Getting Religious Liberty Right
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.
The failure of the Republican candidates to come up with satisfying answers to Hugh Hewitt’s questions about religious liberty was marked in Friday’s editorial, “Flailing on Religious Liberty.” But what were the right answers? Herewith the suggestions of the Sun, offered to any of the Republican — or Democratic — candidates as might have use of them. If we keep marking the point, forgive us, but the first right in the Bill of Rights is in the balance.
The first question, which Mr. Hewitt put to Donald Trump, was whether he’d make religious liberty “an absolute litmus” test for the Supreme (and other) courts. Mr. Trump said he would. Then, instead of attacking Senator Cruz for supporting Chief Justice Roberts (who has voted for religious freedom in all the big cases that have come before his court), he could have talked about George Washington’s letter to the Jews.
That is the letter in which the first president, writing to the congregation of the Touro Synagogue in Rhode Island, echoed Micah, praying that “every one shall sit in safety under his own vine and fig tree and there shall be none to make him afraid.” Millions of Americans have grown afraid, Mr. Trump could have added, as government has clashed with religious law. In his administration, he could have said, fearing God will be no cause to fear the government.
Mr. Trump could have added that neither will failing to fear God be a cause of fearing the government. He could have spoken of the wonder of his own daughter’s conversion to Judaism as a marker of the way the oldest religious laws are inspiring the newest generations. And he could have spoken about the values — the glory — of New York, a city festooned with churches, synagogues, mosques, and temples.
When the question was put to Senator Cruz, the Texan — among the brightest students that ever attended Harvard Law School — could have, say, spoken on what the Founders meant when they started the Bill of Rights with the sentence “Congress shall make no law respecting an establishment of religion . . .”? Did they mean Congress shall make no national religion? Certainly they did, but if that’s all they wanted to say, they’d have worded it differently.
The Founders would have said, “Congress shall establish no national religion.” So why did they say “Congress shall make no law respecting an establishment of religion.” Mr. Cruz could have suggested, as Justice Scalia did when he spoke at Yeshiva University here at New York, that it was because several of the states in the new Republic had legally established churches, the Congregational in Connecticut and Massachusetts, say, the Church of England in South Carolina.
Then Mr. Cruz could have then said that he recognizes that religious establishments have since been put paid on the petition of religious Americans themselves. But he could have added that if he is elected president, he will make certain that, as the Founders intended, the powers of the presidency are not used to drive religion from public the public square. He would have marked that the reason the Founders protected religion is that they valued it.
Senator Rubio could have talked about, say, George Washington’s farewell address. It is the speech in which Washington declared that “reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.” He could have spoken about how Florida is first soil of refuge for the exiles from Castro’s communist regime, who comprehend the consequences of an officially atheistic state.
Governor Kasich could have talked about the concept of accommodation. If we can accommodate conscientious objectors with a religious objection to killing, as we do in our selective service system and within our ranks, what is wrong with the civilian world that it finds similar accommodations of religious principle so difficult? In our homes, in our business, in our interpersonal relations, Americans accommodate all sorts of particularities. This would be a good facet for Mr. Kasich, with his easy-going, Mr. Reasonableness personality.
Our simple point is that there is no need for Republican candidates to attack one another on this head. There is, though, a need to articulate the broad principles and to lament the way in which they have been ignored in the national debate. Particularly in the wake of the death of the justice of the Supreme Court who has been most associated with the first freedom in the Bill of Rights and after whom this freedom could — if America lacks for care — be dimmed.