Eugene Volokh has a post today responding to Clayton Cramer's comment that the Supreme Court is anti-religious and uses the 1st Amendment to restrict religion rather than promoting it. Mr. Cramer's comment is a broad one, but Professor Volokh, while admitting that much of what the courts do actively discourages religion (e.g. by forbidding the government to aid religious groups in the same way as it aids nonreligious groups), does not think judges are being hostile to religion when they forbid governments to encourage religion. Professor Volokh's point is worth discussing, but it is wrong. Here is his full post (the whole thing really needs to be read to get an accurate view):

You can tell a lot about a world-view by what it perceives as threatening or hostile. Clayton Cramer, whom I much respect for his work on gun control history, but with whom I have some rather deep disagreements, writes:

Concerning the [prohibition on atheists holding office in Tennessee]: the U.S. Supreme Court (wrongly, in my opinion) struck down Maryland's somewhat similar requirement in Torcaso v. Watkins (1961). I say wrongly because the First Amendment was never intended by the First Congress to apply to the states, most of which had provisions requiring officeholders to either believe in God or specifically to be Christians. (See here for a bunch of examples of how the Framers felt about religion.) The First Amendment was a limitation on the federal government alone.

The Fourteenth Amendment incorporates the First Amendment against the states, but there is simply no evidence that I have seen that the authors of the Fourteenth Amendment intended the First Amendment's prohibition on establishments of religion to include the broad hostility to Christianity that has become the norm in First Amendment jurisprudence from 1947 onward.

Let me set aside the original meaning question -- perhaps the Court was indeed wrong in Torcaso; not all bad, or even awful, laws are unconstitutional. What strikes me about this post is how it becomes something about broad hostility to Christianity. How does is it a manifestation of "broad hostility to Christianity" for the Court to hold that atheists have the same rights as Christians? What vision of Christianity, and of the proper role of Christianity in the country, would see a constitutional principle of equal rights for all religions, and for the irreligious, as "hostile" to Christianity?

      Actually, I tend to agree that some of the Court's post-1947 jurisprudence has shown hostility to religion, for instance when the Court has mandated discriminatory exclusion of religious institutions from generally available benefit programs. And one might even argue that the mandated exclusion of religious symbolism from government speech is hostility to religion, though that's a somewhat harder issue, for complex reasons.

       But the set of cases that have barred discrimination against or in favor of religious (or irreligious) groups -- Torcaso (barring discrimination against atheists), Larson v. Valente (barring interdenominational discrimination), Church of the Lukumi Babalu Aye v. City of Hialeah (barring discriminatory punishment of religious practices), McDaniel v. Paty (barring discriminatory exclusion of clergy from the legislature) -- are not remotely hostile to religion or to Christianity. They promote equality, not preference or hostility. The only thing to which they are hostile is religious discrimination.

The crucial question is:

How does is it a manifestation of "broad hostility to Christianity" for the Court to hold that atheists have the same rights as Christians? What vision of Christianity, and of the proper role of Christianity in the country, would see a constitutional principle of equal rights for all religions, and for the irreligious, as "hostile" to Christianity?

Suppose, as an analogy, that the courts said that henceforth all government documents would be in both Esperanto and English, rather than just in English. Would this be scrupulously neutral, avoiding any judicial activism in favor of any particular language? No, it would be the promotion of Esperanto at the expense of English.

Or suppose somebody proposed a rule saying that the U.S. Presidency should rotate between Christians, Jews, Moslems, and Hindus, each religion having a turn every 16 years. Would this be fair? Well, it means that the 95% of the country that is Christian is going to get 25% of the presidents instead of 100%.

If our starting point was an atheist regime that persecuted religion-- like Red China-- then moving to state neutrality would be pro-Christian, not anti-Christian. But starting with a religious regime that promotes religion, moving to state neutrality is anti- Christian. And the United States actually had religion in the state constitutions-- it wasn't even just in legislation or executive actions. The Supreme Court had to reach deep to try to root out religion.

The state constitutions favored religion, and so did large political majorities. Thus, saying that Christians could not pass laws they wanted had an effect, while saying that atheists could not pass they laws they wanted would not have. (As Volokh noted, actually the courts often do allow atheists to have the laws they want, and even force them on the legislatures--- banning aid to religious but not to nonreligious schools and banning Christmas displays but not secular displays.)

I think it is clear that the courts have struck at religion because judges and others of the elite couldn't win the battle at the ballot box.

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