow parents to spend tax-raised education dollars at schools that teach something other than the state-approved message. This was the position that Father Drinan accepted.11It is also the one the Supreme Court came to in 2002.12

The same commitment to religious freedom that led Drinan to support aid to parochial schools moved him to skepticism about other forms of aid to religion. Consider the flag salute—an issue the Court declined to consider in 2004.13 In recent years there has been controversy over asking school children to recite the Pledge of Allegiance, which speaks of “one nation under God.” Father Drinan suggested that the practice might be inconsistent with both the first amendment and the Second Vatican Council’s Declaration on Religious Freedom. Religious freedom protects those who hold no faith in God no less than believers, he said: “That document forbade any discrimination against those who are not persons of faith.”14

My work in the field has led me to share Father Drinan’s view in this regard. Although we may have lost sight of it in the liberal versus conservative debate, it was the intent of our founding fathers to protect individual liberty, which includes that most fundamental freedom—the freedom to practice whatever religion we choose.

1 RELIGION, THE COURTS, AND PUBLIC POLICY 203(1963), discussing Braunfeld v. Brown, 366 U.S. 599 (1961). Sherbert v. Verner, 374 U.S. 398 (1963), was decidedin 1963, probably after Fr. Drinan’s book had goneto press. It took the position he argued for.2 Religious Freedom Needs Guarantees, National CatholicReporter 41.5 (Nov. 19, 2004), p. 20(1).3 See his complimentary review of Brennan’s free exercise jurisprudence, Conditions and Conscience: Free Exerciseof Religion, in E. Rosenkranz and B. Schwartz, REASON AND PASSION 81-86 (1997).4 Employment Division v. Smith, 494 U.S. 872 (1990).5 In Boerne v. Flores, 521 U.S. 507 (1997).6 Reflections on the Demise of the Religious Freedom Restoration Act, 86 Geo. L.J. 101, 121 (1997). See also Church and State in B. Schwartz, THE BURGER COURT119, 125-129 (1998).7 Does State Aid to Church-Related Colleges Constitutean Establishment of Religion? – Reflections on the Maryland College Cases, 1967 Utah L. Rev. 491, 513 (1967).8 Should the State Aid Private Schools?, 7 Cath. Law. 135,142 (1961).9 To be entirely candid, I should say that it took Fr. Drinan(as it did the Supreme Court and the rest of us) a little while to realize the full implications of  even this point.As late as 1960 he could be found speaking in favor of school prayer and the punishment of  blasphemy. Religionand the State, 7 Cath. Law. 45, 46-47 (1961). The Supreme Court first ruled against school prayer in 1962 and 1963.Engel v. Vitale, 370 U.S. 421 (1962); Abington School Districtv. Schempp, 374 U.S. 203 (1963).10 Should the State Aid Private Schools?, 7 Cath. Law. at 139.11 The Constitutionality of Public Aid to ParochialSchools, in D. Oaks, THE WALL BETWEEN CHURCH AND STATE 55 (1963).12 Zelman v. Simmons-Harris, 536 U.S. 639 (2002).13 Elk Grove Unified School Dist. v. Newdow, 542 U.S.1 (2004).14 Insistence on “Under God” is a Political, Not Religious,Move, National Catholic Reporter 39. 32 (June 20, 2003):p. 24 (1).